|
Cayman Islands
(State or other jurisdiction of
incorporation or organization) |
| |
2842
(Primary Standard Industrial
Classification Code Number) |
| |
Not applicable
(I.R.S. Employer
Identification No.) |
|
|
Bradley C. Reed, P.C.
Alexander M. Schwartz Kirkland & Ellis LLP 300 North LaSalle Chicago, IL 60654 (312) 862-2000 |
| |
Thomas Holden
Rachel D. Phillips Ropes & Gray LLP 3 Embarcadero Center San Francisco, CA 94111 (415) 315-6300 |
|
|
Large accelerated filer
☐
|
| |
Accelerated Filer
☐
|
|
|
Non-accelerated filer
☒
|
| |
Smaller Reporting Company
☐
|
|
| | | |
Emerging Growth Company
☐
|
|
| | |
Per Share
|
| |
Total
|
| ||||||
Initial public offering price
|
| | | $ | | | | | $ | | | ||
Underwriting discount(1)
|
| | | $ | | | | | $ | | | ||
Proceeds, before expenses, to Diversey Holdings, Ltd
|
| | | $ | | | | | $ | | | |
| Citigroup | | |
Morgan Stanley
|
| |
Barclays
|
| |
J.P. Morgan
|
|
| BofA Securities | | |
Credit Suisse
|
| |
Goldman Sachs & Co. LLC
|
|
| Jefferies | | |
RBC Capital Markets
|
| |
UBS Investment Bank
|
|
| Baird | | |
Guggenheim Securities
|
|
| | | | | 1 | | | |
| | | | | 21 | | | |
| | | | | 43 | | | |
| | | | | 45 | | | |
| | | | | 46 | | | |
| | | | | 47 | | | |
| | | | | 48 | | | |
| | | | | 51 | | | |
| | | | | 53 | | | |
| | | | | 55 | | | |
| | | | | 62 | | | |
| | | | | 94 | | | |
| | | | | 112 | | | |
| | | | | 119 | | | |
| | | | | 139 | | | |
| | | | | 140 | | | |
| | | | | 143 | | | |
| | | | | 147 | | | |
| | | | | 162 | | | |
| | | | | 173 | | | |
| | | | | 181 | | | |
| | | | | 181 | | | |
| | | | | 181 | | | |
| | | | | F-1 | | |
|
|
| |
|
|
|
|
| |
|
|
| | |
Successor (consolidated)
|
| | |
Predecessor (combined)
|
| ||||||||||||||||||||||||
| | |
Years end December 31,
|
| |
For the period
March 15 – December 31 |
| | |
For the period
January 1 – September 5 |
| |||||||||||||||||||||
(in millions, except per share amounts)
|
| |
2020
|
| |
2019
|
| |
2018
|
| |
2017
|
| | |
2017
|
| |||||||||||||||
Statements of Operations Data: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net sales
|
| | | $ | 2,629.2 | | | | | $ | 2,623.9 | | | | | $ | 2,688.1 | | | | | $ | 870.2 | | | | | | $ | 1,681.3 | | |
Cost of sales
|
| | | | 1,559.4 | | | | | | 1,522.1 | | | | | | 1,570.6 | | | | | | 518.2 | | | | | | | 959.0 | | |
Gross profit
|
| | | | 1,069.8 | | | | | | 1,101.8 | | | | | | 1,117.5 | | | | | | 352.0 | | | | | | | 722.3 | | |
Selling, general and administrative expenses
|
| | | | 768.2 | | | | | | 855.6 | | | | | | 883.8 | | | | | | 284.3 | | | | | | | 641.9 | | |
Transition and transformation costs
|
| | | | 42.5 | | | | | | 52.8 | | | | | | 120.6 | | | | | | 53.7 | | | | | |
|
—
|
| |
Management fee
|
| | | | 7.5 | | | | | | 7.5 | | | | | | 7.5 | | | | | | 2.4 | | | | | |
|
—
|
| |
Share-based compensation
|
| | | | 67.5 | | | | | | 3.0 | | | | |
|
—
|
| | | |
|
—
|
| | | | | | 12.3 | | |
Amortization of intangible assets
|
| | | | 98.2 | | | | | | 93.7 | | | | | | 91.2 | | | | | | 19.4 | | | | | | | 40.6 | | |
Impairment of goodwill
|
| | | | — | | | | |
|
—
|
| | | | | 68.5 | | | | |
|
—
|
| | | | |
|
—
|
| |
Restructuring costs
|
| | | | 25.6 | | | | | | 19.8 | | | | | | 24.9 | | | | |
|
—
|
| | | | | | 0.1 | | |
Merger and acquisition-related costs
|
| | | | 1.0 | | | | | | 0.3 | | | | | | 7.3 | | | | | | 38.0 | | | | | |
|
—
|
| |
Operating income (loss)
|
| | | | 59.3 | | | | | | 69.1 | | | | | | (86.3) | | | | | | (45.8) | | | | | | | 27.4 | | |
Interest expense
|
| | | | 127.7 | | | | | | 141.0 | | | | | | 135.2 | | | | | | 42.7 | | | | | | | 9.0 | | |
Gain on sale of business investment
|
| | | | — | | | | | | (13.0) | | | | |
|
—
|
| | | |
|
—
|
| | | | |
|
—
|
| |
Bridge commitment fees
|
| | | | — | | | | |
|
—
|
| | | |
|
—
|
| | | | | 7.5 | | | | | |
|
—
|
| |
Foreign currency loss related to Argentina subsidiaries
|
| | | | 1.6 | | | | | | 11.4 | | | | | | 2.4 | | | | |
|
—
|
| | | | |
|
—
|
| |
Loss on settlement of foreign currency
contract |
| | | | — | | | | | | — | | | | | | — | | | | | | 121.3 | | | | | | | — | | |
Other (income) expense, net
|
| | | | (40.7) | | | | | | 6.0 | | | | | | 0.8 | | | | | | (2.7) | | | | | | | (0.9) | | |
Income (loss) before income tax provision (benefit)
|
| | | | (29.3) | | | | | | (76.3) | | | | | | (224.7) | | | | | | (214.6) | | | | | | | 19.3 | | |
Income tax provision (benefit)
|
| | | | 9.2 | | | | | | 32.7 | | | | | | 14.4 | | | | | | (61.6) | | | | | | | 23.8 | | |
Net loss
|
| | | $ | (38.5) | | | | | $ | (109.0) | | | | | $ | (239.1) | | | | | $ | (153.0) | | | | | | $ | (4.5) | | |
Basic and diluted loss per share(1)
|
| | | $ | (0.20) | | | | | $ | (1.15) | | | | | $ | (2.54) | | | | | $ | (1.63) | | | | | | | | | |
| | |
Successor (consolidated)
|
| | |
Predecessor (combined)
|
| ||||||||||||||||||||||||
| | |
Years end December 31,
|
| |
For the period
March 15 – December 31 |
| | |
For the period
January 1 – September 5 |
| |||||||||||||||||||||
(in millions, except per share amounts)
|
| |
2020
|
| |
2019
|
| |
2018
|
| |
2017
|
| | |
2017
|
| |||||||||||||||
Basic and diluted weighted-average shares outstanding(1)
|
| | | | 195.80 | | | | | | 94.40 | | | | | | 94.00 | | | | | | 93.70 | | | | | | | | | |
Basic and diluted pro forma loss per share(1)(2)
|
| | | $ | | | | | | $ | | | | | | | | | | | | | | | | | | | | | | |
Basic and diluted pro forma weighted-
average shares outstanding(1)(2) |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Balance Sheet Data (as of the end of period):
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | |||||
Working capital
|
| | | $ | (6.6) | | | | | $ | 29.7 | | | | | $ | 42.4 | | | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | | 192.9 | | | | | | 128.3 | | | | | | 73.4 | | | | | | | | | | | | | | | |
Property and equipment, net
|
| | | | 188.3 | | | | | | 172.2 | | | | | | 206.8 | | | | | | | | | | | | | | | |
Total assets
|
| | | | 4,286.1 | | | | | | 4,213.5 | | | | | | 4,190.0 | | | | | | | | | | | | | | | |
Total liabilities
|
| | | | 4,794.7 | | | | | | 4,534.7 | | | | | | 4,546.9 | | | | | | | | | | | | | | | |
Total stockholder’s equity
|
| | | | (508.6) | | | | | | (321.2) | | | | | | (356.9) | | | | | | | | | | | | | | | |
Other Financial Data: | | | | | | | | | | | | | | | | | | | | | | | | | | | | |||||
EBITDA(3) | | | | $ | 288.1 | | | | | $ | 242.7 | | | | | $ | 76.9 | | | | | $ | (131.4) | | | | | | $ | 116.9 | | |
Non-GAAP consolidated Adjusted EBITDA(3)
|
| | | $ | 401.2 | | | | | $ | 339.8 | | | | | $ | 321.6 | | | | | $ | 113.8 | | | | | | $ | 196.0 | | |
Dosing and dispensing equipment expenditures
|
| | | $ | (45.6) | | | | | $ | (93.4) | | | | | $ | (83.2) | | | | | $ | (24.5) | | | | | | $ | (38.5) | | |
Capital expenditures
|
| | | $ | (41.4) | | | | | $ | (29.0) | | | | | $ | (44.2) | | | | | $ | (4.1) | | | | | | $ | (12.3) | | |
| | |
Year Ended December 31,
|
| |||||||||||||||||||||||||||||||||
(in millions, except percentages)
|
| |
2020
|
| |
2019
|
| |
2018
|
| |||||||||||||||||||||||||||
Net Sales – Prior Year
|
| | | $ | 2,623.9 | | | | | | | | | | | $ | 2,688.1 | | | | | | | | | | | $ | 2,551.5 | | | | | | | | |
Organic change (non-U.S. GAAP)
|
| | | | 48.1 | | | | | | 1.8% | | | | | | 52.2 | | | | | | 1.9% | | | | | | 125.0 | | | | | | 4.9% | | |
SCJ(4) | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (22.6) | | | | | | (0.9)% | | |
Unilever(5) | | | | | — | | | | | | — | | | | | | (6.8) | | | | | | (0.3)% | | | | | | (16.3) | | | | | | (0.6)% | | |
Acquisition
|
| | | | 4.9 | | | | | | 0.2% | | | | | | 25.5 | | | | | | 0.9% | | | | | | 79.8 | | | | | | 3.1% | | |
Constant dollar change (non-U.S. GAAP)
|
| | | | 53.0 | | | | | | 2.0% | | | | | | 70.9 | | | | | | 2.6% | | | | | | 165.9 | | | | | | 6.5% | | |
Foreign currency translation
|
| | | | (47.7) | | | | | | (1.8)% | | | | | | (135.1) | | | | | | (5.0)% | | | | | | (29.3) | | | | | | (1.1)% | | |
Total change (U.S. GAAP)
|
| | | | 5.3 | | | | | | 0.2% | | | | | | (64.2) | | | | | | (2.4)% | | | | | | 136.6 | | | | | | 5.4% | | |
Net Sales – Current Year
|
| | | $ | 2,629.2 | | | | | | | | | | | $ | 2,623.9 | | | | | | | | | | | $ | 2,688.1 | | | | | | | | |
| | |
Successor (consolidated)
|
| | |
Predecessor (combined)
|
| ||||||||||||||||||||||||
| | |
Years Ended December 31,
|
| |
For the period
March 15 – December 31, |
| | |
For the period
January 1 – September 5 |
| |||||||||||||||||||||
(in millions, except percentages)
|
| |
2020
|
| |
2019
|
| |
2018
|
| |
2017
|
| | |
2017
|
| |||||||||||||||
Income (loss) before income tax provisions (benefit)
|
| | | $ | (29.3) | | | | | $ | (76.3) | | | | | $ | (224.7) | | | | | $ | (214.6) | | | | | | $ | 19.3 | | |
Interest expense
|
| | | | 127.7 | | | | | | 141.0 | | | | | | 135.2 | | | | | | 42.7 | | | | | | | 9.0 | | |
Interest income
|
| | | | (5.9) | | | | | | (7.5) | | | | | | (5.8) | | | | | | (1.4) | | | | | | | (3.3) | | |
Amortization expense of intangible assets
acquired |
| | | | 98.2 | | | | | | 93.7 | | | | | | 91.2 | | | | | | 19.4 | | | | | | | 40.6 | | |
Depreciation expense included in cost of sales
|
| | | | 89.5 | | | | | | 84.4 | | | | | | 73.4 | | | | | | 21.5 | | | | | | | 41.1 | | |
Depreciation expense included in selling, general and administrative expenses
|
| | | | 7.9 | | | | | | 7.4 | | | | | | 7.6 | | | | | | 1.0 | | | | | | | 10.2 | | |
EBITDA
|
| | | $ | 288.1 | | | | | $ | 242.7 | | | | | $ | 76.9 | | | | | $ | (131.4) | | | | | | $ | 116.9 | | |
Impairment of goodwill(1)
|
| | | | — | | | | | | — | | | | | | 68.5 | | | | | | — | | | | | | | — | | |
Transition and transformation costs and non-recurring costs(2)
|
| | | | 42.5 | | | | | | 52.8 | | | | | | 120.6 | | | | | | 63.3 | | | | | | | — | | |
Restructuring costs(3)
|
| | | | 25.6 | | | | | | 19.8 | | | | | | 24.9 | | | | | | — | | | | | | | 0.1 | | |
Foreign currency loss related to Argentina subsidiaries(4)
|
| | | | 1.6 | | | | | | 11.4 | | | | | | 3.4 | | | | | | — | | | | | | | — | | |
Loss on foreign currency forward contract(5)
|
| | | | — | | | | | | — | | | | | | — | | | | | | 121.3 | | | | | | | — | | |
Adjustment of tax indemnification asset(6)
|
| | | | 2.8 | | | | | | 7.1 | | | | | | 31.0 | | | | | | (3.9) | | | | | | | — | | |
Merger and acquisition-related cost(7)
|
| | | | 1.0 | | | | | | 0.3 | | | | | | 7.3 | | | | | | 38.0 | | | | | | | — | | |
Acquisition accounting adjustments(8)
|
| | | | — | | | | | | 1.9 | | | | | | 5.3 | | | | | | 16.0 | | | | | | | — | | |
Bain Capital management fee(9)
|
| | | | 7.5 | | | | | | 7.5 | | | | | | 7.5 | | | | | | 2.4 | | | | | | | — | | |
Non-cash pension and other post-employment benefit plan(10)
|
| | | | (12.9) | | | | | | (8.8) | | | | | | (10.5) | | | | | | (2.9) | | | | | | | (5.9) | | |
Foreign currency loss (gain)(11)
|
| | | | (25.1) | | | | | | 10.8 | | | | | | (16.3) | | | | | | 0.8 | | | | | | | 0.1 | | |
Factoring fees(12)
|
| | | | 4.3 | | | | | | 3.4 | | | | | | 0.6 | | | | | | — | | | | | | | — | | |
Share-based incentive compensation(13)
|
| | | | 67.5 | | | | | | 3.0 | | | | | | — | | | | | | — | | | | | | | 12.3 | | |
Charges related to sale of Diversey(14)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | | 23.1 | | |
Bridge commitment fees(15)
|
| | | | — | | | | | | — | | | | | | — | | | | | | 7.5 | | | | | | | — | | |
Stand-alone adjustment(16)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | | 40.3 | | |
Gain on sale of business and investments(17)
|
| | | | — | | | | | | (13.0) | | | | | | — | | | | | | — | | | | | | | — | | |
Non-cash items
|
| | | | — | | | | | | — | | | | | | — | | | | | | 1.8 | | | | | | | 4.2 | | |
Other items
|
| | | | (1.7) | | | | | | 0.9 | | | | | | 2.4 | | | | | | 0.9 | | | | | | | 4.9 | | |
Non-GAAP consolidated Adjusted EBITDA
|
| | | $ | 401.2 | | | | | $ | 339.8 | | | | | $ | 321.6 | | | | | $ | 113.8 | | | | | | $ | 196.0 | | |
Changes in net working capital(18)
|
| | | | (86.9) | | | | | | (70.3) | | | | | | 9.6 | | | | | |||||||||||
Collection of deferred factored receivables
|
| | | | 66.9 | | | | | | 80.8 | | | | | | 12.5 | | | | | |||||||||||
Dosing and dispensing equipment, net
|
| | | | (45.6) | | | | | | (93.4) | | | | | | (83.2) | | | | | |||||||||||
Capital expenditures
|
| | | | (41.4) | | | | | | (29.0) | | | | | | (44.2) | | | | | |||||||||||
Unlevered Cash Flow(19)
|
| | | $ | 294.2 | | | | | $ | 227.9 | | | | | $ | 216.3 | | | | | |||||||||||
Unlevered Cash Flow Conversion(20)
|
| | | | 73% | | | | | | 67% | | | | | | 67% | | | | |
| | |
As of December 31, 2020
|
| |||||||||
| | |
Actual
|
| |
Pro Forma
|
| ||||||
| | |
(in millions)
|
| |||||||||
Cash and cash equivalents
|
| | | $ | 192.9 | | | | | $ | | | |
Total debt: | | | | | | | | | | | | | |
Senior Secured Credit Facilities:
|
| | | | | | | | | | | | |
US Dollar Term Loan
|
| | | | 873.0 | | | | | | | | |
US Dollar Incremental Loan
|
| | | | 149.6 | | | | | | | | |
Euro Term Loan
|
| | | | 1,146.9 | | | | | | | | |
Revolving Credit Facility
|
| | | | — | | | | | | | | |
Senior Notes
|
| | | | 548.5 | | | | | | | | |
Short-term borrowings
|
| | | | 0.4 | | | | | | | | |
Finance lease obligations
|
| | | | 5.2 | | | | |||||
Financing obligations
|
| | | | 22.5 | | | | |||||
Unamortized deferred financing costs
|
| | | | (39.6) | | | | | | | | |
Unamortized original issue discount
|
| | | | (6.2) | | | | | | | | |
Total debt
|
| | | $ | 2,700.3 | | | | | $ | | | |
Preferred Equity Certificates
|
| | | $ | 641.7 | | | | | | | | |
Shareholders’ Equity: | | | | | | | | | | | | | |
Common stock, $0.01 par value per share; 195,800,697 shares authorized and outstanding, actual
|
| | | $ | 2.2 | | | | | | | | |
Ordinary shares, $0.01 par value per share; shares authorized and shares outstanding, pro forma
|
| | | | | | | | | | | | |
Preferred shares, $0.01 par value per share; no shares authorized or outstanding, actual; shares authorized and no shares outstanding, pro forma
|
| | | | | | | | | | | | |
Additional paid-in capital
|
| | | | 247.2 | | | | | | | | |
Accumulated deficit
|
| | | | (545.3) | | | | | | | | |
Accumulated other comprehensive loss
|
| | | | (212.7) | | | | | | | | |
Total stockholders’ equity
|
| | | $ | (508.6) | | | | | $ | | | |
|
Assumed initial public offering price per share
|
| | | | | | $ | | | |
|
Historical net tangible book value per share as of December 31, 2020
|
| |
|
| | | | | | |
|
Increase in net tangible book value per share attributable to the investors in this offering
|
| | | | | |||||
|
Pro forma net tangible book value per share after giving effect to this offering
|
| | | | | | | | | |
|
Dilution in net tangible book value per share to the investors in this offering
|
| | | | | | $ | | | |
| | |
Shares Purchased
|
| |
Total Consideration
|
| |
Average Price
|
| ||||||
| | |
Number
|
| |
Percentage
|
| |
Amount
|
| |
Percentage
|
| |
Per Share
|
|
Existing Shareholders
|
| |
|
| |
|
| | | | | | | | | |
New Investors
|
| | | | | | | | | | | | | | | |
Total
|
| | | | | | | | | | | | | | | |
(in millions)
|
| |
Constellation
(BC) 2 S.à.r.l. As Reported |
| |
Reorganization
Transactions Adjustments (a) |
| | | | |
Offering
Adjustments (a) |
| | | | |
Diversey
Holdings Ltd. Pro Forma (b) |
| ||||||||||||
Assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Current assets: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 192.9 | | | | | $ | | | | | | | | $ | | | |
(8, 9)
|
| | | $ | | | |||
Trade receivables
|
| | | | 342.0 | | | | | | | | | | | | | | | | | | | | | | | | | | |
Other receivables
|
| | | | 71.0 | | | | | | | | | | | | | | | | | | | | | | | | | | |
Inventories
|
| | | | 282.4 | | | | | | | | | | | | | | | | | | | | | | | | | | |
Prepaid expenses and other current assets
|
| | | | 62.0 | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total current assets
|
| | | $ | 950.3 | | | | | | | | | | | | | | | | | | | | | | | | | | |
Property and equipment
|
| | | | 188.3 | | | | | | | | | | | | | | | | | | | | | | | | | | |
Goodwill
|
| | | | 467.0 | | | | | | | | | | | | | | | | | | | | | | | | | | |
Intangible assets
|
| | | | 2,311.4 | | | | | | | | | | | | | | | | | | | | | | | | | | |
Other non-current assets
|
| | | | 369.1 | | | | | | | | | |
(4)
|
| | | | | | | | | | | | | | | |
Total assets
|
| | | $ | 4,286.1 | | | | | $ | | | | | | | | $ | | | | | | | | $ | | | |||
Liabilities and stockholders’ equity | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Current liabilities: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Short-term borrowings
|
| | | $ | 0.4 | | | | | $ | | | | | | | | $ | | | | | | | | $ | | | |||
Current portion of long-term debt
|
| | | | 13.2 | | | | | | | | | | | | | | | | | | | | | | | | | | |
Accounts payable
|
| | | | 404.6 | | | | | | | | | |
(6, 7)
|
| | | | | | | |
(10, 11)
|
| | | | | | |
Accrued restructuring costs
|
| | | | 26.3 | | | | | | | | | | | | | | | | | | | | | | | | | | |
Other current liabilities
|
| | | | 512.4 | | | | | | | | | |
(4)
|
| | | | | | | | | | | | | | | |
Total current liabilities
|
| | | | 956.9 | | | | | | | | | | | | | | | | | | | | | | | | | | |
Long-term debt, less current portion
|
| | | | 2,686.7 | | | | | | | | | |
(9)
|
| | | | | | | | | | | | | | | |
Preferred equity certificates
|
| | | | 641.7 | | | | | | | | | |
(2)
|
| | | | | | | | | | | | | | | |
Deferred taxes
|
| | | | 181.1 | | | | | | | | | | | | | | | | | | | | | | | | | | |
Tax receivable agreement liability
|
| | | | | | | | | | | | | |
(3)
|
| | | | | | | | | | | | | | | |
Other non-current liabilities
|
| | | | 328.3 | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total liabilities
|
| | | | 4,794.7 | | | | | | | | | | | | | | | | | | | | | | | | | | |
Stockholders’ equity: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Common stock
|
| | | | 2.2 | | | | | | | | | |
(1)
|
| | | | | | | | | | | | | | | |
Ordinary shares
|
| | | | | | | | | | | | | |
(1, 2, 4, 5)
|
| | | | | | | |
(8)
|
| | | | | | |
Additional paid-in capital
|
| | | | 247.2 | | | | | | | | | |
(1, 2, 3, 4, 5)
|
| | | | | | | |
(8, 11)
|
| | | | | | |
Accumulated deficit
|
| | | | (545.3) | | | | | | | | | |
(5, 6, 7)
|
| | | | | | | |
(10)
|
| | | | | | |
Accumulated other comprehensive loss
|
| | | | (212.7) | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total stockholders’ equity
|
| | | | (508.6) | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total liabilities and stockholders’ equity
|
| | | $ | 4,286.1 | | | | | $ | | | | | | | | $ | | | | | | | | $ | | | |
(in millions, except per share amounts)
|
| |
Constellation
(BC) 2 S.à. r.l. As Reported |
| |
Reorganization
Transaction Adjustments (a) |
| | | | |
Offering
Adjustments (a) |
| | | | | | | |
Diversey
Holdings Ltd. Pro Forma (b) |
| ||||||||||||
Net sales
|
| | | $ | 2,629.2 | | | | | $ | | | | | | | | $ | | | | | | | | | | | $ | | | |||
Cost of sales
|
| | | | 1,559.4 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Gross profit
|
| | | $ | 1,069.8 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Selling, general and administrative expenses
|
| | | | 768.2 | | | | | | | | | |
(6)
|
| | | | | | | | | | | | | | | | | | |
Transition and transformation costs
|
| | | | 42.5 | | | | | | | | | |
(10)
|
| | | | | | | | | | | | | | | | | | |
Management fee
|
| | | | 7.5 | | | | | | | | | |
(7)
|
| | | | | | | | | | | | | | | | | | |
Share-based compensation
|
| | | | 67.5 | | | | | | | | | |
(5)
|
| | | | | | | | |
|
(12)
|
| | | | | | | |
Amortization of intangible assets
|
| | | | 98.2 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Restructuring costs
|
| | | | 25.6 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Merger and acquisition-related costs
|
| | | | 1.0 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Operating income (loss)
|
| | | | 59.3 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Interest expense
|
| | | | 127.7 | | | | | | | | | | | | | | | | | | | |
|
(13)
|
| | | | | | | |
Foreign currency loss related to Argentina subsidiaries
|
| | | | 1.6 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Other (income) expense, net
|
| | | | (40.7) | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Loss before income tax provision
|
| | | | (29.3) | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Income tax provision
|
| | | | 9.2 | | | | | | | | | |
(14)
|
| | | | | | | | |
|
(14)
|
| | | | | | | |
Net loss
|
| | | $ | (38.5) | | | | | $ | | | | | | | | | $ | | | | | | | | | | | | $ | | | |
Pro forma – basic and diluted loss per
share (20) |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | $ | | | |
Pro forma – basic and diluted weighted average shares outstanding (20)
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Pro forma cash and cash equivalents
|
| |
Diversey Holdings, Ltd.
Pro Forma |
| |||
Issuance of ordinary shares in connection with the offering (Note 8)
|
| | | $ | | | |
Repayment of third party debt (Note 9) | | | | | | | |
Net cash and cash equivalents pro forma adjustment
|
| | | $ | | | |
Pro forma accounts payable
|
| |
Diversey Holdings, Ltd.
Pro Forma |
| |||
Vesting of performance-based cash LTIP awards (Note 6)
|
| | | $ | | | |
Termination fee payable to Bain Capital (Note 7) | | | | | | | |
Net accounts payable pro forma adjustment
|
| | | $ | | | |
Pro forma accounts payable
|
| |
Diversey Holdings, Ltd.
Pro Forma |
| |||
Transaction costs (Note 10)
|
| | | $ | | | |
Specific incremental direct offering costs (Note 11) | | | | | | | |
Net accounts payable pro forma adjustment
|
| | | $ | | | |
Pro forma additional paid-in-capital
|
| |
Diversey Holdings, Ltd.
Pro Forma |
| |||
Issuance of ordinary shares to Bain Capital and the Co-Investors (Note 1)
|
| | | $ | | | |
Conversion of PECs (Note 2)
|
| | | | | | |
Conversion of MEIP equity-based awards (Note 4)
|
| | | | | | |
Vesting of performance-based MEIP equity awards (Note 5)
|
| | | | | | |
Net additional ordinary shares pro forma adjustment
|
| | | $ | | | |
Pro forma additional paid-in-capital
|
| |
Diversey Holdings Ltd.
Pro Forma |
| |||
Issuance of ordinary shares to Bain Capital and the Co-Investors (Note 1)
|
| | | $ | | | |
Conversion of PECs (Note 2)
|
| | | | | | |
Recognition of tax receivable agreement liability (Note 3)
|
| | | | | | |
Conversion of MEIP equity-based awards (Note 4)
|
| | | | | | |
Vesting of performance-based MEIP equity awards (Note 5)
|
| | | | | | |
Net additional paid-in-capital pro forma adjustment
|
| | | $ | | | |
Pro forma additional paid-in-capital
|
| |
Diversey Holdings Ltd.
Pro Forma |
| |||
Issuance of ordinary shares in connection with the offering (Note 8)
|
| | | $ | | | |
Specific incremental direct offering costs (Note 11)
|
| | | | | | |
Net additional paid-in-capital pro forma adjustment
|
| | | $ | | | |
Pro forma accumulated deficit
|
| |
Diversey Holdings Ltd.
Pro Forma |
| |||
Modification of performance-based MEIP equity awards (Note 5)
|
| | | $ | | | |
Vesting of performance-based cash LTIP awards (Note 6)
|
| | | | | | |
Termination fee payable to Bain Capital (Note 7)
|
| | | | | | |
Net pro forma adjustment to accumulated deficit
|
| | | $ | | | |
| | |
Pro Forma for
the year ended December 31, 2020 |
| |||
Numerator | | | | | | | |
Net loss
|
| | | $ | | | |
Denominator | | | | | | | |
Basic and diluted – weighted average shares outstanding (i) (ii)
|
| | | | | | |
Basic and diluted loss per share
|
| | | $ | | | |
(in millions, except per share amounts)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||
Net sales
|
| | | $ | 2,629.2 | | | | | $ | 2,623.9 | | | | | $ | 2,688.1 | | |
Cost of sales
|
| | | | 1,559.4 | | | | | | 1,522.1 | | | | | | 1,570.6 | | |
Gross profit
|
| | | | 1,069.8 | | | | | | 1,101.8 | | | | | | 1,117.5 | | |
Selling, general and administrative
expenses |
| | | | 768.2 | | | | | | 855.6 | | | | | | 883.8 | | |
Transition and transformation costs
|
| | | | 42.5 | | | | | | 52.8 | | | | | | 120.6 | | |
Management fee
|
| | | | 7.5 | | | | | | 7.5 | | | | | | 7.5 | | |
Share-based compensation
|
| | | | 67.5 | | | | | | 3.0 | | | | | | — | | |
Amortization of intangible assets
|
| | | | 98.2 | | | | | | 93.7 | | | | | | 91.2 | | |
Impairment of goodwill
|
| | | | — | | | | | | — | | | | | | 68.5 | | |
Restructuring costs
|
| | | | 25.6 | | | | | | 19.8 | | | | | | 24.9 | | |
Merger and acquisition-related costs
|
| | | | 1.0 | | | | | | 0.3 | | | | | | 7.3 | | |
Operating income (loss)
|
| | | | 59.3 | | | | | | 69.1 | | | | | | (86.3) | | |
Interest expense
|
| | | | 127.7 | | | | | | 141.0 | | | | | | 135.2 | | |
Gain on sale of business and investments
|
| | | | — | | | | | | (13.0) | | | | | | — | | |
Foreign currency loss related to Argentina subsidiaries
|
| | | | 1.6 | | | | | | 11.4 | | | | | | 2.4 | | |
Other (income) expense, net
|
| | | | (40.7) | | | | | | 6.0 | | | | | | 0.8 | | |
Loss before income tax provision
|
| | | | (29.3) | | | | | | (76.3) | | | | | | (224.7) | | |
Income tax provision
|
| | | | 9.2 | | | | | | 32.7 | | | | | | 14.4 | | |
Net loss
|
| | | $ | (38.5) | | | | | $ | (109.0) | | | | | $ | (239.1) | | |
Basic and diluted loss per share
|
| | | $ | (0.20) | | | | | $ | (1.15) | | | | | $ | (2.54) | | |
Basic and diluted weighted average shares outstanding
|
| | | | 195.80 | | | | | | 94.40 | | | | | | 94.00 | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||
Institutional
|
| | | $ | 1,995.3 | | | | | $ | 1,979.1 | | | | | $ | 2,023.9 | | |
Food & Beverage
|
| | | | 633.9 | | | | | | 644.8 | | | | | | 664.2 | | |
Total
|
| | | $ | 2,629.2 | | | | | $ | 2,623.9 | | | | | $ | 2,688.1 | | |
(in millions, except percentages)
|
| |
Institutional
|
| |
Food & Beverage
|
| |
Total
|
| |||||||||||||||||||||||||||
2019 Net Sales
|
| | | $ | 1,979.1 | | | | | | 75.4% | | | | | $ | 644.8 | | | | | | 24.6% | | | | | $ | 2,623.9 | | | | | | | | |
Organic change (non-U.S. GAAP)
|
| | | | 31.0 | | | | | | 1.6% | | | | | | 17.1 | | | | | | 2.7% | | | | | | 48.1 | | | | | | 1.8% | | |
Acquisition
|
| | | | 4.9 | | | | | | 0.2% | | | | | | — | | | | | | 0.0% | | | | | | 4.9 | | | | | | 0.2% | | |
Constant dollar change (non-U.S. GAAP)
|
| | | | 35.9 | | | | | | 1.8% | | | | | | 17.1 | | | | | | 2.7% | | | | | | 53.0 | | | | | | 2.0% | | |
Foreign currency translation
|
| | | | (19.7) | | | | | | (1.0)% | | | | | | (28.0) | | | | | | (4.3)% | | | | | | (47.7) | | | | | | (1.8)% | | |
Total change (U.S. GAAP)
|
| | | | 16.2 | | | | | | 0.8% | | | | | | (10.9) | | | | | | (1.7)% | | | | | | 5.3 | | | | | | 0.2% | | |
2020 Net Sales
|
| | | $ | 1,995.3 | | | | | | 75.9% | | | | | $ | 633.9 | | | | | | 24.1% | | | | | $ | 2,629.2 | | | | | | | | |
(in millions, except percentages)
|
| |
Institutional
|
| |
Food & Beverage
|
| |
Total
|
| |||||||||||||||||||||||||||
2018 Net Sales
|
| | | $ | 2,023.9 | | | | | | 75.3% | | | | | $ | 664.2 | | | | | | 24.7% | | | | | $ | 2,688.1 | | | | | | | | |
Organic change (non-U.S. GAAP)
|
| | | | 28.3 | | | | | | 1.4% | | | | | | 23.8 | | | | | | 3.6% | | | | | | 52.2 | | | | | | 1.9% | | |
Unilever(1) | | | | | (6.8) | | | | | | (0.3)% | | | | | | — | | | | | | 0.0% | | | | | | (6.8) | | | | | | (0.3)% | | |
Acquisition
|
| | | | 22.9 | | | | | | 1.1% | | | | | | 2.6 | | | | | | 0.4% | | | | | | 25.5 | | | | | | 0.9% | | |
Constant dollar change (non-U.S. GAAP
|
| | | | 44.5 | | | | | | 2.2% | | | | | | 26.4 | | | | | | 4.0% | | | | | | 70.9 | | | | | | 2.6% | | |
Foreign currency translation
|
| | | | (89.3) | | | | | | (4.4)% | | | | | | (45.8) | | | | | | (6.9)% | | | | | | (135.1) | | | | | | (5.0)% | | |
Total change (U.S. GAAP)
|
| | | | (44.8) | | | | | | (2.2)% | | | | | | (19.4) | | | | | | (2.9)% | | | | | | (64.2) | | | | | | (2.4)% | | |
2019 Net Sales
|
| | | $ | 1,979.1 | | | | | | 75.4% | | | | | $ | 644.8 | | | | | | 24.6% | | | | | $ | 2,623.9 | | | | | | | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||
Interest expense
|
| | | $ | 127.7 | | | | | $ | 141.0 | | | | | $ | 135.2 | | |
Gain on sale of business and investments
|
| | | | — | | | | | | (13.0) | | | | | | — | | |
Foreign currency loss related to Argentina subsidiaries
|
| | | | 1.6 | | | | | | 11.4 | | | | | | 2.4 | | |
Other (income) expense, net
|
| | | | (40.7) | | | | | | 6.0 | | | | | | 0.8 | | |
| | | | $ | 88.6 | | | | | $ | 145.4 | | | | | $ | 138.4 | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||
Interest income
|
| | | $ | (5.9) | | | | | $ | (7.5) | | | | | $ | (5.8) | | |
Unrealized foreign exchange loss (gain)
|
| | | | (25.1) | | | | | | 10.8 | | | | | | 1.8 | | |
Realized foreign exchange loss (gain)
|
| | | | (0.9) | | | | | | 0.6 | | | | | | (16.7) | | |
Non-cash pension and other post-employment benefit plan
|
| | | | (12.9) | | | | | | (8.8) | | | | | | (10.5) | | |
Adjustment of tax indemnification asset
|
| | | | 2.8 | | | | | | 7.1 | | | | | | 31.0 | | |
Factoring fees
|
| | | | 4.3 | | | | | | 3.4 | | | | | | 0.6 | | |
Other, net
|
| | | | 3.0 | | | | | | 0.4 | | | | | | 0.4 | | |
Total other (income) expense, net
|
| | | $ | (40.7) | | | | | $ | 6.0 | | | | | $ | 0.8 | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||
Institutional
|
| | | $ | 340.7 | | | | | $ | 296.4 | | | | | $ | 279.8 | | |
Food & Beverage
|
| | | | 114.4 | | | | | | 101.9 | | | | | | 99.6 | | |
Corporate
|
| | | $ | (53.9) | | | | | $ | (58.5) | | | | | $ | (57.8) | | |
Total
|
| | | $ | 401.2 | | | | | $ | 339.8 | | | | | $ | 321.6 | | |
(in millions, except percentages)
|
| |
Institutional
|
| |
Food & Beverage
|
| |
Corporate
|
| |
Total
|
| ||||||||||||||||||||||||||||||||||||
2019 Adjusted EBITDA
|
| | | $ | 296.4 | | | | | | 87.2% | | | | | $ | 101.9 | | | | | | 30.0% | | | | | $ | (58.5) | | | | | | (17.2)% | | | | | $ | 339.8 | | | | | | | | |
Adj EBITDA margin
|
| | | | 15.0% | | | | | | | | | | | | 15.8% | | | | | | | | | | | | (2.2)% | | | | | | | | | | | | 13.0% | | | | | | | | |
Organic change (non-U.S. GAAP)
|
| | | | 46.3 | | | | | | 15.6% | | | | | | 19.5 | | | | | | 19.1% | | | | | | 4.9 | | | | | | (8.4)% | | | | | | 70.7 | | | | | | 22.0% | | |
Acquisition
|
| | | | 1.2 | | | | | | 0.4% | | | | | | — | | | | | | 0.0% | | | | | | — | | | | | | 0.0% | | | | | | 1.2 | | | | | | 0.4% | | |
Constant dollar change (non-U.S. GAAP)
|
| | | | 47.5 | | | | | | 16.0% | | | | | | 19.5 | | | | | | 19.1% | | | | | | 4.9 | | | | | | (8.4)% | | | | | | 71.9 | | | | | | 22.4% | | |
Foreign currency translation
|
| | | | (3.2) | | | | | | (1.1)% | | | | | | (7.0) | | | | | | (6.9)% | | | | | | (0.3) | | | | | | 0.4% | | | | | | (10.5) | | | | | | (3.3)% | | |
Total change (U.S. GAAP)
|
| | | | 44.3 | | | | | | 14.9% | | | | | | 12.5 | | | | | | 12.3% | | | | | | 4.6 | | | | | | (7.9)% | | | | | | 61.4 | | | | | | 19.1% | | |
2020 Adjusted EBITDA
|
| | | $ | 340.7 | | | | | | 84.9% | | | | | $ | 114.4 | | | | | | 28.5% | | | | | $ | (53.9) | | | | | | (13.4)% | | | | | $ | 401.2 | | | | | | | | |
Adj EBITDA margin
|
| | | | 17.1% | | | | | | | | | | | | 18.1% | | | | | | | | | | | | (2.1)% | | | | | | | | | | | | 15.3% | | | | | | | | |
(in millions, except percentages)
|
| |
Institutional
|
| |
Food & Beverage
|
| |
Corporate
|
| |
Total
|
| ||||||||||||||||||||||||||||||||||||
2018 Adjusted EBITDA
|
| | | $ | 279.8 | | | | | | 87.0% | | | | | $ | 99.6 | | | | | | 31.0% | | | | | $ | (57.8) | | | | | | (18.0)% | | | | | $ | 321.6 | | | | | | | | |
Adj EBITDA margin
|
| | |
|
13.8%
|
| | | | | | | | | |
|
15.0%
|
| | | | | | | | | |
|
(2.1)%
|
| | | | | | | | | |
|
12.0%
|
| | | | | | | |
Organic change (non-U.S. GAAP)
|
| | | | 30.9 | | | | | | 11.0% | | | | | | 11.3 | | | | | | 11.3% | | | | | | (2.1) | | | | | | 3.6% | | | | | | 41.7 | | | | | | 12.0% | | |
Acquisition
|
| | | | 1.4 | | | | | | 0.5% | | | | | | 0.2 | | | | | | —% | | | | | | — | | | | | | —% | | | | | | — | | | | | | 0.5% | | |
Constant dollar change (non-U.S. GAAP)
|
| | | | 32.3 | | | | | | 11.5% | | | | | | 11.5 | | | | | | 11.5% | | | | | | (2.1) | | | | | | 3.6% | | | | | | 41.7 | | | | | | 13.0% | | |
Foreign currency translation
|
| | | | (15.7) | | | | | | (5.6)% | | | | | | (9.1) | | | | | | (9.1)% | | | | | | 1.3 | | | | | | (2.2)% | | | | | | (23.5) | | | | | | (7.3)% | | |
Total change (U.S. GAAP)
|
| | | | 16.7 | | | | | | 6.0% | | | | | | 2.3 | | | | | | 2.4% | | | | | | (0.8) | | | | | | 1.4% | | | | | | 18.2 | | | | | | 5.7% | | |
2019 Adjusted EBITDA
|
| | | $ | 296.4 | | | | | | 87.2% | | | | | $ | 101.9 | | | | | | 30.0% | | | | | $ | (58.6) | | | | | | (17.2)% | | | | | $ | 339.8 | | | | | | | | |
Adj EBITDA margin
|
| | | | 15.0% | | | | | | | | | | | | 15.8% | | | | | | | | | | | | (2.2)% | | | | | | | | | | | | 13.0% | | | |
| | |
Three Months Ended
|
| ||||||||||||||||||||||||||||||||||||||||||||||||
(in millions, except per
share amounts) |
| |
December 31,
2020 |
| |
September 30,
2020 |
| |
June 30,
2020 |
| |
March 31,
2020 |
| |
December 31,
2019 |
| |
September 30,
2019 |
| |
June 30,
2019 |
| |
March 31,
2019 |
| | ||||||||||||||||||||||||||
Net sales
|
| | | $ | 667.4 | | | | | $ | 681.12 | | | | | $ | 625.8 | | | | | $ | 654.9 | | | | | $ | 658.5 | | | | | $ | 667.6 | | | | | $ | 679.9 | | | | | $ | 617.9 | | | | ||
Gross profit
|
| | | | 258.0 | | | | | | 270.2 | | | | | | 260.3 | | | | | | 281.3 | | | | | | 281.3 | | | | | | 283.4 | | | | | | 283.1 | | | | | | 254.0 | | | | ||
Net income (loss)
|
| | | | (71.8) | | | | | | 13.0 | | | | | | 16.4 | | | | | | 3.9 | | | | | | (44.6) | | | | | | (7.1) | | | | | | (12.8) | | | | | | (44.5) | | | | ||
Basic and diluted
earnings (loss) per share |
| | | | (0.37) | | | | | | 0.07 | | | | | | 0.08 | | | | | | 0.02 | | | | | | (0.47) | | | | | | (0.08) | | | | | | (0.14) | | | | | | (0.47) | | | | ||
Basic and diluted
weighted average shares outstanding |
| | | | 195.8 | | | | | | 195.8 | | | | | | 195.8 | | | | | | 195.8 | | | | | | 95.20 | | | | | | 94.10 | | | | | | 94.10 | | | | | | 94.10 | | | | ||
Adjusted
EBITDA |
| | | $ | 96.3 | | | | | $ | 106.8 | | | | | $ | 105.9 | | | | | $ | 92.2 | | | | | $ | 94.3 | | | | | $ | 104.6 | | | | | $ | 88.8 | | | | | $ | 52.1 | | | |
| | |
Three Months Ended
|
| |
Twelve
Months Ended |
| ||||||||||||||||||||||||
(in millions)
|
| |
December 31
|
| |
September 30
|
| |
June 30
|
| |
March 31
|
| |
December 31
|
| |||||||||||||||
2019 Net Sales
|
| | | $ | 658.5 | | | | | $ | 667.6 | | | | | $ | 679.9 | | | | | $ | 617.9 | | | | | $ | 2,623.9 | | |
Constant dollar change (non-U.S. GAAP)
|
| | | | 0.6 | | | | | | 15.1 | | | | | | (27.4) | | | | | | 59.8 | | | | | | 48.2 | | |
Acquisition
|
| | | | 2.8 | | | | | | 2.1 | | | | | | — | | | | | | — | | | | | | 4.9 | | |
Constant dollar change (non-U.S. GAAP)
|
| | | | 3.4 | | | | | | 17.2 | | | | | | (27.4) | | | | | | 59.8 | | | | | | 53.0 | | |
Foreign currency translation
|
| | | | 5.5 | | | | | | (3.7) | | | | | | (26.7) | | | | | | (22.9) | | | | | | (47.7) | | |
Total change (U.S. GAAP)
|
| | | | 8.9 | | | | | | 13.5 | | | | | | (54.1) | | | | | | 37.0 | | | | | | 5.3 | | |
2020 Net sales
|
| | | $ | 667.4 | | | | | $ | 681.1 | | | | | $ | 625.8 | | | | | $ | 654.9 | | | | | $ | 2,629.2 | | |
| | |
Three Months Ended
|
| |
Twelve
Months Ended |
| ||||||||||||||||||||||||
(in millions, except percentages)
|
| |
December 31
|
| |
September 30
|
| |
June 30
|
| |
March 31
|
| |
December 31
|
| |||||||||||||||
2019 Adjusted EBITDA
|
| | | $ | 94.3 | | | | | $ | 104.6 | | | | | $ | 88.8 | | | | | $ | 52.1 | | | | | $ | 339.8 | | |
Adj EBITDA margin
|
| | | | 14.3% | | | | | | 15.7% | | | | | | 13.1% | | | | | | 8.4% | | | | | | 13.0% | | |
Organic change (non-U.S. GAAP)
|
| | | | 0.7 | | | | | | 2.9 | | | | | | 22.5 | | | | | | 44.6 | | | | | | 70.7 | | |
Acquisition
|
| | | | 0.7 | | | | | | 0.5 | | | | | | — | | | | | | — | | | | | | 1.2 | | |
Constant dollar change (non-U.S. GAAP)
|
| | | | 1.4 | | | | | | 3.4 | | | | | | 22.5 | | | | | | 44.6 | | | | | | 71.9 | | |
Foreign currency translation
|
| | | | 0.6 | | | | | | (1.2) | | | | | | (5.4) | | | | | | (4.5) | | | | | | (10.5) | | |
Total change (U.S. GAAP)
|
| | | | 2.0 | | | | | | 2.2 | | | | | | 17.1 | | | | | | 40.1 | | | | | | 61.4 | | |
2020 Adjusted EBITDA
|
| | | $ | 96.3 | | | | | $ | 106.8 | | | | | $ | 105.9 | | | | | $ | 92.2 | | | | | $ | 401.2 | | |
Adj EBITDA margin
|
| | | | 14.4% | | | | | | 15.7% | | | | | | 16.9% | | | | | | 14.1% | | | | | | 15.3% | | |
| | |
Three Months Ended
|
| ||||||||||||||||||||||||||||||||||||||||||||||||
(in millions)
|
| |
December 31,
2020 |
| |
September 30,
2020 |
| |
June 30,
2020 |
| |
March 31,
2020 |
| |
December 31,
2019 |
| |
September 30,
2019 |
| |
June 30,
2019 |
| |
March 31,
2019 |
| | ||||||||||||||||||||||||||
Income (loss) before
income tax (benefit) provisions |
| | | $ | (86.5) | | | | | $ | 20.1 | | | | | $ | 22.0 | | | | | $ | 15.1 | | | | | $ | (14.5) | | | | | $ | (8.3) | | | | | $ | (8.0) | | | | | $ | (45.5) | | | | ||
Interest expense
|
| | | | 32.9 | | | | | | 32.4 | | | | | | 30.8 | | | | | | 31.6 | | | | | | 36.0 | | | | | | 34.0 | | | | | | 36.9 | | | | | | 34.1 | | | | ||
Interest income
|
| | | | (1.3) | | | | | | (1.2) | | | | | | (1.2) | | | | | | (2.2) | | | | | | (2.4) | | | | | | (1.8) | | | | | | (1.7) | | | | | | (1.6) | | | | ||
Amortization expense of intangible assets acquired
|
| | | | 24.2 | | | | | | 24.8 | | | | | | 24.6 | | | | | | 24.6 | | | | | | 25.1 | | | | | | 22.8 | | | | | | 22.9 | | | | | | 22.9 | | | | ||
Depreciation expense included in cost of sales
|
| | | | 25.1 | | | | | | 21.4 | | | | | | 21.2 | | | | | | 21.8 | | | | | | 22.9 | | | | | | 20.8 | | | | | | 21.0 | | | | | | 19.7 | | | | ||
Depreciation expense included in selling, general and administrative expenses
|
| | | | 1.7 | | | | | | 2.3 | | | | | | 1.9 | | | | | | 2.0 | | | | | | 3.1 | | | | | | 1.4 | | | | | | 1.6 | | | | | | 1.3 | | | | ||
EBITDA:
|
| | | | (3.9) | | | | | | 99.8 | | | | | | 99.3 | | | | | | 92.9 | | | | | | 70.2 | | | | | | 68.9 | | | | | | 72.7 | | | | | | 30.9 | | | | ||
Transition and
transformation costs and non-recurring costs(1) |
| | | | 22.5 | | | | | | 11.2 | | | | | | 3.8 | | | | | | 5.0 | | | | | | 15.3 | | | | | | 12.6 | | | | | | 10.2 | | | | | | 14.7 | | | | ||
Restructuring costs(2)
|
| | | | 20.3 | | | | | | 2.0 | | | | | | 1.9 | | | | | | 1.4 | | | | | | 10.1 | | | | | | 4.8 | | | | | | 4.9 | | | | | | — | | | | ||
Foreign currency loss (gain) related to Argentina subsidiaries(3)
|
| | | | 1.3 | | | | | | (0.3) | | | | | | (0.3) | | | | | | 0.9 | | | | | | 4.7 | | | | | | 1.5 | | | | | | 4.2 | | | | | | 1.0 | | | | ||
Adjustment of tax indemnification asset(4)
|
| | | | 1.4 | | | | | | 0.1 | | | | | | 1.3 | | | | | | — | | | | | | 6.2 | | | | | | 0.7 | | | | | | 0.2 | | | | | | — | | | | ||
Merger and acquisition-
related cost(5) |
| | | | 0.1 | | | | | | 0.9 | | | | | | — | | | | | | — | | | | | | 0.3 | | | | | | — | | | | | | — | | | | | | — | | | | ||
Acquisition accounting
adjustments(6) |
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 0.5 | | | | | | 0.7 | | | | | | 0.7 | | | | ||
Bain Capital management
fee(7) |
| | | | 1.9 | | | | | | 1.9 | | | | | | 1.9 | | | | | | 1.9 | | | | | | 1.9 | | | | | | 1.8 | | | | | | 1.9 | | | | | | 1.9 | | | | ||
Non-cash pension and
other post- employment benefit plan(8) |
| | | | (3.2) | | | | | | (3.5) | | | | | | (3.1) | | | | | | (3.1) | | | | | | (1.8) | | | | | | (2.3) | | | | | | (2.3) | | | | | | (2.4) | | | | ||
Foreign currency (gain)
loss(9) |
| | | | (7.5) | | | | | | (8.8) | | | | | | (0.5) | | | | | | (8.3) | | | | | | (1.1) | | | | | | 10.3 | | | | | | (2.7) | | | | | | 4.3 | | | | ||
Factoring fees(10)
|
| | | | 1.1 | | | | | | 1.3 | | | | | | 1.2 | | | | | | 0.7 | | | | | | 0.6 | | | | | | 1.0 | | | | | | 0.9 | | | | | | 0.9 | | | | ||
Share-based incentive compensation(11)
|
| | | | 66.4 | | | | | | 0.5 | | | | | | 0.3 | | | | | | 0.3 | | | | | | 3.0 | | | | | | — | | | | | | — | | | | | | — | | | |
| | |
Three Months Ended
|
| ||||||||||||||||||||||||||||||||||||||||||||||||
(in millions)
|
| |
December 31,
2020 |
| |
September 30,
2020 |
| |
June 30,
2020 |
| |
March 31,
2020 |
| |
December 31,
2019 |
| |
September 30,
2019 |
| |
June 30,
2019 |
| |
March 31,
2019 |
| | ||||||||||||||||||||||||||
Gain on sale of business and investments(12)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (13.0) | | | | | | — | | | | | | — | | | | | | — | | | | ||
Other items
|
| | | | (4.1) | | | | | | 1.8 | | | | | | 0.1 | | | | | | 0.5 | | | | | | (2.1) | | | | | | 4.8 | | | | | | (1.9) | | | | | | 0.1 | | | | ||
Non-GAAP
consolidated adjusted EBITDA |
| | | $ | 96.3 | | | | | $ | 106.8 | | | | | $ | 105.9 | | | | | $ | 92.2 | | | | | $ | 94.3 | | | | | $ | 104.6 | | | | | $ | 88.8 | | | | | $ | 52.1 | | | | | |
|
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||
Loss before income tax provisions
|
| | | $ | (29.3) | | | | | $ | (76.3) | | | | | $ | (224.7) | | |
Interest expense
|
| | | | 127.7 | | | | | | 141.0 | | | | | | 135.2 | | |
Interest income
|
| | | | (5.9) | | | | | | (7.5) | | | | | | (5.8) | | |
Amortization expense of intangible assets acquired
|
| | | | 98.2 | | | | | | 93.7 | | | | | | 91.2 | | |
Depreciation expense included in cost of sales
|
| | | | 89.5 | | | | | | 84.4 | | | | | | 73.4 | | |
Depreciation expense included in selling, general and administrative expenses
|
| | | | 7.9 | | | | | | 7.4 | | | | | | 7.6 | | |
EBITDA
|
| | | | 288.1 | | | | | | 242.7 | | | | | | 76.9 | | |
Impairment of goodwill(1)
|
| | | | — | | | | | | — | | | | | | 68.5 | | |
Transition and transformation costs and non-recurring costs(2)
|
| | | | 42.5 | | | | | | 52.8 | | | | | | 120.6 | | |
Restructuring costs(3)
|
| | | | 25.6 | | | | | | 19.8 | | | | | | 24.9 | | |
Foreign currency loss related to Argentina subsidiaries(4)
|
| | | | 1.6 | | | | | | 11.4 | | | | | | 3.4 | | |
Adjustment of tax indemnification asset(5)
|
| | | | 2.8 | | | | | | 7.1 | | | | | | 31.0 | | |
Merger and acquisition-related cost(6)
|
| | | | 1.0 | | | | | | 0.3 | | | | | | 7.3 | | |
Acquisition accounting adjustments(7)
|
| | | | — | | | | | | 1.9 | | | | | | 5.3 | | |
Bain Capital management fee(8)
|
| | | | 7.5 | | | | | | 7.5 | | | | | | 7.5 | | |
Non-cash pension and other post-employment benefit plan(9)
|
| | | | (12.9) | | | | | | (8.8) | | | | | | (10.5) | | |
Foreign currency loss (gain)(10)
|
| | | | (25.1) | | | | | | 10.8 | | | | | | (16.3) | | |
Factoring fees(11)
|
| | | | 4.3 | | | | | | 3.4 | | | | | | 0.6 | | |
Share-based incentive compensation (12)
|
| | | | 67.5 | | | | | | 3.0 | | | | | | — | | |
Gain on sale of business and investments(13)
|
| | | | — | | | | | | (13.0) | | | | | | — | | |
Other items
|
| | | | (1.7) | | | | | | 0.9 | | | | | | 2.4 | | |
Non-GAAP consolidated adjusted EBITDA
|
| | | $ | 401.2 | | | | | $ | 339.8 | | | | | $ | 321.6 | | |
| | |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||||||||||||||||||||
(in millions, except per share amounts)
|
| |
Net (Loss)
|
| |
Basic and
diluted EPS |
| |
Net (Loss)
|
| |
Basic and
diluted EPS |
| |
Net (Loss)
|
| |
Basic and
diluted EPS |
| ||||||||||||||||||
Reported (GAAP)
|
| | | $ | (38.5) | | | | | $ | (0.20) | | | | | $ | (109.0) | | | | | $ | (1.15) | | | | | $ | (239.1) | | | | | $ | (2.54) | | |
Amortization expense of intangible assets
acquired |
| | | | 98.2 | | | | | | 0.51 | | | | | | 93.7 | | | | | | 0.99 | | | | | | 91.2 | | | | | | 0.96 | | |
Impairment of goodwill(1)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 68.5 | | | | | | 0.73 | | |
Transition and transformation costs and non-recurring costs(2)
|
| | | | 42.5 | | | | | | 0.22 | | | | | | 52.8 | | | | | | 0.56 | | | | | | 120.6 | | | | | | 1.27 | | |
Restructuring costs(3)
|
| | | | 25.6 | | | | | | 0.13 | | | | | | 19.8 | | | | | | 0.21 | | | | | | 24.9 | | | | | | 0.26 | | |
Foreign currency loss related to Argentina
subsidiaries(4) |
| | | | 1.6 | | | | | | 0.01 | | | | | | 11.4 | | | | | | 0.12 | | | | | | 3.4 | | | | | | 0.04 | | |
Adjustment of tax indemnification asset(5)
|
| | | | 2.8 | | | | | | 0.01 | | | | | | 7.1 | | | | | | 0.08 | | | | | | 31.0 | | | | | | 0.33 | | |
Merger and acquisition-related cost(6)
|
| | | | 1.0 | | | | | | 0.01 | | | | | | 0.3 | | | | | | 0.00 | | | | | | 7.3 | | | | | | 0.08 | | |
Acquisition accounting adjustments(7)
|
| | | | — | | | | | | — | | | | | | 1.9 | | | | | | 0.02 | | | | | | 5.3 | | | | | | 0.06 | | |
Bain Capital management fee(8)
|
| | | | 7.5 | | | | | | 0.04 | | | | | | 7.5 | | | | | | 0.08 | | | | | | 7.5 | | | | | | 0.08 | | |
Non-cash pension and other post-employment benefit plan(9)
|
| | | | (12.9) | | | | | | (0.08) | | | | | | (8.8) | | | | | | (0.09) | | | | | | (10.5) | | | | | | (0.11) | | |
Foreign currency loss (gain)(10)
|
| | | | (25.1) | | | | | | (0.13) | | | | | | 10.8 | | | | | | 0.11 | | | | | | (16.3) | | | | | | (0.17) | | |
Factoring fees(11)
|
| | | | 4.3 | | | | | | 0.02 | | | | | | 3.4 | | | | | | 0.04 | | | | | | 0.6 | | | | | | 0.01 | | |
Share-based incentive compensation(12)
|
| | | | 67.5 | | | | | | 0.34 | | | | | | 3.0 | | | | | | 0.03 | | | | | | — | | | | | | — | | |
Gain on sale of business and investments(13)
|
| | | | — | | | | | | — | | | | | | (13.0) | | | | | | (0.14) | | | | | | — | | | | | | — | | |
Other items
|
| | | | (1.7) | | | | | | 0.00 | | | | | | 0.9 | | | | | | 0.01 | | | | | | 2.4 | | | | | | 0.03 | | |
Tax effects related to non-GAAP adjustments(14)
|
| | | | (33.3) | | | | | | (0.17) | | | | | | (38.8) | | | | | | (0.41) | | | | | | (53.6) | | | | | | (0.57) | | |
Discrete tax adjustments (15)
|
| | | | (11.6) | | | | | | (0.06) | | | | | | 23.9 | | | | | | 0.25 | | | | | | 16.2 | | | | | | 0.17 | | |
Adjusted (Non-GAAP)
|
| | | $ | 127.9 | | | | | $ | 0.65 | | | | | $ | 66.9 | | | | | $ | 0.71 | | | | | $ | 59.4 | | | | | $ | 0.63 | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||
Net cash provided by operating activities
|
| | | $ | 103.0 | | | | | $ | 21.8 | | | | | $ | 2.4 | | |
Net cash (used in) investing activities
|
| | | | (70.8) | | | | | | (44.6) | | | | | | (227.1) | | |
Net cash provided by financing activities
|
| | | | 23.6 | | | | | | 73.9 | | | | | | 12.2 | | |
(in millions)
|
| |
December 31, 2020
|
| |
December 31, 2019
|
| ||||||
Senior Secured Credit Facilities: | | | | | | | | | | | | | |
US Dollar Term Loan
|
| | | $ | 873.0 | | | | | $ | 882.0 | | |
US Dollar Incremental Loan
|
| | | | 149.6 | | | | | | — | | |
Euro Term Loan
|
| | | | 1,146.9 | | | | | | 1,062.5 | | |
Revolving Credit Facility
|
| | | | — | | | | | | 120.0 | | |
Senior Notes
|
| | | | 548.5 | | | | | | 503.0 | | |
Short-term borrowings
|
| | | | 0.4 | | | | | | 0.6 | | |
Finance lease obligations
|
| | | | 5.2 | | | | | | 2.4 | | |
Financing obligations
|
| | | | 22.5 | | | | | | — | | |
Unamortized deferred financing costs
|
| | | | (39.6) | | | | | | (44.6) | | |
Unamortized original issue discount
|
| | | | (6.2) | | | | | | (3.4) | | |
Total debt
|
| | | | 2,700.3 | | | | | | 2,522.5 | | |
Less: Current portion of long-term debt
|
| | | | (13.2) | | | | | | (11.2) | | |
Short-term borrowings
|
| | | | (0.4) | | | | | | (0.6) | | |
Long-term debt
|
| | | $ | 2,686.7 | | | | | $ | 2,510.7 | | |
(in millions)
Nature |
| |
Maturity
date |
| |
Interest
Rate |
| |
Carrying
Value December 31, 2019 |
| |
Borrowing/
(Reimbursement) |
| |
Foreign
Currency Translation |
| |
Carrying
Value December 31, 2020 |
| |
Interest
Expense |
| |||||||||||||||
Series 1 PECs
|
| |
9/1/2047
|
| |
See below
|
| | | $ | 588.4 | | | | | $ | — | | | | | $ | 53.3 | | | | | $ | 641.7 | | | | | $ | — | | |
| | |
Obligations Due In:
|
| |||||||||||||||||||||||||||
(in millions)
|
| |
Total
|
| |
2020
|
| |
2021 – 2022
|
| |
2023 – 2024
|
| |
Thereafter
|
| |||||||||||||||
Contractual Obligations | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Debt, including current portion(1)
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
USD Term Loan
|
| | | $ | 873.0 | | | | | $ | 9.0 | | | | | $ | 18.0 | | | | | $ | 846.0 | | | | | $ | — | | |
USD Incremental Loan
|
| | | | 149.6 | | | | | | 1.5 | | | | | | 3.0 | | | | | | 145.1 | | | | | | — | | |
Euro Term Loan
|
| | | | 1,146.9 | | | | | | 11.8 | | | | | | 23.6 | | | | | | 1,111.5 | | | | | | — | | |
Senior Notes
|
| | | | 548.5 | | | | | | — | | | | | | — | | | | | | 548.5 | | | | | | — | | |
Revolver
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Preferred Equity Certificates
|
| | | | 641.7 | | | | | | — | | | | | | — | | | | | | — | | | | | | 641.7 | | |
Short-term borrowings
|
| | | | 0.4 | | | | | | 0.4 | | | | | | — | | | | | | — | | | | | | — | | |
Interest payments(1)
|
| | | | 488.8 | | | | | | 114.0 | | | | | | 220.7 | | | | | | 126.2 | | | | | | 27.9 | | |
Finance lease obligations(3)
|
| | | | 5.4 | | | | | | 2.0 | | | | | | 2.9 | | | | | | 0.5 | | | | | | — | | |
Operating leases obligations(3)
|
| | | | 70.2 | | | | | | 25.5 | | | | | | 28.9 | | | | | | 7.1 | | | | | | 8.7 | | |
Purchases obligations(2)
|
| | | | 151.3 | | | | | | 59.9 | | | | | | 72.2 | | | | | | 15.8 | | | | | | 13.4 | | |
| | | | $ | 4,075.8 | | | | | $ | 224.1 | | | | | $ | 369.3 | | | | | $ | 2,800.7 | | | | | $ | 681.7 | | |
|
Customer Value Proposition Case Study:
Comprehensive Suite of Innovative Solutions Throughout the Hospital |
| |||
|
|
|
|
|
| |
|
|
Type of Facility or Property
|
| |
Owned
|
| |
Leased
|
| |
Approximate
Square Footage |
| |||||||||
Manufacturing
|
| | | | 12 | | | | | | 6 | | | | | | 1,649,972 | | |
Office
|
| | | | 5 | | | | | | 99 | | | | | | 1,363,835 | | |
Warehouse
|
| | | | 1 | | | | | | 39 | | | | | | 1,191,525 | | |
Land
|
| | | | 5 | | | | | | 2 | | | | | | 537,244 | | |
Storage
|
| | | | — | | | | | | 46 | | | | | | 100,231 | | |
Service Center
|
| | | | 1 | | | | | | 18 | | | | | | 91,959 | | |
Laboratory
|
| | | | 1 | | | | | | 4 | | | | | | 70,250 | | |
Other
|
| | | | — | | | | | | 11 | | | | | | 10,399 | | |
Total
|
| | | | | | | | | | | | | | | | 5,015,415 | | |
Name
|
| |
Age
|
| |
Title
|
| |||
Philip Wieland | | | | | 47 | | | | Chief Executive Officer and Director | |
Todd Herndon | | | | | 55 | | | | Chief Financial Officer | |
Gaetano Redaelli | | | | | 58 | | | | Chief Strategic Development Officer | |
Paul Budsworth | | | | | 54 | | | | President, North America | |
Sinéad Kwant | | | | | 48 | | | | President, Western Europe | |
Somer Gundogdu | | | | | 51 | | | | President, Emerging Markets | |
Rudolf Verheul | | | | | 58 | | | | Global President, Food & Beverage | |
Selim Bassoul | | | | | 64 | | | | Director and Non-Executive Chairman | |
Robert Farkas | | | | | 43 | | | | Director | |
Juan Figuereo | | | | | 65 | | | | Director | |
Eric Foss | | | | | 62 | | | | Director | |
Ken Hanau | | | | | 55 | | | | Director | |
Susan Levine | | | | | 53 | | | | Director | |
Jonathon Penn | | | | | 34 | | | | Director | |
Michel Plantevin | | | | | 64 | | | | Director | |
Board Member
|
| |
Audit Committee
|
| |
People Resources Committee
|
| |
Nominating and Governance
Committee |
|
Philip Wieland | | | | | | | | | | |
Ken Hanau | | | | | ||||||
Eric Foss | | | | | ||||||
Michel Plantevin | | | | | ||||||
Jonathon Penn | | | | | ||||||
Juan Figuereo | | | | | | | ||||
Selim Bassoul | | | | | | | ||||
Robert Farkas | | | | | | | | | ||
Susan Levine
|
| | | |
Name
|
| |
Principal Position
|
|
Philip Wieland(1)
|
| | Chief Executive Officer | |
Todd Herndon
|
| | Chief Financial Officer | |
Gaetano Redaelli
|
| | Chief Strategic Development Officer | |
Rudolf Verheul
|
| | Global President, Food & Beverage Division | |
Paul Budsworth
|
| | President, North America | |
Mark S. Burgess(2)
|
| | Former Chief Executive Officer | |
Name
|
| |
Annual Base Salary Rate ($)
|
| |||
Philip Wieland
|
| | | | 900,000 | | |
Todd Herndon
|
| | | | 600,000 | | |
Gaetano Redaelli
|
| | | | 375,529 | | |
Rudolf Verheul
|
| | | | 371,247 | | |
Paul Budsworth(1)
|
| | | | 322,560 | | |
Mark S. Burgess(2)
|
| | |
|
900,000
|
| |
Name
|
| |
2020 AIP Target
(% of Base Salary) |
| |||
Philip Wieland
|
| | | | 100% | | |
Todd Herndon
|
| | | | 80% | | |
Gaetano Redaelli
|
| | | | 50% | | |
Rudolf Verheul
|
| | | | 50% | | |
Paul Budsworth
|
| | | | 50% | | |
(in millions, except percentages)
|
| | | | | | | |
Goal Achievement Relative to Target
|
| |
Funding Leverage
(i.e., % Payout of Target) |
| | ||||||||||||||||||||||||||||||||
Metric
|
| |
Weighting
|
| |
Threshold
|
| |
Target
|
| |
Maximum
|
| |
Threshold
|
| |
Target
|
| |
Maximum
|
| | |||||||||||||||||||||||
Global Free Cash Flow
|
| | | | 30% | | | | | $ | 0.00 | | | | | $ | 25.00 | | | | | $ | 50.00 | | | | | | 0% | | | | | | 100% | | | | | | 200% | | | | ||
| | | | | | | | | | | 90% | | | | | | 100% | | | | | | 110% | | | | | | | | | | | | | | | | | | | | | | | |
Adjusted EBITDA
|
| | | | 70% | | | | | $ | 337.5 | | | | | $ | 375.0 | | | | | $ | 412.5 | | | | | | 0% | | | | | | 100% | | | | | | 200% | | | | ||
| | | | | | | | | | | 90% | | | | | | 100% | | | | | | 110% | | | | | | | | | | | | | | | | | | | | | |
Name
|
| |
2020 AIP Target
($) |
| |
Amount Payable
for Global Free Cash Flow Achievement ($) |
| |
Amount Payable
for EBITDA Achievement ($) |
| |
Individual
Multiplier |
| |
Total
Payout ($) |
| |||||||||||||||
Philip Wieland
|
| | | | 900,000 | | | | | | 410,746 | | | | | | 920,008 | | | | | | 1.0 | | | | | | 668,773(1) | | |
Todd Herndon
|
| | | | 480,000 | | | | | | 219,065 | | | | | | 490,671 | | | | | | 1.0 | | | | | | 709,736 | | |
Gaetano Redaelli
|
| | | | 197,500 | | | | | | 90,136 | | | | | | 72,104 | | | | | | 1.0 | | | | | | 162,240 | | |
Rudolf Verheul
|
| | | | 195,500 | | | | | | 89,223 | | | | | | 273,700 | | | | | | 1.0 | | | | | | 362,923 | | |
Paul Budsworth
|
| | | | 161,500 | | | | | | 73,706 | | | | | | 226,100 | | | | | | 1.16(2) | | | | | | 347,775 | | |
Name
|
| |
Number of
Vested Ordinary Shares |
| |
Number of
Restricted Ordinary Shares |
| |||
Philip Wieland
|
| | | | | | | | | |
Todd Herndon
|
| | | | | | | | | |
Gaetano Redaelli
|
| | | | | | | | | |
Rudolf Verheul
|
| | | | | | | | | |
Paul Budsworth
|
| | | | | | | | | |
Mark S. Burgess
|
| | | | | | | 0 | | |
Executive
|
| |
Base Salary
|
| |
Annual Incentive(1)
|
| |
Severance(2)
|
| |
Restrictive
Covenants(3) |
|
Philip Wieland
Chief Executive Officer |
| |
$900,000
|
| |
Target: 100%
Maximum: 200% of Target |
| |
•
An amount (which is inclusive of employee statutory redundancy pay and any payments or benefits in lieu of notice under UK law or our policies or practices) equal to the sum of his (i) base salary and (ii) target annual incentive opportunity, payable either in a lump sum or in ratable installments over
|
| |
Yes
|
|
Executive
|
| |
Base Salary
|
| |
Annual Incentive(1)
|
| |
Severance(2)
|
| |
Restrictive
Covenants(3) |
|
| | | | | | | | |
the 12-month post-termination period
|
| | | |
Todd Herndon
Chief Financial Officer |
| |
$600,000
|
| |
Target: 80%
Maximum: 200% of Target |
| |
•
An amount equal to the sum of his (i) base salary and (ii) target annual incentive opportunity, payable in ratable installments over the 12-month post-termination period
•
12 months of Company-subsidized COBRA coverage (terminable earlier if he obtains other employment that offers group health benefits)
|
| |
Yes
|
|
Name
|
| |
Number of RSUs
|
|
Philip Wieland
|
| | | |
Todd Herndon
|
| | | |
Gaetano Redaelli
|
| | | |
Rudolf Verheul
|
| | | |
Paul Budsworth
|
| | | |
Name and Principal
Position |
| |
Year
|
| |
Salary
($)(1) |
| |
Stock
Awards ($)(2) |
| |
Non-Equity
Incentive Plan Compensation ($)(3) |
| |
Change in
Pension Value and Nonqualified Deferred Compensation Earnings ($)(4) |
| |
All Other
Compensation ($)(5) |
| |
Total
($) |
| |||||||||||||||||||||
Philip Wieland
|
| | | | 2020 | | | | | | 900,000 | | | | | | 81,144,185 (4) | | | | | | 1,120,046 | | | | | | — | | | | | | 6,519 | | | | | | 83,170,750 | | |
Chief Executive Officer | | | | | | | | | |||||||||||||||||||||||||||||||||||
Todd Herndon
|
| | | | 2020 | | | | | | 600,000 | | | | | | — | | | | | | 709,736 | | | | | | — | | | | | | 14,709 | | | | | | 1,324,445 | | |
Chief Financial Officer | | | | | | | | | |||||||||||||||||||||||||||||||||||
Gaetano Redaelli
|
| | | | 2020 | | | | | | 375,529 | | | | | | — | | | | | | 162,240 | | | | | | — | | | | | | 516,116 | | | | | | 1,053,885 | | |
Chief Strategic Development Officer
|
| | | | | | | | |||||||||||||||||||||||||||||||||||
Rudolf Verheul
|
| | | | 2020 | | | | | | 371,247 | | | | | | — | | | | | | 362,923 | | | | | | 232,952 | | | | | | 42,631 | | | | | | 1,009,753 | | |
Global President, Food & Beverage Division
|
| | | | | | | | |||||||||||||||||||||||||||||||||||
Paul Budsworth
|
| | | | 2020 | | | | | | 317,780 | | | | | | — | | | | | | 347,775 | | | | | | — | | | | | | 21,000 | | | | | | 686,555 | | |
President, North America | | | | | | | | | |||||||||||||||||||||||||||||||||||
Mark S. Burgess
|
| | | | 2020 | | | | | | 37,500 | | | | | | — | | | | | | — | | | | | | — | | | | | | 17,100 | | | | | | 54,600 | | |
Former Chief Executive Officer
|
| | | | | | | |
Name
|
| |
Global Mobility
Expenses ($)(a) |
| |
Automobile
Allowance($)(b) |
| |
401(k) Match
($)(c) |
| |
Retirement
Contributions ($)(d) |
| |
Tax Equalization and
Gross Up Payments ($) |
| |
Total
($) |
| ||||||||||||||||||
Philip Wieland
|
| | | | — | | | | | | 6,519 | | | | | | — | | | | | | | | | | | | — | | | | | | 6,519 | | |
Todd Herndon
|
| | | | — | | | | | | — | | | | | | 14,709 | | | | | | | | | | | | — | | | | | | 14,709 | | |
Gaetano Redaelli
|
| | | | 88,671 | | | | | | 8,672 | | | | | | — | | | | | | 40,783 | | | | | | 377,990(e) | | | | | | 516,116 | | |
Rudolf Verheul
|
| | | | — | | | | | | 18,484 | | | | | | — | | | | | | 24,147 | | | | | | — | | | | | | 42,631 | | |
Paul
Budsworth |
| | | | 3,900 | | | | | | — | | | | | | 17,100 | | | | | | | | | | | | — | | | | | | 21,000 | | |
Mark S. Burgess
|
| | | | — | | | | | | — | | | | | | 17,100 | | | | | | | | | | | | — | | | | | | 17,100 | | |
| | | | | | | | |
Estimated Future Payouts
Under Non-Equity Incentive Plan Awards(1) |
| |
Estimated Future Payouts
Under Equity Incentive Plan Awards |
| |
Grant Date
Fair Value of Stock and Option Awards ($) |
| |||||||||||||||||||||||||||||||||
Name
|
| |
Grant
Date |
| |
Threshold
($) |
| |
Target
($) |
| |
Maximum
($) |
| |
Threshold
(#) |
| |
Target
(#) |
| |
Maximum
(#) |
| |||||||||||||||||||||||||||
Philip Wieland
|
| | | | 7/16/2020(2) | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 1,966,655 | | | | | | — | | | | | | — | | |
| | | | | — | | | | | | 0 | | | | | | 900,000 | | | | | | 1,800,000 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Todd Herndon
|
| | | | — | | | | | | 0 | | | | | | 480,000 | | | | | | 960,000 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Gaetano Redaelli…..
|
| | | | — | | | | | | 0 | | | | | | 187,765 | | | | | | 375,529 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Rudolf Verheul
|
| | | | — | | | | | | 0 | | | | | | 185,624 | | | | | | 371,247 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Paul Budsworth
|
| | | | — | | | | | | 0 | | | | | | 159,390 | | | | | | 318,780 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Mark S. Burgess
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
| | |
Equity Awards
|
| |||||||||||||||
Name
|
| |
Number of
Shares or Units of Stock That Have Not Vested (#) |
| |
Market Value of
Shares or Units of Stock That Have Not Vested ($) |
| | | ||||||||||
Philip Wieland(1)
|
| | | | 1,966,655 | | | | | | 81,144,185 | | | | | ||||
Todd Herndon(2)
|
| | | | 780,419 | | | | | | 32,200,088 | | | | | ||||
Gaetano Redaelli(3)
|
| | | | 112,380 | | | | | | 4,636,799 | | | | | ||||
Rudolf Verheul(4)
|
| | | | 71,174 | | | | | | 2,936,639 | | | | | ||||
Paul Budsworth(5)
|
| | | | 112,380 | | | | | | 4,636,799 | | | | | ||||
Mark S. Burgess(6)
|
| | | | — | | | | | | — | | | | |
| | |
Equity Awards
|
| |||||||||
Name
|
| |
Number of Units
Acquired on Vesting (#) |
| |
Value
Realized on Vesting ($) |
| ||||||
Philip Wieland(1)
|
| | | | — | | | | | | — | | |
Todd Herndon(2)
|
| | | | 390,209 | | | | | | 16,100,023 | | |
Gaetano Redaelli(3)
|
| | | | 56,190 | | | | | | 108,447 | | |
Rudolf Verheul(4)
|
| | | | 35,587 | | | | | | 68,683 | | |
Paul Budsworth(5)
|
| | | | 56,190 | | | | | | 108,447 | | |
Mark S. Burgess(6)
|
| | | | — | | | | | | — | | |
Name
|
| |
Plan Name
|
| |
Number of Years
Credited of Service (#) |
| |
Present Value of
Accumulated Benefit ($) |
| ||||||
Gaetano Redaelli(1)
|
| |
TFR – DB
|
| | | | 32 | | | | | | 16,691 | | |
Rudolf Verheul(2)
|
| |
Former DB Plan
|
| | | | 25 | | | | | | 2,002,611 | | |
| | |
Jubilee Plan
|
| | | | 35 | | | | | | 50,343 | | |
Name
|
| |
Cash
($) |
| |
Equity
($) |
| ||||||
Philip Wieland(1)
|
| | | | | | | | | | | | |
Involuntary termination
|
| | | | 1,800,000 | | | | | | — | | |
Change in control
|
| | | | — | | | | | | 81,144,185 | | |
Involuntary termination after change in control
|
| | | | 1,800,000 | | | | | | — | | |
Todd Herndon(2)
|
| | | | | | | | | | | | |
Involuntary termination
|
| | | | 1,098,000 | | | | | | — | | |
Change in control
|
| | | | — | | | | | | 32,200,088 | | |
Involuntary termination after change in control
|
| | | | 1,098,000 | | | | | | — | | |
Gaetano Redaelli(3)
|
| | | | | | | | | | | | |
Involuntary termination
|
| | | | 1,502,116 | | | | | | — | | |
Change in control
|
| | | | — | | | | | | 4,636,799 | | |
Involuntary termination after change in control
|
| | | | 1,502,116 | | | | | | — | | |
Rudolf Verheul(4)
|
| | | | | | | | | | | | |
Involuntary termination
|
| | | | 460,725 | | | | | | — | | |
Change in control
|
| | | | — | | | | | | 2,936,639 | | |
Involuntary termination after change in control
|
| | | | 460,725 | | | | | | — | | |
Paul Budsworth(5)
|
| | | | | | | | | | | | |
Involuntary termination
|
| | | | 483,840 | | | | | | — | | |
Change in control
|
| | | | — | | | | | | 4,636,799 | | |
Involuntary termination after change in control
|
| | | | 483,840 | | | | | | — | | |
Mark S. Burgess(6)
|
| | | | | | | | | | | | |
Actual termination on January 17, 2020
|
| | | | 345,000 | | | | | | — | | |
Position
|
| |
Annual Cash Retainer ($)
|
| |
Annual RSU Grant ($)
|
| ||||||
Board Member (other than the Non-Executive Chairman)
|
| | | | 90,000 | | | | | | 125,000 | | |
Audit Committee Chair
|
| | | | 25,000 | | | | | | — | | |
People Resources and Nominating and Governance Committee Chairs
|
| | | | 20,000 | | | | | | — | | |
| | |
Shares Beneficially Owned
Prior to this Offering |
| |
Shares Beneficially Owned
After this Offering |
| | ||||||||||||||
Name of Beneficial Owner
|
| |
Number of
Shares |
| |
Percentage
|
| |
Number of
Shares |
| |
No Exercise of
Underwriters’ Option |
| |
Full Exercise of
Underwriters’ Option |
| | |||||
|
Percentage
|
| |
Percentage
|
| | ||||||||||||||||
5% Shareholders:
|
| | | | | | | | | | | | | | | | % | | | | ||
Bain Capital(1)
|
| | | | | | | | | | | | | | | | | | | | ||
Directors and Named Executive Officers:
|
| | | | | | | | | | | | | | | | | | | | ||
Philip Wieland
|
| | | | | | | | | | | | | | | | | | | | ||
Todd Herndon
|
| | | | | | | | | | | | | | | | | | | | ||
Gaetano Redaeli
|
| | | | | | | | | | | | | | | | | | | | ||
Paul Budsworth
|
| | | | | | | | | | | | | | | | | | | | ||
Rudolf Verheul
|
| | | | | | | | | | | | | | | | | | | | ||
Ken Hanau
|
| | | | | | | | | | | | | | | | | | | | ||
Eric Foss
|
| | | | | | | | | | | | | | | | | | | | ||
Michel Plantevin
|
| | | | | | | | | | | | | | | | | | | | ||
Juan Figuereo
|
| | | | | | | | | | | | | | | | | | | | ||
Selim Bassoul
|
| | | | | | | | | | | | | | | | | | | | ||
Directors and executive officers as a group (9 individuals)
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Delaware
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Cayman Islands
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Title of Organizational Documents
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| | Certificate of Incorporation | | | Memorandum of Association | |
| | | Bylaws | | | Articles of Association | |
Duties of Directors
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| | Under Delaware law, the business and affairs of a corporation are managed by or under the direction of its board of directors. In exercising their powers, directors are charged with a fiduciary duty of care to protect the interests of the corporation and a fiduciary duty of loyalty to act in the best interests of its shareholders. The duty of care requires that directors act in an informed and deliberative manner and inform themselves, prior to making a business decision, of all material information reasonably available to them. The duty of care also requires that directors exercise care in overseeing and investigating the conduct of the corporation’s employees. The duty of loyalty may be summarized as the duty to act in good faith, not out of self-interest, and in a manner which the director reasonably believes to be in the best interests of the shareholders. | | |
As a matter of Cayman Islands law, directors of Cayman Islands companies owe fiduciary duties to their respective companies to, amongst other things, act in good faith in their dealings with or on behalf of the company and exercise their powers and fulfill the duties of their office honestly. This duty has four essential elements:
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a duty to act in good faith in what the directors bona fide consider to be the best interests of the company (and in this regard, it should be noted that the duty is owed to the company and not to associate companies, subsidiaries or holding companies);
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a duty not to personally profit from opportunities that arise from the office of director;
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a duty of trusteeship of the company’s assets;
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a duty to avoid conflicts of interest; and
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a duty to exercise powers for the purpose for which such
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Delaware
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Cayman Islands
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powers were conferred.
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| | | | | | A director of a Cayman Islands company also owes the company a duty to act with skill, care and diligence. A director need not exhibit in the performance of his or her duties a greater degree of skill than may reasonably be expected from a person of his or her knowledge and experience. However, Cayman Islands law permits the duty to avoid conflicts of interest to be modified by a company’s articles of association. | |
Limitations on Personal Liability of Directors
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Subject to the limitations described below, a certificate of incorporation may provide for the elimination or limitation of the personal liability of a director to the corporation or its shareholders for monetary damages for a breach of fiduciary duty as a director.
Such provision cannot limit liability for breach of loyalty, bad faith, intentional misconduct, unlawful payment of dividends or unlawful share purchase or redemption. In addition, the certificate of incorporation cannot limit liability for any act or omission occurring prior to the date when such provision becomes effective.
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| | The Companies Act of the Cayman Islands has no equivalent provision to Delaware law regarding the limitation of director’s liability. However, as a matter of public policy, Cayman Islands law will not allow the limitation of a director’s liability to the extent that the liability is a consequence of the director committing a crime or of the director’s own actual fraud, dishonesty or willful default. | |
Indemnification of
Directors, Officers, Agents, and Others |
| | A corporation has the power to indemnify any director, officer, employee, or agent of corporation who was, is, or is threatened to be made a party who acted in good faith and in a manner he believed to be in the best interests of the corporation, and if with respect to a criminal proceeding, had no reasonable cause to believe his conduct would be unlawful, against amounts actually and reasonably incurred. | | | Cayman Islands law does not limit the extent to which a company’s articles of association may provide for indemnification of directors and officers, except to the extent any such provision may be held by the Cayman Islands courts to be contrary to public policy, such as to provide indemnification against the consequences of committing a crime, or against the indemnified person’s own actual fraud, willful deceit, or dishonesty. | |
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Delaware
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Cayman Islands
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Interested Directors
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| | Under Delaware law, subject to provisions in the certificate of incorporation, a transaction in which a director who has an interest in such transaction would not be voidable if (i) the material facts as to such interested director’s relationship or interests are disclosed or are known to the board of directors and the board in good faith authorizes the transaction by the affirmative vote of a majority of the disinterested directors, even though the disinterested directors are less than a quorum, (ii) such material facts are disclosed or are known to the shareholders entitled to vote on such transaction and the transaction is specifically approved in good faith by vote of the shareholders, or (iii) the transaction is fair as to the corporation as of the time it is authorized, approved or ratified. Under Delaware law, a director could be held liable for any transaction in which such director derived an improper personal benefit. | | | Our articles of association contain provisions that permit a director to vote on a transaction in which he or she is interested provided he or she discloses such interest to the board of directors. | |
Voting Requirements
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The certificate of incorporation may include a provision requiring supermajority approval by the directors or shareholders for any corporate action.
In addition, under Delaware law, certain business combinations involving interested shareholders require approval by a supermajority of the non-interested shareholders.
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For the protection of shareholders, certain matters must be approved by special resolution of the shareholders, including alteration of the memorandum or articles of association, appointment of inspectors to examine company affairs, reduction of share capital (subject, in relevant circumstances, to court approval), change of name, authorization of a plan of merger or transfer by way of continuation to another jurisdiction or consolidation or voluntary winding up the company.
The Companies Act of the Cayman Islands requires that a special resolution be passed by a super majority of two-thirds or such higher percentage as set forth in the articles of association, of
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Delaware
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Cayman Islands
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shareholders being entitled to vote and do vote in person or by proxy at a general meeting, or by unanimous written consent of shareholders.
In addition, our articles of association may only be amended with the consent of Bain Capital for so long as Bain Capital beneficially owns at least 20% of the voting power of our outstanding shares.
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Voting for Directors
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| | Under Delaware law, unless otherwise specified in the certificate of incorporation or bylaws of the corporation, directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. | | | The Companies Act of the Cayman Islands defines “special resolutions” only. A company’s articles of association can therefore tailor the definition of “ordinary resolutions” as a whole, or with respect to specific provisions. Our articles of association provide that with respect to the election of directors, an ordinary resolution shall be passed by a majority of the votes cast by such members as being entitled to vote in person or by proxy. | |
Cumulative Voting
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| | No cumulative voting for the election of directors unless so provided in the certificate of incorporation. | | | No cumulative voting for the election of directors unless so provided in the articles of association. | |
Directors’ Powers
Regarding Bylaws |
| | The certificate of incorporation may grant the directors the power to adopt, amend or repeal bylaws. | | | The memorandum and articles of association may only be amended by a special resolution of the shareholders. | |
Nomination and
Removal of Directors and Filling Vacancies on Board |
| | Shareholders may generally nominate directors if they comply with advance notice provisions and other procedural requirements in company bylaws. Holders of a majority of the shares may remove a director with or without cause, except in certain cases involving a classified board or if the company uses cumulative voting. Unless otherwise provided for in the certificate of incorporation, directorship vacancies are filled by a majority of the directors elected or then in office. | | | Nomination and removal of directors and filling of board vacancies are governed by the terms of the articles of association. Our articles of association provide that only shareholders that hold more than 15% of our outstanding ordinary shares (unless the Exchange Act and proxy rules provide otherwise) and comply with our advance notice provisions may nominate directors. These provisions will not apply to nominations by Bain Capital pursuant to the terms of the Investor Rights Agreement. Our articles of association also | |
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Delaware
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Cayman Islands
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| | | | | | provide that shareholders may only remove directors for cause and with a special resolution of two-thirds. Under our articles of association and subject to the Investor Rights Agreement, vacancies on the board are generally filled by the vote of a majority of the directors elected or then in office. | |
Mergers and Similar Arrangements
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Under Delaware law, with certain exceptions, a merger, consolidation, exchange or sale of all or substantially all the assets of a corporation must be approved by the board of directors and a majority of the outstanding shares entitled to vote thereon. Under Delaware law, a shareholder of a corporation participating in certain major corporate transactions may, under certain circumstances, be entitled to appraisal rights pursuant to which such shareholder may receive cash in the amount of the fair value of the shares held by such shareholder (as determined by a court) in lieu of the consideration such shareholder would otherwise receive in the transaction.
Delaware law also provides that a parent corporation, by resolution of its board of directors, may merge with any subsidiary, of which it owns at least 90% of each class of capital stock without a vote by shareholders of such subsidiary. Upon any such merger, dissenting shareholders of the subsidiary would have appraisal rights.
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Cayman Islands Companies provides for mergers and consolidations where two or more companies are being formed into a single entity. The legislation makes a distinction between a “consolidation” and a “merger”. In a consolidation, a new entity is formed from the combination of each participating company, and the separate consolidating parties, as a consequence, cease to exist and are each stricken by the Registrar of Companies. In a merger, one company remains as the surviving entity, having in effect absorbed the other merging parties that are then stricken and cease to exist.
Two or more Cayman-registered companies may merge or consolidate. Cayman-registered companies may also merge or consolidate with foreign companies provided that the laws of the foreign jurisdiction permit such merger or consolidation.
Under Cayman Islands Companies Act, a plan of merger or consolidation shall be authorized by each constituent company by way of (i) a special resolution of the members of each such constituent company; and (ii) such other authorization, if any, as may be specified in such constituent company’s articles of association.
Shareholder approval is not required where a parent company registered in the Cayman Islands
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Delaware
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Cayman Islands
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| | | | | | seeks to merge with one or more of its subsidiaries registered in the Cayman Islands and a copy of the plan of merger is given to every member of each subsidiary company to be merged unless that member agrees otherwise. | |
| | | | | | Where the merger or consolidation involves a foreign company, the procedure is similar, save that with respect to the foreign company, the director of the Cayman Islands company is required to make a declaration to the effect that, having made due enquiry, he is of the opinion that the requirements set out below have been met: (i) that the merger or consolidation is permitted or not prohibited by the constitutional documents of the foreign company and by the laws of the jurisdiction in which the foreign company is incorporated, and that those laws and any requirements of those constitutional documents have been or will be complied with; (ii) that no petition or other similar proceeding has been filed and remains outstanding or order made or resolution adopted to wind up or liquidate the foreign company in any jurisdictions; (iii) that no receiver, trustee, administrator or other similar person has been appointed in any jurisdiction and is acting in respect of the foreign company, its affairs or its property or any part thereof; (iv) that no scheme, order, compromise or other similar arrangement has been entered into or made in any jurisdiction whereby the rights of creditors of the foreign company are and continue to be suspended or restricted. | |
| | | | | | Where the surviving company is the Cayman Islands company, the director of the Cayman Islands company is further required to make a declaration to the effect that, having made due enquiry, he | |
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Delaware
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Cayman Islands
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is of the opinion that the requirements set out below have been met: (i) that the foreign company is able to pay its debts as they fall due and that the merger or consolidated is bona fide and not intended to defraud unsecured creditors of the foreign company; (ii) that in respect of the transfer of any security interest granted by the foreign company to the surviving or consolidated company (a) consent or approval to the transfer has been obtained, released or waived; (b) the transfer is permitted by and has been approved in accordance with the constitutional documents of the foreign company; and (c) the laws of the jurisdiction of the foreign company with respect to the transfer have been or will be complied with; (iii) that the foreign company will, upon the merger or consolidation becoming effective, cease to be incorporated, registered or exist under the laws of the relevant foreign jurisdiction; and (iv) that there is no other reason why it would be against the public interest to permit the merger or consolidation.
Secured creditors must consent to the merger although application can be made to the Grand Court of the Cayman Islands to proceed if such secured creditor does not grant its consent to the merger. Where a foreign company wishes to merge with a Cayman company, consent or approval to the transfer of any security interest granted by the foreign company to the resulting Cayman entity in the transaction is required, unless otherwise released or waived by the secured party. If the merger plan is approved, it is then filed with the Cayman Islands General Registry along with a declaration by a director of each company. The Registrar of Companies will then issue a certificate of merger
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Delaware
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Cayman Islands
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| | | | | | which shall be prima facie evidence of compliance with all requirements of the Companies Act in respect of the merger or consolidation. The surviving entity remains active while the other company or companies are automatically dissolved. Where the above procedures are adopted, the Companies Act provides for a right of dissenting shareholders to be paid a payment of the fair value of his shares upon their dissenting to the merger or consolidation if they follow a prescribed procedure. | |
| | | | | | Cayman companies may also be restructured or amalgamated under supervision of the Grand Court of the Cayman Islands by way of a “scheme of arrangement”. This option is not used with any frequency because a business transaction can be achieved through other means, such as a share capital exchange, merger (as described above), asset acquisition or control, through contractual arrangements, of an operating business. In the event that a business transaction is sought pursuant to a scheme of arrangement it would require the approval of a majority, in number, of each class of shareholders and creditors with whom the arrangement is to be made and who must in addition represent three-fourths in value of each such class of shareholders or creditors, as the case may be, that are present and voting either in person or by proxy at a meeting, or meeting summoned for that purpose. | |
| | | | | | The convening of the meetings and subsequently the terms of the arrangement must be sanctioned by the Grand Court of the Cayman Islands. While a dissenting shareholder would have the right to express to the Court the view that the transaction ought not be approved, the Court can be expected to approve the | |
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Delaware
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Cayman Islands
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Shareholder Suits
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| | Class actions and derivative actions generally are available to shareholders under Delaware law for, among other things, breach of fiduciary duty, corporate waste and actions not taken in accordance with applicable law. In such actions, the court generally has discretion to permit the winning party to recover attorneys’ fees incurred in connection with such action. | | | The rights of shareholders under Cayman Islands law are not as extensive as those under Delaware law. Class actions are generally not available to shareholders under Cayman Islands laws and our Cayman Islands counsel is not aware of a significant number of such reported actions having been brought in Cayman Islands courts. Derivative actions have been brought in the Cayman Islands courts and the Cayman Islands courts have confirmed the availability for such actions. In principle, we will normally be the proper plaintiff in any claim based on a breach of duty owed to us and a claim against (for example) our officers and directors usually may not be brought by a shareholder. However, the Cayman Islands courts would ordinarily be expected to follow English case law precedent, which would permit a shareholder to commence an action in the company’s name to remedy a wrong done to it where the act complained of is alleged to be beyond the company’s corporate power or is illegal or would result in the violation of its memorandum of association or articles of association or where the individual rights of the plaintiff shareholder have been infringed or are about to be infringed. Furthermore, consideration would be given by the court to acts that are alleged to constitute a “fraud on the minority” or where an act requires the approval of a greater percentage of shareholders than actually approved it. The winning party in such an action generally would be able to recover a portion of attorney’s fees incurred in connection with such action. | |
Inspection of Corporate Records
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| | Under Delaware law, shareholders of a Delaware corporation have the right during normal business hours to inspect for any proper | | | Shareholders of a Cayman Islands company have no general right under Cayman Islands law to inspect or obtain copies of a list of | |
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Delaware
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Cayman Islands
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| | | purpose, and to obtain copies of list(s) of shareholders and other books and records of the corporation and its subsidiaries, if any, to the extent the books and records of such subsidiaries are available to the corporation. | | | shareholders or other corporate records of the company. However, these rights may be provided in the company’s articles of association. | |
Shareholder Proposals
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| | Unless provided in the corporation’s certificate of incorporation or bylaws, Delaware law does not include a provision restricting the manner in which shareholders may bring business before a meeting. | | |
The Companies Act of the Cayman Islands does not provide shareholders any right to bring business before a meeting or requisition a general meeting. However, these rights may be provided in the company’s articles of association.
Our articles of association establish advance notice procedures with respect to shareholder proposals and the nomination of candidates for election as directors, other than nominations pursuant to the Investor Rights Agreement. Shareholders at a general meeting will only be able to consider proposals or nominations specified in the notice of meeting or brought before the meeting by or at the direction of our board or by a shareholder who was a shareholder of record on both the record date for the meeting and the date of giving the notice of such business, who is entitled to vote at the meeting and who has given timely written notice, in proper form, of the shareholder’s intention to bring that business before the meeting. Although our articles of association will not give our board the power to approve or disapprove shareholder nominations of candidates or proposals regarding other business to be conducted at a general meeting, our articles of association may have the effect of precluding the conduct of certain business at a meeting if the proper procedures are not followed or may discourage or deter a potential acquirer from
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Delaware
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Cayman Islands
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| | | | | | conducting a solicitation of proxies to elect its own slate of directors or otherwise attempting to obtain control of the Company. These provisions do not apply to nominations pursuant to the Investor Rights Agreement. | |
Approval of Corporate Matters by Written Consent
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| | Delaware law permits shareholders to take action by written consent signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting of shareholders. | | |
The Companies Act of the Cayman Islands allows a special resolution to be passed in writing if signed by all the shareholders and authorized by the articles of association.
Our articles of association authorize such written consents but we believe that the unanimity requirement will make this option impractical after the consummation of this offering.
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Calling of Special Shareholders Meetings
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| | Delaware law permits the board of directors or any person who is authorized under a corporation’s certificate of incorporation or bylaws to call a special meeting of shareholders. | | |
The Companies Act of the Cayman Islands does not have provisions governing the proceedings of shareholders meetings which are usually provided in the articles of association.
Our articles of association do not allow shareholders to call extraordinary general meetings. Extraordinary general meetings may only be called by a majority of the directors on our board or by the chairman of our board.
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Name
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Number of Shares
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Citigroup Global Markets, Inc.
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Morgan Stanley & Co. LLC
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Barclays Capital Inc.
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J.P. Morgan Securities LLC
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BofA Securities, Inc.
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Credit Suisse Securities (USA) LLC
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Goldman Sachs & Co. LLC
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Jefferies LLC
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RBC Capital Markets, LLC
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UBS Securities LLC
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Robert W. Baird & Co. Incorporated
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Guggenheim Securities, LLC
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Total
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Total
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Per Share
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No Exercise
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Full Exercise
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Public offering price
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| | | $ | | | | | $ | | | | | $ | | | |||
Underwriting discounts and commissions to be paid by us
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| | | | | F-2 | | | |
| | | | | F-3 | | | |
| | | | | F-4 | | |
| | | | | F-5 | | | |
| | | | | F-7 | | | |
| | | | | F-8 | | | |
| | | | | F-9 | | | |
| | | | | F-10 | | | |
| | | | | F-11 | | | |
| | | | | F-13 | | |
(in millions, except per share amount)
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December 31,
2020 |
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Assets
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| | | $ | — | | |
Commitments to Contingencies | | | | | | | |
Stockholder’s Equity | | | | | | | |
Ordinary Shares, par value $0.01 per share, 5 million shares authorized and 1 share issued and outstanding
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—
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Total Stockholder’s Equity
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| | | $ | — | | |
| | | | Goodwill and Indefinite-Lived Intangible Assets Valuation | |
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Description of the Matter
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As described in Notes 3 and 8 to the consolidated financial statements, the Company’s consolidated goodwill balance was $467.0 million, and the indefinite-lived intangible asset balance was $900.4 million, as of December 31, 2020. Management reviews goodwill and indefinite-lived intangible assets for impairment on October 1 of each year or more frequently whenever events or circumstances indicate that the carrying value of goodwill and indefinite-lived intangible assets may not be recoverable. Fair value of each reporting unit was estimated by management using a discounted cash flow model and market-based approach. Fair value of the indefinite-lived intangible assets was estimated by management using a relief from royalty approach.
Auditing management’s goodwill and indefinite-lived intangible asset impairment tests was complex and judgmental due to the significant estimation required in determining the fair value of the reporting units and indefinite-lived intangible assets. In particular, the fair value estimates were sensitive to changes in significant assumptions such as the revenue growth rates, the long-term growth rates, the discount rates, and the royalty rates, which are affected by expectations about future market or economic conditions, including uncertainty resulting from the COVID-19 pandemic.
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How We Addressed the Matter in Our Audit
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| | To test the estimated fair value of the Company’s reporting units and indefinite-lived intangible assets, we performed audit procedures that included, among others, assessing methodologies and testing the significant assumptions discussed above and the underlying data used by the Company in determining the fair values. We compared the Company’s revenue growth assumptions to current industry, market, and economic trends, to the Company’s historical results, and those of other guideline companies in the same industry. We involved our valuation specialist to assist in our evaluation of the Company’s models, valuation methodologies, and significant assumptions including the discount rates and appropriate royalty rates used by management. We also evaluated the reasonableness of the selected peer group companies and similar transactions used to develop the fair value estimates of the reporting units. We assessed the historical accuracy of management’s estimates and performed sensitivity analyses of significant assumptions to evaluate the changes in the fair value of the reporting units and indefinite-lived intangible assets that would result from changes in the assumptions. | |
(in millions, except per share amounts)
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December 31, 2020
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December 31, 2019
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Assets | | | | | | | | | | | | | |
Current assets:
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Cash and cash equivalents
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| | | $ | 192.9 | | | | | $ | 128.3 | | |
Trade receivables, net of allowance for doubtful accounts of $28.7 in 2020 and $21.5 in 2019
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| | | | 342.0 | | | | | | 426.3 | | |
Other receivables
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| | | | 71.0 | | | | | | 88.3 | | |
Inventories (Note 6)
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| | | | 282.4 | | | | | | 209.0 | | |
Prepaid expenses and other current assets (Note 6)
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| | | | 62.0 | | | | | | 71.4 | | |
Total current assets
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| | | | 950.3 | | | | | | 923.3 | | |
Property and equipment, net (Note 7)
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| | | | 188.3 | | | | | | 172.2 | | |
Goodwill (Note 8)
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| | | | 467.0 | | | | | | 416.9 | | |
Intangible assets, net (Note 8)
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| | | | 2,311.4 | | | | | | 2,262.9 | | |
Other non-current assets (Note 6)
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| | | | 369.1 | | | | | | 438.2 | | |
Total assets
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| | | $ | 4,286.1 | | | | | $ | 4,213.5 | | |
Liabilities and stockholders’ equity | | | | | | | | | | | | | |
Current liabilities:
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Short-term borrowings (Note 10)
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| | | $ | 0.4 | | | | | $ | 0.6 | | |
Current portion of long-term debt (Note 10)
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| | | | 13.2 | | | | | | 11.2 | | |
Accounts payable
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| | | | 404.6 | | | | | | 419.6 | | |
Accrued restructuring costs (Note 20)
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| | | | 26.3 | | | | | | 13.4 | | |
Other current liabilities (Note 6)
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| | | | 512.4 | | | | | | 448.8 | | |
Total current liabilities
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| | | | 956.9 | | | | | | 893.6 | | |
Long-term debt, less current portion (Note 10)
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| | | | 2,686.7 | | | | | | 2,510.7 | | |
Preferred equity certificates (Note 11)
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| | | | 641.7 | | | | | | 588.4 | | |
Deferred taxes (Note 16)
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| | | | 181.1 | | | | | | 221.0 | | |
Other non-current liabilities (Note 6)
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| | | | 328.3 | | | | | | 321.0 | | |
Total liabilities
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| | | | 4,794.7 | | | | | | 4,534.7 | | |
Commitments and contingencies (Note 17)
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Stockholders’ equity:
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Common stock, $0.01 par value per share, 195,800,697 shares authorized and outstanding in 2020 and 2019, respectively
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| | | | 2.2 | | | | | | 2.2 | | |
Additional paid-in capital
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| | | | 247.2 | | | | | | 242.2 | | |
Accumulated deficit
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| | | | (545.3) | | | | | | (501.1) | | |
Accumulated other comprehensive loss (Note 21)
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| | | | (212.7) | | | | | | (64.5) | | |
Total stockholders’ equity
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| | | | (508.6) | | | | | | (321.2) | | |
Total liabilities and stockholders’ equity
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| | | $ | 4,286.1 | | | | | $ | 4,213.5 | | |
(in millions, except per share amounts)
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Year Ended
December 31, 2020 |
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Year Ended
December 31, 2019 |
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Year Ended
December 31, 2018 |
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Net sales
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| | | $ | 2,629.2 | | | | | $ | 2,623.9 | | | | | $ | 2,688.1 | | |
Cost of sales
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| | | | 1,559.4 | | | | | | 1,522.1 | | | | | | 1,570.6 | | |
Gross profit
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| | | | 1,069.8 | | | | | | 1,101.8 | | | | | | 1,117.5 | | |
Selling, general and administrative expenses
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| | | | 768.2 | | | | | | 855.6 | | | | | | 883.8 | | |
Transition and transformation costs
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| | | | 42.5 | | | | | | 52.8 | | | | | | 120.6 | | |
Management fee (Note 18)
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| | | | 7.5 | | | | | | 7.5 | | | | | | 7.5 | | |
Share-based compensation (Note 19)
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| | | | 67.5 | | | | | | 3.0 | | | | | | — | | |
Amortization of intangible assets
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| | | | 98.2 | | | | | | 93.7 | | | | | | 91.2 | | |
Impairment of goodwill (Note 8)
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| | | | — | | | | | | — | | | | | | 68.5 | | |
Restructuring costs (Note 20)
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| | | | 25.6 | | | | | | 19.8 | | | | | | 24.9 | | |
Merger and acquisition-related costs
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| | | | 1.0 | | | | | | 0.3 | | | | | | 7.3 | | |
Operating income (loss)
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| | | | 59.3 | | | | | | 69.1 | | | | | | (86.3) | | |
Interest expense
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| | | | 127.7 | | | | | | 141.0 | | | | | | 135.2 | | |
Gain on sale of business and investments (Note 5)
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| | | | — | | | | | | (13.0) | | | | | | — | | |
Foreign currency loss related to Argentina subsidiaries
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| | | | 1.6 | | | | | | 11.4 | | | | | | 2.4 | | |
Other (income) expense, net (Note 6)
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| | | | (40.7) | | | | | | 6.0 | | | | | | 0.8 | | |
Loss before income tax provision
|
| | | | (29.3) | | | | | | (76.3) | | | | | | (224.7) | | |
Income tax provision (Note 16)
|
| | | | 9.2 | | | | | | 32.7 | | | | | | 14.4 | | |
Net loss
|
| | | $ | (38.5) | | | | | $ | (109.0) | | | | | $ | (239.1) | | |
Basic and diluted loss per share (Note 23)
|
| | | $ | (0.20) | | | | | $ | (1.15) | | | | | $ | (2.54) | | |
Basic and diluted weighted average shares outstanding (Note 23)
|
| | | | 195.80 | | | | | | 94.40 | | | | | | 94.00 | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||
Net loss
|
| | | $ | (38.5) | | | | | $ | (109.0) | | | | | $ | (239.1) | | |
Other comprehensive (loss) income: | | | | | | | | | | | | | | | | | | | |
Pension plans and post-employment benefits, net of taxes of $13.9, $(1.7) and $2.6
|
| | | | (29.0) | | | | | | (2.7) | | | | | | (11.1) | | |
Cash flow hedging activities, net of taxes of $6.3, $(2.0) and $0.3
|
| | | | (19.8) | | | | | | 3.2 | | | | | | 0.9 | | |
Foreign currency translation adjustments
|
| | | | (99.4) | | | | | | 29.8 | | | | | | (79.8) | | |
Other comprehensive (loss) income:
|
| | | | (148.2) | | | | | | 30.3 | | | | | | (90.0) | | |
Comprehensive loss
|
| | | $ | (186.7) | | | | | $ | (78.7) | | | | | $ | (329.1) | | |
(in millions)
|
| |
Common
Stock |
| |
Additional
Paid-in Capital |
| |
Accumulated
Deficit |
| |
Accumulated
Other Comprehensive Loss |
| |
Total
|
| |||||||||||||||
Balance as of January 1, 2018
|
| | | $ | 1.1 | | | | | $ | 112.2 | | | | | $ | (153.0) | | | | | $ | (4.6) | | | | | $ | (44.3) | | |
Equity contributions
|
| | | | — | | | | | | 16.7 | | | | | | — | | | | | | — | | | | | | 16.7 | | |
Pension plans and post-employment benefits
|
| | | | — | | | | | | — | | | | | | — | | | | | | (11.1) | | | | | | (11.1) | | |
Cash flow hedging activities, net of tax
|
| | | | — | | | | | | — | | | | | | — | | | | | | 0.9 | | | | | | 0.9 | | |
Foreign currency translation adjustments
|
| | | | — | | | | | | — | | | | | | — | | | | | | (80.0) | | | | | | (80.0) | | |
Net loss
|
| | | | — | | | | | | — | | | | | | (239.1) | | | | | | — | | | | | | (239.1) | | |
Balance as of December 31, 2018
|
| | | $ | 1.1 | | | | | $ | 128.9 | | | | | $ | (392.1) | | | | | $ | (94.8) | | | | | $ | (356.9) | | |
Conversion of debenture loans to equity
|
| | | | 1.1 | | | | | | 113.2 | | | | | | — | | | | | | — | | | | | | 114.3 | | |
Equity redemptions
|
| | | | — | | | | | | (1.3) | | | | | | — | | | | | | | | | | | | (1.3) | | |
Share-based compensation
|
| | | | — | | | | | | 1.4 | | | | | | — | | | | | | — | | | | | | 1.4 | | |
Pension plans and post-employment benefits
|
| | | | — | | | | | | — | | | | | | — | | | | | | (2.7) | | | | | | (2.7) | | |
Cash flow hedging activities, net of tax
|
| | | | — | | | | | | — | | | | | | — | | | | | | 3.2 | | | | | | 3.2 | | |
Foreign currency translation adjustments
|
| | | | — | | | | | | — | | | | | | — | | | | | | 29.8 | | | | | | 29.8 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | (109.0) | | | | | | — | | | | | | (109.0) | | |
Balance as of December 31, 2019
|
| | | $ | 2.2 | | | | | $ | 242.2 | | | | | $ | (501.1) | | | | | $ | (64.5) | | | | | $ | (321.2) | | |
Equity contributions
|
| | | | — | | | | | | 5.0 | | | | | | — | | | | | | — | | | | | | 5.0 | | |
Pension plans and post-employment benefits
|
| | | | — | | | | | | — | | | | | | — | | | | | | (29.0) | | | | | | (29.0) | | |
Cash flow hedging activities, net of tax
|
| | | | — | | | | | | — | | | | | | — | | | | | | (19.8) | | | | | | (19.8) | | |
Foreign currency translation adjustments
|
| | | | — | | | | | | — | | | | | | — | | | | | | (99.4) | | | | | | (99.4) | | |
Adoption of new accounting standard Topic
ASC 326 |
| | | | — | | | | | | — | | | | | | (5.7) | | | | | | — | | | | | | (5.7) | | |
Net loss
|
| | | | — | | | | | | — | | | | | | (38.5) | | | | | | — | | | | | | (38.5) | | |
Balance as of December 31, 2020
|
| | | $ | 2.2 | | | | | $ | 247.2 | | | | | $ | (545.3) | | | | | $ | (212.7) | | | | | $ | (508.6) | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||
Operating activities: | | | | | | | | | | | | | | | | | | | |
Net loss
|
| | | $ | (38.5) | | | | | $ | (109.0) | | | | | $ | (239.1) | | |
Adjustments to reconcile net loss to cash provided by operating activities:
|
| | | | | | | | | | | | | | | | | | |
Depreciation and amortization
|
| | | | 195.6 | | | | | | 185.5 | | | | | | 172.1 | | |
Impairment of goodwill
|
| | | | — | | | | | | — | | | | | | 68.5 | | |
Amortization of deferred financing costs and original issue discount
|
| | | | 11.3 | | | | | | 10.5 | | | | | | 10.5 | | |
Amortization of fair value step up of acquired inventory
|
| | | | — | | | | | | 1.9 | | | | | | 5.3 | | |
Gain on cash flow hedges
|
| | | | (3.2) | | | | | | (0.7) | | | | | | — | | |
Deferred taxes
|
| | | | (28.8) | | | | | | (29.6) | | | | | | (25.3) | | |
Unrealized foreign exchange (loss) gain
|
| | | | (25.1) | | | | | | 10.8 | | | | | | 1.8 | | |
Share-based compensation
|
| | | | 67.5 | | | | | | 3.0 | | | | | | — | | |
Impact of highly inflationary economy – Argentina
|
| | | | 1.6 | | | | | | 11.4 | | | | | | 3.4 | | |
Provision for bad debts
|
| | | | 11.1 | | | | | | 4.9 | | | | | | 6.4 | | |
Provision for slow moving inventory
|
| | | | 13.4 | | | | | | 4.1 | | | | | | 5.6 | | |
Gain on sale of investment in Virox
|
| | | | — | | | | | | (13.0) | | | | | | — | | |
Other non-cash, net
|
| | | | — | | | | | | — | | | | | | 5.1 | | |
Interest expense on preferred equity certificates
|
| | | | — | | | | | | 4.9 | | | | | | 5.2 | | |
Changes in operating assets and liabilities:
|
| | | | | | | | | | | | | | | | | | |
Trade receivables, net
|
| | | | 17.0 | | | | | | (83.0) | | | | | | 1.0 | | |
Inventories, net
|
| | | | (70.4) | | | | | | 12.7 | | | | | | (21.3) | | |
Accounts payable
|
| | | | (33.5) | | | | | | — | | | | | | 29.9 | | |
Income taxes, net
|
| | | | (34.0) | | | | | | (0.7) | | | | | | 0.7 | | |
Other assets and liabilities, net
|
| | | | 19.0 | | | | | | 8.1 | | | | | | (27.4) | | |
Cash provided by operating activities
|
| | | | 103.0 | | | | | | 21.8 | | | | | | 2.4 | | |
Investing activities: | | | | | | | | | | | | | | | | | | | |
Business acquired in purchase transactions
|
| | | | (51.2) | | | | | | — | | | | | | (131.6) | | |
Acquisition of AHP Intellectual Property from Virox, net
|
| | | | — | | | | | | (6.3) | | | | | | — | | |
Diversey acquisition final purchase price settlement
|
| | | | — | | | | | | — | | | | | | 19.4 | | |
Proceeds from sale of property and equipment and other assets
|
| | | | 0.5 | | | | | | 3.3 | | | | | | — | | |
Dosing and dispensing equipment
|
| | | | (45.6) | | | | | | (93.4) | | | | | | (83.2) | | |
Capital expenditures
|
| | | | (41.4) | | | | | | (29.0) | | | | | | (44.2) | | |
Collection of deferred factored receivables
|
| | | | 66.9 | | | | | | 80.8 | | | | | | 12.5 | | |
Cash used in investing activities
|
| | | | (70.8) | | | | | | (44.6) | | | | | | (227.1) | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||
Financing activities: | | | | | | | | | | | | | | | | | | | |
Issuance of preferred equity certificates
|
| | | | — | | | | | | — | | | | | | 3.1 | | |
Payments on preferred equity certificates
|
| | | | — | | | | | | (4.5) | | | | | | — | | |
Contingent consideration payments
|
| | | | (5.4) | | | | | | (3.8) | | | | | | (3.6) | | |
(Payments)/proceeds from short-term borrowings
|
| | | | (0.4) | | | | | | (6.2) | | | | | | 7.5 | | |
Proceeds from revolving credit facility
|
| | | | 90.0 | | | | | | 352.5 | | | | | | 171.0 | | |
Payments on revolving credit facility
|
| | | | (210.0) | | | | | | (241.5) | | | | | | (162.0) | | |
Proceeds from long-term borrowings
|
| | | | 169.0 | | | | | | — | | | | | | — | | |
Payments on long-term borrowings
|
| | | | (22.9) | | | | | | (21.3) | | | | | | (20.5) | | |
Payment of deferred financing costs
|
| | | | (1.7) | | | | | | — | | | | | | — | | |
Equity contributions
|
| | | | 5.0 | | | | | | — | | | | | | 16.7 | | |
Equity redemptions
|
| | | | — | | | | | | (1.3) | | | | | | — | | |
Cash provided by financing activities
|
| | | | 23.6 | | | | | | 73.9 | | | | | | 12.2 | | |
Effect of exchange rate changes on cash, cash equivalents and restricted cash
|
| | | | 3.6 | | | | | | 0.7 | | | | | | (6.7) | | |
Increase (decrease) in cash, cash equivalents and restricted cash
|
| | | | 59.4 | | | | | | 51.8 | | | | | | (219.2) | | |
Cash, cash equivalents and restricted cash at beginning of period(a)
|
| | | | 142.3 | | | | | | 90.5 | | | | | | 309.7 | | |
Cash, cash equivalents and restricted cash at end of period(a)
|
| | | $ | 201.7 | | | | | $ | 142.3 | | | | | $ | 90.5 | | |
Supplemental Cash Flow Information: | | | | | | | | | | | | | | | | | | | |
Interest payments
|
| | | $ | 117.1 | | | | | $ | 126.6 | | | | | $ | 111.1 | | |
Income tax payments
|
| | | $ | 56.4 | | | | | $ | 43.4 | | | | | $ | 55.7 | | |
Conversion of preferred equity certificates to equity
|
| | | $ | — | | | | | $ | 114.3 | | | | | $ | — | | |
Beneficial interest obtained in exchange for factored receivables
|
| | | $ | 65.7 | | | | | $ | 86.6 | | | | | $ | 17.5 | | |
Asset Type
|
| |
Useful Life
|
|
Building and building equipment | | |
20 – 40 years
|
|
Machinery and equipment | | |
5 – 10 years
|
|
Other property and equipment | | |
2 – 10 years
|
|
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| ||||||
Balance, beginning of period
|
| | | $ | 21.5 | | | | | $ | 20.3 | | |
Adoption of ASC 326
|
| | | | 7.1 | | | | | | — | | |
Provision for bad debts
|
| | | | 11.1 | | | | | | 4.9 | | |
Write-offs
|
| | | | (4.6) | | | | | | (3.7) | | |
Balance, end of period
|
| | | $ | 35.1 | | | | | $ | 21.5 | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||
Europe
|
| | | $ | 1,129.3 | | | | | $ | 1,186.9 | | | | | $ | 1,227.8 | | |
North America
|
| | | | 777.2 | | | | | | 574.8 | | | | | | 564.3 | | |
Asia Pacific
|
| | | | 312.0 | | | | | | 371.6 | | | | | | 381.4 | | |
Middle East and Africa
|
| | | | 217.2 | | | | | | 255.6 | | | | | | 253.3 | | |
Latin America
|
| | | | 168.5 | | | | | | 203.0 | | | | | | 225.9 | | |
Topic 606 Revenue
|
| | | | 2,604.2 | | | | | | 2,591.9 | | | | | | 2,652.7 | | |
Non-Topic 606 Revenue (Leasing: Sales-type and Operating)
|
| | | | 25.0 | | | | | | 32.0 | | | | | | 35.4 | | |
Total | | | | $ | 2,629.2 | | | | | $ | 2,623.9 | | | | | $ | 2,688.1 | | |
(in millions)
|
| | | | | | |
Cash and cash equivalents
|
| | | $ | 2.3 | | |
Trade receivables
|
| | | | 1.6 | | |
Inventories
|
| | | | 1.7 | | |
Accounts payable
|
| | | | (1.0) | | |
Other current liabilities
|
| | | | (0.6) | | |
Other non-current liabilities
|
| | | | (0.1) | | |
Net assets acquired before goodwill on acquisition
|
| | | | 3.9 | | |
Goodwill on acquisition
|
| | | | 17.9 | | |
Net assets acquired
|
| | | $ | 21.8 | | |
(in millions)
|
| | | | | | |
Cash and cash equivalents
|
| | | $ | 0.6 | | |
Trade receivables
|
| | | | 2.1 | | |
Inventories
|
| | | | 1.5 | | |
Prepaid expenses and other current assets
|
| | | | 0.1 | | |
Property, plant and equipment
|
| | | | 0.6 | | |
Intangible assets
|
| | | | 9.5 | | |
Accounts payable
|
| | | | (4.0) | | |
Other current liabilities
|
| | | | (0.1) | | |
Net assets acquired before goodwill on acquisition
|
| | | | 10.3 | | |
Goodwill on acquisition
|
| | | | 22.0 | | |
Net assets acquired
|
| | | $ | 32.3 | | |
(in millions)
|
| |
December 31,
2020 |
| |
December 31,
2019 |
| ||||||
Raw materials
|
| | | $ | 60.8 | | | | | $ | 36.3 | | |
Work in process
|
| | | | 3.7 | | | | | | 3.5 | | |
Finished goods
|
| | | | 217.9 | | | | | | 169.2 | | |
| | | | $ | 282.4 | | | | | $ | 209.0 | | |
(in millions)
|
| |
December 31,
2020 |
| |
December 31,
2019 |
| ||||||
Prepaid expenses
|
| | | $ | 35.2 | | | | | $ | 37.8 | | |
Income tax receivables
|
| | | | 22.2 | | | | | | 17.7 | | |
Restricted cash and compensating balance deposits
|
| | | | 3.2 | | | | | | 8.8 | | |
Other current assets
|
| | | | 1.4 | | | | | | 7.1 | | |
| | | | $ | 62.0 | | | | | $ | 71.4 | | |
(in millions)
|
| |
December 31,
2020 |
| |
December 31,
2019 |
| ||||||
Dosing and dispensing equipment
|
| | | $ | 153.0 | | | | | $ | 181.2 | | |
Tax indemnification asset
|
| | | | 24.8 | | | | | | 27.6 | | |
Lease receivables
|
| | | | 30.2 | | | | | | 40.5 | | |
Deferred financing fees – revolver
|
| | | | 0.9 | | | | | | 2.1 | | |
Restricted cash
|
| | | | 5.7 | | | | | | 5.2 | | |
Finance lease right-of-use assets, net
|
| | | | 4.9 | | | | | | 5.6 | | |
Operating lease right-of-use assets, net
|
| | | | 62.8 | | | | | | 89.1 | | |
Deferred taxes
|
| | | | 60.6 | | | | | | 54.4 | | |
Other non-current assets
|
| | | | 26.2 | | | | | | 32.5 | | |
| | | | $ | 369.1 | | | | | $ | 438.2 | | |
(in millions)
|
| |
December 31,
2020 |
| |
December 31,
2019 |
| ||||||
Accrued salaries, wages and related costs
|
| | | $ | 131.9 | | | | | $ | 109.6 | | |
Accrued customer volume rebates
|
| | | | 146.0 | | | | | | 148.9 | | |
Contingent consideration
|
| | | | 3.3 | | | | | | 3.5 | | |
Value added, general and sales tax payable
|
| | | | 36.0 | | | | | | 41.5 | | |
Accrued interest payable
|
| | | | 24.6 | | | | | | 30.1 | | |
Income taxes payable
|
| | | | 6.0 | | | | | | 19.4 | | |
Interest rate swaps
|
| | | | 8.8 | | | | | | — | | |
Operating lease liabilities
|
| | | | 22.9 | | | | | | 31.9 | | |
Accrued share-based compensation
|
| | | | 69.6 | | | | | | 1.7 | | |
Other accrued liabilities
|
| | | | 63.3 | | | | | | 62.2 | | |
| | | | $ | 512.4 | | | | | $ | 448.8 | | |
(in millions)
|
| |
December 31,
2020 |
| |
December 31,
2019 |
| ||||||
Defined benefit pension plan liability
|
| | | $ | 203.1 | | | | | $ | 165.9 | | |
Other post-employment benefit plan liability
|
| | | | 2.2 | | | | | | 1.8 | | |
Uncertain tax positions
|
| | | | 43.7 | | | | | | 58.0 | | |
Contingent consideration
|
| | | | 4.9 | | | | | | 9.0 | | |
Asset retirement obligations
|
| | | | 6.6 | | | | | | 5.6 | | |
Interest rate swaps
|
| | | | 12.0 | | | | | | — | | |
Operating lease liabilities
|
| | | | 38.8 | | | | | | 59.0 | | |
Other non-current liabilities
|
| | | | 17.0 | | | | | | 21.7 | | |
| | | | $ | 328.3 | | | | | $ | 321.0 | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||
Interest income
|
| | | $ | (5.9) | | | | | $ | (7.5) | | | | | | (5.8) | | |
Unrealized foreign exchange (gain) loss
|
| | | | (25.1) | | | | | | 10.8 | | | | | | 1.8 | | |
Realized foreign exchange (gain) loss
|
| | | | (0.9) | | | | | | 0.6 | | | | | | (16.7) | | |
Non-cash pension and other post-employment benefit plan
(Note 14 & Note 15) |
| | | | (12.9) | | | | | | (8.8) | | | | | | (10.5) | | |
Adjustment to tax indemnification asset(a)
|
| | | | 2.8 | | | | | | 7.1 | | | | | | 31.0 | | |
Factoring and securitization fees
|
| | | | 4.3 | | | | | | 3.4 | | | | | | 0.6 | | |
Other, net
|
| | | | (3.0) | | | | | | 0.4 | | | | | | 0.4 | | |
| | | | $ | (40.7) | | | | | $ | 6.0 | | | | | $ | 0.8 | | |
(in millions)
|
| |
December 31,
2020 |
| |
December 31,
2019 |
| ||||||
Land and improvements
|
| | | $ | 44.0 | | | | | $ | 41.6 | | |
Buildings
|
| | | | 51.9 | | | | | | 47.2 | | |
Machinery and equipment
|
| | | | 81.9 | | | | | | 74.0 | | |
Other property and equipment
|
| | | | 47.9 | | | | | | 30.4 | | |
Construction-in-progress
|
| | | | 28.5 | | | | | | 15.1 | | |
Property and equipment, gross
|
| | | | 254.2 | | | | | | 208.3 | | |
Less: Accumulated depreciation
|
| | | | (65.9) | | | | | | (36.1) | | |
Property and equipment, net
|
| | | $ | 188.3 | | | | | $ | 172.2 | | |
(in millions)
|
| |
Institutional
|
| |
Food &
Beverage |
| |
Total
|
| |||||||||
Gross value at December 31, 2018
|
| | | $ | 126.5 | | | | | $ | 359.3 | | | | | $ | 485.8 | | |
Accumulated impairment
|
| | | | (17.8) | | | | | | (50.7) | | | | | | (68.5) | | |
Carrying value at December 31, 2018
|
| | | | 108.7 | | | | | | 308.6 | | | | | | 417.3 | | |
Foreign currency adjustment
|
| | | | (0.3) | | | | | | (1.0) | | | | | | (1.3) | | |
Gross value at December 31, 2019
|
| | | | 126.2 | | | | | | 358.3 | | | | | | 484.5 | | |
Accumulated impairment
|
| | | | (17.6) | | | | | | (50.0) | | | | | | (67.6) | | |
Carrying value at December 31, 2019
|
| | | | 108.6 | | | | | | 308.3 | | | | | | 416.9 | | |
Acquisition
|
| | | | 17.9 | | | | | | 22.0 | | | | | | 39.9 | | |
Foreign currency adjustment
|
| | | | 2.4 | | | | | | 6.9 | | | | | | 9.3 | | |
Gross value at December 31, 2020
|
| | | | 146.5 | | | | | | 387.2 | | | | | | 533.7 | | |
Accumulated impairment
|
| | | | (17.4) | | | | | | (49.3) | | | | | | (66.7) | | |
Carrying value at December 31, 2020
|
| | | $ | 129.1 | | | | | $ | 337.9 | | | | | $ | 467.0 | | |
(in millions)
|
| |
Gross
Carrying Value |
| |
Accumulated
Amortization |
| |
Accumulated
Impairment |
| |
Net Book
Value |
| |
Weighted
Average Amortization Periods |
| ||||||||||||
Customer relationships
|
| | | $ | 939.2 | | | | | $ | (142.4) | | | | | $ | — | | | | | $ | 796.8 | | | |
26.3 years
|
|
Trademarks
|
| | | | 28.8 | | | | | | (5.3) | | | | | | — | | | | | | 23.5 | | | |
13.5 years
|
|
Capitalized software
|
| | | | 76.7 | | | | | | (58.5) | | | | | | — | | | | | | 18.2 | | | |
1.6 years
|
|
Brand name
|
| | | | 642.7 | | | | | | (106.5) | | | | | | — | | | | | | 536.2 | | | |
16.7 years
|
|
Non-compete agreements
|
| | | | 8.5 | | | | | | (8.4) | | | | | | — | | | | | | 0.1 | | | |
0.8 years
|
|
Favorable leases
|
| | | | 4.3 | | | | | | (2.3) | | | | | | — | | | | | | 2.0 | | | |
1.7 years
|
|
Intellectual property
|
| | | | 37.4 | | | | | | (3.2) | | | | | | — | | | | | | 34.2 | | | |
11.0 years
|
|
Total intangible assets with definite lives
|
| | | | 1,737.6 | | | | | | (326.6) | | | | | | — | | | | | | 1,411.0 | | | | | |
Trademarks and trade names with indefinite lives
|
| | | | 900.4 | | | | | | — | | | | | | — | | | | | | 900.4 | | | | | |
Total identifiable intangible assets
|
| | | $ | 2,638.0 | | | | | $ | (326.6) | | | | | $ | — | | | | | $ | 2,311.4 | | | | | |
(in millions)
|
| |
Gross
Carrying Value |
| |
Accumulated
Amortization |
| |
Accumulated
Impairment |
| |
Net Book
Value |
| |
Weighted
Average Amortization Periods |
| ||||||||||||
Customer relationships
|
| | | $ | 885.5 | | | | | $ | (90.4) | | | | | $ | — | | | | | $ | 795.1 | | | |
27.2 years
|
|
Trademarks
|
| | | | 26.9 | | | | | | (3.0) | | | | | | — | | | | | | 23.9 | | | |
14.4 years
|
|
Capitalized software
|
| | | | 53.5 | | | | | | (31.5) | | | | | | — | | | | | | 22.0 | | | |
1.7 years
|
|
Brand name
|
| | | | 603.3 | | | | | | (69.8) | | | | | | — | | | | | | 533.5 | | | |
17.7 years
|
|
Non-compete agreements
|
| | | | 6.2 | | | | | | (4.4) | | | | | | — | | | | | | 1.8 | | | |
0.8 years
|
|
Favorable leases
|
| | | | 4.1 | | | | | | (1.5) | | | | | | — | | | | | | 2.6 | | | |
2.7 years
|
|
Intellectual property
|
| | | | 37.4 | | | | | | — | | | | | | — | | | | | | 37.4 | | | |
12.0 years
|
|
Total intangible assets with definite lives
|
| | | | 1,616.9 | | | | | | (200.6) | | | | | | — | | | | | | 1,416.3 | | | | | |
Trademarks and trade names with indefinite lives
|
| | | | 846.6 | | | | | | — | | | | | | — | | | | | | 846.6 | | | | | |
Total identifiable intangible assets
|
| | | $ | 2,463.5 | | | | | $ | (200.6) | | | | | $ | — | | | | | $ | 2,262.9 | | | | | |
(in millions)
|
| | | | | | |
2021
|
| | | $ | 83.9 | | |
2022
|
| | | | 75.2 | | |
2023
|
| | | | 69.4 | | |
2024
|
| | | | 69.4 | | |
2025
|
| | | | 69.4 | | |
Thereafter
|
| | | | 1,043.7 | | |
| | | | $ | 1,411.0 | | |
(in millions)
|
| |
Balance Sheet Line Item
|
| |
December 31,
2020 |
| |
December 31,
2019 |
| ||||||
Assets: | | | | | | | | | | | | | | | | |
Right-of-use operating lease assets
|
| | Other non-current assets | | | | $ | 62.8 | | | | | $ | 89.1 | | |
Right-of-use finance lease assets
|
| | Other non-current assets | | | | | 4.9 | | | | | | 5.6 | | |
Total
|
| | | | | | $ | 67.7 | | | | | $ | 94.7 | | |
Liabilities: | | | | | | | | | | | | | | | | |
Current: | | | | | | | | | | | | | | | | |
Operating lease
|
| | Other current liabilities | | | | $ | 22.9 | | | | | $ | 31.9 | | |
Finance lease
|
| | Current portion of long-term debt | | | | | 1.8 | | | | | | 1.7 | | |
Total
|
| | | | | | $ | 24.7 | | | | | $ | 33.6 | | |
Non-current: | | | | | | | | | | | | | | | | |
Operating lease
|
| | Other non-current liabilities | | | | $ | 38.8 | | | | | $ | 59.0 | | |
Finance lease
|
| |
Long-term debt, less current portion
|
| | | | 3.4 | | | | | | 0.7 | | |
Total
|
| | | | | | $ | 42.2 | | | | | $ | 59.7 | | |
| | |
December 31,
2020 |
| |
December 31,
2019 |
| ||||||
Weighted average remaining lease term: | | | | | Years | | | | | | Years | | |
Operating leases
|
| | | | 3.9 | | | | | | 4.2 | | |
Finance leases
|
| | | | 3.1 | | | | | | 3.7 | | |
Weighted average remaining discount rate: | | | | | Rate | | | | | | Rate | | |
Operating leases
|
| | | | 5.82% | | | | | | 5.12% | | |
Finance leases
|
| | | | 4.81% | | | | | | 3.93% | | |
(in millions)
|
| |
Operating
Leases |
| |
Finance
Leases |
| |
Total
|
| |||||||||
2021
|
| | | $ | 25.5 | | | | | $ | 2.0 | | | | | $ | 27.5 | | |
2022
|
| | | | 19.3 | | | | | | 1.8 | | | | | | 21.1 | | |
2023
|
| | | | 9.6 | | | | | | 1.3 | | | | | | 10.9 | | |
2024
|
| | | | 4.8 | | | | | | 0.5 | | | | | | 5.3 | | |
2025
|
| | | | 2.3 | | | | | | — | | | | | | 2.3 | | |
Thereafter
|
| | | | 8.7 | | | | | | — | | | | | | 8.7 | | |
Total lease payments
|
| | | | 70.2 | | | | | | 5.6 | | | | | | 75.8 | | |
Less: imputed interest
|
| | | | (8.5) | | | | | | (0.4) | | | | | | (8.9) | | |
Total payments
|
| | | $ | 61.7 | | | | | $ | 5.2 | | | | | $ | 66.9 | | |
(in millions)
|
| |
December 31,
2020 |
| |
December 31,
2019 |
| ||||||
Operating lease cost
|
| | | $ | 35.4 | | | | | $ | 42.7 | | |
Short-term lease cost
|
| | | | 6.0 | | | | | | 4.9 | | |
Variable lease cost
|
| | | | 0.9 | | | | | | 0.9 | | |
Total operating costs
|
| | | | 42.3 | | | | | | 48.5 | | |
Finance lease cost: | | | | | | | | | | | | | |
Amortization of right-of-use assets
|
| | | | 2.1 | | | | | | 1.5 | | |
Interest on lease liabilities
|
| | | | 0.3 | | | | | | 0.2 | | |
Total finance lease cost
|
| | | | 2.4 | | | | | | 1.7 | | |
Total lease cost
|
| | | $ | 44.7 | | | | | $ | 50.2 | | |
(in millions)
|
| |
December 31,
2020 |
| |
December 31,
2019 |
| ||||||
Cash paid for amounts included in the measurement of: | | | | | | | | | | | | | |
Operating cash flows from operating leases
|
| | | $ | 35.4 | | | | | $ | 42.1 | | |
Operating cash flows from finance leases
|
| | | $ | 0.3 | | | | | $ | 0.2 | | |
Financing cash flows from finance leases
|
| | | $ | 2.0 | | | | | $ | 1.7 | | |
Right-of-use assets obtained in exchange for new lease liabilities: | | | | | | | | | | | | | |
Operating leases
|
| | | $ | 3.8 | | | | | $ | 22.2 | | |
Finance leases
|
| | | $ | 1.7 | | | | | $ | 5.0 | | |
(in millions)
|
| |
Total
|
| |||
2021
|
| | | $ | 22.7 | | |
2022
|
| | | | 19.6 | | |
2023
|
| | | | 11.3 | | |
2024
|
| | | | 4.1 | | |
2025
|
| | | | 1.5 | | |
Thereafter
|
| | | | 0.2 | | |
Total
|
| | | $ | 59.4 | | |
(in millions)
|
| |
December 31,
2020 |
| |
December 31,
2019 |
| ||||||
Senior Secured Credit Facilities | | | | | | | | | | | | | |
US Dollar Term Loan
|
| | | $ | 873.0 | | | | | $ | 882.0 | | |
US Dollar Incremental Loan
|
| | | | 149.6 | | | | | | — | | |
Euro Term Loan
|
| | | | 1,146.9 | | | | | | 1,062.5 | | |
Revolving Credit Facility
|
| | | | — | | | | | | 120.0 | | |
Notes
|
| | | | 548.5 | | | | | | 503.0 | | |
Short-term borrowings
|
| | | | 0.4 | | | | | | 0.6 | | |
Finance lease obligations
|
| | | | 5.2 | | | | | | 2.4 | | |
Financing obligations
|
| | | | 22.5 | | | | | | — | | |
Unamortized deferred financing costs
|
| | | | (39.6) | | | | | | (44.6) | | |
Unamortized original issue discount
|
| | | | (6.2) | | | | | | (3.4) | | |
Total debt
|
| | | | 2,700.3 | | | | | | 2,522.5 | | |
Less: Current portion of long-term debt
|
| | | | (13.2) | | | | | | (11.2) | | |
Short-term borrowings
|
| | | | (0.4) | | | | | | (0.6) | | |
Long-term debt
|
| | | $ | 2,686.7 | | | | | $ | 2,510.7 | | |
Year
|
| |
Percentage
|
| |||
2020
|
| | | | 102.8% | | |
2021
|
| | | | 101.4% | | |
2022 and thereafter
|
| | | | 100.0% | | |
(in millions)
|
| | | | | | |
2021
|
| | | $ | 22.3 | | |
2022
|
| | | | 22.3 | | |
2023
|
| | | | 22.3 | | |
2024
|
| | | | 2,102.6 | | |
2025
|
| | | | 548.5 | | |
Thereafter
|
| | | | — | | |
| | | | $ | 2,718.0 | | |
(in millions)
|
| |
Maturity
date |
| |
Interest
Rate |
| |
Carrying
Value December 31, 2019 |
| |
Borrowing/
(Reimbursement) |
| |
Foreign
Currency Translation |
| |
Carrying
Value December 31, 2020 |
| |
Interest
Expense |
| ||||||||||||||||||
Series 1 PECs
|
| | | | 9/1/2047 | | | |
See below
|
| | | $ | 588.4 | | | | | $ | — | | | | | $ | 53.3 | | | | | $ | 641.7 | | | | | $ | — | | |
(in millions)
|
| |
December 31,
2020 |
| |
December 31,
2019 |
| ||||||
Derivative assets | | | | | | | | | | | | | |
Foreign currency forward contracts
|
| | | $ | — | | | | | $ | 0.2 | | |
Interest rate swaps
|
| | | | — | | | | | | 6.5 | | |
Total derivative assets
|
| | | $ | — | | | | | $ | 6.7 | | |
Derivative liabilities | | | | | | | | | | | | | |
Foreign currency forward contracts
|
| | | $ | — | | | | | $ | (2.2) | | |
Interest rate swaps
|
| | | | (20.8) | | | | | | — | | |
Total derivative liabilities
|
| | | $ | (20.8) | | | | | $ | (2.2) | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||
Derivatives designated as hedging instruments: | | | | | | | | | | | | | | | | | | | |
Cash flow hedges: | | | | | | | | | | | | | | | | | | | |
Foreign currency forward contracts(1)
|
| | | $ | 0.5 | | | | | $ | 0.2 | | | | | $ | 0.5 | | |
Interest rate swaps(1)
|
| | | | (5.3) | | | | | | — | | | | | | — | | |
Total
|
| | | $ | (4.8) | | | | | $ | 0.2 | | | | | $ | 0.5 | | |
| | |
December 31, 2020
|
| |||||||||||||||||||||
(in millions)
|
| |
Total Fair
Value |
| |
Level 1
|
| |
Level 2
|
| |
Level 3
|
| ||||||||||||
Cash equivalents
|
| | | $ | 118.4 | | | | | $ | 118.4 | | | | | $ | — | | | | | $ | — | | |
Restricted cash and compensating balance deposits
|
| | | $ | 8.8 | | | | | $ | 8.8 | | | | | $ | — | | | | | $ | — | | |
Interest rate swaps, net liability
|
| | | $ | (20.8) | | | | | $ | — | | | | | $ | (20.8) | | | | | $ | — | | |
Contingent consideration
|
| | | $ | (8.2) | | | | | $ | — | | | | | $ | — | | | | | $ | (8.2) | | |
| | |
December 31, 2019
|
| |||||||||||||||||||||
| | |
Total Fair
Value |
| |
Level 1
|
| |
Level 2
|
| |
Level 3
|
| ||||||||||||
Cash equivalents
|
| | | $ | 12.4 | | | | | $ | 12.4 | | | | | $ | — | | | | | $ | — | | |
Restricted cash and compensating balance deposits
|
| | | $ | 14.0 | | | | | $ | 14.0 | | | | | $ | — | | | | | $ | — | | |
Foreign currency forward contracts, net liability
|
| | | $ | 2.0 | | | | | $ | 2.0 | | | | | $ | — | | | | | $ | — | | |
Interest rate swaps, net asset
|
| | | $ | 6.5 | | | | | $ | — | | | | | $ | 6.5 | | | | | $ | — | | |
Contingent consideration
|
| | | $ | (12.5) | | | | | $ | — | | | | | $ | — | | | | | $ | (12.5) | | |
| | |
December 31, 2020
|
| |
December 31, 2019
|
| ||||||||||||||||||
(in millions)
|
| |
Carrying
Amount |
| |
Fair Value
|
| |
Carrying
Amount |
| |
Fair Value
|
| ||||||||||||
US Dollar Term Loan(1)
|
| | | $ | 859.1 | | | | | $ | 856.3 | | | | | $ | 864.6 | | | | | $ | 863.4 | | |
US Dollar Incremental Term Loan(1)
|
| | | | 144.8 | | | | | | 149.0 | | | | | | — | | | | | | — | | |
Euro Term Loan(1)
|
| | | | 1,129.5 | | | | | | 1,161.0 | | | | | | 1,042.5 | | | | | | 1,058.8 | | |
Notes(2) | | | | | 538.7 | | | | | | 552.7 | | | | | | 492.4 | | | | | | 494.2 | | |
Revolving credit facility
|
| | | | — | | | | | | — | | | | | | 120.0 | | | | | | 120.0 | | |
Preferred Equity Certificates
|
| | | | 641.7 | | | | | | 641.7 | | | | | | 588.4 | | | | | | 588.4 | | |
| | | | $ | 3,313.8 | | | | | $ | 3,360.7 | | | | | $ | 3,107.9 | | | | | $ | 3,124.8 | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||
Net periodic benefit cost: | | | | | | | | | | | | | | | | | | | |
U.S. and international net periodic cost included in selling, general and administrative expenses
|
| | | $ | 6.0 | | | | | $ | 4.9 | | | | | $ | 5.8 | | |
U.S. and international net periodic income included in
other (income) expense, net |
| | | | (12.9) | | | | | | (8.9) | | | | | | (10.8) | | |
Total benefit
|
| | | $ | (6.9) | | | | | $ | (4.0) | | | | | $ | (5.0) | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||
Change in benefit obligation: | | | | | | | | | | | | | | | | | | | |
Projected benefit obligation at beginning of period
|
| | | $ | 546.0 | | | | | $ | 519.1 | | | | | $ | 544.5 | | |
Service cost
|
| | | | 6.0 | | | | | | 4.9 | | | | | | 5.8 | | |
Interest cost
|
| | | | 4.2 | | | | | | 7.0 | | | | | | 7.2 | | |
Participants’ contributions
|
| | | | 2.4 | | | | | | 2.1 | | | | | | 2.1 | | |
Benefits paid
|
| | | | (10.2) | | | | | | (8.8) | | | | | | (8.6) | | |
Actuarial loss (gain)
|
| | | | 47.1 | | | | | | 49.7 | | | | | | (9.9) | | |
Plan Amendments
|
| | | | — | | | | | | (12.4) | | | | | | — | | |
Settlements
|
| | | | (8.2) | | | | | | (8.2) | | | | | | (1.5) | | |
Currency translation adjustment
|
| | | | 49.1 | | | | | | (7.4) | | | | | | (20.5) | | |
Projected benefit obligation at end of period
|
| | | $ | 636.4 | | | | | $ | 546.0 | | | | | $ | 519.1 | | |
Change in plan assets: | | | | | | | | | | | | | | | | | | | |
Fair value of plan assets at beginning of period
|
| | | $ | 378.1 | | | | | $ | 333.2 | | | | | $ | 350.9 | | |
Actual return on plan assets
|
| | | | 22.2 | | | | | | 51.7 | | | | | | (7.9) | | |
Settlements
|
| | | | (8.2) | | | | | | (8.2) | | | | | | (1.5) | | |
Employer contributions
|
| | | | 12.0 | | | | | | 12.5 | | | | | | 10.8 | | |
Participants’ contributions
|
| | | | 2.4 | | | | | | 2.1 | | | | | | 2.1 | | |
Benefits paid
|
| | | | (10.2) | | | | | | (8.8) | | | | | | (8.6) | | |
Currency translation adjustment
|
| | | | 34.2 | | | | | | (4.4) | | | | | | (12.6) | | |
Fair value of plan assets at end of period
|
| | | $ | 430.5 | | | | | $ | 378.1 | | | | | $ | 333.2 | | |
Unfunded status, net
|
| | | $ | 205.9 | | | | | $ | 167.9 | | | | | $ | 185.9 | | |
Accumulated benefit obligation at end of period
|
| | | $ | 613.7 | | | | | $ | 524.5 | | | | | $ | 496.0 | | |
Amounts recognized in the Consolidated Balance Sheet: | | | | | | | | | | | | | | | | | | | |
Other non-current assets
|
| | | $ | 0.2 | | | | | $ | 0.4 | | | | | $ | 1.3 | | |
Other current liabilities
|
| | | | (3.0) | | | | | | (2.4) | | | | | | (2.2) | | |
Other non-current liabilities
|
| | | | (203.1) | | | | | | (165.9) | | | | | | (185.0) | | |
Net amount recognized
|
| | | $ | (205.9) | | | | | $ | (167.9) | | | | | $ | (185.9) | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |
Line Item on
Consolidated Statement of Operations |
| |||||||||
Net period benefit cost: | | | | | | | | | | | | | | | | | | | | | | |
Service cost
|
| | | $ | 6.0 | | | | | $ | 4.9 | | | | | $ | 5.8 | | | |
Selling, general and
administrative expenses |
|
Interest cost
|
| | | | 4.2 | | | | | | 7.0 | | | | | | 7.2 | | | |
Other (income) expense, net
|
|
Expected return on plan assets
|
| | | | (17.2) | | | | | | (16.5) | | | | | | (18.0) | | | |
Other (income) expense, net
|
|
Amortization of prior service cost and
net actuarial loss |
| | | | (0.8) | | | | | | — | | | | | | — | | | |
Other (income) expense, net
|
|
Loss recognized during fiscal year due
to settlement |
| | | | 0.9 | | | | | | 0.6 | | | | | | — | | | |
Other (income) expense, net
|
|
Net period benefit cost
|
| | | | (6.9) | | | | | | (4.0) | | | | | | (5.0) | | | | | |
Changes in plan assets and benefit obligations recognized in other comprehensive loss:
|
| | | | | | | | | | | | | | | | | | | | | |
Net actuarial loss (gain), net
|
| | | | 47.1 | | | | | | 49.7 | | | | | | (9.9) | | | | | |
Loss recognized during fiscal year due
to settlement |
| | | | (0.9) | | | | | | (0.6) | | | | | | — | | | | | |
Prior service credit occurring during fiscal year
|
| | | | — | | | | | | (12.4) | | | | | | — | | | | | |
Prior Service Credit Amortized During
Fiscal Year |
| | | | 1.4 | | | | | | — | | | | | | — | | | | | |
Net (Loss) or Gain Amortized During
Fiscal Year |
| | | | (0.6) | | | | | | — | | | | | | — | | | | | |
Asset loss (gain) occurring during the year
|
| | | | (4.9) | | | | | | (35.1) | | | | | | 25.2 | | | | | |
Total loss recognized in other comprehensive loss
|
| | | | 42.1 | | | | | | 1.6 | | | | | | 15.3 | | | | | |
Total recognized in net periodic benefit cost and other comprehensive
income |
| | | $ | 35.2 | | | | | $ | (2.4) | | | | | $ | 10.3 | | | | | |
(in millions)
|
| |
December 31,
2020 |
| |
December 31,
2019 |
| ||||||
ABO
|
| | | $ | 613.7 | | | | | $ | 524.5 | | |
Plans with PBO in excess of plan assets | | | | | | | | | | | | | |
PBO
|
| | | $ | 633.7 | | | | | $ | 543.2 | | |
ABO
|
| | | $ | 610.9 | | | | | $ | 521.6 | | |
Fair value of plan assets
|
| | | $ | 427.6 | | | | | $ | 374.8 | | |
Plans with ABO in excess of plan assets | | | | | | | | | | | | | |
PBO
|
| | | $ | 618.6 | | | | | $ | 530.0 | | |
ABO
|
| | | $ | 598.3 | | | | | $ | 510.5 | | |
Fair value of plan assets
|
| | | $ | 413.3 | | | | | $ | 362.3 | | |
(in millions)
|
| | | | | | |
2021
|
| | | $ | 15.1 | | |
2022
|
| | | | 15.4 | | |
2023
|
| | | | 15.8 | | |
2024
|
| | | | 18.2 | | |
2025
|
| | | | 17.3 | | |
2026 – 2030
|
| | | | 109.7 | | |
| | |
December 31,
2020 |
| |
December 31,
2019 |
| ||||||
Benefit obligations: | | | | | | | | | | | | | |
Discount rate
|
| | | | 0.6% | | | | | | 1.0% | | |
Rate of compensation increase
|
| | | | 1.9% | | | | | | 2.1% | | |
Pension increase rate
|
| | | | 1.5% | | | | | | 1.5% | | |
| | |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| ||||||
Benefit cost: | | | | | | | | | | | | | |
Discount rate
|
| | | | 1.0% | | | | | | 1.7% | | |
Expected long-term rate of return
|
| | | | 4.4% | | | | | | 5.3% | | |
Rate of compensation increase
|
| | | | 2.1% | | | | | | 2.1% | | |
Pension increase rate
|
| | | | 1.5% | | | | | | 1.5% | | |
|
Equity securities
|
| | | | 41% | | |
|
Debt securities
|
| | | | 41% | | |
|
Real estate
|
| | | | 8% | | |
|
Other
|
| | | | 10% | | |
|
Total
|
| | | | 100% | | |
(in millions)
|
| |
December 31, 2020
|
| |
December 31, 2019
|
| ||||||||||||||||||||||||||||||||||||||||||
| | |
Total
|
| |
Level 1
|
| |
Level 2
|
| |
Level 3
|
| |
Total
|
| |
Level 1
|
| |
Level 2
|
| |
Level 3
|
| ||||||||||||||||||||||||
Cash and cash equivalents(1)
|
| | | $ | 4.8 | | | | | $ | 4.7 | | | | | $ | 0.1 | | | | | $ | — | | | | | $ | 5.8 | | | | | $ | 5.7 | | | | | $ | 0.1 | | | | | $ | — | | |
Fixed income funds(2)
|
| | | | 172.1 | | | | | | 1.0 | | | | | | 171.1 | | | | | | — | | | | | | 142.7 | | | | | | 0.9 | | | | | | 141.8 | | | | | | — | | |
Equity funds(3)
|
| | | | 178.2 | | | | | | 0.1 | | | | | | 178.1 | | | | | | — | | | | | | 156.5 | | | | | | 0.2 | | | | | | 156.3 | | | | | | — | | |
Real estate
|
| | | | 30.3 | | | | | | — | | | | | | 30.3 | | | | | | — | | | | | | 29.0 | | | | | | — | | | | | | 29.0 | | | | | | — | | |
Other(4) | | | | | 45.1 | | | | | | — | | | | | | 2.9 | | | | | | 42.2 | | | | | | 44.1 | | | | | | — | | | | | | 5.1 | | | | | | 39.0 | | |
Total
|
| | | $ | 430.5 | | | | | $ | 5.8 | | | | | $ | 382.5 | | | | | $ | 42.2 | | | | | $ | 378.1 | | | | | $ | 6.8 | | | | | $ | 332.3 | | | | | $ | 39.0 | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| ||||||
Balance at beginning of period
|
| | | $ | 39.0 | | | | | $ | 40.5 | | |
Gains on assets still held at year-end
|
| | | | 1.3 | | | | | | 1.6 | | |
Purchases, sales, issuances and settlements
|
| | | | (1.6) | | | | | | (1.2) | | |
Transfers in and/or out of Level 3
|
| | | | 0.1 | | | | | | (1.1) | | |
Foreign exchange (loss)/gain
|
| | | | 3.4 | | | | | | (0.8) | | |
Balance at end of period
|
| | | $ | 42.2 | | | | | $ | 39.0 | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| ||||||
Change in benefit obligation: | | | | | | | | | | | | | |
Benefit obligation at beginning of period
|
| | | $ | 1.8 | | | | | $ | 1.6 | | |
Service cost
|
| | | | 0.1 | | | | | | 0.1 | | |
Interest cost
|
| | | | 0.1 | | | | | | 0.1 | | |
Actuarial gain
|
| | | | 0.2 | | | | | | — | | |
Benefit obligation at end of period
|
| | | | 2.2 | | | | | | 1.8 | | |
Underfunded status
|
| | | $ | 2.2 | | | | | $ | 1.8 | | |
Amounts recognized in balance sheet: | | | | | | | | | | | | | |
Other non-current liabilities
|
| | | $ | 2.2 | | | | | $ | 1.8 | | |
Net amount recognized
|
| | | $ | 2.2 | | | | | $ | 1.8 | | |
Amounts recognized in accumulated other comprehensive loss: | | | | | | | | | | | | | |
Net actuarial loss
|
| | | $ | 0.2 | | | | | $ | — | | |
Prior service credit
|
| | | | — | | | | | | (0.5) | | |
Total
|
| | | $ | 0.2 | | | | | $ | (0.5) | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |
Line Item on Consolidated
Statement of Operations |
| |||||||||
Components of net periodic benefit
cost and amounts recognized in other comprehensive income (loss): |
| | | | | | | | | | | | | | | | | | | | | |
Net period benefit (credit) cost: | | | | | | | | | | | | | | | | | | | | | | |
Service cost
|
| | | $ | 0.1 | | | | | $ | 0.1 | | | | | $ | 0.1 | | | |
Selling, general and
administrative expenses |
|
Interest cost
|
| | | | 0.1 | | | | | | 0.1 | | | | | | 0.1 | | | |
Other (income) expense, net
|
|
Amortization of prior service cost
|
| | | | — | | | | | | — | | | | | | 0.2 | | | |
Other (income) expense, net
|
|
Net period benefit cost
|
| | | $ | 0.2 | | | | | $ | 0.2 | | | | | $ | 0.4 | | | | | |
| | |
December 31,
2020 |
| |
December 31,
2019 |
| ||||||
Weighted average discount rate to determine benefit obligations
|
| | | | 2.0% | | | | | | 2.6% | | |
Weighted average discount rate to determine net cost
|
| | | | 2.6% | | | | | | 3.6% | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||
U.S.
|
| | | $ | (5.6) | | | | | $ | (119.3) | | | | | $ | (210.4) | | |
Non-U.S.
|
| | | | (23.7) | | | | | | 43.0 | | | | | | (14.3) | | |
Total
|
| | | $ | (29.3) | | | | | $ | (76.3) | | | | | $ | (224.7) | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||
Current | | | | | | | | | | | | | | | | | | | |
U.S.
|
| | | $ | 1.5 | | | | | $ | 2.3 | | | | | $ | 3.4 | | |
Non-U.S.
|
| | | | 36.5 | | | | | | 60.0 | | | | | | 36.3 | | |
Total current expense
|
| | | | 38.0 | | | | | | 62.3 | | | | | | 39.7 | | |
Deferred | | | | | | | | | | | | | | | | | | | |
U.S.
|
| | | | (37.1) | | | | | | (7.0) | | | | | | 14.2 | | |
Non-U.S.
|
| | | | 8.3 | | | | | | (22.6) | | | | | | (39.5) | | |
Total deferred tax benefit
|
| | | | (28.8) | | | | | | (29.6) | | | | | | (25.3) | | |
Income tax provision
|
| | | $ | 9.2 | | | | | $ | 32.7 | | | | | $ | 14.4 | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||
Statutory provision (benefit)
|
| | | $ | (7.3) | | | | | $ | (19.0) | | | | | $ | (56.0) | | |
U.S. state income taxes, net of federal benefit
|
| | | | (9.7) | | | | | | (3.1) | | | | | | (1.8) | | |
Foreign earnings taxed at different rates
|
| | | | 2.8 | | | | | | 2.7 | | | | | | 11.9 | | |
Permanent differences
|
| | | | 0.8 | | | | | | 9.2 | | | | | | 11.2 | | |
Share-based compensation
|
| | | | 16.9 | | | | | | — | | | | | | — | | |
Net change in valuation allowance
|
| | | | (6.5) | | | | | | (12.0) | | | | | | 2.2 | | |
Audit settlements and changes to unrecognized tax benefits
|
| | | | (10.3) | | | | | | 8.1 | | | | | | 17.1 | | |
Deferred tax asset adjustments
|
| | | | 5.2 | | | | | | 11.7 | | | | | | 16.9 | | |
Net change in estimate of prior period tax
|
| | | | (4.6) | | | | | | 2.8 | | | | | | 10.1 | | |
Change in tax laws
|
| | | | 14.5 | | | | | | 23.4 | | | | | | (26.0) | | |
Withholding taxes
|
| | | | 8.8 | | | | | | 5.4 | | | | | | 4.7 | | |
Goodwill impairment
|
| | | | — | | | | | | — | | | | | | 15.7 | | |
Other
|
| | | | (1.4) | | | | | | 3.5 | | | | | | 8.4 | | |
Income Tax Provision
|
| | | $ | 9.2 | | | | | $ | 32.7 | | | | | $ | 14.4 | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| ||||||
Deferred Tax Assets
|
| | | | | | | | | | | | |
Accruals not yet deductible for tax purposes
|
| | | $ | 82.1 | | | | | $ | 56.2 | | |
Net operating loss carryforwards
|
| | | | 82.4 | | | | | | 75.7 | | |
U.S., Non-U.S. and state tax credits
|
| | | | 12.2 | | | | | | 3.2 | | |
Employee benefit items
|
| | | | 46.4 | | | | | | 38.0 | | |
Intercompany losses
|
| | | | 36.0 | | | | | | 35.8 | | |
Intercompany interest
|
| | | | 34.7 | | | | | | 26.0 | | |
Lease liability
|
| | | | 16.0 | | | | | | 20.7 | | |
Other
|
| | | | 8.4 | | | | | | 7.6 | | |
Gross deferred tax assets
|
| | | | 318.2 | | | | | | 263.2 | | |
Less: Valuation allowance
|
| | | | (79.5) | | | | | | (102.1) | | |
Total deferred tax assets
|
| | | | 238.7 | | | | | | 161.1 | | |
Deferred Tax Liabilities
|
| | | | | | | | | | | | |
Depreciation and amortization
|
| | | | (33.7) | | | | | | (26.3) | | |
Unremitted foreign earnings
|
| | | | (1.1) | | | | | | (1.7) | | |
Intangibles
|
| | | | (324.4) | | | | | | (291.4) | | |
Other
|
| | | | — | | | | | | (8.3) | | |
Total deferred tax liabilities
|
| | | | (359.2) | | | | | | (327.7) | | |
Net deferred tax liability
|
| | | $ | (120.5) | | | | | $ | (166.6) | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||
Balance at beginning of period
|
| | | $ | 74.9 | | | | | $ | 74.7 | | | | | $ | 47.7 | | |
Gross increases – tax positions in current period
|
| | | | — | | | | | | 2.2 | | | | | | 48.1 | | |
Decreases from settlements with tax authorities
|
| | | | (13.2) | | | | | | — | | | | | | — | | |
Lapse of statute of limitations
|
| | | | (1.6) | | | | | | (2.0) | | | | | | (21.1) | | |
Balance at end of period
|
| | | $ | 60.1 | | | | | $ | 74.9 | | | | | $ | 74.7 | | |
| | |
Shares
|
| |||
Shares granted during 2018
|
| | | | 7,187,341 | | |
Shares forfeited during 2018
|
| | | | (1,685,689) | | |
Total shares outstanding at December 31, 2018
|
| | | | 5,501,652 | | |
Shares granted during 2019
|
| | | | 2,220,039 | | |
Shares forfeited during 2019
|
| | | | (1,806,372) | | |
Total shares outstanding at December 31, 2019
|
| | | | 5,915,319 | | |
Shares granted during 2020
|
| | | | 2,946,707 | | |
Shares forfeited during 2020
|
| | | | (195,659) | | |
Total shares outstanding at December 31, 2020
|
| | | | 8,666,367 | | |
Shares available to be issued at December 31, 2020
|
| | | | 698,654 | | |
Total shares authorized at December 31, 2020
|
| | | | 9,365,021 | | |
Vested shares at December 31, 2020
|
| | | | 1,682,307 | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||
Restructuring charges
|
| | | $ | 25.6 | | | | | $ | 19.8 | | | | | $ | 24.9 | | |
Other associated restructuring charges
|
| | | | 4.7 | | | | | | 6.5 | | | | | | 6.4 | | |
Total
|
| | | $ | 30.3 | | | | | $ | 26.3 | | | | | $ | 31.3 | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| ||||||
Restructuring accrual at beginning of period
|
| | | $ | 13.4 | | | | | $ | 9.5 | | |
Accrual and accrual adjustments
|
| | | | 25.6 | | | | | | 19.8 | | |
Cash payments during period
|
| | | | (12.5) | | | | | | (16.1) | | |
Foreign currency translation
|
| | | | (0.2) | | | | | | 0.2 | | |
Restructuring accrual at end of period
|
| | | $ | 26.3 | | | | | $ | 13.4 | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||
Institutional
|
| | | $ | 25.6 | | | | | $ | 6.9 | | | | | $ | 7.7 | | |
Food & Beverage
|
| | | | 0.8 | | | | | | 0.8 | | | | | | 4.1 | | |
Corporate/Unallocated
|
| | | | 3.9 | | | | | | 18.6 | | | | | | 19.5 | | |
Total
|
| | | $ | 30.3 | | | | | $ | 26.3 | | | | | $ | 31.3 | | |
(in millions)
|
| |
Unrecognized
Pension Items |
| |
Cumulative
Translation Adjustment |
| |
Cash flow
hedging activities, net of tax |
| |
Accumulated
Other Comprehensive Loss |
| ||||||||||||
Balance December 31, 2018
|
| | | $ | (10.9) | | | | | $ | (84.5) | | | | | $ | 0.6 | | | | | $ | (94.8) | | |
Other comprehensive (loss) income before reclassifications
|
| | | | (2.7) | | | | | | 29.8 | | | | | | 2.7 | | | | | | 29.8 | | |
Amounts reclassified from AOCI to net income
|
| | | | — | | | | | | — | | | | | | 0.5 | | | | | | 0.5 | | |
Net change
|
| | | | (2.7) | | | | | | 29.8 | | | | | | 3.2 | | | | | | 30.3 | | |
Balance December 31, 2019
|
| | | $ | (13.6) | | | | | $ | (54.7) | | | | | $ | 3.8 | | | | | $ | (64.5) | | |
Other comprehensive loss before reclassifications
|
| | | | (28.2) | | | | | | (99.4) | | | | | | (15.0) | | | | | | (142.6) | | |
Amounts reclassified from AOCI to net income
|
| | | | (0.8) | | | | | | — | | | | | | (4.8) | | | | | | (5.6) | | |
Net change
|
| | | | (29.0) | | | | | | (99.4) | | | | | | (19.8) | | | | | | (148.2) | | |
Balance December 31, 2020
|
| | | $ | (42.6) | | | | | $ | (154.1) | | | | | $ | (16.0) | | | | | $ | (212.7) | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| ||||||
Defined benefit plans and other post-employment benefits:
|
| | | | | | | | | | | | |
Prior service costs
|
| | | $ | (1.4) | | | | | $ | — | | |
Actuarial gain (losses)
|
| | | | 0.6 | | | | | | — | | |
Total pre-tax amount
|
| | | | (0.8) | | | | | | — | | |
Tax expense (benefit)
|
| | | | 0.2 | | | | | | — | | |
Net of tax
|
| | | | (0.6) | | | | | | — | | |
Reclassifications from unrealized gains/losses from derivative instruments: | | | | | | | | | | | | | |
Net gains (losses) on cash flow hedging derivatives: | | | | | | | | | | | | | |
Foreign currency forward contracts
|
| | | | 0.5 | | | | | | 0.2 | | |
Interest rate and currency swaps
|
| | | | (5.3) | | | | | | 0.5 | | |
Total pre-tax amount
|
| | | | (4.8) | | | | | | 0.7 | | |
Tax expense (benefit)
|
| | | | 1.0 | | | | | | (0.2) | | |
Net of tax
|
| | | | (3.8) | | | | | | 0.5 | | |
Total reclassifications for the period
|
| | | $ | (4.4) | | | | | $ | 0.5 | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||
Institutional
|
| | | $ | 1,995.3 | | | | | $ | 1,979.1 | | | | | $ | 2,023.9 | | |
Food & Beverage
|
| | | | 633.9 | | | | | | 644.8 | | | | | | 664.2 | | |
Total
|
| | | $ | 2,629.2 | | | | | $ | 2,623.9 | | | | | $ | 2,688.1 | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||
Institutional
|
| | | $ | 340.7 | | | | | $ | 296.4 | | | | | $ | 279.8 | | |
Food & Beverage
|
| | | | 114.4 | | | | | | 101.9 | | | | | | 99.6 | | |
Total
|
| | | $ | 455.1 | | | | | $ | 398.3 | | | | | $ | 379.4 | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||
Adjusted EBITDA for reportable segments
|
| | | $ | 455.1 | | | | | $ | 398.3 | | | | | $ | 379.4 | | |
Corporate costs(14)
|
| | | | (53.9) | | | | | | (58.5) | | | | | | (57.8) | | |
Interest expense
|
| | | | (127.7) | | | | | | (141.0) | | | | | | (135.2) | | |
Interest income
|
| | | | 5.9 | | | | | | 7.5 | | | | | | 5.8 | | |
Amortization expense of intangible assets acquired
|
| | | | (98.2) | | | | | | (93.7) | | | | | | (91.2) | | |
Depreciation expense included in cost of sales
|
| | | | (89.5) | | | | | | (84.4) | | | | | | (73.4) | | |
Depreciation expense included in selling, general and administrative expenses
|
| | | | (7.9) | | | | | | (7.4) | | | | | | (7.6) | | |
Impairment of goodwill(1)
|
| | | | — | | | | | | — | | | | | | (68.5) | | |
Transition and transformation costs and non-recurring costs(2)
|
| | | | (42.5) | | | | | | (52.8) | | | | | | (120.6) | | |
Restructuring costs(3)
|
| | | | (25.6) | | | | | | (19.8) | | | | | | (24.9) | | |
Foreign currency loss related to Argentina subsidiaries(4)
|
| | | | (1.6) | | | | | | (11.4) | | | | | | (3.4) | | |
Adjustment to tax indemnification asset(5)
|
| | | | (2.8) | | | | | | (7.1) | | | | | | (31.0) | | |
Merger and acquisition-related cost(6)
|
| | | | (1.0) | | | | | | (0.3) | | | | | | (7.3) | | |
Acquisition accounting adjustments(7)
|
| | | | — | | | | | | (1.9) | | | | | | (5.3) | | |
Bain Capital management fee(8)
|
| | | | (7.5) | | | | | | (7.5) | | | | | | (7.5) | | |
Non-cash pension and other post-employment benefit plan(9)
|
| | | | 12.9 | | | | | | 8.8 | | | | | | 10.5 | | |
Foreign currency loss (gain)(10)
|
| | | | 25.1 | | | | | | (10.8) | | | | | | 16.3 | | |
Factoring and securitization fees(11)
|
| | | | (4.3) | | | | | | (3.4) | | | | | | (0.6) | | |
Share-based incentive compensation(12)
|
| | | | (67.5) | | | | | | (3.0) | | | | | | — | | |
Gain on sale of business and investments(13)
|
| | | | — | | | | | | 13.0 | | | | | | — | | |
Other items
|
| | | | 1.7 | | | | | | (0.9) | | | | | | (2.4) | | |
Loss before income tax provision
|
| | | $ | (29.3) | | | | | $ | (76.3) | | | | | $ | (224.7) | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| ||||||
Institutional
|
| | | $ | 492.2 | | | | | $ | 481.4 | | |
Food & Beverage
|
| | | | 132.2 | | | | | | 153.9 | | |
Corporate
|
| | | | 3,661.7 | | | | | | 3,578.2 | | |
Total
|
| | | $ | 4,286.1 | | | | | $ | 4,213.5 | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||
North America(2)
|
| | | $ | 784.2 | | | | | $ | 581.1 | | | | | $ | 576.1 | | |
(in millions)
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||
Latin America
|
| | | | 168.7 | | | | | | 203.3 | | | | | | 226.1 | | |
Europe
|
| | | | 1,132.9 | | | | | | 1,189.4 | | | | | | 1,225.3 | | |
Middle East & Africa
|
| | | | 217.2 | | | | | | 255.6 | | | | | | 253.4 | | |
Asia Pacific
|
| | | | 326.2 | | | | | | 394.5 | | | | | | 407.2 | | |
Total
|
| | | $ | 2,629.2 | | | | | $ | 2,623.9 | | | | | $ | 2,688.1 | | |
|
(in millions)
|
| |
December 31,
2020 |
| |
December 31,
2019 |
| ||||||
North America(4)
|
| | | $ | 76.5 | | | | | $ | 70.1 | | |
Latin America
|
| | | | 14.4 | | | | | | 16.3 | | |
Europe
|
| | | | 136.8 | | | | | | 146.2 | | |
Middle East & Africa
|
| | | | 11.6 | | | | | | 13.6 | | |
Asia Pacific
|
| | | | 16.7 | | | | | | 20.7 | | |
Total
|
| | | $ | 256.0 | | | | | $ | 266.9 | | |
Basic and Diluted Loss Per Share:
|
| |
Year Ended
December 31, 2020 |
| |
Year Ended
December 31, 2019 |
| |
Year Ended
December 31, 2018 |
| |||||||||
Net loss attributable to common shareholders
|
| | | $ | (38.5) | | | | | $ | (109.0) | | | | | $ | (239.1) | | |
Weighted average shares outstanding(a)
|
| | | | 195.8 | | | | | | 94.4 | | | | | | 94.0 | | |
Basic and diluted loss per share
|
| | | $ | (0.20) | | | | | $ | (1.15) | | | | | $ | (2.54) | | |
|
SEC registration fee
|
| | | $ | * | | |
|
FINRA filing fee
|
| | | | * | | |
|
Exchange listing fee
|
| | | | * | | |
|
Printing expenses
|
| | | | * | | |
|
Legal fees and expenses
|
| | | | * | | |
|
Accounting fees and expenses
|
| | | | * | | |
|
Transfer agent fees and registrar fees
|
| | | | * | | |
|
Miscellaneous expenses
|
| | | | * | | |
|
Total expenses
|
| | | $ | * | | |
|
Exhibit
Number |
| |
Description
|
|
|
10.14
|
| | | |
|
10.15*
|
| | Tax Receivable Agreement by and among Diversey Holdings, Ltd. and the other persons named therein to be entered into prior to the completion of this offering. | |
|
10.16*
|
| | Form of Indemnification Agreement | |
|
21.1*
|
| | List of subsidiaries | |
|
23.1
|
| | | |
|
23.2
|
| | Consents of Ernst & Young LLP | |
|
24.1
|
| | |
|
Signature
|
| |
Title
|
| |
Date
|
|
|
/s/ PHILIP WIELAND
Philip Wieland
|
| |
Chief Executive Officer and Director
(Principal Executive Officer) |
| |
March 1, 2021
|
|
|
/s/ TODD HERNDON
Todd Herndon
|
| |
Chief Financial Officer
(Principal Financial Officer) |
| |
March 1, 2021
|
|
|
/s/ DAVID DICKERSON
David Dickerson
|
| | VP, Controller and Chief Accounting Officer (Principal Accounting Officer) | | |
March 1, 2021
|
|
|
/s/ ERIC FOSS
Eric Foss
|
| | Director | | |
March 1, 2021
|
|
|
/s/ KEN HANAU
Ken Hanau
|
| | Director | | |
March 1, 2021
|
|
|
/s/ MICHEL PLANTEVIN
Michel Plantevin
|
| | Director | | |
March 1, 2021
|
|
|
/s/ JONATHON PENN
Jonathon Penn
|
| | Director | | |
March 1, 2021
|
|
|
Signature
|
| |
Title
|
| |
Date
|
|
|
/s/ ROBERT FARKAS
Robert Farkas
|
| | Director | | |
March 1, 2021
|
|
|
/s/ SUSAN LEVINE
Susan Levine
|
| | Director | | |
March 1, 2021
|
|
|
/s/ JUAN FIGUEREO
Juan Figuereo
|
| | Director | | |
March 1, 2021
|
|
|
/s/ SELIM BASSOUL
Selim Bassoul
|
| | Director | | |
March 1, 2021
|
|
Exhibit 4.1
|
EXECUTION VERSION DIAMOND (BC) B.V., as Issuer the GUARANTORS party hereto from time to time, WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee and CITIBANK, N.A., LONDON BRANCH, as Paying Agent, Transfer Agent, Registrar and Authentication agent €450,000,000 5.625% Senior Notes due 2025 INDENTURE Dated as of August 8, 2017 |
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TABLE OF CONTENTS Page ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE SECTION 1.1 SECTION 1.2 SECTION 1.3 SECTION 1.4 SECTION 1.5 Definitions 1 Other Definitions 46 [Reserved]47 Rules of Construction 47 Limited Condition Transactions..... 48 ARTICLE II THE NOTES SECTION 2.1 SECTION 2.2 SECTION 2.3 SECTION 2.4 SECTION 2.5 SECTION 2.6 SECTION 2.7 SECTION 2.8 SECTION 2.9 SECTION 2.10 SECTION 2.11 SECTION 2.12 SECTION 2.13 SECTION 2.14 SECTION 2.15 SECTION 2.16 SECTION 2.17 SECTION 2.18 Form, Dating and Terms....... 48 Execution and Authentication....... 53 Registrar, Transfer Agent and Paying Agent... 54 Paying Agent to Hold Money...... 55 Holder Lists... 55 Transfer and Exchange....... 55 [Reserved]..... 58 [Reserved]..... 58 [Reserved]..... 58 [Reserved]..... 58 Mutilated, Destroyed, Lost or Stolen Notes.... 58 Outstanding Notes.. 59 Temporary Notes.. 60 Cancellation... 60 Payment of Interest; Defaulted Interest.... 60 ISIN and Common Code Numbers..... 62 Agency..... 62 Illegality Disclaimer.. 62 ARTICLE III COVENANTS SECTION 3.1 SECTION 3.2 SECTION 3.3 SECTION 3.4 SECTION 3.5 SECTION 3.6 SECTION 3.7 SECTION 3.8 SECTION 3.9 SECTION 3.10 SECTION 3.11 SECTION 3.12 SECTION 3.13 SECTION 3.14 SECTION 3.15 Payment of Notes... 63 Limitation on Indebtedness, Disqualified Stock and Preferred Stock.... 63 Limitation on Restricted Payments 69 Limitation on Restrictions on Distributions from Restricted Subsidiaries 76 Limitation on Sales of Assets and Subsidiary Stock78 Limitation on Liens 82 Limitation on Guarantees82 Limitation on Affiliate Transactions83 Change of Control 86 Reports..... 87 Maintenance of Office or Agency..... 90 Corporate Existence... 90 Payment of Taxes.. 90 [Reserved]..... 90 Compliance Certificate....... 90 -i- |
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Page SECTION 3.16 SECTION 3.17 SECTION 3.18 SECTION 3.19 SECTION 3.20 SECTION 3.21 SECTION 3.22 Further Instruments and Acts....... 90 Maintenance of Listing....... 91 Statement by Officers as to Default..... 91 Suspension of Certain Covenants on Achievement of Investment Grade Status.. 91 Designation of Restricted and Unrestricted Subsidiaries.. 92 Payment of Additional Amounts..... 92 Limitation on Use of Proceeds....... 94 ARTICLE IV SUCCESSOR ISSUER; SUCCESSOR PERSON SECTION 4.1 Merger and Consolidation....... 94 ARTICLE V REDEMPTION OF SECURITIES SECTION 5.1 SECTION 5.2 SECTION 5.3 SECTION 5.4 SECTION 5.5 SECTION 5.6 SECTION 5.7 SECTION 5.8 SECTION 5.9 SECTION 5.10 Notices to Trustee.. 96 Selection of Notes to Be Redeemed or Purchased.. 96 Notice of Optional Redemption...... 97 Effect of Notice of Redemption....... 98 Deposit of Redemption or Purchase Price.... 98 Notes Redeemed or Purchased in Part.... 98 Optional Redemption... 99 Mandatory Redemption....... 99 Special Mandatory Redemption...... 100 Redemption Upon a Tax Event...... 100 ARTICLE VI DEFAULTS AND REMEDIES SECTION 6.1 SECTION 6.2 SECTION 6.3 SECTION 6.4 SECTION 6.5 SECTION 6.6 SECTION 6.7 SECTION 6.8 SECTION 6.9 SECTION 6.10 SECTION 6.11 Events of Default.. 101 Acceleration.... 103 Other Remedies.. 103 Waiver of Past Defaults....... 103 Control by Majority.. 104 Limitation on Suits.. 104 Rights of Holders to Receive Payment.... 104 Collection Suit by Trustee...... 105 Trustee May File Proofs of Claim..... 105 Priorities.... 105 Undertaking for Costs.. 105 ARTICLE VII TRUSTEE SECTION 7.1 SECTION 7.2 SECTION 7.3 SECTION 7.4 SECTION 7.5 SECTION 7.6 Duties of Trustee.. 106 Rights of Trustee.. 107 Individual Rights of Trustee...... 108 Trustee’s Disclaimer....... 108 Notice of Defaults... 108 [Reserved].... 108 -ii- |
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Page SECTION 7.7 SECTION 7.8 SECTION 7.9 SECTION 7.10 SECTION 7.11 SECTION 7.12 SECTION 7.13 Compensation and Indemnity...... 108 Replacement of Trustee....... 109 Successor Trustee by Merger....... 110 Eligibility; Disqualification...... 110 Preferential Collection of Claims Against the Issuer. 110 Trustee’s Application for Instruction from the Issuer.. 110 Escrow Authorization....... 110 ARTICLE VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE SECTION 8.1 SECTION 8.2 SECTION 8.3 SECTION 8.4 SECTION 8.5 Option to Effect Legal Defeasance or Covenant Defeasance; Defeasance... 111 Legal Defeasance and Discharge..... 111 Covenant Defeasance.. 111 Conditions to Legal or Covenant Defeasance.... 112 Deposited Money and European Government Obligations to be Held in Trust; Other Miscellaneous Provisions..... 113 Repayment to the Issuer.. 113 Reinstatement... 114 SECTION 8.6 SECTION 8.7 ARTICLE IX AMENDMENTS SECTION 9.1 SECTION 9.2 SECTION 9.3 SECTION 9.4 SECTION 9.5 SECTION 9.6 Without Consent of Holders...... 114 With Consent of Holders....... 115 [Reserved].... 116 Revocation and Effect of Consents and Waivers.. 116 Notation on or Exchange of Notes...... 117 Trustee to Sign Amendments....... 117 ARTICLE X GUARANTEE SECTION 10.1 SECTION 10.2 SECTION 10.3 SECTION 10.4 SECTION 10.5 Guarantee.... 117 Limitation on Liability; Termination, Release and Discharge...... 119 Right of Contribution.. 119 No Subrogation.. 119 Benefits Acknowledged....... 120 ARTICLE XI SATISFACTION AND DISCHARGE SECTION 11.1 SECTION 11.2 Satisfaction and Discharge...... 120 Application of Trust Money...... 121 -iii- |
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Page ARTICLE XII [RESERVED] ARTICLE XIII MISCELLANEOUS SECTION 13.1 SECTION 13.2 SECTION 13.3 SECTION 13.4 SECTION 13.5 SECTION 13.6 SECTION 13.7 SECTION 13.8 SECTION 13.9 SECTION 13.10 SECTION 13.11 SECTION 13.12 SECTION 13.13 SECTION 13.14 SECTION 13.15 SECTION 13.16 SECTION 13.17 SECTION 13.18 SECTION 13.19 SECTION 13.20 SECTION 13.21 SECTION 13.22 [Reserved].... 121 Notices.... 121 Communication by Holders with other Holders.. 123 Certificate and Opinion as to Conditions Precedent. 123 Statements Required in Certificate or Opinion.. 123 When Notes Disregarded....... 124 Rules by Trustee, Paying Agent, Transfer Agent and Registrar..... 124 Legal Holidays.... 124 Governing Law.. 124 Agent for Service; Submission to Jurisdiction; Waiver of Immunities.... 124 Waivers of Jury Trial....... 125 USA PATRIOT Act... 125 No Recourse Against Others...... 125 Successors.... 125 Multiple Originals... 125 [Reserved].... 125 Table of Contents; Headings...... 126 Force Majeure.... 126 Severability... 126 Currency Indemnity and Calculation of Euro-Denominated Restrictions... 126 Prescription... 126 Acknowledgement and Consent to Bail-In of EEA Financial Institutions... 126 EXHIBIT A EXHIBIT B EXHIBIT C EXHIBIT D Form of Global Restricted Note Form of Escrow Release Date Supplemental Indenture Form of Certificate to be Delivered Upon Termination of Restricted Period Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regulation S -iv- |
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INDENTURE dated as of August 8, 2017, among DIAMOND (BC) B.V., a private limited liability com-pany (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands (the “Issuer”), the Guarantors party hereto from time to time, WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, as trustee (in such capacity, the “Trustee”) and CITIBANK N.A., LONDON BRANCH, as Paying Agent, Transfer Agent Registrar and Authentication Agent. W I T N E S S E T H: WHEREAS, the Issuer has duly authorized the execution and delivery of this Indenture to provide for the issuance of (i) its €450,000,000 5.625% Senior Notes due 2025 (the “Initial Notes”), each as issued on the date hereof and (ii) any additional notes (the “Additional Notes,” and together with any Initial Notes, the “Notes”); WHEREAS, upon consummation of the Acquisition (as defined herein), and upon execution and delivery of the Escrow Release Date Supplemental Indenture (as defined herein) by the Initial Guarantors and the Trustee, the obligations of the Issuer with respect to the due and punctual payment of the principal of, premium, if any, and interest on all the Notes and the performance and observation of each covenant and agreement under this Indenture on the part of the Issuer to be performed or observed will be unconditionally and irrevocably guaranteed by the Ini-tial Guarantors; and WHEREAS, all things necessary (i) to make the Notes, when executed and duly issued by the Issuer and authenticated and delivered hereunder, the valid obligations of the Issuer and (ii) to make this Indenture a valid agreement of the Issuer have been done. NOW, THEREFORE, in consideration of the premises and the purchase of the Notes by the Holders there-of, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders, as follows: ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE SECTION 1.1 Definitions. “Acquired Indebtedness” means, with respect to any specified Person, (i) Indebtedness of any other Person existing at the time such other Person is merged, consolidated, or amalgamated with or into or became a Restricted Subsidiary of such specified Person, including Indebtedness incurred in connection with, or in contemplation of, such other Person merging, consolidating, or amalgamating with or into or becoming a Restricted Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person. “Acquisition” means the transactions contemplated by the Purchase Agreement. “Acquisition Completion Certificate” has the meaning set forth in the Escrow Agreement. “Additional Assets” means: (1) any property or assets (other than Capital Stock) used or to be used by the Issuer or a Re-stricted Subsidiary or otherwise useful in a Similar Business or otherwise intended to replace any property or assets that are the subject of an Asset Disposition; (2) the Capital Stock of a Person that is engaged in a Similar Business and becomes a Re-stricted Subsidiary as a result of the acquisition of such Capital Stock by the Issuer or a Restricted Subsidi-ary; or (3) ed Subsidiary. Capital Stock constituting a minority interest in any Person that at such time is a Restrict- |
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“Additional Notes” has the meaning ascribed to it in the second introductory paragraph of this 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, “con-trol” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing. “Agents” means the Paying Agent, the Registrar, the Transfer Agent and the Authentication Agent. “Agreed Security Principles” means the agreed security principles appended to the agreement governing any Credit Facility. “AHYDO Payment” means any mandatory prepayment or redemption pursuant to the terms of any Indebt-edness that is intended or designed to cause such Indebtedness not to be treated as an “applicable high yield discount obligation” within the meaning of Code Section 163(i). “Applicable Premium” means, as determined by the Issuer, with respect to any Note on any redemption date, the greater of: (1) 1.0% of the outstanding principal amount of such Note and (2) the excess (to the extent positive) of: (a) the present value at such redemption date of (i) the redemption price of such Note at August 15, 2020 (such redemption price (expressed in percentage of principal amount) be-ing set forth in the table in Section 5.7(d)), plus (ii) all required remaining scheduled interest pay-ments due on such Note to and excluding such date set forth in clause (i) (excluding accrued but unpaid interest to, but excluding, the redemption date), computed using a discount rate equal to the Bund Rate at such redemption date plus 50 basis points; over (b) the outstanding principal amount of such Note on such redemption date; in each case, as calculated by the Issuer or on behalf of the Issuer by such Person as the Issuer shall desig-nate. The Trustee shall not have any duty to calculate or verify such calculations. “Applicable Procedures” means, with respect to any selection, transfer or exchange of or for beneficial in-terests in any Global Note, the rules and procedures of Euroclear and Clearstream that apply to such selection, trans-fer or exchange. “Asset Disposition” means: (a) the sale, conveyance, transfer or other disposition, whether in a single transaction or a se-ries of related transactions, of property or assets (including by way of a Sale and Leaseback Transaction) of the Issuer or any of its Restricted Subsidiaries (in each case other than Capital Stock of the Issuer) (each re-ferred to in this definition as a “disposition”); or (b) the issuance or sale of Capital Stock of any Restricted Subsidiary (other than Preferred Stock or Disqualified Stock of Restricted Subsidiaries issued in compliance with Section 3.2 or directors’ qualifying shares and shares issued to foreign nationals as required under applicable law), whether in a sin-gle transaction or a series of related transactions; -2- |
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in each case under the foregoing clauses (a) and (b), other than: (1) a disposition by a Restricted Subsidiary to the Issuer or by the Issuer or a Restricted Sub-sidiary to a Restricted Subsidiary, including any such disposition in the form of intellectual property or oth-er general intangibles pursuant to any Intercompany License Agreement; (2) a disposition of cash, Cash Equivalents or Investment Grade Securities; (3) a disposition of goods, inventory or other assets in the ordinary course of business or con-sistent with past practice (including allowing any registrations or any applications for registrations of any intellectual property rights to lapse or go abandoned in the ordinary course of business or consistent with past practice); (4) a disposition of obsolete, worn-out, uneconomic, damaged or surplus property, equipment or other assets or property, equipment or other assets (including any leasehold property interests) that are no longer economically practical or commercially desirable to maintain or used or useful in the business of the Issuer and its Restricted Subsidiaries, in each case, whether now or hereafter owned or leased or ac-quired in connection with an acquisition; (5) transactions permitted under Section 4.1 or a transaction that constitutes a Change of Control; (6) an issuance of Capital Stock by a Restricted Subsidiary to the Issuer or to another Re-stricted Subsidiary or as part of or pursuant to an equity incentive or compensation plan approved by the Board of Directors of the Issuer; (7) any dispositions of assets or any issuance or sale of Capital Stock of any Restricted Sub-sidiary in a single transaction or series of related transactions with an aggregate fair market value of less than the greater of (x) $40.0 million and (y) 10.0% of Consolidated EBITDA (calculated on a Pro Forma Basis) for the most recently ended Test Period at the time of such disposition or issuance or sale, as appli-cable; (8) any Restricted Payment that is permitted to be made, and is made, under Section 3.3 and the making of any Permitted Investment (other than pursuant to clause (8) of the definition of “Permitted Investments”) or, solely for purposes of Section 3.5(b), asset sales, in respect of which (and only to the ex-tent that) the proceeds of which are used to make such Restricted Payments or Permitted Investments; (9) dispositions, including the incurrence of Liens that would otherwise constitute a disposi-tion, in connection with the incurrence of Permitted Liens; (10) dispositions of receivables (including write-offs, discounts and compromises) in connec-tion with the compromise, settlement or collection thereof in the ordinary course of business or consistent with past practice or in bankruptcy or similar proceedings and exclusive of factoring or similar arrange-ments; (11) conveyances, sales, transfers, licenses or sublicenses or other dispositions of intellectual property, software or other general intangibles and licenses, sub-licenses, leases or subleases of other prop-erty, in each case, in the ordinary course of business or consistent with past practice; (12) foreclosure, condemnation, expropriation or any similar action with respect to any prop-erty or other assets or casualty or insured damage to assets; (13) the sale or discount (with or without recourse, and on customary or commercially reason-able terms and for credit management purposes) of accounts receivable or notes receivable arising in the -3- |
|
ordinary course of business or consistent with past practice, or the conversion or exchange of accounts re-ceivable for notes receivable; (14) any issuance, disposition or pledge of Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary; (15) any disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or to a Person (other than the Issuer or a Restricted Subsidiary) from whom such Re-stricted Subsidiary was acquired, or from whom such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition; (16) (i) dispositions of property to the extent that such property is exchanged for credit against the purchase price of similar replacement property that is purchased within 270 days thereof, (ii) dispositions of property to the extent that the proceeds of such disposition are promptly applied to the purchase price of such replacement property (which replacement property is purchased within 270 days thereof) and (iii) to the extent allowable under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business; (17) any disposition of Securitization Assets or Receivables Assets, or participations therein, in connection with any Qualified Securitization Financing or Receivables Facility; (18) any financing transaction with respect to property constructed, acquired, replaced, re-paired or improved (including any reconstruction, refurbishment, renovation and/or development of real property) by the Issuer or any Restricted Subsidiary after the Escrow Release Date, including Sale and Leaseback Transactions and asset securitizations, permitted by this Indenture; (19) dispositions of Investments in joint ventures or similar entities to the extent required by, or made pursuant to, customary buy/sell arrangements between the parties to such joint venture set forth in joint venture arrangements and similar binding arrangements; (20) (i) the termination or otherwise collapsing of its cost sharing agreements with the Issuer or any Subsidiary and settlement of any crossing payments in connection therewith, (ii) the conversion of any intercompany Indebtedness to Capital Stock or any Capital Stock to intercompany Indebtedness, (iii) the transfer of any intercompany Indebtedness to the Issuer or any Restricted Subsidiary, (iv) the set-tlement, discount, write off, forgiveness or cancellation of any intercompany Indebtedness or other obliga-tion owing by the Issuer or any Restricted Subsidiary, (v) the settlement, discount, write off, forgiveness or cancellation of any Indebtedness owing by any present or former consultants, managers, directors, officers or employees of the Issuer, any Parent Entity, or any Subsidiary thereof or any of their successors or as-signs or (vi) the surrender or waiver of contractual rights and settlement, release, surrender or waiver of contractual, tort, litigation or other claims of any kind; (21) the unwinding of any obligations in respect of Cash Management Services, Bank Prod-ucts or any Hedging Obligations pursuant to their respective terms; (22) any sales, transfers, leases and other dispositions made in order to effect the Transactions or any Permitted Reorganization; (23) samples provided to customers or prospective customers; (24) other dispositions (including those of the type otherwise described herein) made after the Escrow Release Date of assets with a fair market value not to exceed $50.0 million in any fiscal year of the Issuer; -4- |
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(25) any disposition in connection with Permitted Sale and Leasebacks in an aggregate princi-pal amount not to exceed the greater of (x) $80.0 million and (y) 20.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at any time; (26) any disposition of non-core assets acquired in connection with any Permitted Acquisition or Investment permitted under this Indenture, or disposition required to obtain antitrust approval of a Per-mitted Acquisition or other Investment permitted under this Indenture; and (27) any swap of assets in exchange for services or other assets in the ordinary course of busi-ness for comparable or greater fair market value or usefulness to the business of the Issuer and the Restrict-ed Subsidiaries, taken as a whole, as determined in good faith by the Issuer. “Authentication Agent” means an institution, reasonably acceptable to the Trustee, appointed by the Issuer to authenticate the Notes as set forth in this Indenture. “Bain Capital Fund” means Bain Capital Fund XI, L.P., together with BCPE Diamond Cayman Holding Limited. “Bank Products” means, collectively, any services or facilities (other than Cash Management Services or any borrowing under the Credit Agreement) on account of (i) credit and debit cards, including, without limitation, commercial credit cards and (ii) purchase cards and other card payment products, in each case provided by a lender under the Credit Agreement. “Bankruptcy Law” means Title 11 of the United States Code or similar federal, state or foreign law for the relief of debtors. “Beneficial Owner” means a Person who has or shares the right, directly or indirectly, through any contract arrangement, understanding, relationship, or otherwise to vote or dispose of a security. The terms “Beneficial Own-ership” and “Beneficially Owned” shall have a corresponding meaning. “Board of Directors” means (1) with respect to the Issuer or any corporation, the board of directors or man-agers, as applicable, of the Issuer or the corporation, or any duly authorized committee thereof; (2) with respect to any partnership, the board of directors or other governing body of the general partner of the partnership or any duly authorized committee thereof; (3) with respect to a limited liability company, the managing member or members or any duly authorized controlling committee thereof; and (4) with respect to any other Person, the board or any duly authorized committee of such Person serving a similar function. Whenever any provision requires any action or determination to be made by, or any approval of, a Board of Directors, such action, determination or approval shall be deemed to have been taken or made if approved by a majority of the directors on any such Board of Directors (whether or not such action or approval is taken as part of a formal board meeting or as a formal board approval). “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of a Person to have been duly adopted by the Board of Directors of such Person and to be in full force and effect of the date of such certification, and delivered to the Trustee. “Bund Rate” means, with respect to any relevant date, the rate per annum equal to the equivalent yield to maturity as of such date of the Comparable German Bund Issue, assuming a price for the Comparable German Bund Issue (expressed as a percentage of its principal amount) equal to the Comparable German Bund Price for such rele-vant date, where: (1) “Comparable German Bund Issue” means the German Bundesanleihe security selected by any Reference German Bund Dealer as having a fixed maturity most nearly equal to the period from such redemption date to August 15, 2020, and that would be utilized at the time of selection and in accordance with customary financial practice, in pricing new issues of euro-denominated corporate debt securities in a principal amount approximately equal to the then outstanding principal amount of the Notes and of a ma--5- |
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turity most nearly equal to August 15, 2020; provided, however, that, if the period from such redemption date to August 15, 2020, is less than one year, a fixed maturity of one year shall be used; (2) “Comparable German Bund Price” means, with respect to any relevant date, the average of all Reference German Bund Dealer Quotations for such date (which, in any event, must include at least two such quotations), after excluding the highest and lowest such Reference German Bund Dealer Quota-tions, or if the Issuer obtains fewer than four such Reference German Bund Dealer Quotations, the average of all such quotations; (3) “Reference German Bund Dealer” means any dealer of German Bundesanleihe securities appointed by the Issuer in good faith; and (4) “Reference German Bund Dealer Quotations” means, with respect to each Reference German Bund Dealer and any relevant date, the average as determined by the Issuer of the bid and offered prices for the Comparable German Bund Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Issuer by such Reference German Bund Dealer at 3:30 p.m. Frankfurt, Germany, time on the third Business Day preceding the relevant date. provided, however, that in no case for any purposes under this Indenture shall the Bund Rate be less than 0.00%. “Business Day” means each day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York, United States, London, United Kingdom, Amsterdam, the Netherlands or in the place of payment are authorized or required by law to close. “Capital Lease” means, as applied to any Person, any lease of any property (whether real, personal, or mixed) by that Person as lessee that, in conformity with GAAP, is, or is required to be, accounted for as a capital lease on the balance sheet of that Person; provided that all leases of any Person that are or would be characterized as operating leases in accordance with GAAP immediately prior to the Issue Date (whether or not such operating leases were in effect on such date) shall continue to be accounted for as operating leases (and not as Capital Leases) for purposes of this Indenture regardless of any change in GAAP following the Issue Date that would otherwise require such leases to be recharacterized as Capital Leases. “Capital Stock” of any Person means any and all shares of, rights to purchase, warrants, options or deposi-tary receipts for, or other equivalents of or partnership or other interests in (however designated), equity of such Per-son, including any Preferred Stock, but excluding any debt securities convertible into such equity. “Capitalized Lease Obligations” means, at the time any determination thereof is to be made, the amount of the liability in respect of a Capital Lease that would at such time be required to be capitalized and reflected as a lia-bility on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP; provided that all ob-ligations of any Person that are or would be characterized as operating lease obligations in accordance with GAAP immediately prior to the Issue Date (whether or not such operating lease obligations were in effect on such date) shall continue to be accounted for as operating lease obligations (and not as Capitalized Lease Obligations) for pur-poses of this Indenture regardless of any change in GAAP following the Issue Date that would otherwise require such obligations to be recharacterized as Capitalized Lease Obligations. “Cash Equivalents” means: (1) (a) Dollars, Euros, Pounds Sterling, Canadian Dollars, or any national currency of any Participating Member State in the European Union, (b) Japanese Yen, (c) Australian Dollars or (d) local currencies held from time to time in the ordinary course of business; (2) securities issued or directly and fully and unconditionally Guaranteed or insured by the United States government or any country that is a member state of the European Union or any agency or in-strumentality thereof the securities of which are unconditionally Guaranteed as a full faith and credit obli-gation of such government with maturities of 24 months or less from the date of acquisition; -6- |
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(3) certificates of deposit, time deposits, and eurodollar time deposits with maturities of one year or less from the date of acquisition, demand deposits, bankers’ acceptances with maturities not exceed-ing one year, and overnight bank deposits, in each case with any commercial bank having capital and sur-plus of not less than $250,000,000 in the case of U.S. banks and $100,000,000 (or the equivalent thereof as of the date of determination) in the case of foreign banks; (4) repurchase obligations for underlying securities of the types described in clauses (2) and (3) above and clause (8) below entered into with any Person referenced in clause (3) above; (5) commercial paper rated at least P-2 (or the equivalent thereof) by Moody’s or at least A-2 (or the equivalent thereof) by S&P and in each case maturing within 24 months after the date of creation thereof; (6) marketable short-term money market and similar securities having a rating of at least P-2 or A-2 (or, in either case, the equivalent thereof) from either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another national-ly recognized ratings agency) and in each case maturing within 24 months after the date of creation or ac-quisition thereof; (7) readily marketable direct obligations issued by any state, commonwealth, or territory of the United States or any political subdivision or taxing authority thereof having one of the two highest rat-ing categories obtainable from either Moody’s or S&P with maturities of 24 months or less from the date of acquisition; (8) Indebtedness or preferred Capital Stock issued by Persons with a rating of “A” (or the equivalent thereof) or higher from S&P or “A2” (or the equivalent thereof) or higher from Moody’s with maturities of 24 months or less from the date of acquisition; (9) solely with respect to any Foreign Subsidiary: (a) obligations of the national government of the country in which such Foreign Subsidiary maintains its chief executive office and principal place of business, provided such country is a member of the Organization for Economic Cooperation and Develop-ment, in each case maturing within one year after the date of investment therein, (b) certificates of deposit of, bankers’ acceptances of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in which such Foreign Subsidiary maintains its chief executive office and principal place of business provided such country is a member of the Organization for Economic Coopera-tion and Development, and whose short-term commercial paper rating from S&P is at least “A-2” or the equivalent thereof or from Moody’s is at least “P-2” or the equivalent thereof (any such bank being an “Approved Foreign Bank”), and in each case with maturities of not more than 24 months from the date of acquisition, and (c) the equivalent of demand deposit accounts which are maintained with an Approved Foreign Bank, in each case, customarily used by entities for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by such Foreign Subsidiary organized in such jurisdiction; (10) in the case of investments by any Foreign Subsidiary or investments made in a country outside the United States, Cash Equivalents shall also include investments of the type and maturity de-scribed in clauses (1) through (8) above of foreign obligors, which investments have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies; and (11) investment funds investing all or substantially all of their assets in securities of the types described in clauses (1) through (8) above. Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than set forth in clause (1) above; provided that such amounts are converted into currencies listed in clause (1) with-in 10 Business Days following receipt of such amounts. -7- |
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“Cash Management Services” means any one or more of the following types of services or facilities: (a) ACH transactions, (b) treasury, depository, credit or debit card, purchasing card, stored value card, electronic fund transfer services and/or cash management services, including, controlled disbursement services, depository, overdraft and electronic funds transfer services, (c) foreign exchange facilities, (d) deposit and other accounts, and (e) merchant services (other than those constituting a line of credit). For the avoidance of doubt, Cash Management Services do not include Hedging Obligations. “Change of Control” means: (1) the Issuer becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition by (A) any Person (other than any Permitted Holder) or (B) Persons (other than any Permitted Holders) that are together (1) a group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), or (2) acting, for the purpose of acquiring, holding or disposing of securities (within the mean-ing of Rule 13d-5(b)(1) under the Exchange Act), as a group, in a single transaction or in a related series of transactions, by way of merger, amalgamation, consolidation or other business combination or purchase of Beneficial Ownership of 50% or more of the total voting power of the Voting Stock of the Issuer directly or indirectly through any of its direct or indirect parents holding directly or indirectly 100% of the voting power of the Voting Stock of the Issuer; provided that (x) so long as the Issuer is a Subsidiary of any Parent Entity, no Person shall be deemed to be or become a beneficial owner of more than 50% of the total voting power of the Voting Stock of the Issuer unless such Person shall be or become a beneficial owner of more than 50% of the total voting power of the Voting Stock of such Parent Entity and (y) any Voting Stock of which any Permitted Holder is the Beneficial Owner shall not in any case be included in the calculation of any Voting Stock of which such Person is the Beneficial Owner; or (2) the sale, lease, transfer, conveyance or other disposition in one or a series of related transactions (other than by way of merger, consolidation or amalgamation or other business combination transaction) of all or substantially all of the assets of the Issuer and its Restricted Subsidiaries, taken as a whole, to any Person other than the Issuer or a Restricted Subsidiary or one or more Permitted Holders, in connection with which such Person is or becomes the Beneficial Owner, directly or indirectly of more than 50% of the total voting power of the Voting Stock of the transferee Person in such sale or transfer of assets, as the case may be; provided that (x) so long as such surviving or transferee Person is a Subsidiary of a Permitted Parent, no Person shall be deemed to be or become a beneficial owner of more than 50% of the total voting power of the Voting Stock of such transferee Person unless such Person shall be or become a beneficial owner of more than 50% of the total voting power of the Voting Stock of such Permitted Parent and (y) any Voting Stock of which any Permitted Holder is the beneficial owner shall not in any case be in-cluded in the calculation of any Voting Stock of which any such Person first referred to above in this clause (2) is the beneficial owner. “Clearstream” means Clearstream Banking, société anonyme or any successor thereof. “Code” means the United States Internal Revenue Code of 1986, as amended. “Common Depositary” means a depositary common to Euroclear and Clearstream, being initially Citibank Europe plc, until a successor Common Depositary, if any, shall have become such pursuant to this Indenture, and thereafter Common Depositary shall mean or include such Person who is then a Common Depositary hereunder. “Consolidated Coverage Ratio” means, with respect to any Person on any determination date, the ratio of Consolidated EBITDA of such Person and its Restricted Subsidiaries for the applicable Test Period to the Consoli-dated Interest Expense of such Person and its Restricted Subsidiaries for such Test Period. (1) In the event that the Issuer or any Restricted Subsidiary Incurs, assumes, Guarantees, re-deems, repays, defeases, retires or extinguishes any Indebtedness (in each case, other than Indebtedness in-curred or repaid under any revolving credit facility or line of credit in the ordinary course of business for working capital purposes) or issues or redeems Disqualified Stock, in each case, (i) during the applicable Test Period for which the Consolidated Coverage Ratio or any other financial ratio or test under this Inden--8- |
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ture is being calculated or (ii) subsequent to the end of such Test Period and prior to or simultaneously with the event for which the calculation of the Consolidated Coverage Ratio or such other financial ratio or test under this Indenture is made (the “Ratio Calculation Date”), then the Consolidated Coverage Ratio shall be calculated giving pro forma effect to such Incurrence, assumption, Guarantee, redemption, repayment, de-feasance, retirement or extinguishment of Indebtedness, or such issuance or redemption of Disqualified Stock (including pro forma application of the net proceeds therefrom), as the case may be, as if the same had occurred at the beginning of the applicable Test Period (and for the purposes of the numerator of each of the Consolidated Total Net Leverage Ratio and the Consolidated Secured Net Leverage Ratio, as if the same had occurred on the last day of the applicable Test Period). The Issuer may elect to treat all or any portion of the commitment under any Indebtedness which is to be Incurred as being Incurred as of the Ratio Calculation Date and any subsequent Incurrence of Indebtedness under such commitment that was so treat-ed shall not be deemed, for purposes of this calculation, to be an Incurrence of additional Indebtedness. (2) For purposes of making the computation referred to above, any Specified Transaction that has been made by the Issuer or any of its Restricted Subsidiaries during the applicable Test Period or subsequent to the end of such Test Period and prior to or simultaneously with the Ratio Calculation Date shall be calculated on a pro forma basis assuming that all Specified Transactions (and the change in any as-sociated interest coverage obligations, change in Consolidated EBITDA and the component financial defi-nitions used therein or change in Total Assets, as applicable, attributable to any Specified Transaction) had occurred on the first day of such Test Period. If since the beginning of any applicable Test Period any Per-son that subsequently became a Restricted Subsidiary or was merged with or into the Issuer or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Investment, acquisi-tion, disposition, merger, consolidation, amalgamation, or disposed or discontinued operation that would have required adjustment pursuant to this definition, then the Consolidated Coverage Ratio or any other fi-nancial ratio or test being calculated pursuant to this Indenture shall be calculated giving pro forma effect thereto for such Test Period as if such Investment, acquisition, disposition, merger, consolidation, amal-gamation, or disposed or discontinued operation had occurred at the beginning of such Test Period. (3) For purposes of this definition and the definitions of “Consolidated Total Net Leverage Ratio” and “Consolidated Secured Net Leverage Ratio,” whenever pro forma effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a responsible financial or chief accounting officer of the Issuer and may include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions, restructuring charges and expenses and synergies resulting from or relating to such Specified Transaction projected by the Issuer in good faith to be realized as a result of actions taken or with respect to which substantial steps have been taken or are expected to be taken (calcu-lated on a pro forma basis as though such cost savings, operating expense reductions, restructuring charges and expenses and synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions, restructuring charges and expenses and synergies were realized during the entirety of such period and such that “run-rate” means the full recurring benefit for a period that is associat-ed with any action taken, for which substantial steps have been taken or are expected to be taken (including any savings expected to result from the elimination of a public target’s compliance costs with public com-pany requirements) net of the amount of actual benefits realized during such period from such actions), and any such adjustments shall be included in the initial pro forma calculations of such financial ratios or tests relating to such Specified Transaction (and in respect of any subsequent pro forma calculations in which such Specified Transaction or cost savings, operating expense reductions, restructuring charges and ex-penses and synergies are given pro forma effect) and during any applicable subsequent Test Period for any subsequent calculation of such financial ratios and tests; provided that (A) such amounts are reasonably identifiable and factually supportable in the good faith judgment of the Issuer, (B) such actions are taken or substantial steps with respect to such actions are or are expected to be taken no later than 24 months after the date of such Specified Transaction, and (C) no amounts shall be added to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA (or any other components thereof), whether through a pro forma adjustment or otherwise, with respect to such period. (4) If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Ratio Calculation Date had been the applicable rate for the entire applicable Test Period (taking into account any Hedging Obliga--9- |
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tions applicable to such Indebtedness). Interest on a Capitalized Lease Obligation shall be deemed to ac-crue at an interest rate reasonably determined by a responsible financial or accounting officer of the Issuer to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. Interest on Indebtedness on any revolving Credit Facility shall be computed based on the average daily balance of such Indebtedness during the Test Period except as set forth in the second paragraph of this definition. In-terest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen as the Issuer may des-ignate. “Consolidated Depreciation and Amortization Expense” means, with respect to any Person for any period, the total amount of depreciation and amortization expense, including the depreciation of customer equipment (relat-ed to dosing and dispensing equipment) and the amortization of contractual prebates, deferred financing fees or costs, debt issuance costs, commissions, fees, and expenses, capitalized expenditures relating to software, license and intellectual property payments, any lease related assets recorded in purchase accounting, customer acquisition costs, unrecognized prior service costs and actuarial gains and losses related to pensions and other post-employment benefits, original issue discount resulting from the issuance of Indebtedness at less than par and incentive payments, conversion costs, and contract acquisition costs of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP. “Consolidated EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person and its Restricted Subsidiaries for such period: (1) increased by (without duplication): (a) (i) provision for taxes based on income or profits or capital, including, U.S. fed-eral, state, non-U.S., franchise and similar taxes and foreign withholding taxes of such Person and its Restricted Subsidiaries paid or accrued during such period, including any penalties and interest related to such taxes or arising from any tax examinations, deducted (and not added back) in com-puting Consolidated Net Income and (ii) an amount equal to the amount of tax distributions actual-ly made to the holders of Capital Stock of such Person in respect of such period in accordance with Section 3.3(b)(23)(ii), which shall be included as though such amounts had been paid as in-come taxes directly by such Person; plus (b) Consolidated Interest Expense of such Person and its Restricted Subsidiaries for such period (including (1) net payments and losses on Hedging Obligations or other derivative in-struments entered into for the purpose of hedging interest rate risk and (2) costs of surety bonds in connection with financing activities, in each case, to the extent included in Consolidated Interest Expense), together with items excluded from the definition of “Consolidated Interest Expense” and any non-cash interest expense (including those for pension and other post-employment benefit plans), to the extent the same were deducted (and not added back) in calculating such Consolidat-ed Net Income; plus (c) Consolidated Depreciation and Amortization Expense of such Person and its Re-stricted Subsidiaries for such period to the extent the same were deducted in computing Consoli-dated Net Income; plus (d) any non-cash increase in expenses resulting from the revaluation of inventory (including any impact of changes to inventory valuation policy methods including changes in capi-talization of variances) or other inventory adjustments; plus (e) any other non-cash charges, expenses or losses, including any non-cash expense relating to the vesting of warrants, non-cash asset retirement costs and any write offs, write downs, expenses, losses, or items to the extent the same were deducted (and not added back) in computing Consolidated Net Income (provided that if any such non-cash charges represent an accrual or re-serve for potential cash items in any future period, (1) the Issuer may determine not to add back -10- |
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such non-cash charge in the current period and (2) to the extent the Issuer does decide to add back such non-cash charge, the cash payment in respect thereof in such future period shall be deducted from Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period); plus (f) the amount of any minority interest expense consisting of Subsidiary income at-tributable to minority equity interests of third parties in any non-Wholly-Owned Subsidiary de-ducted (and not added back) in such period in calculating Consolidated Net Income; plus (g) the amount of management, monitoring, consulting, advisory and other fees (in-cluding termination and transaction fees) and indemnities and expenses paid or accrued in such pe-riod to the Sponsor or any of its Affiliates; plus (h) tivities; plus costs of surety bonds incurred in such period in connection with financing ac-(i) the amount of “run-rate” cost savings, operating expense reductions and other operating changes, improvements and initiatives, and synergies (including, to the extent applica-ble, from the Transactions or the effect of any increased pricing in customer contracts without du-plication of any amounts added back pursuant to pro forma adjustments set forth in the definition of “Consolidated Coverage Ratio” in connection with Specified Transactions, operating expense reductions, and other operating changes, improvements and initiatives) that are projected by the Issuer 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 twenty-four (24) months of the determination to take such action, net of the amount of actual benefits realized prior to or during such period from such actions (which cost savings, operating expense reductions and other operating changes, improve-ments and initiatives, and synergies shall be calculated on a pro forma basis as though such cost savings, operating expense reductions, or synergies had been realized on the first day of such peri-od); provided that such cost savings in the good faith judgment of the Issuer are reasonably identi-fiable and factually supportable and it is understood and agreed that “run-rate” means the full re-curring benefit for a period that is associated with any action either taken or with respect to which substantial steps have been taken or are expected to be taken within twenty-four (24) months of the determination to take such action; plus (j) the amount of loss or discount on sale of (x) Receivables Assets and related as-sets in connection with a Receivables Facility and (y) Securitization Assets and related assets in connection with a Qualified Securitization Financing; plus (k) any costs or expense or charge incurred by the Issuer or any Restricted Subsidi-ary pursuant to any management equity plan or equity option plan or any other management or employee benefit plan or agreement or any equity subscription or equityholder agreement, to the extent that such cost, expense or charge is funded with cash proceeds contributed to the capital of the Issuer or net cash proceeds of an issuance of Capital Stock of the Issuer (or any Parent Entity) (other than Disqualified Stock) solely to the extent that such net cash proceeds are excluded from the calculation set forth in Section 3.3(a)(iii) and have not been relied on for purposes of any in-currence of Indebtedness under Section 3.2(b)(10); plus (l) the amount of costs, charges and expenses relating to payments made to option holders of any direct or indirect parent of the Issuer in connection with, or as a result of, any dis-tribution being made to equityholders of such Person, which payments are being made to compen-sate such option holders as though they were equityholders at the time of, and entitled to share in, such distribution, in each case to the extent permitted under this Indenture; plus (m) with respect to any joint venture that is not a Restricted Subsidiary, an amount equal to the proportion of those items described in clauses (a), (b) and (c) above relating to such joint venture corresponding to the Issuer’s and the Restricted Subsidiaries’ proportionate share of -11- |
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such joint venture’s Consolidated Net Income (determined as if such joint venture were a Restrict-ed Subsidiary); plus (n) costs associated with, or in anticipation of, or preparation for, compliance with the requirements of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith or other enhanced accounting functions and Public Company Costs; plus (o) cash receipts (or any netting arrangements resulting in reduced cash expenses) not included in Consolidated EBITDA in any period solely to the extent that the corresponding non-cash gains relating to such receipts were deducted in the calculation of Consolidated EBITDA pursuant to clause (2) below for any previous period and not added back; plus (p) to the extent not already included in the Consolidated Net Income of such Per-son and its Restricted Subsidiaries (but without duplication), (1) any expenses and charges that are reimbursed by indemnification or other similar provisions in connection with any acquisition or investment or any sale, conveyance, transfer, or other Asset Disposition of assets permitted here-under and (2) to the extent covered by insurance and actually reimbursed, or, so long as the Issuer has made a determination that there exists reasonable evidence that such amount will in fact be re-imbursed by the insurer and only to the extent that such amount is (A) not denied by the applicable carrier in writing within 180 days and (B) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within such 365 days), expenses, charges or losses with respect to liability or casualty events or business interruption; plus (q) payments by the Issuer and the Restricted Subsidiaries paid or accrued during such period in respect of purchase price holdbacks, earn outs and other contingent obligations and long-term liabilities of the Issuer and the Restricted Subsidiaries other than Indebtedness (includ-ing, without limitation, purchase price holdbacks, earn outs and similar obligations), plus (r) the aggregate amount of any premium, make whole or penalty payments actually paid in cash by the Issuer and the Restricted Subsidiaries during such period that are required to be made in connection with any prepayment of any Credit Facility or any other Indebtedness, to the extent the same were deducted (and not added back) in calculating such Consolidated Net Income; plus (s) the amount of any noncash foreign currency losses (or gains) attributable to in-tercompany loans, accounts receivable and accounts payable, to the extent the same were deducted (and not added back) in calculating such Consolidated Net Income; plus (t) letter of credit fees; plus (u) adjustments of the nature used in connection with the calculation of “Adjusted EBITDA” or “Further Adjusted EBITDA” as set forth in footnote (5) of “Summary—Summary Historical and Pro Forma Financial Data” contained in the Offering Circular applied in good faith by the Issuer to the extent such adjustments continue to be applicable during the period in which Consolidated EBITDA is being calculated; plus (v) the net amount, if any, of the difference between (to the extent the amount in the following clause (i) exceeds the amount in the following clause (ii)): (i) the deferred revenue of such Person and its Restricted Subsidiaries as of the last day of such period (the “Determination Date”) and (ii) the deferred revenue of such Person and its Restricted Subsidiaries as of the date that is 12 months prior to the Determination Date; plus (w) any net loss from disposed, abandoned, transferred, closed or discontinued oper-ations (excluding held for sale discontinued operations until actually disposed of); and -12- |
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(2) decreased by (without duplication): (a) non-cash gains increasing Consolidated Net Income of such Person for such pe-riod, excluding any non-cash gains which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges that reduced Consolidated EBITDA in any prior period; provided that, to the extent non-cash gains are deducted pursuant to this clause (2)(a) for any previous peri-od and not otherwise added back to Consolidated EBITDA, Consolidated EBITDA shall be in-creased by the amount of any cash receipts (or any netting arrangements resulting in reduced cash expenses) in respect of such non-cash gains received in subsequent periods to the extent not al-ready included therein; plus (b) any net income from disposed, abandoned, transferred, closed or discontinued operations (excluding held for sale discontinued operations until actually disposed of); plus (c) the amount of gain on sale of (x) Receivables Assets and related assets in con-nection with a Receivables Facility and (y) Securitization Assets and related assets in connection with a Qualified Securitization Financing. For the avoidance of doubt: (i) to the extent included in Consolidated Net Income, there shall be excluded in determining Consolidated EBITDA for any period any adjustments resulting from the application of ASC 815 and its related pronouncements and interpretations, or the equivalent accounting standard under GAAP or an alternative basis of accounting applied in lieu of GAAP, (ii) to the extent any add-backs or deductions are reflected in the calcu-lation of Consolidated Net Income, such add-backs and deductions shall not be duplicated in determining Consoli-dated EBITDA and (iii) Consolidated EBITDA shall be calculated giving effect to pro forma adjustments as set forth in the definition of “Consolidated Coverage Ratio.” Unless otherwise stated or context clearly dictates otherwise, references to Consolidated EBITDA shall re-fer to the Consolidated EBITDA of the Issuer. “Consolidated Interest Expense” means, with respect to any Person for any period, without duplication, the sum of: (1) consolidated cash interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net In-come (including (x) all commissions, discounts, and other fees and charges owed with respect to letters of credit or bankers acceptances, (y) capitalized interest to the extent paid in cash (but excluding any interest capitalized, accrued, accreted or paid in respect of Subordinated Shareholder Funding), and (z) net pay-ments (over payments received), if any, made pursuant to interest rate Hedging Obligations with respect to Indebtedness); plus (2) any cash payments made during such period in respect of the accretion or accrual of dis-counted liabilities referred to in clause (i) below relating to Funded Debt that were amortized or accrued in a previous period; less (3) cash interest income for such period; provided, the following shall in all cases be excluded from Consolidated Interest Expense: (a) any one-time cash costs associated with breakage in respect of Hedging Obligations to the extent such costs would be otherwise included in Consolidated Interest Expense; (b) all non-recurring cash interest expense consisting of liquidated damages for failure to timely comply with registration rights obligations, all as calculated on a consolidated basis in accordance with GAAP; -13- |
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(c) any “additional interest” owing pursuant to a registration rights agreement; (d) non-cash interest expense attributable to a Parent Entity resulting from push-down ac-counting, but solely to the extent not reducing consolidated cash interest expense in any prior period; (e) any non-cash expensing of bridge, commitment, and other financing fees that have been previously paid in cash, but solely to the extent not reducing consolidated cash interest expense in any prior period; (f) deferred financing costs, debt issuance costs, commissions, fees (including amendment and contract fees) and expenses and, in each case, the amortization and write-off thereof, and any amounts of non-cash interest; (g) annual agency fees paid to any administrative agent or collateral agent under any credit facilities or other debt instruments or documents; (h) costs associated with obtaining Hedging Obligations; (i) the accretion or accrual of discounted liabilities; (j) non-cash interest expense attributable to the movement of the mark-to-market valuation of obligations under Hedging Obligations or other derivative instruments pursuant to FASB Accounting Standards Codification 815; (k) any non-cash expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or, if applicable, purchase accounting in connection with the Transactions or any acquisition; (l) commissions, discounts, yield, and other fees and charges (including any interest ex-pense) related to any Receivables Facility or any Securitization Facility; and (m) any prepayment premium or penalty. For purposes of this definition, interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Capitalized Lease Obli-gation in accordance with GAAP. “Consolidated Net Income” means, with respect to any Person for any period, the aggregate of the Net In-come of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, and otherwise deter-mined in accordance with GAAP; provided that, without duplication: (1) (a) any after-tax effect of extraordinary, exceptional, non-recurring, or unusual gains or losses (less all fees and expenses relating thereto), charges or expenses (including relating to the Transac-tions), (b) severance, recruiting, retention and relocation costs, charges and expenses, (c) signing and stay bonuses and related costs, charges and expenses, transaction, refinancing, and special bonuses paid in con-nection with dividends and distributions to equity holders, (d) curtailments or modifications to pension and post-retirement employee benefits plans, (e) start-up, transition, strategic initiative (including any multi-year strategic initiative and one-time technology licensing and setup costs and overlapping replacement costs to exit transitional services), separation costs (including all costs associated with establishing standalone operations) and integration costs and duplicative costs, charges or expenses, (f) restructuring costs, charges, reserves or expenses, (g) costs, charges and expenses related to acquisitions after the Escrow Release Date and to the start-up, pre-opening, opening, closure, and/or consolidation of distribution centers, operations, offices and facilities, (h) business optimization costs, charges or expenses, (i) costs, charges and expenses incurred in connection with new product design, development and introductions, (j) costs and ex-penses incurred in connection with intellectual property development and new systems design, (k) costs and -14- |
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expenses incurred in connection with implementation, replacement, development or upgrade of operational, reporting and information technology systems and technology initiatives, (l) any costs, expenses or charges relating to any governmental investigation or any litigation or other dispute and (m) one-time compensation charges shall be excluded; (2) the Net Income for such period shall not include the cumulative effect of a change in ac-counting principles and changes as a result of the adoption or modification of accounting policies during such period; (3) any net after-tax gains or losses on disposal of disposed, abandoned, transferred, closed, or discontinued operations shall be excluded; (4) any after-tax effect of gains or losses (less all fees and expenses relating thereto) attribut-able to asset dispositions or abandonments other than in the ordinary course of business, as determined in good faith by the Board of Directors (or analogous governing body) of the Issuer, shall be excluded; (5) the Net Income for such period of any Person that is not a Subsidiary, or is an Unrestrict-ed Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided that Consolidated Net Income of the Issuer shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash (or to the extent converted into cash or Cash Equivalents of the Issuer or any of its Restricted Subsidiaries) to the Issuer or a Restricted Subsidiary thereof in respect of such period; (6) solely for the purpose of determining the amount available for Restricted Payments under Section 3.3(a)(iii)(A), the Net Income for such period of any Restricted Subsidiary (other than any Subsidi-ary Guarantor) shall be excluded to the extent the declaration or payment of dividends or similar distribu-tions by that Restricted Subsidiary of its Net Income is not at the date of determination permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule, or govern-mental regulation applicable to that Restricted Subsidiary or its equityholders, unless such restriction with respect to the payment of dividends or similar distributions (a) has been legally waived or otherwise re-leased, (b) is imposed pursuant to this Indenture, the Credit Agreement, or any other Credit Facility, or (c) arises pursuant to an agreement or instrument if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than the encum-brances and restrictions contained in this Indenture (as determined by the Issuer in good faith) or pursuant to working capital facilities incurred by Foreign Subsidiaries and permitted hereby; provided that Consoli-dated Net Income of the referent Person will be increased by the amount of dividends or other distributions or other payments actually paid in cash (or to the extent converted into cash) or Cash Equivalents to such Person or a Restricted Subsidiary in respect of such period, to the extent not already included therein; (7) effects of adjustments (including the effects of such adjustments pushed down to the Is-suer and the Restricted Subsidiaries) in any line item in such Person’s consolidated financial statements re-quired or permitted by Financial Accounting Standards Codification No. 805—Business Combinations and No. 350—Intangibles—Goodwill and Other (ASC 805 and ASC 350) (formerly Financial Accounting Standards Board Statement Nos. 141 and 142, respectively) resulting from the application of purchase ac-counting, including in relation to the Transactions and any acquisition or investment that is consummated prior to or after the Escrow Release Date or the amortization or write-off of any amounts thereof, in either case net of taxes, shall be excluded; (8) (a) any after-tax effect of any income (loss) from the early extinguishment or conversion of Indebtedness or Hedging Obligations or other derivative instruments (including deferred financing costs written off and premiums paid), (b) any non-cash income (or loss) related to currency gains or losses relat-ed to Indebtedness, intercompany balances, and other balance sheet items and any net gain or loss resulting in such period from Hedging Obligations pursuant to Financial Accounting Standards Codification Topic No. 815—Derivatives and Hedging (ASC 815) (or any successor provision) and its related pronouncements and interpretations, or the equivalent accounting standard under GAAP or an alternative basis of accounting -15- |
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applied in lieu of GAAP, and (c) any non-cash expense, income, or loss attributable to the movement in mark to market valuation of foreign currencies, Indebtedness, or derivative instruments pursuant to GAAP, shall be excluded; (9) any impairment charge or asset write-off or write-down, including impairment charges or asset write-offs or write-downs related to intangible assets, long-lived assets, investments in debt and equi-ty securities or as a result of a change in law or regulation or in connection with any disposition of assets, in each case, pursuant to GAAP, and the amortization of intangibles arising pursuant to GAAP shall be ex-cluded; (10) (a) any non-cash compensation expense recorded from grants of equity appreciation or similar rights, phantom equity, equity options units, restricted equity, or other rights to officers, directors, managers, or employees, (b) non-cash income (loss) attributable to deferred compensation plans or trusts and (c) any non-cash compensation expense resulting from the application of Accounting Standards Codifi-cation Topic No. 718, Compensation—Stock Compensation or Accounting Standards Codification Topic No. 505-50, Equity-Based Payments to Non-Employees, in each case shall be excluded; (11) any fees, charges, losses, costs and expenses incurred during such period, or any amorti-zation thereof for such period, in connection with or related to any acquisition (including any Permitted Acquisition), Restricted Payment, Investment, recapitalization, asset sale, refinancing, issuance, incurrence, registration or repayment or modification of Indebtedness, issuance or offering of Capital Stock, refinanc-ing transaction or amendment, modification or waiver in respect of the documentation relating to any such transaction (in the case of each such transaction described in this clause (11), including any such transac-tion undertaken or consummated prior to the Escrow Release Date, the Transactions and any such transac-tion undertaken but not completed and including, for the avoidance of doubt, (1) the effects of expensing all transaction-related expenses in accordance with Accounting Standards Codification Topic No. 805— Business Combinations, (2) such fees, expenses, or charges related to the Incurrence of the Notes under this Indenture, the loans under the Credit Agreement and all Transaction Expenses, (3) such fees, expenses, or charges related to the entering into or offering of the Notes under this Indenture, the loans under the Credit Agreement and any other credit facilities or debt issuances or the entering into of any agreement in connec-tion with Hedging Obligations, and (4) any amendment, modification or waiver in respect of the Notes, this Indenture, the Credit Agreement or the loans thereunder, or any other Indebtedness) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction shall be exclud-ed; (12) (a) accruals and reserves (including contingent liabilities) that are (x) established or ad-justed within 12 months after the Escrow Release Date that are so required to be established as a result of the Transactions or (y) established or adjusted within 12 months after the closing of any Permitted Acquisi-tion or any other acquisition (other than any such other acquisition in the ordinary course of business) that are so required to be established or adjusted as a result of such Permitted Acquisition or such other acquisi-tion, in each case in accordance with GAAP, or (b) charges, accruals, expenses and reserves as a result of adoption or modification of accounting policies, shall be excluded; (13) to the extent covered by insurance or indemnification and actually reimbursed, or, so long as, in the case of reimbursements or indemnifications not yet received, the Issuer has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer or indemni-fying party and only to the extent that such amount is (a) not denied by the applicable carrier or indemnify-ing party in writing within 180 days and (b) in fact reimbursed or reasonably expected to be reimbursed within 365 days of the date of such determination (with a deduction for any amount so added back to the extent not so reimbursed within 365 days), losses, charges and expenses shall be excluded; (14) any deferred tax expense associated with tax deductions or net operating losses arising as a result of the Transactions, or the release of any valuation allowance related to such items, shall be exclud-ed; -16- |
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(15) gains and losses due solely to fluctuations in currency values and the related tax effects determined in accordance with GAAP for such period shall be excluded; (16) any net pension or other post-employment benefit costs representing amortization of un-recognized prior service costs, actuarial losses, including amortization of such amounts arising in prior pe-riods, amortization of the unrecognized net obligation (and loss or cost) existing at the date of initial appli-cation of Statement of Financial Accounting Standards Nos. 87, 106 and 112, and any other items of a simi-lar nature, shall be excluded; (17) any non-cash adjustments resulting from the application of Accounting Standards Codifi-cation Topic No. 460, Guarantees, or any comparable regulation, shall be excluded; (18) earn-out obligations and other contingent consideration obligations (including to the ex-tent accounted for as bonuses, compensation or otherwise (and including deferred performance incentives in connection with Permitted Acquisitions or other Investments permitted hereunder whether or not a ser-vice component is required from the transferor or its related party)) and adjustments thereof and purchase price adjustments, shall be excluded; and (19) the impact of capitalized, accrued or accreting or pay-in-kind interest or principal on Subordinated Shareholder Funding. In addition, to the extent not already included in the Consolidated Net Income of such Person and its Re-stricted Subsidiaries in any period, notwithstanding anything to the contrary in the foregoing, Consolidated Net In-come shall include the amount of proceeds received from business interruption insurance. Unless otherwise stated or context clearly dictates otherwise, references to Consolidated Net Income shall refer to the Consolidated Net Income of the Issuer. “Consolidated Secured Indebtedness” means Consolidated Total Indebtedness as of such date that is se-cured by a Lien. “Consolidated Secured Net Leverage Ratio” means, as of any date of determination, the ratio of (x) Consol-idated Secured Indebtedness of the Issuer and the Restricted Subsidiaries, minus cash and Cash Equivalents of the Issuer and the Restricted Subsidiaries to the extent not designated as restricted on the consolidated balance sheet of the Issuer and the Restricted Subsidiaries (provided that any cash proceeds of any new Indebtedness then being In-curred shall not be netted from the numerator of this ratio) to (y) the aggregate amount of Consolidated EBITDA for the most recently ended Test Period, in each case with such pro forma adjustments as are consistent with the pro forma adjustments set forth in the definition of “Consolidated Coverage Ratio.” “Consolidated Total Indebtedness” means, as at any date of determination, an amount equal to the aggre-gate principal amount of all outstanding Indebtedness of the Issuer and the Restricted Subsidiaries that would be reflected on a consolidated balance sheet (but excluding the notes thereto) prepared as of such date on a consolidated basis in accordance with GAAP (but excluding the effects of any discounting of Indebtedness resulting from the application of purchase accounting in connection with the Transactions or any Permitted Acquisition or any other acquisition permitted under this Indenture) consisting only of Indebtedness for borrowed money, Capitalized Lease Obligations and purchase money debt and debt obligations evidenced by promissory notes and similar instruments (and excluding, for the avoidance of doubt, Hedging Obligations); provided that Consolidated Total Indebtedness shall not include letters of credit, except, solely with respect to any standby letter of credit, to the extent of unreim-bursed obligations in respect of any such drawn standby letter of credit (provided that any unreimbursed obligations in respect of any such drawn standby letter of credit shall not be included as Consolidated Total Indebtedness until one Business Day after such amount is due and payable by the Issuer or any Restricted Subsidiary). “Consolidated Total Net Leverage Ratio” means, as of any date of determination, the ratio of (x) Consoli-dated Total Indebtedness, minus cash and Cash Equivalents of the Issuer and the Restricted Subsidiaries to the ex-tent not designated as restricted on the consolidated balance sheet of the Issuer and the Restricted Subsidiaries (pro--17- |
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vided that any cash proceeds of any new Indebtedness then being Incurred shall not be netted from the numerator of this ratio) to (y) the aggregate amount of Consolidated EBITDA for the most recently ended Test Period, in each case with such pro forma adjustments as are consistent with the pro forma adjustments set forth in the definition of “Consolidated Coverage Ratio.” “Contingent Obligations” means, with respect to any Person, any obligation of such Person guaranteeing in any manner, whether directly or indirectly, any operating lease, dividend or other obligation that does not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”), including any obligation of such Person, whether or not contingent: (1)to purchase any such primary obligation or any property constituting direct or indirect se-curity therefor; (2) to advance or supply funds: (i) for the purchase or payment of any such primary obligation; or (ii) to maintain the working capital or equity capital of the primary obligor or oth-erwise to maintain the net worth or solvency of the primary obligor; or (3) to purchase property, securities or services primarily for the purpose of assuring the own-er of any such primary obligation of the ability of the primary obligor to make payment of such primary ob-ligation against loss in respect thereof. “Corporate Trust Office” means (x) solely for purposes of presenting the Notes for payment, Citibank, N.A., London Branch, as Paying Agent, located at Citigroup Centre, Canada Square, Canary Wharf, London, E14 5LB, United Kingdom, Attention: Payments Desk, Issuer Services, and (y) for all other purposes, the office of the Trustee at the address specified in Section 13.2 or such other address as to which the Trustee may give notice to the Holders and the Issuer. “Credit Agreement” means any of (i) the Credit Agreement to be entered into on the Escrow Release Date by and among Holdings, the Issuer, Credit Suisse AG, as the administrative agent, the collateral agent, a letter of credit issuer and a lender, and each lender from time to time party thereto, together with the related documents there-to (including the term loans and revolving loans thereunder, any letters of credit and reimbursement obligations re-lated thereto, any Guarantee and collateral agreement, collateral assignment, patent and trademark security agree-ment, mortgages or letter of credit applications and other Guarantees, pledges, agreements, security agreements and other collateral documents), as amended, restated, amended and restated, supplemented or otherwise modified or renewed, refunded, replaced, restructured, refinanced, repaid, increased or extended (in whole or in part, and without limitation as to amount, terms, conditions, covenants and other provisions, whether with the original administrative agent and lenders or other agents and lenders or otherwise, and whether provided under the original credit agreement or one or more other credit agreements, indentures, financing agreements or otherwise, including any agreement extending the maturity thereof, otherwise restructuring all or any portion of the Indebtedness thereunder, increasing the amount loaned or issued thereunder, altering the maturity thereof or providing for revolving credit loans, term loans, letters of credit or other Indebtedness) from time to time (and, unless the context requires otherwise, refer-ences herein to the Credit Agreement refer to such Credit Agreement), and (ii) any one or more agreements (and related documents) governing Indebtedness, including credit agreements, note purchase agreements, indentures, financing agreements or otherwise, incurred to refinance, substitute, supplement, replace or add to (including in-creasing the amount available for borrowing or adding or removing any Person as a borrower, issuer or guarantor thereunder) in whole or in part, the borrowings and commitments then outstanding or permitted to be outstanding under such Credit Agreement or one or more successors to the Credit Agreement or one or more new credit agree-ments, indentures, note purchase agreements, financing agreements or otherwise, in each case under clauses (i) and (ii), unless such agreement, instrument or document expressly provides that it is not intended to be and is not a Cred-it Agreement. -18- |
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“Credit Facility” means, with respect to the Issuer or any of its Subsidiaries, one or more of (i) any facility under the Credit Agreement and (ii) any other facilities, note purchase agreements, indentures or other arrangements (including commercial paper facilities and overdraft facilities), in each case, with one or more banks, other financial institutions, lenders or investors providing for revolving credit loans, term loans, notes, receivables financing (in-cluding through the sale of receivables to such institutions or to special purpose entities formed to borrow from such institutions against such receivables or the creation of any Liens in respect of such receivable in favor of such insti-tutions), letters of credit or other Indebtedness, in each case, as amended, restated, amended and restated, supple-mented or otherwise modified or renewed, refunded, replaced, restructured, refinanced, repaid, increased or extend-ed in whole or in part from time to time (and whether in whole or in part and whether or not with the original admin-istrative agent and lenders or another administrative agent or agents or other banks or institutions and whether pro-vided under the original credit agreement or one or more other credit agreements, indentures, financing agreements or otherwise) and in each case including all agreements, instruments and documents executed and delivered pursuant to or in connection with the foregoing (including any notes, any letters of credit and reimbursement obligations re-lated thereto, any Guarantee and collateral agreement, patent and trademark security agreement, collateral assign-ment, mortgages or letter of credit applications and other Guarantees, pledges, agreements, security agreements and collateral documents). Without limiting the generality of the foregoing, the term “Credit Facility” shall include any agreement or instrument (1) changing the maturity of any Indebtedness Incurred thereunder or contemplated there-by, (2) adding Subsidiaries of the Issuer as additional borrowers or guarantors thereunder, (3) increasing the amount of Indebtedness Incurred thereunder or available to be borrowed thereunder or (4) otherwise altering the terms and conditions thereof, in each case to the extent otherwise permitted under this Indenture. “Custodian” means any receiver, trustee, liquidator, custodian or similar official under any Bankruptcy Law. “Default” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default. “Definitive Notes” means certificated Notes. “Designated Non-Cash Consideration” means the fair market value (as determined in good faith by the Is-suer) of non-cash consideration received by the Issuer or one of its Restricted Subsidiaries in connection with an Asset Disposition that is so designated as Designated Non-Cash Consideration pursuant to an Officer’s Certificate, setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent payment, redemption, retirement, sale or other disposition of such Designated Non-Cash Consideration. A particular item of Designated Non-Cash Consideration will no longer be considered to be outstanding when and to the extent it has been paid, redeemed or otherwise retired or sold or otherwise disposed of in compliance with Sec-tion 3.5. “Designated Preferred Stock” means Preferred Stock of the Issuer or a Parent Entity (other than Disquali-fied Stock) (a) that is issued for cash (other than to the Issuer or a Subsidiary of the Issuer or an employee stock ownership plan or trust established by the Issuer or any such Subsidiary for the benefit of their employees to the extent funded by the Issuer or such Subsidiary) and (b) that is designated as “Designated Preferred Stock” pursuant to an Officer’s Certificate of the Issuer at or prior to the issuance thereof, the cash proceeds of which are excluded from the calculation set forth in Section 3.3(a)(iii)(B). “Disinterested Director” means, with respect to any Affiliate Transaction, a member of the Board of Direc-tors of the Issuer having no material direct or indirect financial interest in or with respect to such Affiliate Transac-tion. A member of the Board of Directors of the Issuer shall be deemed not to have such a financial interest by rea-son of such member’s holding Capital Stock of the Issuer or any options, warrants or other rights in respect of such Capital Stock. “Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than solely for Qualified Stock), other than as a result of a change of control, asset sale, or similar event, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than solely for Qualified Stock), other than as a result of a -19- |
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change of control, asset sale, or similar event, in whole or in part, in each case, prior to the Stated Maturity of the Notes; provided that if such Capital Stock is issued to any plan for the benefit of any employee, director, manager or consultant of the Issuer or its Subsidiaries or by any such plan to such employee, director, manager or consultant, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Issuer or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of the termi-nation, death or disability of such employee, director, manager or consultant. “Dollars” or “$” means the lawful money of the United States. “Domestic Subsidiary” means, with respect to any Person, any Restricted Subsidiary of such Person other than a Foreign Subsidiary. “Equity Commitment Letter” means the equity commitment letter, dated August 8, 2017, between the Issu-er and the Bain Capital Fund. “Equity Offering” means (x) a sale of Capital Stock of the Issuer (other than Disqualified Stock, Designat-ed Preferred Stock or Capital Stock issued to any Subsidiary of the Issuer) other than offerings registered on Form S-8 (or any successor form) under the Securities Act or any similar offering in other jurisdictions, or (y) a sale of Capital Stock or other securities by a Parent Entity (other than Disqualified Stock, Designated Preferred Stock or Capital Stock issued to the Issuer or any Subsidiary of the Issuer), the proceeds of which are contributed to the equi-ty (other than through an Excluded Contribution) of the Issuer or any of its Restricted Subsidiaries. “Escrowed Property” means the Escrowed Funds, as such term is defined in the Escrow Agreement. “Escrow Account” means a segregated account, under the control of the Escrow Agent, that includes only cash in euro and European Government Obligations, free from all Liens other than the Lien in favor of the Trustee for itself and the benefit of the Holders of the Notes and any Lien in favor of the Escrow Agent to secure obligations owed to the Escrow Agent in connection with the Escrow Account, the Escrow Agreement or the Escrow Account Charge. “Escrow Agent” means JPMorgan Chase Bank, N.A., acting through its London branch, in its capacity es-crow agent under the Escrow Agreement, and its successors and assigns. “Escrow Agreement” means that certain escrow agreement, dated as of August 8, 2017, among the Issuer, the Trustee and the Escrow Agent, as amended, supplemented or modified from time to time. “Escrow Account Charge” means the English law governed escrow account charge between the Issuer, as chargor, and the Trustee, dated on or about the date hereof. “Escrow Release” has the meaning assigned to the term “Release” in the Escrow Agreement. “Escrow Release Date” the date of the Release pursuant to the Escrow Agreement. “Escrow Release Date Supplemental Indenture” means the supplemental indenture to this Indenture, dated as of the Escrow Release Date, by and among the Initial Guarantors and the Trustee, substantially in the form of Exhibit B. “Euro” or “€” means the single currency of Participating Member States. “Euroclear” means Euroclear Bank SA/NV, as operator of the Euroclear System or any successor thereof. “European Government Obligations” means direct obligations (or certificates representing an ownership in-terest in such obligations) of a member state of the European Union (including any agency or instrumentality there-of) for the payment of which the full faith and credit of such government is pledged. -20- |
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“Exchange” means The International Stock Exchange. “Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regula-tions of the SEC promulgated thereunder, as amended. “Excluded Contribution” means net cash proceeds, the fair market value of marketable securities or proper-ty or assets that are used or useful in, or Capital Stock of any Person engaged in, a Similar Business, in each case, received by the Issuer as capital contributions to the common equity of the Issuer after the Escrow Release Date (other than through the issuance of Disqualified Stock or Designated Preferred Stock) or from the issuance or sale (other than to a Subsidiary of the Issuer or an employee stock ownership plan or trust established by the Issuer or to any management equity plan or equity option plan or any other management or employee benefit plan or agreement of the Issuer) of Subordinated Shareholder Funding or Capital Stock (other than Disqualified Stock or Designated Preferred Stock) of the Issuer after the Escrow Release Date, in each case, to the extent designated as an Excluded Contribution pursuant to an Officer’s Certificate of the Issuer. “fair market value” means with respect to any asset or group of assets on any date of determination, the value of the consideration obtainable in a sale of such asset at such date of determination assuming a sale by a will-ing seller to a willing purchaser dealing at arm’s-length and arranged in an orderly manner over a reasonable period of time having regard to the nature and characteristics of such asset, as determined in good faith by the Issuer. “FATCA Withholding” means all Taxes that are imposed or withheld pursuant to Sections 1471 through 1474 of the Code as of the date of this Indenture (or any amended or successor version that is substantively compa-rable), any regulations promulgated thereunder or any other official interpretations thereof or any intergovernmental agreements (and any related law, regulation or official administrative guidance) implementing the foregoing. “Foreign Subsidiary” means, with respect to any Person, any Subsidiary of such Person that is not orga-nized or existing under the laws of the United States, any state thereof or the District of Columbia. “Funded Debt” means all Indebtedness of the Issuer and the Restricted Subsidiaries for borrowed money that matures more than one year from the date of its creation or matures within one year from such date that is re-newable or extendable, at the sole option of the Issuer or any Restricted Subsidiary, to a date more than one year from the date of its creation or arises under a revolving credit or similar agreement that obligates the lender or lend-ers to extend credit during a period of more than one year from such date (including all amounts of such Funded Debt required to be paid or prepaid within one year from the date of its creation). “GAAP” means generally accepted accounting principles in the United States, as in effect from time to time; provided, however, that all ratios, computations and other determinations based on GAAP contained in this Indenture shall be computed in accordance with GAAP as in effect on the Issue Date. At any time after the Issue Date, the Issuer may elect to apply for all purposes of this Indenture, in lieu of GAAP, IFRS and, upon such elec-tion, references to GAAP herein will be construed to mean IFRS as in effect from time to time; provided that (1) all financial statements and reports to be provided, after such election, pursuant to this Indenture shall be prepared on the basis of IFRS as in effect from time to time, and (2) from and after such election, all ratios, computations, and other determinations based on GAAP contained in this Indenture shall still be required to be computed in conformity with GAAP as in effect on the Issue Date. For the avoidance of doubt, solely making an election (without any other action) referred to in this definition will not be treated as an incurrence of Indebtedness. Notwithstanding any other provision contained herein, the amount of any Indebtedness under GAAP with respect to Capitalized Lease Obliga-tions shall be determined in accordance with the definition of “Capitalized Lease Obligations.” “Governmental Authority” means any nation, sovereign, or government, any state, province, territory, or other political subdivision thereof, and any entity or authority exercising executive, legislative, judicial, taxing, regu-latory or administrative functions of or pertaining to government, including a central bank or stock exchange or a supra-national body such as the European Union or the European Central Bank. “Guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly guarantee-ing any Indebtedness of any other Person; provided, however, that the term “Guarantee” will not include (x) en--21- |
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dorsements for collection or deposit in the ordinary course of business or consistent with past practice and (y) stand-ard contractual indemnities or product warranties provided in the ordinary course of business, and provided, further, that the amount of any Guarantee shall be deemed to be the lower of (i) an amount equal to the stated or determina-ble amount of the primary obligation in respect of which such Guarantee is made and (ii) the maximum amount for which such guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Guarantee or, if such Guarantee is not an unconditional guarantee of the entire amount of the primary obligation and such max-imum amount is not stated or determinable, the amount of such guaranteeing Person’s maximum reasonably antici-pated liability in respect thereof as determined by such Person in good faith. The term “Guarantee” used as a verb has a corresponding meaning. “Guarantors” means, collectively, Holdings and the Subsidiary Guarantors. “Hedging Obligations” means, with respect to any Person, the obligations of such Person under (i) 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 trans-actions or any combination of any of the foregoing (including any options to enter into any of the foregoing), wheth-er or not any such transaction is governed by or subject to any master agreement, and (ii) 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 For-eign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement. “Holder” means each Person in whose name the Notes are registered on the Registrar’s books, which shall initially be the nominee of the Common Depositary. “Holdings” means BCPE Diamond Netherlands Topco, B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under laws of the Netherlands. “IFRS” means International Financial Reporting Standards, as adopted by the International Accounting Standards Board and/or the European Union, as in effect from time to time. “Incur” means issue, create, assume, enter into any Guarantee of, incur, extend or otherwise become liable for Indebtedness, Disqualified Stock or, in the case of any Restricted Subsidiary, Preferred Stock; provided, howev-er, that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Restricted Subsid-iary (whether by merger, consolidation, acquisition or otherwise) will be deemed to be Incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary and the terms “Incurred” and “Incurrence” have meanings correlative to the foregoing and subject to Section 3.2(c)(11), any Indebtedness pursuant to any revolving credit or similar facility shall only be “Incurred” at the time any funds are borrowed thereunder. “Indebtedness” means, with respect to any Person on any date of determination (without duplication): (1) the principal of indebtedness of such Person for borrowed money; (2) the principal of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments; (3) all reimbursement obligations of such Person in respect of letters of credit, bankers’ ac-ceptances or other similar instruments (the amount of such obligations being equal at any time to the aggre-gate then undrawn and unexpired amount of such letters of credit or other instruments plus the aggregate amount of drawings thereunder that have not been reimbursed) (except to the extent such reimbursement obligations relate to trade payables and such obligations are satisfied within 30 days of Incurrence); -22- |
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(4) the principal component of all obligations of such Person to pay the deferred and unpaid purchase price of property (except trade payables), which purchase price is due more than one year after the date of placing such property in service or taking final delivery and title thereto; (5) Capitalized Lease Obligations of such Person; (6) [reserved]; (7) the principal component of all Indebtedness of other Persons for borrowed money se-cured 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 unpaid amount of such Indebtedness of such other Per-sons; (8) Guarantees by such Person of the principal component of Indebtedness of other Persons, other than by endorsement of negotiable instruments for collection in the ordinary course of business; and (9) to the extent not otherwise included in this definition, net obligations of such Person un-der Hedging Obligations (the amount of any such obligations to be equal at any time to the net payments under such agreement or arrangement giving rise to such obligation that would be payable by such Person at the termination of such agreement or arrangement); solely (other than in the case of clauses (7), (8) and (9) above) if and to the extent any of the foregoing (other than letters of credit) would appear as a net liability upon a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP; provided, however, that Indebtedness of any Parent Entity appearing on the balance sheet of the Issuer solely by reason of push down accounting under GAAP shall be excluded. The term “Indebtedness” shall not include any lease, concession or license of property (or guarantee there-of) which would be considered an operating lease under GAAP as in effect on the Issue Date, any prepayments of deposits received from clients or customers in the ordinary course of business or consistent with past practice, or obligations under any license, permit or other approval (or guarantees given in respect of such obligations) Incurred prior to the Issue Date or in the ordinary course of business or consistent with past practice. For all purposes hereof, (i) the Indebtedness of the Issuer and the Restricted Subsidiaries shall exclude all intercompany Indebtedness having a term not exceeding 365 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business, and (ii) obligations constituting non-recourse Indebtedness shall only constitute “Indebtedness” for pur-poses of Section 3.2 and not for any other purpose in this Indenture. The amount of Indebtedness of any Person at any time in the case of a revolving credit or similar facility shall be the total amount of funds borrowed and then outstanding. The amount of any Indebtedness outstanding as of any date shall be (a) the accreted value thereof in the case of any Indebtedness issued with original issue discount and (b) the principal amount of Indebtedness, or liquidation preference thereof, in the case of any other Indebted-ness. Notwithstanding the above provisions, in no event shall the following constitute Indebtedness: (i) Contingent Obligations Incurred in the ordinary course of business or consistent with past practice; (ii) Cash Management Services; (iii) obligations under or in respect of Receivables Facilities and Securitization Facilities; (iv) prepaid or deferred revenue arising in the ordinary course of business; -23- |
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(v) purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy warranties or other unperformed obligations of the seller of such asset; (vi) trade accounts and accrued expenses payable in the ordinary course of business and ac-cruals for payroll and other liabilities accrued in the ordinary course of business; (vii) any earn-out obligation until such obligation, within 60 days of becoming due and paya-ble, has not been paid and such obligation is reflected as a liability on the balance sheet of such Person in accordance with GAAP; (viii) for the avoidance of doubt, customary obligations under employment agreements and de-ferred compensation and any obligations in respect of workers’ compensation claims, early retirement or termination obligations, pension fund obligations or contributions or similar claims, obligations or contri-butions or social security or wage Taxes; (ix) amounts owed to dissenting stockholders in connection with, or as a result of, their exer-cise of appraisal rights and the settlement of any claims or action (whether actual, contingent or potential) with respect thereto (including any accrued interest), with respect to the Transactions or any other Invest-ment permitted by this Indenture; or (x) Subordinated Shareholder Funding. “Indenture” means this Indenture as amended or supplemented from time to time. “Independent Financial Advisor” means an accounting firm, appraisal firm, investment banking firm or consultant of nationally recognized standing that is, in the good faith judgment of the Issuer, qualified to perform the task for which it has been engaged and that is disinterested with respect to the applicable transaction. “Initial Guarantors” means Holdings and the Restricted Subsidiaries that Guarantee the Notes on and as of the Escrow Release Date. “Initial Notes” has the meaning ascribed to it in the second introductory paragraph of this Indenture. “Intercompany License Agreement” means any cost sharing agreement, commission or royalty agreement, license or sub-license agreement, distribution agreement, services agreement, intellectual property rights transfer agreement or any related agreements, in each case where all the parties to such agreement are the Issuer or a Re-stricted Subsidiary. “Investment” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of loans (including guarantees), advances, or capital contributions (excluding accounts re-ceivable, credit card and debit card receivables, trade credit, advances to customers, commission, travel, and similar advances to officers, directors, managers and employees, in each case made in the ordinary course of business), pur-chases or other acquisitions for consideration of Indebtedness, Capital Stock, or other securities issued by any other Person, or the purchase or other acquisition, in one transaction or a series of related transactions, of all or substan-tially all of the assets of another Person or assets constituting a business unit, line of business or division of such Person; provided that Investments shall not include, in the case of the Issuer and the Restricted Subsidiaries, inter-company loans, advances, or Indebtedness made to or owing by the Issuer or a Restricted Subsidiary having a term not exceeding 365 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of busi-ness; provided, further, that in the event that any Investment is made by Holdings, the Issuer or any Restricted Sub-sidiary in any Person through substantially concurrent interim transfers of any amount through the Issuer or any Re-stricted Subsidiaries, then such other substantially concurrent interim transfers shall be disregarded for purposes of Section 3.3. -24- |
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For purposes of Sections 3.3 and 3.20: (1) “Investment” will include the portion (proportionate to the Issuer’s equity interest in a Restricted Subsidiary to be designated as an Unrestricted Subsidiary) of the fair market value of the net as-sets of such Restricted Subsidiary of the Issuer at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Issuer will be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (a) the Issuer’s “Investment” in such Subsidiary at the time of such redesignation less (b) the portion (proportionate to the Issuer’s equity interest in such Subsidiary) of the fair market value of the net assets of such Subsidiary at the time that such Subsidiary is so re-designated a Restricted Subsidiary; and (2) any property transferred to or from an Unrestricted Subsidiary will be valued at its fair market value at the time of such transfer. The amount of any Investment outstanding at any time shall be the original cost of such Investment, re-duced by any dividend, distribution, interest payment, return of capital, repayment, or other amount received by the Issuer or a Restricted Subsidiary in respect of such Investment in an aggregate amount not to exceed the original cost of such Investment (provided that, with respect to amounts received other than in the form of cash or Cash Equivalents, such amount shall be equal to the fair market value of such consideration). “Investment Grade Securities” means: (1) securities issued or directly and fully Guaranteed or insured by the United States or Ca-nadian government or any agency or instrumentality thereof (other than Cash Equivalents); (2) securities issued or directly and fully Guaranteed or insured by a member of the European Union, or any agency or instrumentality thereof (other than Cash Equivalents); (3) debt securities or debt instruments with a rating of “A-” or higher from S&P or “A3” or higher by Moody’s or the equivalent of such rating by such rating organization or, if no rating of Moody’s or S&P then exists, the equivalent of such rating by any other Nationally Recognized Statistical Ratings Organization, but excluding any debt securities or instruments constituting loans or advances among the Is-suer and its Subsidiaries; (4) investments in any fund that invests all or substantially all of its assets in investments of the type described in clauses (1), (2) and (3) above which fund may also hold cash and Cash Equivalents pending investment or distribution; and (5) corresponding instruments in countries other than the United States customarily utilized for high-quality investments. “Investment Grade Status” shall occur when the Notes receive each of the following: (1) a rating of “BBB-” or higher from S&P; and (2) a rating of “Baa3” or higher from Moody’s, or the equivalent of such rating by either such rating organization or, if no rating of Moody’s or S&P then exists, the equivalent of such rating by any other Nationally Recognized Statistical Ratings Organization. “Issue Date” means August 8, 2017. “Issuer” has the meaning assigned to such term in the preamble hereto. -25- |
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“Liability” means any liability of Citibank, N.A., London Branch to the Issuer arising under or in connec-tion with this Indenture. “Lien” means, with respect to any asset, any mortgage, pledge, security interest, encumbrance, lien or charge of any kind in respect of such asset, including any conditional sale or other title retention agreement, and any lease in the nature thereof; provided that in no event shall an operating lease or a license to use Intellectual Property be deemed to constitute a Lien. “Limited Condition Transaction” means (i) any Permitted Acquisition or other Permitted Investment whose consummation is not conditioned on the availability of, or on obtaining, third party financing, (ii) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness requiring irrevocable notice in ad-vance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment and (iii) any Restricted Payment. “Management Advances” means loans and advances made to, or Guarantees with respect to Indebtedness of, directors, officers, employees, managers or consultants of any Parent Entity, the Issuer or any Restricted Subsidi-ary: (1) (a) in respect of travel, entertainment or moving related expenses Incurred in the ordinary course of business or consistent with past practice, (b) in respect of payroll advances, or (c) for purposes of funding any such person’s purchase of Subordinated Shareholder Funding or Capital Stock (or similar obli-gations) of the Issuer, its Subsidiaries or any Parent Entity, and promissory notes received from equityhold-ers of the Issuer, its Subsidiaries or any Parent Entity in connection with the exercise of stock or other op-tions in respect of the Capital Stock of the Issuer, its Subsidiaries or any Parent Entity; (2) in respect of moving related expenses Incurred in connection with any closing or consoli-dation of any facility or office; or (3) not exceeding the greater of (x) $40.0 million and (y) 10.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such loan, advance or Guarantee. “Management Equityholders” means any of (i) any current or former director, officer, employee or member of management of the Issuer or any of its Subsidiaries or any Parent Entity who, on the Escrow Release Date, is an equityholder in the Issuer or any Parent Entity, (ii) any trust, partnership, limited liability company, corporate body or other entity established by any such director, officer, employee or member of management of the Issuer or any of its Subsidiaries or any Parent Entity or any Person described in the succeeding clauses (iii) and (iv), as applicable, to hold an investment in the Issuer or any Parent Entity in connection with such Person’s estate or tax planning, (iii) any spouse, parents or grandparents of any such director, officer, employee or member of management of the Issuer or any of its Subsidiaries or any Parent Entity, and any and all descendants (including adopted children and stepchildren) of the foregoing, together with any spouse of any of the foregoing Persons, who are transferred an in-vestment in the Issuer or any Parent Entity by any such director, officer, employee or member of management of the Issuer or any of its Subsidiaries or any Parent Entity in connection with such Person’s estate or tax planning and (iv) any Person who acquires an investment in the Issuer or any Parent Entity by will or by the laws of intestate suc-cession as a result of the death of any such director, officer, employee or member of management of the Issuer or any of its Subsidiaries or any Parent Entity. “Market Capitalization” means an amount equal to (i) the total number of issued and outstanding shares of common equity interests of the Issuer or any Parent Entity on the date of the declaration of a Restricted Payment permitted pursuant to Section 3.3(b)(10) multiplied by (ii) the arithmetic mean of the closing prices per share of such common equity interests on the principal securities exchange on which such common equity interests are traded for the 30 consecutive trading days immediately preceding the date of declaration of such Restricted Payment. “Moody’s” means Moody’s Investors Service, Inc. or any of its successors or assigns that is a Nationally Recognized Statistical Rating Organization. -26- |
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“Nationally Recognized Statistical Rating Organization” means a nationally recognized statistical rating organization within the meaning of Rule 436 under the Securities Act. “Net Available Cash” from an Asset Disposition means (i) the gross cash proceeds (including payments from time to time in respect of installment obligations, if applicable, but only as and when received) received by or on behalf of the Issuer or any of the Restricted Subsidiaries in respect of such Asset Disposition, less (ii) the sum of: (1) the amount, if any, of all taxes (including, in each case, in connection with any repatria-tion of funds) paid or estimated to be payable by the Issuer or any of the Restricted Subsidiaries in connec-tion with such Asset Disposition; (2) the amount of any reasonable reserve established in accordance with GAAP against any liabilities (other than any taxes deducted pursuant to clause (1) above) (x) associated with the assets that are the subject of such Asset Disposition and (y) retained by the Issuer or any of the Restricted Subsidiaries; provided that the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Available Cash of such an Asset Dispo-sition occurring on the date of such reduction; (3) the amount of repayment of any Indebtedness (other than under any Credit Agreement) secured by a Lien on the assets that are the subject of such Net Available Cash to the extent that the instru-ment creating or evidencing such Indebtedness requires that such Indebtedness be repaid upon consumma-tion of such Asset Disposition; (4) the amount of any proceeds of such Asset Disposition that the Issuer or any Restricted Subsidiary has reinvested or committed to reinvest in accordance with Section 3.5; and (5) in the case of any Asset Disposition by a non-Wholly-Owned Restricted Subsidiary, the pro rata portion of the Net Available Cash thereof (calculated without regard to this clause (5)) attributable to minority interests and not available for distribution to or for the account of the Issuer or a Wholly-Owned Restricted Subsidiary as a result thereof; (6) any funded escrow established pursuant to the documents evidencing any such sale or disposition to secure any indemnification obligations or adjustments to the purchase price associated with any such sale or disposition; provided that the amount of any subsequent reduction of such escrow (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Available Cash from such Asset Disposition occurring on the date of such reduction solely to the extent that the Issu-er and/or any Restricted Subsidiary receives cash in an amount equal to the amount of such reduction; and (7) all fees and out of pocket expenses paid or incurred by the Issuer or a Restricted Subsidi-ary in connection with any of the foregoing or as a consequence of such Asset Disposition, in each case, only to the extent not already deducted in arriving at the amount referred to in clause (i) above. “Net Income” means, with respect to any Person, the net income (loss) of such Person and its Restricted Subsidiaries, determined in accordance with GAAP and before any reduction in respect of Preferred Stock divi-dends. “Non-Guarantor” means any Restricted Subsidiary that is not a Subsidiary Guarantor. “Non-U.S. Person” means a Person who is not a U.S. Person (as defined in Regulation S). “Notes Documents” means the Notes (including Additional Notes), the Note Guarantees, this Indenture, the Escrow Agreement and the Escrow Account Charge. “Notes” has the meaning ascribed to it in the first introductory paragraph of this Indenture. -27- |
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“Obligations” means any principal, interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Issuer or any Guarantor whether or not a claim for Post-Petition Interest is allowed in such proceedings), penalties, fees, indemnifications, reimbursements (including, without limi-tation, reimbursement obligations with respect to letters of credit and bankers’ acceptances), damages and other lia-bilities payable under the documentation governing any Indebtedness. “Offering Circular” means the final offering circular, dated July 25, 2017, relating to the offering by the Is-suer of €450,000,000 aggregate principal amount of 5.625% senior notes due 2025. “Officer” means, with respect to any Person, (1) the Chairman of the Board of Directors, the Chief Execu-tive Officer, the Chief Financial Officer, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer, the Controller or the Secretary, or any equivalent officer or director, of such Person, or (2) any other individual designated as an “Officer” or “Director” for the purposes of this Indenture by the Board of Directors of such Person. “Officer’s Certificate” means, with respect to any Person, a certificate signed by one Officer of such Per-son. “Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Trustee. The legal counsel may be an employee of or counsel to the Issuer or its Subsidiaries. “Outside Date” means October 16, 2017, as such date may be amended or extended pursuant to the Escrow Agreement. “Parent” means Constellation (BC) S.à r.l., a private limited liability company (société à responsabilité lim-itée) incorporated under laws of the Netherlands. “Parent Entity” means any direct or indirect parent of the Issuer. “Parent Entity Expenses” means: (1) costs (including all professional fees and expenses) Incurred by any Parent Entity in con-nection with reporting obligations under or otherwise Incurred in connection with compliance with applica-ble laws, rules or regulations of any governmental, regulatory or self-regulatory body or stock exchange, this Indenture or any other agreement or instrument relating to Indebtedness of the Issuer or any Restricted Subsidiary, including in respect of any reports filed with respect to the Securities Act, Exchange Act or the respective rules and regulations promulgated thereunder; (2) customary salary, bonus, severance (including, in each case, payroll, social security and similar taxes in respect thereof) and other benefits payable to, and indemnities provided on behalf of, direc-tors, officers, employees, consultants, managers or other Persons to the extent such salaries, bonuses, and other benefits are attributable to the ownership or operation of the Issuer and the Restricted Subsidiaries, including the Issuer’s and the Restricted Subsidiaries’ proportionate share of such amount relating to such Parent Entity being a public company; (3) obligations of any Parent Entity in respect of director and officer insurance (including premiums therefor) to the extent relating to the Issuer and its Subsidiaries; (4) customary indemnification obligations of any Parent Entity owing to directors, officers, employees or other Persons under its articles, charter, by-laws, partnership agreement or other constating documents or pursuant to written agreements with any such Person; (5) general corporate, administrative, compliance or other operating (including, without limi-tation, expenses related to auditing or other accounting matters) and overhead costs and expenses of any Parent Entity to the extent such costs and expenses are attributable to the ownership or operation of the Is--28- |
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suer and the Restricted Subsidiaries, including the Issuer’s and the Restricted Subsidiaries’ proportionate share of such amount relating to such Parent Entity being a public company; (6) amounts required for such Parent Entity to pay fees and expenses incurred by such Parent Entity related to (i) the maintenance by such Parent Entity of its corporate or other entity existence and (ii) transactions of such Parent Entity of the type described in clause (11) of the definition of “Consolidated Net Income”; (7) cash payments in lieu of issuing fractional shares in connection with the exercise of war-rants, options or other securities convertible into or exchangeable for Capital Stock of the Issuer or any Parent Entity; (8) repurchases deemed to occur upon the cashless exercise of stock or other equity options; (9) amounts to finance Permitted Acquisitions and other Investments or other acquisitions otherwise permitted to be made pursuant to Section 3.3 if made by the Issuer or a Restricted Subsidiary; provided, that (i) such Restricted Payment shall be made substantially concurrently with the closing of such Investment or other acquisition, (ii) such Parent Entity shall, promptly following the closing thereof, cause (1) all property acquired (whether assets or Capital Stock) to be contributed to the Issuer or a Restricted Subsidiary or (2) the merger, amalgamation, consolidation, or sale of the Person formed or acquired into the Issuer or a Restricted Subsidiary (in a manner not prohibited by Section 4.1) in order to consummate such Investment or other acquisition, (iii) such Parent Entity and its Affiliates (other than the Issuer or a Restricted Subsidiary) receives no consideration or other payment in connection with such transaction ex-cept to the extent the Issuer or a Restricted Subsidiary could have given such consideration or made such payment in compliance herewith, (iv) any property received in connection with such transaction shall not constitute an Excluded Contribution or increase amounts available for Restricted Payments pursuant to Sec-tion 3.3(a)(iii)(C) and (v) to the extent constituting an Investment, such Investment shall be deemed to be made by the Issuer or such Restricted Subsidiary pursuant to another provision of Section 3.3 or pursuant to the definition of “Permitted Investments”; (10) AHYDO Payments with respect to Indebtedness of any Parent Entity; and (11) expenses Incurred by any Parent Entity in connection with any public offering or other sale of Subordinated Shareholder Funding, Capital Stock or Indebtedness: (a) where the net proceeds of such offering or sale are intended to be received by or contributed to the Issuer or a Restricted Subsidiary, (b) in a pro-rated amount of such expenses in proportion to the amount of such net proceeds intended to be so received or contributed, or (c) otherwise on an interim basis prior to completion of such offering so long as any Parent Entity shall cause the amount of such expenses to be repaid to the Issuer or the relevant Re-stricted Subsidiary out of the proceeds of such offering promptly if completed. “Pari Passu Indebtedness” means Indebtedness of the Issuer which ranks equally in right of payment to the Notes or of any Guarantor if such Indebtedness ranks equally in right of payment to the Note Guarantees. “Participating Member States” means the participating member states of the economic and monetary union as contemplated in the Treaty on European Union. “Permitted Acquisitions” has the meaning provided in clause (2) of “Permitted Investments.” “Permitted Asset Swap” means the concurrent purchase and sale or exchange of assets used or useful in a Similar Business or a combination of such assets and cash and Cash Equivalents between the Issuer or any of its -29- |
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Restricted Subsidiaries and another Person; provided that any cash or Cash Equivalents received in excess of the value of any cash or Cash Equivalents sold or exchanged must be applied in accordance with Section 3.5. “Permitted Holder” means any of (i) any Sponsor and the Management Equityholders and any group (with-in the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of which any of the foregoing are members; provided that, in the case of such group and without giving effect to the existence of such group or any other group, the Sponsor, the Sponsor’s Affiliates and the Management Equityholders, collec-tively, have Beneficial Ownership of more than 50% of the aggregate ordinary voting power of the outstanding Vot-ing Stock of the Issuer or any Parent Entity; (ii) any Person who is acting solely as an underwriter in connection with a public or private offering of Capital Stock of any Parent Entity of the Issuer, acting in such capacity; and (iii) any Permitted Parent. Any Person or group whose acquisition of Beneficial Ownership constitutes a Change of Control in respect of which a Change of Control Offer is made in accordance with this Indenture will thereafter, together with its Affiliates, constitute an additional Permitted Holder. “Permitted Investment” means (in each case, by the Issuer or any of its Restricted Subsidiaries): (1) Investments in (a) a Restricted Subsidiary (including the Capital Stock of a Restricted Subsidiary) or the Issuer, or (b) a Person (including the Capital Stock of any such Person) that will, upon the making of such Investment, become a Restricted Subsidiary including, in each case, in connection with any Intercompany License Agreements; (2) any Investment by the Issuer or any Restricted Subsidiary in a Person that is engaged in a Similar Business if as a result of such Investment under this clause (2) (each, a “Permitted Acquisition”) ei-ther (x) such Person becomes a Restricted Subsidiary or (y) such Person, in one transaction or a series of related transactions, is merged, consolidated, or amalgamated with or into, or transfers or conveys all or substantially all of its assets, or transfers or conveys assets constituting a business unit, line of business or division of such Person, to, or is liquidated into, the Issuer or a Restricted Subsidiary, and, in each case, any Investment held by such Person; provided, that such Investment was not acquired by such Person in con-templation of such acquisition, merger, consolidation, amalgamation or transfer; (3) Investments in cash, Cash Equivalents or Investment Grade Securities at the time such Investment is made; (4) Investments in receivables owing to the Issuer or any Restricted Subsidiary created or ac-quired in the ordinary course of business; (5) Investments in payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business; (6) Management Advances; (7) any Investment acquired by the Issuer or any Restricted Subsidiary (a) in exchange for any other Investment or accounts receivable held by the Issuer or any such Restricted Subsidiary in connec-tion with or as a result of a bankruptcy, workout, reorganization, or recapitalization of, or settlement of de-linquent accounts or disputes with or judgments against, the issuer, obligor or borrower of such original In-vestment or accounts receivable, (b) as a result of a foreclosure by the Issuer or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default or (c) as a result of the settlement, compromise or resolution of litigation, arbitration or other dis-putes with Persons who are not Affiliates; (8) any Investment in securities or other assets not constituting cash, Cash Equivalents, or Investment Grade Securities and received in connection with an Asset Disposition made pursuant to Sec-tion 3.5 or any other disposition of assets not constituting an Asset Disposition; -30- |
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(9) Investments existing or pursuant to agreements or arrangements in effect on the Escrow Release Date and any modification, replacement, renewal, refinancing, reinvestment or extension thereof; provided that the amount of any such Investment may not be increased except (a) as required by the terms of such Investment as in existence on the Escrow Release Date (including in respect of any unused com-mitment), plus any accrued but unpaid interest (including any portion thereof which is payable in kind in accordance with the terms of such modified, extended, renewed, refinanced or replaced Investment) and premium payable by the terms of such Investment thereon and fees and expenses associated therewith as in existence on the Escrow Release Date and/or (b) as otherwise permitted under this Indenture; (10) Hedging Obligations, Cash Management Services and Bank Products, which transactions or obligations are Incurred in compliance with Section 3.2; (11) pledges or deposits required under any contractual requirement or by government au-thority or public utility, or Investments resulting from, or constituting, Liens otherwise described in the def-inition of “Permitted Liens” or made in connection with Liens permitted under Section 3.6, including in each case with respect to Taxes or other similar charges; (12) any Investment to the extent made using Capital Stock of the Issuer (other than Disquali-fied Stock), Subordinated Shareholder Funding or Capital Stock of any Parent Entity as consideration; pro-vided that such Capital Stock will not increase the amount available for Restricted Payments under Section 3.3(a)(iii)(B); (13) any transaction to the extent constituting an Investment that is permitted and made in ac-cordance with the provisions of Section 3.8(b) (except those described in Sections 3.8(b)(1) and (3)); (14) Investments consisting of purchases and acquisitions of inventory, supplies, materials, equipment, licenses or leases of intellectual property or other assets, or of services, in any case, in the ordi-nary course of business and in accordance with this Indenture; (15) (i) Guarantees of Indebtedness not prohibited by Section 3.2 and (other than with respect to Indebtedness) guarantees, keepwells and similar arrangements in the ordinary course of business, and (ii) Guarantees by the Issuer or any of its Restricted Subsidiaries of leases (other than Capital Leases) or of other obligations of the Issuer or any Restricted Subsidiary that do not constitute Indebtedness to the extent entered into in the ordinary course of business or consistent with past practice; (16) Investments consisting of earnest money deposits required in connection with a purchase agreement, or letter of intent, or other acquisitions to the extent not otherwise prohibited by this Indenture; (17) Investments of a Restricted Subsidiary acquired after the Escrow Release Date or of an entity merged into the Issuer or merged into or consolidated with a Restricted Subsidiary after the Escrow Release Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation; (18) Investments consisting of licensing, creation or contribution of intellectual property in the ordinary course of business, including in connection with Intercompany License Agreements; (19) business; Investments in deposit accounts and securities accounts opened in the ordinary course of (20) any Investment in a Similar Business having an aggregate fair market value, taken to-gether with all other Investments made pursuant to this clause (20) that are at that time outstanding, not to exceed the greater of (a) $155.0 million and (b) 40.0% of Consolidated EBITDA for the most recently end-ed Test Period (calculated on a Pro Forma Basis) at the time of such Investment (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in -31- |
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value); provided, however, that if any Investment pursuant to this clause (20) is made in any Person that is not a Restricted Subsidiary at the date of the making of such Investment and such Person becomes a Re-stricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (1)(a) above and shall cease to have been made pursuant to this clause (20) for so long as such Person continues to be a Restricted Subsidiary; (21) additional Investments having an aggregate fair market value, taken together with all oth-er Investments made pursuant to this clause (21) that are at that time outstanding, not to exceed the greater of (a) $155.0 million and (b) 40.0% of Consolidated EBITDA for the most recently ended Test Period (cal-culated on a Pro Forma Basis) at the time of such Investment (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value); provided that if such Investment is in Capital Stock of a Person that subsequently becomes a Restricted Subsidiary, such Investment shall thereafter be deemed permitted under clause (1)(a) above and shall not be included as hav-ing been made pursuant to this clause (21); (22) (i) any Investment in a Receivables Subsidiary or a Securitization Subsidiary in order to effectuate a Receivables Facility or a Qualified Securitization Financing, respectively, or any Investment by a Receivables Subsidiary or a Securitization Subsidiary in any other Person in connection with a Receiva-bles Facility or a Qualified Securitization Financing, respectively; provided, however, that any such In-vestment in a Receivables Subsidiary or a Securitization Subsidiary is in the form of a contribution of addi-tional Receivables Assets or Securitization Assets, as applicable, or as equity, and (ii) distributions or pay-ments of Receivables Fees or Securitization Fees and purchases of Receivables Assets or Securitization As-sets pursuant to a securitization repurchase obligation in connection with a Receivables Facility or a Quali-fied Securitization Financing, respectively; (23) the Transactions and Investments made to effect, or otherwise made in connection with, the Transactions or any non-cash Investments made in connection with Permitted Reorganizations; (24) Investments consisting of extensions of trade credit in the ordinary course of business; (25) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices; (26) [reserved]; (27) Investments in prepaid expenses, negotiable instruments held for collection and lease, utility and workers compensation, performance and similar deposits entered into as a result of the opera-tions of the business in the ordinary course of business; (28) Investments in Unrestricted Subsidiaries and joint ventures having an aggregate fair mar-ket value, taken together with all other Permitted Investments made pursuant to this clause (28) that are at the time outstanding, without giving effect to the sale of an Unrestricted Subsidiary to the extent the pro-ceeds of such sale do not consist of, or have not been subsequently sold or transferred for, Cash Equivalents or marketable securities, not to exceed the greater of (a) $125.0 million and (b) 35.0% of Consolidated EBITDA of the Issuer for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such Investment (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value); provided, however, if any Investment pursuant to this clause (28) is made in any Person that is an Unrestricted Subsidiary of the Issuer at the date of the mak-ing of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment will thereafter be deemed to have been made pursuant to clause (1)(a) above and will cease to have been made pursuant to this clause (28) for so long as such Person continues to be a Restricted Subsidiary; (29) repurchases of Notes; and -32- |
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(30) any additional Investments; provided that after giving Pro Forma Effect to such Invest-ments, (x) no Event of Default shall have occurred and be continuing (or would result immediately thereaf-ter therefrom) and (y) the Consolidated Total Net Leverage Ratio is equal to or less than 5.25 to 1.00 as of the most recently ended Test Period. “Permitted Liens” means, with respect to any Person: (1) Liens on assets or property of a Non-Guarantor securing Indebtedness or other obliga-tions of any Non-Guarantor; (2) pledges, deposits or Liens under workmen’s compensation laws, payroll taxes, health, disability or unemployment insurance laws, social security laws or similar legislation, or insurance related obligations (including pledges or deposits securing liability to insurance carriers under insurance or self-insurance arrangements), or in connection with bids, tenders, completion guarantees, contracts (other than for borrowed money) or leases, or to secure utilities, licenses, public or statutory obligations, or to secure surety, indemnity, judgment, appeal or performance bonds, guarantees of government contracts (or other similar bonds, instruments or obligations), or as security for contested taxes or import or customs duties or for the payment of rent, or deposits made to secure obligations arising from contractual or warranty re-funds, or other obligations of like nature, in each case Incurred in the ordinary course of business; (3) Liens imposed by law, including carriers’, warehousemen’s, mechanics’, landlords’, ma-terialmen’s, repairmen’s, construction contractors’ or other like Liens, in each case for sums not yet over-due for a period of more than 60 days or that are bonded or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review and for which ade-quate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP; (4) Liens for Taxes, assessments or other governmental charges which are not overdue for a period of more than 60 days or which are being contested in good faith by appropriate proceedings, or for property taxes on property of the Issuer or any Subsidiary thereof which the Issuer or such Subsidiary has determined to abandon if the sole recourse for such tax, assessment, charge, levy or claim is to such proper-ty; provided that appropriate reserves required pursuant to GAAP have been made in respect thereof; (5) encumbrances, ground leases, easements (including reciprocal easement agreements), survey exceptions, or reservations of, or rights of others for, licenses, rights of way, servitudes, sewers, electric lines, drains, telegraph, telephone lines, cable television lines, gas and oil pipelines and other simi-lar purposes, or zoning, building codes or other restrictions (including minor defects or irregularities in title and similar encumbrances) as to the use of real properties or Liens incidental to the conduct of the business of the Issuer and its Restricted Subsidiaries or to the ownership of their properties which do not in the ag-gregate materially adversely affect the value of said properties or materially impair their use in the opera-tion of the business of the Issuer and its Restricted Subsidiaries, and Liens disclosed as exceptions to cov-erage in the final title policies and endorsements with respect to any mortgaged properties; (6) Liens (a) on assets or property of the Issuer or any Restricted Subsidiary securing Hedg-ing Obligations permitted under this Indenture, Bank Products or Cash Management Services; (b) that are contractual rights of setoff or, in the case of clause (i) or (ii) below, other bankers’ Liens (i) relating to treasury, depository and Cash Management Services or any automated clearing house transfers of funds in the ordinary course of business and not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Issuer or any Subsidiary or (iii) relating to purchase orders and other agreements entered into with customers of the Issuer or any Restricted Subsidiary in the ordinary course of business; (c) on cash accounts securing Indebtedness incurred under Section 3.2(b)(8)(v) with financial in-stitutions; (d) encumbering reasonable customary initial deposits and margin deposits and similar Liens at-taching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of busi-ness, consistent with past practice and not for speculative purposes; and/or (e) (i) of a collection bank aris-ing under Section 4-208 of the Uniform Commercial Code on items in the course of collection, (ii) in favor -33- |
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of a banking institution arising as a matter of law encumbering deposits (including the right of setoff) aris-ing in the ordinary course of business in connection with the maintenance of such accounts and (iii) arising under customary general terms of the account bank in relation to any bank account maintained with such bank and attaching only to such account and the products and proceeds thereof, which Liens, in any event, do not to secure any Indebtedness; (7) leases, franchises, grants, licenses, covenants not to sue, releases, consents, subleases, and sublicenses of assets (including real property and intellectual property rights), in each case entered into in the ordinary course of business; (8) Liens securing judgments, decrees, orders or awards not giving rise to an Event of De-fault; (9) Liens (i) on assets or property of the Issuer or any Restricted Subsidiary for the purpose of securing Capitalized Lease Obligations, Purchase Money Obligations or Permitted Sale and Leasebacks, or securing the payment of all or a part of the purchase price of, or securing other Indebtedness Incurred to finance or refinance the acquisition, improvement or construction of, assets or property acquired or con-structed in the ordinary course of business; provided that (a) the aggregate principal amount of Indebted-ness secured by such Liens is otherwise permitted to be Incurred under Section 3.2(b)(7) and (b) any such Liens may not extend to any assets or property of the Issuer or any Restricted Subsidiary other than assets or property acquired, improved, constructed or leased with the proceeds of such Indebtedness and any im-provements or accessions to such assets and property and the proceeds and products thereof and customary security deposits in respect thereof and in the case of multiple financings of equipment provided by any lender, other equipment financed by such lender and (ii) any interest or title of a lessor under any Capital-ized Lease Obligations or operating lease; (10) Liens arising from Uniform Commercial Code financing statement filings (or similar fil-ings in other applicable jurisdictions) regarding operating leases entered into by the Issuer and its Restricted Subsidiaries in the ordinary course of business and other purported Liens (other than Liens securing Indebt-edness for borrowed money) evidenced by the filing of precautionary Uniform Commercial Code (or equivalent statute) financing statements or similar public filings; (11) Liens existing on the Escrow Release Date (and Liens securing any modifications, re-placements, renewals, refinancings, or extensions of the Indebtedness or other obligations secured by such Liens), excluding Liens securing the Credit Agreement; (12) Liens on property, other assets or shares of stock of a Person at the time such Person be-comes a Restricted Subsidiary (or at the time the Issuer or a Restricted Subsidiary acquires such property, other assets or shares of stock, including any acquisition by means of a merger, consolidation or other busi-ness combination transaction with or into the Issuer or any Restricted Subsidiary); provided, however, that such Liens are not created, Incurred or assumed in anticipation of or in connection with such other Person becoming a Restricted Subsidiary (or such acquisition of such property, other assets or stock); provided, further, that such Liens are limited to all or part of the same property, other assets or stock (any improve-ments, replacements of such property or assets and additions and accessions thereto, after-acquired property subjected to a Lien securing Indebtedness and other obligations Incurred prior to such time and which In-debtedness and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of after-acquired property, and the proceeds and the products thereof and customary security de-posits in respect thereof and in the case of multiple financings of equipment provided by any lender, other equipment financed by such lender) that secured (or, under the written arrangements under which such Liens arose, could secure) the obligations to which such Liens relate; (13) Liens on assets or property of the Issuer or any Restricted Subsidiary securing Indebted-ness or other obligations of the Issuer or such Restricted Subsidiary owing to the Issuer or another Restrict-ed Subsidiary, or Liens in favor of the Issuer or any Restricted Subsidiary; -34- |
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(14) Liens securing Indebtedness or obligations Incurred to refinance Indebtedness or obliga-tions that were previously so secured, and permitted to be secured under this Indenture (other than any Liens securing any Credit Facility Incurred pursuant to Section 3.2(b)(1)), including, without limitation, to secure any refinancing, refunding, extension, renewal or replacement (or successive refinancing, refunding, extension, renewal or replacement) as a whole, or in part, of any Indebtedness or obligations secured by a Lien referenced in this clause (14) and clauses (9), (11) and (12) of this definition; provided that any such Lien is limited to all or part of the same property or assets (any improvements, replacements of such prop-erty or assets and additions and accessions thereto, after-acquired property subjected to a Lien securing In-debtedness and other obligations Incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of after-acquired proper-ty, and the proceeds and the products thereof and customary security deposits in respect thereof and in the case of multiple financings of equipment provided by any lender, other equipment financed by such lender) that secured (or, under the written arrangements under which the original Lien arose, could secure) the In-debtedness being refinanced or is in respect of property that is or could be the security for or subject to a Permitted Lien hereunder; (15) (a) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any government, statutory or regulatory authority, developer, landlord or other third party on property over which the Issuer or any Restricted Subsidiary of the Issuer has easement rights or on any leased property and subordination or similar arrangements relating thereto, (b) any con-demnation or eminent domain proceedings affecting any real property and (c) restrictive covenants affect-ing the use to which real property may be put; provided that the covenants are complied with; (16) any encumbrance or restriction (including options, put and call arrangements, rights of first refusal and similar rights) with respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement; (17) Liens on property or assets under construction (and related rights) in favor of a contractor or developer or arising from progress or partial payments by a third party relating to such property or as-sets; (18) Liens arising out of conditional sale, title retention, hire purchase, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business or Liens arising by opera-tion of law under Article 2 of the Uniform Commercial Code (or any comparable or successor provision) in favor of a reclaiming seller of goods or buyer of goods; (19) Liens securing Indebtedness permitted to be Incurred pursuant to Section 3.2 (b)(1) (in-cluding under any Credit Facility (including any Credit Agreement) and any letter of credit facility relating thereto) or other obligations otherwise secured under any such Credit Facility; (20) Liens to secure Indebtedness (x) permitted by Section 3.2(b)(14) in an aggregate princi-pal amount not to exceed the greater of (a) $160.0 million and (b) 40.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of the incurrence of such Lien, at any one time outstanding, or (y) of any Non-Guarantor permitted by Section 3.2(b)(11) covering only the assets of such Subsidiary; provided that in the case of clause (x) above, such Liens will be either secured pari passu with the Notes and the Note Guarantees or secured on a junior priority basis to the Notes and the Note Guarantees; (21) Liens on Capital Stock or other securities or assets of any Unrestricted Subsidiary that se-cure Indebtedness or other obligations of such Unrestricted Subsidiary; (22) customary Liens of an indenture trustee (including the Trustee under this Indenture) on money or property held or collected by it to secure fees, expenses and indemnities owing to it by any obli-gor under an indenture; -35- |
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(23) Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances or documentary letters of credit issued or cre-ated for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods; (24) business; Liens on equipment of the Issuer or any Restricted Subsidiary in the ordinary course of (25) Liens on assets or securities deemed to arise in connection with and solely as a result of the execution, delivery or performance of contracts to sell such assets or securities if such sale is otherwise permitted by this Indenture; (26) Liens arising by operation of law or contract on insurance policies and the proceeds thereof to secure premiums thereunder, and Liens, pledges and deposits in the ordinary course of business securing liability for premiums or reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefits of) insurance carriers; (27) Liens solely on any cash earnest money deposits made in connection with any letter of in-tent or purchase agreement permitted under this Indenture; (28) Liens (i) on cash advances in favor of the seller of any property to be acquired in an In-vestment permitted pursuant to the definition of “Permitted Investments” to be applied against the purchase price for such Investment, and (ii) consisting of an agreement to sell any property in an asset sale permitted (or reasonably expected to be so permitted by the Issuer at the time such Lien was granted) under Section 3.5 in each case, solely to the extent such Investment or asset sale, as the case may be, would have been permitted on the date of the creation of such Lien; (29) Liens securing Indebtedness and other obligations in an aggregate principal amount not to exceed the greater of (a) $140.0 million and (b) 35.0% of Consolidated EBITDA for the most recently end-ed Test Period (calculated on a Pro Forma Basis) at the time of the incurrence of such Lien, at any one time outstanding; (30) Liens Incurred to secure Obligations in respect of any Indebtedness permitted to be In-curred pursuant to Section 3.2; provided that, with respect to Liens securing Obligations permitted under this clause, at the time of Incurrence and after giving Pro Forma Effect thereto, the Consolidated Secured Net Leverage Ratio would be no greater than 4.75 to 1.00 as of the most recently ended Test Period prior to the date of such Incurrence; provided that any cash proceeds of any new Indebtedness then being incurred shall not be netted from the numerator in the Consolidated Secured Net Leverage Ratio for purposes of cal-culating the Consolidated Secured Net Leverage Ratio under this clause (30) for purposes of determining whether such Liens can be Incurred; (31) Liens on (i) Securitization Assets arising in connection with a Qualified Securitization Financing or (ii) Receivables Assets arising in connection with a Receivables Facility; (32) Liens securing (i) any Obligations in respect of the Notes and any Guarantees thereof, (ii) securing Indebtedness subordinated to the Notes or any Note Guarantee so long as the Notes and Note Guarantees are secured by a Lien on the same assets that is senior in priority to such Lien and (iii) any Ob-ligations so long as the Notes and any Note Guarantees are equally and ratably secured; (33) Liens on cash set aside at the time of the Incurrence of any Indebtedness or government securities purchased with such cash, in either case to the extent such cash or government securities prefund the payment of interest on such Indebtedness and are held in an escrow account or similar arrangement to be applied for such purpose; -36- |
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(34) Liens arising in connection with any Permitted Reorganization or any Intercompany Li-cense Agreements; (35) [reserved]; (36) Liens deemed to exist in connection with Investments in repurchase agreements permit-ted under this Indenture; provided that such Liens do not extend to any assets other than those that are the subject of such repurchase agreement; (37) rights reserved or vested in any Person by the terms of any lease, license, franchise, grant or permit held by the Issuer or any of the Restricted Subsidiaries or by a statutory provision, to terminate any such lease, license, franchise, grant or permit, or to require annual or periodic payments as a condition to the continuance thereof; (38) with respect to any Foreign Subsidiary, other Liens and privileges arising mandatorily by any applicable law; (39) [reserved]; (40) Liens or rights of set-off against credit balances of the Issuer or any of the Restricted Subsidiaries with credit card issuers or credit card processors or amounts owing by such credit card issuers or credit card processors to the Issuer or any Restricted Subsidiaries in the ordinary course of business to secure the obligations of any Subsidiary to the credit card issuers or credit card processors as a result of fees and charges; (41) Liens on cash and Cash Equivalents that are earmarked to be used to satisfy or discharge Indebtedness; provided (a) such cash and/or Cash Equivalents are deposited into an account from which payment is to be made, directly or indirectly, to the Person or Persons holding the Indebtedness that is to be satisfied or discharged, (b) such Liens extend solely to the account in which such cash and/or Cash Equiva-lents are deposited and are solely in favor of the Person or Persons holding the Indebtedness (or any agent or trustee for such Person or Persons) that is to be satisfied or discharged, and (c) the satisfaction or dis-charge of such Indebtedness is expressly permitted under this Indenture; (42) Liens securing Guarantees of any Indebtedness or other obligations otherwise permitted to be secured by a Lien under this Indenture; and (43) prior to the Escrow Release Date, Liens on the Escrow Account and the Escrowed Prop-erty created for the benefit of, or to secure, directly or indirectly, the Notes. For the purposes of determining compliance with this definition, (A) a Lien need not be incurred solely by reference to one category of Permitted Liens described in this definition but are permitted to be incurred in part un-der any combination thereof and of any other available exemption, (B) in the event that a Lien (or any portion there-of) meets the criteria of one or more of the categories of Permitted Liens, the Issuer shall, in its sole discretion, clas-sify or reclassify such Lien (or any portion thereof) in any manner that complies with this definition and (C) the principal amount of Indebtedness secured by a Lien outstanding under any category of Permitted Liens shall be de-termined after giving effect to the application of the proceeds of any Indebtedness to refinance such Indebtedness. For purposes of this definition, the term “Indebtedness” shall be deemed to include interest, premiums (if any), fees, expenses and other obligations on such Indebtedness. “Permitted Parent” means (1) any Parent Entity for so long as it is majority controlled by one or more Per-sons that are Permitted Holders pursuant to clause (i) or (ii) of the definition thereof; provided that such Parent Enti-ty was not formed in connection with, or in contemplation of, a transaction (other than the Transactions) that would otherwise constitute a Change of Control; and (ii) any Public Company (or Wholly-Owned Subsidiary of such Pub-lic Company), if and for so long as no person or group (within the meaning of Rules 13d-3 and 13d-5 under the Ex--37- |
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change Act, but excluding any employee benefit plan and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), other than a Permitted Holder, has Beneficial Ownership of Voting Stock of such Public Company representing more than 50% of the aggregate ordinary voting power for the election of directors represented by the issued and outstanding equity interests of such Public Company. “Permitted Reorganization” means any reorganizations and other activities related to tax planning and tax reorganization, so long as, after giving effect thereto, the enforceability of the Note Guarantees, taken as a whole, is not materially impaired. “Permitted Sale and Leaseback” means any Sale and Leaseback Transaction with respect to the sale, trans-fer or disposition of real property or other property consummated by the Issuer or any of its Restricted Subsidiaries after the Escrow Release Date; provided that any such Sale and Leaseback Transaction must be consummated for fair market value as determined at the time of consummation in good faith by the Issuer or such Restricted Subsidi-ary (which such determination may take into account any retained interest or other Investment of the Issuer or such Restricted Subsidiary in connection with, and any other material economic terms of, such Sale and Leaseback). “Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company, government or any agency or political subdivision thereof or any other entity. “Post-Petition Interest” means any interest or entitlement to fees or expenses or other charges that accrue after the commencement of any bankruptcy or insolvency proceeding, whether or not allowed or allowable as a claim in any such bankruptcy or insolvency proceeding. “Pounds Sterling” means British Pounds Sterling or any successor currency in the United Kingdom. “Predecessor Note” of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 2.11 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Note. “Preferred Stock,” as applied to the Capital Stock of any Person, means Capital Stock of any class or clas-ses (however designated) which is preferred as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other class of such Person. “Pro Forma Basis” and “Pro Forma Effect” means, with respect to compliance with any test or covenant or calculation of any ratio hereunder, the determination or calculation of such test, covenant or ratio (including in con-nection with Specified Transactions) in accordance with the provisions set forth in the definition of “Consolidated Coverage Ratio” and under Section 1.5. “Public Company” means any Person with a class or series of Voting Stock that is traded on a stock ex-change or in the over-the-counter market. “Public Company Costs” means costs relating to compliance with the provisions of the Sarbanes-Oxley Act of 2002, the Securities Act and the Exchange Act, as applicable to companies with equity or debt securities held by the public, the rules of national securities exchange companies with listed equity or debt securities, directors’ or managers’ compensation, fees and expense reimbursement, costs relating to investor relations, shareholder meetings and reports to shareholders or debtholders, directors’ and officers’ insurance and other executive costs, legal and other professional fees, listing fees and other expenses arising out of or incidental to an entity’s status as a reporting company. “Purchase Agreement” means that certain Purchase Agreement dated as of March 25, 2017, by and be-tween the Issuer and Sealed Air Corporation. -38- |
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“Purchase Money Obligations” means any Indebtedness, Disqualified Stock or Preferred Stock Incurred or issued to finance or refinance the acquisition, leasing, construction or improvement of property (real or personal) or assets (including Capital Stock), and whether acquired through the direct acquisition of such property or assets or the acquisition of the Capital Stock of any Person owning such property or assets, or otherwise. “Purchasers” means Goldman Sachs International, Credit Suisse Securities (Europe) Limited, Merrill Lynch International, Barclays Bank PLC, Citigroup Global Markets Limited, RBC Europe Limited, HSBC Securi-ties (USA) Inc., SunTrust Robinson Humphrey, Inc. and Jefferies LLC. “QIB” means any “qualified institutional buyer” as such term is defined in Rule 144A. “Qualified Securitization Financing” means any Securitization Facility that meets the following conditions: (i) the Board of Directors shall have determined in good faith that such Qualified Securitization Financing (includ-ing financing terms, covenants, termination events and other provisions) is in the aggregate economically fair and reasonable to the Issuer and its Restricted Subsidiaries, (ii) all sales of Securitization Assets and related assets by the Issuer or any Restricted Subsidiary to the Securitization Subsidiary or any other Person are made for fair considera-tion (as determined in good faith by the Issuer) and (iii) the financing terms, covenants, termination events and other provisions thereof shall be fair and reasonable (as determined in good faith by the Issuer) and may include Standard Securitization Undertakings. “Qualified Stock” of any Person means Capital Stock of such Person other than Disqualified Stock of such Person. “Receivables Assets” means (a) any accounts receivable owed to the Issuer or a Restricted Subsidiary sub-ject to a Receivables Facility and the proceeds thereof and (b) all collateral securing such accounts receivable, all contracts and contract rights, guarantees or other obligations in respect of such accounts receivable, all records with respect to such accounts receivable and any other assets customarily transferred together with accounts receivable in connection with a non-recourse accounts receivable factoring arrangement and which are sold, conveyed, assigned or otherwise transferred or pledged by the Issuer in connection with a Receivables Facility. “Receivables Facility” means an arrangement between the Issuer or a Restricted Subsidiary and another Person pursuant to which (a) the Issuer or such Restricted Subsidiary, as applicable, sells (directly or indirectly) to such Person) accounts receivable owing by customers, together with Receivables Assets related thereto, (b) the obli-gations of the Issuer or such Restricted Subsidiary, as applicable, thereunder are non-recourse (except for Securitiza-tion Repurchase Obligations) to the Issuer and such Restricted Subsidiary and (c) the financing terms, covenants, termination events and other provisions thereof shall be on market terms (as determined in good faith by the Issuer) and may include Standard Securitization Undertakings, and shall include any guaranty in respect of such arrange-ments. “Receivables Fee” means distributions or payments made directly or by means of discounts with respect to any accounts receivable or participation interest issued or sold in connection with, and other fees paid to a Person that is not the Issuer or a Restricted Subsidiary in connection with, any Receivables Facility. “Receivables Subsidiary” means any Subsidiary formed for the purpose of facilitating or entering into one or more Receivables Facilities that engages only in activities reasonably related or incidental thereto or another Per-son formed for the purposes of engaging in a Receivables Facility in which any Subsidiary makes an Investment and to which any Subsidiary transfers accounts receivables and related assets. “Refinance” means refinance, refund, replace, renew, repay, modify, restate, defer, substitute, supplement, reissue, resell, extend or increase (including pursuant to any defeasance or discharge mechanism) and the terms “Re-finances,” “Refinanced” and “Refinancing” as used for any purpose in this Indenture shall have a correlative mean-ing. “Refinancing Indebtedness” means Indebtedness, Disqualified Stock or Preferred Stock that is Incurred to refund, refinance, replace, exchange, renew, repay or extend (including pursuant to any defeasance or discharge -39- |
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mechanism) any Indebtedness, Disqualified Stock or Preferred Stock existing on the Escrow Release Date or In-curred in compliance with this Indenture (including Indebtedness, Disqualified Stock or Preferred Stock that refi-nances Refinancing Indebtedness); provided, however, that: (1) such Refinancing Indebtedness has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is Incurred which is not less than the remaining Weighted Average Life to Ma-turity of the Indebtedness, Disqualified Stock or Preferred Stock being refunded, refinanced, replaced, ex-changed, renewed, repaid or extended; (2) such Refinancing Indebtedness has a final scheduled maturity date equal to or later than the final scheduled maturity date of the Indebtedness, Disqualified Stock or Preferred Stock being so re-funded, refinanced, replaced, exchanged, renewed, repaid or extended; (3) to the extent such Refinancing Indebtedness refinances (I) Indebtedness that is subordi-nated to the Notes or any Note Guarantee, such Refinancing Indebtedness is subordinated to the Notes or such Note Guarantee at least to the same extent, in all material respects, as the Indebtedness being re-financed, (II) Indebtedness that ranks pari passu with the Notes or any Note Guarantee, such Refinancing Indebtedness ranks no more senior than pari passu with the Notes or such Note Guarantee or (III) Disquali-fied Stock or Preferred Stock, such Refinancing Indebtedness consists of Disqualified Stock or Preferred Stock; (4) Refinancing Indebtedness shall not include: (i) Indebtedness, Disqualified Stock or Preferred Stock of a Subsidiary of the Issuer that is not a Subsidiary Guarantor that refinances Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or a Guarantor; or (ii) Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or a Restricted Subsidiary that refinances Indebtedness, Disqualified Stock or Preferred Stock of an Unrestricted Subsidiary; and (5) the aggregate principal amount, accreted value or liquidation preference, as applicable, of such Refinancing Indebtedness shall equal no more than the aggregate outstanding principal amount, ac-creted value or liquidation preference of the refinanced Indebtedness, Disqualified Stock or Preferred Stock (plus the amount of any unused commitments thereunder), plus accrued interest, fees, defeasance costs and premium (including call and tender premiums), if any, under the refinanced Indebtedness, Disqualified Stock or Preferred Stock, plus underwriting discounts, fees, commissions and expenses (including original issue discount, upfront fees and similar items) in connection with the refinancing of such Indebtedness, Disqualified Stock or Preferred Stock and the Incurrence of such Refinancing Indebtedness. Refinancing Indebtedness in respect of any Credit Facility or any other Indebtedness may be Incurred from time to time after the termination, discharge or repayment of all or any part of any such Credit Facility or other Indebt-edness; and, provided, further, that clauses (1) and (2) of this definition will not apply to any refunding, refinancing, re-placement, exchange, renewal, repayment or extension (including pursuant to any defeasance or discharge mecha-nism) of any Indebtedness Incurred under Section 3.2(b)(7), or Indebtedness assumed or acquired in a Permitted Acquisition or other acquisition constituting a Permitted Investment, and not created in contemplation thereof. Refinancing Indebtedness in respect of any Credit Facility or any other Indebtedness may be Incurred from time to time after the termination, discharge or repayment of any such Credit Facility or other Indebtedness. “Regulation S” means Regulation S under the Securities Act. “Regulation S-X” means Regulation S-X under the Securities Act. -40- |
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“Resolution Authority” means the German Federal Agency for Financial Markets Stabilisation (Bundesan-stalt für Finanzmarktstabilisierung), or any other body which has authority to exercise any Write-down and Conver-sion Powers. “Restricted Investment” means any Investment other than a Permitted Investment. “Restricted Notes” means Initial Notes and Additional Notes bearing one of the restrictive legends de-scribed in Section 2.1(d). “Restricted Notes Legend” means the legend set forth in Section 2.1(d)(1) and, in the case of the Tempo-rary Regulation S Global Note, the legend set forth in Section 2.1(d)(2). “Restricted Subsidiary” means any Subsidiary of the Issuer other than an Unrestricted Subsidiary. “Rule 144A” means Rule 144A under the Securities Act. “S&P” means Standard & Poor’s Investors Ratings Services or any of its successors or assigns that is a Na-tionally Recognized Statistical Rating Organization. “Sale and Leaseback Transaction” means any arrangement providing for the leasing by the Issuer or any of its Restricted Subsidiaries of any real or tangible personal property, which property has been or is to be sold or trans-ferred by the Issuer or such Restricted Subsidiary to a third Person in contemplation of such leasing. “SEC” means the U.S. Securities and Exchange Commission or any successor thereto. “Secured Indebtedness” means any Indebtedness secured by a Lien. “Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder, as amended. “Securitization Asset” means (a) any accounts receivable, mortgage receivables, loan receivables, royalty, franchise fee, license fee, patent or other revenue streams and other rights to payment or related assets and the pro-ceeds thereof and (b) all collateral securing such receivable or asset, all contracts and contract rights, guarantees or other obligations in respect of such receivable or asset, lockbox accounts and records with respect to such account or asset and any other assets customarily transferred (or in respect of which security interests are customarily granted) together with accounts or assets in connection with a securitization, factoring or receivable sale transaction. “Securitization Facility” means any of one or more securitization, financing, factoring or sales transactions, as amended, supplemented, modified, extended, renewed, restated or refunded from time to time, pursuant to which the Issuer or any of the Restricted Subsidiaries sells, transfers, pledges or otherwise conveys any Securitization As-sets (whether now existing or arising in the future) to a Securitization Subsidiary or any other Person. “Securitization Fees” means distributions or payments made directly or by means of discounts with respect to any Securitization Asset or participation interest therein issued or sold in connection with, and other fees and ex-penses (including reasonable fees and expenses of legal counsel) paid to a Person that is not a Restricted Subsidiary in connection with, any Qualified Securitization Financing. “Securitization Repurchase Obligation” means any obligation of a seller (or any guaranty of such obliga-tion) of Securitization Assets or Receivables Assets in a Qualified Securitization Financing or a Receivables Facility to repurchase Securitization Assets arising as a result of a breach of a representation, warranty or covenant or other-wise, including, without limitation, as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller. -41- |
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“Securitization Subsidiary” means any Subsidiary of the Issuer in each case formed for the purpose of and that solely engages in one or more Qualified Securitization Financings and other activities reasonably related thereto or another Person formed for the purposes of engaging in a Qualified Securitization Financing in which the Issuer or any Subsidiary of the Issuer makes an Investment and to which the Issuer or any Subsidiary of the Issuer transfers Securitization Assets and related assets. “Significant Subsidiary” means, at any date of determination, any Restricted Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the Issue Date. “Similar Business” means (a) any businesses, services or activities engaged in or proposed to be engaged in by Holdings, the Issuer or any of its Subsidiaries on the Escrow Release Date and (b) any businesses, services and activities engaged in by Holdings, the Issuer or any of its Subsidiaries that are related, complementary, synergistic, incidental, ancillary or similar to any of the foregoing (including non-core incidental businesses acquired in connec-tion with any Permitted Acquisition or permitted Investment) or are extensions or developments of any thereof. “Special Mandatory Redemption Price” means 100% of the principal amount of the Notes being redeemed, plus accrued and unpaid interest and Additional Amounts, if any, from the Issue Date to, but excluding, the Special Mandatory Redemption Date. “Specified Transaction” means: (a) any Investment that results in a Person becoming a Restricted Subsidiary; (b) any designation of a Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary; (c) any Permitted Acquisition; (d) any disposition that results in a Restricted Subsidiary ceasing to be a Subsidiary; (e) any Investment in, acquisition of, or disposition of, assets constituting a business unit, line of business or division of, or all or substantially all of the assets of, a Person; and (f) the incurrence of Indebtedness, making of a Restricted Payment or payment in respect of Indebtedness, or any other event, in respect of which compliance with any financial ratio is by the terms of this Indenture required to be calculated on a Pro Forma Basis or giving Pro Forma Effect to any such trans-action or event. “Sponsor” means Bain Capital Private Equity, L.P. and/or its Affiliates (including, as applicable, related funds, general partners thereof and limited partners thereof, but solely to the extent any such limited partners are directly or indirectly participating as investors pursuant to a side-by-side investing arrangement, but excluding, however, any portfolio company of any of the foregoing). “Sponsor Management Agreement” means the Management Agreement, to be dated on or about the Escrow Release Date, by and among Parent, Holdings, the Issuer and the Sponsor, as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time thereafter in any manner that is not adverse to the Holders in any material respect. “Standard Securitization Undertakings” means representations, warranties, covenants, guarantees and in-demnities entered into by the Issuer or any Subsidiary of the Issuer which the Issuer has determined in good faith to be customary in a Securitization Facility, including, without limitation, those relating to the servicing of the assets of a Securitization Subsidiary, it being understood that any Securitization Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking. -42- |
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“Stated Maturity” means, with respect to any security, the date specified in such security as the fixed date on which the payment of principal of such security is due and payable, including pursuant to any mandatory redemp-tion provision, but shall not include any contingent obligations to repay, redeem or repurchase any such principal prior to the date originally scheduled for the payment thereof. “Subordinated Indebtedness” means, with respect to the Notes, (a) any Indebtedness of the Issuer which by its terms is subordinated in right of payment to the Notes and (b) any Indebtedness of any Guarantor which by its terms is subordinated in right of payment to the Note Guarantee of such Guarantor. “Subordinated Shareholder Funding” means, collectively, any funds provided to the Issuer by a Parent En-tity, any Affiliate of a Parent Entity, a Permitted Holder or any Affiliate of a Permitted Holder in exchange for or pursuant to any security, instrument or agreement other than Capital Stock, in each case issued to and held by any of the foregoing Persons, together with any such security, instrument or agreement and any other security or instrument other than Capital Stock issued in payment of any obligation under any Subordinated Shareholder Funding; provid-ed, however, that such Subordinated Shareholder Funding: (1) does not mature or require any amortization, redemption or other repayment of principal or any sinking fund payment prior to the first anniversary of the Stated Maturity of the Notes (other than through conversion or exchange of such funding into Capital Stock (other than Disqualified Stock) of the Issuer or any funding meeting the requirements of this definition) or the making of any such payment prior to the first anniversary of the Stated Maturity of the Notes is restricted by an intercreditor agreement; (2) does not require, prior to the first anniversary of the Stated Maturity of the Notes, pay-ment of cash interest, cash withholding amounts or other cash gross-ups, or any similar cash amounts or the payment of any amount as a result of any such action or provision, in each case, prior to the first anniver-sary of the Stated Maturity of the Notes is restricted by an intercreditor agreement; (3) contains no change of control or similar provisions and does not accelerate and has no right to declare a default or event of default or take any enforcement action or otherwise require any cash payment, in each case, prior to the date that is six months after the Stated Maturity of the Notes or the pay-ment of any amount as a result of any such action or provision or the exercise of any rights or enforcement action, in each case, prior to the date that is six months following the Stated Maturity of the Notes, is re-stricted by an intercreditor agreement; (4) does not provide for or require any security interest or encumbrance over any asset of the Issuer or any of its Subsidiaries; and (5) pursuant to its terms or to an intercreditor or subordination agreement, is fully subordi-nated and junior in right of payment to the Notes pursuant to subordination, payment blockage and en-forcement limitation terms which are customary in all material respects for similar funding. “Subsidiary” means, with respect to any Person: (1) any corporation, association, or other business entity (other than a partnership, joint ven-ture, limited liability company or similar entity) of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the elec-tion of directors, managers or trustees thereof is at the time of determination owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof; or (2) any partnership, joint venture, limited liability company or similar entity of which: (a) more than 50% of the capital accounts, distribution rights, total equity and vot-ing interests or general or limited partnership interests, as applicable, are owned or controlled, di-rectly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a -43- |
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combination thereof whether in the form of membership, general, special or limited partnership in-terests or otherwise; and (b) such Person or any Subsidiary of such Person is a controlling general partner or otherwise controls such entity. Unless otherwise expressly provided, all references herein to a Subsidiary shall mean a Subsidiary of the Issuer. “Subsidiary Guarantor” means any Restricted Subsidiary that Guarantees the Notes, until such Note Guar-antee is released in accordance with the terms of this Indenture. “Swiss Withholding Tax” means the tax imposed based on the Swiss Federal Act on Withholding Tax of 13 October 1965 (Bundesgesetz über die Verrechnungssteuer), as amended. “Taxes” means all present and future taxes, levies, imposts, deductions, charges, duties and withholdings (including backup withholdings), fees and any charges of a similar nature (including interest, fines, penalties and other liabilities with respect thereto) that are imposed by any government or other taxing authority. “Test Period” means, for any determination hereunder, the four consecutive fiscal quarters of the Issuer then last ended for which financial statements pursuant to Sections 3.10(a)(1) and (2) have been furnished (or were required to be furnished) to the Trustee (or before the first furnishing of such financial statements, the most recent period of four consecutive fiscal quarters for which financial statements are available, as determined in good faith by the Issuer). “Total Assets” means, as of any date, the total consolidated assets of the Issuer and its Restricted Subsidiar-ies on a consolidated basis, as shown on the most recent consolidated balance sheet of the Issuer and its Restricted Subsidiaries, determined on a Pro Forma Basis. “Transaction Expenses” means any fees or expenses incurred or paid by Holdings, the Issuer or any Re-stricted Subsidiary, or any of their respective Affiliates, in connection with the Transactions, including, without limi-tation, expenses in connection with hedging transactions, if any, and payments to officers, employees and directors as change of control payments, severance payments, special or retention bonuses, payments on account of phantom units and charges for repurchase or rollover of, or modifications to, equity options and/or restricted equity. “Transactions” has the meaning provided in the Offering Circular. “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended. “Trust Officer” means, when used with respect to the Trustee, any vice president, assistant vice president, any trust officer or any other officer within the corporate trust department of the Trustee with direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of such person’s knowledge of and familiarity with the particular subject. “Trustee” means the party named as such in this Indenture until a successor replaces it and, thereafter, means the successor. “Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in the State of New York or another applicable jurisdiction. “United States” or “U.S.” means the United States of America. -44- |
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“Unrestricted Subsidiary” means: (1) any Subsidiary of the Issuer that at the time of determination is an Unrestricted Subsidi-ary (as designated by the Issuer in the manner provided below and under Section 3.20; and (2) any Subsidiary of an Unrestricted Subsidiary. The Issuer may designate any Subsidiary of the Issuer (including any newly acquired or newly formed Sub-sidiary or a Person becoming a Subsidiary through merger, consolidation or other business combination transaction, or Investment therein) to be an Unrestricted Subsidiary only if: (1) such Subsidiary or any of its Subsidiaries does not own any Capital Stock or Indebted-ness of, or own or hold any Lien on any property of, the Issuer or any other Subsidiary of the Issuer which is not a Subsidiary of the Subsidiary to be so designated or otherwise an Unrestricted Subsidiary; and (2) such designation and the Investment of the Issuer in such Subsidiary complies with Sec-tion 3.3. “Voting Stock” of a Person means all classes of Capital Stock of such Person then outstanding and normal-ly entitled to vote in the election of the Board of Directors of such Person. “Weighted Average Life to Maturity” means, when applied to any Indebtedness, Disqualified Stock or Pre-ferred Stock, as the case may be, at any date, the number of years obtained by dividing: (1) the sum of the products obtained by multiplying (i) the amount of each then remaining scheduled installment, sinking fund, serial maturity or other required scheduled payments of principal, in-cluding payment at final scheduled maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment by (2) ferred Stock; the then outstanding principal amount of such Indebtedness, Disqualified Stock or Pre-provided that for purposes of determining the Weighted Average Life to Maturity of any Indebtedness, Disqualified Stock or Preferred Stock that is being modified, refinanced, refunded, renewed, replaced or extended (the “Applica-ble Indebtedness”), the effects of any prepayments or amortization made on such Applicable Indebtedness prior to the date of the applicable modification, refinancing, refunding, renewal, replacement or extension shall be disre-garded. “Wholly Owned Domestic Subsidiary” means any Wholly-Owned Subsidiary that is a Domestic Subsidi-ary. “Wholly-Owned Subsidiary” of any Person means a Subsidiary of such Person, 100% of the outstanding Capital Stock or other ownership interests of which (other than (x) directors’ qualifying shares or other ownership interests and (y) a nominal number of shares or other ownership interests issued to foreign nationals to the extent required by applicable laws) shall at the time be owned by such Person or by one or more Wholly-Owned Subsidiar-ies of such Person. “Write-down and Conversion Powers” means any write-down, conversion, transfer, modification or sus-pension power existing from time to time under, and exercised in compliance with, any laws, regulations, rules or requirements in effect in Germany, relating to the transposition of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms as amended from time to time, including but not limited to the German Recovery and Resolution Act (Sanerungs-und Abwicklungsgesetz) as amended from time to time, and the instruments, rules and standards created thereunder, pursuant to which: -45- |
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(a) any obligation of Citibank, N.A., London Branch (or other affiliate of such entity) can be reduced, cancelled, modified or converted into shares, other securities or other obligations of such entity or any other person (or suspended for a temporary period); and (b) any right in a contract governing an obligation of Citibank, N.A., London Branch may be deemed to have been exercised. SECTION 1.2 Other Definitions. Defined in Section Term “Additional Amounts”.. “Additional Restricted Notes”.. “Affiliate Transaction”.. “Agent Members”... “Applicable Premium Deficit”. “Asset Disposition Offer”.. “Asset Sale Payment Date”. “Authorized Agent”.... “Automatic Exchange”... “Automatic Exchange Date”. “Automatic Exchange Notice”. “Automatic Exchange Notice Date”. “bankruptcy provisions”... “Change of Control Offer”.. “Change of Control Payment”.. “Change of Control Payment Date”...... “Covenant Defeasance”... “cross acceleration provision”. “Defaulted Interest”.... “EDGAR”..... “Event of Default”.... “Excess Proceeds”.... “Foreign Disposition”.. “Global Notes”.... “Guaranteed Obligations”.. “Increased Amount”... “Initial Agreement”... “Initial Default”..... “Initial Lien”.... “Issuer Order”.... “judgment default provision”. “LCT Election”.... “LCT Test Date”... “Legal Defeasance”.... “Legal Holiday”.... “Note Guarantee”... “Paying Agent”.... “payment default”... “Permanent Regulation S Global Note”..... “Permitted Payments”.. “protected purchaser”... “Redemption Date”... “Refunding Capital Stock”.. “Registrar”...... “Regulation S Global Note”. 3.21(a) 2.1(b) 3.8(a) 2.1(g)(2) 8.4(1) 3.5(b) 3.5(g)(2) 13.10 2.6(e) 2.6(e) 2.6(e) 2.6(e) 6.1(a)(5)(F) 3.9(a) 3.9(a) 3.9(a)(2) 8.3 6.1(a)(4)(B) 2.15 3.10(a) 6.1 3.5(b) 3.5(e) 2.1(b) 10.1 3.6(c) 3.4(b)(15) 6.2(c) 3.6 2.2 6.1(a)(7) 1.5(b) 1.5(b) 8.2 13.8 10.1 2.3 6.1(a)(4)(A) 2.1(b) 3.3(b) 2.11 5.7(a) 3.3(b)(2) 2.3 2.1(b) -46- |
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Defined in Section Term “Regulation S Notes”... “Resale Restriction Termination Date”..... “Reserved Indebtedness Amount”. “Restricted Global Note”.. “Restricted Payment”... “Restricted Period”.... “Reversion Date”... “Rule 144A Global Note”.. “Rule 144A Notes”... “Second Commitment”.. “Special Interest Payment Date”...... “Special Mandatory Redemption Date”..... “Special Mandatory Redemption Event”..... “Special Record Date”.. “Subsequent Transaction”.. “Successor Company”.. “Successor Person”... “Suspended Covenants”.. “Suspension Date”... “Suspension Period”.... “Tax Event Redemption Date”.. “Tax Group...... “Tax Jurisdiction”... “Temporary Regulation S Global Note”..... “Transfer Agent”... “Transition Period”... “Unrestricted Global Note”. 2.1(b) 2.6(b) 3.2(c)(11) 2.6(e) 3.3(a) 2.1(b) 3.19(b) 2.1(b) 2.1(b) 3.5(a)(3)(ii) 2.15(a) 5.9(a) 5.9(a) 2.15(a) 1.5(b) 4.1(a)(1) 4.1(g)(2)(ii) 3.19(a) 3.19(a) 3.19(b) 5.10(a) 3.3(b)(23) 3.21(a) 2.1(b) 2.3 3.10(b) 2.6(e) SECTION 1.3 [Reserved]. SECTION 1.4 Rules of Construction. Unless the context otherwise requires: (1) a term has the meaning assigned to it; (2) with GAAP; an accounting term not otherwise defined has the meaning assigned to it in accordance (3) “or” is not exclusive; (4) “including” means including without limitation; (5) words in the singular include the plural and words in the plural include the singular; (6) “will” shall be interpreted to express a command; (7) [reserved]; (8) [reserved]; (9) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; and -47- |
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(10) unless otherwise specifically indicated, the term “consolidated” with respect to any Per-son refers to such Person consolidated with its Restricted Subsidiaries, and excludes from such consolida-tion any Unrestricted Subsidiary as if such Unrestricted Subsidiary were not an Affiliate of such Person. SECTION 1.5 Limited Condition Transactions. (a) In connection with any action being taken in connection with a Limited Condition Transaction, for purposes of any provision of this Indenture which requires that no Default, Event of Default or specified Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condi-tion shall, at the option of the Issuer, be deemed satisfied, so long as no Default, Event of Default or specified Event of Default, as applicable, exists on the date the definitive agreement for such Limited Condition Transaction is en-tered into. (b) Furthermore, in connection with any action being taken in connection with a Limited Condition Transaction, for purposes of: (1) determining compliance with any provision of this Indenture which will require the cal-culation of any financial ratio or test, including the Consolidated Coverage Ratio, the Consolidated Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio; or (2) testing availability under baskets to be set forth in this Indenture (including baskets measured as a percentage of Consolidated EBITDA or Total Assets); in each case, at the option of the Issuer (the Issuer’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action is permitted here-under shall be deemed to be the date the definitive agreement for such Limited Condition Transaction is entered into (the “LCT Test Date”), and if, after giving Pro Forma Effect to the Limited Condition Transaction, the Issuer or any of its Restricted Subsidiaries would have been permitted to take such action on the relevant LCT Test Date in com-pliance with such ratio, test or basket, such ratio, test or basket shall be deemed to have been complied with. For the avoidance of doubt, if the Issuer has made an LCT Election and any of the ratios, tests or baskets for which compli-ance was determined or tested as of the LCT Test Date would have failed to have been satisfied as a result of fluctu-ations in any such ratio, test or basket, including due to fluctuations in Consolidated EBITDA or Total Assets, at or prior to the consummation of the relevant transaction or action, such baskets, tests or ratios will not be deemed to have failed to have been satisfied as a result of such fluctuations. If the Issuer has made an LCT Election for any Limited Condition Transaction, then in connection with any event or transaction occurring after the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement or date for redemption, repurchase, defeasance, satisfaction and discharge or re-payment specified in an irrevocable notice for such Limited Condition Transaction is terminated, expires or passes, as applicable, without consummation of such Limited Condition Transaction (a “Subsequent Transaction”) in con-nection with which a ratio, test or basket availability calculation must be made on a Pro Forma Basis or giving Pro Forma Effect to such Subsequent Transaction, for purposes of determining whether such ratio, test or basket availa-bility has been complied with under this Indenture, any such ratio, test or basket shall be required to be satisfied on a Pro Forma Basis (i) assuming such Limited Condition Transaction and other transactions in connection therewith have been consummated and (ii) assuming such Limited Condition Transaction and other transactions in connection therewith have not been consummated. ARTICLE II THE NOTES SECTION 2.1 Form, Dating and Terms. (a) The aggregate principal amount of Notes that may be authenticated and delivered under this In-denture is unlimited. The Initial Notes issued on the date hereof will be in an aggregate principal amount of €450,000,000. The Issuer may issue Additional Notes from time to time ranking pari passu with the Initial Notes -48- |
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without notice to, or consent of, the Holders, and such Additional Notes shall have the same terms as to status, re-demption or otherwise as the Initial Notes, other than with respect to the date of issuance, issue price and the amount of interest payable on the first interest payment date thereto; provided that if any Additional Notes are not fungible with the Initial Notes for U.S. federal income tax purposes, such Additional Notes will have a separate ISIN number or Common Code number, as applicable. Furthermore, Notes may be authenticated and delivered upon registration of transfer, exchange or in lieu of, other Notes pursuant to Section 2.2, 2.6, 2.11, 2.13, 5.6 or 9.5, in connection with an Asset Disposition Offer pursuant to Section 3.5 or in connection with a Change of Control Offer pursuant to Sec-tion 3.9. Notwithstanding anything to the contrary contained herein, the Issuer may not issue any Additional Notes, unless such issuance is in compliance with this Indenture, including Section 3.2. With respect to any Additional Notes, the Issuer shall set forth in (1) a Board Resolution and (2) (i) an Of-ficer’s Certificate and (ii) one or more indentures supplemental hereto, the following information: (A) the aggregate principal amount of such Additional Notes to be authenticated and deliv-ered pursuant to this Indenture; (B) the issue price and the issue date of such Additional Notes, including the date from which interest shall accrue; and (C) whether such Additional Notes shall be Restricted Notes. In authenticating and delivering Additional Notes, the Trustee shall be entitled to receive and shall be fully protected in relying upon, in addition to the Opinion of Counsel and Officer’s Certificate required by Section 13.4, an Opinion of Counsel as to the due authorization, execution, delivery, validity and enforceability of such Additional Notes. The Initial Notes and the Additional Notes shall be considered collectively as a single class for all purposes of this Indenture. Holders of the Initial Notes and the Additional Notes will vote and consent together on all matters to which such Holders are entitled to vote or consent as one class, and none of the Holders of the Initial Notes or the Additional Notes shall have the right to vote or consent as a separate class on any matter to which such Holders are entitled to vote or consent. If any of the terms of any Additional Notes are established by action taken pursuant to a Board Resolution of the Issuer, a copy of an appropriate record of such action shall be certified by the Secretary or any Assistant Sec-retary of the Issuer and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate and an inden-ture supplemental hereto setting forth the terms of the Additional Notes. (b) The Initial Notes are being offered and sold by the Issuer pursuant to a Purchase Agreement, dated July 25, 2017, among the Issuer, the Purchasers and, following the Escrow Release Date, the Guarantors (upon exe-cution of a joinder agreement to the Purchase Agreement) named therein. The Initial Notes and any Additional Notes (if issued as Restricted Notes) (the “Additional Restricted Notes”) will be resold initially only to (A) QIBs in reliance on Rule 144A and (B) Non-U.S. Persons in reliance on Regulation S. Such Initial Notes and Additional Restricted Notes may thereafter be transferred to, among others, QIBs and purchasers in reliance on Regulation S, in each case, in accordance with the procedures described herein. Additional Notes offered after the date hereof may be offered and sold by the Issuer from time to time pursuant to one or more purchase agreements in accordance with applicable law. Initial Notes and Additional Restricted Notes offered and sold to QIBs in the United States in reliance on Rule 144A (the “Rule 144A Notes”) shall be issued in the form of a permanent global Note substantially in the form of Exhibit A, which is hereby incorporated by reference and made a part of this Indenture, including appropriate legends as set forth in Section 2.1(d) and (e) (the “Rule 144A Global Note”), deposited with the Common Deposi-tary and registered in the name of the Common Depositary, or its nominee, duly executed by the Issuer and authenti-cated by the Trustee or Authentication Agent, as the case may be, as hereinafter provided. The aggregate principal -49- |
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amount of the Rule 144A Global Note may from time to time be increased or decreased by adjustments made on the records of the Registrar or its nominee, as hereinafter provided. Initial Notes and any Additional Restricted Notes offered and sold outside the United States (the “Regula-tion S Notes”) in reliance on Regulation S shall initially be issued in the form of a temporary global Note (the “Temporary Regulation S Global Note”). Beneficial interests in the Temporary Regulation S Global Note will be exchanged for beneficial interests in a corresponding permanent global Note substantially in the form of Exhibit A including appropriate legends as set forth in Section 2.1(d) and (e) (the “Permanent Regulation S Global Note” and, together with the Temporary Regulation S Global Note, each, a “Regulation S Global Note”) within a reasonable period after the expiration of the Restricted Period (as defined below) upon delivery of the certification contemplat-ed by Exhibit C. Each Regulation S Global Note will be deposited upon issuance with the Common Depositary and registered in the name of the Common Depositary, or its nominee, in the manner described in this Article II for cred-it to the respective accounts of the purchasers (or to such other accounts as they may direct). Prior to the 40th day after the later of the commencement of the offering of the Initial Notes and the Issue Date (such period through and including such 40th day, the “Restricted Period”), interests in the Temporary Regulation S Global Note may only be transferred to non-U.S. persons pursuant to Regulation S, unless exchanged for interests in a Global Note in accord-ance with the transfer and certification requirements described herein. The aggregate principal amount of the Regulation S Global Note may from time to time be increased or de-creased by adjustments made on the records of the Registrar or its nominee, as hereinafter provided. The Rule 144A Global Note and the Regulation S Global Note are sometimes collectively herein referred to as the “Global Notes.” The principal, interest and premium and Additional Amounts, if any, on the Global Notes will be made by one or more Paying Agents by wire transfer of immediately available funds to the account specified by the regis-tered Holder thereof (being the Common Depositary or its nominee for Euroclear and Clearstream). Principal, inter-est and premium and Additional Amounts, if any, on any Definitive Notes will be payable at the specified office or agency of one or more Paying Agents maintained for such purposes in the City of London. In addition, interest on the Definitive Notes may be paid, at the option of the Issuer, by check sent by first-class mail, postage prepaid, to the address of the Holder entitled thereto as shown on the register of Holders of Notes for the Definitive Notes. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage, in addition to those set forth on Exhibit A and in Section 2.1(d) and (e). The Issuer shall approve any notation, en-dorsement or legend on the Notes. Each Note shall be dated the date of its authentication. The terms of the Notes set forth in Exhibit A are part of the terms of this Indenture and, to the extent applicable, the Issuer, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to be bound by such terms. How-ever, 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. (c) Denominations. The Notes shall be in minimum denominations of €100,000 and integral multi-ples of €1,000 in excess thereof. (d) Restrictive Legends. Unless and until (i) an Initial Note or an Additional Note issued as a Re-stricted Note is sold under an effective registration statement or (ii) each of the Issuer and the Registrar receives an Opinion of Counsel reasonably satisfactory to it stating that neither such legend nor the related restrictions on trans-fer are required in order to maintain compliance with the provisions of the Securities Act: (1) the Rule 144A Global Note and the Regulation S Global Note shall bear the following legend on the face thereof: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY OTHER APPLICABLE JURISDICTION AND THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSU--50- |
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ANT TO AN EFFECTIVE REGISTRATION STATEMENT OR IN ACCORDANCE WITH AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIRE-MENTS OF THE SECURITIES ACT (SUBJECT TO THE DELIVERY OF SUCH EV-IDENCE, IF ANY, REQUIRED UNDER THE INDENTURE PURSUANT TO WHICH THIS NOTE IS ISSUED) AND IN ACCORDANCE WITH ANY APPLICABLE SE-CURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMP-TION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PRO-VIDED BY RULE 144A THEREUNDER OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1)(a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTI-TUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EX-EMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE ISSUER SO RE-QUESTS), SUBJECT TO THE RECEIPT BY THE REGISTRAR OF A CERTIFICA-TION OF THE TRANSFEROR AND AN OPINION OF COUNSEL TO THE EFFECT THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (2) TO THE ISSUER OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL AND EACH SUBSE-QUENT HOLDER IS REQUIRED TO NOTIFY ANY PURCHASER FROM IT OF THE NOTE EVIDENCED HEREBY OF THE RESALE RESTRICTION SET FORTH IN (A) ABOVE. (2)the Temporary Regulation S Global Note shall bear the following additional legend on the face thereof: THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANS-ACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE U.S. SE-CURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE AC-COUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULA-TION S UNDER THE SECURITIES ACT. (e) Global Note Legend. Each Global Note, whether or not an Initial Note, shall bear the following legend on the face thereof: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REG-ISTERED IN THE NAME OF THE COMMON DEPOSITARY OR A NOMINEE OF THE COMMON DEPOSITARY OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AU-THORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY (AND ANY PAYMENT IS MADE TO ITS NOMINEE OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN -51- |
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AUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PER-SON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, A NOMINEE OF THE COMMON DEPOSITARY, HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO THE COMMON DEPOSITARY, TO NOMINEES OF THE COM-MON DEPOSITARY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMI-NEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF. (f) [Reserved]. (g) Book-Entry Provisions. (i) This Section 2.1(g) shall apply only to Global Notes deposited with the Common Depositary. (1) Each Global Note initially shall (x) be registered in the name of the Common Depositary or the nominee of the Common Depositary, (y) be delivered to the Common Depositary and (z) bear leg-ends as set forth in Section 2.1(e). Transfers of a Global Note (but not a beneficial interest therein) will be limited to transfers thereof in whole, but not in part, to the Common Depositary, its successors or its respec-tive nominees, except as set forth in Section 2.1(g)(4) and 2.1(h). If a beneficial interest in a Global Note is transferred or exchanged for a beneficial interest in another Global Note, the Registrar will (x) record a de-crease in the principal amount of the Global Note being transferred or exchanged equal to the principal amount of such transfer or exchange and (y) record a like increase in the principal amount of the other Global Note. Any beneficial interest in one Global Note that is transferred to a Person who takes delivery in the form of an interest in another Global Note, or exchanged for an interest in another Global Note, will, upon transfer or exchange, cease to be an interest in such Global Note and become an interest in the other Global Note and, accordingly, will thereafter be subject to all transfer and exchange restrictions, if any, and other procedures applicable to beneficial interests in such other Global Note for as long as it remains such an interest. (2) Members of, or participants or account holders in, Euroclear or Clearstream (“Agent Members”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Common Depositary or under such Global Note, and the Common Depositary or its nominee 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 Euroclear or Clearstream or impair, as between Euroclear or Clearstream, as the case may be, and their respective Agent Members, the operation of customary practices of such persons governing the exercise of the rights of a holder of a beneficial interest in any Global Note. (3) In connection with any transfer of a portion of the beneficial interest in a Global Note pursuant to Section 2.1(h) to beneficial owners who are required to hold Definitive Notes, the Registrar shall reflect on its books and records the date and a decrease in the principal amount of such Global Note in an amount equal to the principal amount of the beneficial interest in the Global Note to be transferred, and the Issuer shall execute, and the Trustee or the Authentication Agent, as the case may be, shall authenticate and make available for delivery, one or more Definitive Notes of like tenor and amount. (4) In connection with the transfer of an entire Global Note to beneficial owners pursuant to Section 2.1(h), such Global Note shall be deemed to be surrendered to the Registrar for cancellation, and the Issuer shall execute, and the Trustee or the Authentication Agent, as the case may be, shall authenticate and make available for delivery, to each beneficial owner identified by the nominee of the Common Depos-itary in exchange for its beneficial interest in such Global Note, an equal aggregate principal amount of De-finitive Notes of authorized denominations. -52- |
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(5) 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. (6) Any Holder of a Global Note shall, by acceptance of such Global Note, agree that trans-fers of beneficial interests in such Global Note may be effected only through a book-entry system main-tained by (i) the Holder of such Global Note (or its agent) or (ii) any holder of a beneficial interest in such Global Note, and that ownership of a beneficial interest in such Global Note shall be required to be reflect-ed in a book entry. (h) Definitive Notes. Except as provided below, owners of beneficial interests in Global Notes will not be entitled to receive Definitive Notes. Definitive Notes shall be transferred to all beneficial owners in exchange for their beneficial interests in a Global Note if (A) Euroclear or Clearstream notifies the Issuer that it is unwilling or unable to continue as Depositary for the Global Note and the Issuer fails to appoint a successor depositary within 90 days of such notice or (B) if the beneficial owner of a Global Note requests such exchange in writing delivered through Euroclear or Clearstream following an Event of Default and commencement of enforcement action under this Indenture. In the event of the occurrence of any of the events specified in clause (A) or (B) of the preceding sentence, the Issuer shall promptly make available to the Authentication Agent a sufficient supply of Definitive Notes. In addition, any Note transferred to an affiliate (as defined in Rule 405 under the Securities Act) of the Issuer or evidencing a Note that has been acquired by an affiliate in a transaction or series of transactions not involving any public offering must, until one year after the last date on which either the Issuer or any affiliate of the Issuer was an owner of the Note, be in the form of a Definitive Note and bear the legend regarding transfer restrictions in Section 2.1(d). (1) Any Definitive Note delivered in exchange for an interest in a Global Note pursuant to Section 2.1(h) shall, except as otherwise provided by Section 2.6(d), bear the applicable legend regarding transfer restrictions applicable to the Global Note set forth in Section 2.1(d). (2) If a Definitive Note is transferred or exchanged for a beneficial interest in a Global Note, (x) the Registrar will cancel such Definitive Note, (y) the Registrar will record an increase in the principal amount of such Global Note equal to the principal amount of such transfer or exchange and (z) in the event that such transfer or exchange involves less than the entire principal amount of the cancelled Definitive Note, the Issuer shall execute, and the Trustee or the Authentication Agent, as the case may be, shall au-thenticate and make available for delivery, to the transferring Holder a new Definitive Note representing the principal amount not so transferred. (3) If a Definitive Note is transferred or exchanged for another Definitive Note, (x) the Reg-istrar will cancel the Definitive Note being transferred or exchanged, (y) the Issuer shall execute, and the Trustee or the Authentication Agent, as the case may be, shall authenticate and make available for delivery, one or more new Definitive Notes in authorized denominations having an aggregate principal amount equal to the principal amount of such transfer or exchange to the transferee (in the case of a transfer) or the Hold-er of the cancelled Definitive Note (in the case of an exchange), registered in the name of such transferee or Holder, as applicable, and (z) if such transfer or exchange involves less than the entire principal amount of the cancelled Definitive Note, the Issuer shall execute, and the Trustee or the Authentication agent, as the case may be, shall authenticate and make available for delivery to the Holder thereof, one or more Defini-tive Notes in authorized denominations having an aggregate principal amount equal to the untransferred or unexchanged portion of the cancelled Definitive Notes, registered in the name of the Holder thereof. (4) Notwithstanding anything to the contrary in this Indenture, in no event shall a Definitive Note be delivered upon exchange or transfer of a beneficial interest in the Temporary Regulation S Global Note prior to the end of the Restricted Period. SECTION 2.2 Execution and Authentication. One Officer shall sign the Notes for the Issuer by man-ual, facsimile or PDF signature. If the Officer whose signature is on a Note no longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless. -53- |
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A Note shall not be valid until an authorized signatory of the Trustee or the Authentication Agent manually authenticates the Note. The signature of the Trustee or the Authentication Agent on a Note shall be conclusive evi-dence that such Note has been duly and validly authenticated and issued under this Indenture. A Note shall be dated the date of its authentication. At any time and from time to time after the execution and delivery of this Indenture, the Issuer shall issue and the Trustee or the Authentication Agent, as the case may be shall authenticate and make available for delivery: (1) Initial Notes for original issue on the Issue Date in an aggregate principal amount of €450,000,000, (2) subject to the terms of this Indenture, Additional Notes for original issue in an unlimited principal amount, and (3) under the circumstances set forth in Section 2.6(e), Initial Notes in the form of an Unrestricted Global Note, in each case upon a written order of the Issuer signed by one Officer (the “Issuer Order”). Such Issuer Order shall specify whether the Notes will be in the form of Definitive Notes or Global Notes, the amount of the Notes to be authenticated, the date on which the original issue of Notes is to be authenticated, the Holder and whether the Notes are to be Initial Notes or Additional Notes. The Issuer may appoint an Authentication Agent reasonably acceptable to the Trustee to authenticate the Notes. Any such appointment shall be evidenced by an instrument signed by an Officer, a copy of which shall be furnished to the Trustee. Unless limited by the terms of such appointment, any such Authentication Agent may au-thenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by the Authentication Agent. An Authentication Agent has the same rights as any Registrar, Transfer Agent, Paying Agent or agent for service of notices and demands. The Issuer hereby appoints Citibank, N.A., London Branch to act as the Authentication Agent. In case the Issuer or any Guarantor, pursuant to Article IV or Section 10.2, as applicable, shall be consoli-dated or merged with or into any other Person or shall convey, transfer or lease all or substantially all of its assets to any Person, and the successor Person resulting from such consolidation, or surviving such merger, or into which the Issuer or any Guarantor shall have been merged, or the Person which shall have received a conveyance, transfer or lease as aforesaid, shall have executed an indenture supplemental hereto with the Trustee pursuant to Article IV, any of the Notes authenticated or delivered prior to such consolidation, merger, conveyance, transfer or lease may (but shall not be required), from time to time, at the request of the successor Person, be exchanged for other Notes exe-cuted in the name of the successor Person with such changes in phraseology and form as may be appropriate to re-flect such successor Person, but otherwise in substance of like tenor as the Notes surrendered for such exchange and of like principal amount; and the Trustee or the Authentication Agent, as the case may be, upon the Issuer Order of the successor Person, shall authenticate and make available for delivery Notes as specified in such order for the pur-pose of such exchange. If Notes shall at any time be authenticated and delivered in any new name of a successor Person pursuant to this Section 2.2 in exchange or substitution for or upon registration of transfer of any Notes, such successor Person, at the option of the Holders but without expense to them, shall provide for the exchange of all Notes at the time outstanding for Notes authenticated and delivered in such new name. SECTION 2.3 Registrar, Transfer Agent and Paying Agent. The Issuer shall maintain (x) an office or agency where Notes may be presented for registration of transfer or for exchange (the “Registrar”), (y) an office or agency in London, England where Notes may be presented for payment (the “Paying Agent”) and (z) an office or agency where Notes may be transferred or exchanged (the “Transfer Agent”). The Registrar shall keep a register of the Notes and of their transfer and exchange. The Registrar shall provide a copy of such register from time to time upon request of the Issuer. The Issuer may appoint one or more co-registrars, one or more transfer agents and one or more additional paying agents. The term “Registrar” includes any co-registrars. The term “Paying Agent” means the Paying Agent and any additional paying agent. The term “Transfer Agent” includes any co-transfer agents. The Issuer shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. The Issuer shall enter into an appropriate agency agreement with any Registrar, Transfer Agent or Paying Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such Agent. The Issuer shall notify the Trustee in writing of the name and address of each such Agent. If the Issuer fails to maintain a Registrar, Transfer Agent or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.7. The Issuer or any Guarantor may act as Paying Agent, Registrar or Transfer Agent. -54- |
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The Issuer may change any Paying Agent, Registrar or Transfer Agent for the Notes without prior notice to the Holders of such Notes. However, if and for so long as Notes are listed on the Exchange and if and to the extent the rules of the Exchange so require, the Issuer will notify the Exchange of any change of Paying Agent or Registrar in respect of the Notes. The Issuer will notify the Trustee, in writing, of any change to the Paying Agent or Registrar in respect of the Notes. The Registrar, Paying Agent or Transfer Agent may resign at any time upon written notice to the Issuer and the Trustee. The Issuer initially appoints Citibank, N.A., London Branch as Paying Agent, Registrar and Transfer Agent. SECTION 2.4 Paying Agent to Hold Money. Prior to 11:00 a.m. London time, on each due date of the principal of, premium, if any, or interest or Additional Amounts on any Note is due and payable, the Issuer shall deposit with the Paying Agent a sum sufficient in Euro in immediately available funds to pay such principal, premi-um or interest when due. The Issuer shall require the Paying Agent (other than the Trustee) to agree in writing that such Paying Agent shall notify the Trustee in writing of any default by the Issuer or any Guarantor in making any such payment and shall during the continuance of any default by the Issuer (or any other obligor upon the Notes) in the making of any payment in respect of the Notes, upon the written request of the Trustee, forthwith deliver to the Trustee all sums held by such Paying Agent for payment in respect of the Notes together with a full accounting thereof. If the Issuer or a Subsidiary of the Issuer acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund for the benefit of the Trustee and the Holders. The Issuer at any time may require a Paying Agent (other than the Trustee) to pay all money held by it to the Trustee and to account for any funds or assets disbursed by such Paying Agent. Upon complying with this Section 2.4, the Paying Agent (if other than the Issuer or a Subsidiary of the Issuer) shall have no further liability for the money delivered to the Trus-tee. Upon any bankruptcy, reorganization or similar proceeding with respect to the Issuer, the Trustee shall serve as Paying Agent for the Notes. The Paying Agent will hold all funds received pursuant hereto as banker and as a result, such money will not be held in accordance with the rules established by the United Kingdom’s Financial Conduct Authority in the Financial Conduct Authority’s Handbook of rules and guidance from time to time in relation to cli-ent money. The Paying Agent shall not be bound to make any payment pursuant to this Indenture unless and until it is has received in cleared funds the full amounts due from the Issuer or any Guarantor pursuant to this Section 2.4. The Issuer shall before 10:00 a.m. (London time), on the second Business Day prior to the day on which the Paying Agent is to receive payment, procure that the bank effecting payment for it confirms by fax or tested SWIFT MT100 message to the Paying Agent the payment instructions relating to such payment. SECTION 2.5 Holder Lists. The Registrar shall preserve in as current a form as is reasonably practi-cable the most recent list available to it of the names and addresses of all Holders. If the Trustee is not the Registrar, the Issuer, on its own behalf and on behalf of each of the Guarantors, shall furnish or cause the Registrar to furnish to the Paying Agent, in writing at least five (5) Business Days before each interest payment date and to the Paying Agent or, as the case may be, the Trustee at such other times as the Trustee or the Paying Agent may request in writ-ing, a list in such form and as of such date as the Trustee and the Paying Agent may reasonably require of the names and addresses of all Holders. SECTION 2.6 Transfer and Exchange. (a) A Holder may transfer a Note (or a beneficial interest therein) to another Person or exchange a Note (or a beneficial interest therein) for another Note or Notes of any authorized denomination by presenting to the Registrar a written request therefor stating the name of the proposed transferee or requesting such an exchange, ac-companied by any certification, opinion or other document required by this Section 2.6. The Registrar will promptly register any transfer or exchange that meets the requirements of this Section 2.6 by noting the same in the register maintained by the Registrar for the purpose, and no transfer or exchange will be effective until it is registered in such register. The transfer or exchange of any Note (or a beneficial interest therein) may only be made in accord-ance with this Section 2.6 and Section 2.1(g) and 2.1(h), as applicable, and, in the case of a Global Note (or a bene-ficial interest therein), the applicable rules and procedures of Euroclear and Clearstream. The Registrar shall refuse to register any requested transfer or exchange that does not comply with this paragraph. -55- |
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(b) Transfers of Rule 144A Notes. The following provisions shall apply with respect to any proposed registration of transfer of a Rule 144A Note prior to the date that is one year after the later of the date of its original issue and the last date on which the Issuer or any Affiliate of the Issuer was the owner of such Notes (or any prede-cessor thereto) (the “Resale Restriction Termination Date”): (1) a registration of transfer of a Rule 144A Note or a beneficial interest therein to a QIB shall be made upon the representation of the transferee in the form as set forth on the reverse of the Note that it is purchasing 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 its foregoing representations in order to claim the exemption from registration provided by Rule 144A; pro-vided that no such written representation or other written certification shall be required in connection with the transfer of a beneficial interest in the Rule 144A Global Note to a transferee in the form of a beneficial interest in that Rule 144A Global Note in accordance with this Indenture and the applicable procedures of Euroclear and Clearstream; (2) [reserved]; and (3) a registration of transfer of a Rule 144A Note or a beneficial interest therein to a Non-U.S. Person shall be made upon receipt by the Issuer and the Registrar or its agent of a certificate substan-tially in the form set forth in Exhibit D from the proposed transferee and the delivery of an Opinion of Counsel, certification and/or other information satisfactory to the Issuer. (c) Transfers of Regulation S Notes. The following provisions shall apply with respect to any pro-posed transfer of a Regulation S Note prior to the expiration of the Restricted Period: (1) a transfer of a Regulation S Note or a beneficial interest therein to a QIB shall be made upon the representation of the transferee, in the form of assignment on the reverse of the Note, that it is purchasing the 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, is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has re-ceived 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 its foregoing representations in order to claim the exemption from registration provided by Rule 144A; (2) [reserved]; and (3) a transfer of a Regulation S Note or a beneficial interest therein to a Non-U.S. Person shall be made upon receipt by the Registrar or its agent of a certificate substantially in the form set forth in Exhibit D hereof from the proposed transferee and receipt by the Registrar or its agent of an Opinion of Counsel, certification and/or other information satisfactory to the Issuer. After the expiration of the Restricted Period, interests in the Regulation S Note may be transferred in ac-cordance with applicable law without requiring the certification set forth in Exhibit D or any additional certification. (d) Restricted Notes Legend. Upon the transfer, exchange or replacement of Notes not bearing a Re-stricted Notes Legend, the Registrar shall deliver Notes that do not bear a Restricted Notes Legend. Upon the trans-fer, exchange or replacement of Notes bearing a Restricted Notes Legend, the Registrar shall deliver only Notes that bear a Restricted Notes Legend unless (1) an Initial Note is being transferred pursuant to an effective registration statement, (2) Initial Notes are being exchanged for Notes that do not bear the Restricted Notes Legend in accord-ance with Section 2.6(e) or (3) there is delivered to each of the Issuer and the Registrar an Opinion of Counsel satis-factory to it stating that neither such legend nor the related restrictions on transfer are required in order to maintain -56- |
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compliance with the provisions of the Securities Act. Any Additional Notes sold in a registered offering shall not be required to bear the Restricted Notes Legend. (e) Automatic Exchange from Global Note Bearing Restricted Notes Legend to Global Note Not Bearing Restricted Notes Legend. Upon the Issuer’s satisfaction that the Restricted Notes Legend shall no longer be required in order to maintain compliance with the Securities Act, beneficial interests in a Global Note bearing the Restricted Notes Legend (a “Restricted Global Note”) may be automatically exchanged into beneficial interests in a Global Note not bearing the Restricted Notes Legend (an “Unrestricted Global Note”) without any action required by or on behalf of the Holder (the “Automatic Exchange”) at any time on or after the date that is the 366th calendar day after (1) with respect to the Notes issued on the Issue Date, the Issue Date or (2) with respect to Additional Notes, if any, the issue date of such Additional Notes, or, in each case, if such day is not a Business Day, on the next succeeding Business Day (the “Automatic Exchange Date”). Upon the Issuer’s satisfaction that the Restricted Notes Legend shall no longer be required in order to maintain compliance with the Securities Act, the Issuer shall (i) pro-vide written notice to the Common Depositary and the Trustee at least fifteen (15) calendar days prior to the Auto-matic Exchange Date, instructing the nominee of the Common Depositary to exchange all of the outstanding benefi-cial interests in a particular Restricted Global Note to the Unrestricted Global Note, which the Issuer shall have pre-viously otherwise made eligible for exchange with the Common Depositary, (ii) provide prior written notice (the “Automatic Exchange Notice”) to each Holder at such Holder’s address appearing in the register of Holders at least fifteen (15) calendar days prior to the Automatic Exchange Date (the “Automatic Exchange Notice Date”), which notice must include (w) the Automatic Exchange Date, (x) the section of this Indenture pursuant to which the Auto-matic Exchange shall occur, (y) the “ISIN” or “Common Code” number of the Restricted Global Note from which such Holder’s beneficial interests will be transferred and (z) the “ISIN” or “Common Code” number of the Unre-stricted Global Note into which such Holder’s beneficial interests will be transferred, and (iii) on or prior to the Au-tomatic Exchange Date, deliver to the Trustee or Authentication Agent, as the case may be, for authentication one or more Unrestricted Global Notes, duly executed by the Issuer, in an aggregate principal amount equal to the aggre-gate principal amount of Restricted Global Notes to be exchanged into such Unrestricted Global Notes. Notwithstanding anything to the contrary in this Section 2.6(e), during the fifteen (15) calendar day period prior to the Automatic Exchange Date, no transfers or exchanges other than pursuant to this Section 2.6(e) shall be permitted without the prior written consent of the Issuer. As a condition to any Automatic Exchange, the Issuer shall provide, and the Trustee shall be entitled to conclusively rely upon, an Officer’s Certificate and Opinion of Counsel to the Issuer stating that the Automatic Exchange shall be effected in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Restricted Notes Legend shall no longer be required in order to maintain compliance with the Securities Act and that the aggregate principal amount of the particular Restricted Global Note is to be transferred to the particular Unrestricted Global Note by adjustment made on the records of the Registrar to reflect the Automatic Exchange. Upon such exchange of beneficial interests pursuant to this Section 2.6(e), the aggregate principal amount of the Global Notes shall be increased or decreased by adjust-ments made on the records of the Registrar to reflect the relevant increase or decrease in the principal amount of such Global Note resulting from the applicable exchange. The Restricted Global Note from which beneficial inter-ests are transferred pursuant to an Automatic Exchange shall be cancelled following the Automatic Exchange. (f) Retention of Written Communications. The Registrar shall retain copies of all letters, notices and other written communications received pursuant to Section 2.1 or this Section 2.6, in accordance with applicable law and the Registrar’s customary procedures. The Issuer shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable prior written notice to the Registrar. (g) Obligations with Respect to Transfers and Exchanges of Notes. To permit registrations of trans-fers and exchanges, the Issuer shall, subject to the other terms and conditions of this Article II, execute and the Trus-tee or the Authentication Agent, as the case may be, shall authenticate Definitive Notes and Global Notes at the Is-suer’s and Registrar’s written request. No service charge shall be made to a Holder for any registration of transfer or exchange, but the Issuer may require the Holder to pay a sum sufficient to cover any transfer tax assessments or similar governmental charge pay-able in connection therewith (other than any such transfer taxes, assessments or similar governmental charges paya-ble upon exchange or transfer pursuant to Section 2.2, 2.11, 2.13, 5.6 or 9.5). -57- |
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The Issuer (and the Registrar) shall not be required to register the transfer of or exchange of any Note (A) for a period beginning (1) 30 calendar days before the mailing of a notice of redemption of Notes to be redeemed and ending at the close of business on the day of such mailing or (2) 15 calendar days before an interest payment date and ending on such interest payment date, (B) called for redemption, except the unredeemed portion of any Note being redeemed in part or (C) tendered (and not withdrawn) for repurchase in connection with a Change of Control Offer or an Asset Disposition Offer, except the untendered portion of any Note being repurchased in part. Prior to the due presentation for registration of transfer of any Note, the Issuer, the Trustee, the Paying Agent, the Transfer Agent or the Registrar may deem and treat the Person in whose name a Note is registered as the owner of such Note for the purpose of receiving payment of principal of, premium, if any, and interest on such Note and for all other purposes whatsoever, including, without limitation, the transfer or exchange of such Note, whether or not such Note is overdue, and none of the Issuer, the Trustee, the Paying Agent, the Transfer Agent or the Regis-trar shall be affected by notice to the contrary. Any Definitive Note delivered in exchange for an interest in a Global Note pursuant to Section 2.1(h) shall, except as otherwise provided by Section 2.6(d), bear the applicable legend regarding transfer restrictions applicable to the Definitive Note set forth in Section 2.1(d). 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. (h) No Obligation of the Trustee. None of the Trustee, the Paying Agent, the Transfer Agent or the Registrar in any of their respective capacities hereunder, shall have any responsibility or obligation to any beneficial owner of a Global Note, any Agent Member or other Person with respect to the accuracy of the records of the Com-mon Depositary or its nominee or of any Agent 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 Euroclear and Clearstream) of any notice (including any notice of redemption or purchase) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All notices and communi-cations to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of 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 Eu-roclear and Clearstream subject to the applicable rules and procedures of Euroclear and Clearstream. The Trustee may rely and shall be fully protected in relying upon information furnished by Euroclear and Clearstream with re-spect to its members, participants and any beneficial owners. None of the Trustee, the Paying Agent, the Transfer Agent or the Registrar shall have any obligation or du-ty 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 Clearstream participants, members or beneficial owners in any Global Note) other than to re-quire 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 com-pliance as to form with the express requirements hereof. Neither the Trustee nor any of its agents shall have any responsibility for any actions taken or not taken by Euroclear and Clearstream. SECTION 2.7 [Reserved]. SECTION 2.8 [Reserved]. SECTION 2.9 [Reserved]. SECTION 2.10 [Reserved]. SECTION 2.11 Mutilated, Destroyed, Lost or Stolen Notes. If a mutilated Note is surrendered to the Registrar or if the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the Issuer -58- |
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shall issue and the Trustee or Authentication Agent, as the case may be, shall authenticate a replacement Note if such Holder (a) satisfies the Issuer and the Trustee that such Note has been lost, destroyed or wrongfully taken with-in a reasonable time after such Holder has notice of such loss, destruction or wrongful taking and the Registrar has not registered a transfer prior to receiving such notification, (b) makes such request to the Issuer and the Trustee prior to the Note being acquired by a protected purchaser as defined in Section 8-303 of the Uniform Commercial Code (a “protected purchaser”) and (c) satisfies any other reasonable requirements of the Trustee or the Issuer; pro-vided, however, if after the delivery of such replacement Note, a protected purchaser of the Note for which such re-placement Note was issued presents for payment or registration such replaced Note, the Trustee and/or the Issuer shall be entitled to recover such replacement Note from the Person to whom it was issued and delivered or any Per-son taking therefrom, except a protected purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Issuer or the Trustee in connec-tion therewith. Such Holder shall furnish an indemnity bond sufficient in the judgment of the (i) Trustee to protect the Trustee and (ii) the Issuer to protect the Issuer, the Trustee, the Paying Agent, the Transfer Agent and the Regis-trar, from any loss which any of them may suffer if a Note is replaced, and, in the absence of notice to the Issuer, any Guarantor or the Trustee that such Note has been acquired by a protected purchaser, the Issuer shall execute, and upon receipt of an Issuer Order, the Trustee or Authentication Agent, as the case may be, shall authenticate and make available for delivery, in exchange for any such mutilated Note or in lieu of any such destroyed, lost or stolen Note, a new Note of like tenor and principal amount, bearing a number not contemporaneously outstanding. In case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and paya-ble, the Issuer in its discretion may, instead of issuing a new Note, pay such Note. Upon the issuance of any new Note under this Section 2.11, the Issuer may require that such Holder pay 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 counsel and of the Trustee) in connection therewith. Subject to the proviso in the initial paragraph of this Section 2.11, every new Note issued pursuant to this Section 2.11 in lieu of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Issuer, any Guarantor (if applicable) and any other obligor upon the Notes, whether or not the muti-lated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder. The provisions of this Section 2.11 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 Notes. SECTION 2.12 Outstanding Notes. Notes outstanding at any time are all Notes authenticated by the Trustee or Authentication Agent, as the case may be, except for those cancelled by the Registrar, those delivered to the Registrar for cancellation, those paid pursuant to Section 2.11 and those described in this Section 2.12 as not outstanding. A Note does not cease to be outstanding in the event the Issuer or an Affiliate of the Issuer holds the Note; provided, however, that (i) for purposes of determining which are outstanding for consent or voting purposes hereunder, the provisions of Section 13.6 shall apply and (ii) in determining whether the Trustee shall be protected in making a determination whether the Holders of the requisite principal amount of outstanding Notes are present at a meeting of Holders of Notes for quorum purposes or have consented to or voted in favor of any request, demand, authorization, direction, notice, consent, waiver, amendment or modification hereunder, or relying upon any such quorum, consent or vote, only Notes which a Trust Officer of the Trustee actually knows to be held by the Issuer or an Affiliate of the Issuer shall not be considered outstanding. If a Note is replaced pursuant to Section 2.11 (other than a mutilated Note surrendered for replacement), it ceases to be outstanding unless the Trustee and the Issuer receive proof satisfactory to them that the replaced Note is held by a protected purchaser. A mutilated Note ceases to be outstanding upon surrender of such Note and replace-ment pursuant to Section 2.11. If the Paying Agent holds, in accordance with this Indenture, on a Redemption Date or maturity date, mon-ey sufficient to pay all principal, premium, if any, and accrued interest payable on that date with respect to the Notes (or portions thereof) to be redeemed or maturing, as the case may be, and the Paying Agent is not prohibited from -59- |
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paying such money to the Holders on that date pursuant to the terms of this Indenture, then on and after that date such Notes (or portions thereof) cease to be outstanding and interest on them ceases to accrue. SECTION 2.13 Temporary Notes. In the event that Definitive Notes are to be issued under the terms of this Indenture, until such Definitive Notes are ready for delivery, the Issuer may prepare and the Trustee or Authen-tication Agent, as the case may be, shall authenticate temporary Notes. Temporary Notes shall be substantially in the form, and shall carry all rights, of Definitive Notes but may have variations that the Issuer considers appropriate for temporary Notes. Without unreasonable delay, the Issuer shall prepare and the Trustee or Authentication Agent, as the case may be, shall authenticate Definitive Notes. After the preparation of Definitive Notes, the temporary Notes shall be exchangeable for Definitive Notes upon surrender of the temporary Notes at any office or agency maintained by the Issuer for that purpose and such exchange shall be without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Issuer shall execute, and the Trustee or Authentication Agent, as the case may be, shall, upon receipt of an Issuer Order, authenticate and make available for delivery in exchange therefor, one or more Definitive Notes representing an equal principal amount of Notes. Until so ex-changed, the Holder of temporary Notes shall in all respects be entitled to the same benefits under this Indenture as a Holder of Definitive Notes. SECTION 2.14 Cancellation. The Issuer at any time may deliver Notes to the Registrar for cancella-tion. The Trustee, the Transfer Agent and the Paying Agent shall forward to the Registrar any Notes surrendered to them for registration of transfer, exchange or payment. The Registrar and no one else shall cancel all Notes surren-dered for registration of transfer, exchange, payment or cancellation and dispose of such Notes in accordance with its internal policies and customary procedures (subject to the record retention requirements of the Exchange Act and the Trustee). If the Issuer or any Guarantor acquires any of the Notes, such acquisition shall not operate as a re-demption or satisfaction of the Indebtedness represented by such Notes unless and until the same are surrendered to the Registrar for cancellation pursuant to this Section 2.14. The Issuer may not issue new Notes to replace Notes it has paid or delivered to the Trustee or the Registrar for cancellation for any reason other than in connection with a transfer or exchange. At such time as all beneficial interests in a Global Note have either been exchanged for Definitive Notes, transferred, redeemed, repurchased or cancelled, such Global Note shall be returned by the Common Depositary to the Registrar for cancellation or retained and cancelled by the Registrar. 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 cancelled, 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 with respect to such Global Note, to reflect such reduction. SECTION 2.15 Payment of Interest; Defaulted Interest. Interest on any Note which is payable, and is punctually paid or duly provided for, on any interest payment date shall be paid to the Person in whose name such Note (or one or more Predecessor Notes) is registered at the close of business on the regular record date for such payment at the office or agency of the Issuer maintained for such purpose pursuant to Section 2.3. Any interest on any Note which is payable, but is not paid when the same becomes due and payable and such nonpayment continues for a period of 30 days shall forthwith cease to be payable to the Holder on the regular record date, and such defaulted interest and (to the extent lawful) interest on such defaulted interest at the rate borne by the Notes (such defaulted interest and interest thereon herein collectively called “Defaulted Interest”) shall be paid by the Issuer, at its election in each case, as provided in clause (a) or (b) below: (a) the Issuer may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes (or their respective predecessor Notes) are registered at the close of business on a Special Record Date (as defined below) for the payment of such Defaulted Interest, which shall be fixed in the fol-lowing manner. The Issuer shall notify the Trustee and the Paying Agent in writing of the amount of De-faulted Interest proposed to be paid on each Note and the date (not less than 30 days after such notice) of the proposed payment (the “Special Interest Payment Date”), and at the same time the Issuer shall deposit with the Trustee (or other such entity directed, designated or appointed by the Issuer and reasonably ac-ceptable to the Trustee acting for the Trustee for such purpose) an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to -60- |
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the Trustee (or other such entity directed, designated or appointed by the Issuer and reasonably acceptable to the Trustee acting for the Trustee for such purpose) 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 De-faulted Interest as in this Section 2.15(a). Thereupon the Issuer shall fix a record date (the “Special Record Date”) for the payment of such Defaulted Interest, which date shall be not more than 20 calendar days and not less than 15 calendar days prior to the Special Interest Payment Date and not less than 10 calendar days after the receipt by the Trustee of the notice of the proposed payment. The Issuer shall promptly notify the Trustee in writing of such Special Record Date, and in the name and at the expense of the Issuer, the Pay-ing Agent shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor to be given in the manner provided for in Section 13.2, not less than 10 calendar days prior to such Special Record Date. Notice of the proposed payment of such De-faulted Interest and the Special Record Date and Special Interest Payment Date therefor having been so given, such Defaulted Interest shall be paid on the Special Interest Payment Date to the Persons in whose names the Notes (or their respective predecessor Notes) are registered at the close of business on such Spe-cial Record Date and shall no longer be payable pursuant to the provisions in Section 2.15(b); or (b) the Issuer may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after written notice given by the Issuer to the Trustee and the Paying Agent of the proposed payment pursuant to this Section 2.15(b), such manner of payment shall be deemed practicable by the Trustee. (c) The rates of interest provided for in this Indenture, including, without limitation, this Sec-tion 2.15, are minimum interest rates. (d) When entering into this Indenture, the parties have assumed that the interest payable at the rates set out in this Section 2.15 or in other Sections of this Indenture is not and will not become subject to Swiss Withholding Tax. Notwithstanding that the parties do not anticipate (acting in good faith) that any payment of interest will be subject to Swiss Withholding Tax, they agree that, if a tax deduction or with-holding for Swiss Withholding Tax is required by law to be made by the Issuer, any Guarantor or any other applicable withholding agent in respect of any interest payable by it under this Indenture and should in re-spect of the Issuer or any such Guarantor under Section 3.21 or similar provisions be unenforceable for any reason, the applicable interest rate in relation to that interest payment shall be: (i) the interest rate which would have applied to that interest payment (as provided for in this Indenture in the absence of this paragraph (d)) divided by (ii) 1 minus the rate at which the relevant tax deduction or withholding for Swiss Withholding Tax is required to be made (where the rate at which the relevant deduction or with-holding of Swiss Withholding Tax is required to be made is for this purpose expressed as a frac-tion of 1 rather than as a percentage) and (A) the Issuer or any applicable Guarantor shall be obliged to pay the relevant interest at the adjusted rate in accordance with this paragraph, (B) the Issuer, the applicable Guarantor or the other applicable withholding agent shall make the deduc-tion or withholding of Swiss Withholding Tax on the recalculated interest and (C) all references to a rate of interest in this Indenture shall be construed accordingly. (e) To the extent that interest payable by the Issuer or any Guarantor under this Indenture be-comes subject to Swiss Withholding Tax, the Trustee, the Issuer and such Guarantor shall promptly co-operate in completing any procedural formalities (including submitting forms and documents required by the appropriate tax authority) to the extent possible and necessary for the Issuer or such Guarantor to obtain authorization to make interest payments without them being subject to Swiss Withholding Tax or to allow the Trustee and any holder to prepare claims for the refund of any Swiss Withholding Tax so deducted. Subject to the foregoing provisions of this Section 2.15, each Note delivered under this Indenture upon reg-istration 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, which were carried by such other Note. -61- |
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SECTION 2.16 ISIN and Common Code Numbers. The Issuer in issuing the Notes may use “ISIN” and “Common Code” numbers and, if so, the Trustee and the Paying Agent shall use “ISIN” and “Common Code” numbers in notices of redemption or purchase as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption or purchase and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption or purchase shall not be affected by any defect in or omis-sion of such ISIN and Common Code numbers. The Issuer shall as promptly as practicable notify the Trustee and the Paying Agent in writing of any change in the ISIN and Common Code numbers. SECTION 2.17 Agency. (a) Actions of Agents. The rights, powers, duties and obligations and actions of each Agent under this Indenture are several and not joint or joint and several. (b) Agents of Trustee. The Issuer and the Agents acknowledge and agree that in the event of a Default or Event of Default, the Trustee may, by notice in writing to the Issuer and the Agents, require that the Agents act as agents of, and take instructions exclusively from, the Trustee. Prior to receiving such written notice from the Trus-tee, the Agents shall be the agents of the Issuer and need have no concern for the interests of the Holders. (c) Publication of Notices. Any obligation the Agents may have to publish a notice to Holders of Global Notes on behalf of the Issuer will be met upon delivery of the notice to Euroclear and/or Clearstream. (d) No Fiduciary Duty. No Agent shall be under any fiduciary duty or other obligation towards, or have any relationship of agency or trust, for or with any person other than the Issuer. (e) Tax Withholding. (1) The Issuer shall notify each Agent in the event that any payment to be made by an Agent under the Notes is a payment which could be subject to FATCA Withholding if such payment were made to a recipient that is generally unable to receive payments free from FATCA Withholding, and the extent to which the relevant payment is so treated; provided, however, that the Issuer’s obligations under this Section 2.17(e) shall apply only to the extent that such payments are so treated by virtue of characteristics of the Issuer, the Notes, or both. (2) Notwithstanding any other provision of this Indenture, each Agent shall be entitled to make a de-duction or withholding from any payment which it makes under the Notes for or on account of any Tax, if and only to the extent so required by Applicable Law, in which event the Agent shall make such payment after such deduc-tion or withholding has been made and shall account to the relevant Governmental Authority within the time al-lowed for the amount so deducted or withheld or, at its option, shall reasonably promptly after making such payment return to the Issuer the amount so deducted or withheld, in which case, the Issuer shall so account to the relevant Governmental Authority for such amount. For the avoidance of doubt, FATCA Withholding is a deduction or with-holding which is deemed to be required by Applicable Law for the purposes of this Section 2.17(e)(2). (3) In the event that the Issuer determines in its sole discretion that any deduction or withholding for or on account of any Tax will be required by Applicable Law in connection with any payment due to any of the Agents on any Notes, then, subject to Section 3.21, the Issuer will be entitled to redirect or reorganize any such payment in any way that it sees fit in order that the payment may be made without such deduction or withholding provided that, any such redirected or reorganized payment is made through a recognized institution of international standing and otherwise made in accordance with this Indenture. The Issuer will promptly notify the Agents and the Trustee of any such redirection or reorganization. For the avoidance of doubt, FATCA Withholding is a deduction or withholding which is deemed to be required by Applicable Law for the purposes of this Section 2.17(e)(3). SECTION 2.18 Illegality Disclaimer. Notwithstanding anything else herein contained, each 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 of America or any jurisdiction forming a part of it and -62- |
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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. ARTICLE III COVENANTS SECTION 3.1 Payment of Notes. The Issuer shall promptly pay the principal of, premium, if any, and interest and Additional Amounts, if any, on the Notes on the dates and in the manner provided in the Notes and in this Indenture. Principal, premium, if any, and interest and Additional Amounts, if any, shall be considered paid on the date due if by 11:00 a.m. London time on such date the Trustee or the Paying Agent holds in accordance with this Indenture money sufficient to pay all principal, premium, if any, and interest and Additional Amounts, if any, then due and the Trustee or the Paying Agent, as the case may be, is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture. The Issuer shall pay interest on overdue principal at the rate specified therefor in the Notes, and it shall pay interest on overdue installments of interest at the same rate to the extent lawful. SECTION 3.2 Limitation on Indebtedness, Disqualified Stock and Preferred Stock. (a) The Issuer will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebted-ness (including Acquired Indebtedness) and the Issuer will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or Preferred Stock; provided, however, that the Issuer may Incur Indebtedness (including Acquired Indebtedness) and issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness), issue shares of Disquali-fied Stock and issue shares of Preferred Stock if, on the date of such Incurrence and after giving Pro Forma Effect thereto, the Consolidated Coverage Ratio for the Issuer and its Restricted Subsidiaries for the most recently ended Test Period at the time of such Incurrence is no less than 2.00 to 1.00; provided, further, that Restricted Subsidiaries that are Non-Guarantors may not Incur Indebtedness (including Acquired Indebtedness) or issue shares of Disquali-fied Stock or Preferred Stock pursuant to this Section 3.2(a) if, after giving Pro Forma Effect to such Incurrence (including the pro forma application of net proceeds therefrom), the aggregate principal amount of Indebtedness (including Acquired Indebtedness), Disqualified Stock and Preferred Stock of Non-Guarantors that would be out-standing at the time of such Incurrence pursuant to this Section 3.2(a), together with the aggregate principal amount of Indebtedness, Disqualified Stock and Preferred Stock outstanding in reliance upon Section 3.2(b)(5)(x), would exceed the greater of (a) $160.0 million and (b) 40.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such Incurrence. (b) Section 3.2(a) will not prohibit the Incurrence of the following Indebtedness: (1) Indebtedness Incurred pursuant to any Credit Facility, including letters of credit or bank-ers’ acceptances issued or created under any such Credit Facility and Guarantees in respect of such Indebt-edness, in an aggregate outstanding principal amount at the time of Incurrence not greater than $2,220.0 million, plus the greater of (x) $387.0 million and (y) Consolidated EBITDA of the Issuer for the most recently ended Test Period, so long as immediately after giving effect to any such Incurrence and the application of net proceeds therefrom the Consolidated Secured Net Leverage Ratio does not exceed 4.75 to 1.00 (provided that any cash proceeds of any new Indebtedness then being Incurred shall not be netted from the numerator in the Consolidated Secured Net Leverage Ratio under this clause (1)(y) of Section 3.2(b) for purposes of determining whether such Indebtedness can be Incurred); (2) Guarantees by the Issuer or any Restricted Subsidiary of Indebtedness of the Issuer or any Restricted Subsidiary so long as the Incurrence of such Indebtedness is permitted under the terms of this Indenture; (3) Indebtedness of the Issuer owing to, or Disqualified Stock or Preferred Stock of the Issu-er issued to, and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owing to, or -63- |
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Disqualified Stock or Preferred Stock of a Restricted Subsidiary issued to, and held by the Issuer or any Restricted Subsidiary; provided, however, that: (i) any subsequent issuance or transfer of Capital Stock or any other event which results in any such Indebtedness, Disqualified Stock or Preferred Stock being held by a Person other than the Issuer or a Restricted Subsidiary; and (ii) any sale or other transfer of any such Indebtedness, Disqualified Stock or Pre-ferred Stock to a Person other than the Issuer or a Restricted Subsidiary (other than any pledge of such Indebtedness or Capital Stock constituting a Permitted Lien), shall be deemed, in each case, to constitute an Incurrence of such Indebtedness, Disqualified Stock or Pre-ferred Stock (to the extent such Indebtedness, Disqualified Stock or Preferred Stock is then outstanding) by the Issuer or such Restricted Subsidiary, as the case may be; (4) Indebtedness represented by (A) the Notes (other than any Additional Notes), including any Note Guarantee thereof, (B) any Indebtedness (other than Indebtedness incurred pursuant to Sections 3.2(b)(1) and (3)) outstanding on the Escrow Release Date, (C) Refinancing Indebtedness Incurred in re-spect of any Indebtedness described in this clause (4) or clause (5) or (9) of Section 3.2(b) or Incurred pur-suant to Section 3.2(a), and (D) Management Advances; (5) (x) Indebtedness and Disqualified Stock Incurred by the Issuer or any Restricted Subsidi-ary, and Preferred Stock, Incurred by any Restricted Subsidiary, to finance an acquisition, merger, amal-gamation or consolidation; provided that the aggregate principal amount of Indebtedness (including Ac-quired Indebtedness), Disqualified Stock and Preferred Stock that may be Incurred pursuant to the forego-ing clause (x), together with the aggregate principal amount of Indebtedness, Disqualified Stock and Pre-ferred Stock outstanding in reliance upon Section 3.2(a), in each case, by Non-Guarantors shall not exceed the greater of (A) $140.0 million and (B) 35.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) or (y) Indebtedness, Disqualified Stock or Preferred Stock of Per-sons that are acquired by the Issuer or any Restricted Subsidiary in accordance with the terms hereof (in-cluding designating an Unrestricted Subsidiary a Restricted Subsidiary), which Indebtedness, Disqualified Stock or Preferred Stock exists at the time of such acquisition and is not created in contemplation thereof; provided that, after giving effect to such acquisition, merger, amalgamation, consolidation or designation described in this clause (5), on a Pro Forma Basis any of the following conditions are satisfied: (i) the Issuer would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Coverage Ratio test set forth in Section 3.2(a); (ii) the Consolidated Coverage Ratio of the Issuer and the Restricted Subsidiaries as of the most recently ended Test Period would not be lower than the Consolidated Coverage Ratio immediately prior to such acquisition, merger, amalgamation, consolidation, Investment or desig-nation; (iii) the Consolidated Total Net Leverage Ratio of the Issuer and the Restricted Sub-sidiaries is not greater than 5.80 to 1.00 as of the most recently ended Test Period; provided that any cash proceeds of any new Indebtedness, Disqualified Stock or Preferred Stock then being In-curred shall not be netted from the numerator in the Consolidated Total Net Leverage Ratio for purposes of calculating the Consolidated Total Net Leverage Ratio under this clause (5)(iii) for purposes of determining whether such Indebtedness, Disqualified Stock or Preferred Stock can be Incurred; (iv) the Consolidated Total Net Leverage Ratio of the Issuer and the Restricted Sub-sidiaries as of the most recently ended Test Period would not be higher than immediately prior to such acquisition, merger, amalgamation, consolidation or designation; provided that any cash pro-ceeds of any new Indebtedness, Disqualified Stock or Preferred Stock then being Incurred shall -64- |
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not be netted from the numerator in the Consolidated Total Net Leverage Ratio for purposes of calculating the Consolidated Total Net Leverage Ratio under this clause (5)(iv) for purposes of de-termining whether such Indebtedness, Disqualified Stock or Preferred Stock can be Incurred; or (v) in the case of Indebtedness, such Indebtedness constitutes Acquired Indebted-ness (other than Indebtedness Incurred in contemplation of the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise ac-quired by the Issuer or a Restricted Subsidiary); provided that the only obligors with respect to such Indebtedness shall be those Persons who were obligors (or required to be obligors) of such Indebtedness prior to such acquisition, merger, amalgamation or consolidation; (6) Hedging Obligations (excluding Hedging Obligations entered into for speculative pur-poses); (7) Indebtedness and Disqualified Stock Incurred by the Issuer or any Restricted Subsidiary and Preferred Stock Incurred by any Restricted Subsidiary, in each case represented by Capitalized Lease Obligations (in the case of Indebtedness) or Purchase Money Obligations in an aggregate outstanding prin-cipal amount which, when taken together with the principal amount of all other Indebtedness, Disqualified Stock and Preferred Stock Incurred pursuant to this clause and then outstanding, does not exceed the great-er of (a) $120.0 million and (b) 30.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of Incurrence and any Refinancing Indebtedness in respect thereof; provided that Capitalized Lease Obligations Incurred by the Issuer or any Restricted Subsidiary pursuant to this clause (7) in connection with a Permitted Sale and Leaseback shall not be subject to the foregoing limitation so long as the net cash proceeds of such Permitted Sale and Leaseback are used by the Issuer or such Restricted Subsidiary to permanently repay outstanding term loans under any Credit Facility or other Indebtedness secured by a Lien on the assets subject to such Permitted Sale and Leaseback; (8) Indebtedness in respect of (i) workers’ compensation claims, self-insurance obligations, performance, indemnity, surety, judgment, appeal, advance payment, customs, value added or other tax or other guarantees or other similar bonds, instruments or obligations and completion guarantees and warran-ties provided by the Issuer or a Restricted Subsidiary or relating to liabilities, obligations or guarantees In-curred in the ordinary course of business or consistent with past practice; (ii) the honoring by a bank or oth-er financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordi-nary course of business or consistent with past practice; provided, however, that such Indebtedness is extin-guished within five Business Days of Incurrence; (iii) customer deposits and advance payments received in the ordinary course of business or consistent with past practice from customers for goods or services pur-chased in the ordinary course of business or consistent with past practice; (iv) letters of credit, bankers’ ac-ceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obliga-tions Incurred in the ordinary course of business or consistent with past practice; and (v) any customary treasury, depositary, cash management, automatic clearinghouse arrangements, overdraft protections, cash pooling or netting or setting off arrangements or similar arrangements in the ordinary course of business or consistent with past practice, including financial accommodations of the type described in the definition of “Cash Management Services” or “Bank Products”; (9) Indebtedness arising from agreements providing for guarantees, indemnification, obliga-tions in respect of earn-outs or other adjustments of purchase price or, in each case, similar obligations, in each case, Incurred or assumed in connection with the acquisition or disposition of any business or assets or Person or any Capital Stock of a Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring or disposing of such business or assets or such Subsidiary for the purpose of financing such ac-quisition or disposition); (10) Indebtedness and Disqualified Stock of the Issuer, and Indebtedness, Disqualified Stock and Preferred Stock of any Restricted Subsidiary, in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause and then outstanding, will not exceed 100% of the net cash proceeds received by the Issuer from the issu-ance or sale (other than to a Restricted Subsidiary) of its Subordinated Shareholder Funding or Capital -65- |
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Stock (other than Disqualified Stock, Designated Preferred Stock or an Excluded Contribution) or other-wise contributed to the equity (other than through the issuance of Disqualified Stock, Designated Preferred Stock or an Excluded Contribution) of the Issuer, in each case, subsequent to the Escrow Release Date, and any Refinancing Indebtedness in respect thereof; provided, however, that any such net cash proceeds that are so received or contributed shall not increase the amount available for making Restricted Payments to the extent the Issuer and its Restricted Subsidiaries Incur Indebtedness in reliance thereon; (11) Indebtedness, Disqualified Stock and Preferred Stock of Non-Guarantors in an aggregate principal amount not to exceed at any one time outstanding the greater of (a) $140.0 million and (b) 35.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of Incurrence and any Refinancing Indebtedness in respect thereof (it being understood that any In-debtedness, Disqualified Stock or Preferred Stock Incurred pursuant to this clause (11) shall cease to be deemed Incurred for purposes of this clause (11) but shall be deemed Incurred for the purposes of Section 3.2(a) from and after the first date on which such Non-Guarantor could have Incurred such Indebtedness under Section 3.2(a) without reliance on this clause (11)); (12) Indebtedness consisting of promissory notes issued by the Issuer or any of its Restricted Subsidiaries to any future, present or former employee, director, manager or consultant of the Issuer, any of its Subsidiaries or of any Parent Entity (or permitted transferees, assigns, estates, trusts, heirs, or any spouse or former spouse of such employee, director, manager or consultant), to finance the purchase or redemption of Capital Stock of the Issuer or any Parent Entity that is permitted by Section 3.3; (13) Indebtedness of the Issuer or any of its Restricted Subsidiaries consisting of (i) the fi-nancing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case Incurred in the ordinary course of business or consistent with past practice; (14) Indebtedness and Disqualified Stock Incurred by the Issuer or any Restricted Subsidiary and Preferred Stock issued by any Restricted Subsidiary in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness, Disqualified Stock and Preferred Stock Incurred pursuant to this clause and then outstanding, will not exceed the greater of (a) $250.0 million and (b) 65.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of Incurrence and any Refinancing Indebtedness in respect thereof (it be-ing understood that any Indebtedness, Disqualified Stock or Preferred Stock Incurred pursuant to this clause (14) shall cease to be deemed Incurred for purposes of this clause (14) but shall be deemed Incurred for the purposes of Section 3.2(a) from and after the first date on which the Issuer or such Restricted Sub-sidiary could have Incurred such Indebtedness, Disqualified Stock or Preferred Stock under Section 3.2(a) without reliance on this clause (14)); (15) (x) Indebtedness of the Issuer or any Restricted Subsidiary supported by a letter of credit, in a principal amount not in excess of the stated amount of such letter of credit so long as such letter of credit is otherwise permitted to be incurred by this Indenture, or (y) obligations in respect of letters of sup-port, guarantees or similar obligations issued, made or incurred for the benefit of the Issuer or any Subsidi-ary of the Issuer to the extent required by law or in connection with any statutory filing or the delivery of audit opinions performed in jurisdictions other than within the United States; (16) Indebtedness of the Issuer or any of its Restricted Subsidiaries arising pursuant to any Permitted Reorganization or any Intercompany License Agreement; (17) Indebtedness to the seller of any business or assets permitted to be acquired by the Issuer or any Restricted Subsidiary under this Indenture; provided that the aggregate amount of Indebtedness In-curred pursuant to this clause and then outstanding will not exceed $75.0 million; (18) obligations in respect of Disqualified Stock and Preferred Stock in an amount not to ex-ceed the greater of (a) $75.0 million outstanding at any time and (b) 20.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis); and -66- |
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(19) to the extent constituting Indebtedness, all premiums (if any), interest (including Post-Petition Interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (1) through (18) of this Section 3.2(b). (c) For purposes of determining compliance with, and the outstanding principal amount of any partic-ular Indebtedness Incurred pursuant to and in compliance with, this Section 3.2: (1) subject to Section 3.2(c)(3), in the event that all or any portion of any item of Indebted-ness, Disqualified Stock or Preferred Stock meets the criteria of more than one of the types of Indebtedness, Disqualified Stock or Preferred Stock described in Sections 3.2(a) and (b), the Issuer, in its sole discretion, will classify, and may from time to time reclassify, such item (or portion of such item) of Indebtedness and only be required to include the amount and type of such Indebtedness, Disqualified Stock or Preferred Stock in one of the clauses of Section 3.2(a) or (b); (2) subject to Section 3.2(c)(3), additionally, all or any portion of any item of Indebtedness, Disqualified Stock or Preferred Stock may later be classified as having been Incurred pursuant to any type of Indebtedness, Disqualified Stock or Preferred Stock described in Sections 3.2(a) and (b) so long as such Indebtedness is permitted to be Incurred pursuant to such provision at the time of reclassification; (3) all Indebtedness outstanding on the Escrow Release Date under the Credit Agreement shall be deemed to have been Incurred on the Escrow Release Date under Section 3.2(b)(1) and may not be reclassified at any time pursuant to clause (1) or (2) of this Section 3.2(c); (4) in the case of any Refinancing of any Indebtedness, such Indebtedness shall not include the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses Incurred in connection with such Refinancing; (5) Guarantees of, or obligations in respect of letters of credit, bankers’ acceptances or other similar instruments relating to, or Liens securing, Indebtedness, Disqualified Stock or Preferred Stock that is otherwise included in the determination of a particular amount of Indebtedness, Disqualified Stock or Preferred Stock shall not be included; (6) if obligations in respect of letters of credit, bankers’ acceptances or other similar instru-ments are Incurred pursuant to any Credit Facility and are being treated as Incurred pursuant to clause (1), (10), (11) or (14) of Section 3.2(b) or Section 3.2(a) and the letters of credit, bankers’ acceptances or other similar instruments relate to other Indebtedness, then such other Indebtedness shall not be included; (7) the principal amount of any Disqualified Stock of the Issuer or a Restricted Subsidiary, or Preferred Stock of a Restricted Subsidiary, will be equal to the greater of the maximum mandatory redemp-tion or repurchase price (not including, in either case, any redemption or repurchase premium) or the liqui-dation preference thereof; (8) Indebtedness, Disqualified Stock and Preferred Stock permitted by this Section 3.2 need not be permitted solely by reference to one provision permitting such Indebtedness, Disqualified Stock or Preferred Stock but may be permitted in part by one such provision and in part by one or more other provi-sions of this Section 3.2 permitting such Indebtedness, Disqualified Stock or Preferred Stock; (9) the amount of any Indebtedness, Disqualified Stock or Preferred Stock outstanding as of any date shall be (i) the accreted value thereof in the case of any Indebtedness issued with original issue discount and (ii) the principal amount of Indebtedness, Disqualified Stock or Preferred Stock, or liquidation preference thereof, in the case of any other Indebtedness, Disqualified Stock or Preferred Stock; (10) in the event an item of Indebtedness, Disqualified Stock or Preferred Stock (or any por-tion thereof) is Incurred pursuant to Section 3.2(b) on the same date that an item of Indebtedness, Disquali-fied Stock or Preferred Stock (or any portion thereof) is Incurred under Section 3.2(a) or clause (1) or (5) of -67- |
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Section 3.2(b), then the Consolidated Coverage Ratio, the Consolidated Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio, as the case may be, will be calculated with respect to such Incur-rence under Section 3.2(a) or clause (1) or (5) of Section 3.2(b) without regard to any Incurrence under Section 3.2(b). Unless the Issuer elects otherwise, the Incurrence of Indebtedness, Disqualified Stock or Preferred Stock will be deemed Incurred first under Section 3.2(a) or clause (1) or (5) of Section 3.2(b) to the extent permitted, with the balance Incurred under Section 3.2(b); (11) in the event that the Issuer or a Restricted Subsidiary enters into or increases commit-ments under a revolving credit facility, enters into any commitment to Incur or issue Indebtedness, Disqual-ified Stock or Preferred Stock or commits to Incur any Lien pursuant to clause (30) of the definition of “Permitted Liens,” the Incurrence or issuance thereof for all purposes under this Indenture, including, with-out limitation, for purposes of calculating the Consolidated Coverage Ratio, the Consolidated Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio, as applicable, or usage of clauses (1) through (19) of Section 3.2(b) (if any) for borrowings and reborrowings thereunder (and including issuance and creation of letters of credit and bankers’ acceptances thereunder) will, at the Issuer’s option as notified to the Trustee in writing, either (i) be determined on the date of such revolving credit facility or such entry into or increase in commitments (assuming that the full amount thereof has been borrowed as of such date) or other Indebtedness, Disqualified Stock or Preferred Stock, and, if such Consolidated Coverage Ratio, the Consolidated Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio, as applicable, test or other provision of this Indenture is satisfied with respect thereto at such time, any borrowing or rebor-rowing thereunder (and the issuance and creation of letters of credit and bankers’ acceptances thereunder) will be permitted under this Section 3.2 irrespective of the Consolidated Coverage Ratio, the Consolidated Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio, as applicable, or other provision of this Indenture at the time of any borrowing or reborrowing (or issuance or creation of letters of credit or bankers’ acceptances thereunder) (the committed amount permitted to be borrowed or reborrowed (and the issuance and creation of letters of credit and bankers’ acceptances) on a date pursuant to the operation of this clause (i) shall be the “Reserved Indebtedness Amount” as of such date for purposes of the Consolidat-ed Coverage Ratio, the Consolidated Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio, as applicable) or (ii) be determined on the date such amount is borrowed pursuant to any such facili-ty or increased commitment, and in each case, the Issuer may revoke such determination at any time and from time to time as notified to the Trustee in writing; and (12) notwithstanding anything in this Section 3.2 to the contrary, in the case of any Indebted-ness Incurred to refinance Indebtedness initially Incurred in reliance on a clause of Section 3.2(b) measured by reference to a percentage of Total Assets or Consolidated EBITDA at the time of Incurrence, if such re-financing would cause the percentage of Total Assets or Consolidated EBITDA restriction to be exceeded if calculated based on the percentage of Total Assets or Consolidated EBITDA on the date of such refi-nancing, such percentage of Total Assets or Consolidated EBITDA restriction shall not be deemed to be exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus premiums (including tender premiums), defeasance, costs and fees in connection with such refinancing. (d) Accrual of interest, accrual of dividends, the accretion of accreted value, the accretion or amortiza-tion of original issue discount, the payment of interest in the form of additional Indebtedness, the payment of divi-dends in the form of additional shares of Preferred Stock or Disqualified Stock or the reclassification of commit-ments or obligations not treated as Indebtedness due to a change in GAAP, will in each case not be deemed to be an Incurrence of Indebtedness for purposes of this Section 3.2. (e) If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness, Dis-qualified Stock or Preferred Stock of such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary of the Issuer as of such date (and, if such Indebtedness, Disqualified Stock or Preferred Stock is not permitted to be Incurred as of such date under this Section 3.2, the Issuer shall be in default of this Section 3.2). (f) Notwithstanding any other provision of this Section 3.2, the maximum amount of Indebtedness that the Issuer or a Restricted Subsidiary may Incur pursuant to this Section 3.2 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 In--68- |
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curred to refinance other Indebtedness, if Incurred in the same currency as the Indebtedness being refinanced, shall be calculated based on the currency exchange rate in effect on the date such Indebtedness was originally incurred, in the case of term indebtedness, or first committed, in the case of revolving credit indebtedness. The principal amount of any Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different currency from the Indebted-ness 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) The Issuer will not, and will not permit any Subsidiary Guarantor to, Incur any Indebtedness (in-cluding Acquired Indebtedness) that is subordinated or junior in right of payment to any Indebtedness of the Issuer or such Subsidiary Guarantor, as the case may be, unless such Indebtedness is expressly subordinated in right of payment to the Notes or such Subsidiary Guarantor’s Note Guarantee to the extent and in the same manner as such Indebtedness is subordinated to other Indebtedness of the Issuer or such Subsidiary Guarantor, as the case may be. (h) For the avoidance of doubt, this Indenture does not treat (1) unsecured Indebtedness as subordi-nated or junior to Secured Indebtedness merely because it is unsecured or (2) senior Indebtedness as subordinated or junior to any other senior Indebtedness merely because it has a junior priority with respect to the same collateral or is secured by different collateral. SECTION 3.3 Limitation on Restricted Payments. (a) The Issuer will not, and will not permit any of its Restricted Subsidiaries, directly or indirectly, to: (1) declare or pay any dividend or make any distribution on or in respect of the Issuer’s or any Restricted Subsidiary’s Capital Stock (including any payment in connection with any merger or consol-idation involving the Issuer or any of its Restricted Subsidiaries) except: (i) dividends or distributions payable in Capital Stock of the Issuer (other than Dis-qualified Stock) or in options, warrants or other rights to purchase such Capital Stock of the Issuer or in Subordinated Shareholder Funding; and (ii) dividends or distributions payable to the Issuer or a Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to holders of its Capital Stock other than the Issuer or another Restricted Subsidiary on no more than a pro rata basis in accordance with their Capital Stock holdings); (2) purchase, repurchase, redeem, retire or otherwise acquire or retire for value any Capital Stock of the Issuer or any Parent Entity held by Persons other than the Issuer or a Restricted Subsidiary; (3) purchase, repurchase, redeem, defease or otherwise acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Indebted-ness with an aggregate principal amount in excess of $20.0 million (it being understood that payments of regularly scheduled principal, interest and mandatory prepayments, redemptions or offers to purchase shall be permitted), other than (a) any such purchase, repurchase, redemption, defeasance or other acquisition or retirement 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 acquisi-tion or retirement and (b) any Indebtedness Incurred pursuant to Section 3.2(b)(3)); (4) make any payment (whether of principal, interest or other amounts) on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Subordinated Shareholder Fund-ing (other than any payment of interest thereon in the form of additional Subordinated Shareholder Fund-ing); or (5) make any Restricted Investment; -69- |
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(any such dividend, distribution, purchase, redemption, repurchase, defeasance, other acquisition, retirement or Re-stricted Investment referred to in clauses (1) through (5) (other than any exceptions thereto) are referred to herein as a “Restricted Payment”), unless, at the time the Issuer or such Restricted Subsidiary makes such Restricted Payment: (i) no Event of Default (or, in the case of a Restricted Investment, no Event of Default under Section 6.1(a) (1), (2), (5) or (6)) shall have occurred and be continuing (or would result immediately thereafter therefrom); (ii) except in the case of a Restricted Investment, if such Restricted Payment is made in reli-ance on Section 3.3(a)(iii)(A), the Issuer would be permitted to Incur at least $1.00 of additional Indebted-ness pursuant to the Consolidated Coverage Ratio test set forth in Section 3.2(a); and (iii) the aggregate amount of such Restricted Payment and all other Restricted Payments made subsequent to the Escrow Release Date (and not returned or rescinded) (excluding all Restricted Payments permitted by Section 3.3(b)) would not exceed the sum of (without duplication): (A) an amount equal to 50% of Consolidated Net Income for the period (treated as one accounting period) from the first day of the fiscal quarter during which the Escrow Release Date occurs to the end of the Issuer’s most recent fiscal quarter ending prior to the date of such Restricted Payment for which financial statements have been delivered pursuant to Section 3.10 (or, in the case such Consolidated Net Income is a deficit, minus 100% of such deficit, which amount in this clause (A) shall not be less than zero); plus (B) 100% of the aggregate net cash proceeds, and the fair market value of property or assets or marketable securities, received by the Issuer and its Restricted Subsidiaries subsequent to the Escrow Release Date (other than net cash proceeds to the extent such net cash proceeds have been used to Incur Indebtedness, Disqualified Stock or Preferred Stock pursuant to Section 3.2(b)(10)) from the issue or sale of (w) Subordinated Shareholder Funding, (x) Capital Stock of the Issuer, including Retired Capital Stock, but excluding cash proceeds and the fair market value of marketable securities or other property received from the sale of (A) Capital Stock or Subordi-nated Shareholder Funding to any employee, director, manager or consultant of the Issuer, any Parent Entity and any of the Issuer’s Subsidiaries after the Escrow Release Date to the extent such amounts have been applied to Restricted Payments made in accordance Section 3.3(b)(6) and (B) Designated Preferred Stock, (y) Capital Stock of any Parent Entity to the extent the net cash pro-ceeds thereof or property, assets or marketable securities received in connection therewith are ac-tually contributed to the Issuer (excluding, in the case of this clause (y), contributions of the pro-ceeds from the sale of Designated Preferred Stock by any such Parent Entity to the extent such amounts have been applied to Restricted Payments made in accordance with Section 3.3(b)(13)) or (z) Indebtedness of the Issuer or a Restricted Subsidiary that has been converted into or exchanged for Capital Stock of the Issuer or any Parent Entity; provided that this clause (B) shall not include the proceeds from (a) Refunding Capital Stock, (b) Subordinated Shareholder Funding, Capital Stock or Indebtedness that has been converted or exchanged for Capital Stock of the Issuer or sold to a Restricted Subsidiary, as the case may be, (c) Indebtedness that has been converted or ex-changed into Disqualified Stock or (d) Excluded Contributions; plus (C) 100% of the aggregate amount of cash, and the fair market value of property or assets or marketable securities, received by the Issuer and its Restricted Subsidiaries subsequent to the Escrow Release Date from contributions to the Capital Stock of the Issuer or any Restricted Subsidiary (other than (x) amounts used to Incur Indebtedness or issue Disqualified Stock or Pre-ferred Stock pursuant to Section 3.2(b)(10), (y) amounts that are contributed by the Issuer or a Re-stricted Subsidiary or (z) amounts that constitute Excluded Contributions); plus (D) 100% of the aggregate amount received in cash and the fair market value of marketable securities or other property received by the Issuer and its Restricted Subsidiaries by means of: (x) the sale or other disposition (other than to the Issuer or a Restricted Subsidiary) of Restricted Investments made by the Issuer or any Restricted Subsidiary and repurchases and re--70- |
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demptions of, or cash distributions or cash interest received in respect of, such Restricted Invest-ments from the Issuer or any Restricted Subsidiary and repayments of loans or advances, and re-leases of guarantees, which constitute Restricted Investments made by the Issuer or any Restricted Subsidiary, in each case after the Escrow Release Date; or (y) the sale (other than to the Issuer or a Restricted Subsidiary) of the Capital Stock of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent of the amount of the Investment that constituted a “Permitted Investment”) or joint venture or a dividend from an Unrestricted Subsidi-ary or joint venture after the Escrow Release Date; plus (E) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary after the Escrow Release Date or the merger, consolidation or amalgamation of an Un-restricted Subsidiary with or into the Issuer or a Restricted Subsidiary or the transfer of all or sub-stantially all of the assets of an Unrestricted Subsidiary to the Issuer or a Restricted Subsidiary af-ter the Escrow Release Date, the fair market value of the Investment in such Unrestricted Subsidi-ary (or the assets transferred), as determined in good faith of the Issuer at the time of the redesig-nation of such Unrestricted Subsidiary as a Restricted Subsidiary or at the time of such merger, consolidation or amalgamation or transfer of assets (after taking into consideration any Indebted-ness associated with the Unrestricted Subsidiary so designated or merged or consolidated or In-debtedness associated with the assets so transferred), other than to the extent of the amount of the Investment that constituted a Permitted Investment; plus (F) $75.0 million; plus (G) any returns, profits, distributions and similar amounts received on account of a Restricted Investment made in reliance upon this Section 3.3(a) (up to the amount of the original Investment). (b) Section 3.3(a) will not prohibit any of the following (collectively, “Permitted Payments”): (1) the payment of any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Inden-ture or the redemption, repurchase or retirement of Indebtedness if, at the date of any irrevocable redemp-tion notice, such payment would have complied with the provisions of this Indenture as if it were and is deemed at such time to be a Restricted Payment at the time of such notice; (2) (x) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Capital Stock of the Issuer or any Parent Entity, including any accrued and unpaid dividends or distribu-tions thereon (“Retired Capital Stock”), or Subordinated Indebtedness, made by exchange (including any such exchange pursuant to the exercise of a conversion right or privilege in connection with which cash is paid in lieu of the issuance of fractional shares) for, or out of the proceeds of, the substantially concurrent sale (other than to the Issuer or a Restricted Subsidiary) of, Subordinated Shareholder Funding or Capital Stock of the Issuer or any Parent Entity to the extent contributed to the Issuer (in the case of proceeds only) (other than Disqualified Stock (other than Disqualified Stock that is permitted to be issued by this Inden-ture), Excluded Contributions or sales of Capital Stock or Subordinated Shareholder Funding to any Sub-sidiary of the Issuer) (“Refunding Capital Stock”), (y) the declaration and payment of dividends on Retired Capital Stock out of the proceeds of the substantially concurrent sale or issuance (other than to the Issuer or a Restricted Subsidiary) of Refunding Capital Stock and (z) if immediately prior to the retirement of Re-tired Capital Stock, the declaration and payment of dividends thereon was permitted under Section 3.3(b)(13) and not made pursuant to clause (x) above, the declaration and payment of dividends on the Re-funding Capital Stock (other than Refunding Capital Stock the proceeds of which were used to redeem, re-purchase, retire or otherwise acquire any Capital Stock of any Parent Entity) in an aggregate amount per year no greater than the aggregate amount of dividends per annum that were declarable and payable on such Retired Capital Stock immediately prior to such retirement; (3) any purchase, repurchase, redemption, defeasance or other refinancing, acquisition or re-tirement of Subordinated Indebtedness made by exchange for, or out of the proceeds of the substantially -71- |
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concurrent sale of, new Subordinated Indebtedness that constitutes Indebtedness permitted to be Incurred pursuant Section 3.2 so long as: (A) the principal amount (or accreted value, if applicable) of such new Subordinated Indebtedness does not exceed the principal amount of (or accreted value, if applicable) (plus the amount of any unused commitments thereunder) of the purchased, repurchased, redeemed, defeased, re-financed, acquired or retired Subordinated Indebtedness, plus any accrued and unpaid interest on the Sub-ordinated Indebtedness being so purchased, repurchased, redeemed, defeased, acquired, refinanced or re-tired, plus the amount of any premium (including call and tender premiums), defeasance costs and any un-derwriting discounts, fees, commissions and expenses (including original issue discount, upfront fees and similar items) in connection with the refinancing of such Subordinated Indebtedness and the Incurrence of such new Subordinated Indebtedness, (B) such new Subordinated Indebtedness is subordinated to the Notes or the applicable Note Guarantees at least to the same extent (as to both priority of payment and security), in all material respects, as such Subordinated Indebtedness so purchased, repurchased, redeemed, defeased, refinanced, acquired or retired, (C) such new Subordinated Indebtedness has a final scheduled maturity date equal to or later than the final scheduled maturity date of the Subordinated Indebtedness being so pur-chased, repurchased, redeemed, defeased, refinanced, acquired or retired, and (D) such new Subordinated Indebtedness has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Subordinated Indebtedness being so purchased, repurchased, redeemed, de-feased, refinanced, acquired or retired; (4) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Preferred Stock of the Issuer or a Parent Entity made by exchange for or out of the proceeds of the substan-tially concurrent sale of Preferred Stock (other than Disqualified Stock or Designated Preferred Stock) of the Issuer or a Parent Entity (but only to the extent such proceeds are contributed by such Parent Entity to the Issuer) to replace Preferred Stock (other than Disqualified Stock or Designated Preferred Stock) of the Issuer or a Parent Entity, as the case may be that, in each case, is permitted to be Incurred pursuant to Sec-tion 3.2; (5) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Subordinated Indebtedness or Disqualified Stock or Preferred Stock: (i) from Net Available Cash to the extent permitted under Section 3.5, but only if the Issuer shall have first complied with the terms described under Section 3.5 and purchased all Notes tendered pursuant to any offer to repurchase all the Notes required thereby, prior to purchas-ing, repurchasing, redeeming, defeasing or otherwise acquiring or retiring such Subordinated In-debtedness, Disqualified Stock or Preferred Stock; (ii) to the extent required by the agreement governing such Subordinated Indebted-ness, Disqualified Stock or Preferred Stock, following the occurrence of a Change of Control (or other similar event described therein as a “change of control”), but only if the Issuer shall have first complied with the terms described under Section 3.9 and purchased all Notes tendered pursu-ant to the offer to repurchase all the Notes required thereby, prior to purchasing, repurchasing, re-deeming, defeasing or otherwise acquiring or retiring such Subordinated Indebtedness, Disquali-fied Stock or Preferred Stock; or (iii) consisting of Acquired Indebtedness (other than Indebtedness Incurred (A) to provide all or any portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise ac-quired by the Issuer or a Restricted Subsidiary or (B) otherwise in connection with or contempla-tion of such acquisition); (6) a Restricted Payment to pay for the repurchase, retirement or other acquisition or retire-ment for value of Capital Stock (other than Disqualified Stock) of the Issuer or of any Parent Entity held by any future, present or former employee, director, manager or consultant of the Issuer, any of its Subsidiar-ies or of any Parent Entity (or permitted transferees, assigns, estates, trusts, heirs, or any spouse or former spouse of such employee, director, manager or consultant) either pursuant to any equityholder, employee or director equity plan or stock or other equity option plan or any other management or employee benefit plan -72- |
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or agreement, other compensatory arrangement or any stock or other equity subscription, co-invest or equi-tyholder agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by the Issuer or any Parent Entity in connection with such repurchase, retirement or other acquisition or retirement for value), including any arrangement including Capital Stock rolled over by management of the Issuer, any Subsidiary of the Issuer or any Parent Entity in connection with the Transactions; provided, however, that the aggregate Restricted Payments made under this clause (6) do not exceed $40.0 million in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years); provided, further, that such amount in any calendar year may be increased by an amount not to ex-ceed: (i) the cash proceeds from the sale of Subordinated Shareholder Funding or Capital Stock (other than Disqualified Stock or Designated Preferred Stock or Excluded Contributions) of the Issuer and, to the extent contributed to the capital of the Issuer (other than through the issuance of Disqualified Stock or Designated Preferred Stock or an Excluded Contribution), Subordinated Shareholder Funding or Capital Stock of any Parent Entity, in each case to members of manage-ment, directors, managers or consultants of the Issuer, any of its Subsidiaries or any Parent Entity that occurred after the Escrow Release Date, to the extent the cash proceeds from the sale of such Subordinated Shareholder Funding or Capital Stock have not otherwise been applied to the pay-ment of Restricted Payments by virtue of Section 3.3(a)(iii); plus (ii) the cash proceeds of key man life insurance policies received by the Issuer and its Restricted Subsidiaries after the Escrow Release Date; less (iii) the amount of any Restricted Payments made in previous calendar years pursu-ant to clauses (i) and (ii) of this clause (6); and provided, further, that cancellation of Indebtedness owing to the Issuer or any Restricted Subsidiary from future, present or former members of management, employees, directors, managers or consultants of the Issuer, or any Parent Entity or Restricted Subsidiaries, or permitted transferees, assigns, estates, trusts, heirs, or any spouse or former spouse of such members of management, employee, director, manager or consultant, in connection with a repurchase of Capital Stock of the Issuer or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 3.3 or any other provision of this Indenture; (7) the declaration and payment of dividends on Disqualified Stock or Preferred Stock of the Issuer or any Restricted Subsidiary, in each case Incurred in accordance with the terms of Section 3.2; (8) payments made or expected to be made by the Issuer or any Restricted Subsidiary in re-spect of withholding, employment or similar taxes payable by any future, present or former employee, di-rector, manager, or consultant of the Issuer or any Restricted Subsidiary or any Parent Entity and any pur-chases, repurchases, redemptions, defeasances or other acquisitions or retirements of Capital Stock deemed to occur upon the exercise, vesting or settlement of, or payment with respect to, any equity or equity-based award, including, without limitation, stock options, appreciation rights, warrants or other rights in respect thereof if such Capital Stock represents a portion of the exercise price thereof, or to satisfy any required withholding or similar taxes with respect to any such award; (9) dividends, loans, advances or distributions to any Parent Entity or other payments by the Issuer or any Restricted Subsidiary in amounts equal to (without duplication): (i) the amounts required for any Parent Entity to pay any Parent Entity Expenses; or (ii) to the extent constituting Restricted Payments, amounts that would be permitted to be paid directly by the Issuer or the Restricted Subsidiaries under Section 3.8 (other than Sec-tion 3.8(b)(1)); -73- |
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(10) the declaration and payment by the Issuer of dividends or distributions on the common stock or common equity interests of the Issuer or any Parent Entity (and any equivalent declaration and payment of a distribution of any security exchangeable for such common stock or common equity interests to the extent required by the terms of any such exchangeable securities) following a public offering of such common stock or common equity interests (or such exchangeable securities, as applicable), in an amount not to exceed the sum of (x) 6.0% in any fiscal year of the aggregate proceeds received by or contributed to the Issuer in or from all such public offerings and (y) an aggregate amount per annum not to exceed 6.0% of Market Capitalization; (11) payments by the Issuer, or loans, advances, dividends or distributions to any Parent Entity to make payments, to holders of Capital Stock of the Issuer or any Parent Entity in lieu of the issuance of fractional shares of such Capital Stock; provided, however, that any such payment, loan, advance, dividend or distribution shall not be for the purpose of evading any limitation of this Section 3.3 or otherwise to fa-cilitate any dividend or other return of capital to the holders of such Capital Stock (as determined in good faith by the Board of Directors of the Issuer); (12) Restricted Payments that are made with Excluded Contributions; (13) (i) the declaration and payment of dividends on Designated Preferred Stock of the Issuer issued after the Escrow Release Date; (ii) the declaration and payment of dividends to any Parent Entity, the proceeds of which will be used to fund the payment of dividends to holders of Designated Preferred Stock of such Parent Entity; (iii) the declaration and payment of dividends on Refunding Capital Stock that is Preferred Stock; provided, however, that, in the case of clause (ii), the amount of all dividends declared or paid pursuant to such clause shall not exceed the aggregate amount contributed in cash as Subordinated Shareholder Funding or in cash to the equity (other than through the issuance of Disqualified Stock or an Excluded Contribution) of the Issuer from the issuance or sale of such Designated Preferred Stock; provid-ed, further, in the case of clauses (i), (ii) and (iii), that immediately preceding the date of issuance of such Designated Preferred Stock, after giving effect to such payment on a Pro Forma Basis the Issuer would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Coverage Ratio test set forth in Section 3.2(a); (14) dividends or other distributions of Capital Stock of, or Indebtedness owed to the Issuer or a Restricted Subsidiary by, Unrestricted Subsidiaries or the proceeds thereof; (15) distributions or payments of Receivables Fees and Securitization Fees, and sales, contri-butions and other transfers of Securitization Assets or Receivables Assets and purchases of Securitization Assets or Receivables Assets pursuant to a Securitization Repurchase Obligation, in each case in connec-tion with a Qualified Securitization Financing or Receivables Facility; (16) any Restricted Payment made in connection with the Transactions (and fees and expenses related thereto), or constituting any part of any Permitted Reorganization (and the fees and expenses related thereto), or used to fund amounts owed to Affiliates in connection with the Transactions and any Permitted Reorganization (including dividends to any Parent Entity to permit payment by such Parent Entity of such amounts), including, without limitation, payments to dissenting stockholders in connection with, or as a re-sult of, their exercise of appraisal rights and the settlement of any claims or actions (whether actual, contin-gent or potential) with respect thereto (including any accrued interest); (17) Restricted Payments (including loans or advances) in an aggregate amount outstanding at the time made not to exceed the greater of (a) $125.0 million and (b) 35.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time made; (18) any Restricted Payments made by the Issuer or any Restricted Subsidiary; provided that, immediately after giving Pro Forma Effect thereto, the Consolidated Total Net Leverage Ratio would be no greater than 4.75 to 1.00 as of the most recently ended Test Period; -74- |
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(19) mandatory redemptions of Disqualified Stock or Preferred Stock issued as a Restricted Payment or as consideration for a Permitted Investment; (20) the purchase, repurchase, redemption, defeasance or other acquisition or retirement of Subordinated Indebtedness in an aggregate amount pursuant to this clause (20) not to exceed the greater of (x) $80.0 million and (y) 20.0% of Consolidated EBITDA for the most recently ended Test Period (calcu-lated on a Pro Forma Basis) at the time of such purchase, repurchase, redemption, defeasance or other ac-quisition or retirement is made; (21) AHYDO Payments with respect to Indebtedness permitted under Section 3.2; (22) Restricted Payments by the Issuer and its Restricted Subsidiaries pursuant to Intercompa-ny License Agreements; or (23) the declaration and payment of dividends or distributions by the Issuer to, or the making of loans or advances to, any Parent Entity in amounts required for any such Parent Entity (or such Parent Entity’s direct or indirect equity owners) to pay: (i) franchise, excise and similar taxes, and other fees and expenses, required to maintain a Parent Entity’s corporate, legal and organizational existence including legal and ac-counting and other costs directly attributable to maintaining its corporate, legal, or organizational existence and out-of-pocket costs attributable to the preparation of tax returns, or (ii) for any taxable period for which the Issuer or any of its Restricted Subsidiaries are members of a consolidated, combined, unitary or similar income tax group of which a Parent Entity is the common parent (a “Tax Group”), the portion of any income Taxes of such Tax Group for such taxable period that are attributable to the taxable income of the Issuer and/or the applica-ble Restricted Subsidiaries (and, to the extent permitted below, the applicable Unrestricted Subsid-iaries); provided that for each taxable period, (A) the amount of such payments made in respect of such taxable period in the aggregate will not exceed the amount that the Issuer and the applicable Restricted Subsidiaries (and, to the extent permitted below, the applicable Unrestricted Subsidiar-ies), would have been required to pay in respect of such taxable income as stand-alone taxpayers or a stand-alone tax group and (B) the amount of such payments made in respect of an Unrestrict-ed Subsidiary will be permitted only to the extent that cash distributions were made by such Unre-stricted Subsidiary to the Issuer or any Restricted Subsidiary for such purpose; provided that at the time of, and after giving effect to, any Restricted Payment permitted under Sections 3.3(b)(17), (18) and (20), no Event of Default (or in the case of a Restricted Investment, no Event of Default under Sections 6.1 (a)(1), (2), (5) or (6)) shall have occurred and be continuing or would occur as a consequence thereof. (c) For purposes of determining compliance with this Section 3.3, in the event that a Restricted Pay-ment (or portion thereof) or Investment (or portion thereof) meets the criteria of more than one of the categories of Permitted Payments described in clauses (1) through (23) of Section 3.3(b), or is permitted pursuant to Section 3.3(a) and/or one or more of the exceptions contained in the definition of “Permitted Investments,” the Issuer will be entitled to classify such Restricted Payment (or portion thereof) or Investment (or portion thereof) on the date of its payment, or later reclassify such Restricted Payment (or portion thereof) or Investment (or portion thereof), among such clauses (1) through (23) above, Section 3.3(a) and/or one or more exceptions contained in the definition of “Permitted Investments,” in any manner that otherwise complies with this Section 3.3. (d) The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Issuer or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The fair market value of any cash Restricted Payment shall be its face amount, and the fair market value of any non-cash Restricted Payment, property or assets other than cash shall be determined conclusively by the Board of Directors of the Issuer acting in good faith. -75- |
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SECTION 3.4 Limitation on Restrictions on Distributions from Restricted Subsidiaries. (a) The Issuer will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to: (1) pay dividends or make any other distributions to the Issuer or any Restricted Subsidiary that is a Subsidiary Guarantor in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Issuer or any Restricted Subsidiary that is a Subsidiary Guarantor; (2) Guarantor; or make any loans or advances to the Issuer or any Restricted Subsidiary that is a Subsidiary (3) sell, lease or transfer any of its property or assets to the Issuer or any Restricted Subsidi-ary that is a Subsidiary Guarantor; provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to divi-dends or liquidating distributions being paid on common stock and (y) the subordination of (including the applica-tion of any standstill requirements to) loans or advances made to the Issuer or any Restricted Subsidiary that is a Subsidiary Guarantor to other Indebtedness Incurred by the Issuer or any Restricted Subsidiary that is a Subsidiary Guarantor shall not be deemed to constitute such an encumbrance or restriction. (b) Section 3.4(a) shall not prohibit: (1) any encumbrance or restriction pursuant to (x) any Credit Facility (including the Credit Agreement), or (y) any other agreement or instrument, in each case, in effect at or entered into on the Issue Date (or contractual encumbrances or restrictions with respect to the Transactions in effect on the Escrow Release Date); (2) any encumbrance or restriction pursuant to this Indenture, the Notes and the Note Guar-antees; (3) encumbrances or restrictions arising or existing by reason of applicable law, rule, regula-tion or order, or required by any regulatory authority; (4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or re-lating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Issuer or any Re-stricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Issuer or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds uti-lized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Issuer or was merged, consolidated or otherwise combined with or into the Issuer or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause, if anoth-er Person is the successor entity, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Issuer or any Restricted Subsidiary when such Person becomes the successor entity; (5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assign-ment or transfer of any lease, license or other contract or agreement; -76- |
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(ii) contained in mortgages, pledges, charges or other security agreements permitted under this Indenture or securing Indebtedness of the Issuer or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encum-brance of the property or assets subject to such mortgages, pledges, charges or other security agreements; or (iii) pursuant to customary provisions restricting dispositions of real property inter-ests set forth in any reciprocal easement agreements of the Issuer or any Restricted Subsidiary; (6) any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions on the property so acquired, any replacements of such property or assets and additions and accessions thereto, after-acquired property subject to such arrangement, the proceeds and the products thereof and customary security deposits in respect thereof and in the case of multiple financings of equipment provided by any lender, other equipment financed by such lender; (7) any encumbrance or restriction imposed on the Capital Stock or assets of the Issuer or any Restricted Subsidiary pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of such Capital Stock or assets pending the closing of such sale or disposition; (8) customary provisions in leases, subleases, licenses, sublicenses, shareholder agreements, joint venture agreements, organizational documents and other similar agreements and instruments; (9) encumbrances or restrictions arising or existing by reason of applicable law or any appli-cable rule, regulation or order, or required by any regulatory authority; (10) any encumbrance or restriction on cash or other deposits or net worth imposed by cus-tomers under agreements entered into in the ordinary course of business or consistent with past practice; (11) any encumbrance or restriction pursuant to Hedging Obligations; (12) other Indebtedness, Disqualified Stock or Preferred Stock of Non-Guarantors permitted to be Incurred or issued subsequent to the Escrow Release Date pursuant to the provisions of Section 3.2 that impose restrictions solely on the Non-Guarantors party thereto or their Subsidiaries; (13) restrictions created in connection with any Qualified Securitization Financing or Receiv-ables Facility that, in the good faith determination of the Issuer, are necessary or advisable to effect such Securitization Facility or Receivables Facility, as the case may be; (14) any encumbrance or restriction arising pursuant to an agreement or instrument (which, if it relates to any Indebtedness, shall only be permitted if such Indebtedness is permitted to be Incurred pur-suant to Section 3.2) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole (i) are not materially less favorable to the Holders than the encumbrances and restrictions contained in the Credit Agreement, together with the security documents associated therewith as in effect on the Escrow Release Date (as determined by the Issuer) or (ii) either (A) the Issuer determines at the time of entry into such agreement or instrument that such encumbrances or restrictions do not materially impair the Issuer’s ability to make principal or interest payments on the Notes as and when due (as determined in good faith by the Issuer) or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument; (15) any encumbrance or restriction existing by reason of any lien permitted under Section 3.6; or (16) any encumbrance or restriction pursuant to an agreement or instrument effecting a refi-nancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument re--77- |
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ferred to in clauses (1) to (15) of this Section 3.4(b) or this clause (16) (an “Initial Agreement”) or con-tained in any amendment, modification, restatement, renewal, increase, supplement, refunding, replace-ment, refinancing or other modification to an agreement referred to in clauses (1) to (15) of this Section 3.4(b) or this clause (16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are not materially less favorable to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Ini-tial Agreements to which such amendment, modification, restatement, renewal, increase, supplement, re-funding, replacement, refinancing or other modification relates (as determined in good faith by the Issuer). SECTION 3.5 Limitation on Sales of Assets and Subsidiary Stock. (a) The Issuer will not, and will not permit any of its Restricted Subsidiaries to, consummate any As-set Disposition unless: (1) the Issuer or such Restricted Subsidiary, as the case may be, receives consideration (in-cluding by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition as determined in good faith by the Issuer) of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposi-tion is a Permitted Asset Swap); (2) in any such Asset Disposition or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap) if the property or assets sold or otherwise disposed of have a fair market value in excess of $40.0 million, at least 75% of the consideration from such Asset Dis-position, together with all other Asset Dispositions since the Escrow Release Date (on a cumulative basis), (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contin-gent or otherwise), received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and (3) the Issuer or any of its Restricted Subsidiaries, at its respective option, will apply an amount equal to such Net Available Cash from any Asset Disposition: (i) (A) to prepay, repay, redeem or purchase any Indebtedness of a Non-Guarantor or Indebtedness that is secured by a Lien (in each case, other than Indebtedness owed to the Issuer or any Restricted Subsidiary) or Indebtedness under the Credit Agreement (or any Refinancing In-debtedness in respect thereof) within 540 days from the later of (1) the date of such Asset Disposi-tion and (2) the receipt of such Net Available Cash; provided, however, that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this clause (i), the Issuer or Restricted Subsidiary will retire such Indebtedness and will cause the related com-mitment (if any) to be reduced in an amount equal to the principal amount so prepaid, repaid, re-deemed or purchased; or (B) to prepay, repay, redeem or purchase Pari Passu Indebtedness; pro-vided, further, that, to the extent the Issuer or any Restricted Subsidiary prepays, repays, redeems or purchases Pari Passu Indebtedness pursuant to this clause (B), the Issuer shall equally and rata-bly reduce Obligations under the Notes as provided under Section 5.7, through open-market pur-chases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be purchased to, but excluding, the date of purchase; and/or (ii) to invest in or commit to invest in Additional Assets within 540 days from the later of (A) the date of such Asset Disposition and (B) the receipt of such Net Available Cash; provided, however, that a binding agreement shall be treated as a permitted application of Net Available Cash from the date of such commitment with the good faith expectation that such Net Available Cash will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event that any Acceptable Commitment is later can--78- |
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celled or terminated for any reason before the Net Available Cash is applied in connection there-with, then such Net Available Cash shall constitute Excess Proceeds unless the Issuer or such Re-stricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination; provided, further, that if any Second Commitment is later cancelled or terminated for any reason before such Net Available Cash is applied, then such Net Available Cash shall constitute “Excess Proceeds”; provided that, pending the final application of any such Net Available Cash in accordance with clause (i) or clause (ii) in Section 3.5(a)(3), the Issuer and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise use such Net Available Cash in any manner not prohibited by this Indenture. (b) If an amount equal to the Net Available Cash from Asset Dispositions is not applied or invested or committed to be applied or invested as provided, and within the time period (including as extended) set forth in Sec-tion 3.5(a) (it being understood that any portion of such amount used to make an offer to purchase Notes, as de-scribed in Section 3.5(a)(3)(i)(B), will be deemed to have been applied whether or not such offer is accepted), then such amount not applied or invested or committed to be applied or invested will be deemed to constitute “Excess Proceeds” under this Indenture. When the aggregate amount of Excess Proceeds under this Indenture exceeds $60.0 million in any fiscal year, the Issuer will within 10 Business Days make an offer (an “Asset Disposition Offer”) to all Holders of the Notes and, to the extent the Issuer elects or is required to by the terms of any Pari Passu Indebted-ness, to holders or lenders of any other outstanding Pari Passu Indebtedness, to purchase (or redeem or repay, as applicable) the maximum aggregate principal amount of the Notes and any such Pari Passu Indebtedness to which such Asset Disposition Offer applies 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 of the Notes and such Pari Passu Indebtedness, or 100% of the ac-creted value thereof, if less (or, in respect of such Pari Passu Indebtedness, such lesser price, if any, as may be pro-vided for by the terms of such Pari Passu Indebtedness), in each case, plus accrued and unpaid interest and Addi-tional Amounts, if any, to, but excluding, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing such Pari Passu Indebtedness, as applicable and in minimum denominations of €100,000 and in integral multiples of €1,000 in excess thereof. The Issuer will deliver notice of such Asset Dis-position Offer electronically or by first-class mail as provided under Section 3.5(g) with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the security register (or while Notes are in the form of Global Notes, in accordance with the Applicable Procedures), describing the transaction or transactions that con-stitute the Asset Disposition and offering to repurchase the Notes for the specified purchase price on the date speci-fied in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by this Indenture, or otherwise in accordance with the procedures of Euroclear and Clearstream, and described in such notice. The Issuer may satisfy the foregoing obligations with re-spect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to all Net Available Cash prior to the expiration of the relevant 540 days (or such longer period provided above) or with respect to any unapplied Excess Proceeds. (c) To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Issuer or any Restricted Subsidiary may use any remaining Excess Proceeds for any purpose not prohibited by this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Ex-cess Proceeds shall be allocated among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness; provided that no Notes or other Pari Passu Indebtedness in an unauthorized denomination will remain outstanding after such purchase. Up-on completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero (regardless of whether there are any remaining Excess Proceeds upon such completion). (d) To the extent that any portion of Net Available Cash payable in respect of the Notes is denominat-ed in a currency other than Dollars, the amount thereof payable in respect of the Notes shall not exceed the net amount of funds in Dollars that is actually received by the Issuer upon converting such portion into Dollars. (e) Notwithstanding any other provisions of this Section 3.5, (i) to the extent that any or all of the Net Available Cash of any Asset Disposition by a Foreign Subsidiary (a “Foreign Disposition”) is (x) prohibited or de--79- |
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layed by applicable local law, (y) restricted by applicable organizational documents or any agreement or (z) subject to other onerous organizational or administrative impediments from being repatriated, the portion of such Net Avail-able Cash so affected will not be required to be applied in compliance with this Section 3.5, and such amounts may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law, organizational document, agreement or other impediment will not permit repatriation to the Issuer or a Guarantor, and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, the applicable organizational document or agreement or the applicable other impediment, an amount equal to such amount of Net Available Cash so permitted to be repatriated will be promptly (and in any event not later than 10 Business Days after such repatriation is permitted) applied (net of any Taxes, costs or expenses that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) in compliance with this Section 3.5 and (ii) to the extent that the Issuer has determined in good faith that repatriation of any or all of the Net Availa-ble Cash of any Foreign Disposition could have a material adverse tax consequence with respect to such Net Availa-ble Cash (which for the avoidance of doubt, includes, but is not limited to, any prepayment whereby doing so Hold-ings, the Issuer, any Restricted Subsidiary or any of their respective Affiliates and/or equity partners would incur a material tax liability, including a tax dividend or a withholding tax), the Net Available Cash so affected may be re-tained by the applicable Foreign Subsidiary. The non-application of any prepayment amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default. For the avoidance of doubt, so long as an amount equal to the amount of Net Available Cash required to be applied in ac-cordance with this Section 3.5 is applied by the Issuer, nothing in this Indenture shall be construed to require any Subsidiary to repatriate cash. (f) For purposes of Section 3.5(a)(2), the following will be deemed to be cash: (i) the (x) assumption or (y) cancellation, extinguishment or termination of Indebtedness or other liabilities (as reflected on the Issuer’s or such Restricted Subsidiary’s most recent consolidated bal-ance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Issuer’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as deter-mined in good faith by the Issuer) contingent or otherwise, in each case of the Issuer or a Restricted Subsid-iary (other than Subordinated Indebtedness of the Issuer or a Guarantor) and, in the case of clause (x) only, the release of the Issuer or such Restricted Subsidiary from all liability on such Indebtedness or other liabil-ity in connection with such Asset Disposition; (ii) securities, notes or other obligations received by the Issuer or any Restricted Subsidiary from the transferee that are converted by the Issuer or such Restricted Subsidiary into cash or Cash Equiva-lents within 180 days following the closing of such Asset Disposition; (iii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Issuer and each other Restricted Subsidiary are re-leased from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition; (iv) consideration consisting of Indebtedness of the Issuer or a Guarantor (other than Subor-dinated Indebtedness) received after the Escrow Release Date from Persons who are not the Issuer or any Restricted Subsidiary; and (v) any Designated Non-Cash Consideration received by the Issuer or any Restricted Subsid-iary in such Asset Dispositions having an aggregate fair market value, taken together with all other Desig-nated Non-Cash Consideration received pursuant to this Section 3.5 that is at that time outstanding, not to exceed the greater of $60.0 million and 15.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in val-ue). (g) Upon the commencement of an Asset Disposition Offer, the Issuer shall send, or cause to be sent, electronically or by first class mail, a notice to the Trustee and to each Holder at its registered address (or while Notes are in the form of Global Notes, in accordance with the Applicable Procedures). The notice shall contain all -80- |
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instructions and materials necessary to enable such Holder to tender Notes pursuant to the Asset Disposition Offer. Any Asset Disposition Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Disposition Offer, shall state: (1) that the Asset Disposition Offer is being made pursuant to this Section 3.5 and that, to the extent lawful, all Notes tendered and not withdrawn shall be accepted for payment (unless prorated); (2) the Asset Disposition payment amount, the Asset Disposition offered price, and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and not later than 60 days from the date such notice is mailed (the “Asset Sale Payment Date”); (3) that any Notes not tendered or accepted for payment shall continue to accrue interest in accordance with the terms thereof; (4) that, unless the Issuer defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrue interest on and after the Asset Sale Payment Date; (5) that Holders electing to have any Notes purchased pursuant to any Asset Disposition Of-fer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Paying Agent specified in the notice at the address specified in the notice at least three (3) Business Days before the Asset Sale Payment Date; (6) that Holders shall be entitled to withdraw their election if the Paying Agent receives, not later than two (2) Business Days prior to the Asset Sale Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Note purchased; (7) that if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition payment amount, the Issuer shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Issuer so that only Notes in denominations of at least €100,000 and integral multiples of €1,000 in excess thereof remain outstanding after purchase); and (8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry). If any of the Notes subject to the Asset Disposition Offer are in the form of a Global Note, the Issuer may modify such notice to the extent necessary to comply with the Applicable Procedures of the Common Depositary. (h) If the Asset Sale Payment Date is on or after a record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pur-suant to the Asset Disposition Offer. (i) On the Asset Sale Payment Date, the Issuer will, to the extent permitted by law: (1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Asset Disposition Offer; (2) deposit with the Paying Agent an amount equal to the aggregate Asset Disposition pay-ment in respect of all Notes or portions thereof so tendered; and (3) deliver, or cause to be delivered, to the Registrar for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Issuer. -81- |
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(j) The Issuer will comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Notes pursuant to this Section 3.5. 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 shall not be deemed to have breached its obligations under this Inden-ture by virtue thereof. SECTION 3.6 Limitation on Liens. (a) Holdings will not, and will not permit the Issuer or a Restricted Subsidiary that is a Guarantor to, directly or indirectly, create, Incur or permit to exist any Lien (except Permitted Liens) (each, an “Initial Lien”) that secures Obligations under any Indebtedness or any related Guarantee, on any asset or property of Holdings, the Issu-er or any Restricted Subsidiary that is a Guarantor, unless: (1) in the case of Liens securing Subordinated Indebtedness, the Notes and related Note Guarantees are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; or (2) in all other cases, the Notes or the Note Guarantees are equally and ratably secured. (b) Any Lien created for the benefit of Holders of the Notes pursuant to Section 3.6(a) shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Initial Lien. (c) With respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the Incurrence of such Indebtedness, such Lien shall also be permitted to secure any Increased Amount of such Indebtedness. The “Increased Amount” of any Indebtedness shall mean any increase in the amount of such Indebtedness in connection with any accrual of interest, the accretion of accreted value, the amortization of original issue discount, the payment of interest in the form of additional Indebtedness with the same terms, the accretion of original issue discount or liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies or increases in the value of property securing Indebtedness. SECTION 3.7 Limitation on Guarantees. (a) The Issuer will not permit any of its Wholly-Owned Subsidiaries that are Restricted Subsidiaries (and non-Wholly-Owned Subsidiaries if such non-Wholly-Owned Subsidiaries Guarantee other capital markets debt securities of the Issuer or any Guarantor or Guarantee Indebtedness of the Issuer under the Credit Agreement), other than a Guarantor, to Guarantee the payment of any capital markets debt securities of the Issuer or any Guarantor or Indebtedness of the Issuer under the Credit Agreement, in each case, unless: (1) such Restricted Subsidiary within 60 days executes and delivers a supplemental indenture to this Indenture substantially in the form of Exhibit B providing for a Note Guarantee by such Restricted Subsidiary, except that with respect to a Guarantee of Indebtedness of the Issuer or any Guarantor, if such Indebtedness is by its express terms subordinated in right of payment to the Notes or such Guarantor’s Note Guarantee, any such Guarantee by such Restricted Subsidiary with respect to such Indebtedness shall be subordinated in right of payment to such Note Guarantee of such Restricted Subsidiary substantially to the same extent as such Indebtedness is subordinated to the Notes or such Guarantor’s Note Guarantee; and (2) such Restricted Subsidiary waives and will not in any manner whatsoever claim or take the benefit or advantage of, any rights of reimbursement, indemnity or subrogation or any other rights against the Issuer or any other Restricted Subsidiary as a result of any payment by such Restricted Subsidi-ary under its Guarantee until payment in full of all Obligations under this Indenture; provided that this Section 3.7 shall not be applicable (i) to any Guarantee of any Restricted Subsidiary that existed at the time such Person became a Restricted Subsidiary and was not incurred in connection with, or in contemplation -82- |
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of, such Person becoming a Restricted Subsidiary, (ii) in the event that the Guarantee of the Issuer’s obligations un-der the Notes or this Indenture by such Restricted Subsidiary would not be permitted under applicable law, (iii) to any Guarantee of capital markets debt securities, where such Restricted Subsidiary, in accordance with the Agreed Security Principles, does not provide a Guarantee of any Indebtedness of the Issuer under the Credit Agreement or (iv) to any Guarantee of Indebtedness under the Credit Agreement of any Restricted Subsidiary as of the Escrow Release Date organized in Italy. At the option of the Issuer, any Note Guarantee may contain limitations on Guaran-tor liability to the extent reasonably necessary to recognize certain defenses generally available to guarantors (in-cluding those that relate to fraudulent conveyance or transfer, voidable preference, financial assistance, corporate purpose, capital maintenance or similar laws, regulations or defenses affecting the rights of creditors generally) or other considerations under applicable law. (b) The Issuer may elect, in its sole discretion, to cause any Subsidiary that is not otherwise required to be a Subsidiary Guarantor to become a Subsidiary Guarantor, in which case, such Subsidiary shall not be required to comply with the 60-day period described in Section 3.7(a)(1). SECTION 3.8 Limitation on Affiliate Transactions. (a) The Issuer will not, and will not permit any of its Restricted Subsidiaries to enter into or conduct any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any of the Issuer’s Affiliates (other than Holdings, the Issuer and the Restricted Subsidiaries or any entity that be-comes a Restricted Subsidiary as a result of such transaction) (an “Affiliate Transaction”) involving aggregate value in excess of $20.0 million unless: (1) the terms of such Affiliate Transaction taken as a whole are not materially less favorable to the Issuer or such Restricted Subsidiary, as the case may be, than those that could be obtained in a com-parable transaction at the time of such transaction or the execution of the agreement providing for such transaction in arm’s length dealings with a Person who is not such an Affiliate; and (2) in the event such Affiliate Transaction involves an aggregate value in excess of $60.0 million, the terms of such transaction have been approved by a majority of the members of the Board of Directors of the Issuer or a Parent Entity. Any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in Section 3.8(a)(2) if such Affiliate Transaction is approved by a majority of the Disinterested Directors, if any. (b) Section 3.8(a) shall not apply to: (1) Investment; any Restricted Payment permitted to be made pursuant to Section 3.3, or any Permitted (2) any issuance or sale of Capital Stock, options, other equity-related interests or other secu-rities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, or entering into, or maintenance of, any employment, consulting, collective bargaining or benefit plan, pro-gram, agreement or arrangement, related trust or other similar agreement and other compensation arrange-ments, options, warrants or other rights to purchase Capital Stock of the Issuer, any Restricted Subsidiary or any Parent Entity, restricted stock plans, long-term incentive plans, stock appreciation rights plans, par-ticipation plans or similar employee benefits or consultants’ plans (including valuation, health, insurance, deferred compensation, severance, retirement, savings or similar plans, programs or arrangements) or in-demnities provided to or on behalf of, or for the benefit of future, present or former officers, employees, di-rectors or consultants approved by the Board of Directors of the Issuer, in each case in the ordinary course of business or consistent with past practice; (3) any Management Advances and any waiver or transaction with respect thereto; -83- |
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(4) any transaction between or among the Issuer and any Restricted Subsidiary or between or among Restricted Subsidiaries (or, in any case, any entity that becomes a Restricted Subsidiary as a result of such transaction) or any joint venture (regardless of the form of legal entity) in which the Issuer or any Subsidiary has invested (and which joint venture would not be an Affiliate of the Issuer but for the Issuer’s or a Subsidiary of the Issuer’s ownership of Capital Stock in such joint venture) to the extent otherwise permitted under Article III of this Indenture (other than solely by reference to this Section 3.8); (5) the payment of compensation, fees and reimbursement of expenses to, and customary in-demnities (including under customary insurance policies) and employee benefit and pension expenses pro-vided on behalf of, directors, officers, consultants or employees of the Issuer or any Restricted Subsidiary (whether directly or indirectly and including through any Person owned or controlled by any of such direc-tors, officers or employees); (6) the entry into and performance of obligations of the Issuer or any of its Restricted Subsid-iaries under the terms of any transaction arising out of, and any payments pursuant to or for purposes of funding, any agreement or instrument in effect as of or on the Issue Date (or any agreement in respect of the Transactions as in effect as of the Escrow Release Date), as these agreements and instruments may be amended, modified, supplemented, extended, renewed or refinanced from time to time in accordance with the other terms of this Section 3.8 or to the extent, in the good faith judgment of the Issuer, not more disad-vantageous to the Holders in any material respect (taken as a whole); (7) (i) any customary transaction with a Securitization Subsidiary effected as part of a Quali-fied Securitization Financing and (ii) any customary transaction with a Receivables Subsidiary effected as part of a Receivables Facility; (8) (x) transactions with dealers, customers, clients, suppliers or purchasers or sellers of goods or services that are Affiliates, in each case in the ordinary course of business or consistent with past practice, which are fair to the Issuer or the relevant Restricted Subsidiary in the reasonable determination of the Board of Directors or the senior management of the Issuer or the relevant Restricted Subsidiary, or are on terms no less favorable than those that could reasonably have been obtained at such time from an unaf-filiated party or (y) transactions to and from, and transactions with, joint venture partners or joint ventures (including pursuant to joint venture agreements) or Unrestricted Subsidiaries entered into in the ordinary course (including, without limitation, any cash management activities related thereto); (9) any transaction between or among the Issuer or any Restricted Subsidiary and any Person that is an Affiliate of the Issuer or any Restricted Subsidiary or similar entity that would constitute an Affil-iate Transaction solely because the Issuer or a Restricted Subsidiary owns a direct or indirect equity interest in or otherwise controls such Affiliate or similar entity; (10) (x) issuances or sales of Subordinated Shareholder Funding or Capital Stock (other than Disqualified Stock or Designated Preferred Stock) of the Issuer or options, warrants or other rights to ac-quire such Capital Stock and the granting of registration and other customary rights in connection therewith or any contribution to the capital of the Issuer or any Restricted Subsidiary and (y) any amendment, waiver or other transaction with respect to any Subordinated Shareholder Funding in compliance with the other provisions of this Indenture; provided that such Subordinated Shareholder Funding, as amended or other-wise modified, will continue to satisfy the requirements described in the definition of “Subordinated Share-holder Funding”; (11) (a) the payment of management, monitoring, consulting, advisory and other fees (includ-ing termination and transaction fees, including any such cash lump sum or present value fee upon the con-summation of a corporate event, including an initial public equity offering) to the Sponsor pursuant to the Sponsor Management Agreement (plus any unpaid management, monitoring, consulting, advisory and oth-er fees (including transaction and termination fees) accrued in any prior year), (b) customary payments by the Issuer or any of the Restricted Subsidiaries to the Sponsor made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities (including in con-nection with acquisitions or divestitures), which payments are approved by the majority of the members of -84- |
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the Board of Directors of the Issuer in good faith and (c) indemnification and reimbursement of expenses pursuant to the Sponsor Management Agreement (plus any unpaid indemnities and expenses accrued in any prior year); (12) (i) direct or indirect investments by Permitted Holders in securities, Indebtedness or Dis-qualified Stock of the Issuer or any Restricted Subsidiary (and payment to any Permitted Holder of all rea-sonable out of pocket expenses Incurred by such Permitted Holder in connection with its direct or indirect investment in securities, Indebtedness or Disqualified Stock of the Issuer and its Restricted Subsidiaries) so long as the investment is being offered by the Issuer or such Restricted Subsidiary generally to other inves-tors who are not Affiliates of the Issuer or any Restricted Subsidiary on the same or more favorable terms and at least a majority of the principal amount of such Indebtedness or a majority of the aggregate liquida-tion preference of such Disqualified Stock is purchased by Persons who are not Affiliates of the Issuer or any Restricted Subsidiary and (ii) payments to Permitted Holders in respect of securities, Indebtedness or Disqualified Stock of the Issuer or any Restricted Subsidiary contemplated in the foregoing clause (i) or that were acquired from Persons other than the Issuer and the Restricted Subsidiaries, in each case, in ac-cordance with the terms of such securities, Indebtedness or Disqualified Stock; (13) the Transactions and any Permitted Reorganization and the payment of all fees and ex-penses related to the Transactions and any Permitted Reorganization; (14) transactions in which the Issuer or any Restricted Subsidiary, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Is-suer or such Restricted Subsidiary from a financial point of view or meets the requirements of Section 3.8(a)(1); (15) the existence of, or the performance by the Issuer or any Restricted Subsidiaries of its ob-ligations under the terms of, any equityholders agreement (including any registration rights agreement or purchase agreements related thereto) to which it is party as of the Escrow Release Date and any similar agreement that it may enter into thereafter, and the payment of reasonable out-of-pocket costs and expenses pursuant thereto; provided, however, that the existence of, or the performance by the Issuer or any Restrict-ed Subsidiary of its obligations under any future amendment to the equityholders’ agreement or under any similar agreement entered into after the Escrow Release Date will only be permitted under this clause to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the Holders in any material respects; (16) payments by the Issuer (and any Parent Entity) and its Restricted Subsidiaries pursuant to any tax sharing agreements among the Issuer (and any such Parent Entity) and its Restricted Subsidiaries on customary terms to the extent attributable to the ownership or operation of the Issuer and its Restricted Subsidiaries; provided that for each taxable period, (A) the amount of such payments made in respect of such taxable period in the aggregate will not exceed the amount that the Issuer and the applicable Restricted Subsidiaries (and, to the extent permitted herein, the applicable Unrestricted Subsidiaries), would have been required to pay in respect of such taxable income as stand-alone taxpayers or a stand-alone tax group and (B) the amount of such payments made in respect of an Unrestricted Subsidiary will be permitted only to the extent that cash distributions were made by such Unrestricted Subsidiary to the Issuer or any Re-stricted Subsidiary for such purpose; (17) any Intercompany License Agreements; (18) transactions undertaken pursuant to membership in a purchasing consortium; and (19) the existence and performance of agreements and transactions with any Unrestricted Sub-sidiary that were entered into prior to the designation of a Restricted Subsidiary as such Unrestricted Sub-sidiary to the extent that the transaction was permitted at the time that it was entered into with such Re-stricted Subsidiary and transactions entered into by an Unrestricted Subsidiary with an Affiliate prior to the redesignation of any such Unrestricted Subsidiary as a Restricted Subsidiary; provided that such transaction was not entered into in contemplation of such designation or redesignation, as applicable. -85- |
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SECTION 3.9 Change of Control. (a) If a Change of Control occurs after the Issue Date, subject to the exceptions described in Section 3.9(c) below, the Issuer shall make an offer to purchase all of the Notes pursuant to the offer described below (the “Change of Control Offer”) at a price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest and Additional Amounts, if any, to, but excluding, the date of repurchase, subject to the right of Holders of the Notes of record on the relevant record date to receive inter-est due on the relevant interest payment date occurring on or prior to the repurchase date. Within 30 days following any Change of Control, the Issuer shall deliver notice of such Change of Control Offer electronically or by first-class mail, with a copy to the Trustee and Paying Agent, to each Holder of Notes at the address of such Holder appearing in the security register, describing the transaction or transactions that constitute the Change of Control and with the following information: (1) that a Change of Control Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Is-suer; (2) the purchase price and the purchase date, which date will be no earlier than 30 days and no later than 60 days from the date such notice is delivered (the “Change of Control Payment Date”), sub-ject to extension (in the case where such notice is mailed or otherwise delivered prior to the occurrence of a Change of Control) in the event that the occurrence of the Change of Control is delayed; (3) that any Note not properly tendered will remain outstanding and continue to accrue inter-est; (4) that unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest, on the Change of Control Payment Date; (5) 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” on the reverse of 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; (6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the Paying Agent receives, not later than the close of busi-ness on the second Business Day prior to the expiration date of the Change of Control Offer, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes tendered for pur-chase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased; (7) that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to at least €100,000 or any integral multiple of €1,000 in excess thereof; (8) if such notice is delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control; and (9) the other instructions, as determined by the Issuer, consistent with this Section 3.9, that a Holder must follow. -86- |
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If the Change of Control Payment Date is on or after an interest record date and on or before the related in-terest payment date, any accrued and unpaid interest, if any, will be paid on the relevant interest payment date to the Person in whose name a Note is registered at the close of business on such record date. (b) On the Change of Control Payment Date, the Issuer will, to the extent permitted by law: (1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer; (2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Pay-ment in respect of all Notes or portions thereof so tendered; and (3) deliver, or cause to be delivered, to the Registrar for cancellation the Notes so accepted together with an Officer’s Certificate to the Registrar and Trustee stating that such Notes or portions there-of have been tendered to and purchased by the Issuer and directing the Registrar to cancel such Notes. The Paying Agent will promptly deliver to each Holder tendered the Change of Control Payment for such Notes, and the Trustee or the Authentication Agent, as the case may be, will promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased por-tion of the Notes surrendered, if any; provided that each such new Note will be in a minimum principal amount of €100,000 or an integral multiple of €1,000 in excess thereof. The Issuer will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. Any Change of Control Offer shall comply with the applicable procedures of the Common Depositary. (c) The Issuer will not be required to make a Change of Control Offer following 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 Indenture applicable to a Change of Control Offer made by the Issuer and purchas-es all Notes validly tendered and not withdrawn under such Change of Control Offer or (2) a notice of redemption of all outstanding Notes has been given pursuant to this Indenture as described under Section 5.7, unless and until there is a default in the payment of the redemption price on the applicable redemption date or the redemption is not con-summated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied. Notwithstanding anything to the contrary in this Section 3.9, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer. (d) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer as described in this Section 3.9, purchases all of the Notes validly ten-dered and not withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest and Additional Amounts, if any, to, but excluding, the date of redemption. (e) The Issuer will comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable 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 shall not be deemed to have breached its obligations de-scribed in this Indenture by virtue thereof. SECTION 3.10 Reports. (a) Whether or not required by the SEC, so long as any Notes are outstanding, if not filed electronical-ly with the SEC through the SEC’s Electronic Data Gathering, Analysis, and Retrieval System (or any successor -87- |
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system) (“EDGAR”), from and after the Issue Date, the Issuer will furnish to the Trustee and the Holders within 15 days after the time periods specified below: (1) within 120 days (or 150 days in the case of the fiscal year containing the Issue Date) after the end of each fiscal year of the Issuer, the consolidated balance sheet of the Issuer and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of operations and cash flows for such fiscal year, setting forth comparative consolidated and/or combined figures for the preceding fiscal year (to the extent such comparative presentation is permitted under GAAP), all in reasonable detail and prepared in accordance with GAAP, and, in each case, certified by independent certified public accountants of recog-nized national standing, together with a customary management discussion and analysis of the Issuer’s fi-nancial condition and results of operations; provided, that if at the end of any applicable fiscal year there are any Unrestricted Subsidiaries, the Issuer shall also furnish a reasonably detailed presentation, either on the face of the annual financial statements delivered pursuant to this clause (1) or in the footnotes thereto, and in the management discussion and analysis, of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer; (2) within 60 days (or (x) 120 days in the case of the fiscal quarter containing the Issue Date and the immediately succeeding fiscal quarter to which this clause (2) applies, and (y) 90 days in the case of the second succeeding fiscal quarter to which this clause (2) applies following the fiscal quarter contain-ing the Issue Date) after the end of each of the first three fiscal quarters of each fiscal year, (i) the consoli-dated balance sheet of the Issuer and its Subsidiaries as at the end of such quarterly period, (ii) the related consolidated statements of operations for such quarterly accounting period and for the elapsed portion of the fiscal year ended with the last day of such quarterly period, and (iii) the related consolidated statement of cash flows for the elapsed portion of the fiscal year ended with the last day of such quarterly period, and setting forth comparative consolidated and/or combined figures for the corresponding periods in the prior fiscal year (to the extent such comparative presentation is permitted under GAAP) or, in the case of such consolidated balance sheet, for the last day of the corresponding period in the prior fiscal year, subject to changes resulting from normal year-end adjustments and the absence of footnotes, together with a custom-ary management discussion and analysis of the Issuer’s financial condition and results of operations; pro-vided that such comparative information need not include consolidated or combined figures for the second quarter of 2016 or 2017 or the third quarter of 2016; and (3) promptly (but not later than 10 days following the event) upon the occurrence of any Change of Control, after a material acquisition, disposition or restructuring of the Issuer and the Restricted Subsidiaries, taken as a whole, upon any bankruptcy or insolvency involving the Issuer or any Significant Subsidiary or any acceleration of material indebtedness, or upon any change of the entire board of direc-tors, chairman of the board of directors, chief executive officer or chief financial officer at the Issuer or change in auditors of the Issuer, a description of such event; provided, further, that (a) such information will not be required to comply with Section 302 or Section 404 of the Sarbanes-Oxley Act of 2002, or related Items 307 and 308 of Regulation S-K promulgated by the SEC, (b) such information will not be required to contain the separate financial information for Guarantors as contemplated by Rule 3-10 of Regulation S-X, any financial statements of unconsolidated subsidiaries or 50% or less owned persons as contemplated by Rule 3-09 of Regulation S-X, any schedules required by Regulation S-X, the financial infor-mation required by Rule 3-16 of Regulation S-X, any “segment reporting” or any compensation-related information (to the extent not required to be reflected on the face of the financial statements referred to in clauses (1) and (2) of Section 3.10(a)), including any Compensation Discussion and Analysis required by Item 402 of Regulation S-K or other information regarding executive compensation contemplated by SEC Release Nos. 33-8732A, 34-54302A and IC-27444A, or in each case any successor provisions, (c) such information shall not be required to comply with Regulation G under the Exchange Act or Item 10(e) of Regulation S-K with respect to any non-GAAP financial measures contained therein and (d) such information will not be required to be provided using eXtensible Business Reporting Language. (b) Notwithstanding anything herein to the contrary, if the Issuer makes an election to change its fiscal year (which it shall be permitted to do, upon written notice to the Trustee, in which case the Issuer and the Trustee -88- |
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shall be authorized by the Holders to make any adjustments to this Indenture and the other Notes Documents as are necessary in order to reflect such change in financial reporting), the Issuer will be required to furnish to the Trustee and the Holders, within 120 days of the opening date of its newly elected fiscal year, the consolidated balance sheet of the Issuer and its Subsidiaries as at the end of such newly elected fiscal year, and the related consolidated state-ments of operations for the period from the closing of the Issuer’s most recent fiscal year and the opening date of its newly elected fiscal year (the “Transition Period”), all in reasonable detail and prepared in accordance with GAAP, and, in each case, certified by independent certified public accountants of recognized national standing. (c) To the extent any such information is not so filed or furnished, as applicable, within the time peri-ods specified in Section 3.10(a) and such information is subsequently filed or furnished, as applicable, the Issuer will be deemed to have satisfied its obligations with respect thereto at such time and any Default with respect thereto shall be deemed to have been cured; provided that such cure shall not otherwise affect the rights of the Holders un-der Section 6.1 if Holders of at least 30% in principal amount of the then total outstanding Notes have declared the principal, premium, if any, interest, Additional Amounts and any other monetary obligations on all the then out-standing Notes to be due and payable immediately and such declaration shall not have been rescinded or cancelled prior to such cure. In addition, to the extent not satisfied by the foregoing, the Issuer will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. (d) The requirement to furnish the information to Holders required by clauses (1), (2) and (3) of Sec-tion 3.10(a) may be satisfied by the Issuer posting copies of such information on a website (which may be nonpub-lic, password protected and may be maintained by the Issuer or a third party) to which access will be given to Hold-ers, prospective investors in the Notes (which prospective investors shall be limited to “qualified institutional buy-ers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as to such status to the reasonable satisfaction of the Issuer), and securities analysts and market making financial institutions that are reasonably satisfactory to the Issuer; provided, however, that the Issuer may deny access to any competitively-sensitive information otherwise to be provided pursuant to this Section 3.10 to any such Holder, prospective investor, security analyst or market maker that is a competitor (or an Affiliate of a competitor) of the Issuer and its Subsidiaries to the extent that the Issuer determines in good faith that the provision of such information to such Person would be competitively harmful to the Issuer and its Subsidiaries; and provided, further, that such Holders, prospective investors, security analysts or market makers will agree to (1) treat all such reports (and the information contained therein) and information as confidential, (2) not use such reports (and the information contained therein) and information for any purpose other than their investment or potential in-vestment in the Notes and (3) not publicly disclose or distribute any such reports (and the information contained therein) and information. (e) The Issuer will also hold quarterly conference calls for the Holders of the Notes to discuss finan-cial information for the previous quarter, if such conference calls are held with the lenders under any Credit Facility (if applicable) or with any equity investors of the Issuer or any Parent Entity and analysts; it being understood that such quarterly conference call may be the same conference call as with such lenders or equity investors and analysts. Prior to any such conference call, the Issuer will issue a press release or other notification announcing the time and date of such conference call and providing instructions to Holders, securities analysts and applicable current and prospective investors on how to obtain access to such call. (f) The Issuer may satisfy its obligations under this Section 3.10 with respect to financial information relating to the Issuer by furnishing financial information relating to a Parent Entity (including by making such re-ports available through EDGAR); provided that, the same is accompanied by unaudited consolidating information that explains in reasonable detail the differences (if any) between the information relating to such Parent Entity, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a standalone basis, on the other hand. (g) Notwithstanding anything to the contrary set forth in this Section 3.10, if the Issuer or any Parent Entity has made available through EDGAR the reports described in this Section 3.10 with respect to the Issuer or any Parent Entity (including any consolidated financial information required by Regulation S-X relating to the Issu-er), the Issuer shall be deemed to be in compliance with the provisions of this Section 3.10. -89- |
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(h) The Trustee shall have no responsibility whatsoever to determine whether any posting or filing through EDGAR or on any website as described in this Section 3.10 has occurred. The Trustee shall not be deemed to have constructive notice of any information contained, or determinable from information contained, in any reports referred to above, including the Issuer’s compliance with Article III of this Indenture. SECTION 3.11 Maintenance of Office or Agency. The Issuer will maintain an office or agency where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be delivered. The Corporate Trust Office of the Trustee, which initially shall be located at Wilmington Trust, National Association, 50 South Sixth Street, Suite 1290, Minneapolis, Minnesota 55402, Attention: Diamond (BC) B.V. Administrator, shall be such office or agency of the Issuer unless the Issuer shall designate and maintain some other office or agency for one or more of such purposes. The Issuer will give prompt written notice to the Trustee of any change in the location of any 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 and surrenders may be made at the Corporate Trust Office of the Trustee, and the Issuer hereby appoints the Trustee as its agent to receive all such presentations and surrenders provided, that the Corporate Trust Office of the Trustee shall not be an office or agency of the Issuer for the purposes of service of legal process against the Issuer or any Guarantor, which office or agency shall be as provided in Section 13.10. The Issuer may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind any such designation. The Issuer will give prompt written notice to the Trustee of any such designation or rescission and any change in the location of any such other office or agency. SECTION 3.12 Corporate Existence. Except as otherwise provided in this Article III, Article IV and Section 10.2(c), the Issuer will do or cause to be done all things necessary to preserve and keep in full force and ef-fect its corporate existence and the corporate, partnership, limited liability company or other existence of each Re-stricted Subsidiary and the rights (charter and statutory), licenses and franchises of the Issuer and each Restricted Subsidiary; provided, however, that the Issuer shall not be required to preserve any such right, license or franchise or the corporate, partnership, limited liability company or other existence of any Restricted Subsidiary if senior man-agement of the Issuer determines that the preservation thereof is no longer desirable in the conduct of the business of the Issuer and its Restricted Subsidiaries, taken as a whole, and that the loss thereof is not, and will not be, disadvan-tageous in any material respect to the Holders. SECTION 3.13 Payment of Taxes. The Issuer shall pay or discharge or cause to be paid or discharged, before the same shall become delinquent, all material taxes, assessments and governmental charges levied or im-posed upon the Issuer or any Restricted Subsidiary; provided, however, that the Issuer shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim the amount, applicability or validity of which is being contested in good faith by appropriate actions and for which appropriate reserves, if nec-essary (in the good faith judgment of management of the Issuer), are being maintained in accordance with GAAP or where the failure to effect such payment will not be disadvantageous in any material respect to the Holders. SECTION 3.14 [Reserved]. SECTION 3.15 Compliance Certificate. The Issuer shall deliver to the Trustee within 120 days after the end of each fiscal year of the Issuer an Officer’s Certificate, signed by the Chief Executive Officer, Chief Finan-cial Officer or the Chief Accounting Officer of the Issuer, stating that in the course of the performance by the signer of his or her duties as an Officer of the Issuer he or she would normally have knowledge of any Default or Event of Default and whether or not the signer knows of any Default or Event of Default that has occurred and is continuing; provided that no such Officer’s Certificate shall be required for any fiscal year ended prior to the Issue Date. If such Officer does have such knowledge, such Officer’s Certificate shall describe the Default or Event of Default, its sta-tus and the action the Issuer is taking or proposes to take with respect thereto. SECTION 3.16 Further Instruments and Acts. Upon request of the Trustee or as necessary to comply with future developments or requirements, the Issuer will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture. -90- |
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SECTION 3.17 Maintenance of Listing. The Issuer shall (i) use its commercially reasonable efforts to cause the Notes to be listed on the Official List of the Exchange and for permission to deal in the Notes on the Ex-change as promptly as practicable after the Issue Date, and (ii) use its commercially reasonable efforts to maintain such listing and permission to deal for as long as any of the Notes are outstanding. If the Notes fail to be, or at any time cease to be, listed on the Official List of, and for there to be permission to deal in the Notes on, the Exchange, the Issuer will use its commercially reasonable efforts to list the Notes on another “recognized stock exchange” (within the meaning of Section 1005 of the UK Income Tax Act 2007) in western Europe as promptly as practicable after the date on which the Notes are not so listed or such dealing is no longer permitted. SECTION 3.18 Statement by Officers as to Default. The Issuer shall deliver to the Trustee, as soon as possible and in any event within 30 days after the Issuer becomes aware of the occurrence of any Default or Event of Default, an Officer’s Certificate setting forth the details of such Event of Default or Default, its status and the ac-tions which the Issuer is taking or proposes to take with respect thereto. SECTION 3.19 Suspension of Certain Covenants on Achievement of Investment Grade Status. (a) Following the first day: (1) the Notes have achieved Investment Grade Status; and (2) no Default or Event of Default has occurred and is continuing under this Indenture, then, beginning on that day (each such day, a “Suspension Date”) and continuing until any Reversion Date, the Issuer and its Restricted Subsidiaries will not be subject to Sections 3.2, 3.3, 3.4, 3.5, 3.7, 3.8 and 4.1(a)(3) (collectively, the “Suspended Covenants”). Additionally, upon the occurrence of an event resulting in Suspended Covenants, the amount of Excess Proceeds from Net Avail-able Cash shall be reset to zero. (b) If on any date following a Suspension Date the Notes cease to have such Investment Grade Status (any such date, a “Reversion Date”), then the Suspended Covenants will thereafter be reinstated 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 Investment Grade Status 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 Status); 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 Issuer or any of its Subsidiaries shall bear any liability for, any actions taken or events occurring during the Suspension Period, or any actions taken at any time pursuant to any contractual obligation arising prior to the applicable Reversion Date, 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 a Suspension Date and a Reversion Date is referred to as the “Suspension Period.” (c) On any Reversion Date, all Indebtedness Incurred during the applicable Suspension Period will be deemed to have been outstanding on the Escrow Release Date, so that it is classified as permitted under Sec-tion 3.2(b)(4)(B). Calculations made after the Reversion Date of the amount available to be made as Restricted Payments under Section 3.3 will be made as though Section 3.3 had been in effect since the Escrow Release Date and prior to, but not during, the Suspension Period; provided, that no Subsidiaries may be designated as Unrestricted Subsidiaries during the Suspension Period, unless such designation would have complied with Section 3.3 as if such Section would have been in effect during such period. Accordingly, Restricted Payments made during the Suspen-sion Period will not reduce the amount available to be made as Restricted Payments under Section 3.3. Any Affiliate Transaction entered into on and after the Reversion Date pursuant to an agreement entered into during any Suspen-sion Period shall be deemed to be permitted pursuant to Section 3.8(b)(6). Any encumbrance or restriction on the ability of any Restricted Subsidiary to take any action described in clauses (1) through (3) of Section 3.4(a) that be-comes effective during any Suspension Period shall be deemed to be permitted pursuant to Section 3.4(b)(1)(y) on and after any Reversion Date. During the Suspension Period, any future obligation to grant further Note Guarantees shall be suspended. All such further obligation to grant Note Guarantees shall be reinstated upon the Reversion Date, but no Subsidiary of the Issuer shall be required to comply with Section 3.7 after the end of a Suspension Period with respect to any Guarantee entered into by such Subsidiary during any Suspension Period. -91- |
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(d) (d) The Trustee shall have no duty to monitor the ratings of the Notes, shall not be deemed to have any knowledge of the ratings of the Notes and shall have no duty to notify Holders of the occurrence of a Suspen-sion Date or Reversion Date. SECTION 3.20 Designation of Restricted and Unrestricted Subsidiaries. (a) The Issuer may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that desig-nation would not cause an Event of Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate fair market value of all outstanding Investments owned by the Issuer and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 3.3 or under one or more clauses of the definition of “Permitted Investments.” as determined by the Issuer. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Issuer may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default or an Event of Default. (b) Any designation of a Subsidiary of the Issuer as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a Board Resolution of the Issuer giving effect to such designation and an Of-ficer’s Certificate certifying that such designation complies with the preceding conditions and was permitted by Sec-tion 3.3. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestrict-ed Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebt-edness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary as of such date and, if such In-debtedness is not permitted to be incurred as of such date under Section 3.2, the Issuer will be in default of Section 3.2. (c) The Issuer may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 3.2 calculated on a Pro Forma Basis as of the most recently ended Test Pe-riod; and (2) no Default or Event of Default would be in existence following such designation. Any such designa-tion by the Issuer shall be evidenced to the Trustee by filing with the Trustee a resolution of the Board of Directors of the Issuer giving effect to such designation and an Officer’s Certificate certifying that such designation complies with the preceding conditions. SECTION 3.21 Payment of Additional Amounts. (a) All payments made by the Issuer under or with respect to the Notes, or by any of the Guarantors under or with respect to any Note Guarantee, shall be made free and clear of, and without withholding or deduction for or on account of, any Tax, unless the withholding or deduction of such Tax is then required by law. If any deduc-tion or withholding by any applicable withholding agent for or on account of any Taxes imposed or levied by or on behalf of any jurisdiction (or any department or political subdivision thereof or therein) (a) in which the Issuer or any Guarantor is at any time incorporated or organized, engaged in business for tax purposes or resident for tax pur-poses or (b) from or through which payment is made by or on behalf of the Issuer or any Guarantor (including the jurisdiction of any Paying Agent) will at any time be required to be made in respect of any payments made by the Issuer under or with respect to the Notes or any of the Guarantors under or with respect to any Note Guarantee, in-cluding payments of principal, redemption price, purchase price, interest or premium (each such jurisdiction (or any department or political subdivision thereof or therein) referred to in (a) or (b) above, a “Tax Jurisdiction”), then the Issuer or the relevant Guarantor, as applicable, shall pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments after such withholding, deduc-tion or imposition (including any such withholding, deduction or imposition in respect of any such Additional Amounts) will equal the respective amounts that would have been received in respect of such payments in the ab-sence of such withholding or deduction; provided, however, that no Additional Amounts will be payable with re-spect to: (1) any Taxes, to the extent such Taxes would not have been imposed but for the existence of any actual or deemed (pursuant to applicable Tax law of the relevant Tax Jurisdiction, such as, if applica--92- |
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ble, a connection of a partnership that is attributed to the partners/beneficial owners) present or former con-nection between the holder or the beneficial owner of a Note and the relevant Tax Jurisdiction (including being a resident of such jurisdiction for Tax purposes), other than the ownership or disposition of such Note, the enforcement of rights under such Note or under a Note Guarantee or the receipt of any payments in respect of such Note or a Note Guarantee; (2) any Taxes, to the extent such Taxes were imposed as a result of the presentation of a Note for payment more than 30 days after the relevant payment is first made available for payment to the holder (except to the extent that the holder or beneficial owner would otherwise have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period); (3) any Taxes that are payable otherwise than by deduction or withholding from a payment on or with respect to the Notes or any Note Guarantee; (4) any estate, inheritance, gift, sales, transfer, personal property or similar Taxes; (5) any Taxes, to the extent such Taxes are imposed or withheld by reason of the failure of the holder or beneficial owner of Notes to comply with any reasonable written request of the Issuer ad-dressed to the holder or beneficial owner and made at least 45 days before any such withholding or deduc-tion would be payable to satisfy any certification, identification, information or other reporting require-ments, whether required by statute, treaty, regulation or administrative practice of a Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legal-ly eligible to provide such certification or documentation; (6) any FATCA Withholding; or (7) any combination of clauses (1) through (6) of this Section 3.21(a). (b) In addition to the foregoing, the Issuer and the Guarantors shall also pay any present or future stamp, issue, registration, court or documentary Taxes, or any other excise or property Taxes, charges or similar levies (including penalties, additions to tax, interest and any other reasonable expenses related thereto) which are levied by any Tax Jurisdiction on the execution, delivery, issuance, or registration of any of the Notes, this Inden-ture, any Note Guarantee or any other document or instrument referred to therein, or the receipt of any payments with respect thereto, or enforcement of, any of the Notes or any Note Guarantee. (c) If the Issuer or any Guarantor, as the case may be, becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or any Note Guarantee, each of the Issuer or the relevant Guarantor, as the case may be, will deliver to the Trustee and Paying Agent on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises less than 45 days prior to that payment date, in which case the Issuer or the relevant Guarantor shall notify the Trustee and Paying Agent promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate must also set forth any other information rea-sonably necessary to enable the Paying Agent to pay Additional Amounts to holders on the relevant payment date. The Trustee and Paying Agent shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. (d) The Issuer or the relevant Guarantor, if it is the applicable withholding agent, will make all with-holdings and deductions required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Issuer or the relevant Guarantor will use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Is-suer or the relevant Guarantor will furnish to the Trustee or to a holder upon reasonable written request, within a reasonable time after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Issuer or a Guarantor, as the case may be, or if, notwithstanding such entity’s -93- |
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efforts to obtain receipts, receipts are not obtained, other reasonable evidence of payments by such entity. Upon rea-sonable request, copies of Tax receipts or other evidence of payments, as the case may be, will be made available by the Issuer to any holder. (e) Whenever in this Indenture there is mentioned, in any context, the payment of amounts based up-on the principal amount of the Notes or of principal, interest or of any other amount payable under, or with respect to, any of the Notes or any Note Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. (f) The above obligations will survive any termination, defeasance or discharge of this Indenture, any transfer by a holder or beneficial owner of its Notes, and will apply, mutatis mutandis, to any successor Person to the Issuer or any Guarantor and to any jurisdiction in which any successor Person to the Issuer or any Guarantor is in-corporated or organized, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which any payment on the Notes (or any Note Guarantee) is made by or on behalf of such Person, and any department or political subdivision thereof or therein. SECTION 3.22 Limitation on Use of Proceeds. The Issuer and each Guarantor shall ensure that no pro-ceeds from the sale of the Notes have been or will be used in a manner which would constitute a “use of proceeds in Switzerland” as interpreted by Swiss tax authorities for the purposes of Swiss Withholding Tax, except and to the extent that a written confirmation or tax ruling countersigned by the Swiss Federal Tax Administration (Eidgenö-ssische Steuerverwaltung) has been obtained (in a form satisfactory to the Trustee) confirming that the intended “use of proceeds in Switzerland” does not result in interest payments in respect of the Notes or any Note Guarantee be-coming subject to a withholding or deduction for Swiss Withholding Tax. ARTICLE IV SUCCESSOR ISSUER; SUCCESSOR PERSON SECTION 4.1 Merger and Consolidation. (a) The Issuer will not consolidate with or merge with or into, or convey, transfer or lease all or sub-stantially all its assets to, any Person, unless: (1) the Issuer is the resulting or surviving Person or the resulting, surviving or transferee Per-son (such resulting or surviving Person, including, if applicable, the Issuer, or such transferred Person, as applicable, the “Successor Company”) will be a European Company (Societas Europaea) or a Person orga-nized and existing under the laws of the United States, any State of the United States or the District of Co-lumbia, or any territory thereof, the United Kingdom or any member state of the European Union, and the Successor Company (if not the Issuer) will expressly assume, by supplemental indenture, executed and de-livered to the Trustee, all the obligations of the Issuer under the Notes and this Indenture and if such Suc-cessor Company is not a corporation, a co-obligor of the Notes is a corporation organized or existing under such laws; (2) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the applicable Successor Company or any Restricted Subsidiary of the applicable Successor Company as a result of such transaction as having been Incurred by the applicable Successor Company or any such Restricted Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing; (3) immediately after giving effect to such transaction, on a Pro Forma Basis, either (x) the Successor Company or the Issuer (as applicable) would be able to Incur at least an additional $1.00 of In-debtedness pursuant to Section 3.2(a) or (y) the Consolidated Coverage Ratio for the Issuer or the Succes-sor Company (as applicable) as of the most recently ended Test Period would not be lower than it was for such Test Period immediately prior to giving effect to such transaction; and -94- |
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(4) the Issuer (or Successor Company if other than the Issuer) shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer, and such supplemental indenture (if any), comply with this Indenture; provided that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to compliance with Sections 4.1(a)(2) and (3) and as to any matters of fact, including as to satisfaction of the conditions of this Section 4.1. (b) The Successor Company will succeed to, and (if other than the Issuer) be substituted for, and may exercise every right and power of, the Issuer under the Notes and this Indenture, and in such event where the Suc-cessor Company is not the Issuer, the Issuer will automatically be released from its obligations under the Notes and this Indenture, but in the case of a lease of all or substantially all its assets, the predecessor company will not be re-leased from its obligations under the Notes or this Indenture. (c) [Reserved]. (d) Notwithstanding Sections 4.1(a)(2), (3) and (4) (which do not apply to transactions referred to in this clause (d)), (i) any Restricted Subsidiary may consolidate with or merge with or into, or convey, transfer or lease all or substantially all its assets to, the Issuer, (ii) the Issuer and the Restricted Subsidiaries may effect any Permitted Reorganization, (iii) the Issuer and the Restricted Subsidiaries may consummate the Transactions and (iv) the Issuer and the Restricted Subsidiaries may consummate a consolidation or merger or conveyance, transfer or lease, the purpose of which is to effect an Investment permitted pursuant to Section 3.3, including an Investment that constitutes a Permitted Investment. (e) Notwithstanding Sections 4.1(a)(2) and (3) (which do not apply to the transactions referred to in this clause (e)), (i) the Issuer may consolidate or otherwise combine with or merge with or into an Affiliate incorpo-rated or organized for the purpose of changing the legal domicile of the Issuer, reincorporating the Issuer in another jurisdiction, or changing the legal form of the Issuer and (ii) the Issuer may effect any Permitted Reorganization. (f) For the avoidance of doubt, the foregoing clauses (a) through (e) of this Section 4.1 shall not apply to the creation of a new Subsidiary as a Restricted Subsidiary of the Issuer or to the Transactions. (g) Subject to certain limitations described in this Indenture governing release of a Note Guarantee as described under Article X, no Subsidiary Guarantor may: (1) consolidate with or merge with or into any Person, or (2) convey, transfer or lease all or substantially all its assets to any Person, in one transaction or a series of related transactions, unless (i) the other Person is the Issuer or any Restricted Subsidiary that is a Subsidiary Guarantor or becomes a Subsidiary Guarantor concurrently with the transaction; (ii) either (x) such Subsidiary Guarantor is the resulting or surviving Person or (y)(I) the resulting, surviving or transferee Person (the “Successor Person”) will be a European Compa-ny (Societas Europaea) or a Person organized and existing under the laws of the United States, any State of the United States or the District of Columbia, or any territory thereof, the United Kingdom or any member state of the European Union, and the Successor Person (if not a Subsidi-ary Guarantor or the Issuer) will expressly assume, by supplemental indenture, executed and de-livered to the Trustee, all the obligations of such Subsidiary Guarantor under this Indenture and such Subsidiary Guarantor’s related Note Guarantee and (II) immediately after giving effect to the transaction, on a Pro Forma Basis, no Event of Default has occurred and is continuing; (iii) the transaction constitutes a sale, lease or other disposition (including by way of consolidation, amalgamation or merger) of the Subsidiary Guarantor or the sale or disposition of -95- |
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all or substantially all the assets of the Subsidiary Guarantor (in each case other than to the Issuer or a Restricted Subsidiary) otherwise permitted by this Indenture; or (iv) the transaction constitutes a Permitted Reorganization. Notwithstanding the foregoing (which do not apply to transactions referred to in this sentence), (1) any Subsidiary Guarantor may consolidate with or merge with or into, or convey, transfer or lease all or substantially all its assets to, the Issuer or another Guarantor or, subject to compliance with Section 4.1(g)(ii)(x) or (g)(ii)(y)(I), any Non-Guarantor, (2) the Issuer and the Restricted Subsidiaries may consummate the Transactions, (3) any Subsidiary Guarantor may liquidate, dissolve or wind up if the Issuer determines in good faith that such liquidation, dissolution or winding up is in the best interests of the Issuer and the Restricted Subsidiaries, taken as a whole, and is not mate-rially disadvantageous to the Holders, (4) any Guarantor may consummate a consolidation or merger or conveyance, transfer or lease, the purpose of which is to effect an Investment permitted pursuant to Section 3.3, including an In-vestment that constitutes a Permitted Investment, and (5) subject to compliance with Section 4.1(g)(ii)(x) or (g)(ii)(y)(I), any Guarantor may change its legal domicile or reincorporate in another jurisdiction or change its legal form. (h) Any Restricted Subsidiary may consolidate with or merge with or into, or convey, transfer or lease all or substantially all its assets to any other Restricted Subsidiary. ARTICLE V REDEMPTION OF SECURITIES SECTION 5.1 Notices to Trustee. If the Issuer elects to redeem Notes pursuant to the optional re-demption provisions of Section 5.7 hereof, it must furnish an Officer’s Certificate setting forth the following to the Trustee, at least 30 days but not more than 60 days before a redemption date, except that such Officer’s Certificate may be furnished more than 60 days prior to a redemption date if such Officer’s Certificate is furnished in connec-tion with a defeasance of the Notes or a satisfaction and discharge of this Indenture pursuant to Article VIII or XI hereof or the applicable redemption date is delayed: (1) the clause of this Indenture pursuant to which the redemption shall occur; (2) the redemption date; (3) the principal amount of Notes to be redeemed; and (4) the redemption price. Any optional redemption referenced in such Officer’s Certificate may be cancelled by the Issuer at any time prior to notice of redemption being sent to any Holder. SECTION 5.2 Selection of Notes to Be Redeemed or Purchased. If less than all of the Notes are to be redeemed at any time, the Paying Agent will select the Notes for redemption in compliance with the requirements of the principal securities exchange, if any, on which the Notes are listed, as certified to the Paying Agent by the Issuer, and in compliance with the requirements of Euroclear and Clearstream, or if the Notes are not so listed or such ex-change prescribes no method of selection and the Notes are not held through Euroclear and Clearstream or Euroclear and Clearstream prescribe no method of selection, on a pro rata basis, subject to adjustments so that no Note in an unauthorized denomination remains outstanding after such redemption; provided, however, that no Note of €100,000 in aggregate principal amount or less shall be redeemed in part and only Notes in integral multiples of €1,000 in excess thereof shall be redeemed. The Trustee, the Paying Agent and the Registrar shall not be liable for selections made under this Section 5.2. -96- |
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SECTION 5.3 Notice of Optional Redemption. (a) At least 30 days but not more than 60 days before an optional redemption date, the Issuer will send or cause to be sent, by electronic delivery or by first class mail, postage prepaid, a notice of optional redemption to each Holder whose Notes are to be redeemed, with a copy to the Trustee and the Paying Agent, to the address of such Holder appearing in the security register or otherwise in accordance with the applicable procedures of Euro-clear and Clearstream, or while Notes are in the form of Global Notes in accordance with the applicable procedures of Euroclear and Clearstream, except that optional redemption notices may be delivered electronically or mailed more than 60 days prior to an optional redemption date if the notice is issued (i) in connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture pursuant to Article VIII or XI hereof or (ii) subject to one or more conditions precedent and such redemption date is delayed until such time as any or all such conditions shall be satisfied (or waived by the Issuer in its sole discretion). The notice will identify the Notes (including the ISIN or Common Code number) to be redeemed and will state: (1) the redemption date; (2) the redemption price; (3) if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the redemption date upon surrender of such Note, a new Note or Notes in prin-cipal amount equal to the unredeemed portion will be issued upon cancellation of the original Note; (4) the name and address of the Paying Agent; (5) redemption price; that Notes called for redemption must be surrendered to the Paying Agent to collect the (6) that, unless the Issuer defaults in making such redemption payment, interest, if any, on Notes called for redemption ceases to accrue on and after the redemption date; (7) the paragraph of the Notes and/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 ISIN or Common Code number, if any, listed in such notice or printed on the Notes; and (9) any condition precedent to redemption. (b) If any Note is to be redeemed in part only, the notice of redemption that relates to that Note shall state the portion of the principal amount thereof that is to be redeemed. A new Note in principal amount equal to the unredeemed portion of the original Note will be issued in the name of the Holder thereof upon cancellation of the original Note. In the case of a Global Note, an appropriate notation will be made on such Global Note to decrease the principal amount thereof to an amount equal to the unredeemed portion thereof. Subject to the terms of the ap-plicable redemption notice (including any conditions contained therein), Notes called for redemption become due on the date fixed for redemption. On and after the redemption date, unless the Issuer defaults in the payment of the redemption price, interest ceases to accrue on Notes or portions of Notes called for redemption. (c) [Reserved]. (d) At the Issuer’s request, the Paying Agent shall give the notice of optional redemption in the Issu-er’s name and at the Issuer’s expense. In such event, the Issuer shall provide the Trustee with an Officer’s Certifi-cate containing the information required by this Section 5.3 at least five (5) Business Days prior to the date on which -97- |
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the Issuer instructs the Paying Agent to send the notice (or such shorter period as the Trustee and the Paying Agent may agree). (e) Such notice of optional redemption, and the related optional redemption, may, at the Issuer’s dis-cretion, be subject to satisfaction of one or more conditions precedent, including, but not limited to, completion of a related Equity Offering, incurrence of Indebtedness or in connection with other transactions (or series of related transactions) or an event that constitutes a Change of Control, the consummation of such Equity Offering, incur-rence of Indebtedness, Change of Control or other transactions. In addition, if such redemption is subject to satisfac-tion of one or more conditions precedent, such notice of redemption shall describe each such condition, and if appli-cable, shall state that, in the Issuer’s discretion, the redemption date may be delayed until such time (including more than 60 days after the date the notice of redemption was mailed or delivered, including by electronic transmission) as any or all such conditions shall be satisfied, or 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 as stated in such no-tice, or by the redemption date as so delayed, or such notice may be rescinded at any time in the Issuer’s discretion if in the good faith judgment of the Issuer any or all of such conditions will not be satisfied. The Issuer may provide in such notice of redemption that payment of the redemption price and performance of the Issuer’s obligations with respect to such redemption may be performed by another Person. (f) If and for so long as any Notes are listed on the Official List of the Exchange and if and to the ex-tent the rules of the Exchange so require, the Issuer will notify the Exchange of any notice of optional redemption sent to the Holders of the relevant Notes and, in connection with any redemption, the Issuer will notify the Exchange of any change in the principal amount of Notes outstanding. SECTION 5.4 Effect of Notice of Redemption. Once notice of redemption is sent in accordance with this Indenture, Notes called for redemption become irrevocably due and payable on the redemption date at the re-demption price stated in such notice, as such date may be delayed, unless such redemption is cancelled; provided, however, that a redemption or notice of redemption may, at the Issuer’s option and discretion, be subject to the satis-faction of one or more conditions precedent, including, but not limited to, completion of an Equity Offering (in the case of redemption pursuant to Section 5.7(b) hereof). SECTION 5.5 Deposit of Redemption or Purchase Price. Prior to 11:00 a.m. London time on the re-demption or purchase date, the Issuer will deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of and accrued interest, if any, on, all Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent will 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 interest, if any, on, all Notes to be redeemed or purchased. If the Issuer complies with the provisions of the preceding paragraph, on and after the redemption or pur-chase date, interest, if any, will cease to accrue on the Notes or the portions of Notes called for redemption or pur-chase. If a Note is redeemed or purchased on or after the relevant record date but on or prior to the related interest payment date, then any accrued and unpaid interest shall be paid to the Person in whose name such Note was regis-tered at the close of business on such record date. If any Note called for redemption or purchase is not so paid upon surrender for redemption or purchase because of the failure of the Issuer to comply with the preceding paragraph, 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 not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 3.1 hereof. SECTION 5.6 Notes Redeemed or Purchased in Part. Upon surrender of a Note that is redeemed or purchased in part, the Issuer will issue and, upon receipt of an Issuer Order, the Trustee or the Authentication Agent, as the case may be, will authenticate for the Holder at the expense of the Issuer a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered; provided, that each such new Note will be in a minimum principal amount of €100,000 or integral multiple of €1,000 in excess thereof. -98- |
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SECTION 5.7 Optional Redemption. (a) At any time and from time to time prior to August 15, 2020, the Issuer may on one or more occa-sions redeem the Notes in whole or in part, at its option, at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium, plus accrued and unpaid interest and Additional Amounts, if any, to, but excluding, the date of redemption (the “Redemption Date”), subject to the rights of holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date. (b) At any time and from time to time prior to August 15, 2020, the Issuer may, at its option, redeem up to 40% of the aggregate principal amount of the Notes issued under this Indenture (including any Additional Notes issued after the Issue Date) at a redemption price equal to 105.625% of the principal amount of the Notes re-deemed, plus accrued and unpaid interest and Additional Amounts, if any, to, but excluding, the Redemption Date, with the net cash proceeds received by, or contributed to, the Issuer from one or more Equity Offerings; provided that (1) in each case the redemption takes place not later than 180 days after the closing of the related Equity Offer-ing, and (2) not less than 50% of the original aggregate principal amount of the Notes issued under this Indenture (including any Additional Notes issued after the Issue Date) remains outstanding immediately thereafter (excluding Notes held by the Issuer or any of its Restricted Subsidiaries). (c) Except pursuant to clauses (a), (b) and (e) of this Section 5.7, the Notes will not be redeemable at the Issuer’s option prior to August 15, 2020. (d) At any time and from time to time on and after August 15, 2020, the Issuer may on one or more occasions redeem the Notes in whole or in part, at its option, at a redemption price equal to the percentage of princi-pal amount of the Notes redeemed set forth below, plus accrued and unpaid interest and Additional Amounts, if any, to, but excluding, the applicable Redemption Date, if redeemed during the twelve-month period beginning on Au-gust 15 of each of the years indicated below: Year 2020.. 2021.. 2022 and thereafter..... Percentage 102.813% 101.406% 100.000% (e) Notwithstanding the foregoing, in connection with any tender offer for the Notes, including a Change of Control Offer or Asset Disposition Offer, if Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in such tender offer and the Issuer, or any third party making such tender offer in lieu of the Issuer, purchases all of the Notes validly tendered and not with-drawn by such Holders, the Issuer or such third party will have the right upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following such purchase date, to redeem all Notes that remain outstanding following such purchase at a redemption price equal to the price offered to each other Holder in such tender offer plus, to the extent not included in the tender offer payment, accrued and unpaid interest and Additional Amounts, if any, thereon, to, but not including, the date of such redemption. (f) Unless the Issuer defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable Redemption Date. (g) 5.1 through 5.6. through 5.6. Any redemption pursuant to this Section 5.7 shall be made pursuant to the provisions of Sections The Paying Agent shall select the Notes to be redeemed in the manner described under Sections 5.1 (h) If the Redemption Date is after the relevant record date to receive interest due and on or before the related interest payment date, the accrued and unpaid interest will be paid to the Person in whose name the Note is registered at the close of business on such record date, and no additional interest will be payable to Holders whose Notes will be subject to redemption by the Issuer. SECTION 5.8 Mandatory Redemption. Except as set forth in Section 5.9, the Issuer is not required to make mandatory redemption payments or sinking fund payments with respect to the Notes; provided, however, that -99- |
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under certain circumstances, the Issuer may be required to offer to purchase Notes under Section 3.5 and Section 3.9. The Issuer may at any time and from time to time purchase Notes in the open market or otherwise. SECTION 5.9 Special Mandatory Redemption. (a) In the event that (i) the Escrow Agent and the Trustee have not received the Acquisition Comple-tion Certificate prior to 5:00 p.m. (New York City time) on the Outside Date, or (ii) the Escrow Agent and the Trus-tee receive, at any time prior to 5:00 p.m. (New York City time) on the Outside Date, an Officer’s Certificate certi-fying that (A) the Issuer will not pursue the consummation of the Acquisition, or (B) the Purchase Agreement has been amended, modified or waived or any consent granted, in a manner that would be materially adverse to the Holders of the Notes (as reasonably determined by the Issuer) or the Purchase Agreement has otherwise been termi-nated (any such event specified in clause (i) or (ii) being a “Special Mandatory Redemption Event”), then, in each such case, the Escrow Agent, without the requirement of notice to or action by the Issuer, the Escrow Agent or any other Person, shall notify the Issuer and the Trustee and, within one Business Day, liquidate all Escrowed Property and, on or prior to the Special Mandatory Redemption Date, release the Escrowed Property to the Paying Agent. On the Business Day following the Special Mandatory Redemption Event, the Issuer shall (x) notify the Escrow Agent, the Paying Agent and the Trustee in writing of the occurrence of the Special Mandatory Redemption Event and (y) deliver or procure the delivery of a notice of redemption in accordance with the applicable procedures of Euro-clear and Clearstream to each Holder of Notes that the entire principal amount outstanding of the Notes shall be re-deemed at the Special Mandatory Redemption Price on the date falling two Business Days after the delivery of such notice (the “Special Mandatory Redemption Date”). In the event that the Special Mandatory Redemption Price pay-able upon a Special Mandatory Redemption exceeds the amount of the Escrowed Property, the Bain Capital Fund will be required to fund the accrued and unpaid interest and Additional Amounts, if any, owing to the holders of the Notes, pursuant to the Equity Commitment Letter. (b) Upon the deposit of funds sufficient to pay the Special Mandatory Redemption Price in respect of the Notes to be redeemed on the Special Mandatory Redemption Date with the Paying Agent on or before such date, the Notes will cease to bear interest and all rights under the Notes shall terminate. The Paying Agent will release to the Issuer, any Escrowed Property remaining after redemption of the Notes and payment of the fees and expenses of the Trustee, Escrow Agent and each other Agent. For the avoidance of doubt, the Issuer will not be required to effect a Special Mandatory Redemption following the Escrow Release. (c) If at the time of a Special Mandatory Redemption, the Notes are listed on the Exchange and the rules of the Exchange so require, the Issuer will notify the Exchange of such Special Mandatory Redemption and any relevant details relating to such Special Mandatory Redemption. (d) If at any time the Escrow Account contains cash having an aggregate value in excess of the Spe-cial Mandatory Redemption Price, such excess cash may be released to the Issuer. SECTION 5.10 Redemption Upon a Tax Event. (a) The Issuer may redeem any series of Notes, in whole but not in part, at its option, at any time upon giving not less than 30 nor more than 60 days’ prior notice to the Holders of the Notes (which notice will be irrevo-cable) at a redemption price equal to 100% of the principal amount of the Notes being redeemed, plus accrued and unpaid interest to, but excluding, the date of redemption (the “Tax Event Redemption Date”) and all Additional Amounts (if any) then due and which will become due on the Tax Event Redemption Date as a result of the redemp-tion or otherwise (subject to the right of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date occurring on or prior to the redemption date and Additional Amounts (if any) in respect thereof), if, on the next date on which any amount would be payable in respect of the Notes, the Issuer is or would be required to pay Additional Amounts in respect of the Notes and cannot avoid such payment obligation by taking reasonable measures available to the Issuer, and such requirement arises as a result of: (1) any amendment to, or change in, the laws (or any regulations or rulings promulgated thereunder) of a relevant Tax Jurisdiction, which change or amendment is announced and becomes effec-tive after the Issue Date (or, if the applicable Tax Jurisdiction became a Tax Jurisdiction on a date after the Issue Date, after such later date); or -100- |
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(2) any amendment to, or change in, an official written interpretation or application of such laws, regulations or rulings (including by virtue of a holding, judgment or order by a court of competent ju-risdiction or a change in published administrative practice), which amendment or change is announced and becomes effective after the Issue Date (or, if the applicable Tax Jurisdiction became a Tax Jurisdiction on a date after the Issue Date, after such later date). (b) The Issuer will not give any such notice of redemption earlier than 60 days prior to the earliest date on which the Issuer would be obligated to pay Additional Amounts if a payment in respect of the Notes was then due, and the obligation to pay Additional Amounts must be in effect at the time such notice is given. Prior to the publication or, where relevant, mailing of any notice of redemption of the Notes pursuant to the foregoing, the Issuer will deliver to the Trustee an opinion of independent tax counsel of recognized standing in the relevant Tax Jurisdiction to the effect that there has been an amendment or change described in clause (1) or (2) of Section 5.10(a). In addition, before the Issuer publishes or mails notice of redemption of the Notes as described above, the Issuer will deliver to the Trustee an Officer’s Certificate to the effect that the Issuer cannot avoid the obligation to pay Additional Amounts by taking reasonable measures available to it. The Trustee shall accept, and will be entitled to conclusively rely on, such an Opinion of Counsel and such Officer’s Certificate as sufficient evidence of the ex-istence and satisfaction of the conditions precedent described in clause (1) or (2) of Section 5.10(a), as applicable, and upon delivery of such Opinion of Counsel and Officer’s Certificate to the Trustee the Issuer will be entitled to give notice of redemption hereunder and such notice of redemption will be conclusive and binding on the Holders of the Notes. ARTICLE VI DEFAULTS AND REMEDIES SECTION 6.1 Events of Default. (a) Each of the following is an “Event of Default”: (1) default in any payment of interest on any Note when due and payable, continued for 30 days; (2) default in the payment of the principal amount of, or premium, if any, on any Note issued under this Indenture when due at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration of acceleration or otherwise; (3) failure by the Issuer or any Guarantor to comply for 60 days after written notice by the Trustee on behalf of the Holders or by the Holders of at least 30% in principal amount of the outstanding Notes with any agreement or obligation (other than a default referred to in Section 6.1(a)(1) or (2)) con-tained in this Indenture; provided that in the case of a failure to comply with Section 3.10 of this Indenture, such period of continuance of such default or breach shall be 90 days after written notice described in this clause (3) has been given; (4) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Issuer or any of its Restricted Subsidiaries (or the payment of which is Guaranteed by the Issuer or any of its Restricted Subsidiaries) other than Indebtedness owed to the Issuer or a Restricted Subsidiary whether such Indebted-ness or Guarantee now exists, or is created after the date hereof, which default: (A) is caused by a failure to pay principal of such Indebtedness, at its stated final maturity (after giving effect to any applicable grace periods) provided in such Indebtedness (“payment default”); or (B) results in the acceleration of such Indebtedness prior to its stated final maturity (the “cross acceleration provision”); -101- |
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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 $100.0 million or more; (5) the Issuer or any Significant Subsidiary; (A) commences a voluntary case or proceeding; (B) proceeding; consents to the entry of an order for relief against it in an involuntary case or (C) property; consents to the appointment of a Custodian of it or for substantially all of its (D) makes a general assignment for the benefit of its creditors; (E) consents to or acquiesces in the institution of a bankruptcy or an insolvency pro-ceeding against it; or (F) takes any comparable action under any foreign laws relating to insolvency (col-lectively, the “bankruptcy provisions”); (6) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (A) is for relief against the Issuer or a Significant Subsidiary in an involuntary case; (B) all of its property; appoints a Custodian of the Issuer or a Significant Subsidiary for substantially (C) orders the winding up or liquidation of the Issuer or a Significant Subsidiary; or (D) or any similar relief is granted under any foreign laws; and, in the case of any of the foregoing clauses (A) through (D), the order, decree or relief remains un-stayed and in effect for 60 consecutive days; (7) failure by the Issuer or any Significant Subsidiary, to pay final judgments aggregating in excess of $100.0 million other than any judgments covered by indemnities provided by, or insurance poli-cies issued by, reputable and creditworthy companies, which final judgments remain unpaid, undischarged and unstayed for a period of more than 60 consecutive days after such judgment becomes final, and in the event such judgment is covered by insurance, an enforcement proceeding has been commenced by any creditor upon such judgment or decree which is not promptly stayed (the “judgment default provision”); or (8) any Note Guarantee by a Significant Subsidiary ceases to be in full force and effect, other than in accordance with the terms of this Indenture, or a Subsidiary Guarantor that is a Significant Subsidi-ary denies or disaffirms its obligations under its Note Guarantee, other than in accordance with the terms thereof or upon release of such Note Guarantee in accordance with this Indenture. (b) Notwithstanding the foregoing, a Default under Section 6.1(a)(3), (4), or (7) will not constitute an Event of Default until the Trustee or the Holders of at least 30% in principal amount of the outstanding Notes notify the Issuer of the Default and, with respect to Sections 6.1(a)(3) and (7), the Issuer does not cure such Default within the time specified in Section 6.1(a)(3) or (7), as applicable, after receipt of such notice. -102- |
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SECTION 6.2 Acceleration. (a) If an Event of Default (other than an Event of Default described in Section 6.1(a)(5) and (a)(6) with respect to the Issuer) occurs and is continuing, the Trustee by written notice to the Issuer or the Holders of at least 30% in aggregate principal amount of the outstanding Notes by written notice to the Issuer and the Trustee, may declare the principal of, and premium, if any, and accrued and unpaid interest and Additional Amounts on, all the Notes to be due and payable. Upon such a declaration, such principal, premium and accrued and unpaid interest and Additional Amounts will be due and payable immediately. In the event of any Event of Default specified in Section 6.1(a)(4), such Event of Default and all conse-quences thereof shall be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders, if within 30 days after such Event of Default arose: (1) (x) the Indebtedness that gave rise to such Event of Default shall have been discharged in full; or (y) the holders thereof have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default; or (z) cured; and if the default that is the basis for such Event of Default has been remedied or (2) (i) the annulment of the acceleration of the Notes would not conflict with any judgment or decree of a court of competent jurisdiction; and (ii) all existing Events of Default, except nonpayment of principal of, and premium or interest, if any, on, the Notes that became due solely because of the acceleration of the Notes, have been cured or waived. (b) If an Event of Default described in Section 6.1(a)(5) and (a)(6) with respect to the Issuer occurs and is continuing, the principal of, and premium, if any, and accrued and unpaid interest and Additional Amounts 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) (i) If a Default for a failure to report or failure to deliver a required certificate in connection with another Default (the “Initial Default”) occurs, then at the time such Initial Default is cured, such Default for a failure to report or failure to deliver a required certificate in connection with another Default that resulted solely because of that Initial Default shall also be cured without any further action and (ii) any Default or Event of Default for the fail-ure to comply with the time periods prescribed under Section 3.10, or otherwise to deliver any notice or certificate pursuant to any other provision of this Indenture shall be deemed to be cured upon the delivery of any such report required by said provision or such notice or certificate, as applicable, even though such delivery is not within the prescribed period specified herein. SECTION 6.3 Other Remedies. If an Event of Default occurs and is continuing, the Trustee may pur-sue any available remedy by proceeding at law or in equity to collect the payment of principal of, or premium, if any, or interest, if any, on the Notes or to enforce the performance of any provision of the Notes or this Indenture. The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative. SECTION 6.4 Waiver of Past Defaults. The Holders of a majority in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may, on behalf of all of the Holders, (a) waive, by their consent (including, without limitation, consents obtained in connection with a purchase of, or tender offer or ex--103- |
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change offer for, Notes), an existing Default or Event of Default and its consequences under this Indenture except (i) a Default or Event of Default in the payment of the principal of, or premium, if any, interest, if any, or Additional Amounts on a Note or (ii) a Default or Event of Default in respect of a provision that under Section 9.2(b) cannot be amended without the consent of each Holder affected and (b) rescind any 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 juris-diction, (2) all existing Events of Default have been cured or waived except nonpayment of principal, premium, if any, or interest, if any, that has become due solely because of the acceleration, (3) to the extent the payment of such interest is lawful, interest on overdue installments of interest, premium, if any, and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid, (4) the Issuer has paid the Trustee its compensation and reimbursed the Trustee for its reasonable expenses, disbursements and advances and (5) in the event of the cure or waiver of an Event of Default of the type described in clause (4) of Section 6.1, the Trustee shall have received an Officer’s Certificate and an Opinion of Counsel stating that such Event of Default has been cured or waived. No such rescission shall affect any subsequent Default or impair any right consequent thereto. When a Default or Event of Default is waived, it is deemed cured, but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any consequent right. SECTION 6.5 Control by Majority. The Holders of a majority in aggregate 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 of exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture or the Notes or, subject to Sections 7.1 and 7.2, that the Trus-tee determines is unduly prejudicial to the rights of other Holders (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any actions are unduly prejudicial to such Holders) or would involve the Trustee in personal liability; provided, however, that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction. Prior to taking any such action hereunder, the Trustee shall be entitled to indemnification satisfactory to it against all losses, liabilities and expenses (including attorney’s fees and expenses) that may be caused by taking or not taking such action. SECTION 6.6 Limitation on Suits. Subject to Section 6.7, no Holder may pursue any remedy with re-spect to this Indenture or the Notes unless: (1) continuing; such Holder has previously given the Trustee written notice that an Event of Default is (2) Holders of at least 30% in aggregate principal amount of the outstanding Notes have re-quested in writing the Trustee to pursue the remedy; (3) such Holders have offered in writing to the Trustee security or indemnity 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 written request and the offer of security or indemnity; and (5) the Holders of a majority in aggregate principal amount of the outstanding Notes have not given the Trustee a written 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 (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders). SECTION 6.7 Rights of Holders to Receive Payment. Notwithstanding any other provision of this In-denture (including, without limitation, Section 6.6), the right of any Holder to receive payment of principal of, pre-mium, if any, or interest, if any, on the Notes held by such Holder, on or after the respective due dates expressed or provided for in the Notes, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder. -104- |
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SECTION 6.8 Collection Suit by Trustee. If an Event of Default specified in Section 6.1(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 for the whole amount then due and owing (together with interest on any unpaid interest, if any, to the extent lawful) and the amounts provided for in Section 7.7. SECTION 6.9 Trustee May File Proofs of Claim. The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings relative to the Issuer, its Subsidiaries or its or their respective creditors or properties and, unless prohibited by law or applicable regulations, may be entitled and empowered to participate as a member of any official committee of creditors appointed in such matter and may vote on behalf of the Holders in any election of a trustee in bankruptcy or other Person performing similar functions, and any Custodi-an in any such judicial proceeding is hereby authorized by each Holder to make payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and any other amounts due the Trustee under Section 7.7. No provision of this Indenture 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 thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. SECTION 6.10 Priorities. (a) If the Trustee collects any money or property pursuant to this Article VI it shall pay out the money or property in the following order: FIRST: to the Trustee and the Agents for amounts due to them under Section 7.7; SECOND: to Holders for amounts due and unpaid on the Notes for principal of, or premium, if any, and interest, if any, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal of, or premium, if any, and interest, respectively; and THIRD: to the Issuer, or to the extent the Trustee collects any amount for any Guarantor, to such Guarantor. (b)The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10. At least 15 days before such record date, the Issuer shall send or cause to be sent to each Holder and the Trustee a notice that states the record date, the payment date and amount to be paid. SECTION 6.11 Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discre-tion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including 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 liti-gant. This Section 6.11 does not apply to a suit by the Trustee, a suit by the Issuer, a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more than 10% in outstanding principal amount of the Notes. -105- |
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ARTICLE VII TRUSTEE SECTION 7.1 Duties of Trustee. (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise 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) Except during the continuance of an Event of Default: (1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth as duties of the Trustee in this Indenture or the Notes, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates, opinions or orders furnished to the Trustee and conforming to the requirements of this Indenture or the Notes, as the case may be. However, in the case of any such certificates or opinions which by any provisions hereof are specifical-ly required to be furnished to the Trustee, the Trustee shall examine such certificates and opinions to de-termine whether or not they conform to the requirements of this Indenture or the Notes, as the case may be (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). (c) The Trustee may not be relieved from liability for its own grossly negligent action, its own grossly negligent failure to act or its own willful misconduct, except that: (1) this paragraph does not limit the effect of paragraph (b) of this Section 7.1; (2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Of-ficer unless it is proved that the Trustee was grossly negligent in ascertaining the pertinent facts; (3) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5; and (4) no provision of this Indenture or the Notes shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or there-under or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that re-payment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (d) Every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.1. (e) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer. (f) Money held in trust by the Trustee or held by the Paying Agent pursuant to this Indenture need not be segregated from other funds except to the extent required by law. (g) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 7.1 and the provisions of this Article VII shall apply to the Agents and to the Trustee (to the extent it shall act in the capacity of Registrar, Transfer Agent, Authentication Agent or Paying Agent). -106- |
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SECTION 7.2 Rights of Trustee. Subject to Section 7.1: (a) The Trustee may conclusively rely on and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direc-tion, consent, order or other paper or document (whether in its original or facsimile form) reasonably be-lieved by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document. The Trustee shall receive and retain financial reports and statements of the Issuer as provided herein, but shall have no duty to review or analyze such reports or statements to determine compliance with covenants or other obligations of the Issuer. The Trustee may re-frain, without liability, from acting in accordance with any instruction if it determines that such instruction is unclear, equivocal or conflicting. In the event the Trustee determines that an instruction is unclear, equivocal or conflicting, the Trustee will advise the instructing party as soon as reasonably practicable of such determination. (b) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate and/or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on an Officer’s Certificate or Opinion of Counsel. (c) The Trustee may execute any of the trusts and powers hereunder or perform any duties hereunder either directly or by or through its attorneys and agents and shall not be responsible for the mis-conduct or negligence of any agent or attorney appointed with due care by it hereunder. (d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers conferred upon it by this Indenture. (e) The Trustee may consult with counsel of its selection, and the advice or opinion of coun-sel relating to this Indenture or the Notes shall be full and complete authorization and protection from lia-bility in respect of any action taken, omitted or suffered by it hereunder or under the Notes in good faith and in reliance on the advice or opinion of such counsel. (f) The Trustee shall not be deemed to have notice of any Default or Event of Default or whether any entity or group of entities constitutes a Significant Subsidiary unless a Trust Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a Default or Event of Default or of any such Significant Subsidiary is received by the Trustee at the Corporate Trust Office of the Trustee specified in Section 3.11, and such notice references the Notes and this Indenture. (g) The rights, privileges, protections, immunities and benefits given to the Trustee, includ-ing, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent (including each Agent), custodian and other Person employed to act hereunder. (h) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture or the Notes at the request, order or direction of any of the Holders pursuant to the pro-visions of this Indenture, unless such Holders shall have offered (and, if requested, provided) to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which may be in-curred therein or thereby. (i) The Trustee shall not be deemed to have knowledge of any fact or matter unless such fact or matter is actually known to a Trust Officer of the Trustee. (j) Whenever in the administration of this Indenture or the Notes the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder or thereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith or willful misconduct on its part, conclusively rely upon an Officer’s Certificate. -107- |
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(k) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, report, notice, request, direction, consent, order, bond, debenture, coupon or other paper or document, but the Trustee, in its discretion, may make such further in-quiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine, during business hours and upon rea-sonable notice, the books, records and premises of the Issuer and the Restricted Subsidiaries, 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. (l) The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder. (m) The Trustee may request that the Issuer deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture or the Notes. (n) In no event shall the Trustee be liable to any Person for special, punitive, indirect, conse-quential or incidental loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Trustee has been advised of the likelihood of such loss or damage. (o) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer shall be sufficient if signed by one Officer of the Issuer. SECTION 7.3 Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer, Guarantors or their Affiliates with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. However, the Trustee must comply with Sections 7.10 and 7.11. In addition, the Trustee shall be permitted to engage in transac-tions with the Issuer; provided, however, that if the Trustee acquires any conflicting interest under the Trust Inden-ture Act, the Trustee must (i) eliminate such conflict within 90 days of acquiring such conflicting interest, (ii) apply to the SEC for permission to continue acting as Trustee or (iii) resign. SECTION 7.4 Trustee’s Disclaimer. The Trustee shall not be responsible for and makes no represen-tation as to the validity or adequacy of this Indenture or the Notes, shall not be accountable for the Issuer’s use of the proceeds from the sale of the Notes, shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee or any money paid to the Issuer pursuant to the terms of this Indenture and shall not be responsible for any statement of the Issuer in this Indenture or in any document issued in connection with the sale of the Notes or in the Notes other than the Trustee’s certificate of authentication. SECTION 7.5 Notice of Defaults. If a Default or Event of Default occurs and is continuing and if a Trust Officer has actual knowledge thereof, the Trustee shall send electronically or by first class mail to each Holder at the address set forth in the register maintained by the Registrar notice of the Default or Event of Default within 60 days after it is actually known to a Trust Officer. Except in the case of a Default or Event of Default in payment of principal of, or premium, if any, or interest, if any, on any Note (including payments pursuant to the optional re-demption or required repurchase provisions of such Note), the Trustee may withhold the notice if and so long as it in good faith determines that withholding the notice is in the interests of Holders. SECTION 7.6 [Reserved]. SECTION 7.7 Compensation and Indemnity. The Issuer shall pay to the Trustee from time to time compensation for its services hereunder and under the Notes as the Issuer and the Trustee shall from time to time agree in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred or made by it, including, but not limited to, costs of collection, costs of preparing reports, certificates and other doc-uments, costs of preparation and mailing of notices to Holders. Such expenses shall include the reasonable compen-sation and expenses, disbursements and advances of the agents, counsel, accountants and experts of the Trustee. -108- |
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The Issuer shall indemnify the Trustee against any and all loss, liability, damages, claims or expense, including taxes (other than taxes based upon the income of the Trustee) (including reasonable attorneys’ and agents’ fees and ex-penses) incurred by it without willful misconduct or gross negligence, as determined by a court of competent juris-diction, on its part in connection with the administration of this trust and the performance of its duties hereunder and under the Notes, including the costs and expenses of enforcing this Indenture (including this Section 7.7) and the Notes and of defending itself against any claims (whether asserted by any Holder, the Issuer or otherwise). The Trustee shall notify the Issuer promptly of any claim for which it may seek indemnity of which it has received writ-ten notice. Failure by the Trustee to so notify the Issuer shall not relieve the Issuer of its obligations hereunder. The Issuer shall defend the claim and the Trustee shall provide reasonable cooperation at the Issuer’s expense in the de-fense. The Trustee may have separate counsel and the Issuer shall pay the reasonable fees and expenses of such counsel. Any settlement which affects the Trustee may not be entered into without the written consent of the Trus-tee, unless the Trustee is given a full and unconditional release from liability with respect to the claims covered thereby and such settlement does not include a statement or admission of fault, culpability or failure to act by or on behalf of the Trustee. Any settlement by the Trustee which affects the Issuer may not be entered into without the written consent of the Issuer. To secure the Issuer’s payment obligations in this Section 7.7, the Trustee shall have a lien prior to the Notes on all money or property held or collected by the Trustee other than money or property held in trust to pay principal of and interest on particular Notes. Such lien shall survive the satisfaction and discharge of this Indenture. The Trustee’s respective right to receive payment of any amounts due under this Section 7.7 shall not be subordinate to any other liability or Indebtedness of the Issuer. The Issuer’s payment obligations pursuant to this Section 7.7 shall survive the satisfaction and discharge of this Indenture and the resignation or removal of the Trustee. Without prejudice to any other rights available to the Trustee under applicable law, when the Trustee incurs fees, expenses or renders services after the occurrence of a Default specified in Section 6.1(a)(5) or (a)(6), the fees and expenses (including the reasonable fees and expenses of its counsel) are intended to constitute expenses of administration under any Bankruptcy Law. SECTION 7.8 Replacement of Trustee. The Trustee may resign at any time by so notifying the Issuer in writing not less than 30 days prior to the effective date of such resignation. The Holders of a majority in aggre-gate principal amount of the then outstanding Notes may remove the Trustee by so notifying the removed Trustee in writing not less than 30 days prior to the effective date of such removal and may appoint a successor Trustee with the Issuer’s written consent, which consent will not be unreasonably withheld. The Issuer shall remove the Trustee if: (1) the Trustee fails to comply with Section 7.10 hereof; (2) the Trustee is adjudged bankrupt or insolvent; (3) a receiver or other public officer takes charge of the Trustee or its property; or (4) the Trustee otherwise becomes incapable of acting. If the Trustee resigns or is removed by the Issuer or by the Holders of a majority in aggregate principal amount of the then outstanding Notes and such Holders do not reasonably promptly appoint a successor Trustee as described in the preceding paragraph, or if a vacancy exists in the office of the Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Issuer shall promptly appoint a successor Trustee. A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trus-tee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall, at the expense of the Issuer, promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.7. -109- |
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If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of at least 10% in aggregate principal amount of the Notes may (i) appoint a suc-cessor Trustee on the Issuer’s behalf; or (ii) petition, at the Issuer’s expense, any court of competent jurisdiction for the appointment of a successor Trustee. If the Trustee fails to comply with Section 7.10, unless the Trustee’s duty to resign is stayed as provided in Trust Indenture Act Section 310(b), any Holder, who has been a bona fide holder of a Note for at least six months, may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. Notwithstanding the replacement of the Trustee pursuant to this Section 7.8, the Issuer’s obligations under Section 7.7 shall continue for the benefit of the retiring Trustee. The predecessor Trustee shall have no liability for any action or inaction of any successor Trustee. SECTION 7.9 Successor Trustee by Merger. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking associa-tion, the resulting, surviving or transferee corporation without any further act shall be the successor Trustee. In case at the time such successor or successors by merger, conversion or consolidation to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the suc-cessor to the Trustee; provided that the right to adopt the certificate of authentication of any predecessor Trustee or authenticate Notes in the name of any predecessor Trustee shall only apply to its successor or successors by merger, consolidation or conversion. SECTION 7.10 Eligibility; Disqualification. This Indenture shall always have a Trustee that satisfies the requirements of Trust Indenture Act Section 310(a)(1), (2) and (5) in every respect. The Trustee shall have a combined capital and surplus of at least $50 million as set forth in its most recent published annual report of condi-tion. The Trustee shall comply with Trust Indenture Act Section 310(b); provided, however, that there shall be ex-cluded from the operation of Trust Indenture Act Section 310(b)(1) any indenture or indentures under which other securities or certificates of interest or participation in other securities of the Issuer are outstanding if the require-ments for such exclusion set forth in Trust Indenture Act Section 310(b)(1) are met. SECTION 7.11 Preferential Collection of Claims Against the Issuer. The Trustee shall comply with 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. SECTION 7.12 Trustee’s Application for Instruction from the Issuer. Any application by the Trustee for written instructions from the Issuer may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or after which such action shall be taken or such omission shall be effective. The Trustee shall not be liable for any action taken by, or omission of, the Trus-tee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three (3) Business Days after the date any Officer of the Issuer actually receives such application, unless any such Officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Trustee shall have received written instructions in response to such application specifying the action to be taken or omitted. SECTION 7.13 Escrow Authorization. Each Holder, by its acceptance of a Note, (i) consents and agrees to the terms of the Escrow Agreement and Escrow Account Charge, including documents related thereto, as the same may be in effect or may be amended from time to time in writing by the parties thereto (provided that no amendment or waiver that would materially adversely affect the rights of the Holders of the Notes (as determined in good faith by the Issuer) may be effected without the consent of the Holders of a majority of the aggregate principal amount of the Notes then outstanding), and (ii) authorizes and directs the Trustee to enter into the Escrow Agree--110- |
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ment and the Escrow Account Charge and to perform its obligations and exercise its rights thereunder in accordance therewith. The Issuer shall do or cause to be done all such acts and things as may be necessary or proper, or as may be required by the provisions of the Escrow Agreement and the Escrow Account Charge, to assure and confirm to the Trustee the security interest contemplated by the Escrow Agreement and the Escrow Account Charge or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Inden-ture and of the Notes secured hereby, according to the intent and purpose herein expressed. The Issuer shall take, or shall cause to be taken, any and all actions reasonably required to cause the Escrow Account Charge to create and maintain, as security for the obligations of the Issuer under this Indenture and the Notes as provided in the Escrow Agreement and the Escrow Account Charge, valid and enforceable first priority perfected Liens in and on all of the Escrowed Property, in favor of the Trustee for its benefit and for the benefit of the Holders, superior to and prior to the rights of third Persons and subject to no other Liens. Whether or not expressly provided for therein, in executing, delivering and performing under the Escrow Agreement or Escrow Account Charge, the Trustee shall be entitled to all of the rights, privileges and immunities set forth in this Indenture. ARTICLE VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE SECTION 8.1 Option to Effect Legal Defeasance or Covenant Defeasance; Defeasance. The Issuer may, at its option and at any time, elect to have either Section 8.2 or 8.3 hereof be applied to all outstanding Notes upon compliance with the conditions set forth in this Article VIII. SECTION 8.2 Legal Defeasance and Discharge. Upon the Issuer’s exercise under Section 8.1 hereof of the option applicable to this Section 8.2, the Issuer and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.4 hereof, be deemed to have been discharged from their obligations with respect to all outstanding Notes (including the Note Guarantees) on the date the conditions set forth in Section 8.4 are satis-fied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Issuer and the Guarantors will be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the Note Guarantees), which will thereafter be deemed to be “outstanding” only for the purposes of Section 8.5 hereof and the other Sections of this Indenture referred to in clauses (1) and (2) below, and to have satisfied all of their other obligations under such Notes, the Note Guarantees, and this Indenture (and the Trustee, on written de-mand of and at the expense of the Issuer, shall execute such instruments reasonably requested by the Issuer ac-knowledging the same) and to have cured all then existing Events of Default, except for the following provisions which will survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of Notes issued under this Indenture to receive payments in respect of the principal of, premium, if any, and interest, if any, on the Notes when such payments are due solely out of the trust referred to in Section 8.4 hereof; (2) the Issuer’s obligations with respect to the Notes under Article II concerning issuing tem-porary Notes, registration of such Notes, mutilated, destroyed, lost or stolen Notes and Section 3.11 hereof concerning the maintenance of an office or agency for payment and money for security payments held in trust; (3) the rights, powers, trusts, duties and immunities of the Trustee and the Issuer’s or Guar-antors’ obligations in connection therewith; and (4) this Article VIII with respect to provisions relating to Legal Defeasance. Subject to compliance with this Section 8.2, the Issuer may exercise its option under this Section 8.2 not-withstanding the prior exercise of its option under Section 8.3 hereof. SECTION 8.3 Covenant Defeasance. Upon the Issuer’s exercise under Section 8.1 hereof of the op-tion applicable to this Section 8.3, the Issuer and each of the Guarantors will, subject to the satisfaction of the condi-tions set forth in Section 8.4 hereof, be released from each of their obligations under the covenants contained in Sec--111- |
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tions 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 3.12 (except with respect to the Issuer), 3.13, 3.19, 3.20 and Sec-tion 4.1 (except Section 4.1(a)(1) and (a)(2)) hereof with respect to the outstanding Notes on and after the date of the conditions set forth in Section 8.4 hereof are satisfied (hereinafter, “Covenant Defeasance”), and the Notes will 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 will continue to be deemed “outstanding” for all other purposes hereunder. For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes and Note Guarantees, the Issuer and the Guarantors 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 indirect-ly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such cov-enant to any other provision herein or in any other document and such omission to comply shall not constitute a De-fault or an Event of Default under Section 6.1 hereof, but, except as specified in this Section 8.3, the remainder of this Indenture and such Notes and Note Guarantees will be unaffected thereby. In addition, upon the Issuer’s exer-cise under Section 8.1 hereof of the option applicable to this Section 8.3, subject to the satisfaction of the conditions set forth in Section 8.4 hereof, Sections 6.1(a)(3) (solely with respect to the defeased covenants listed above), 6.1(a)(4), 6.1(a)(5) (with respect only to a Guarantor that is a Significant Subsidiary), 6.1(a)(6) (with respect only to a Guarantor that is a Significant Subsidiary), 6.1(a)(7), and 6.1(a)(8) hereof shall not constitute Events of Default. SECTION 8.4 Conditions to Legal or Covenant Defeasance. In order to exercise either Legal Defea-sance or Covenant Defeasance under either Section 8.2 or 8.3 hereof: (1) the Issuer must irrevocably deposit with the Trustee (or other such entity directed, desig-nated or appointed by the Issuer and reasonably acceptable to the Trustee acting for the Trustee for such purpose) cash in Dollars (if to the Trustee) or cash in Euros or European Government Obligations (if to a third-party designee) or a combination thereof in such amounts as will be sufficient to pay the principal of and premium, if any, and interest, if any, due on the Notes to, but excluding, the date of redemption or ma-turity, as the case may be; provided, upon any redemption that requires the payment of the Applicable Pre-mium, the amount deposited will be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee (or other such entity directed, designated or appointed by the Issuer and reason-ably acceptable to the Trustee acting for the Trustee for such purpose) equal to the Applicable Premium calculated as of the date of the notice of redemption, with any deficit as of the date of redemption (any such amount, the “Applicable Premium Deficit”) only required to be deposited with the Trustee (or other such entity directed, designated or appointed by the Issuer and reasonably acceptable to the Trustee acting for the Trustee for such purpose) on or prior to the date of redemption. Any Applicable Premium Deficit will be set forth in an Officer’s Certificate delivered to the Trustee simultaneously with the deposit of such Ap-plicable Premium Deficit that confirms that such Applicable Premium Deficit will be applied toward such redemption; and the Issuer must specify whether such Notes are being defeased to maturity or to a particu-lar redemption date; (2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that, subject to customary assumptions and exclusions: (A) the Issuer has received from, or there has been published by, the United States Internal Revenue Service a ruling; or (B) since the issuance of such Notes, there has been a change in the applicable U.S. federal income tax law; in either case stating that, and based thereon such Opinion of Counsel in the United States shall confirm that, subject to customary assumptions and exclusions, the Holders 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. feder-al 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; (3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States stating that, subject to customary assumptions and exclusions, the Holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such -112- |
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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; (4) [reserved]; (5) [reserved]; (6) the Issuer shall have delivered to the Trustee an Opinion of Counsel stating that, as of the date of such opinion and subject to customary assumptions and exclusions following the deposit, the trust funds will not be subject to the effect of Section 547 of the United States Bankruptcy Code, as amended; (7) the Issuer shall have delivered to the Trustee an Officer’s Certificate stating that the de-posit was not made by the Issuer with the intent of defeating, hindering, delaying, defrauding or preferring any creditors of the Issuer; (8) the Issuer shall have 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 provided for or relating to Legal Defeasance or Covenant Defeasance, as the case may be, have been complied with; and (9) with respect to European Government Obligations or a combination of money and Euro-pean Government Obligations, the Issuer shall have delivered to the Trustee a certificate from an Independ-ent Financial Advisor expressing their opinion that the payments of principal and interest when due and without reinvestment on the deposited European Government Obligations plus any deposited money with-out investment will provide cash at such times and in such amounts as will be sufficient to pay principal, premium (if any) and interest on the Notes to redemption or maturity, as the case may be. SECTION 8.5Deposited Money and European Government Obligations to be Held in Trust; Other Miscellaneous Provisions. Subject to Section 8.6 hereof, all money and European Government Obligations (includ-ing the proceeds thereof) deposited with the Trustee (or such entity directed. designated or appointed by the Issuer and reasonably acceptable to the Trustee acting for the Trustee for such purpose or any other qualifying trustee, col-lectively for purposes of this Section 8.5, the “Trustee”) pursuant to Section 8.4 hereof in respect of the outstanding Notes will be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this In-denture, to the payment, either directly or through any Paying Agent (including the Issuer acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the ex-tent required by law. The Issuer will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or European Government Obligations deposited pursuant to Section 8.4 hereof 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 of the outstanding Notes. Notwithstanding anything in this Article VIII to the contrary, the Trustee will deliver or pay to the Issuer from time to time upon the request of the Issuer any money or European Government Obligations held by it as pro-vided in Section 8.4 hereof which, in the opinion of an Independent Financial Advisor expressed in a written certifi-cation thereof delivered to the Trustee (which may be the opinion delivered under Section 8.4(9) hereof), are in ex-cess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance. SECTION 8.6 Repayment to the Issuer. Any money deposited with the Trustee, or then held by the Issuer, in trust for the payment of the principal of, premium, if any, or interest on, any Note and remaining un-claimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Issuer on its written request unless an abandoned property law designates another Person or (if then held by the Issuer) will be discharged from such trust; and the Holder of such Note will thereafter be permitted to look only to -113- |
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the Issuer for payment thereof unless an abandoned property law designates another Person, and all liability of the Trustee with respect to such trust money, and all liability of the Issuer as trustee thereof, will thereupon cease; pro-vided, however, that the Trustee, before being required to make any such repayment, shall at the expense of the Issu-er cause to be published once, in The New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which will not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Issuer. SECTION 8.7 Reinstatement. If the Trustee is unable to apply any money or Euros or European Gov-ernment Obligations in accordance with Section 8.2 or 8.3 hereof, 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 and the Notes and the Note Guarantees will be revived and reinstated as though no deposit had occurred pursuant to Section 8.2 or 8.3 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.2 or 8.3 hereof, as the case may be; provided, however, that, if the Issuer makes any payment of principal of, premium, if any, or interest on, any Note following the reinstatement of its obligations, the Issuer will be subrogated to the rights of the Holders of such Notes to receive such payment from the money or European Government Obligations held by the Trustee. ARTICLE IX AMENDMENTS SECTION 9.1 Without Consent of Holders. Notwithstanding Section 9.2 of this Indenture, the Issuer, any Guarantor (with respect to its Note Guarantee or this Indenture), the Trustee and any other agents party thereto may amend, supplement, modify or waive any provision of this Indenture, any Note Guarantee and the Notes or any other Notes Document without the consent of any Holder to: (1) cure any ambiguity, omission, mistake, defect, error or inconsistency, conform any provi-sion to any provision under the heading “Description of Notes” in the Offering Circular, to the extent such provision was intended to be a verbatim recitation thereof, as such intention is set forth in an Officer’s Cer-tificate, or reduce the minimum denomination of the Notes; (2) provide for the assumption by a successor Person of the obligations of the Issuer or any Guarantor under any Notes Document; (3) provide for uncertificated Notes in addition to or in place of certificated Notes; (4) add to the covenants or provide for a Note Guarantee for the benefit of the Holders or surrender any right or power conferred upon the Issuer or any Restricted Subsidiary; (5) make any change that does not adversely affect the rights of any Holder in any material respect (as determined in good faith by the Issuer); (6) at the Issuer’s election, comply with any requirement of the SEC in connection with the qualification of this Indenture under the Trust Indenture Act (it being agreed that this Indenture will not on the Issue Date, and need not thereafter, qualify under the Trust Indenture Act); (7) make such provisions as necessary (as determined in good faith by the Issuer) for the is-suance of Additional Notes and to secure such Additional Notes and all related Obligations; (8) to provide for any Restricted Subsidiary to provide a Note Guarantee in accordance with Section 3.2, to add Guarantees with respect to the Notes, to add security to or for the benefit of the Notes, or to confirm and evidence the release, termination, discharge or retaking of any Guarantee or Lien with re-spect to or securing the Notes when such release, termination, discharge or retaking is provided for under this Indenture; -114- |
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(9) evidence and provide for the acceptance and appointment under this Indenture of a suc-cessor Trustee pursuant to the requirements hereof or to provide for the accession by the Trustee to any Notes Document; (10) make any amendment to the provisions of this Indenture relating to the transfer and legending of Notes as permitted by this Indenture, including to facilitate the issuance and administration of Notes; provided, however, that (i) 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 (ii) such amendment does not adversely affect the rights of Holders to transfer Notes in any material respect; (11) provide for the release, addition, completion, confirmation or grant of Note Guarantees permitted or required by this Indenture, including the entering into or execution of supplemental indentures and/or Note Guarantees; or (12) change its fiscal year, upon written notice to the Trustee and delivery of the financial statements with respect to the Transition Period in accordance with Section 3.10, in which case the Issuer and the Trustee shall be authorized by the Holders to make any adjustments to this Indenture and the other Notes Documents as are necessary in order to reflect such change in financial reporting. Subject to Section 9.2, upon the request of the Issuer accompanied by a Board Resolution authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents de-scribed in Sections 9.6 and 13.4 hereof, the Trustee will join with the Issuer and the Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture affects the Trustee’s own rights, duties, liabilities or immunities under this Indenture or otherwise, in which case the Trustee may in its discre-tion, but will not be obligated to, enter into such amended or supplemental Indenture. After an amendment or supplement under this Section 9.1 becomes effective, the Issuer shall mail to Hold-ers a notice briefly describing such amendment or supplement. The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment or supplement under this Section 9.1. SECTION 9.2 With Consent of Holders. (a) Except as provided in this Section 9.2, the Issuer, the Guarantors and the Trustee may amend or supplement the Notes Documents with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding and issued under this Indenture, including, without limitation, consents ob-tained in connection with a purchase of, or tender offer or exchange offer for, Notes, and, subject to Sections 6.4 and 6.7 hereof, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium, if any, or interest on the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance by the Issuer or any Restricted Subsidiary with any provision of the Notes Doc-uments may be waived with the consent of the Holders of a majority in aggregate principal amount of the then out-standing Notes issued under this Indenture (including consents obtained in connection with a purchase of or tender offer or exchange offer for Notes). Section 2.12 hereof and Section 13.6 hereof shall determine which Notes are considered to be “outstanding” for the purposes of this Section 9.2. Upon the request of the Issuer accompanied by a Board Resolution authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Sections 9.6 and 13.4 hereof, the Trustee will join with the Issuer and the Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture affects the Trustee’s own rights, duties, liabilities or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but will not be obligated to, enter into such amended or supplemental Indenture. (b) Without the consent of Holders holding not less than 90% of the aggregate principal amount of the Notes then outstanding, an amendment, supplement or waiver may not, with respect to any Notes held by a non-consenting Holder: -115- |
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(1) reduce the principal amount of such Notes whose Holders must consent to an amend-ment, supplement or waiver; (2) reduce the stated rate of or extend the stated time for payment of interest on any such Note; (3) reduce the principal of or extend the Stated Maturity of any such Note; (4) reduce the premium payable upon the redemption of any such Note or change the time at which any such Note may be redeemed (for the avoidance of doubt, other than provisions relating to Sec-tions 3.5 and 3.9); provided, any amendment to the minimum notice requirement may be made with the consent of the Holders of a majority in aggregate principal amount of then outstanding Notes; (5) make any such Note payable in currency other than that stated in such Note; (6) impair the right of any Holder to institute suit for the enforcement of any right to receive payment of principal of and interest or Additional Amounts on such Holder’s Notes; (7) waive a Default or Event of Default with respect to the nonpayment of principal, premi-um or interest (except pursuant to a rescission of acceleration of the Notes by the Holders of at least a ma-jority in aggregate principal amount of such Notes and a waiver of the payment default that resulted from such acceleration); (8) make any change to or modify the ranking of the Notes or Note Guarantees that would adversely affect the Holders; or (9) make any change in the amendment or waiver provisions which require the Holders’ con-sent described in this Section 9.2(b). No provisions of the Escrow Agreement (including, without limitation, those relating to the release of the Escrowed Property) may be amended or waived in a manner that would materially adversely affect the Holders of the Notes (as determined in good faith by the Issuer) without the consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding. No provisions of this Indenture with respect to the Issuer’s obliga-tion to redeem the Notes through a Special Mandatory Redemption may be amended or waived in a manner that would materially adversely affect the Holders of the Notes without the consent of each Holder of an outstanding Note affected. It shall not be necessary for the consent of the Holders under this Indenture to approve the particular form of any proposed amendment, supplement or waiver of any Notes Document, but it shall be sufficient if such consent approves the substance thereof. A consent to any amendment, supplement or waiver under this Indenture by any Holder given in connection with a tender or exchange of such Holder’s Notes will not be rendered invalid by such tender or exchange. After an amendment or supplement under this Section 9.2 becomes effective, the Issuer shall mail to Hold-ers a notice briefly describing such amendment or supplement. The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment or supplement. SECTION 9.3 [Reserved]. SECTION 9.4 Revocation and Effect of Consents and Waivers. 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 or waiver is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent or waiver as to such Holder’s Note or portion of its Note if the Trustee receives written notice of revocation before the date the amendment, supplement or waiver becomes effec--116- |
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tive. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds eve-ry Holder. The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action described in this Section 9.4 or required or permitted to be tak-en pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 120 days after such record date. SECTION 9.5 Notation on or Exchange of Notes. 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 Issuer Order, authenticate new Notes that reflect the amendment, supplement or waiver. Failure to make the appropriate notation or issue a new Note will not affect the validity and effect of such amendment, supplement or waiver. SECTION 9.6 Trustee to Sign Amendments. The Trustee shall sign any amended or supplemental in-denture authorized pursuant to this Article IX if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. The Issuer may not sign an amended or supplemental indenture until the Board of Directors of the Issuer approves it. In executing any amended or supplemental indenture, the Trustee shall receive and (subject to Sections 7.1 and 7.2 hereof) shall be fully protected in conclusively relying upon, in addition to the documents required by Section 13.4 hereof, an Officer’s Certificate and an Opinion of Counsel stat-ing that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture and is valid, binding and enforceable against the Issuer or any Guarantor, as the case may be, in accordance with its terms. ARTICLE X GUARANTEE SECTION 10.1 Guarantee. Subject to the provisions of this Article X, from and after the consumma-tion of the Transactions and the execution and delivery of the Escrow Release Date Supplemental Indenture, each Guarantor hereby fully, unconditionally and irrevocably Guarantees, as primary obligor and not merely as surety (to the extent permitted by law), jointly and severally with each other Guarantor, to each Holder and to the Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the prin-cipal of, premium, if any, and interest on the Notes and all other obligations and liabilities of the Issuer under this Indenture (including, without limitation, but only to the extent not prohibited by law interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceed-ing and the obligations under Section 7.7) (all the foregoing being hereinafter collectively called the “Guaranteed Obligations” and each such Guarantee, collectively, the Note Guarantees”). Each Guarantor agrees that the Guaran-teed Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the ex-tent such other Indebtedness is subordinate to the Guaranteed Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness. To evidence its Guarantee set forth in this Section 10.1, after the consummation of the Transactions, each Initial Guarantor shall execute the Escrow Release Date Supplemental Indenture and each Guarantor to be added under this Indenture after the Escrow Release Date shall execute such other supplemental indenture to this Indenture and such supplemental indenture shall be executed on behalf of such Guarantor by one of its authorized officers, subject to such limitations and exceptions as required by applicable laws. Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.1 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes. If an Officer whose signature is on this Indenture no longer holds that office at the time the Trustee authen-ticates the Note, the Note Guarantee shall be valid nevertheless. -117- |
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Each Guarantor further agrees (to the extent permitted by law) that the Guaranteed Obligations may be ex-tended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation. Each Guarantor waives presentation to, demand of payment from and protest to the Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. Each Guarantor further agrees that its Note Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any secu-rity held for payment of the Guaranteed Obligations. Except as set forth in Section 10.2, to the extent permitted by law, the obligations of each Guarantor here-under shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, to the extent permitted by law, the Guaranteed Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or de-mand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guaranteed Obligations; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (h) 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 or would otherwise operate as a discharge of such Guarantor as a matter of law or equity. Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed Obligations or such Guarantor is released from its Note Guarantee in compliance with Sec-tion 10.2, Article VIII or Article XI. Each Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premi-um, if any, or interest, if any, on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guaranteed Obliga-tions when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the un-paid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guar-anteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like pro-ceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is al-lowed in such proceeding). Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations Guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Note Guarantee. Each Guarantor also agrees to pay any and all fees, costs and expenses (including reasonable and docu-mented attorneys’ fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Sec-tion 10.1. -118- |
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SECTION 10.2 Limitation on Liability; Termination, Release and Discharge. (a) Any term or provision of this Indenture to the contrary notwithstanding, the obligations of each Guarantor hereunder will be limited to the maximum amount that can be hereby guaranteed by each Guarantor with-out rendering the Note Guarantee of such Guarantor voidable under applicable laws relating to fraudulent convey-ance, fraudulent transfer, improper corporate benefit, capital maintenance, fiduciary duties of management, financial assistance or similar laws affecting the rights of creditors generally. (b) Any limitations on the obligations of any Restricted Subsidiary that becomes a Guarantor after the Issue Date, which are necessary to avoid any of the scenarios contemplated in clause (a) of this Section 10.2, shall be set forth in the supplemental indenture hereto pursuant to which such Guarantor shall accede to this Indenture, and such limitations shall for all purposes have the same effect as if set out in full in this Section 10.2. (c) Any Note Guarantee of a Subsidiary Guarantor shall be automatically and unconditionally re-leased and discharged upon: (i) any sale or other disposition (including by way of consolidation, amalgamation or merger) of the Capital Stock of such Subsidiary Guarantor after which such Subsidiary Guaran-tor is no longer a Restricted Subsidiary, or any sale or other disposition of all or substantially all the assets of the Subsidiary Guarantor, to a Person other than to the Issuer or a Restricted Subsidi-ary, in each case, if such sale or other disposition is made in compliance with the provisions of this Indenture; (ii) the designation in accordance with this Indenture of the Subsidiary Guarantor as an Unrestricted Subsidiary or the occurrence of any event after which the Subsidiary Guarantor is no longer a Restricted Subsidiary; (iii) defeasance or discharge of the Notes, as provided in Articles VIII or XI; (iv) such Subsidiary Guarantor being released from (A) all of its obligations under all of its Guarantees of payment by the Issuer of any Indebtedness of the Issuer under the Credit Agreement or (B) in the case of a Note Guarantee made by a Subsidiary Guarantor (each, an “Oth-er Guarantee”) as a result of its Guarantee of other Indebtedness of the Issuer or a Guarantor pur-suant to Section 3.7, the relevant Indebtedness, except in the case of (A) or (B), a release as a re-sult of the repayment in full of the Indebtedness specified in clause (A) or (B) (it being understood that a release subject to a contingent reinstatement is still considered a release, and if any such In-debtedness of such Subsidiary Guarantor under the Credit Agreement or any Other Guarantee is so reinstated, such Note Guarantee shall also be reinstated); or (v) (A) the merger, amalgamation or consolidation of any Subsidiary Guarantor with and into the Issuer or another Subsidiary Guarantor that is the surviving Person in such mer-ger, amalgamation or consolidation, or (B) the liquidation or dissolution of such Subsidiary Guar-antor following the transfer of all or substantially all of its assets to the Issuer or another Subsidi-ary Guarantor. SECTION 10.3 Right of Contribution. Each Guarantor hereby agrees that to the extent that any Guar-antor shall have paid more than its proportionate share of any payment made on the obligations under the Note Guarantees, such Guarantor shall be entitled to seek and receive contribution from and against the Issuer or any oth-er Guarantor who has not paid its proportionate share of such payment. The provisions of this Section 10.3 shall in no respect limit the obligations and liabilities of each Guarantor to the Trustee and the Holders and each Guarantor shall remain liable to the Trustee and the Holders for the full amount guaranteed by such Guarantor hereunder. SECTION 10.4 No Subrogation. Notwithstanding any payment or payments made by each Guarantor hereunder, no Guarantor shall be entitled to be subrogated to any of the rights of the Trustee or any Holder against the Issuer or any other Guarantor or any collateral security or guarantee or right of offset held by the Trustee or any -119- |
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Holder for the payment of the Guaranteed Obligations, nor shall any Guarantor seek or be entitled to seek any con-tribution or reimbursement from the Issuer or any other Guarantor in respect of payments made by such Guarantor hereunder, until all amounts owing to the Trustee and the Holders by the Issuer on account of the Guaranteed Obli-gations are paid in full. If any amount shall be paid to any Guarantor on account of such subrogation rights at any time when all of the Guaranteed Obligations shall not have been paid in full, such amount shall be held by such Guarantor in trust for the Trustee and the Holders, segregated from other funds of such Guarantor, and shall, forth-with upon receipt by such Guarantor, be turned over to the Trustee in the exact form received by such Guarantor (duly indorsed by such Guarantor to the Trustee, if required), to be applied against the Guaranteed Obligations. SECTION 10.5 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 Guarantee are knowingly made in contemplation of such benefits. ARTICLE XI SATISFACTION AND DISCHARGE SECTION 11.1 Satisfaction and Discharge. This Indenture will be discharged and will cease to be of further effect as to all Notes issued hereunder, when: (a) either: (1) all Notes that have been authenticated and delivered except lost, stolen or de-stroyed Notes that have been replaced or paid and Notes for whose payment money has thereto-fore been deposited in trust, have been delivered to the Registrar for cancellation; or (2) all such Notes not theretofore delivered to the Registrar for cancellation (i) have become due and payable by reason of the making of a notice of redemption or otherwise, (ii) will become due and payable within one year at their Stated Maturity or (iii) are to be called for re-demption within one year under arrangements satisfactory to the Trustee or Paying Agent for the giving of notice of redemption by the Trustee or Paying Agent in the name, and at the expense, of the Issuer; (b) the Issuer has deposited or caused to be deposited with the Trustee (or other such entity directed, designated or appointed by the Issuer and reasonably acceptable to the Trustee acting for the Trus-tee for such purpose), as trust funds in trust solely for the benefit of the Holders, cash in Dollars (if to the Trustee) or cash in Euros or European Government Obligations (if to a third-party designee), or a combina-tion thereof (together with, if European Government Obligations or a combination of money and European Government Obligations are deposited, a certificate from an Independent Financial Advisor to the effect set forth in Section 8.4(9)), in an amount sufficient to pay and discharge the entire Indebtedness on the Notes not previously delivered to the Registrar for cancellation, for principal, premium, if any, and interest to, but excluding, the date of deposit (in the case of Notes that have become due and payable), or to, but excluding, the Stated Maturity or redemption date, as the case may be; provided, that (I) upon any redemption that re-quires the payment of the Applicable Premium, the amount deposited will be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee (or other such entity directed, designat-ed or appointed by the Issuer and reasonably acceptable to the Trustee acting for the Trustee for such pur-pose) equal to the Applicable Premium calculated as of the date of the notice of redemption, with any Ap-plicable Premium Deficit only required to be deposited with the Trustee (or other such entity directed, des-ignated or appointed by the Issuer and reasonably acceptable to the Trustee acting for the Trustee for such purpose) on or prior to the date of redemption and (II) any Applicable Premium Deficit will be set forth in an Officer’s Certificate delivered to the Trustee simultaneously with the deposit of such Applicable Premi-um Deficit that confirms that such Applicable Premium Deficit will be applied toward such redemption; (c) [reserved]; -120- |
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(d) the Issuer has paid or caused to be paid all other sums payable under this Indenture; (e) the Issuer has delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of such Notes issued hereunder at maturity or the Redemption Date, as the case may be; and (f) the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that all conditions precedent under Article XI relating to the satisfaction and discharge of this Indenture have been complied with; provided that any such counsel may rely on any Officer’s Certificate as to matters of fact (including as to compliance with clauses (a) and (b)). Notwithstanding the satisfaction and discharge of this Indenture, the provisions of Section 7.7, and if mon-ey has been deposited with the Trustee pursuant to clause (b) of this Section 11.1, the provisions of Sections 11.2 and 8.6 hereof will survive. SECTION 11.2 Application of Trust Money. Subject to the provisions of Section 8.6 hereof, all money deposited with the Trustee pursuant to Section 11.1 hereof 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 (includ-ing the Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and 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. If the Trustee or Paying Agent is unable to apply any money or European Government Obligations in ac-cordance with Section 11.1 hereof 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 and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.1 hereof; provided that if the Issuer has made any payment of principal of, pre-mium, 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 European Government Obliga-tions held by the Trustee or Paying Agent. ARTICLE XII [Reserved] ARTICLE XIII MISCELLANEOUS SECTION 13.1 [Reserved]. SECTION 13.2 Notices. Any notice, request, direction, consent or communication made pursuant to the provisions of this Indenture or the Notes shall be in writing and delivered in person, sent by facsimile, sent by electronic mail in pdf format, delivered by commercial courier service or mailed by first-class mail, postage prepaid, addressed as follows: if to the Issuer prior to the Escrow Release Date: Diamond (BC) B.V. c/o Bain Capital Private Equity, L.P., John Hancock Tower 200 Clarendon Street Boston, MA 02116 Facsimile: (617) 516-2010 Attention: John Kilgallon -121- |
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with a copy to: Kirkland & Ellis LLP 300 North LaSalle Chicago, IL 60654 Attention: Dennis M. Myers, Esq. and Bradley C. Reed, Esq. Telephone: (312) 862-2000 Facsimile: (312) 862-2200 if to the Issuer and/or any Guarantor from and after the Escrow Release Date: Diamond (BC) B.V. c/o Bain Capital Private Equity, L.P. John Hancock Tower 200 Clarendon Street Boston, MA 02116 Attention: John Kilgallon with a copy to: Kirkland & Ellis LLP 300 North LaSalle Chicago, IL 60654 Attention: Dennis M. Myers, Esq. and Bradley C. Reed, Esq. Telephone: (312) 862-2000 Facsimile: (312) 862-2200 if to the Trustee, at its corporate trust office, which corporate trust office for purposes of this Indenture is at the date hereof located at: Wilmington Trust, National Association 50 South Sixth Street, Suite 1290 Minneapolis, Minnesota 55420 Facsimile: 612-217-5651 Attention: Diamond (BC) B.V. Administrator if to the Registrar, the Paying Agent, the Transfer Agent and/or the Authentication Agent: Citibank, N.A., London Branch Citigroup Centre Canada Square Canary Wharf London, E14 5LB United Kingdom Registrar: Facsimile: +353 1 642 2201 Email: register@citi.com Attention: Registrar, Issuer Services Paying Agent: Facsimile: +353 1 622 2210 Email: ppapayments@citi.com Attention: Payments Desk, Issuer Services -122- |
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Transfer Agent: Email: dtc.transfers@citi.com Attention: Transfer Agent, Issuer Services The Issuer, the Trustee or any Agent by written notice to each other may designate additional or different addresses for subsequent notices or communications. If and for so long as the Notes are listed on the Official List of the Exchange and if and to the extent that the rules of the Exchange so require, notices of the Issuer with respect to the Notes will be sent to the Exchange. Any notice or communication to the Issuer or the Guarantors shall be deemed to have been given or made as of the date so delivered if personally delivered or if delivered electronically, in pdf format; when receipt is acknowledged, if telecopied; and seven (7) calendar days after mailing if sent by registered or certified mail, postage prepaid (except that a notice of change of address shall not be deemed to have been given until actually received by the addressee). Any notice or communication to the Trustee shall be deemed delivered upon receipt. Any notice or communication sent to a Holder shall be mailed to the Holder at the Holder’s address as it appears in the register maintained by the Registrar and shall be sufficiently given if so sent within the time pre-scribed. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is sent in the manner provided above, it is duly given, wheth-er or not the addressee receives it, except that notices to the Trustee shall be effective only upon receipt. If a notice or communication is given via Euroclear or Clearstream, it is duly given on the day the notice is given to Euroclear or Clearstream. Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any Note pro-vides for notice of any event (including any notice of redemption or purchase) to a Holder of a Global Note (whether by mail or otherwise), such notice shall be sufficiently given if given to Euroclear and Clearstream (or its designee) in accordance with the applicable procedures of Euroclear and Clearstream. SECTION 13.3 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 Issuer, the Trustee, the Registrar and anyone else shall have the protection of Trust Indenture Act Section 312(c). SECTION 13.4 Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Issuer or any of the Guarantors to the Trustee to take or refrain from taking any action under this Indenture or the Notes, the Issuer or such Guarantor, as the case may be, shall furnish to the Trustee: (1) an Officer’s Certificate in form satisfactory to the Trustee (which shall include the state-ments set forth in Section 13.5 hereof) stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture or the Notes relating to the proposed action have been satisfied; and (2) an Opinion of Counsel in form satisfactory to the Trustee (which shall include the state-ments set forth in Section 13.5 hereof) stating that, in the opinion of such counsel, all such conditions prec-edent have been satisfied and all covenants have been complied with; provided that no such Opinion of Counsel shall be required to be delivered in connection with the issuance of the Notes that are issued on the Issue Date. SECTION 13.5 Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a covenant or condition provided for in this Indenture or the Notes shall include: (1) or condition; a statement that the individual making such certificate or opinion has read such covenant -123- |
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(2) 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; (3) a statement that, in the opinion of such individual, he has made such examination or in-vestigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with and satisfied; and (4) a statement as to whether or not, in the opinion of such individual, such covenant or con-dition has been complied with and satisfied. In giving such Opinion of Counsel, counsel may rely as to factual matters on an Officer’s Certificate or on certificates of public officials. SECTION 13.6 When Notes Disregarded. In determining whether the Holders of the required aggre-gate principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuer, any Guarantor or any Affiliate of them shall be disregarded and deemed not to be outstanding, except that, for the pur-pose of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes which a Trust Officer of the Trustee actually knows are so owned shall be so disregarded. In connection with any such direction, waiver or consent, the Issuer shall furnish to the Trustee an Officer’s Certificate listing and iden-tifying all Notes, if any, known by the Issuer to be owned by or for the account of the Issuer or any Subsidiary thereof. Also, subject to the foregoing, only Notes outstanding at the time shall be considered in any such determi-nation. SECTION 13.7 Rules by Trustee, Paying Agent, Transfer Agent and Registrar. The Trustee may make reasonable rules for action by, or at meetings of, Holders. The Registrar, the Transfer Agent and the Paying Agent may make reasonable rules for their functions. SECTION 13.8 Legal Holidays. A “Legal Holiday” is a Saturday, a Sunday or other day on which commercial banking institutions are authorized or required to be closed in New York, New York or the state of the place of payment. If a payment date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holi-day, the record date shall not be affected. SECTION 13.9 Governing Law. THIS INDENTURE, THE NOTES AND THE NOTE GUARAN-TEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. SECTION 13.10Agent for Service; Submission to Jurisdiction; Waiver of Immunities. (a) The Issuer and each Guarantor agree that any suit, action or proceeding against the Issuer or any Guarantor brought by any Holder, the Trustee or any Agent arising out of or based upon this Indenture, the Note Guarantees or the Notes may be instituted in any state or Federal court in the Borough of Manhattan, New York, New York, and any appellate court from any thereof, and each of them irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding. Each of the Issuer and the Guarantors irrevocably waives, to the fullest extent permitted by law, any objection to any suit, action, or proceeding that may be brought in connection with this Indenture, the Note Guarantees or the Notes, including such actions, suits or proceedings relat-ing to securities laws of the United States of America or any state thereof, in such courts whether on the grounds of venue, residence or domicile or on the ground that any such suit, action or proceeding has been brought in an incon-venient forum. The Issuer and the Guarantors agree that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Issuer or any Guarantor, as the case may be, and may be enforced in any court to the jurisdiction of which the Issuer or any Guarantor, as the case may be, is subject by a suit upon such judgment; provided, however that service of process is effected upon the Issuer or any Guarantor, as the case may be, in the manner provided by this Indenture. Each of the Issuer and the Guarantors has appointed Maples Fiduciary Services (Delaware) Inc., with offices on the date hereof at c/o Corporate Creations Network Inc., 99 Hudson Street, 5th Floor, New York, NY 10013 , or any successor, as its authorized agent (the “Authorized -124- |
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Agent”), upon whom process may be served in any suit, action or proceeding arising out of or based upon this In-denture, the Note Guarantees or the Notes or the transactions contemplated herein which may be instituted in any state or Federal court in the Borough of Manhattan, New York, New York, by any Holder, the Trustee or any Agent, and expressly accepts the non-exclusive jurisdiction of any such court in respect of any such suit, action or proceed-ing. Each of the Issuer and the Guarantors hereby represents and warrants that the Authorized Agent has accepted such appointment and has agreed to act as said agent for service of process, and the Issuer and the Guarantors agree to take any and all action, including the filing of any and all documents that may be necessary to continue such re-spective appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon the Issuer and the Guarantors. Notwithstanding the foregoing, any action involving the Issuer or the Guarantors arising out of or based upon this Indenture, the Note Guarantees or the Notes may be instituted by any Holder or the Trustee in any other court of competent jurisdiction. To the fullest extent permitted by applicable law, to the extent that the Issuer or any Guarantor has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process with respect to itself or its property, it hereby irrevocably waives such immunity in respect of its obligations under each of this Indenture, the Notes and the Note Guarantees. (b) Notwithstanding anything to the contrary contained herein, with respect to any suit, action or pro-ceeding arising out of or based upon this Indenture which involves a Guarantor incorporated under the laws of Mex-ico, each party hereto hereby irrevocably and unconditionally (i) submits for itself and its property to the exclusive jurisdiction of any state or Federal court in the Borough of Manhattan, New York, New York, and any appellate court from any thereof; and (ii) waives its right to the jurisdiction of any other courts that it may be entitled to by virtue of its present or future domicile or for any other reason. SECTION 13.11Waivers of Jury Trial. EACH OF THE ISSUER, THE GUARANTORS, THE TRUS-TEE, THE PAYING AGENT, THE REGISTRAR, AND THE TRANSFER AGENT HEREBY, AND EACH HOLDER OF A NOTE BY ITS ACCEPTANCE THEREBY, IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE NOTE GUARANTEES AND FOR ANY COUNTERCLAIM THEREIN. SECTION 13.12USA PATRIOT Act. The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account. The parties to this Indenture agree that they will pro-vide the Trustee with such information as each may request in order to satisfy the requirements of the USA PATRI-OT Act. SECTION 13.13No Recourse Against Others. No director, officer, employee, incorporator, member, partner or equityholder of the Issuer or any of its Subsidiaries or Affiliates, as such, shall have any personal liability for any obligations of the Issuer or the Guarantors under the Notes Documents or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. SECTION 13.14Successors. All agreements of the Issuer and each Guarantor in this Indenture and the Notes shall bind their respective successors. All agreements of the Trustee in this Indenture shall bind its succes-sors. SECTION 13.15Multiple 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 exchange of copies of this Indenture and of signature pages by facsimile or electronic 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 electronic transmission shall be deemed to be their origi-nal signatures for all purposes. SECTION 13.16[Reserved]. -125- |
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SECTION 13.17Table of Contents; Headings. 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 intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof. SECTION 13.18Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces be-yond 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 utili-ties, communications or computer (software and hardware) services, it being understood that the Trustee shall use reasonable best efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances. SECTION 13.19Severability. In case any provision in this Indenture or in the Notes shall be invalid, il-legal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. SECTION 13.20Currency Indemnity and Calculation of Euro-Denominated Restrictions. Euro is the sole currency of account and payment for all sums payable by the Issuer and the Guarantors, if any, under or in con-nection with the Notes and the Note Guarantees, if any, 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 juris-diction, in the winding-up or dissolution of the Issuer, any Guarantor or otherwise by any Holder or by the Trustee, in respect of any sum expressed to be due to it from the Issuer or a Guarantor will only constitute a discharge of the Issuer or such Guarantor, as applicable, 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 prac-ticable 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 and the Guarantors will indemnify such recipient and the Trustee against any loss sustained by such recipient or the Trustee as a result. In any event, the Issuer and the Guarantors will indemnify the recipient or the Trustee on a joint and several basis against the cost of making any such purchase. For the purposes of this Sec-tion 13.20, it will be prima facie evidence of the matter stated therein for the Holder of a Note or the Trustee to certi-fy in a manner reasonably satisfactory to the Issuer (indicating the sources of information used) the loss it Incurred in making any such purchase. These indemnities constitute a separate and independent obligation from the Issuer’s and the Guarantors’ other obligations, will give rise to a separate and independent cause of action, will apply irre-spective 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 any Note Guarantee, or to the Trustee. Except as otherwise specifically set forth herein, for purposes of determining compliance with any Euro-denominated restriction herein, the Euro equivalent amount for purposes hereof that is denominated in a non-Euro currency shall be calculated based on the relevant currency exchange rate in effect on the date such non-Euro amount is Incurred or made, as the case may be. SECTION 13.21Prescription. Claims against the Issuer or any Guarantor for the payment of principal of, or interest, premium, or Additional Amounts, if any, on the Notes will become void unless presentation for pay-ment is made as required in this Indenture within a period of seven years, in the case of principal, or five years, in the case of interest, premium or Additional Amounts, if any, from the applicable original payment date therefor; provided that such claim has not been stayed or otherwise prohibited or delayed by applicable law or court order. SECTION 13.22Acknowledgement and Consent to Bail-In of EEA Financial Institutions. The Issuers acknowledge and accept that, notwithstanding any other provision of this Indenture or any other agreement, ar-rangement or understanding between the parties: (a) any Liability may be subject to the exercise of Write-down and Conversion Powers by the Resolution Authority; -126- |
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(b) The Issuers will be bound by the effect of any application of any Write-down and Con-version Powers in relation to any Liability and in particular (but without limitation) by: (i) any reduction in the principal amount, in full or in part, or outstanding amount due (including any accrued but unpaid interest) due in respect of any Liability; and (ii) any conversion of all or part of any Liability into ordinary shares or other in-struments of ownership of Citibank, N.A., London Branch or any other person; that may result from any exercise of any Write-down and Conversion Powers in relation to any Liability; (c) the terms of this Indenture and the rights of the Issuers hereunder may be varied, to the extent necessary, to give effect to any exercise of any Write-down and Conversion Powers in relation to any Liability and the Issuers will be bound by any such variation; and (d) ordinary shares or other instruments of ownership of Citibank, N.A., London Branch or any other person may be issued to or conferred on Issuers as a result of any exercise of any Write-down and Conversion Powers in relation to any Liability. [Signature pages follow] -127- |
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed all as of the date and year first written above. :yl:suerJ� 1� DIAMOND (BC) B.V., Name: Stephen Thomas Title: Managing Director [Signature Page to the Indenture] |
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WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee AM By: Name: Hallie E. Field Title: Assistant Vice President [Signature Page to the Indenture] |
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CITIBANK, N.A., LONDON BRANCH, as Paying Agent, Transfer A Authentication Agent Name: Title: [Signature Page to the Indenture] |
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EXHIBIT A [FORM OF FACE OF GLOBAL RESTRICTED NOTE] [Applicable Restricted Notes Legend] [Depository Legend, if applicable] [Temporary Regulation S Legend, if applicable] A-1 |
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No. [ ] Principal Amount €[ ] [as revised by the Schedule of Increases and Decreases in Global Note attached hereto]1 Common Code No. ISIN No. DIAMOND (BC) B.V. 5.625% Senior Notes due 2025 DIAMOND (BC) B.V., a private limited liability company (besloten vennootschap met beperkte aanspra-kelijkheid) incorporated under the laws of the Netherlands, promises to pay to [ ], or its registered assigns, the principal sum of euros, [as revised by the Schedule of Increases and Decreases in Global Note attached hereto], on August 15, 2025. Interest Payment Dates: February 15 and August 15, commencing February 15, 2018. Record Dates: February 1 and August 1. Additional provisions of this Note are set forth on the other side of this Note. 1 Insert in Global Notes only. A-2 |
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IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed. DIAMOND (BC) B.V. By: Name: Title: A-3 |
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CERTIFICATE OF AUTHENTICATION This Note is one of the Notes referred to in the within-mentioned Indenture. CITIBANK, N.A., LONDON BRANCH, as Authentication Agent By: Authorized Signatory Dated: A-4 |
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[FORM OF REVERSE SIDE OF NOTE] DIAMOND (BC) B.V. 5.625% Senior Notes due 2025 Capitalized terms used herein and not defined herein have the meanings ascribed thereto in the Indenture. 1. Interest Diamond (BC) B.V., a private limited liability company (besloten vennootschap met beperkte aanspra-kelijkheid) incorporated under the laws of the Netherlands, promises to pay interest on the principal amount of this Note at 5.625% per annum from August 8, 2017 until maturity. The Issuer will pay interest semi-annually in arrears every February 15 and August 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 the date of issuance; provided, that the first Inter-est Payment Date shall be February 15, 2018. The Issuer shall pay interest on overdue principal at the rate specified herein, and, subject to Section 2.15 of the Indenture, it shall pay interest (including post-petition interest in any pro-ceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace pe-riod) at the same rate to the extent lawful. Interest on the Notes will be computed on the basis of a 360-day year comprised of twelve 30-day months. 2. Method of Payment By no later than 11:00 a.m. (London time) on the date on which any principal of, premium, if any, or inter-est, if any, and Additional Amounts, if any, on any Note is due and payable, the Issuer shall deposit with the Paying Agent a sum sufficient in euro in immediately available funds to pay such principal, premium, interest and Addi-tional Amounts, if any, when due. Interest on any Note which is payable, and is timely paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such Note (or one or more Predecessor Notes) is registered at the close of business on the preceding February 1 and August 1. The principal, interest and premium and Additional Amounts, if any, on Global Notes will be made by one or more Paying Agents by wire transfer of immediately available funds to the account specified by the registered Holder thereof (being the Common Deposi-tary or its nominee for Euroclear and Clearstream). Principal, interest and premium and Additional Amounts, if any, on Definitive Notes will be payable at the specified office or agency of one or more Paying Agents maintained for such purposes in the City of London. In addition, interest on the Definitive Notes may be paid, at the option of the Issuer, by check mailed to the address of the Holder entitled thereto as shown on the register of Holders of Notes for the Definitive Notes. If an Interest Payment Date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected. 3. Paying Agent, Transfer Agent and Registrar The Issuer initially appoints Citibank, N.A., London Branch as Paying Agent, Transfer Agent and Registrar for the Notes. The Issuer may change any Registrar or Paying Agent without prior notice to the Holders. The Issuer or any Guarantor may act as Paying Agent, Registrar or Transfer Agent. 4. Indenture The Issuer issued the Notes under an Indenture dated as of August 8, 2017 (as it may be amended or sup-plemented from time to time in accordance with the terms thereof, the “Indenture”), among the Issuer, Wilmington Trust, National Association, as Trustee and Citibank, N.A., London Branch, as Paying Agent, Transfer Agent and Registrar. The terms of the Notes include those stated in the Indenture. The Notes are subject to all terms and pro-visions of the Indenture, and Holders are referred to the Indenture for a statement of those terms. In the event of a conflict between the terms of the Notes and the terms of the Indenture, the terms of the Indenture shall prevail. A-5 |
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5. Guarantees To guarantee the due and punctual payment of the principal, premium, if any, and interest, if any (including post-filing or post-petition interest), and Additional Amounts, if any, on the Notes and all other amounts payable by the Issuer under the Indenture and the Notes when and as the same shall be due and payable, whether at maturity, by acceleration or otherwise, according to the terms of the Notes and the Indenture, the Guarantors will unconditionally guarantee such obligations on a senior basis pursuant to the terms of the Indenture. 6. Optional Redemption (a) At any time and from time to time prior to August 15, 2020, the Issuer may on one or more occa-sions redeem the Notes in whole or in part, at its option, at a redemption price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium, plus accrued and unpaid interest and Additional Amounts, if any, to, but excluding, the date of redemption (the “Redemption Date”). (b) At any time and from time to time prior to August 15, 2020, the Issuer may, at its option, redeem up to 40% of the aggregate principal amount of the Notes issued under the Indenture (including any Additional Notes issued after the Issue Date) at a redemption price equal to 105.625% of the principal amount of the Notes re-deemed, plus accrued and unpaid interest and Additional Amounts, if any, to, but excluding, the Redemption Date, with the net cash proceeds received by, or contributed to, the Issuer from one or more Equity Offerings; provided that (1) in each case the redemption takes place not later than 180 days after the closing of the related Equity Offer-ing, and (2) not less than 50% of the original aggregate principal amount of the Notes issued under the Indenture (including any Additional Notes issued after the Issue Date) remains outstanding immediately thereafter (excluding Notes held by the Issuer or any of its Restricted Subsidiaries). (c) Except pursuant to clauses (a), (b) and (e) of this paragraph 6, the Notes will not be redeemable at the Issuer’s option prior to August 15, 2020. (d) At any time and from time to time on and after August 15, 2020, the Issuer may on one or more occasions redeem the Notes in whole or in part, at its option, at a redemption price equal to the percentage of princi-pal amount of the Notes redeemed set forth below, plus accrued and unpaid interest and Additional Amounts, if any, on the Notes redeemed, to, but excluding, the applicable Redemption Date, if redeemed during the twelve-month period beginning on August 15 of each of the years indicated below: Year 2020... 2021.. 2022 and thereafter...Percentage 102.813% 101.406% 100.000% (e) Notwithstanding the foregoing, in connection with any tender offer for the Notes, including a Change of Control Offer or Asset Disposition Offer, if Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in such tender offer and the Issuer, or any third party making such tender offer in lieu of the Issuer, purchases all of the Notes validly tendered and not with-drawn by such Holders, the Issuer or such third party will have the right upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following such purchase date, to redeem all Notes that remain outstanding following such purchase at a redemption price equal to the price offered to each other Holder in such tender offer plus, to the extent not included in the tender offer payment, accrued and unpaid interest and Additional Amounts, if any, thereon, to, but not including, the date of such redemption. (f) Unless the Issuer defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable Redemption Date. (g) Any redemption pursuant to this paragraph 6 shall be made pursuant to the provisions of Sections 5.1 through 5.6 of the Indenture. The Paying Agent shall select the Notes to be redeemed in the manner described under Sections 5.1 through 5.6 of the Indenture. A-6 |
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(h) Except as set forth in Section 5.9 of the Indenture, the Issuer is not required to make mandatory redemption or sinking fund payments with respect to the Notes; provided, however, that under certain circumstanc-es, the Issuer may be required to offer to purchase Notes under Section 3.5 and Section 3.9 of the Indenture. The Issuer may at any time and from time to time purchase Notes in the open market or otherwise. 7. Special Mandatory Redemption In the event that (i) the Escrow Agent and the Trustee have not received the Acquisition Completion Certif-icate prior to 5:00 p.m. (New York City time) on the Outside Date, or (ii) the Escrow Agent and the Trustee receive, at any time prior to 5:00 p.m. (New York City time) on the Outside Date, an Officer’s Certificate certifying that (A) the Issuer will not pursue the consummation of the Acquisition, or (B) the Purchase Agreement has been amended, modified or waived or any consent granted, in a manner that would be materially adverse to the Holders of the Notes (as reasonably determined by the Issuer) or the Purchase Agreement has otherwise been terminated (any such event specified in clause (i) or (ii) being a “Special Mandatory Redemption Event”), then, in each such case, the Escrow Agent, without the requirement of notice to or action by the Issuer, the Escrow Agent or any other Per-son, shall notify the Issuer and Trustee and, within one Business Day, liquidate all Escrowed Property and, on or prior to the Special Mandatory Redemption Date, release the Escrowed Property to the Paying Agent. On the Busi-ness Day following the Special Mandatory Redemption Event, the Issuer (or the Paying Agent upon the written re-quest of and at the expense of the Issuer) shall (x) notify the Escrow Agent and the Trustee in writing of the occur-rence of the Special Mandatory Redemption Event and (y) deliver a notice of redemption in accordance with the applicable procedures of Euroclear and Clearstream to each Holder of Notes that the entire principal amount out-standing of the Notes shall be redeemed at the Special Mandatory Redemption Price on the date falling two Business Days after the delivery of such notice (the “Special Mandatory Redemption Date”). 8. Repurchase Provisions If a Change of Control occurs, unless the Issuer has previously or concurrently delivered a redemption no-tice with respect to all outstanding Notes pursuant to Section 5.7 of the Indenture, each Holder will have the right to require the Issuer to repurchase from each Holder all or any part (equal to €100,000 or an integral multiple of €1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest and Additional Amounts, if any, to, but excluding, the date of pur-chase, subject to the right of Holders of record on the relevant record date to receive interest due on the relevant in-terest payment date occurring on or prior to the repurchase date as provided in, and subject to the terms of, the In-denture. Upon certain Asset Dispositions, the Issuer may be required to use the Excess Proceeds from such Asset Dispositions to offer to purchase the maximum aggregate principal amount of Notes (that is €100,000 or an integral multiple of €1,000 in excess thereof) and, at the Issuer’s option, Pari Passu Indebtedness 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 and Additional Amounts, if any, to, but excluding, the date fixed for the closing of such offer, in accordance with the procedures set forth in Section 3.5 and in Article V of the Indenture. 9. Denominations; Transfer; Exchange The Notes shall be issuable only in fully registered form in minimum denominations of principal amount of €100,000 and any integral multiple of €1,000 in excess thereof. A Holder may transfer or exchange Notes in ac-cordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate en-dorsements or transfer documents and to pay a sum sufficient to cover any tax and fees required by law or permitted by the Indenture. The Registrar need not register the transfer of or exchange of any Note (A) for a period beginning (1) 30 calendar days before the mailing of a notice of redemption of Notes to be redeemed and ending at the close of business on the day of such mailing or (2) 15 calendar days before an Interest Payment Date and ending on such Interest Payment Date, (B) called for redemption, except the unredeemed portion of any Note being redeemed in part or (C) tendered (and not withdrawn) for repurchase in connection with a Change of Control Offer or an Asset Disposition Offer, except the untendered portion of any Note being repurchased in part. A-7 |
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10. Persons Deemed Owners The registered Holder of this Note may be treated as the owner of it for all purposes. 11. Discharge and Defeasance Subject to certain exceptions and conditions set forth in the Indenture, the Issuer at any time may terminate some or all of its obligations under the Notes and the Indenture if the Issuer deposits with the Paying Agent (or other such entity directed, designated or appointed by the Issuer and reasonably acceptable to the Trustee acting for the Trustee for such purpose) cash in Dollars (if to the Trustee) or cash in Euros or European Government Obligations (if to the Paying Agent) for the payment of principal, premium, if any, and interest, if any on the Notes to redemp-tion or maturity, as the case may be. 12. Amendment, Supplement, Waiver Subject to certain exceptions contained in the Indenture, the Indenture or the Notes may be amended, or a Default thereunder may be waived, with the consent of the Holders of a majority in aggregate principal amount of the outstanding Notes. Without notice to or the consent of any Holder, the Issuer, the Guarantors and the Trustee may amend or supplement the Indenture or the Notes as provided in the Indenture. 13. Defaults and Remedies If an Event of Default (other than an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Issuer) occurs and is continuing, the Trustee by notice to the Issuer, or the Holders of at least 30% in aggregate principal amount of the outstanding Notes by notice to the Issuer and the Trustee, may declare the principal of, premium, if any, and accrued and unpaid interest and Additional Amounts, and any other monetary obligations on all the Notes to be due and payable immediately. Upon the effectiveness of such declaration, such principal, premium, interest and Additional Amounts, if any, and other monetary obligations will be due and payable immediately. If a bankruptcy, insolvency or reorganization of the Issuer occurs and is continuing, the principal of, premium, if any, and accrued and unpaid interest and Additional Amounts, if any, and any other monetary obliga-tions 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. Under certain circumstances, the Holders of a majority in aggregate principal amount of the outstanding Notes may rescind any such acceleration with respect to the Notes and its consequences. 14. Trustee Dealings with the Issuer Subject to certain limitations set forth in the Indenture, the Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer, Guarantors or their Affiliates with the same rights it would have if it were not the Trustee. In addition, the Trustee shall be permitted to engage in transactions with the Issuer; provided, however, that if the Trustee acquires any conflicting interest under the Trust Indenture Act, the Trustee must (i) eliminate such conflict within 90 days of acquiring such conflicting interest, (ii) apply to the Commission for permission to continue acting as Trustee or (iii) resign. 15. No Recourse Against Others No director, officer, employee, incorporator, member, partner or equityholder of the Issuer or any of its Subsidiaries or Affiliates, as such, shall have any personal liability for any obligations of the Issuer or the Guaran-tors under the Notes Documents or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. 16. Authentication This Note shall not be valid until an authorized signatory of the Trustee (or an Authentication Agent acting on its behalf) manually signs the certificate of authentication on the other side of this Note. A-8 |
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17. Abbreviations Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (= ten-ants in common), TEN ENT (= tenants by the entirety), JT TEN (= joint tenants with rights of survivorship and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gift to Minors Act). 18. ISIN and Common Code Numbers The Issuer has caused ISIN and Common Code numbers, if applicable, to be printed on the Notes and has directed the Trustee and Paying Agent to use ISIN and Common Code numbers, if applicable, in notices of redemp-tion or purchase 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 or purchase and reliance may be placed only on the other identification numbers placed thereon. 19. Governing Law This Note shall be governed by, and construed in accordance with, the laws of the State of New York. The Issuer will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture. Requests may be made to: Prior to the Escrow Release Date: Diamond (BC) B.V. c/o Bain Capital Private Equity, L.P., John Hancock Tower 200 Clarendon Street Boston, MA 02116 Facsimile: (617) 516-2010 Attention: John Kilgallon From and after the Escrow Release Date: Diamond (BC) B.V. c/o Bain Capital Private Equity, L.P. John Hancock Tower 200 Clarendon Street Boston, MA 02116 Attention: John Kilgallon A-9 |
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ASSIGNMENT FORM2 To assign this Note, fill in the form below: I or we assign and transfer this Note to: (Print or type assignee’s name, address and zip code) (Insert assignee’s social security or tax I.D. No.) and irrevocably appoint another to act for him. agent to transfer this Note on the books of the Issuer. The agent may substitute Date: Your Signature: Signature Guarantee: (Signature must be guaranteed) Sign exactly as your name appears on the other side of this Note. 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 Exchange Act Rule 17Ad-15. The undersigned hereby certifies that it is / is not an Affiliate of the Issuer and that, to its knowledge, the pro-posed transferee is / is not an Affiliate of the Issuer. In connection with any transfer or exchange of any of the Notes evidenced by this certificate occurring pri-or to the date that is one year after the later of the date of original issuance of such Notes and the last date, if any, on which such Notes were owned by the Issuer or any Affiliate of the Issuer, the undersigned confirms that such Notes are being: CHECK ONE BOX BELOW: (1) acquired for the undersigned’s own account, without transfer; or (2) transferred to the Issuer; or (3) transferred pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”); or (4) transferred pursuant to an effective registration statement under the Securities Act; or (5) transferred pursuant to and in compliance with Regulation S under the Securities Act; or (6) transferred pursuant to another available exemption from the registration requirements of the Securities Act of 1933, as amended. 2 Bringing or sending this Assignment Form in or to the Republic of Austria (either per paper or electronically) may trigger Austrian stamp duty. Please seek advice with Austrian counsel. A-10 |
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Unless one of the boxes is checked, the Registrar 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) or (6) is checked, the Issuer may require, prior to registering any such transfer of the Notes, in its sole discretion, such legal opinions, certifications and other information as the Issuer may reasonably request 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 of 1933, as amended, such as the exemption provided by Rule 144 under such Act. Signature Signature Guarantee: (Signature must be guaranteed) Signature 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 Exchange Act Rule 17Ad-15. TO BE COMPLETED BY PURCHASER IF BOX (1) OR (3) 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 institu-tional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, 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. Signature Dated: Signature Guarantee: (Signature must be guaranteed) Signature A-11 |
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[TO BE ATTACHED TO GLOBAL NOTES] SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTES The following increases or decreases in this Global Note have been made: 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 or Registrar Date of Exchange A-12 |
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OPTION OF HOLDER TO ELECT PURCHASE If you elect to have this Note purchased by the Issuer pursuant to Section 3.5 or 3.9 of the Indenture, check either box: Section 3.5 Section 3.9 If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 3.5 or 3.9 of the Indenture, state the amount in principal amount (must be in denominations of €100,000 or an integral multiple of €1,000 in excess thereof): € and specify the denomination or denominations (which shall not be less than the minimum authorized denomination) of the Notes to be issued to the Holder for the portion of the within Note not being repurchased (in the absence of any such specification, one such Note will be issued for the portion not being repurchased): Date: Your Signature: (Sign exactly as your name appears on the other side of the Note) Signature Guarantee: (Signature must be guaranteed) 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 Exchange Act Rule 17Ad-15. A-13 |
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EXHIBIT B [Form of] Escrow Release Date Supplemental Indenture SUPPLEMENTAL INDENTURE, (this “Supplemental Indenture”) dated as of [ ], 2017, by and among the parties that are signatories hereto as Guarantors (each a “Guaranteeing Party” and collectively, the “Guarantee-ing Parties”) and Wilmington Trust, National Association, as Trustee under the Indenture referred to below. W I T N E S SE T H: WHEREAS, each of Diamond (BC) B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands (the “Issuer”), and the Trustee have heretofore executed and delivered an indenture dated as of August 8, 2017 (as amended, supplemented, waived or otherwise modified, the “Indenture”), providing for the issuance of an aggregate principal amount of €450,000,000 of 5.625% Senior Notes due 2025 (the “Notes”) of the Issuer; WHEREAS, the Indenture provides that the Guaranteeing Parties shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Parties shall unconditionally guarantee all of the Issu-er’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Inden-ture (the “Note Guarantee”), each on the terms and conditions set forth herein; and WHEREAS, pursuant to Section 9.1 of the Indenture, any Guarantor and the Trustee are authorized to exe-cute and deliver this Supplemental Indenture to amend or supplement the Indenture, without the consent of any Holder; NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Parties and the Trustee mutually covenant and agree for the benefit of the Trustee and the Holders of the Notes as follows: ARTICLE I DEFINITIONS SECTION 1.1. Defined Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recitals hereto are used herein as therein defined. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof. ARTICLE II AGREEMENT TO BE BOUND; GUARANTEE SECTION 2.1. Agreement to be Bound. Each of the Guaranteeing Parties hereby becomes a party to the Indenture as a Guarantor and as such will have all of the rights and be subject to all of the obligations and agree-ments of a Guarantor under the Indenture. SECTION 2.2. Guarantee. Each of the Guaranteeing Parties agrees, on a joint and several basis with all the existing Guarantors, to fully, unconditionally and irrevocably Guarantee to each Holder and the Trustee the Guaranteed Obligations pursuant to Article X of the Indenture on a senior basis, subject to the limitations set out in Article X of the Indenture. B-1 |
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SECTION 2.3. Limitation on Liability. To avoid the scenario contemplated by Section 10.2(a) of the In-denture, the limitations on the obligations of the Guaranteeing Parties shall be limited as set forth below.3 ARTICLE III MISCELLANEOUS SECTION 3.1. vided in the Indenture. Notices. All notices and other communications to the Guarantors shall be given as pro-SECTION 3.2. Merger and Consolidation. Each Guaranteeing Party shall not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into, another Person (other than the Issuer or any Restricted Subsidiary that is a Guarantor or becomes a Guarantor concurrently with the transaction) except in accordance with Section 4.1(g) of the Indenture. SECTION 3.3. Release of Guarantee. The Note Guarantees hereunder may be released in accordance with Section 10.2(c) of the Indenture. SECTION 3.4. Parties. Nothing expressed or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of this Supplemental Indenture or the Indenture or any provision herein or therein contained. SECTION 3.5. Governing Law. This Supplemental Indenture shall be governed by, and construed in ac-cordance with, the laws of the State of New York. SECTION 3.6. Severability. In case any provision in this Supplemental Indenture shall be invalid, ille-gal 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. SECTION 3.7. Benefits Acknowledged. Each Guaranteeing Party’s Note Guarantee is subject to the terms and conditions set forth in the Indenture. Each Guaranteeing Party acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and this Supplemental Inden-ture and that the guarantee and waivers made by it pursuant to its Note Guarantee are knowingly made in contempla-tion of such benefits. SECTION 3.8. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as express-ly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provi-sions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby. SECTION 3.9. The Trustee. The Trustee makes no representation or warranty as to the validity or suffi-ciency of this Supplemental Indenture or with respect to the recitals contained herein, all of which recitals are made solely by the other parties hereto. SECTION 3.10. Counterparts. The parties hereto 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. The ex-change of copies of this Supplemental Indenture and of signature pages by facsimile or electronic transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by fac-simile or electronic transmission shall be deemed to be their original signatures for all purposes. 3 To include foreign guarantee limitations. B-2 |
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SECTION 3.11. Execution and Delivery. Each Guaranteeing Party agrees that its Note Guarantee shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of any such Note Guarantee. SECTION 3.12. Headings. The headings of the Articles and the Sections in this Supplemental Indenture are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof. SECTION 3.13. Jurisdiction. The parties hereto agree that any suit, action or proceeding arising out of or based upon this Supplemental Indenture may be instituted in any state or Federal court in the Borough of Manhattan, New York, New York, and any appellate court from any thereof, and each party hereto irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding. The parties hereto irrevocably waive, to the fullest extent permitted by law, any objection to any suit, action, or proceeding that may be brought in connec-tion with this Supplemental Indenture, including such actions, suits or proceedings relating to securities laws of the United States or any state thereof, in such courts whether on the grounds of venue, residence or domicile or on the ground that any such suit, action or proceeding has been brought in an inconvenient forum. The parties hereto agree that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon them, and may be enforced in any court to the jurisdiction of which they are subject by a suit upon such judgment. SECTION 3.14 Waiver of Jury Trial. THE PARTIES HERETO HEREBY IRREVOCABLY AND UN-CONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RE-LATING TO THIS SUPPLEMENTAL INDENTURE AND FOR ANY COUNTERCLAIM THEREIN. [Signature pages follow] B-3 |
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written. DIAMOND (BC) B.V., as the Issuer By: Name: Title: [SUBSIDIARY GUARANTORS], as a Guarantor By: Name: Title: B-4 |
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WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee By: Name: Title: B-5 |
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EXHIBIT C Form of Certificate to be Delivered Upon Termination of Restricted Period [Date] [Prior to the Escrow Release Date: Diamond (BC) B.V. c/o Bain Capital Private Equity, L.P., John Hancock Tower 200 Clarendon Street Boston, MA 02116 Facsimile: (617) 516-2010 Attention: John Kilgallon] [From and after the Escrow Release Date: Diamond (BC) B.V. c/o Bain Capital Private Equity, L.P. John Hancock Tower 200 Clarendon Street Boston, MA 02116 Attention: John Kilgallon with a copy to: Kirkland & Ellis LLP 300 North LaSalle Chicago, IL 60654 Attention: Dennis M. Myers, Esq. and Bradley C. Reed, Esq. Telephone: (312) 862-2000 Facsimile: (312) 862-2200 Citibank, N.A., London Branch Citigroup Centre Canada Square Canary Wharf London, E14 5LB United Kingdom Email: dtc.transfers@citi.com Attention: Transfer Agent, Issuer Services Wilmington Trust, National Association 50 South Sixth Street, Suite 1290 Minneapolis, Minnesota 55420 Attention: Diamond (BC) B.V. Administrator Re: Diamond (BC) B.V. (the “Issuer”) 5.625% Senior Notes due 2025 (the “Notes”) C-1 |
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Ladies and Gentlemen: This letter relates to Notes represented by a temporary global Note (the “Temporary Regulation S Global Note”). Pursuant to Section 2.1 of the Indenture dated as of August 8, 2017 relating to the Notes (the “Indenture”), we hereby certify that the persons who are the beneficial owners of €[ ] principal amount of Notes represented by the Temporary Regulation S Global Note are persons outside the United States to whom beneficial interests in such Notes could be transferred in accordance with Rule 904 of Regulation S promulgated under the Securities Act of 1933, as amended. Accordingly, you are hereby requested to issue a Permanent Regulation S Global Note repre-senting the undersigned’s interest in the principal amount of Notes represented by the Temporary Regulation S Global Note, all in the manner provided by the Indenture. We certify that we [are][are not] an Affiliate of the Issuer. C-2 |
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The Trustee, Registrar and the Issuer are entitled to conclusively rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this letter have the meanings set forth in Regulation S. Very truly yours, [Name of Transferor] By: Authorized Signature C-3 |
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EXHIBIT D Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regulation S [Date] [Prior to the Escrow Release Date: Diamond (BC) B.V. c/o Bain Capital Private Equity, L.P., John Hancock Tower 200 Clarendon Street Boston, MA 02116 Facsimile: (617) 516-2010 Attention: John Kilgallon] [From and after the Escrow Release Date: Diamond (BC) B.V. c/o Bain Capital Private Equity, L.P. John Hancock Tower 200 Clarendon Street Boston, MA 02116 Attention: John Kilgallon] with a copy to: Kirkland & Ellis LLP 300 North LaSalle Chicago, IL 60654 Attention: Dennis M. Myers, Esq. and Bradley C. Reed, Esq. Telephone: (312) 862-2000 Facsimile: (312) 862-2200 Citibank, N.A., London Branch Citigroup Centre Canada Square Canary Wharf London, E14 5LB United Kingdom Email: dtc.transfers@citi.com Attention: Transfer Agent, Issuer Services Wilmington Trust, National Association 50 South Sixth Street, Suite 1290 Minneapolis, Minnesota 55420 Attention: Diamond (BC) B.V. Administrator Re: Diamond (BC) B.V. (the “Issuer”) 5.625% Senior Notes due 2025 (the “Notes”) D-1 |
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Ladies and Gentlemen: In connection with our proposed sale of €[ ] aggregate principal amount of the Notes, we confirm that such sale has been effected pursuant to and in accordance with Regulation S under the United States Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, we represent that: (a) the offer of the Notes was not made to a person in the United States; (b) either (i) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (ii) the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither we nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States; (c) no directed selling efforts have been made in the United States in contravention of the re-quirements of Rule 903(a)(2) or Rule 904(a)(2) of Regulation S, as applicable; and (d) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act. In addition, if the sale is made during a restricted period and the provisions of Rule 903(b)(2), Rule 903(b)(3) or Rule 904(b)(1) of Regulation S are applicable thereto, we confirm that such sale has been made in ac-cordance with the applicable provisions of Rule 903(b)(2), Rule 903(b)(3) or Rule 904(b)(1), as the case may be. We also hereby certify that we [are][are not] an Affiliate of the Issuer and, to our knowledge, the transferee of the Notes [is][is not] an Affiliate of the Issuer. The Trustee, Registrar and the Issuer are entitled to conclusively rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S. Very truly yours, [Name of Transferor] By: Authorized Signature D-2 |
Exhibit 4.2
EXECUTION VERSION
Escrow Release Date Supplemental Indenture
SUPPLEMENTAL INDENTURE, (this “Supplemental Indenture”) dated as of September 6, 2017, by and among the parties that are signatories hereto as Guarantors (each a “Guaranteeing Party” and collectively, the “Guaranteeing Parties”) and Wilmington Trust, National Association, as Trustee under the Indenture referred to below.
W I T N E S SE T H:
WHEREAS, each of Diamond (BC) B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands (the “Issuer”), and the Trustee have heretofore executed and delivered an indenture dated as of August 8, 2017 (as amended, supplemented, waived or otherwise modified, the “Indenture”), providing for the issuance of an aggregate principal amount of €450,000,000 of 5.625% Senior Notes due 2025 (the “Notes”) of the Issuer;
WHEREAS, the Indenture provides that the Guaranteeing Parties shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Parties 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 (the “Note Guarantee”), each on the terms and conditions set forth herein; and
WHEREAS, pursuant to Section 9.1 of the Indenture, any Guarantor and the Trustee are authorized to execute and deliver this Supplemental Indenture to amend or supplement the Indenture, without the consent of any Holder;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Parties and the Trustee mutually covenant and agree for the benefit of the Trustee and the Holders of the Notes as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Defined Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recitals hereto are used herein as therein defined. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
ARTICLE II
AGREEMENT TO BE BOUND; GUARANTEE
SECTION 2.1. Agreement to be Bound. Each of the Guaranteeing Parties hereby becomes a party to the Indenture as a Guarantor and as such will have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Indenture.
SECTION 2.2. Guarantee. Each of the Guaranteeing Parties agrees, on a joint and several basis with all the existing Guarantors, to fully, unconditionally and irrevocably Guarantee to each Holder and the Trustee the Guaranteed Obligations pursuant to Article X of the Indenture on a senior basis, subject to the limitations set out in Article X of the Indenture.
ARTICLE III
MISCELLANEOUS
SECTION 3.1. Notices. All notices and other communications to the Guarantors shall be given as provided in the Indenture.
SECTION 3.2. Merger and Consolidation. Each Guaranteeing Party shall not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into, another Person (other than the Issuer or any Restricted Subsidiary that is a Guarantor or becomes a Guarantor concurrently with the transaction) except in accordance with Section 4.1(g) of the Indenture.
SECTION 3.3. Release of Guarantee. The Note Guarantees hereunder may be released in accordance with Section 10.2(c) of the Indenture.
SECTION 3.4. Parties. Nothing expressed or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of this Supplemental Indenture or the Indenture or any provision herein or therein contained.
SECTION 3.5. Governing Law. This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
SECTION 3.6. Severability. In case any provision in this 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.
SECTION 3.7. Benefits Acknowledged. Each Guaranteeing Party’s Note Guarantee is subject to the terms and conditions set forth in the Indenture. Each Guaranteeing Party acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and this Supplemental Indenture and that the guarantee and waivers made by it pursuant to its Note Guarantee are knowingly made in contemplation of such benefits.
SECTION 3.8. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
SECTION 3.9. The Trustee. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture or with respect to the recitals contained herein, all of which recitals are made solely by the other parties hereto.
SECTION 3.10. Counterparts. The parties hereto 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. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or electronic transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or electronic transmission shall be deemed to be their original signatures for all purposes.
SECTION 3.11. Execution and Delivery. Each Guaranteeing Party agrees that its Note Guarantee shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of any such Note Guarantee.
SECTION 3.12. Headings. The headings of the Articles and the Sections in this Supplemental Indenture are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
SECTION 3.13. Jurisdiction. The parties hereto agree that any suit, action or proceeding arising out of or based upon this Supplemental Indenture may be instituted in any state or Federal court in the Borough of Manhattan, New York, New York, and any appellate court from any thereof, and each party hereto irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding. The parties hereto irrevocably waive, to the fullest extent permitted by law, any objection to any suit, action, or proceeding that may be brought in connection with this Supplemental Indenture, including such actions, suits or proceedings relating to securities laws of the United States or any state thereof, in such courts whether on the grounds of venue, residence or domicile or on the ground that any such suit, action or proceeding has been brought in an inconvenient forum. The parties hereto agree that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon them, and may be enforced in any court to the jurisdiction of which they are subject by a suit upon such judgment.
SECTION 3.14 Waiver of Jury Trial. THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE AND FOR ANY COUNTERCLAIM THEREIN.
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
DIAMOND (BC) B.V., as the Issuer | |||
By: | /s/ Terry Coelho | ||
Name: | Terry Coelho | ||
Title: | Authorized Signatory | ||
BCPE Diamond netherlands TopCo B.V., as a Guarantor | |||
By: | /s/ Terry Coelho | ||
Name: | Terry Coelho | ||
Title: | Authorized Signatory | ||
BCPE Diamond US HOLDCO INC., as a Guarantor | |||
By: | /s/ Terry Coelho | ||
Name: | Terry Coelho | ||
Title: | President and Treasurer | ||
Auto-C, LLC, as a Guarantor | |||
By: | /s/ Terry Coelho | ||
Name: | Terry Coelho | ||
Title: | President and Treasurer | ||
Cleanwise, Inc., as a Guarantor | |||
By: | /s/ Terry Coelho | ||
Name: | Terry Coelho | ||
Title: | President and Treasurer | ||
Cryovac Chile Holdings, LLC, as a Guarantor | |||
By: | /s/ Terry Coelho | ||
Name: | Terry Coelho | ||
Title: | President and Treasurer | ||
[Signature Page to Supplemental Indenture]
Diversey Puerto Rico, Inc., as a Guarantor |
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By: | /s/ Terry Coelho | ||
Name: | Terry Coelho | ||
Title: | President and Treasurer | ||
Diversey Shareholdings, Inc., as a Guarantor | |||
By: | /s/ Terry Coelho | ||
Name: | Terry Coelho | ||
Title: | President and Treasurer | ||
Diversey, Inc., as a Guarantor | |||
By: | /s/ Terry Coelho | ||
Name: | Terry Coelho | ||
Title: | President and Chief Financial Officer | ||
Dry Lube, Inc., as a Guarantor | |||
By: | /s/ Terry Coelho | ||
Name: | Terry Coelho | ||
Title: | President and Treasurer | ||
JDI CEE Holdings, Inc., as a Guarantor | |||
By: | /s/ Terry Coelho | ||
Name: | Terry Coelho | ||
Title: | President and Treasurer | ||
JDI Holdings, Inc., as a Guarantor | |||
By: | /s/ Terry Coelho | ||
Name: | Terry Coelho | ||
Title: | President and Treasurer | ||
JWP Investments, Inc., as a Guarantor | |||
By: | /s/ Terry Coelho | ||
Name: | Terry Coelho | ||
Title: | President and Treasurer |
[Signature Page to Supplemental Indenture]
JWPR CORPORATION, as a Guarantor | |||
By: | /s/ Terry Coelho | ||
Name: | Terry Coelho | ||
Title: | President and Treasurer | ||
Professional Shareholdings, Inc., as a Guarantor | |||
By: | /s/ Terry Coelho | ||
Name: | Terry Coelho | ||
Title: | President and Treasurer | ||
Sealed Air Holdings (New Zealand) I, LLC, as a Guarantor | |||
By: | /s/ Terry Coelho | ||
Name: | Terry Coelho | ||
Title: | President and Treasurer | ||
Sealed Air Solutions Holdings, Inc., as a Guarantor | |||
By: | /s/ Terry Coelho | ||
Name: | Terry Coelho | ||
Title: | President and Treasurer | ||
Sealed Air US Holdings, LLC, as a Guarantor | |||
By: | /s/ Terry Coelho | ||
Name: | Terry Coelho | ||
Title: | President and Treasurer | ||
The Butcher Company, as a Guarantor | |||
By: | /s/ Terry Coelho | ||
Name: | Terry Coelho | ||
Title: | President and Treasurer |
[Signature Page to Supplemental Indenture]
WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee | |||
By: | /s/ Hallie E. Field | ||
Name: | Hallie E. Field | ||
Title: | Assistant Vice President |
[Signature Page to Supplemental Indenture]
Exhibit 4.3
Execution Version
Supplemental Indenture No. 2
SUPPLEMENTAL INDENTURE, (this “Supplemental Indenture”) dated as of December 5, 2017, by and among the parties that are signatories hereto as Guarantors (each a “Guaranteeing Party” and collectively, the “Guaranteeing Parties”) and Wilmington Trust, National Association, as Trustee under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, each of Diamond (BC) B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands (the “Issuer”), and the Trustee have heretofore executed and delivered an indenture dated as of August 8, 2017 (as amended, supplemented, waived or otherwise modified, the “Indenture”), providing for the issuance of an aggregate principal amount of €450,000,000 of 5.625% Senior Notes due 2025 (the “Notes”) of the Issuer;
WHEREAS, the Indenture provides that the Guaranteeing Parties shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Parties 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 (the “Note Guarantee”), each on the terms and conditions set forth herein; and
WHEREAS, pursuant to Section 9.1 of the Indenture, any Guarantor and the Trustee are authorized to execute and deliver this Supplemental Indenture to amend or supplement the Indenture, without the consent of any Holder;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Parties and the Trustee mutually covenant and agree for the benefit of the Trustee and the Holders of the Notes as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Defined Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recitals hereto are used herein as therein defined. The words “herein,” “hereof’ and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
ARTICLE II
AGREEMENT TO BE BOUND; GUARANTEE
SECTION 2.1 Agreement to be Bound. Each of the Guaranteeing Parties hereby becomes a party to the Indenture as a Guarantor and as such will have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Indenture.
SECTION 2.2 Guarantee. Each of the Guaranteeing Parties agrees, on a joint and several basis with all the existing Guarantors, to fully, unconditionally and irrevocably Guarantee to each Holder and the Trustee the Guaranteed Obligations pursuant to Article X of the Indenture on a senior basis, subject to the limitations set out in Article X of the Indenture and in Article II of this Supplemental Indenture.
SECTION 2.3 Limitation on Guarantee by Austrian Guarantors. Notwithstanding anything set out to the contrary in the Indenture or in any other document creating or purporting to create Guaranteed Obligations, any and all obligations (Verpflichtungen) and liabilities (Haftungen) of a Guarantor that is incorporated in the Republic of Austria (each an “Austrian Guarantor”) under the Indenture or under any other document creating or purporting to create Guaranteed Obligations, shall at all times be limited so that at no time the assumption of an obligation and/or liability under the Indenture or any other document creating or purporting to create Guaranteed Obligations would violate or contradict mandatory Austrian capital maintenance rules (Kapital-erhaltungsvorschriften) pursuant to Austrian company law, in particular sections 82 et seq. of the Austrian Act on Limited Liability Companies (Gesetz über Gesellschaften mit beschränkter Haftung) and/or sections 52 and 65 et seq. of the Austrian Stock Corporation Act (Aktiengesetz) (including, for the avoidance of doubt and without limitation, section 66a of the Austrian Stock Corporation Act to the extent being directly or analogously applied (as the case may be)) (collectively hereinafter referred to as the “Austrian Capital Maintenance Rules”). Should any obligation and/or liability of an Austrian Guarantor under the Indenture or under any other any other document creating or purporting to create Guaranteed Obligations violate or contradict Austrian Capital Maintenance Rules and therefore be held invalid or unenforceable in whole or in part or to the extent the creation, assumption or enforcement of such obligations (Verpflichtungen) or liabilities (Haftungen) would result in any managing director of the relevant Austrian Guarantor breaching its fiduciary duties and/or exposing it to civil or personal liability and/or criminal responsibility, such obligation and/or liability shall be deemed to be replaced by an obligation and/or liability of a similar nature which is in compliance with Austrian Capital Maintenance Rules (and payment obligations shall be limited to the maximum amount permitted to be paid in accordance with Austrian Capital Maintenance Rules) and which provides the best possible security interest (within the limits of Austrian Capital Maintenance Rules) admissible in accordance with the Austrian Capital Maintenance Rules in favor of the Trustee and each of the Holders. By way of example, should it be held that the Guarantee by an Austrian Guarantor created under the Indenture or under any other document creating or purporting to create Guaranteed Obligations is contradicting Austrian Capital Maintenance Rules in relation to any amount of the obligations guaranteed by it, the amount guaranteed by that Austrian Guarantor shall be reduced to such an amount of the Guaranteed Obligations which is permitted pursuant to Austrian Capital Maintenance Rules for that Austrian Guarantor. Such limitation may have the effect of reducing the amount of the obligations (Haftungen) and liabilities (Verpflichtungen) to zero.
For the purposes of Austrian laws, notwithstanding any other provision of the Indenture or of any other document creating or purporting to create Guaranteed Obligations, the Guarantee pursuant to the Indenture, or any other document creating or purporting to create Guaranteed Obligations is meant to be and shall be interpreted as an abstract Guarantee (abstrakter Garantievertrag) and not as surety (Bürgschaft) or as an obligation as joint debtor (Mitschuldner) and each Austrian Guarantor undertakes to pay the amounts due under or pursuant to this Guarantee unconditionally, irrevocably, upon first demand and without raising any defences (unbedingt, unwiderruflich, über erste Aufforderung und unter Verzicht auf alle Einwendungen).
SECTION 2.4 Limitation on Guarantee by Belgian Guarantors. Notwithstanding anything to the contrary in the Indenture, or in any other document creating or purporting to create Guaranteed Obligations, any guarantee granted by a Guarantor with its main establishment (voornaamste vestiging / établissement principal) in Belgium (a “Belgian Guarantor”) shall not include any liability which, if incurred, would constitute unlawful financial assistance, as determined under article 329 or 629, as the case may be, of the Belgian Companies Code and the total maximum guarantee liabilities of a Belgian Guarantor in relation to the Guaranteed Obligations shall be limited, at any time, to a maximum aggregate amount equal to the highest of:
(a) | an amount equal to 85% of such Belgian Guarantor’s net assets (netto actief / actif net) (as determined in accordance with Article 617 or Article 320, as the case may be, of the Belgian Companies Code and the Belgian accounting laws, but not taking intra-group debts into account as debts) as shown by its most recent audited annual financial statements on the date on which the relevant demand is made on one or more guarantees granted by the Belgian Guarantor under the Indenture: |
(b) | an amount equal to 85% of such Belgian Guarantor’s net assets (netto actief / actif net) (as determined in accordance with Article 617 or Article 320, as the case may be, of the Belgian Companies Code and the Belgian accounting laws, but not taking intra-group debts into account as debts) as shown by its most recent audited annual financial statements on the date of this Supplemental Indenture; and |
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(c) | the aggregate amount made available on the date on which the relevant demand is made of: without double counting (i) the amounts made available directly or indirectly to such Belgian Guarantor and its subsidiaries (without double counting) from the proceeds of the Notes, and (ii) the aggregate amount of any intragroup loans or facilities made to such Belgian Guarantor and its subsidiaries by any group company directly and/or indirectly using all or part of the proceeds of the Notes (whether or not such intragroup loan is retained by the Belgian Guarantor for its own purposes or on-lent to a subsidiary of such Belgian Guarantor). |
SECTION 2.5 Limitation on Guarantee by Danish Guarantors
(1) Notwithstanding any provision to the contrary in the Indenture or any other Credit Agreement, the guarantee, indemnity and other obligations (as well as any security created in relation thereto) of any Guarantor incorporated in Denmark (each a “Danish Guarantor”) (and its subsidiaries) expressed to be assumed in the Indenture or any other Credit Agreement,
a. shall be deemed not to be assumed (and any security created in relation thereto shall be limited) to the extent that the same would constitute unlawful financial assistance, including (without limitation) within the meaning of Sections 206 and 210 of the Danish Companies Act (Consolidated Act No. 1089 of 14 September 2015)); and
b. | shall further be limited to an amount equivalent to the higher of: |
i. | the equity (egenkapital) of such Danish Guarantor calculated in accordance with applicable generally accepted accounting principles at the relevant time (the “Danish Equity”) at the time(s) (A) the Danish Guarantor is requested to make a payment under Article X of the Indenture, or (B) of enforcement of security granted by such Danish Guarantor (as applicable); and |
ii. | the Danish Equity at the date of this Guarantee, |
provided that these limitations in paragraph (b) shall only apply to obligations and liabilities of such Danish Guarantor which exceed the sum of (A) the advances under the Indenture or the Credit Agreement received by such Danish Guarantor (and its subsidiaries) either directly in its capacity as borrower under the Credit Agreement or indirectly as intra-group borrower, and (B) interest and other costs and fees which are to be borne by such Danish Guarantor (and its Subsidiaries) in its capacity as borrower under the Credit Agreement or in its capacity as intra-group borrowers.
(2) The limitations set out in this Section 2.3(C) shall apply to such Danish Guarantor’s aggregate obligations and liabilities under any security, guarantee, indemnity, collateral, subordination of rights and claims, subordination or turnover of rights of recourse, application of procedes and any other means of direct or indirect financial assistance pursuant to the Indenture or any other Credit Agreement.
SECTION 2.6 Limitation on Guarantee by English Guarantors. To the extent that the Guarantee created under this Supplemental Indenture or any other liability or payment obligation under this Supplemental Indenture is granted or incurred by a Guarantor incorporated or registered in England & Wales (an “English Guarantor”), the Guarantee of such English Guarantor shall not apply to any liability to the extent that it would result in such Guarantee constituting unlawful financial assistance within the meaning of sections 678 or 679 of the Companies Act 2006.
SECTION 2.7 Limitation on Guarantee by French Guarantors. Notwithstanding any provision to the contrary herein or under any other Notes Document:
The obligations and liabilities of any Guarantor incorporated in France (a “French Guarantor”) under this Supplemental Indenture, the Indenture, the Notes and any other Notes Document shall not include any obligation which if incurred would constitute the provisions of financial assistance within the meaning of article L. 225-216 of the French Commercial Code.
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The obligations and liabilities of each French Guarantor under this Supplemental Indenture, the Indenture, the Notes and any other Notes Document for the obligations of any other party which is not a direct or indirect subsidiary of such French Guarantor (the “Guaranteed Obligor”) shall be limited, at any time to an amount equal to the aggregate of all amounts made available under the Indenture, the Notes and any other Notes Document to the extent directly or indirectly made available to the French Guarantor under intercompany loan arrangements, it being specified that any payment made by such French Guarantor shall reduce pro tanto the outstanding amount of the intercompany loans due by such French Guarantor or its Subsidiaries under the intercompany loan arrangements referred to above.
The obligations and liabilities of each French Guarantor under this Supplemental Indenture, the Indenture, the Notes and any other Notes Document for the obligations of any other party which is its direct or indirect subsidiary will not be limited pursuant to its guarantee obligations hereunder and will therefore include all amounts due by that party unless otherwise expressly set out in this Supplemental Indenture.
The obligations and liabilities of each French Guarantor under this Supplemental Indenture, the Indenture, the Notes and any other Note Document shall not include any obligation or liability in relation to any payment due by reason of a tax imposed by France, solely because a payment is made to an account opened in the name of or for the benefit of a party in a financial institution situated in a non-cooperative jurisdiction (Etat ou territoire non coopératif) as set out in the list referred to in Article 238-0 A of the French tax code (Code Général des Impôts), as such list may be amended from time to time.
SECTION 2.8 Limitation on Guarantee by German Guarantors.
(a) The restrictions in this Section 2.8 shall apply to any guarantee, indemnity, liability and other payment obligations under this Guarantee or any other provision in the Indenture of a Guarantor incorporated under the laws of Germany as a limited liability company (GmbH) (a “German GmbH Guarantor”) to secure liabilities of its current or any future direct or indirect shareholder(s) (upstream) or a Subsidiary of such shareholder (but excluding any direct or indirect Subsidiary of such German GmbH Guarantor) (cross-stream) (a “Relevant Guarantee”).
(b) | The restrictions in this Section 2.8 shall not apply with respect to a Capital Impairment (as defined below): |
(1) to the extent the German GmbH Guarantor secures any indebtedness under the Indenture the proceeds of which are (directly or indirectly) on-lent or otherwise passed on to the relevant German GmbH Guarantor or its Subsidiaries, to the extent that any such on-lending or otherwise passing on is still outstanding at the time of the enforcement of the Relevant Guarantee; for the avoidance of doubt, nothing in this paragraph shall have the effect that such on-lent amounts may be enforced multiple times (no double dip);
(2) if at the time of enforcement of the Relevant Guarantee, a domination and/or profit and loss pooling agreement (Beherrschungs- und/oder Gewinnabführungsvertrag) as per Section 291 of the German Stock Corporation Act (Aktiengesetz, AktG) (either directly or indirectly through an unbroken chain of domination and/or profit transfer agreements) exists between the relevant German GmbH Guarantor as a dominated company, and:
(i) | if that German GmbH Guarantor is a Subsidiary of the Issuer, the Issuer; or |
(ii) | if the German GmbH Guarantor and the Issuer are both Subsidiaries of a joint (direct or indirect) parent company and such parent company as dominating entity (beherrschendes Unternehmen), |
in each case to the extent the existence of such domination and/or profit and loss pooling agreement (Beherrschungs- und/oder Gewinnabführungsvertrag) leads to the full inapplicability of Section 30 paragraph 1 sentence 1 of the German Limited Liabilities Company Act (GmbHG);
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(3) to the extent any payment under the Relevant Guarantee demanded from the relevant German GmbH Guarantor is covered (gedeckt) by a fully valuable and recoverable consideration or recourse claim (vollwertiger Gegenleistungs- oder Rückgewähranspruch) of the German GmbH Guarantor against the Issuer; or
(4) if the relevant German GmbH Guarantor has not complied with its obligations pursuant to paragraphs (d) and (e) below. However, if and to the extent that the Relevant Guarantee has been enforced without regard to the restrictions contained in this Section 2.8 because the Management Notification and/or the Auditor’s Determination (both as defined below) has not (or not in a timely manner) been delivered pursuant to paragraphs (d) or(e) below, but the Auditor’s Determination has then been delivered within four months from its due date in accordance with paragraph (e) below, the Holders shall upon demand of the German GmbH Guarantor to the Trustee repay any amount received from the German GmbH Guarantor which pursuant to the Auditor’s Determination would not have been available for enforcement, if the Auditor’s Determination had been delivered in a timely manner.
(c) The parties to a Relevant Guarantee agree that if and to the extent payment under the Relevant Guarantee would cause (i) the amount of a German GmbH Guarantor’s Net Assets, as calculated and defined pursuant to paragraph (g) below, to fall below the amount required to maintain its registered share capital (Stammkapital) or increase an existing shortage (Vertiefung einer Unterbilanz) of its registered share capital (Stammkapital) and thereby violating Sections 30, 31 of the German Limited Liabilities Company Act (GmbHG) (such event, a “Capital Impairment), or (ii) a German GmbH Guarantor to be deprived of the liquidity necessary to fulfil its liabilities towards its creditors in the sense of Section 64 sentence 3 of the German Limited Liabilities Company Act (GmbHG) (such event, a “Liquidity Impairment”) then the Holders of the Notes and the Trustee shall not enforce and the German GmbH Guarantor shall, subject to paragraphs (d) and (e) below, have a defence (Einrede) against any claim under the Relevant Guarantee if and to the extent such Capital Impairment or Liquidity Impairment would occur.
(d) If the relevant German GmbH Guarantor does not notify the Trustee (the “Management Notification”) within fifteen (15) Business Days after the making of a demand against that German GmbH Guarantor under the Relevant Guarantee:
(1) | to what extent such Relevant Guarantee is an upstream or cross-stream guarantee or |
indemnity; and
(2) to what extent a Capital Impairment or Liquidity Impairment would occur as a result of an enforcement of the Relevant Guarantee (setting out in reasonable detail the amount of its Net Assets or to which extent the liquidity would be deprived, providing an up-to-date pro forma balance sheet or liquidity statement),
then the restrictions set out in this Section 2.8 shall cease to apply until a Management Notification has been provided.
(e) If the Trustee (acting on the instructions of the majority of the Holders of the Notes) disagrees with the Management Notification, it may within twenty (20) Business Days of its receipt, request the relevant German GmbH Guarantor to provide to the Trustee within forty-five (45) Business Days of receipt of such request a determination by its auditors or any other auditors of international standard and reputation (the “Auditor’s Determination”) appointed by the German GmbH Guarantor (at its own cost and expense) setting out in reasonable detail the amount in which the payment under the Relevant Guarantee would cause a Capital Impairment or Liquidity Impairment, subject to the terms set out under this Section 2.8. Save for manifest errors, the Auditor’s Determination shall be binding on all parties.
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(f) If, after it has been provided with an Auditor’s Determination which prevented the Holders of the Notes from demanding any or only partial payment under the Relevant Guarantee, the Trustee ascertains in good faith that the financial conditions of the German GmbH Guarantor as set out in the Auditor’s Determination has substantially improved, the Trustee may (acting reasonably), at the German GmbH Guarantor’s cost and expense, arrange for the preparation of an updated balance sheet of the German GmbH Guarantor by applying the same principles that were used for the preparation of the Auditor’s Determination by the auditors who prepared the Auditor’s Determination in order for such auditors to determine whether (and, if so, to what extent) the Capital Impairment and Liquidity Impairment has been cured as result of the improvement of the financial condition of the German GmbH Guarantor. The Trustee may not arrange for the preparation of an Auditor’s Determination prior to the expiry of three months from the date of the issuance of the preceding Auditor’s Determination. The Trustee may only demand payment under the Relevant Guarantee to the extent the auditors determine that the Capital Impairment and Liquidity Impairment have been cured.
(g) The net assets (Reinvermögen) of the German GmbH Guarantor (the “Net Assets”) shall be calculated in accordance with Section 42 of the German Limited Liabilities Company Act (GmbHG), Sections 242, 264 of the German Commercial Code (Handelsgesetzbuch, HGB) and the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsgemäßer Buchführung) and for the purposes of calculating the Net Assets, the following balance sheet items shall be adjusted as follows:
(1) the amount of non-distributable assets according to Section 253 subsection 6 of the German Commercial Code (Handelsgesetzbuch) shall not be included in the calculation of Net Assets;
(2) the amount of non-distributable assets according to Section 268 subsection 8 of the German Commercial Code (Handelsgesetzbuch) shall not be included in the calculation of Net Assets; and
(3) the amount of non-distributable assets according to Section 272 subsection 5 of the German Commercial Code (Handelsgesetzbuch) shall not be included in the calculation of Net Assets.
(h) Where a German GmbH Guarantor claims in accordance with the provisions of this Section 2.8 that the Relevant Guarantee can only be enforced in a limited amount, it shall (A) realise, to the extent lawful and within reasonable opinion commercially justifiable, any and all of its assets that are shown in the balance sheet with a book value (Buchwert) that is significantly lower than the market value of the assets and are not necessary (betriebsnotwendig) for the relevant German GmbH Guarantor’s business and (B) use best efforts to realise, to the extent legally permitted in a situation where it does not have sufficient liquidity to fulfil its liabilities to its creditors, any and all of its assets if the relevant asset is not necessary for the German GmbH Guarantor’s business (nicht betriebsnotwendig).
(i) Nothing in this Section 2.8 shall constitute a waiver (Verzicht) of any right granted under a Relevant Guarantee.
(j) Nothing in this Section 2.8 shall prevent the Trustee or a German GmbH Guarantor from claiming in court that the provision of a Relevant Guarantee and/or making payments under a Relevant Guarantee by the relevant German GmbH Guarantor does or does not fall within the scope of Sections 30, 31 and/or 64 sentence 3 of the GmbHG and/or Section 826 German Civil Code (Bürgerliches Gesetzbuch).
(k) In addition to the restrictions set out in this Section 2.8, if a German GmbH Guarantor demonstrates that, according to the decisions of the German Federal Supreme Court (Bundesgerichtshof) or a higher regional court of appeals (Oberlandesgericht), the enforcement of any upstream or cross-stream guarantee or security interest against such German GmbH Guarantor would result in personal liability of its managing director(s) (Geschäftsführer) for a reimbursement of payments made under the Relevant Guarantee (including, without limitation, pursuant to Section 826 of the German Civil Code (Bürgerliches Gesetzbuch)), the German GmbH Guarantor shall have a defence (Einrede) against the Relevant Guarantee to the extent required in order not to incur such liability.
(l) The provisions of this Section 2.8 shall apply to a limited partnership with a limited liability company (GmbH) as its general partner (GmbH & Co. KG) and to a partnership with one or more limited liability companies (GmbH) as a partner (GmbH & Co. OHG or OHG (offene Handelsgesellschaft)) mutatis mutandis and all references to Capital Impairment, Liquidity Impairment and Net Assets shall be construed as a reference to the Capital Impairment Liquidity Impairment and Net Assets of the general partner (Komplementär in case of a GmbH & Co. KG) or of any partner that is a limited liability company (GmbH) (in case of a GmbH & Co. OHG or OHG) of the relevant limited partnership or partnership (as applicable).
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(m) For the purposes of this Section 2.8, a reference to a “German GmbH Guarantor” includes any limited liability company incorporated (or limited partnership with a limited liability company as its general partner) or a partnership with one or more limited liability companies as a partner in a jurisdiction other than Germany whose centre of main interest (as that term is used in Article 3(1) of The Council of the European Union Regulation No. 2015/848 on Insolvency Proceedings) is in Germany.
(n) The parties are aware that - due to recent developments - it is currently discussed which point in time is relevant when determining whether a managing director has complied with the capital maintenance provisions. It is and has been the intention and agreement of the parties to protect management from personal liability in accordance with the principles set out in the limitation language set out in this Guarantee. In order to reflect, apply and to continue this principle, the parties agree to amend and clarity the limitation language as may be required to ensure that management benefits from the limitation language as initially intended (despite any current or future changes in law or legislation). Therefore, the parties agree that the Net Assets which are available for enforcement shall be calculated as of such date, as determined from time to time to be relevant to ensure that the liability of management is mitigated as envisaged pursuant to the limitation language.
(o) Notwithstanding anything to the contrary in this Supplemental Indenture, this Section 2.8 and any rights and/or obligations arising out of it shall be governed by, and construed in accordance with, German law.
SECTION 2.9 Limitation on Guarantee by Hong Kong Guarantors. Notwithstanding any other provisions to the contrary in this Supplemental Indenture and/or the Indenture, this Supplemental Indenture does not impose on the Hong Kong Guarantors any obligation or liability of the Guaranteeing Parties to the extent that it would result in such obligation or liability constituting unlawful financial assistance within the meaning of section 274 of the Companies Ordinance (Cap. 622 of the Laws of Hong Kong) or any equivalent and applicable provisions under the laws of Hong Kong.
SECTION 2.10 [Reserved].
SECTION 2.11 Limitation on Guarantee by Polish Guarantors. The obligations and liabilities of any Guaranteeing Party incorporated in Poland (a “Polish Guarantor”) under the Indenture shall, in all circumstances, not include any liability to the extent it would result in its insolvency in the meaning of article 11 section 2 of the Polish Bankruptcy Law of 28 February 2003 (Journal of Laws of 2015, item 233, as amended) (the “Polish Bankruptcy Law”) and shall be subject to all limitations set out in article 11 section 2-5 of the Polish Bankruptcy Law. The limitations stipulated in this Section 2.11 will not apply, if at least one of the following circumstances occurs:
(a) | obligations under the Indenture are declared immediately due and payable under Section 6.2 of the Indenture, irrespective of whether it occurred before or after the Polish Guarantor became insolvent within the meaning of article 11 section 2 of the Polish Bankruptcy Law; or |
(b) | liabilities of the Polish Guarantor (other than those under the Indenture) result in its insolvency within the meaning of article 11 section 2 of the Polish Bankruptcy Law. |
In addition, the obligations and liabilities of any Polish Guarantor incorporated as a limited liability company (spółka z ograniczoną odpowiedzialnością) under the Indenture shall be limited to the extent required to ensure that any payment under the Indenture does not result in a breach of article 189 of the Polish Commercial Companies Code (Journal of Laws of 2013, item 1030, as amended).
SECTION 2.12 Limitation on Guarantee by Spanish Guarantors. In addition to the limitations included in the Indenture, any and all obligations and liabilities of (i) a Guaranteeing Party that is incorporated in Spain (a “Spanish Guarantor”) and/or (ii) any Guaranteeing Party being a direct or indirect Subsidiary of a Spanish Guarantor under the Indenture shall not include any obligations and/or liabilities which, if incurred, would constitute unlawful financial assistance, as determined under any applicable laws.
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SECTION 2.13 Limitation on Guarantee by Swedish Guarantors. The obligations of Diversey Sverige AB (registered under number 556615-2525), being a Guaranteeing Party incorporated in Sweden (the “Swedish Guaranteeing Party”) under this Supplemental Indenture or any other Notes Document shall be limited if and as required by the provisions of the Swedish Companies Act (Sw. aktiebolagslagen (2005:551)) regulating unlawful distribution of assets and transfers of value (Chapter 17, sections 1-4 of the Swedish Companies Act (or their equivalents from time to time)), and it is understood that the liability of the Swedish Guaranteeing Party under this Supplemental Indenture or any other Notes Document (including, for the avoidance of doubt, any extension of this Supplemental Indenture or any other Notes Document) only applies (and is only valid) to the extent permitted by the foregoing provisions of the Swedish Companies Act. The limitations set forth in this paragraph shall also apply, mutatis mutandis, to any Lien created by the Swedish Guaranteeing Party under any Notes Document and to any guarantee, undertaking, indemnity or any similar obligation pursuant to or permitted by the Notes Documents and made by the Swedish Guaranteeing Party.
SECTION 2.14 Limitation on Guarantee by Swiss Guarantors. Notwithstanding anything to the contrary in the Indenture and this Supplemental Indenture, the obligations of any Guarantor organized or incorporated under the laws of Switzerland (each a “Swiss Guarantor”) and the rights of the Trustee and each holder under the Indenture and this Supplemental Indenture are subject to the following limitations:
(a) | If and to the extent a guarantee or security granted, indemnity or other obligation assumed by a Swiss Guarantor under the Indenture or this Supplemental Indenture guarantees or secures obligations of any of its (direct or indirect) parent companies (upstream guarantee) or sister companies (cross-stream guarantee) (the “Upstream or Cross-Stream Secured Obligations”) and if and to the extent using the proceeds from the enforcement of such guarantee, security, indemnity or other obligation to discharge the Upstream or Cross-Stream Secured Obligations would be unlawful under Swiss corporate law (inter alia, prohibiting capital repayments or violation of the legally protected reserves (gesetzlich geschützte Reserven)) at such time, the proceeds from the enforcement of such guarantee, security, indemnity or other obligation to be used to discharge the Upstream or Cross-Stream Secured Obligations shall be limited to the maximum amount of such Swiss Guarantor’s freely disposable shareholder equity at the time of enforcement (the “Maximum Amount”): provided that such limitation is required under the applicable Swiss corporate law at that time; provided, further, that such limitation shall not free that Swiss Guarantor from its obligations in excess of the Maximum Amount, but merely postpone the performance date of those obligations until such time or times as performance is again permitted under then applicable Swiss corporate law. This Maximum Amount of freely disposable shareholder equity shall be determined in accordance with Swiss law and applicable Swiss accounting principles. |
(b) | In respect of Upstream or Cross-Stream Secured Obligations, each Swiss Guarantor shall, as concerns the proceeds resulting from the enforcement of any guarantee or security granted or indemnity or other obligation assumed by such Swiss Guarantor under the Indenture and this Supplemental Indenture, if and to the extent required by applicable law in force at the relevant time: |
(i) | procure that such enforcement proceeds can be used to discharge Upstream or Cross-Stream Secured Obligations without deduction of the tax imposed based on the Swiss Federal Act on Withholding Tax of 13 October 1965 (Bundesgesetz über die Verrechnungssteuer), as amended (the “Swiss Withholding Tax”) by discharging the liability to such tax by notification pursuant to applicable law (including double tax treaties) rather than payment of the tax; |
(ii) | if the notification procedure pursuant to sub-paragraph (i) above does not apply, deduct the Swiss Withholding Tax at such rate (currently 35% at the date of this Supplemental Indenture) as is in force from time to time from any such enforcement proceeds used to discharge Upstream or Cross-Stream Secured Obligations, and pay, without delay, any such taxes deducted to the Swiss Federal Tax Administration; |
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(iii) | notify the Trustee that such notification or, as the case may be, deduction has been made, and provide the Trustee with evidence that such a notification of the Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration; and |
(iv) | in the case of a deduction of Swiss Withholding Tax, |
(A) | use its best efforts to ensure that any person, which is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such enforcement proceeds, will, as soon as possible after such deduction request a refund of the Swiss Withholding Tax under applicable law (including tax treaties), and pay to the Trustee upon receipt any amount so refunded; and |
(B) | if the Trustee or any holder is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment, and if requested by the Trustee or any such holder, shall provide to the Trustee or any such holder those documents that are required by law and applicable tax treaties to be provided by the payer of such tax to prepare a claim for refund of Swiss Withholding Tax. |
(c) | If a Swiss Guarantor is obliged to withhold Swiss Withholding Tax in accordance with paragraph (b) above, the Trustee and each holder shall be entitled to further enforce the guarantee or security granted or indemnity or other obligation assumed by such Swiss Guarantor under the Indenture and this Supplemental Indenture and/or further apply proceeds therefrom against Upstream or Cross-Stream Secured Obligations up to an amount which is equal to that amount which would have been obtained if no withholding of Swiss Withholding Tax were required, whereby such further enforcements/applications of proceeds shall always be limited to the Maximum Amount. |
(d) | If and to the extent requested by the Trustee or if and to the extent required under Swiss mandatory law applicable at the relevant time, in order to allow the Trustee and each holder to obtain a maximum benefit under the guarantee or security granted or indemnity or other obligation assumed by such Swiss Guarantor, such Swiss Guarantor shall, and any parent company of such Swiss Guarantor being a party to the Indenture or this Supplemental Indenture shall procure that such Swiss Guarantor will, promptly take and promptly cause to be taken any action, including the following: |
(i) | the passing of any shareholders’ resolutions to approve the use of the enforcement proceeds, which may be required as a matter of Swiss mandatory law in force at the time of the enforcement of the Upstream or Cross-Stream Secured Obligations in order to allow a prompt use of the enforcement proceeds; |
(ii) | preparation of up-to-date audited balance sheet of that Swiss Guarantor; |
(iii) | obtaining a statement of the auditors of that Swiss Guarantor confirming the Maximum Amount; |
(iv) | conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (to the extent permitted by mandatory Swiss law); |
(v) | revaluation of hidden reserves (to the extent permitted by mandatory Swiss law); |
(vi) | to the extent permitted by applicable law and Swiss accounting standards, write-up or realize any of its assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of realization, however, only if such assets are not necessary for that respective Swiss Guarantor’s business (nicht betriebsnotwendig); and |
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(vii) | all such other measures necessary or useful to allow the Trustee and each holder to use enforcement proceeds as agreed hereunder with a minimum of limitations. |
ARTICLE III
MISCELLANEOUS
SECTION 3.1 Notices. All notices and other communications to the Guaranteeing Parties shall be given as provided in the Indenture.
SECTION 3.2 Merger and Consolidation. Each Guaranteeing Party shall not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into, another Person (other than the Issuer or any Restricted Subsidiary that is a Guarantor or becomes a Guarantor concurrently with the transaction) except in accordance with Section 4.1(g) of the Indenture.
SECTION 3.3 Release of Guarantee. The Note Guarantees hereunder may be released in accordance with Section 10.2(c) of the Indenture.
SECTION 3.4 Parties. Nothing expressed or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of this Supplemental Indenture or the Indenture or any provision herein or therein contained.
SECTION 3.5 Governing Law. This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
SECTION 3.6 Severability. In case any provision in this 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.
SECTION 3.7 Benefits Acknowledged. Each Guaranteeing Party’s Note Guarantee is subject to the terms and conditions set forth in the Indenture. Each Guaranteeing Party acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and this Supplemental Indenture and that the guarantee and waivers made by it pursuant to its Note Guarantee are knowingly made in contemplation of such benefits.
SECTION 3.8 Ratification of Indenture: Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
SECTION 3.9 The Trustee. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture or with respect to the recitals contained herein, all of which recitals are made solely by the other parties hereto.
SECTION 3.10 Counterparts. The parties hereto 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. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or electronic transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or electronic transmission shall be deemed to be their original signatures for all purposes.
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SECTION 3.11 Execution and Delivery. Each Guaranteeing Party agrees that its Note Guarantee shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of any such Note Guarantee.
SECTION 3.12 Headings. The headings of the Articles and the Sections in this Supplemental Indenture are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
SECTION 3.13 Jurisdiction. The parties hereto agree that any suit, action or proceeding arising out of or based upon this Supplemental Indenture may be instituted in any state or Federal court in the Borough of Manhattan, New York, New York, and any appellate court from any thereof, and each party hereto irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding. The parties hereto irrevocably waive, to the fullest extent permitted by law, any objection to any suit, action, or proceeding that may be brought in connection with this Supplemental Indenture, including such actions, suits or proceedings relating to securities laws of the United States or any state thereof, in such courts whether on the grounds of venue, residence or domicile or on the ground that any such suit, action or proceeding has been brought in an inconvenient forum. The parties hereto agree that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon them, and may be enforced in any court to the jurisdiction of which they are subject by a suit upon such judgment.
Notwithstanding anything to the contrary contained herein, with respect to any suit, action or proceeding brought by any party to this Supplemental Indenture arising out of or based upon this Supplemental Indenture, which involves a Guaranteeing Party incorporated under the laws of Mexico, each party hereto hereby irrevocably and unconditionally (i) submits for itself and its property to the exclusive jurisdiction of any state or Federal court in the Borough of Manhattan, New York, New York, and any appellate court from any thereof; and (ii) waives its right to the jurisdiction of any other courts that it may be entitled to by virtue of its present or future domicile or for any other reason.
SECTION 3.14 WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE AND FOR ANY COUNTERCLAIM THEREIN.
[Signature pages follow]
11
Diamond (BC) B.V. | ||
By: | /s/ Terilyn Dumas | |
Name: | Terilyn Dumas | |
Title: | Director A |
By: | /s/ Herman Weber | |
Name: | Herman Weber | |
Title: | Director B |
[Signature Page to Supplemental Indenture]
SIGNED by | ) | |
) | ||
as attorney for DIVERSEY AUSTRALIA PTY. LIMITED under power of attorney dated 13 November 2017 in the presence of: |
)
) |
|
) | ||
) | ||
/s/ Kendy Ding | ) | /s/ C. Foster |
Signature of witness |
)
) |
By executing this document the attorney states that the attorney has received no notice of revocation of the power of attorney |
Kendy Ding | ) | |
Name of witness (block letters) | ) |
[Signature page to the Supplemental Indenture]
DIVERSEY AUSTRIA TRADING GMBH | ||
By: | /s/ Gerhard Perschy | |
Name: | Gerhard Perschy | |
Title: | Director |
[Signature Page to Supplemental Indenture]
Diversey Belgium BVBA | ||
By: | /s/ Michael James Chapman | |
Name: | Michael James Chapman | |
Title: | Authorised Signatory |
[Signature Page to Supplemental Indenture]
DIVERSEY BRASIL INDÚSTRIA QUÍMICA LTDA., as a New Foreign Guarantor | ||
By: | /s/ Milton Dias Bragança Neto | |
Name: Milton Dias Bragança Neto | ||
Title: Officer |
[Signature Page to Foreign Guarantee Supplement]
DIVERSEY CANADA, INC. | ||
By: | /s/ Terilyn Dumas | |
Name: | Terilyn Dumas | |
Title: | Secretary |
[Signature Page to Supplemental Indenture]
Diversey Danmark ApS | ||
By: | /s/ Jacob Storm | |
Name: | Jacob Storm | |
Title: | Company Director Diversey |
[Signature Page to Supplemental Indenture]
DIVERSEY (France) SAS | ||
By: | /s/ Eric VAUCHER | |
Name: | Eric VAUCHER | |
Title: | Président |
[Signature Page to Supplemental Indenture]
DIVERSEY DEUTSCHLAND GMBH & CO. OHG | |||
Represented by its partner Diversey Deutschland Management GmbH | |||
By: | /s/ Hans-Peter Müller | ||
Name: | Hans-Peter Müller | ||
Title:
|
Managing Director
(Geschäftsführer) |
[Signature Page to Supplemental Indenture]
Diversey Hong Kong Limited | ||
By: | /s/ Mei Hung Wong | |
Name: | Wong, Mei Hung | |
Title: | Director |
[Signature Page to Supplemental Indenture]
Diversey Europe B.V. | ||
By: | /s/ Herman Weber | |
Name: | Herman Weber | |
Title: | Director |
[Signature Page to Supplemental Indenture]
Diversey Europe Operations B.V. | ||
By: | /s/ Herman Weber | |
Name: | Herman Weber | |
Title: | Director | |
[Signature Page to Supplemental Indenture]
Diversey Holdings II B.V. | ||
By: | /s/ Herman Weber | |
Name: | Herman Weber | |
Title: | Director | |
[Signature Page to Supplemental Indenture]
Diversey B.V. | ||
By: | /s/ H. Toering | |
Name: | H. Toering | |
Title: | Director | |
[Signature Page to Supplemental Indenture]
DIVERSEY POLSKA SP. Z O.O. | ||
By: | /s/ Robert Kucinski | |
Name: | Robert Kucinski | |
Title: | Authorised Signatory |
DIVERSEY POLSKA SP. Z O.O. | ||
By: | /s/ Artur Mularski | |
Name: | Artur Mularski | |
Title: | Authorised Signatory |
[Signature Page to Supplemental Indenture]
DIVERSEY ESPAÑA, S.L. | ||
By: | /s/ Eva Palou Marrodán | |
Name: | Ms Eva Palou Marrodán | |
Title: | Attorney |
[Signature Page to Supplemental Indenture]
Diversey Sverige AB | |||
By: | /s/ Christian Forslund | ||
Name: | Christian Forslund | ||
Title: | Country Director |
[Signature Page to Supplemental Indenture]
DIVERSEY SWITZERLAND PRODUCTION GMBH | |||
By: | /s/ Christian Hane | ||
Name: | Christian Hane | ||
Title: | Manager |
[Signature Page to Supplemental Indenture]
Diversey Limited | |||
By: | /s/ Michael James Chapman | ||
Name: | Michael James Chapman | ||
Title: | Director |
[Signature Page to Supplemental Indenture]
BCPE DIAMOND MEXICO HOLDCO, S.DE R.L. DE C.V. | |||
By: | /s/ Jose Carlos Soto Vega | ||
Name: | Jose Carlos Soto Vega | ||
Title: | Attorney-in-fact |
[Signature Page to Supplemental Indenture]
WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee | |||
By: | /s/ Hallie E. Field | ||
Name: | Hallie E. Field | ||
Title: | Assistant Vice President |
[Signature Page to Supplemental Indenture]
Exhibit 5.1
Our ref SMC/779863-000001/65628648v2
Diversey Holdings, Ltd.
PO Box 309, Ugland House Grand Cayman, KY1-1104 Cayman Islands |
[ ] 2021
Diversey Holdings, Ltd.
We have acted as Cayman Islands counsel to the Diversey Holdings, Ltd. to provide this legal opinion in connection with the Company's registration statement on Form S-1, including all amendments or supplements thereto, filed with the United States Securities and Exchange Commission (the "Commission") under the United States Securities Act of 1933 (the "Act"), as amended (File No. 333-[ ]) (the "Registration Statement"), in respect of the proposed initial public offering (the "IPO") of the Company's [ ] ordinary shares, par value US$0.01 per share, in the capital of the Company (the "Ordinary Shares") including up to [ ] Ordinary Shares issuable upon exercise of an option granted by the Company (the "Option Shares" and together with the Ordinary Shares, the "Shares"). Such offering is being underwritten pursuant to an underwriting agreement (the "Underwriting Agreement") between the Company and Citigroup Global Markets Inc. and Morgan Stanley & Co. LLC, as representatives for the several underwriters named in Schedule I thereto (collectively, the "Underwriters").
This opinion letter is given in accordance with the terms of the Legal Matters section of the Registration Statement.
1 | Documents Reviewed |
We have reviewed originals, copies, drafts or conformed copies of the following documents:
1.1 | The Certificate of Incorporation dated 3 November 2020 and the Amended and Restated Memorandum and Articles of Association of the Company as registered or adopted on [ ] 2021 (the "Memorandum and Articles"). |
1.2 | The written resolutions of the board of directors of the Company dated [ ] 2021 (the "Resolutions") and the corporate records of the Company maintained at its registered office in the Cayman Islands. |
1.3 | A certificate of good standing with respect to the Company issued by the Registrar of Companies (the "Certificate of Good Standing"). |
1.4 | A certificate from a director of the Company a copy of which is attached to this opinion letter (the "Director's Certificate"). |
1.5 | The Registration Statement. |
1.6 | A draft of the underwriting agreement between the Company and the Representatives (the "Underwriting Agreement"). |
2 | Assumptions |
The following opinions are given only as to, and based on, circumstances and matters of fact existing and known to us on the date of this opinion letter. These opinions only relate to the laws of the Cayman Islands which are in force on the date of this opinion letter. In giving the following opinions, we have relied (without further verification) upon the completeness and accuracy of the Director's Certificate and the Certificate of Good Standing. We have also relied upon the following assumptions, which we have not independently verified:
2.1 | The Underwriting Agreement has been or will be authorised and duly executed and unconditionally delivered by or on behalf of all relevant parties in accordance with all relevant laws (other than, with respect to the Company, the laws of the Cayman Islands). |
2.2 | The Underwriting Agreement is, or will be, legal, valid, binding and enforceable against all relevant parties in accordance with its terms under the laws of the State of New York (the "Relevant Law") and all other relevant laws (other than, with respect to the Company, the laws of the Cayman Islands). |
2.3 | The choice of the Relevant Law as the governing law of the Underwriting Agreement has been made in good faith and would be regarded as a valid and binding selection which will be upheld by the courts of the State of New York and any other relevant jurisdiction (other than the Cayman Islands) as a matter of the Relevant Law and all other relevant laws (other than the laws of the Cayman Islands). |
2.4 | Copies of documents, conformed copies or drafts of documents provided to us are true and complete copies of, or in the final forms of, the originals, and translations of documents provided to us are complete and accurate. |
2.5 | All signatures, initials and seals are genuine. |
2.6 | No invitation has been or will be made by or on behalf of the Company to the public in the Cayman Islands to subscribe for any of the Shares. |
2.7 | There is no contractual or other prohibition (other than as arising under Cayman Islands law) binding on the Company prohibiting it from entering into and performing its obligations under the Underwriting Agreement or the Registration Statement. |
2.8 | No monies paid to or for the account of any party under the Underwriting Agreement or any property received or disposed of by any party to the Underwriting Agreement in each case in connection with the Underwriting Agreement or the consummation of the transactions contemplated thereby represent or will represent proceeds of criminal conduct or criminal property or terrorist property (as defined in the Proceeds of Crime Act (As Revised) and the Terrorism Act (As Revised), respectively). |
2 |
Save as aforesaid we have not been instructed to undertake and have not undertaken any further enquiry or due diligence in relation to the transaction the subject of this opinion letter.
3 | Opinions |
Based upon, and subject to, the foregoing assumptions and the qualifications set out below, and having regard to such legal considerations as we deem relevant, we are of the opinion that:
3.1 | The Company has been duly incorporated as an exempted company with limited liability and is validly existing and in good standing with the Registrar of Companies under the laws of the Cayman Islands. |
3.2 | The Shares to be offered and issued by the Company as contemplated by the Registration Statement have been duly authorised for issue, and when issued and paid for in the manner described in the Underwriting Agreement and the Registration Statement and in accordance with the resolutions adopted by the board of directors of the Company, such Shares will be legally issued, fully paid and non-assessable. As a matter of Cayman Islands law, a share is only issued when it has been entered in the register of members (shareholders). |
3.3 | The authorised share capital of the Company is US$[ ] divided into [ ] Ordinary Shares of a nominal or par value of US$[ ] each and [ ] Preferred Shares of a nominal or par value of US$[ ] each. |
4 | Qualifications |
The opinions expressed above are subject to the following qualifications:
4.1 | To maintain the Company in good standing with the Registrar of Companies under the laws of the Cayman Islands, annual filing fees must be paid and returns made to the Registrar of Companies within the time frame prescribed by law. |
4.2 | Under Cayman Islands law, the register of members (shareholders) is prima facie evidence of title to shares and this register would not record a third party interest in such shares. However, there are certain limited circumstances where an application may be made to a Cayman Islands court for a determination on whether the register of members reflects the correct legal position. Further, the Cayman Islands court has the power to order that the register of members maintained by a company should be rectified where it considers that the register of members does not reflect the correct legal position. As far as we are aware, such applications are rarely made in the Cayman Islands and there are no circumstances or matters of fact known to us on the date of this opinion letter which would properly form the basis for an application for an order for rectification of the register of members of the Company, but if such an application were made in respect of the Company's Shares, then the validity of such shares may be subject to re-examination by a Cayman Islands court. |
4.3 | Except as specifically stated herein, we make no comment with respect to any representations and warranties which may be made by or with respect to the Company in any of the documents or instruments cited in this opinion letter or otherwise with respect to the commercial terms of the transactions the subject of this opinion letter. |
4.4 | In this opinion letter, the phrase "non-assessable" means, with respect to shares in the Company, that a shareholder shall not, solely by virtue of its status as a shareholder, be liable for additional assessments or calls on the shares by the Company or its creditors (except in exceptional circumstances, such as involving fraud, the establishment of an agency relationship or an illegal or improper purpose or other circumstances in which a court may be prepared to pierce or lift the corporate veil). |
3 |
We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the references to our firm under the headings "Legal Matters" and "Material Differences in Corporate Law" in the prospectus included in the Registration Statement. In providing our consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the Rules and Regulations of the Commission thereunder.
This opinion letter is addressed to you and may be relied upon by you, your counsel and purchasers of Ordinary Shares pursuant to the Registration Statement. This opinion letter is limited to the matters detailed herein and is not to be read as an opinion with respect to any other matter.
Yours faithfully
Maples and Calder
4 |
Diversey Holdings, Ltd.
PO Box 309, Ugland House
Grand Cayman
KY1-1104
Cayman Islands
[ ] 2021
To: |
Maples and Calder
PO Box 309, Ugland House Grand Cayman KY1-1104 Cayman Islands |
Dear Sirs
Diversey Holdings, Ltd. (the "Company")
I, the undersigned, being a Director of the Company, am aware that you are being asked to provide an opinion letter (the "Opinion") in relation to certain aspects of Cayman Islands law. Unless otherwise defined herein, capitalised terms used in this certificate have the respective meanings given to them in the Opinion. I hereby certify that:
1 | The Memorandum and Articles remain in full force and effect and are unamended. |
2 | The Resolutions were duly passed in the manner prescribed in the Memorandum and Articles (including, without limitation, with respect to the disclosure of interests (if any) by directors of the Company) and have not been amended, varied or revoked in any respect. |
3 | The shareholders of the Company (the "Shareholders") have not restricted the powers of the directors of the Company in any way. |
4 | The directors of the Company at the date of the Meeting and at the date of this certificate were and are as follows: [ ]. |
5 | The authorised share capital of the Company is US$[ ] divided into [ ] Ordinary Shares of a nominal or par value of US$[ ] each and [ ] Preferred Shares of a nominal or par value of US$[ ] each. The issued share capital of the Company is [ ] Ordinary Shares of a par value of US$[ ] each, all of which have been issued as fully-paid and non-assessable. |
6 | The Company has received or will receive money or money's worth in consideration for the issue of its Ordinary Shares, and none of the Shares were or will be issued for less than their par value. |
7 | The minute book and corporate records of the Company as maintained at its registered office in the Cayman Islands and made available to you are complete and accurate in all material respects, and all minutes and resolutions filed therein represent a complete and accurate record of all meetings of the shareholders and directors (or any committee thereof) (duly convened in accordance with the then effective Articles of Association) and all resolutions passed at the meetings, or passed by written resolution or consent, as the case may be. |
5 |
8 | The Company has not entered into any mortgages or charges over its property or assets other than those entered in the register of mortgages and charges, or contemplated by the Underwriting Agreement, the Registration Statement, the Time of Sale Prospectus or the Prospectus. |
9 | The Underwriting Agreement has been duly executed and unconditionally delivered by a director or an officer of the Company for and on behalf of the Company. |
10 | Prior to, at the time of, and immediately following the execution of the Underwriting Agreement, the Company was, or will be, able to pay its debts as they fell, or fall, due and has entered, or will enter, into the Underwriting Agreement for proper value and not with an intention to defraud or wilfully defeat an obligation owed to any creditor or with a view to giving a creditor a preference. |
11 | Each director of the Company considers the transactions contemplated by the Underwriting Agreement to be of commercial benefit to the Company and has acted in good faith in the best interests of the Company, and for a proper purpose of the Company, in relation to the transactions which are the subject of the Opinion. |
12 | The Company is not subject to the requirements of Part XVIIA of the Companies Act. |
13 | To the best of my knowledge and belief, having made due inquiry, the Company is not the subject of legal, arbitral, administrative or other proceedings in any jurisdiction. Nor have the directors or Shareholders taken any steps to have the Company struck off or placed in liquidation, nor have any steps been taken to wind up the Company. Nor has any receiver been appointed over any of the Company's property or assets. |
14 | The Company is not a sovereign entity of any state and is not a subsidiary, direct or indirect of any sovereign entity or state. |
6 |
I confirm that you may continue to rely on this certificate as being true and correct on the day that you issue the Opinion unless I shall have previously notified you in writing personally to the contrary.
Signature: | ||
Name: | ||
Title: | Director |
7 |
Exhibit 10.1
Execution Version
CREDIT AGREEMENT
Dated as of September 6, 2017
By and among
BCPE DIAMOND NETHERLANDS TOPCO, B.V.,
as Holdings,
DIAMOND (BC) B.V.,
as the Borrower,
The several Lenders
from time to time parties hereto,
and
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,
as the Administrative Agent, the Collateral Agent, a Letter of Credit Issuer
and a Lender,
and
CREDIT SUISSE SECURITIES (USA) LLC,
GOLDMAN SACHS BANK USA,
BANK OF AMERICA, N.A.,
BARCLAYS BANK PLC,
CITIGROUP GLOBAL MARKETS INC.,
ROYAL BANK OF CANADA,
HSBC BANK USA, N.A.,
SUNTRUST ROBINSON HUMPHREY, INC.
AND
JEFFERIES FINANCE LLC,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
Page
SECTION 1 Definitions | 2 | |
1.1 | Defined Terms | 2 |
1.2 | Other Interpretive Provisions | 78 |
1.3 | Accounting Terms | 79 |
1.4 | Rounding | 79 |
1.5 | References to Agreements Laws, Etc. | 79 |
1.6 | Exchange Rates | 79 |
1.7 | Rates | 80 |
1.8 | Times of Day | 80 |
1.9 | Timing of Payment or Performance | 80 |
1.10 | Certifications | 81 |
1.11 | Compliance with Certain Sections | 81 |
1.12 | Pro Forma and Other Calculations | 81 |
1.13 | Letter of Credit Amounts | 83 |
SECTION 2 Amount and Terms of Credit | 83 | |
2.1 | Commitments | 83 |
2.2 | Minimum Amount of Each Borrowing; Maximum Number of Borrowings | 84 |
2.3 | Notices of Borrowing | 84 |
2.4 | Disbursement of Funds | 85 |
2.5 | Repayment of Loans; Evidence of Debt | 86 |
2.6 | Conversions and Continuations | 87 |
2.7 | Pro Rata Borrowings | 88 |
2.8 | Interest | 88 |
2.9 | Interest Periods | 89 |
2.10 | Increased Costs, Illegality, Etc. | 90 |
2.11 | Compensation | 91 |
2.12 | Change of Lending Office | 91 |
2.13 | Notice of Certain Costs | 92 |
2.14 | Incremental Facilities; Extensions; Refinancing Facilities | 92 |
2.15 | Permitted Debt Exchanges | 103 |
2.16 | Defaulting Lenders | 104 |
SECTION 3 Letters of Credit | 105 | |
3.1 | Letters of Credit | 105 |
3.2 | Letter of Credit Requests | 107 |
3.3 | Letter of Credit Participations | 108 |
3.4 | Agreement to Repay Letter of Credit Drawings | 110 |
3.5 | Increased Costs | 111 |
3.6 | New or Successor Letter of Credit Issuer | 112 |
3.7 | Role of Letter of Credit Issuer | 113 |
3.8 | Cash Collateral | 113 |
3.9 | Governing Law; Applicability of ISP and UCP | 114 |
3.10 | Conflict with Issuer Documents | 114 |
3.11 | Letters of Credit Issued for the Borrower or Subsidiaries | 114 |
3.12 | Provisions Related to Extended Revolving Credit Commitments | 114 |
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Page
SECTION 4 Fees and Commitment Reductions | 115 | |
4.1 | Fees | 115 |
4.2 | Voluntary Reduction or Termination of Revolving Commitments | 116 |
4.3 | Mandatory Termination of Commitments | 116 |
SECTION 5 Payments | 117 | |
5.1 | Voluntary Prepayments | 117 |
5.2 | Mandatory Prepayments | 118 |
5.3 | Method and Place of Payment | 121 |
5.4 | Net Payments | 121 |
5.5 | Computations of Interest and Fees | 125 |
5.6 | Limit on Rate of Interest | 125 |
SECTION 6 Conditions Precedent to Initial Borrowing | 126 | |
6.1 | Conditions Precedent | 126 |
SECTION 7 Conditions Precedent to All Credit Events after the Closing Date | 129 | |
7.1 | No Default; Representations and Warranties | 129 |
7.2 | Notice of Borrowing; Letter of Credit Request | 129 |
SECTION 8 Representations and Warranties | 129 | |
8.1 | Corporate Status | 130 |
8.2 | Corporate Power and Authority | 130 |
8.3 | No Violation | 130 |
8.4 | Litigation | 130 |
8.5 | Margin Regulations | 130 |
8.6 | Governmental Approvals | 130 |
8.7 | Investment Company Act | 131 |
8.8 | True and Complete Disclosure | 131 |
8.9 | Financial Condition; Financial Statements | 131 |
8.10 | Compliance with Laws | 131 |
8.11 | Tax Matters | 131 |
8.12 | Compliance with ERISA | 132 |
8.13 | Subsidiaries | 132 |
8.14 | Intellectual Property | 132 |
8.15 | Environmental Laws | 132 |
8.16 | Properties | 132 |
8.17 | Solvency | 133 |
8.18 | Patriot Act; Anti-Terrorism Laws | 133 |
8.19 | Security Interest in Collateral | 133 |
8.20 | Anti-Terrorism / Anti-Corruption Laws | 133 |
8.21 | Use of Proceeds | 134 |
8.22 | Labor Matters | 134 |
-ii-
Page
SECTION 9 Affirmative Covenants | 134 | |
9.1 | Information Covenants | 134 |
9.2 | Books, Records, and Inspections | 137 |
9.3 | Maintenance of Insurance | 137 |
9.4 | Payment of Taxes | 138 |
9.5 | Preservation of Existence; Consolidated Corporate Franchises | 138 |
9.6 | Compliance with Statutes, Regulations, Etc. | 138 |
9.7 | Designation of Unrestricted Subsidiaries | 138 |
9.8 | Maintenance of Properties | 139 |
9.9 | Changes to Fiscal Year | 139 |
9.10 | Affiliate Transactions | 139 |
9.11 | Additional Guarantors and Grantors | 141 |
9.12 | Pledge of Additional Stock and Evidence of Indebtedness | 142 |
9.13 | Use of Proceeds | 143 |
9.14 | Further Assurances | 143 |
9.15 | Maintenance of Ratings | 145 |
9.16 | Lines of Business | 145 |
SECTION 10 Negative Covenants | 145 | |
10.1 | Limitation on Indebtedness | 145 |
10.2 | Limitation on Liens | 151 |
10.3 | Limitation on Fundamental Changes | 151 |
10.4 | Limitation on Sale of Assets | 153 |
10.5 | Limitation on Restricted Payments | 154 |
10.6 | Limitation on Subsidiary Distributions | 161 |
10.7 | Organizational and Subordinated Indebtedness Documents | 163 |
10.8 | Permitted Activities | 164 |
10.9 | First Lien Net Leverage Ratio | 164 |
SECTION 11 Events of Default | 164 | |
11.1 | Payments | 164 |
11.2 | Representations, Etc. | 164 |
11.3 | Covenants | 165 |
11.4 | Default Under Other Agreements | 165 |
11.5 | Bankruptcy, Etc. | 166 |
11.6 | ERISA | 166 |
11.7 | Guarantee | 166 |
11.8 | Pledge Agreements | 166 |
11.9 | Security Agreement | 167 |
11.10 | Judgments | 167 |
11.11 | Change of Control | 167 |
11.12 | Remedies Upon Event of Default | 167 |
11.13 | Application of Proceeds | 168 |
11.14 | Equity Cure | 168 |
SECTION 12 The Agents | 169 | |
12.1 | Appointment | 169 |
12.2 | Delegation of Duties | 173 |
12.3 | Exculpatory Provisions | 173 |
12.4 | Reliance by Agents | 173 |
12.5 | Notice of Default | 174 |
12.6 | Non-Reliance on Administrative Agent, Collateral Agent, and Other Lenders | 174 |
12.7 | Indemnification | 175 |
12.8 | Agents in Their Individual Capacities | 175 |
12.9 | Successor Agents | 175 |
12.10 | Withholding Tax | 177 |
12.11 | Agents Under Security Documents and Guarantees | 177 |
12.12 | Right to Realize on Collateral and Enforce Guarantee | 178 |
12.13 | Intercreditor Agreements Govern | 178 |
12.14 | Parallel Debt | 178 |
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Page
SECTION 13 Miscellaneous | 180 | |
13.1 | Amendments, Waivers, and Releases | 180 |
13.2 | Notices | 183 |
13.3 | No Waiver; Cumulative Remedies | 184 |
13.4 | Survival of Representations and Warranties | 184 |
13.5 | Payment of Expenses; Indemnification | 184 |
13.6 | Limitation on Swiss guarantee | 186 |
13.7 | Successors and Assigns; Participations and Assignments | 188 |
13.8 | Replacements of Lenders Under Certain Circumstances | 193 |
13.9 | Adjustments; Set-off | 194 |
13.10 | Counterparts | 195 |
13.11 | Severability | 195 |
13.12 | Integration | 195 |
13.13 | GOVERNING LAW | 195 |
13.14 | Submission to Jurisdiction; Waivers | 195 |
13.15 | Acknowledgments | 196 |
13.16 | WAIVERS OF JURY TRIAL | 196 |
13.17 | Confidentiality | 197 |
13.18 | Direct Website Communications | 197 |
13.19 | USA PATRIOT Act | 199 |
13.20 | Payments Set Aside | 199 |
13.21 | No Fiduciary Duty | 199 |
13.22 | Judgment Currency | 200 |
13.23 | Special Provisions Relating to Currencies Other Than Dollars | 200 |
13.24 | Acknowledgement and Consent to Bail-In of EEA Financial Institutions | 200 |
-iv-
SCHEDULES
Schedule 1.1(a) | Real Properties |
Schedule 1.1(b) | Commitments of Lenders |
Schedule 1.1(c) | Disposition Assets |
Schedule 1.1(e) | Specified Excluded Subsidiaries |
Schedule 1.1(f) | Agreed Security Principles |
Schedule 2.1 | Existing Letters of Credit |
Schedule 6.1(a)(v) | Closing Date Security Documents |
Schedule 8.4 | Litigation |
Schedule 8.13 | Subsidiaries |
Schedule 8.15 | Environmental |
Schedule 9.10 | Closing Date Affiliate Transactions |
Schedule 9.14 | Post-Closing Actions |
Schedule 10.1 | Closing Date Indebtedness |
Schedule 10.2 | Closing Date Liens |
Schedule 10.3 | Closing Date Fundamental Changes |
Schedule 10.5 | Closing Date Investments |
Schedule 13.2 | Notice Addresses |
EXHIBITS
Exhibit A-1 | Junior Lien Intercreditor Agreement |
Exhibit A-2 | Pari Intercreditor Agreement |
Exhibit B-1 | Assignment and Acceptance (Non-Affiliated Lender) |
Exhibit B-2 | Assignment and Acceptance (Affiliated Lender) |
Exhibit C | U.S. Guarantee |
Exhibit D | Intercompany Note |
Exhibit E | Joinder Agreement |
Exhibit F | Letter of Credit Request |
Exhibit G | U.S. Pledge Agreement |
Exhibit H | U.S. Security Agreement |
Exhibit I-1 | Promissory Note (Term Loans) |
Exhibit I-2 | Promissory Note (Revolving Loans) |
Exhibit J | Notice of Borrowing or Notice of Conversion or Continuation |
Exhibit K-1 to K-4 | Non-Bank Tax Certificates |
Exhibit L | Closing Date Certificate |
-v-
CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of September 6, 2017, by and among BCPE DIAMOND NETHERLANDS TOPCO B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under laws of the Netherlands, having its statutory seat in Amsterdam, the Netherlands, registered office at Strawinskylaan 1209, Toren A, 12th floor, 1077XX Amsterdam, the Netherlands and registered under number 68636059 (“Holdings”), DIAMOND (BC) B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under laws of the Netherlands, having its statutory seat in Amsterdam, the Netherlands, registered office at Strawinskylaan 1209, Toren A, 12th floor, 1077XX Amsterdam, the Netherlands and registered under number 68305133 (the “Borrower”), the lending institutions from time to time parties hereto as lenders (each, a “Lender” and, collectively, the “Lenders”), and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as the Administrative Agent, the Collateral Agent, a Letter of Credit Issuer and a Lender (such terms and each other capitalized term used but not defined in this preamble or the recitals below having the meaning provided in Section 1.1).
WHEREAS, in connection with that certain Purchase Agreement, dated as of March 25, 2017 (such Purchase Agreement, as amended, restated, amended and restated, supplemented, waived or otherwise modified from time to time, the “Acquisition Agreement”), by and between the Borrower and Sealed Air Corporation, a Delaware corporation, the Borrower will acquire certain assets and equity interests of certain companies comprising the “Diversey Business” (collectively, “Diversey”);
WHEREAS, in connection with the foregoing, (i) the Borrower has requested that the Lenders extend credit in the form of (a) Initial USD Term Loans to the Borrower on the Closing Date, in an aggregate principal amount of $900,000,000, (b) Initial Euro Term Loans to the Borrower on the Closing Date, in an aggregate principal amount of €970,000,000, and (c) Revolving Credit Loans made available to the Borrower at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date in an aggregate principal amount at any time outstanding not in excess of $250,000,000 less the aggregate Letters of Credit Outstanding at such time and (ii) the Borrower has requested the initial Letter of Credit Issuer to issue Letters of Credit at any time and from time to time on and after the Closing Date and prior to the L/C Facility Maturity Date, in an aggregate Stated Amount at any time outstanding not in excess of $50,000,000;
WHEREAS, in connection with the foregoing, on the Closing Date, the Borrower will issue the Senior Notes;
WHEREAS, in connection with the foregoing, on or prior to the Closing Date, the Sponsor, together with any additional co-investors arranged or designated by the Sponsor, will make an equity investment (the “Investor Equity Investment”) in Borrower or a direct or indirect parent thereof (which equity investment, (x) if made in a direct or indirect parent of Borrower, will be contributed to Borrower and (y) if other than common equity, will be on terms reasonably acceptable to the Lead Arrangers (it being understood and agreed that such equity investment may include any “paid-in-kind” investment (on terms reasonably acceptable to the Lead Arrangers) made by Sponsor in any direct or indirect parent of the Borrower (and to the extent not otherwise applied, further directly or indirectly contributed as common equity to the Borrower)) in an aggregate amount (when combined with any equity in Borrower or a direct or indirect parent thereof received by management of Diversey and by other existing equity holders of Diversey in connection with the Acquisition (the “Management Co-Invest” and, such Management Co-Invest together with the Investor Equity Investment, the “Equity Contribution”)) that is not less than 25% of the sum (the “Capitalization Amount”) of (i) the aggregate gross proceeds of the Loans to be borrowed on the Closing Date (excluding, in each case, amounts drawn under the Revolving Credit Facility on the Closing Date for working capital purposes (including to fund any working capital payments or purchase price adjustments under the Acquisition Agreement and to repay amounts outstanding under any existing revolving credit facility of Diversey or to backstop or cash collateralize existing letters of credit)), plus (ii) the aggregate gross proceeds of the Senior Notes to be issued and/or the aggregate gross proceeds to be received from the Loans, as applicable, on or prior to the Closing Date (excluding, in each case, the aggregate gross proceeds to be received from the Senior Notes to fund original issue discount or upfront fees in connection with the issuance of the Senior Notes), plus (iii) the amount of the Equity Contribution, minus (iv) the aggregate amount of cash on hand at Diversey and its Subsidiaries on the Closing Date (after giving effect to the incurrence of the Loans and the Senior Notes), minus (iv) €55,000,000; provided that immediately after giving effect to the Transactions on the Closing Date, the Sponsor shall directly or indirectly own a majority of the voting equity interests in Diversey.
WHEREAS, the Borrower shall use the proceeds of the Initial Term Loans, together with the proceeds of the Senior Notes and certain proceeds of Revolving Credit Loans, if any, to (i) effect the Acquisition, (ii) pay the Transaction Expenses, and (iii) in the case of the Revolving Credit Loans, fund working capital and general corporate purposes of the Borrower or any Restricted Subsidiary; and
WHEREAS, the Lenders and the Letter of Credit Issuer are willing to make available to the Borrower the term loan, revolving credit and letter of credit facilities described herein upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained herein, the parties hereto hereby agree as follows:
SECTION 1
Definitions
1.1 Defined Terms. As used herein, the following terms shall have the meanings specified in this Section 1.1 unless the context otherwise requires (it being understood that defined terms in this Agreement shall include in the singular number the plural and in the plural the singular):
“ABR” shall mean for any day a fluctuating rate per annum equal to the highest of (i) the Federal Funds Effective Rate for such day plus 1/2 of 1%, (ii) the Prime Rate and (iii) the rate per annum determined in the definition of Eurocurrency Rate with respect to Loans denominated in Dollars (determined as if the relevant ABR Borrowing were a Eurocurrency Borrowing) plus 1.00%. Any change in the ABR due to a change in the Federal Funds Effective Rate, the Prime Rate or the Eurocurrency Rate shall be effective on the effective date of such change in the Federal Funds Effective Rate, the Prime Rate or the Eurocurrency Rate, respectively.
“ABR Loan” shall mean each Loan bearing interest based on the ABR.
“Acquired Indebtedness” shall mean, with respect to any specified Person, (i) Indebtedness of any other Person existing at the time such other Person is merged, consolidated, or amalgamated with or into or became a Restricted Subsidiary of such specified Person, including Indebtedness incurred in connection with, or in contemplation of, such other Person merging, consolidating, or amalgamating with or into or becoming a Restricted Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.
“Acquisition” shall mean the transactions contemplated by the Acquisition Agreement.
“Acquisition Agreement” shall have the meaning provided in the recitals to this Agreement.
“Additional Lender” shall mean any Person (other than a natural Person) that is not an existing Lender and that has agreed to provide Refinancing Commitments pursuant to Section 2.14(h) (including any Affiliated Lender).
“Additional Revolving Credit Commitments” shall have the meaning provided in Section 2.14(a).
“Additional Revolving Credit Loan” shall have the meaning provided in Section 2.14(b).
“Additional Revolving Loan Lender” shall have the meaning provided in Section 2.14(b).
“Administrative Agent” shall mean Credit Suisse AG, Cayman Islands Branch, as the administrative agent for the Lenders under this Agreement and the other Credit Documents, or any successor administrative agent pursuant to Section 12.9.
-2-
“Administrative Agent’s Office” shall mean the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 13.2, or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.
“Administrative Questionnaire” shall have the meaning provided in Section 13.7(b)(ii)(D).
“Affiliate” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with such Person. A Person shall be deemed to control another Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other Person, whether through the ownership of voting securities or by contract.
“Affiliated Lender” shall mean a Lender that is the Sponsor or any Affiliate thereof (other than Holdings, the Borrower, any other Subsidiary of Holdings, or any Bona Fide Debt Fund).
“Agent Parties” shall have the meaning provided in Section 13.18(b).
“Agents” shall mean the Administrative Agent, the Collateral Agent and the Joint Lead Arrangers and Joint Bookrunners.
“Agreed Security Principles” shall mean the agreed security principles set forth in Schedule 1.1(f).
“Agreement” shall mean this Credit Agreement, as amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms hereof.
“Agreement Currency” shall have the meaning provided in Section 13.22.
“AHYDO Payment” shall mean any mandatory prepayment or redemption pursuant to the terms of any Indebtedness that is intended or designed to cause such Indebtedness not to be treated as an “applicable high yield discount obligation” within the meaning of Code Section 163(i).
“Alternative Currency” shall mean (a) Canadian Dollars, Euros, Pounds Sterling, Japanese Yen, Australian Dollars and (b) with respect to any Incremental Loans (and Incremental Revolving Credit Loans made pursuant thereto), any currency that may be agreed among the Borrower and all applicable Lenders providing such Loans and Commitments.
“Applicable Indebtedness” shall have the meaning provided in the definition of Weighted Average Life to Maturity.
“Applicable Margin” shall mean a percentage per annum equal to:
(i) until delivery of financial statements and a related Compliance Certificate for the first full fiscal quarter of the Borrower ending after the Closing Date pursuant to Section 9.1(a) or (b), as applicable, (1) for Initial USD Term Loans (A) that are Eurocurrency Loans, 3.00%, or (B) that are ABR Loans, 2.00%, and (2) for Initial Euro Term Loans that are Eurocurrency Loans, 3.25%; and
(ii) thereafter, the percentages per annum set forth in the table below, based upon the Total Net Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 9.1(d):
Total Net
Leverage |
Initial USD Term Loans | Initial Euro | ||||||||||||
Pricing Level | Ratio | Eurocurrency Loans | ABR Loans | Term Loans | ||||||||||
I | > 4.75 to 1.00 | 3.00 | % | 2.00 | % | 3.25 | % | |||||||
II | < 4.75 to 1.00 | 2.75 | % | 1.75 | % | 3.00 | % |
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(ii) for Revolving Credit Loans:
(a) until delivery of financial statements and a related Compliance Certificate for the first full fiscal quarter of the Borrower ending after the Closing Date pursuant to Section 9.1, (1) for Eurocurrency Loans that are Revolving Credit Loans, 2.50%, (2) for ABR Loans that are Revolving Credit Loans, 1.50%, and
(b) thereafter, the percentages per annum set forth in the table below, based upon the First Lien Net Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 9.1(d):
Pricing
Level |
First Lien Net
Leverage Ratio |
ABR Revolving Credit
Loans |
Eurocurrency Rate
Revolving Credit Loans |
|||||||
I | > 4.25 to 1.00 | 1.50 | % | 2.50 | % | |||||
II |
≤ 4.25 to 1.00 but >
3.75 to 1.00 |
1.375 | % | 2.375 | % | |||||
III | ≤ 3.75 to 1.00 | 1.25 | % | 2.25 | % |
Any increase or decrease in the Applicable Margin for Revolving Credit Loans resulting from a change in the First Lien Net Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 9.1(d).
Notwithstanding the foregoing, (a) the Applicable Margin in respect of any Class of Extended Term Loans or Extended Revolving Credit Loans made pursuant to any Extended Revolving Credit Commitments shall be the applicable percentages per annum set forth in the relevant Extension Amendment, (b) the Applicable Margin in respect of any Class of New Term Loans or any Class of Incremental Revolving Credit Loans made pursuant to any Incremental Revolving Credit Commitments shall be the applicable percentages per annum set forth in the relevant amendment agreement, (c) the Applicable Margin in respect of any Class of Replacement Term Loans shall be the applicable percentages per annum set forth in the relevant amendment agreement, (d) the Applicable Margin in respect of any Class of Refinancing Term Loans or Refinancing Revolving Credit Loans made pursuant to any Refinancing Revolving Credit Commitments shall be the applicable percentages per annum set forth in the relevant Refinancing Amendment, and (e) in the case of the Initial Term Loans, the Applicable Margin shall be increased as, and to the extent, necessary to comply with the provisions of Section 2.14.
In addition, at the option of the Required Revolving Credit Lenders in respect of the Revolving Credit Facility, at any time during which the Borrower shall have failed to deliver any of the Section 9.1 Financials by the applicable date required under Section 9.1, then the First Lien Net Leverage Ratio shall be deemed to be in Pricing Level I for the purposes of determining the Applicable Margin in respect of the Revolving Credit Loans (but only for so long as such failure continues, after which such ratio and Pricing Level shall be determined based on the then existing First Lien Net Leverage Ratio).
“Approved Foreign Bank” shall have the meaning provided in clause (x) of the definition of “Cash Equivalents”.
“Approved Fund” shall mean any Fund that is administered or managed by (i) a Lender, (ii) an Affiliate of a Lender, or (iii) an entity or an Affiliate of an entity that administers, advises or manages a Lender.
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“Asset Sale” shall mean:
(i) the sale, conveyance, transfer, or other disposition, whether in a single transaction or a series of related transactions, of property or assets (including by way of a Sale Leaseback) (each, a “disposition”) of the Borrower or any Restricted Subsidiary, or
(ii) the issuance or sale of Equity Interests of any Restricted Subsidiary (other than preferred Capital Stock of Restricted Subsidiaries issued in compliance with Section 10.1), whether in a single transaction or a series of related transactions,
in each case under the foregoing clauses (i) and (ii), other than:
(a) (x) (i) any disposition of Cash Equivalents or Investment Grade Securities or (ii) (A) obsolete, negligible, worn out, surplus or immaterial property or (B) other property (including any leasehold property interest) that is no longer (I) economically practical in its business, (II) commercially desirable to maintain or (III) used or useful in its business, (y) any disposition in the ordinary course of business of goods, inventory, or other assets and (z) any disposition of immaterial assets;
(b) (i) the incurrence of Liens that are permitted to be incurred pursuant to Section 10.2 (ii) transactions permitted by Section 10.3 or (iii) the making of any Restricted Payment or Permitted Investment, that is permitted to be made, and is made, pursuant to Section 10.5;
(c) any disposition of assets or any issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of related transactions with an aggregate Fair Market Value of less than the greater of (x) $50,000,000 and (y) 13.0% of Consolidated EBITDA (calculated on a Pro Forma Basis) for the most recently ended Test Period at the time of such disposition or issuance or sale, as applicable;
(d) any disposition of property or assets or issuance of securities (1) by a Restricted Subsidiary to the Borrower or (2) by the Borrower or a Restricted Subsidiary to a Restricted Subsidiary;
(e) to the extent allowable under Section 1031 of the Code, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(f) any issuance, sale or pledge of Equity Interests in, or Indebtedness, or other securities of, an Unrestricted Subsidiary;
(g) foreclosures, condemnation, expropriation or any similar action on assets or casualty or insured damage to assets;
(h) any disposition or discount of Receivables Assets in connection with any Receivables Facility and any disposition or discount of Securitization Assets in connection with any Qualified Securitization Financing;
(i) any financing transaction with respect to property built or acquired by the Borrower or any Restricted Subsidiary after the Closing Date, including Sale Leasebacks and asset securitizations permitted by this Agreement;
(j) the Borrower and any Restricted Subsidiary may (i) terminate or otherwise collapse its cost sharing agreements with the Borrower or any Subsidiary and settle any crossing payments in connection therewith, (ii) convert any intercompany Indebtedness to Equity Interests or any Equity Interests to intercompany Indebtedness, (iii) transfer any intercompany Indebtedness to the Borrower or any Restricted Subsidiary, (iv) settle, discount, write off, forgive or cancel any intercompany Indebtedness or other obligation owing by the Borrower or any Restricted Subsidiary, (v) settle, discount, write off, forgive or cancel any Indebtedness owing by any present or former consultants, managers, directors, officers or employees of Holdings, the Borrower, any direct or indirect parent thereof, or any Subsidiary thereof or any of their successors or assigns or (vi) surrender or waive contractual rights and settle or waive contractual or litigation claims (or other dispositions of assets in connection therewith);
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(k) the disposition or discount of inventory, accounts receivable, or notes receivable in the ordinary course of business or the conversion of accounts receivable to notes receivable;
(l) (i) the sale, licensing, assignment, sub-licensing or other disposition of Intellectual Property or other general intangibles in the ordinary course of business, (ii) the sale, assignment, licensing, sub-licensing or other disposition of Intellectual Property or other general intangibles pursuant to any Intercompany License Agreement, and (iii) the statutory expiration of any Intellectual Property;
(m) the execution of (or amendment to), settlement of, or unwinding of any Hedging Obligations or obligations in respect of Cash Management Services;
(n) any sale, transfer, and other disposition of Investments in joint ventures (or dispositions to joint ventures) to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(o) the lapse or abandonment of Intellectual Property rights, which, in the reasonable business judgment of the Borrower, are not material to the conduct of the business of the Borrower and the Restricted Subsidiaries taken as a whole;
(p) the issuance of directors’ qualifying shares and shares issued to foreign nationals as required by applicable law;
(q) any disposition of property to the extent that (1) such property is exchanged for credit against the purchase price of similar replacement property (excluding any boot thereon) that is purchased within 270 days thereof or (2) the proceeds of such disposition are promptly applied to the purchase price of such replacement property (which replacement property is actually purchased within 270 days thereof);
(r) (i) leases, assignments, subleases, licenses, sublicenses, covenants not to sue, releases, consents and other forms of license (and terminations thereof), in each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and the Restricted Subsidiaries, taken as a whole and (ii) Intercompany License Agreements;
(s) any disposition of non-core assets acquired in connection with any Permitted Acquisition or Investment permitted hereunder, or dispositions required to obtain anti-trust approval of a Permitted Acquisition or other Investment permitted hereunder;
(t) any disposition of assets that do not constitute Collateral with a Fair Market Value not to exceed the greater of (i) $50,000,000 and (ii) 13.0% of Consolidated EBITDA (calculated on a Pro Forma Basis) for the most recently ended Test Period at the time of such disposition or issuance or sale, as applicable, in the aggregate in any fiscal year of the Borrower;
(u) any disposition of any assets that are set forth on Schedule 1.1(c) or to consummate the Transactions;
(v) any sale, transfer and other disposition of accounts receivable (including write-offs, discounts and compromises) in connection with the compromise, settlement or collection thereof;
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(w) any swap of assets in exchange for services or other assets in the ordinary course of business of comparable or greater Fair Market Value or usefulness to the business of the Borrower and the Restricted Subsidiaries, taken as a whole, as determined in good faith by the Borrower;
(x) any disposition in connection with a Permitted Reorganization or a Qualifying IPO;
(y) any disposition required to be made by a Governmental Authority;
(z) dispositions in connection with any cash pooling arrangement;
(aa) samples provided to customers or prospective customers;
(bb) de minimis amounts of equipment provided to employees; and
(cc) any swap of assets in exchange for services or other assets in the ordinary course of business of comparable or greater fair market value of usefulness to the business of the Borrower and its Restricted Subsidiaries as a whole, as determined in good faith by the Borrower.
“Asset Sale Prepayment Event” shall mean any Asset Sale made pursuant to the provisions of Section 10.4 outside the ordinary course of business; provided, that with respect to any Asset Sale Prepayment Event, the Borrower shall not be obligated to make any prepayment otherwise required by Section 5.2 unless and until the aggregate amount of Net Cash Proceeds from all such Asset Sale Prepayment Events, after giving effect to the reinvestment rights set forth herein, exceeds the greater of (a) $25,000,000 and (b) 6.5% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such Asset Sale (the “Prepayment Trigger”) in any fiscal year of the Borrower, at which time all such Net Cash Proceeds for such fiscal year (excluding amounts below the Prepayment Trigger) shall be applied in accordance with Section 5.2.
“Assignment and Acceptance” shall mean (i) an assignment and acceptance entered into by a Lender and an assignee that is not an Affiliated Lender (with the consent of any party whose consent is required by Section 13.7), in the form of Exhibit B-1 or any other form approved by the Administrative Agent and the Borrower, (ii) an assignment and assumption entered into by a Lender and an assignee that is an Affiliated Lender (with the consent of any party whose consent is required by Section 13.7), in the form of Exhibit B-2 or any other form approved by the Administrative Agent and the Borrower and (iii) in the case of any assignment of Term Loans in connection with a Permitted Debt Exchange conducted in accordance with Section 2.15, such form of assignment (if any) as may be agreed by the Administrative Agent and the Borrower in accordance with Section 2.15(a).
“Auction Agent” shall mean (i) the Administrative Agent or (ii) any other financial institution or advisor employed by Holdings, the Borrower or any Subsidiary thereof (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Permitted Debt Exchange pursuant to Section 2.15 or Dutch auction pursuant to Section 13.7(h); provided that the Borrower shall not designate the Administrative Agent as the Auction Agent without the written consent of the Administrative Agent (it being understood that the Administrative Agent shall be under no obligation to agree to act as the Auction Agent).
“Australian Dollars” shall mean the lawful currency of Australia.
“Authorized Officer” shall mean, with respect to any Person, any individual holding the position of chairman of the board (if an officer of such Person), the Chief Executive Officer, the President, the Chief Financial Officer, the Treasurer, the Controller, the General Counsel, a Senior Vice President, an Executive Vice President, a Vice President or other similar officer or agent with express authority to act on behalf of such Person and, with respect to certain limited liability companies or partnerships that do not have officers, any manager, sole member, managing member, director or general partner thereof, and, as to any document delivered on the Closing Date or thereafter, any director, secretary or assistant secretary of a Credit Party or any equivalent of the foregoing in any relevant jurisdiction.
“Auto-Extension Letter of Credit” shall have the meaning provided in Section 3.2(d).
“Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
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“Bail-In Legislation” shall mean, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“Bain” shall mean Bain Capital Private Equity, L.P.
“Bank Levy” shall mean any amount payable by any recipient or any of its Affiliates on the basis of, or in relation to, its balance sheet or capital base or any part of that person or its liabilities or minimum regulatory capital or any combination thereof, including, without limitation, the Dutch bankenbelasting as set out in the bank levy act (Wet bankenbelasting) and any other levy or tax of a similar nature or for a similar purpose which has been enacted or which has been formally announced as proposed as at the date of this Agreement.
“Bank Product Agreement” shall mean any agreement or arrangement to provide Bank Products described in the definition thereof.
“Bank Product Provider” shall mean (i) any Person that, at the time it enters into a Bank Product Agreement, is an Agent or a Lender or an Affiliate or branch of an Agent or a Lender, (ii) with respect to any Bank Product Agreement entered into prior to the Closing Date, any Person that is an Agent or a Lender or an Affiliate or branch of an Agent or a Lender on the Closing Date or (iii) any other Person as may be designated by the Borrower in writing to the Administrative Agent prior to the Closing Date; provided that, if such Person is not an Agent or a Lender, such Person executes and delivers to the Administrative Agent and the Borrower a letter agreement in form and substance reasonably acceptable to the Administrative Agent and the Borrower pursuant to which such Person (a) appoints the Administrative Agent as its agent under the applicable Credit Documents and (b) agrees to be bound by the provisions of Sections 11, 12, 13, 15 and 26 of the U.S. Pledge Agreement and Sections 5.4, 5.5, 5.7, 6.5, 7 and 8.1 of the U.S. Security Agreement, in each case, as if it were a Lender.
“Bank Products” shall mean, collectively, any services or facilities (other than Cash Management Services or any Borrowing under this Agreement) on account of (i) credit and debit cards, including, without limitation, “commercial credit cards” and (ii) purchase cards, stored value cards and other card payment products.
“Bankruptcy Code” shall have the meaning provided in Section 11.5.
“BBSY” shall mean, in relation to any Loan denominated in Australian Dollars:
(a) the applicable Screen Rate;
(b) (if no Screen Rate is available for Australian Dollars or the Interest Period for that Loan) the Interpolated Rate for that Loan; or
(c) if:
(i) no Screen Rate is available for Australian Dollars or the Interest Period for that Loan; and
(ii) it is not possible to calculate the Interpolated Rate for that Loan, the Reference Bank Rate,
as of, in the case of paragraphs (a) and (c) above, 10:30 a.m. (Melbourne, Australia time) on such day and, if such day is not a Business Day, then on the immediately preceding Business Day, for Australian Dollars and for a period equal in length to the Interest Period of that Loan.
“Benefited Lender” shall have the meaning provided in Section 13.9(a).
“BFEA EURIBOR” shall have the meaning provided in the definition of “EURIBO Rate.”
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“Board” shall mean the Board of Governors of the Federal Reserve System of the United States (or any successor).
“Bona Fide Debt Fund” shall mean any debt fund or other Person that is engaged in, or advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course and whose managers have fiduciary duties to the third-party investors in such fund or investment vehicle independent of their duties to Holdings or Bain; provided, however, in no event shall (x) any natural Person or (y) Holdings, the Borrower or any Subsidiary thereof be a “Bona Fide Debt Fund.”
“Borrower” shall have the meaning provided in the preamble to this Agreement.
“Borrower Materials” shall have the meaning provided in Section 13.18(b).
“Borrowing” shall mean Loans of the same Class and Type, made, converted, or continued on the same date and, in the case of Eurocurrency Loans, as to which a single Interest Period is in effect.
“Broker-Dealer Subsidiary” shall mean any Subsidiary that is registered as a broker-dealer under the Exchange Act or any other applicable law requiring similar registration.
“Business Day” shall mean (a) for all purposes other than as covered by clauses (b), (c) and (d) below, any day that is not a Saturday, Sunday or other day on which commercial banks in New York City and Amsterdam are authorized or required by law to remain closed, (b) if such day relates to any fundings, disbursements, settlements or payments in connection with a Loan or Letter of Credit denominated in Dollars, any day described in clause (a) that is also a day for trading by and between banks in Dollar deposits in the London interbank currency markets, (c) if such day relates to any fundings, disbursements, settlements or payments in connection with a Loan or Letter of Credit denominated in Euros, any day described in clauses (a) and (b) that is also a day on which the Trans-European Automated Real Time Gross Settlement Express Transfer (TARGET) payment system is open for the settlement of payment in Euros, and (d) if such day relates to any fundings, disbursements, settlements or payments in connection with a Loan or Letter of Credit denominated in a currency other than Dollars or Euros, means any such day on which banks are open for foreign exchange business in the principal financial center of the country of such currency.
“Canadian Dollars” shall mean the lawful currency of Canada.
“Capital Expenditures” shall mean, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under Capital Leases) by the Borrower and the Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as additions during such period to property, plant, or equipment reflected in the consolidated balance sheet of the Borrower and the Restricted Subsidiaries (including capitalized software expenditures, capitalized expenditures relating to license and intellectual property payments, customer acquisition costs and incentive payments, conversion costs, and contract acquisition costs).
“Capital Lease” shall mean, as applied to any Person, any lease of any property (whether real, personal, or mixed) by that Person as lessee that, in conformity with GAAP, is, or is required to be, accounted for as a capital lease on the balance sheet of that Person; provided that all leases of any Person that are or would be characterized as operating leases in accordance with GAAP immediately prior to the Closing Date (whether or not such operating leases were in effect on such date) shall continue to be accounted for as operating leases (and not as Capital Leases) for purposes of this Agreement regardless of any change in GAAP following the Closing Date that would otherwise require such leases to be recharacterized as Capital Leases.
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“Capital Stock” shall mean (i) in the case of a corporation, corporate stock, (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 (it being understood and agreed, for the avoidance of doubt, that “cash-settled phantom appreciation programs” in connection with employee benefits that do not require a dividend or distribution shall not constitute Capital Stock).
“Capitalization Amount” shall have the meaning provided in the recitals to this Agreement.
“Capitalized Lease Obligation” shall mean, at the time any determination thereof is to be made, the amount of the liability in respect of a Capital Lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP; provided that all obligations of any Person that are or would be characterized as operating lease obligations in accordance with GAAP immediately prior to the Closing Date (whether or not such operating lease obligations were in effect on such date) shall continue to be accounted for as operating lease obligations (and not as Capitalized Lease Obligations) for purposes of this Agreement regardless of any change in GAAP following the Closing Date that would otherwise require such obligations to be recharacterized as Capitalized Lease Obligations.
“Captive Insurance Subsidiary” shall mean a Subsidiary of the Borrower established for the purpose of, and to be engaged solely in the business of, insuring the businesses or facilities owned or operated by the Borrower or any of its Subsidiaries or joint ventures or to insure related or unrelated businesses.
“Cash Collateralize” shall mean to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more Letter of Credit Issuers or Lenders, as collateral for L/C Obligations or obligations of the Lenders to fund participations in respect of L/C Obligations, cash, deposit account balances, or certificates of deposit, or, if the Administrative Agent and the applicable Letter of Credit Issuer shall agree in their reasonable discretion, other credit support or reimbursement agreements. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
“Cash Equivalents” shall mean:
(i) Dollars,
(ii) (a) Euros, Pounds Sterling, Canadian Dollars, or any national currency of any Participating Member State in the European Union, (b) Japanese Yen, (c) Australian Dollars or (d) local currencies held from time to time in the ordinary course of business,
(iii) securities issued or directly and fully and unconditionally guaranteed or insured by the United States government, Canada or any country that is a member state of the European Union or any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a full faith and credit obligation of such government with maturities of 24 months or less from the date of acquisition,
(iv) certificates of deposit, time deposits, and eurodollar time deposits with maturities of one year or less from the date of acquisition, demand deposits, bankers’ acceptances with maturities not exceeding one year, and overnight bank deposits, in each case with any commercial bank having capital and surplus of not less than $250,000,000 in the case of U.S. banks and $100,000,000 (or the equivalent thereof as of the date of determination) in the case of non-U.S. banks,
(v) repurchase obligations for underlying securities of the types described in clauses (iii) and (iv) above and clause (ix) below entered into with any financial institution meeting the qualifications specified in clause (iv) above,
(vi) commercial paper rated at least P-2 (or the equivalent thereof) by Moody’s or at least A-2 (or the equivalent thereof) by S&P and in each case maturing within 24 months after the date of creation thereof,
(vii) marketable short-term money market and similar securities having a rating of at least P-2 or A-2 (or, in either case, the equivalent thereof) from either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized ratings agency) and in each case maturing within 24 months after the date of creation or acquisition thereof,
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(viii) readily marketable direct obligations issued by any state, commonwealth, or territory of the United States, Canada, the European Union or any political subdivision or taxing authority of the foregoing having one of the two highest rating categories obtainable from either Moody’s or S&P with maturities of 24 months or less from the date of acquisition,
(ix) Indebtedness or preferred Capital Stock issued by Persons with a rating of “A” (or the equivalent thereof) or higher from S&P or “A2” (or the equivalent thereof) or higher from Moody’s with maturities of 24 months or less from the date of acquisition,
(x) solely with respect to any Foreign Subsidiary: (a) obligations of the national government of the country in which such Foreign Subsidiary maintains its chief executive office and principal place of business provided such country is a member of the Organization for Economic Cooperation and Development, in each case maturing within one year after the date of investment therein, (b) certificates of deposit of, bankers acceptances of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in which such Foreign Subsidiary maintains its chief executive office and principal place of business provided such country is a member of the Organization for Economic Cooperation and Development, and whose short-term commercial paper rating from S&P is at least “A-2” or the equivalent thereof or from Moody’s is at least “P-2” or the equivalent thereof (any such bank being an “Approved Foreign Bank”), and in each case with maturities of not more than 24 months from the date of acquisition, and (c) the equivalent of demand deposit accounts which are maintained with an Approved Foreign Bank, in each case, customarily used by entities for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by such Foreign Subsidiary organized in such jurisdiction,
(xi) instruments and investments of the type and maturity described in clause (i) through (x) above denominated in any foreign currency or of foreign obligors, which investments or obligors are, in the reasonable judgment of the Borrower, comparable in investment quality to those referred to above, and
(xii) investment funds investing all or substantially all of their assets in securities of the types described in clauses (i) through (ix) above.
Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (i) and (ii) above; provided that such amounts are converted into any currency listed in clauses (i) and (ii) as promptly as practicable and in any event within fifteen (15) Business Days following the receipt of such amounts.
“Cash Management Agreement” shall mean any agreement or arrangement to provide Cash Management Services.
“Cash Management Bank” shall mean (i) any Person that, at the time it enters into a Cash Management Agreement, is an Agent or a Lender or an Affiliate or branch of an Agent or a Lender, (ii) with respect to any Cash Management Agreement entered into prior to the Closing Date, any Person that is an Agent or a Lender or an Affiliate or branch of an Agent or a Lender on the Closing Date or (iii) any other Person as may be designated by the Borrower in writing to the Administrative Agent prior to the Closing Date; provided that, if such Person is not an Agent or a Lender, such Person executes and delivers to the Administrative Agent and the Borrower a letter agreement in form and substance reasonably acceptable to the Administrative Agent and the Borrower pursuant to which such Person (a) appoints the Administrative Agent as its agent under the applicable Credit Documents and (b) agrees to be bound by the provisions of Sections 11, 12, 13, 15 and 26 of the U.S. Pledge Agreement and Sections 5.4, 5.5, 5.7, 6.5, 7 and 8.1 of the U.S. Security Agreement, in each case, as if it were a Lender.
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“Cash Management Services” shall mean any one or more of the following types of services or facilities: (a) ACH transactions, (b) treasury and/or cash management services, including, controlled disbursement services, depository, overdraft and electronic funds transfer services, (c) foreign exchange facilities, (d) deposit and other accounts, and (e) merchant services (other than those constituting a line of credit). For the avoidance of doubt, Cash Management Services do not include Hedging Obligations.
“Casualty Event” shall mean, with respect to any property of any Person, any loss of or damage to, or any condemnation or other taking by a Governmental Authority of, such property for which such Person or any of its Restricted Subsidiaries receives insurance proceeds or proceeds of a condemnation award in respect of any equipment, fixed assets, or real property (including any improvements thereon) to replace or repair such equipment, fixed assets, or real property; provided, further, that with respect to any Casualty Event, the Borrower shall not be obligated to make any prepayment otherwise required by Section 5.2 unless and until the aggregate amount of Net Cash Proceeds from all such Casualty Events, after giving effect to the reinvestment rights set forth herein, exceeds the greater of (a) $25,000,000 and (b) 6.5% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such Casualty Event (the “Casualty Prepayment Trigger”) in the aggregate in any fiscal year of the Borrower, at which time all such Net Cash Proceeds in such fiscal year (excluding amounts below the Casualty Prepayment Trigger) shall be applied in accordance with Section 5.2.
“Casualty Prepayment Trigger” shall have the meaning provided in the definition of “Casualty Event.”
“CDOR Rate” shall mean, for the relevant Interest Period, the Canadian deposit offered rate which, in turn means on any day the sum of 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 on the “Reuters Screen CDOR Page” as defined in the 2006 International Swap Dealer Association, Inc. definitions, as modified and amended from time to time, as of 10:00 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 10:00 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 if such rates are not available on the Reuters Screen CDOR Page on any particular day, then the Canadian deposit offered rate component of such rate on that day shall be calculated as the cost of funds quoted by the Administrative Agent to raise Canadian dollars for the applicable Interest Period as of 10:00 a.m. Toronto local time on such day for commercial loans or other extensions of credit to businesses of comparable credit risk; or if such day is not a Business Day, then as quoted by the Administrative Agent on the immediately preceding Business Day.
“CFC” shall mean a Subsidiary of U.S. Newco that is a “controlled foreign corporation” within the meaning of Section 957 of the Code.
“CFC Holding Company” shall mean a Domestic Subsidiary of U.S. Newco that has no material assets other than equity interests (including, for this purpose, any debt or other instrument treated as equity for U.S. federal income tax purposes) and/or Indebtedness of one or more Foreign Subsidiaries of U.S. Newco that are CFCs, provided that, for the avoidance of doubt, a subsidiary that would otherwise qualify as a CFC Holding Company will not fail to qualify as a CFC Holding Company due to the temporary receipt of cash payments in respect of its equity interests or Indebtedness in a CFC so long as such subsidiary promptly distributes such cash.
“Change in Law” shall mean (i) the adoption of any law, treaty, order, policy, rule, or regulation after the Closing Date, (ii) any change in any law, treaty, order, policy, rule, or regulation or in the interpretation or application thereof by any Governmental Authority after the Closing Date or (iii) compliance by any Lender with any guideline, request, directive, or order issued or made after the Closing Date by any central bank or other Governmental Authority or quasi-Governmental Authority (whether or not having the force of law), including, for avoidance of doubt any such adoption, change or compliance in respect of (a) 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 (b) all requests, rules, guidelines, requirements, or 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 pursuant to Basel III, in each case regardless of the date adopted, issued, promulgated or implemented.
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“Change of Control” shall mean and be deemed to have occurred if, at any time after the Acquisition,
(a) at any time:
(i) prior to the consummation of a Qualifying IPO, the Permitted Holders shall at any time not own, in the aggregate, directly or indirectly, beneficially, at least 50% of the aggregate voting power of the outstanding Voting Stock of Holdings, or
(ii) upon and after the consummation of a Qualifying IPO, (1) any Person (other than a Permitted Holder) or (2) Persons (other than one or more Permitted Holders) constituting a “group” (as such term is used in Section 13(d) and Section 14(d) of the Exchange Act) but excluding any employee benefit plan of such Person or “group” and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan, becomes the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of Voting Stock representing more than 50% of the aggregate voting power of the outstanding Voting Stock of Holdings and the percentage of aggregate voting power so held is greater than the percentage of the aggregate voting power represented by the Voting Stock of Holdings beneficially owned, directly or indirectly, in the aggregate by the Permitted Holders, unless, in the case of clause (a)(i) or this clause (a)(ii) of this definition of “Change of Control,” the Permitted Holders have, at such time, the right or the ability by voting power, contract, or otherwise to elect or designate for election at least a majority of the board of directors (or analogous governing body) of Holdings;
(b) at any time prior to consummation of a Qualifying IPO, Holdings (or New Holdings) shall cease to beneficially own, directly or indirectly, 100% of the issued and outstanding Capital Stock of the Borrower; or
(c) the occurrence of a “Change of Control” as defined in the Senior Notes Indenture to the extent such Indebtedness is in excess of the greater of (x) $50,000,000 and (y) 13.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis).
Notwithstanding the preceding or any provision of Rule 13d-3 of the Exchange Act (or any successor provision), a Person or group shall not be deemed to beneficially own securities subject to an equity or asset purchase agreement, merger agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the transactions contemplated by such agreement.
“Class” (i) when used in reference to any Loan or Borrowing, shall refer to whether such Loan, or the Loans comprising such Borrowing, are Revolving Credit Loans, Additional Revolving Credit Loans, Refinancing Revolving Credit Loans (of the same series), Initial USD Term Loans, Initial Euro Term Loans, New Term Loans (of each Series), Extended Term Loans (of the same Extension Series), Replacement Term Loans (of the same Replacement Series), Extended Revolving Credit Loans (of the same Extension Series) or Refinancing Term Loans (of the same Refinancing Series) and, (ii) when used in reference to any Commitment, refers to whether such Commitment is an Initial Revolving Credit Commitment, a Revolving Credit Commitment, an Incremental Revolving Credit Commitment (of the same Series), an Extended Revolving Credit Commitment (of the same Extension Series), a Refinancing Revolving Credit Commitment (of the same Refinancing Series), an Initial USD Term Loan Commitment, an Initial Euro Term Loan Commitment, a New Term Loan Commitment (of the same Series), a Replacement Term Loan Commitment (of the same Replacement Series), a commitment in respect of any Extended Term Loan (of the same Extension Series) or a Refinancing Term Loan Commitment (of the same Refinancing Series).
“Closing Date” shall mean September 6, 2017.
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“Closing Releases” shall mean the release of (i) all liens, security interests, pledges, mortgages and other encumbrances securing the outstanding indebtedness under (x) that certain Second Amended and Restated Syndicated Facility Agreement, dated as of July 25, 2015, by and among Sealed Air Corporation, the other borrowers party thereto, Bank of America, N.A., and the lenders party thereto from time to time (as amended, restated, supplemented and/or modified from time to time, the “Existing Credit Agreement”) and (y) (I) that certain Indenture, dated as of July 1, 2003, between Sealed Air Corporation and SunTrust Bank, as Trustee, pursuant to which the 6.875% Senior Notes due 2033 were issued, (II) that certain Indenture, dated as of November 28, 2012, by and among Sealed Air Corporation, the subsidiary guarantors named herein and U.S. Bank National Association, as Trustee, pursuant to which the 6.50% Senior Notes due 2020 were issued, (III) that certain Indenture, dated as of March 21, 2013, by and among Sealed Air Corporation, the subsidiary guarantors named therein and U.S. Bank National Association, as Trustee, pursuant to which the 5.25% Senior Notes due 2023 were issued, (IV) that certain Indenture, dated as of November 24, 2014, by and among Sealed Air Corporation, the subsidiary guarantors named therein, and Branch Banking and Trust Company, as Trustee, pursuant to which the 4.875% Senior Notes due 2022 and the 5.125% Senior Notes due 2024 were issued and (V) that certain Indenture, dated as of June 16, 2015, by and among Sealed Air Corporation, the subsidiary guarantors named therein, and U.S. Bank National Association, as Trustee, pursuant to which the 5.50% Senior Notes due 2025 and the 4.50% Senior Notes due 2023 were issued (the Indentures described in the foregoing clause (y), collectively, as amended, restated, supplemented and/or modified from time to time, the “Existing Indentures”) in favor of the lenders and noteholders thereunder by or in the Sealed Air Corporation and its subsidiaries constituting “Diversey Shares” and “Diversey Assets” (each as defined in the Acquisition Agreement), (ii) that certain Third Amended and Restated Receivables Purchase Agreement, dated as of September 30, 2015, among Sealed Air Funding Corporation, Sealed Air Corporation (US), Atlantic Asset Securitization LLC, as an issuer, Credit Agricole Corporate and Investment Bank, as a committed purchaser, managing agent, and administrative agent, Nieuw Amsterdam Receivables Corporation B.V., as an issuer, and Coöperatieve Rabobank U.A., as managing agent and a committed purchaser (as subsequently amended, supplemented, or modified) (the “Receivables Purchase Agreement”) and (iii) all guarantees of the Transferred Diversey Companies (as defined in the Acquisition Agreement) or with respect to the Diversey Assets (as defined in the Acquisition Agreement) under the Existing Credit Agreements, the Receivables Purchase Agreement and the Existing Indentures).
“Code” shall mean the Internal Revenue Code of 1986, as amended.
“Collateral” shall mean all property and interests in property and proceeds thereof pledged or mortgaged or purported to be pledged or mortgaged pursuant to the Security Documents, excluding in all events, for the avoidance of doubt, Excluded Property and Excluded Stock and Stock Equivalents.
“Collateral Agent” shall mean Credit Suisse AG, Cayman Islands Branch, as collateral agent under the Security Documents, or any successor collateral agent pursuant to Section 12.9 and any Affiliate or designee of Credit Suisse AG, Cayman Islands Branch that acts as the Collateral Agent under any Security Document.
“Commitments” shall mean, with respect to each Lender (to the extent applicable), such Lender’s Revolving Credit Commitment, New Revolving Credit Commitment, Extended Revolving Credit Commitment, Additional Revolving Credit Commitment, Refinancing Revolving Credit Commitment, Initial Term Loan Commitment, New Term Loan Commitment, Replacement Term Loan Commitment, Refinancing Term Loan Commitment, or commitment in respect of Extended Term Loans.
“Commodity Exchange Act” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et seq.).
“Communications” shall have the meaning provided in Section 13.18.
“Compliance Certificate” shall mean a certificate of an Authorized Officer of the Borrower delivered pursuant to Section 9.1(d) for the applicable Test Period.
“Compliance Trigger” shall mean the sum of (i) the aggregate principal amount of all Revolving Credit Loans then outstanding (but excluding, for the first four full fiscal quarters ending after the Closing Date, Revolving Credit Loans drawn on the Closing Date to pay Transaction Expenses and to fund original issue discount) and (ii) the Letters of Credit Outstanding (excluding the Stated Amount of undrawn or Cash Collateralized Letters of Credit) on the last day of the fiscal quarter exceeds 35% of the amount of the aggregate outstanding Revolving Credit Commitments; provided that notwithstanding the foregoing, no Compliance Trigger shall be in effect prior to the date by which Section 9.1 Financials in respect of the period ending March 31, 2018 are required to be delivered pursuant hereto.
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“Confidential Information” shall have the meaning provided in Section 13.17.
“Confidential Information Memorandum” shall mean the Confidential Information Memorandum of the Borrower dated July, 2017.
“Consolidated Depreciation and Amortization Expense” shall mean with respect to any Person for any period, the total amount of depreciation and amortization expense, including the amortization of deferred financing fees or costs, debt issuance costs, commissions, fees, and expenses, Capitalized Expenditures, amortization of expenditures relating to software, license and intellectual property payments, amortization of any lease related assets recorded in purchase accounting, customer acquisition costs, unrecognized prior service costs and actuarial gains and losses related to pensions and other post-employment benefits, the amortization of original issue discount resulting from the issuance of Indebtedness at less than par and incentive payments, conversion costs, and contract acquisition costs of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.
“Consolidated EBITDA” shall mean, with respect to any Person for any period, the Consolidated Net Income of such Person and its Restricted Subsidiaries for such period:
(i) increased by (without duplication):
(a) (i) provision for taxes based on income or profits or capital including, without limitation, U.S. federal, state, non-U.S., franchise, and similar taxes and foreign withholding taxes of such Person and its Restricted Subsidiaries paid or accrued during such period, including any penalties and interest related to such taxes or arising from any tax examinations, deducted (and not added back) in computing Consolidated Net Income and (ii) an amount equal to the amount of tax distributions actually made to the holders of Capital Stock of such Person in respect of such period in accordance with Sections 10.5(b)(15)(A) and (B) which shall be included as though such amounts had been paid as income taxes directly by such Person, plus
(b) Consolidated Interest Expense of such Person and its Restricted Subsidiaries for such period (including (1) net payments and losses on Hedging Obligations or other derivative instruments entered into for the purpose of hedging interest rate risk and (2) costs of surety bonds in connection with financing activities, in each case, to the extent included in Consolidated Interest Expense), together with items excluded from the definition of Consolidated Interest Expense and any non-cash interest expense, to the extent the same were deducted (and not added back) in calculating such Consolidated Net Income, plus
(c) Consolidated Depreciation and Amortization Expense of such Person and its Restricted Subsidiaries for such period to the extent the same were deducted in computing Consolidated Net Income, plus
(d) any non-cash increase in expenses resulting from the revaluation of inventory (including any impact of changes to inventory valuation policy methods including changes in capitalization of variances) or other inventory adjustments, plus
(e) any other non-cash charges, expenses or losses, including any non-cash expense relating to the vesting of warrants, non-cash contributions or accruals to or with respect to pension plans, deferred profit sharing or compensation plans, non-cash asset retirement costs, non-cash compensation charges and non-cash translation (gain) loss and any write offs, write downs, expenses, losses, or items to the extent the same were deducted (and not added back) in computing Consolidated Net Income (provided that if any such non-cash charges represent an accrual or reserve for potential cash items in any future period, (1) the Borrower may determine not to add back such non-cash charge in the current period and (2) to the extent the Borrower does decide to add back such non-cash charge, the cash payment in respect thereof in such future period shall be deducted from Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period), plus
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(f) the amount of any minority interest expense consisting of Subsidiary income attributable to minority equity interests of third parties in any non-Wholly-Owned Subsidiary deducted (and not added back) in such period in calculating Consolidated Net Income, plus
(g) the amount of management, monitoring, consulting, advisory and other fees (including termination and transaction fees) and indemnities and expenses paid or accrued in such period to the Sponsor or any of its Affiliates, plus
(h) costs of surety bonds incurred in such period in connection with financing activities, plus
(i) the amount of “run-rate” cost savings, operating expense reductions and other operating changes, improvements and initiatives, and synergies (including, to the extent applicable, from the Transactions or the effect of any increased pricing in customer contracts) (without duplication of any amounts added back pursuant to Section 1.12(c) in connection with Specified Transactions operating expense reductions, and other operating changes, improvements and initiatives) that are projected by the 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 24 months of the determination to take such action, net of the amount of actual benefits realized prior to or during such period from such actions (which cost savings, operating expense reductions, and synergies shall be calculated on a pro forma basis as though such cost savings, operating expense reductions and other operating changes, improvements and initiatives, or synergies had been realized on the first day of such period); provided that an Authorized Officer of the Borrower shall have certified to the Administrative Agent that such cost savings are reasonably identifiable and factually supportable and it is understood and agreed that “run-rate” means the full recurring benefit for a period that is associated with any action either taken or with respect to which substantial steps have been taken or are expected to be taken within 24 months of the determination to take such action, plus
(j) the amount of loss or discount on sale of (x) Receivables Assets and related assets in connection with a Receivables Facility and (y) Securitization Assets and related assets in connection with a Qualified Securitization Financing, plus
(k) any costs, expenses or charges incurred by the Borrower or any Restricted Subsidiary pursuant to any management equity plan or equity option plan or any other management or employee benefit plan or agreement or any equity subscription or equityholder agreement, to the extent that such cost or expenses are funded with cash proceeds contributed to the capital of the Borrower or net cash proceeds of an issuance of Equity Interests of the Borrower (or any direct or indirect parent company thereof) (other than Disqualified Stock) solely to the extent that such net cash proceeds are excluded from the calculation set forth in clause (iii) of Section 10.5(a) and have not been relied on for purposes of any incurrence of Indebtedness pursuant to clause (l)(i) of Section 10.1, plus
(l) the amount of costs, charges and expenses relating to payments made to option holders of any direct or indirect parent of the Borrower in connection with, or as a result of, any distribution being made to equityholders of such Person, which payments are being made to compensate such option holders as though they were equityholders at the time of, and entitled to share in, such distribution, in each case whether or not permitted under this Agreement, plus
(m) with respect to any joint venture that is not a Restricted Subsidiary, an amount equal to the proportion of those items described in clauses (a), (b) and (c) above relating to such joint venture corresponding to the Borrower’s and the Restricted Subsidiaries’ proportionate share of such joint venture’s Consolidated Net Income (determined as if such joint venture were a Restricted Subsidiary), plus
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(n) costs associated with, or in anticipation of, or preparation for, compliance with the requirements of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith or other enhanced accounting functions and Public Company Costs, plus
(o) cash receipts (or any netting arrangements resulting in reduced cash expenses) not included in Consolidated EBITDA in any period solely to the extent that the corresponding non-cash gains relating to such receipts were deducted in the calculation of Consolidated EBITDA pursuant to paragraph (ii) below for any previous period and not added back, plus
(p) payments by the Borrower and the Restricted Subsidiaries paid or accrued during such period in respect of purchase price holdbacks, earn outs and other contingent obligations and long-term liabilities of the Borrower and the Restricted Subsidiaries other than Indebtedness (including, without limitation, purchase price holdbacks, earn outs and similar obligations), plus
(q) the net amount, if any, of the difference between (to the extent the amount in the following clause (i) exceeds the amount in the following clause (ii)): (i) the deferred revenue of such Person and its Restricted Subsidiaries as of the last day of such period (the “Determination Date”) and (ii) the deferred revenue of such Person and its Restricted Subsidiaries as of the date that is 12 months prior to the Determination Date, plus
(r) letter of credit fees, plus
(s) any net loss from disposed, abandoned, transferred, closed or discontinued operations (excluding held for sale discontinued operations until actually disposed of); plus
(t) the aggregate amount of any premium, make whole or penalty payments actually paid in cash by the Borrower and the Restricted Subsidiaries during such period that are required to be made in connection with any prepayment of Senior Notes or any other Indebtedness, to the extent the same were deducted (and not added back) in calculating such Consolidated Net Income; plus
(u) any costs, expenses or charges in connection with the any transactions related to the reorganization of the Borrower’s European operations to function under a centralized management and value chain model), to the extent the same were deducted (and not added back) in calculating such Consolidated Net Income; plus
(v) the amount of any noncash foreign currency losses (or gains) attributable to intercompany loans, accounts receivable and accounts payable, to the extent the same were deducted (and not added back) in calculating such Consolidated Net Income;
and
(ii) decreased by (without duplication):
(a) non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges that reduced Consolidated EBITDA in any prior period; provided that, to the extent non-cash gains are deducted pursuant to this clause (ii)(a) for any previous period and not otherwise added back to Consolidated EBITDA, Consolidated EBITDA shall be increased by the amount of any cash receipts (or any netting arrangements resulting in reduced cash expenses) in respect of such non-cash gains received in subsequent periods to the extent not already included therein, plus
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(b) any net income from disposed, abandoned, transferred, closed or discontinued operations (excluding held for sale discontinued operations until actually disposed of); plus
(c) the amount of gain on sale of (x) Receivables Assets and related assets in connection with a Receivables Facility and (y) Securitization Assets and related assets in connection with a Qualified Securitization Financing.
For the avoidance of doubt: (i) to the extent included in Consolidated Net Income, there shall be excluded in determining Consolidated EBITDA for any period any adjustments resulting from the application of ASC 815 and its related pronouncements and interpretations, or the equivalent accounting standard under GAAP or an alternative basis of accounting applied in lieu of GAAP, (ii) to the extent any add-backs or deductions are reflected in the calculation of Consolidated Net Income, such add-backs and deductions shall not be duplicated in determining Consolidated EBITDA and (iii) Consolidated EBITDA shall be calculated, including pro forma adjustments, in accordance with Section 1.12.
In addition, to the extent not already included in the Consolidated EBITDA of such Person and its Restricted Subsidiaries in any period, notwithstanding anything to the contrary in the foregoing, Consolidated EBITDA shall include additional adjustments (1) evidenced by or contained in the Sponsor Model or the quality of earnings analysis and data or derived from a quality of earnings report prepared by the Borrower’s auditors delivered to Administrative Agent on March 3, 2017, (2) evidenced by or contained in a due diligence quality of earnings report made available to the Administrative Agent (who may share with the Lenders) (subject, in each case, to customary access letters) prepared with respect to the target of a Permitted Acquisition or other investment permitted hereunder by (A) a “big-four” nationally recognized accounting firm or (B) any other accounting firm that shall be reasonably acceptable to the Administrative Agent or (3) consistent with Regulation S-X.
Notwithstanding the foregoing, for purposes of determining Consolidated EBITDA for any Test Period that includes any of the fiscal quarters ended September 30, 2016, December 31, 2016 or March 31, 2017, Consolidated EBITDA for such fiscal quarters shall equal $100,600,000, $103,000,000 or $65,500,000, respectively, or, with respect to the fiscal quarter ended June 30, 2017, as calculated by Borrower in a manner reasonably consistent with the foregoing (which amounts, for the avoidance of doubt, shall be subject to add-backs and adjustments pursuant to the immediately preceding paragraph and shall give effect to calculations on a Pro Forma Basis in accordance with this Agreement in respect of Specified Transactions (including the cost savings, synergies and “run-rate” adjustments described above or in Section 1.12, subject in each case to the applicable limitations set forth therein) that in each case may become applicable due to actions taken on or after the Closing Date).
Unless otherwise stated or context clearly dictates otherwise, references to Consolidated EBITDA shall refer to the Consolidated EBITDA of the Borrower and its Restricted Subsidiaries.
“Consolidated First Lien Secured Debt” shall mean Consolidated Total Debt as of such date that is secured by a Lien on all or a portion of the Collateral that is pari passu with the Obligations (without giving regard to control of remedies).
“Consolidated Interest Expense” shall mean, with respect to any Person and its Restricted Subsidiaries for any period, the sum, without duplication, of:
(1) consolidated cash interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (x) all commissions, discounts, and other fees and charges owed with respect to letters of credit or bankers acceptances, (y) capitalized interest to the extent paid in cash, and (z) net payments (over payments received), if any, made pursuant to interest rate Hedging Obligations with respect to Indebtedness); plus
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(2) any cash payments made during such period in respect of the accretion or accrual of discounted liabilities referred to in clause (i) below relating to Funded Debt that were amortized or accrued in a previous period; less
(3) cash interest income for such period (other than interest income on customer deposits and other restricted cash);
provided, the following shall in all cases be excluded from Consolidated Interest Expense:
(a) any one-time cash costs associated with breakage in respect of Hedge Agreements to the extent such costs would be otherwise included in Consolidated Interest Expense;
(b) all non-recurring cash interest expense consisting of liquidated damages for failure to timely comply with registration rights obligations, all as calculated on a consolidated basis in accordance with GAAP;
(c) any “additional interest” owing pursuant to a registration rights agreement;
(d) non-cash interest expense attributable to a parent entity resulting from push-down accounting, but solely to the extent not reducing consolidated cash interest expense in any prior period;
(e) any non-cash expensing of bridge, commitment, and other financing fees that have been previously paid in cash, but solely to the extent not reducing consolidated cash interest expense in any prior period;
(f) deferred financing costs, debt issuance costs, commissions, fees (including amendment and contract fees) and expenses and, in each case, the amortization and write-off thereof, and any amounts of non-cash interest;
(g) annual agency fees paid to any administrative agent or collateral agent under any credit facilities or other debt instruments or documents;
(h) costs associated with obtaining Hedge Agreements;
(i) the accretion or accrual of discounted liabilities;
(j) non-cash interest expense attributable to the movement of the mark-to-market valuation of obligations under Hedge Agreements or other derivative instruments pursuant to FASB Accounting Standards Codification 815;
(k) any non-cash expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or, if applicable, purchase accounting in connection with the Transactions or any acquisition;
(l) commissions, discounts, yield, and other fees and charges (including any interest expense) related to any Receivables Facility or any Securitization Facility; and
(m) any prepayment premium or penalty.
For purposes of this definition, interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.
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“Consolidated Net Income” shall mean, with respect to any Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided that, without duplication,
(i) (a) any after-tax effect of extraordinary, exceptional, non-recurring, or unusual gains or losses (less all fees and expenses relating thereto), charges or expenses (including relating to the Transactions) or special items, (b) severance, recruiting, retention and relocation costs, charges and expenses, (c) signing and stay bonuses and related costs, charges and expenses including, without limitation, payments made to employees or producers who are subject to non-compete agreements, stock options and other equity-based compensation expenses, (d) costs, expenses and charges incurred in connection with curtailments or modifications to pension and post-retirement employee benefits plans, (e) start-up, transition, strategic initiative (including any multi-year strategic initiative and one-time technology licensing and setup costs and overlapping replacement costs to exit transitional services), separation costs (including all costs associated with establishing standalone operations) and integration costs and duplicative costs, charges or expenses, (f) restructuring costs, charges, reserves or expenses, (g) costs, charges and expenses related to acquisitions after the Closing Date and to the start-up, pre-opening, opening, closure, and/or consolidation of distribution centers, operations, offices and facilities contract termination costs, (h) business optimization costs, charges or expenses, (i) costs, charges and expenses incurred in connection with new product design, development and introductions, (j) costs and expenses incurred in connection with intellectual property development and new systems design, (k) costs and expenses incurred in connection with implementation, replacement, development or upgrade of operational, reporting and information technology systems and technology initiatives, (l) any costs, expenses or charges relating to any governmental investigation or any litigation or other dispute, and (m) one-time compensation charges shall be excluded,
(ii) the Net Income for such period shall not include the cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies during such period,
(iii) any net after-tax gains or losses on disposal of disposed, abandoned, transferred, closed, or discontinued operations shall be excluded,
(iv) any after-tax effect of gains or losses (less all fees and expenses relating thereto) attributable to asset dispositions or abandonments other than in the ordinary course of business, as determined in good faith by the board of directors (or analogous governing body) of the Borrower, shall be excluded,
(v) the Net Income for such period of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided that Consolidated Net Income of the Borrower shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash (or to the extent converted into cash or Cash Equivalents of the Borrower or any of its Restricted Subsidiaries) to the Borrower or a Restricted Subsidiary thereof in respect of such period,
(vi) solely for the purpose of determining the amount available for Restricted Payments under clause (a)(i)(A) of Section 10.5, the Net Income for such period of any Restricted Subsidiary (other than any Guarantor) shall be excluded to the extent the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of its Net Income is not at the date of determination permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule, or governmental regulation applicable to that Restricted Subsidiary or its equityholders, unless such restriction with respect to the payment of dividends or similar distributions (a) has been legally waived or otherwise released, (b) is imposed pursuant to this Agreement and other Credit Documents, Permitted Debt Exchange Notes, Senior Notes Documents, Incremental Loans, or Permitted Other Indebtedness, or (c) arises pursuant to an agreement or instrument if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Secured Parties than the encumbrances and restrictions contained in the Credit Documents (as determined by the Borrower in good faith) or pursuant to working capital facilities incurred by Foreign Subsidiaries and permitted hereby; provided that Consolidated Net Income of the referent Person will be increased by the amount of dividends or other distributions or other payments actually paid in cash (or to the extent converted into cash) or Cash Equivalents to such Person or a Restricted Subsidiary in respect of such period, to the extent not already included therein,
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(vii) effects of adjustments (including the effects of such adjustments pushed down to the Borrower and the Restricted Subsidiaries) in any line item in such Person’s consolidated financial statements required or permitted by Financial Accounting Standards Codification No. 805 – Business Combinations and No. 350 – Intangibles-Goodwill and Other (ASC 805 and ASC 350) (formerly Financial Accounting Standards Board Statement Nos. 141 and 142, respectively) resulting from the application of purchase accounting, including in relation to the Transactions and any acquisition or investment that is consummated prior to or after the Closing Date or the amortization or write-off of any amounts thereof, in either case net of taxes, shall be excluded,
(viii) (a) any after-tax effect of any income (loss) from the early extinguishment or conversion of Indebtedness or Hedging Obligations or other derivative instruments (including deferred financing costs written off and premiums paid), (b) any income (or loss) related to currency gains or losses related to Indebtedness, intercompany balances, and other balance sheet items and any net gain or loss resulting in such period from Hedging Obligations pursuant to Financial Accounting Standards Codification Topic No. 815-Derivatives and Hedging (ASC 815) (or any successor provision) and its related pronouncements and interpretations, or the equivalent accounting standard under GAAP or an
alternative basis of accounting applied in lieu of GAAP, and (c) any non-cash expense, income, or loss attributable to the movement in mark to market valuation of foreign currencies, Indebtedness, or derivative instruments pursuant to GAAP, shall be excluded,
(ix) any impairment charge or asset write-off or write-down, including impairment charges or asset write-offs or write-downs related to intangible assets, long-lived assets, investments in debt and equity securities or as a result of a change in law or regulation or in connection with any disposition of assets, in each case, pursuant to GAAP, and the amortization of intangibles arising pursuant to GAAP shall be excluded,
(x) (a) any non-cash compensation expense recorded from grants of equity appreciation or similar rights, phantom equity, equity options units, restricted equity, or other rights to officers, directors, managers, or employees, (b) non-cash income (loss) attributable to deferred compensation plans or trusts and (c) any non-cash compensation expense resulting from the application of Accounting Standards Codification Topic No. 718, Compensation—Stock Compensation or Accounting Standards Codification Topic No. 505-50, Equity-Based Payments to Non-Employees, in each case shall be excluded,
(xi) any fees, charges, losses, costs and expenses incurred during such period, or any amortization thereof for such period, in connection with or related to any acquisition (including any Permitted Acquisition), Restricted Payment, Investment, recapitalization, asset sale, refinancing, issuance, incurrence, registration or repayment or modification of Indebtedness, issuance or offering of Equity Interests, Qualifying IPO, refinancing transaction or amendment, modification or waiver in respect of the documentation relating to any such transaction (in the case of each such transaction described in this clause (xi), including any such transaction undertaken or consummated prior to the Closing Date, the Transactions and any such transaction undertaken but not completed and including, for the avoidance of doubt, (1) the effects of expensing all transaction-related expenses in accordance with Accounting Standards Codification Topic No. 805—Business Combinations, (2) such fees, expenses, or charges related to the incurrence or issuance, as applicable, of the Credit Facilities and the Loans hereunder, any Senior Notes and all Transaction Expenses, (3) such fees, expenses, or charges related to the entering into or offering of the Credit Documents, any Senior Notes and any other credit facilities or debt issuances or the entering into of any Hedge Agreement, and (4) any amendment, modification or waiver in respect of any Senior Notes, the Senior Notes Indenture, any Credit Facility or, in each case, the loans thereunder, or any other Indebtedness) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction shall be excluded,
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(xii) (a) accruals and reserves (including contingent liabilities) that are (x) established or adjusted within twelve months after the Closing Date that are so required to be established as a result of the Transactions or (y) established or adjusted within twelve months after the closing of any Permitted Acquisition or any other acquisition (other than any such other acquisition in the ordinary course of business) that are so required to be established or adjusted as a result of such Permitted Acquisition or such other acquisition, in each case in accordance with GAAP, or (b) charges, accruals, expenses and reserves as a result of adoption or modification of accounting policies, shall be excluded,
(xiii) to the extent covered by insurance or indemnification and actually reimbursed, or, so long as, in the case of reimbursements or indemnifications not yet received, the Borrower has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer or indemnifying party and only to the extent that such amount is (a) not denied by the applicable carrier or indemnifying party in writing within 180 days and (b) in fact reimbursed or reasonably expected to be reimbursed within 365 days of the date of such determination (with a deduction for any amount so added back to the extent not so reimbursed within 365 days), losses, charges and expenses shall be excluded,
(xiv) any deferred tax expense associated with tax deductions or net operating losses arising as a result of the Transactions, or the release of any valuation allowance related to such items, shall be excluded,
(xv) gains and losses due solely to fluctuations in currency values and the related tax effects determined in accordance with GAAP for such period shall be excluded,
(xvi) any net pension or other post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial losses, including amortization of such amounts arising in prior periods, amortization of the unrecognized net obligation (and loss or cost) existing at the date of initial application of Statement of Financial Accounting Standards Nos. 87, 106 and 112, and any other items of a similar nature, shall be excluded,
(xvii) any non-cash adjustments resulting from the application of Accounting Standards Codification Topic No. 460, Guarantees, or any comparable regulation, shall be excluded, and
(xviii) earn-out obligations and other contingent consideration obligations (including to the extent accounted for as bonuses, compensation or otherwise (and including deferred performance incentives in connection with Permitted Acquisitions or other Investments permitted hereunder whether or not a service component is required from the transferor or its related party)) and adjustments thereof and purchase price adjustments, shall be excluded.
In addition, to the extent not already included in the Consolidated Net Income of such Person and its Restricted Subsidiaries in any period, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall include the amount of proceeds received from business interruption insurance .
Unless otherwise stated or context clearly dictates otherwise, references to Consolidated Net Income shall refer to the Consolidated Net Income of the Borrower and its Restricted Subsidiaries.
“Consolidated Total Assets” shall mean, as of any date of determination, the amount that would, in conformity with GAAP, be set forth opposite the caption “total assets” (or any like caption) on the most recent consolidated balance sheet of the Borrower and the Restricted Subsidiaries at such date (or, if such date of determination is a date prior to the time any such consolidated balance sheet has been so delivered pursuant to Section 9.1, on the pro forma financial statements delivered pursuant to Section 6.1(e)) (and, in the case of any determination relating to any Specified Transaction, on a Pro Forma Basis including any property or assets being acquired in connection therewith).
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“Consolidated Total Debt” shall mean, as at any date of determination, an amount equal to the aggregate principal amount of all outstanding Indebtedness of the Borrower and the Restricted Subsidiaries that would be reflected on a consolidated balance sheet (but excluding the notes thereto) prepared as of such date on a consolidated basis in accordance with GAAP (but excluding the effects of any discounting of Indebtedness resulting from the application of purchase accounting in connection with the Transactions or any Permitted Acquisition or any other acquisition permitted under this Agreement) consisting only of (i) Indebtedness for borrowed money, (ii) Capitalized Lease Obligations, and (iii) purchase money debt (and excluding, for the avoidance of doubt, Hedging Obligations, Bank Products and Cash Management Services and intercompany debt); provided that Consolidated Total Debt shall not include Letters of Credit (as defined herein) or any other letter of credit, except, solely with respect to any standby Letter of Credit or other standby letter of credit, to the extent of unreimbursed obligations in respect of any such drawn standby Letter of Credit or other drawn standby letter of credit (provided that any unreimbursed obligations in respect of any such drawn standby Letter of Credit or other drawn standby letter of credit shall not be included as Consolidated Total Debt until three (3) Business Days after such amount is due and payable by the Borrower or any Restricted Subsidiary).
“Consolidated Working Capital” shall mean, with respect to the Borrower and the Restricted Subsidiaries on a consolidated basis at any date of determination, Current Assets at such date of determination minus Current Liabilities at such date of determination.
“Contingent Obligations” shall mean, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends, or other payment obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such 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 (a) for the purchase or payment of any such primary obligation or (b) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, or (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 against loss in respect thereof.
“Contract Consideration” shall have the meaning provided in clause (j) of the definition of “Excess Cash Flow.”
“Contractual Requirement” shall mean, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Corresponding Obligations” shall mean the Obligations, other than the Parallel Debts.
“Credit Documents” shall mean this Agreement, each Joinder Agreement, each Letter of Credit Request, the Guarantees, the Security Documents, the Subordination Agreement, and any promissory notes issued by the Borrower pursuant hereto and any other document, agreement or letter agreed in writing by the Borrower and the Administrative Agent to be a Credit Document; provided, that Cash Management Agreements, Hedge Agreements and Secured Hedge Agreements shall not be Credit Documents.
“Credit Event” shall mean and include the making (but not the conversion or continuation) of a Loan and the issuance of a Letter of Credit.
“Credit Facilities” shall mean, collectively, each category of Commitments and each extension of credit hereunder.
“Credit Facility” shall mean a category of Commitments and extensions of credit thereunder.
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“Credit Party” shall mean any of Holdings, the Borrower and the other Guarantors.
“CRR” shall mean the Council Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012.
“Cumulative Retained Excess Cash Flow Amount” shall mean, at any date, an amount, not less than zero, determined on a cumulative basis equal to the amount of Excess Cash Flow for all completed Excess Cash Flow Periods that was not required to be applied to prepay the Loans in accordance with Section 5.2(a)(ii) (without giving effect to any reduction in respect of prepayments of Indebtedness as provided in clauses (y)(i) through (iii) thereof and including any amount that would otherwise be payable but for not exceeding the dollar threshold contained therein).
“Cure Amount” shall have the meaning provided in Section 11.14.
“Cure Period” shall have the meaning provided in Section 11.14.
“Cure Right” shall have the meaning provided in Section 11.14.
“Current Assets” shall mean, with respect to the Borrower and the Restricted Subsidiaries on a consolidated basis, at any date of determination, all assets (other than cash and Cash Equivalents) that would, in accordance with GAAP, be classified on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries as “current assets” (or similar term) at such date of determination, other than amounts related to current or deferred Taxes based on income, profits or capital gains, assets held for sale, loans (permitted) to third parties, pension assets, deferred bank fees and derivative financial instruments, and excluding the effects of adjustments pursuant to GAAP resulting from the application of recapitalization accounting or purchase accounting, as the case may be, in relation to the Acquisition or any consummated acquisition.
“Current Liabilities” shall mean, with respect to the Borrower and the Restricted Subsidiaries on a consolidated basis, at any date of determination, all liabilities that would, in accordance with GAAP, be classified on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries as current liabilities at such date of determination, including the amount of short-term and long-term deferred revenue of the Borrower and its Restricted Subsidiaries in accordance with GAAP, other than (a) the current portion of any Funded Debt and derivative financial instruments, (b) the current portion of accrued interest, (c) liabilities relating to current or deferred Taxes based on income or profits, (d) accruals of any costs or expenses related to restructuring reserves or severance, (e) any liabilities in respect of revolving loans, swingline loans or letter of credit obligations under any revolving credit facility (including Revolving Credit Loans), (f) the current portion of any Capitalized Lease Obligation, (g) the current portion of any other long-term liabilities, (h) liabilities in respect of unpaid earn-outs, (i) amounts related to derivative financial instruments and assets held for sale, (j) gift card liabilities and (k) any current liabilities related to items covered by clause (i) of the definition of “Consolidated Net Income,” and excluding the effects of adjustments pursuant to GAAP resulting from the application of recapitalization accounting or purchase accounting, as the case may be, in relation to the Acquisition or any consummated acquisition.
“Debt Incurrence Prepayment Event” shall mean any issuance or incurrence by the Borrower or any of the Restricted Subsidiaries of any Indebtedness (excluding any Indebtedness permitted to be issued or incurred under Section 10.1).
“Declined Proceeds” shall have the meaning provided in Section 5.2(f).
“Default” shall mean any event, act, or condition set forth in Section 11 that with notice or lapse of time, or both, as set forth in such Section 11 would constitute an Event of Default; provided that any Default that results solely from the taking of an action that would have been permitted but for the continuation of a previous Default will be deemed to be cured if such previous Default is cured prior to becoming an Event of Default.
“Default Rate” shall have the meaning provided in Section 2.8(d).
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“Defaulting Lender” shall mean any Lender whose acts or failure to act, whether directly or indirectly, cause it to meet any part of the definition of “Lender Default.”
“Deferred Net Cash Proceeds” shall have the meaning provided such term in clause (d) of the definition of “Net Cash Proceeds.”
“Deferred Net Cash Proceeds Payment Date” shall have the meaning provided such term in the definition of “Net Cash Proceeds.”
“Derivative Counterparties” shall have the meaning provided in Section 13.17.
“Designated Non-Cash Consideration” shall mean the Fair Market Value of non-cash consideration received by the Borrower or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-Cash Consideration pursuant to a certificate of an Authorized Officer of the Borrower, setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of, or collection on, or other disposition of such Designated Non-Cash Consideration. A particular item of Designated Non-Cash Consideration will no longer be considered to be outstanding when and to the extent it has been paid, redeemed or otherwise retired or sold or otherwise disposed of in compliance with Section 10.4.
“Designated Preferred Stock” shall mean preferred stock of the Borrower or any direct or indirect parent of the Borrower (in each case other than Disqualified Stock) that is issued for cash (other than to the Borrower or a Restricted Subsidiary or an employee stock ownership plan or trust established by any Restricted Subsidiary) and is so designated as Designated Preferred Stock pursuant to an officer’s certificate executed by an Authorized Officer of the Borrower or the parent company thereof, as the case may be, on the issuance date thereof, the cash proceeds of which are excluded from the calculation set forth in clause (iii) of Section 10.5(a).
“disposition” shall have the meaning assigned such term in clause (i) of the definition of “Asset Sale.”
“Determination Date” shall have the meaning provided in clause (q) of the definition of “Consolidated EBITDA.”
“Disqualified Lenders” shall mean (i) those banks, financial institutions or other Persons separately identified in writing by the Borrower or the Sponsors to the Administrative Agent prior to March 25, 2017, or to any Affiliates of such banks, financial institutions or other Persons that are readily identifiable as Affiliates by virtue of their names or that were identified to the Administrative Agent in writing by the Borrower or the Sponsors prior to March 25, 2017, (other than, except as expressly set forth in writing by the Borrower or the Sponsors to the Administrative Agent prior to March 25, 2017, bona fide fixed income investors or debt funds), (ii) competitors (or Affiliates thereof) of the Borrower or any of its Subsidiaries (other than bona fide fixed income investors or debt funds) identified in writing from time to time (and Affiliates of such entities that are readily identifiable as Affiliates by virtue of their names or that are identified to the Administrative Agent in writing by the Borrower or the Sponsors (other than bona fide fixed income investors or debt funds)); provided, that no such identification after March 25, 2017 pursuant to clauses (i) and (ii) shall apply retroactively to disqualify any Person that has previously acquired an assignment or participation of an interest in any of the Credit Facilities with respect to amounts of Commitments and Loans previously acquired by such Person and (iii) Excluded Affiliates. Such list of Disqualified Lenders shall be made available to any Lender upon request to the Administrative Agent.
“Disqualified Stock” shall mean, with respect to any Person, any Capital Stock of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than solely for Qualified Stock), other than as a result of a change of control, asset sale, or similar event, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than solely for Qualified Stock), other than as a result of a change of control, asset sale, or similar event, in whole or in part, in each case, prior to the date that is 91 days after the Latest Term Loan Maturity Date hereunder as of the date of issuance of such Capital Stock; provided that if such Capital Stock is issued to any plan for the benefit of any employee, officer, director, manager or consultant of the Borrower or its Subsidiaries or by any such plan to such employee, officer, director, manager or consultant, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Borrower or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of the termination, death or disability of such employee, director, manager or consultant.
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“Distressed Person” shall have the meaning provided in the definition of the term “Lender-Related Distress Event.”
“Diversey” shall have the meaning provided in the recitals to this Agreement.
“Dollar Equivalent” shall mean, at any time, (i) with respect to any amount denominated in Dollars, such amount, and (ii) with respect to any amount denominated in any Alternative Currency, the equivalent amount thereof in Dollars, as determined by the Administrative Agent on the basis of the Spot Rate (determined on the most recent Revaluation Date) for the purchase of Dollars with such currency.
“Dollars” and “$” shall mean dollars in lawful currency of the United States.
“Domestic Subsidiary” shall mean each Subsidiary of the Borrower that is organized under the laws of the United States, any state thereof, or the District of Columbia.
“Dutch Credit Party” shall mean a Credit Party which is incorporated or established in the Netherlands.
"Dutch CIT Fiscal Unity" means a fiscal unity (fiscale eenheid) for Dutch corporate income tax purposes (within the meaning of Article 15 of the Dutch CITA).
"Dutch CITA" means the Dutch Corporate Income Tax Act 1969 (Wet op de vennootschapsbelasting 1969).
“EEA Financial Institution” shall mean (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” shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” shall mean 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.
“ECF Payment Amount” shall have the meaning provided in Section 5.2(a)(ii).
“Effective Yield” shall mean, as to any Indebtedness, the effective yield on such Indebtedness in the reasonable determination of the Administrative Agent in consultation with the Borrower and consistent with generally accepted financial practices, taking into account the applicable interest rate margins, any interest rate floors, or similar devices and all fees, including upfront or similar fees or original issue discount (amortized over the shorter of (i) the remaining Weighted Average Life to Maturity of such Indebtedness and (ii) the four years following the date of incurrence thereof) payable generally to Lenders or other institutions providing such Indebtedness, but excluding any arrangement, underwriting, structuring, ticking and commitment fees and other fees payable in connection therewith that are not generally paid to all relevant lenders providing Indebtedness of such type and, if applicable, consent fees for an amendment paid generally to consenting lenders.
“EMU Legislation” shall mean the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.
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“Environment” shall mean ambient air, indoor air, surface water, groundwater, drinking water, land surface, sediments, and subsurface strata & natural resources such as wetlands, flora and fauna.
“Environmental Claims” shall mean any and all actions, suits, orders, decrees, demand letters, claims, notices of noncompliance or potential responsibility or violation, or proceedings pursuant to any Environmental Law or any permit issued, or any approval given, under any such Environmental Law (hereinafter, “Claims”), including, without limitation, (i) any and all Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial, or other actions or damages pursuant to any Environmental Law and (ii) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation, or injunctive relief relating to the presence, Release or threatened Release of Hazardous Materials or arising from alleged injury or threat of injury to health or safety (to the extent relating to human exposure to Hazardous Materials), or the Environment.
“Environmental Law” shall mean any applicable federal, state, foreign, or local statute, law, rule, regulation, ordinance, code, and rule of common law now or hereafter in effect, and any binding judicial or administrative interpretation thereof, including any binding judicial or administrative order, consent decree, or judgment, relating to pollution or protection of the Environment, or protection of human health or safety (to the extent relating to exposure to Hazardous Materials) and including those relating to the generation, storage, treatment, transport, Release, or threat of Release of Hazardous Materials.
“Equity Contribution” shall have the meaning provided in the recitals to this Agreement.
“Equity Interest” shall mean 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” shall mean the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that, together with any Credit Party, is treated as a single employer under Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
“ERISA Event” shall mean (i) the failure of any Plan to comply with any provisions of ERISA and/or the Code or with the terms of such Plan; (ii) any Reportable Event; (iii) the existence with respect to any Plan of a non-exempt Prohibited Transaction; (iv) any failure by any Pension Plan to satisfy the minimum funding standards (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Pension Plan, whether or not waived; (v) 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; (vi) the occurrence of any event or condition which would reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or the incurrence by any Credit Party or any of its ERISA Affiliates of any liability under Title IV of with respect to the termination of any Pension Plan, including but not limited to the imposition of any Lien in favor of the PBGC or any Pension Plan; (vii) the receipt by any Credit Party or any of its ERISA Affiliates from the PBGC, an ERISA Affiliate, or a plan administrator of any written notice to terminate any Pension Plan under Section 4042(a) of ERISA or to appoint a trustee to administer any Pension Plan under Section 4042(b)(1) of ERISA; (viii) the incurrence by any Credit Party of any liability (including on account of an ERISA Affiliate) with respect to the withdrawal or partial withdrawal from any Pension Plan (or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA) or Multiemployer Plan; or (ix) the receipt by any Credit Party or any of its ERISA affiliates of any notice concerning the imposition on it of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, Insolvent or terminated (within the meaning of Section 4041A of ERISA).
“EU Bail-In Legislation Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“EURIBO Rate” shall mean, with respect to any Eurocurrency Borrowing denominated in Euro for any Interest Period, the rate per annum equal to the European Money Markets Institute EURIBO Rate (“BFEA EURIBOR”), as published by Reuters on page EURIBOR01 of the Reuters screen (or another commercially available source providing quotations of BFEA EURIBOR as designated by the Administrative Agent from time to time) at approximately 10:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for deposits in Euro (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; provided that if such rate is not available at such time for any reason, then the “EURIBO Rate” for such Interest Period shall be the Interpolated Rate.
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“Euro,” “EUR” and “€” shall mean the lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.
“Eurocurrency,” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, is bearing interest at a rate determined by reference to the Eurocurrency Rate.
“Eurocurrency Borrowing” shall mean a Loan that bears interest at a rate based on the Eurocurrency Rate.
“Eurocurrency Loan” shall mean any Loan bearing interest at a rate determined by reference to the Eurocurrency Rate.
“Eurocurrency Rate” shall mean with respect to any Eurocurrency Borrowing for any Interest Period the rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is two Business Days prior to the commencement of such Interest Period by reference to the interest settlement rates for deposits in Dollars or the applicable Alternative Currency as published by Reuters on page LIBOR01 of the Reuters Screen (or another commercially available source providing quotations of such rate as designated by the Administrative Agent from time to time) (as set forth by (a) the Ice Benchmark Association, (b) any successor service or entity that has been authorized by the U.K. Financial Conduct Authority to administer the London Interbank Offered Rate, or (c) any service selected by the Administrative Agent that has been nominated by such an entity as an authorized information vendor for the purpose of displaying such rates) for a period equal to such Interest Period; provided that (i) for any Eurocurrency Borrowing for any Interest Period in Canadian Dollars, the rate the Administrative Agent shall reference shall be the CDOR Rate, (ii) for any Eurocurrency Borrowing for any Interest Period in Euros, the rate the Administrative Agent shall reference shall be the EURIBO Rate and (iii) for any Eurocurrency Borrowing for any Interest Period in Australian Dollars, the rate the Administrative Agent shall reference shall be BBSY; provided, further, that, to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the “Eurocurrency Rate” shall be the Interpolated Rate or, if it is not possible to calculate an Interpolated Rate for that Eurocurrency Borrowing the interest rate per annum determined by the Administrative Agent (including by reference to any applicable published market data) to be the average of the rates per annum at which deposits in Dollars or applicable Alternative Currencies are offered for such relevant Interest Period to major banks in the London interbank market in London, England by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is two Business Days prior to the beginning of such Interest Period; provided that, notwithstanding the foregoing, if the Eurocurrency Rate would otherwise be equal to or less than zero, the Eurocurrency Rate for (x) Revolving Credit Loans and (y) Initial Term Loans for the applicable Interest Period shall be equal to 0.00%.
“Event of Default” shall have the meaning provided in Section 11.
“Excess Cash Flow” shall mean, for any period, an amount equal to:
(i) the sum, without duplication, of:
(a) Consolidated Net Income for such period,
(b) an amount equal to the amount of all non-cash charges to the extent deducted in arriving at such Consolidated Net Income, but excluding any such non-cash charges representing an accrual or reserve for potential cash items in any future period and excluding amortization of a prepaid cash item that was paid in a prior period,
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(c) decreases in Consolidated Working Capital for such period (other than (1) reclassification of items from short-term to long-term or vice versa in accordance with GAAP and (2) any such decreases arising from acquisitions (outside of the ordinary course of business) or asset sales (other than in the ordinary course of business) by the Borrower and the Restricted Subsidiaries completed during such period or the application of purchase accounting), and
(d) cash receipts in respect of Hedge Agreements during such period to the extent not otherwise included in Consolidated Net Income; minus
(ii) the sum, without duplication, of:
(a) an amount equal to the amount of all non-cash gains and credits (including, to the extent constituting non-cash credits, without limitation, amortization of deferred revenue acquired as a result of the Acquisition or any Permitted Acquisition or other consummated acquisition permitted hereunder) included in arriving at such Consolidated Net Income in such period (but excluding any non-cash credit to the extent representing the reversal of an accrual or reserve described in clause (i)(b) above), cash charges, losses, costs, fees or expenses to the extent excluded in arriving at such Consolidated Net Income during such period, and Transaction Expenses to the extent not deducted in arriving at such Consolidated Net Income and paid in cash during such period,
(b) without duplication of amounts deducted pursuant to clause (k) below in prior periods, the amount of Capital Expenditures or acquisitions of Intellectual Property accrued or made in cash during such period, except to the extent that such Capital Expenditures or acquisitions were financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness or intercompany loans) of the Borrower or the Restricted Subsidiaries (unless such Indebtedness has been repaid),
(c) the aggregate amount of all principal payments of Indebtedness of the Borrower and the Restricted Subsidiaries (including (1) the principal component of payments in respect of Capitalized Lease Obligations, (2) the amount of any scheduled repayment of Term Loans pursuant to Section 2.5, and (3) the amount of a mandatory prepayment of Term Loans pursuant to Section 5.2(a) to the extent required due to an Asset Sale that resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase, but excluding (A) all other prepayments of Term Loans and (B) all prepayments of Revolving Loans and any other revolving loans (unless, there is an equivalent permanent reduction in commitments thereunder) made during such period, except to the extent financed with the proceeds of other long-term Indebtedness (other than revolving Indebtedness or intercompany loans) of the Borrower or the Restricted Subsidiaries (unless such Indebtedness has been repaid) other than intercompany loans,
(d) increases in Consolidated Working Capital for such period (other than (1) reclassification of items from short-term to long-term or vice versa in accordance with GAAP and (2) any such increases arising from acquisitions (outside of the ordinary course of business) or asset sales (other than in the ordinary course of business) by the Borrower and the Restricted Subsidiaries completed during such period or the application of purchase accounting),
(e) payments by the Borrower and the Restricted Subsidiaries during such period in respect of purchase price holdbacks, earn outs and other contingent obligations and long-term liabilities of the Borrower and the Restricted Subsidiaries other than Indebtedness, (including, without limitation, purchase price holdbacks, earn outs, seller notes or notes converted from earn outs and similar obligations) to the extent not already deducted from Consolidated Net Income,
(f) without duplication of amounts deducted pursuant to clause (j) below in prior fiscal periods, the aggregate amount of cash consideration paid by the Borrower and the Restricted Subsidiaries (on a consolidated basis) in connection with Investments (including Permitted Acquisitions) made during such period constituting Permitted Investments (other than clauses (i) and (ii) of the definition thereof) or Investments made pursuant to Section 10.5 to the extent that such Investments were not financed with the proceeds received from the issuance or incurrence of long-term Indebtedness (other than revolving Indebtedness and intercompany debt) of the Borrower or the Restricted Subsidiaries (unless such Indebtedness has been repaid),
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(g) the amount of Restricted Payments paid in cash during such period (on a consolidated basis) by the Borrower and the Restricted Subsidiaries), to the extent such Restricted Payments were not financed with the proceeds received from the issuance or incurrence of long-term Indebtedness (other than revolving Indebtedness or intercompany loan) of the Borrower or the Restricted Subsidiaries (unless such Indebtedness has been repaid),
(h) the aggregate amount of expenditures actually made by the Borrower and the Restricted Subsidiaries in cash during such period (including expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such period or are not deducted in calculating Consolidated Net Income,
(i) the aggregate amount of any premium, make-whole, or penalty payments actually paid in cash by the Borrower and the Restricted Subsidiaries during such period that are made in connection with any prepayment of Indebtedness to the extent that such payments are not deducted in calculating Consolidated Net Income,
(j) without duplication of amounts deducted from Excess Cash Flow in other periods, and at the option of the Borrower, (1) the aggregate consideration required to be paid in cash by the Borrower or any of its Restricted Subsidiaries pursuant to binding agreements, commitments or letters of intent (the “Contract Consideration”) entered into prior to or during such period and (2) any planned cash expenditures by the Borrower or any of its Restricted Subsidiaries (the “Planned Expenditures”), in the case of each of clauses (1) and (2), relating to Permitted Acquisitions (or Investments similar to those made for Permitted Acquisitions), Capital Expenditures, Restricted Payments, any scheduled payment of Indebtedness that was permitted by the terms of this Agreement to be incurred and paid or permitted tax distributions, in each case, to be consummated or made, as applicable, during the period of four consecutive fiscal quarters of the Borrower following the end of such period (except to the extent financed with any of the proceeds received from (A) the issuance or incurrence of long-term Indebtedness (unless repaid) or (B) the issuance of Equity Interests); provided that to the extent that the aggregate amount of cash actually utilized to finance such Permitted Acquisitions (or Investments similar to those made for Permitted Acquisitions), Capital Expenditures, Restricted Payments, permitted scheduled payments of Indebtedness that was permitted by the terms of this Agreement to be incurred and paid or permitted tax distributions during such following period of four consecutive fiscal quarters is less than the Contract Consideration and Planned Expenditures, the amount of such shortfall shall be added to the calculation of Excess Cash Flow, at the end of such period of four consecutive fiscal quarters,
(k) the amount of taxes (including penalties and interest) paid in cash or tax reserves set aside or payable (without duplication) in such period plus the amount of distributions with respect to taxes made in such period under Section 10.5(b)(15) to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period, and
(l) cash expenditures in respect of Hedge Agreements during such fiscal year to the extent not deducted in arriving at such Consolidated Net Income.
“Excess Cash Flow Period” shall mean (a) the fiscal year of the Borrower ending on December 31, 2018 and (b) each fiscal year of the Borrower ended thereafter.
“Exchange Act” shall mean the Securities Exchange Act of 1934.
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“Excluded Affiliate” shall mean any Affiliate of any Agent that is engaged (i) as a principal primarily in private equity, mezzanine financing or venture capital or (ii) in a sale of Diversey and its Subsidiaries (other than any “above the wall” individuals), including through the provision of advisory services.
“Excluded Contribution” shall mean net cash proceeds, the Fair Market Value of marketable securities, or the Fair Market Value of Qualified Proceeds received by the Borrower from (i) contributions to its common equity capital, and (ii) the sale (other than to a Subsidiary of the Borrower or to any management equity plan or equity option plan or any other management or employee benefit plan or agreement of the Borrower) of Capital Stock (other than Disqualified Stock or Designated Preferred Stock) of the Borrower, in each case designated as Excluded Contributions pursuant to an officer’s certificate executed by an Authorized Officer, which are excluded from the calculation set forth in Section 10.5(a)(iii)(B).
“Excluded Deposit Accounts” shall have the meaning provided in Section 13.9(b).
“Excluded Information” shall have the meaning provided in Section 13.7.
“Excluded Property” shall have the meaning set forth in the applicable Security Document.
“Excluded Stock and Stock Equivalents” shall mean (i) any Capital Stock or Stock Equivalents with respect to which, in the reasonable judgment of the Administrative Agent and the Borrower, the burden or cost (including adverse tax consequences) or other consequences of pledging such Capital Stock or Stock Equivalents in favor of the Secured Parties under the Security Documents shall be excessive in view of the benefits to be obtained by the Lenders therefrom, (ii) solely in the case of any pledge of Capital Stock and Stock Equivalents of any CFC or any CFC Holding Company, any Capital Stock or Stock Equivalents of any class of such CFC or such CFC Holding Company in excess of 65% of the outstanding Capital Stock of such class (subject to the Agreed Security Principles), (iii) any Capital Stock or Stock Equivalents to the extent the pledge thereof would violate any applicable Requirement of Law (including any legally effective requirement to obtain the consent or approval of, or a license from, any Governmental Authority or any other third party unless such consent, approval or license has been obtained (it being understood that the foregoing shall not be deemed to obligate the Borrower or any Subsidiary to obtain any such consent, approval or license)), (iv) in the case of (A) any Capital Stock or Stock Equivalents of any Subsidiary to the extent such Capital Stock or Stock Equivalents are subject to a Lien permitted by clause (ix) of the definition of Permitted Lien or (B) any Capital Stock or Stock Equivalents of any Subsidiary that is not a Wholly-Owned Subsidiary of the Borrower or its Restricted Subsidiaries, any Capital Stock or Stock Equivalents of each such Subsidiary described in clause (A) or (B) to the extent (I) that a pledge thereof to secure the Obligations is prohibited by any applicable Contractual Requirement or Organizational Document, (II) any Contractual Requirement prohibits such a pledge without the consent of any other party; provided that this clause (II) shall not apply if (x) such other party is a Credit Party or Wholly-Owned Subsidiary or (y) consent has been obtained to consummate such pledge (it being understood that the foregoing shall not be deemed to obligate the Borrower or any Subsidiary to obtain any such consent) and for so long as such Contractual Requirement or replacement or renewal thereof is in effect, or (III) a pledge thereof to secure the Obligations would give any other party (other than a Credit Party or Wholly-Owned Subsidiary) to any contract, agreement, instrument, or indenture governing such Capital Stock or Stock Equivalents the right to terminate its obligations thereunder (in each case, other than non-assignment provisions which are ineffective under the Uniform Commercial Code or other applicable law), (v) any Capital Stock or Stock Equivalents of any Subsidiary (in the case of a Subsidiary of a U.S. Credit Party (unless such U.S. Credit Party is the subsidiary of another U.S. Credit Party) acquired after the Closing Date) to the extent that the pledge of such Capital Stock or Stock Equivalents could result in an adverse tax consequences (that is not de minimis) to the Borrower or any Subsidiary as reasonably determined by the Borrower, (vi) any Capital Stock or Stock Equivalents that are margin stock, (vii) any Capital Stock and Stock Equivalents of any Subsidiary that is not a Material Subsidiary and (viii) any Capital Stock and Stock Equivalents of any Subsidiary that is less than 100% owned by the Credit Parties, any Unrestricted Subsidiary, any Captive Insurance Subsidiary, any Broker-Dealer Subsidiary, any not-for-profit Subsidiary and any special purpose entity (including any Receivables Subsidiary and any Securitization Subsidiary); provided that Excluded Stock and Stock Equivalents shall not include proceeds of the foregoing property to the extent otherwise constituting Collateral.
“Excluded Subsidiaries” shall mean each (a) Unrestricted Subsidiary, (b) Subsidiary that is not a Material Subsidiary, (c) (x) CFC, and (y) Foreign Subsidiary (other than any Material Subsidiary that is not a CFC and that is organized in (i) the Netherlands, (ii) Canada, (iii) Spain, (iv) England and Wales, (v) Germany, (vi) Italy, (vii) Switzerland, (viii) Belgium, (ix) France, (x) Austria, (xi) Australia, (xii) Denmark, (xiii) Hong Kong, (xiv) Poland, (xv) Sweden, (xvi) Brazil, and (xvii) Mexico, subject in each case to the conditions set forth in the Agreed Security Principles, (d) Domestic Subsidiary of a CFC, (e) CFC Holding Company, (f) Domestic Subsidiary of a Credit Party with respect to which a Guarantee could result in an adverse tax consequence (that is not de minimis) to a Credit Party or any of such Credit Party’s Subsidiaries (including as a result of the operation of Section 956 of the Code) as reasonably determined by the Borrower in consultation with the Administrative Agent, (g) Captive Insurance Subsidiary, (h) non-profit Subsidiary, (i) joint venture and Subsidiary that is not a Wholly-Owned Subsidiary on any date such Subsidiary would otherwise be required to become a Guarantor pursuant to the requirements of Section 9.11 (for so long as such joint venture or Subsidiary remains a non-Wholly-Owned Restricted Subsidiary), (j) special purpose entity, including any Receivables Subsidiary and any Securitization Subsidiary, (k) Broker-Dealer Subsidiary, (l) Subsidiary for which Guarantees or granting Liens to secure the Obligations are (I) prohibited by law (including without limitation as a result of applicable financial assistance, directors’ duties or corporate benefit requirements (subject to clause (m) below, to the extent that such limitations cannot be addressed through “whitewash” or similar procedures)) or require consent, approval, license or authorization of a Governmental Authority (unless such consent, approval, license or authorization has been received; provided that there shall be no obligation to obtain such consent) or (II) contractually prohibited on the Closing Date or, following the Closing Date, the date of acquisition, so long as such prohibition is not created in contemplation of such transaction, (m) Subsidiary where the burden or cost of obtaining a Guarantee outweighs the benefit to the Lenders, as determined by the Administrative Agent and the Borrower, (n) Subsidiary acquired pursuant to a Permitted Acquisition or other Investment permitted under this Agreement and financed with assumed Indebtedness, and each Restricted Subsidiary acquired in such Permitted Acquisition or other Investment permitted hereunder that guarantees such Indebtedness, in each case to the extent that, and for so long as, the documentation relating to such Indebtedness to which such Subsidiary is a party prohibits such Subsidiary from guaranteeing the Obligations and such prohibition was not created in contemplation of such Permitted Acquisition or other Investment permitted hereunder and (o) Subsidiary listed on Schedule 1.1(e).
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“Excluded Swap Obligation” shall mean, with respect to any Credit Party, (i) any Swap Obligation if, and to the extent that, all or a portion of the Obligations of such Credit Party of, or the grant by such Credit Party of a security interest to secure, such Swap Obligation (or any Obligations thereof) is or becomes illegal or unlawful under the Commodity Exchange Act or any rule, regulation, or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) or (ii) any other Swap Obligation designated as an “Excluded Swap Obligation” of such Credit Party as specified in any agreement between the relevant Credit Parties and Hedge Bank counterparty to such 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 Obligation or security interest is or becomes illegal or unlawful.
“Excluded Taxes” shall mean, with respect any Recipient, (i) Taxes imposed on or measured by its net income, net profits, or branch profits (however denominated, and including (for the avoidance of doubt) any backup withholding in respect thereof under Section 3406 of the Code or any similar provision of state, local, or non-U.S. law), and franchise (and similar) Taxes, imposed on such Recipient, in each case (A) by a jurisdiction as a result of such Recipient being organized in, having its principal office in, or in the case of any Lender, having its applicable lending office in, such jurisdiction, or (B) that are Other Connection Taxes, (ii) in the case of a Lender, any United States federal or Dutch withholding Tax imposed on any payment by or on account of any obligation of any Credit Party hereunder or under any other Credit Document that is required to be 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 laws in effect on the date on which (A) such Lender acquires such interest in the applicable Commitment (or, to the extent a Lender acquires an interest in a Loan not funded pursuant to a prior Commitment, acquires such interest in such Loan) (in each case, other than pursuant to an assignment request by the Borrower) or (B) such Lender changes its Lending Office (other than pursuant to a request by the Borrower), except in each case under clause (A) or clause (B) to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the designation of a new lending office (or assignment), to receive additional amounts from the Credit Parties with respect to such withholding Tax pursuant to Section 5.4, provided that this clause (ii) shall not apply to any Dutch withholding Tax imposed pursuant to laws in effect as of the Closing Date, (iii) any withholding Taxes attributable to such Recipient’s failure to comply with Section 5.4(e), (iv) any withholding Taxes imposed under FATCA, (v) any Bank Levy or (vi) Taxes assessed on a Lender under the laws of the Netherlands, if and to the extent such Tax becomes payable as a result of any Lender having a substantial interest (aanmerkelijk belang) as defined in the Dutch Income Tax Act 2001 (Wet inkomstenbelasting 2001). For purposes of subclause (ii) of this definition, a Lender that acquires a participation pursuant to Section 13.9(a) shall be treated as having acquired such participation on the earlier date(s) on which such Lender acquired the applicable interest(s) in the Commitment(s) and/or Loan(s) to which such participation relates.
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“Existing Class” shall mean any Existing Term Loan Class and any Existing Revolving Credit Class.
“Existing Credit Agreement” shall have the meaning provided in the definition of “Closing Releases.”
“Existing Indentures” shall have the meaning provided in the definition of “Closing Releases.”
“Existing Letters of Credit” means bilateral letters of credit outstanding as of the Closing Date as set forth on Schedule 2.1.
“Existing Revolving Credit Class” shall have the meaning provided in Section 2.14(g)(ii).
“Existing Revolving Credit Commitment” shall have the meaning provided in Section 2.14(g)(ii).
“Existing Revolving Credit Loans” shall have the meaning provided in Section 2.14(g)(ii).
“Existing Term Loan Class” shall have the meaning provided in Section 2.14(g)(i).
“Extended Revolving Credit Commitments” shall have the meaning provided in Section 2.14(g)(ii).
“Extended Revolving Credit Loans” shall have the meaning provided in Section 2.14(g)(ii).
“Extended Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(c).
“Extended Term Loan Repayment Date” shall have the meaning provided in Section 2.5(c).
“Extended Term Loans” shall have the meaning provided in Section 2.14(g)(i).
“Extending Lender” shall have the meaning provided in Section 2.14(g)(iii).
“Extension” shall mean the establishment of an Extension Series by amending a Loan or a Commitment pursuant to Section 2.14(g) and the applicable Extension Amendment.
“Extension Amendment” shall have the meaning provided in Section 2.14(g)(iv).
“Extension Date” shall have the meaning provided in Section 2.14(g)(v).
“Extension Election” shall have the meaning provided in Section 2.14(g)(iii).
“Extension Minimum Condition” shall mean a condition to consummating any Extension that a minimum amount (to be determined and specified in the relevant Extension Request, in the Borrower’s sole discretion) of any or all applicable Classes be submitted for Extension.
“Extension Request” shall mean a Term Loan Extension Request or a Revolving Credit Loan Extension Request, as the context requires.
“Extension Series” shall mean all Extended Term Loans and Extended Revolving Credit Commitments that are established pursuant to the same Extension Amendment (or any subsequent Extension Amendment to the extent such Extension Amendment expressly provides that the Extended Term Loans or Extended Revolving Credit Commitments, as applicable, provided for therein are intended to be a part of any previously established Extension Series).
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“Facility Fee” shall have the meaning provided in Section 4.1(a).
“Facility Fee Rate” shall mean (x) until delivery of the financial statements and related Compliance Certificate for the first full fiscal quarter of the Borrower ending after the Closing Date pursuant to Section 9.1, a rate per annum of 0.50% and (y) thereafter a rate per annum set forth in the table below, based upon the First Lien Net Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 9.1(d):
Pricing Level | First Lien Net Leverage Ratio | Facility Fee Rate |
I | > 4.25 to 1.00 | 0.50% |
II | ≤ 4.25 to 1.00 and > 3.75 to 1.00 | 0.375% |
III | ≤ 3.75 to 1.00 | 0.25% |
Any increase or decrease in the Facility Fee Rate resulting from a change in the First Lien Net Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 9.1(d).
“Fair Market Value” shall mean with respect to any asset or group of assets on any date of determination, the value of the consideration obtainable in a sale of such asset at such date of determination assuming a sale by a willing seller to a willing purchaser dealing at arm’s length and arranged in an orderly manner over a reasonable period of time having regard to the nature and characteristics of such asset, as determined in good faith by the Borrower.
“FATCA” shall mean (a) Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, (b) any agreements entered into pursuant to Section 1471(b)(1) of the Code as of the date of this Agreement (or any amended or successor version described above) implementing the foregoing and (c) any treaty, law, regulation, official administrative guidance or intergovernmental agreements implementing clause (a) or (b) above.
“Federal Funds Effective Rate” shall mean, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank on the Business Day next succeeding such day; the average rate charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent; provided, that the Federal Funds Effective Rate, if negative, shall be deemed to be 0.00%.
“Fee Letter” shall mean that certain Amended and Restated Fee Letter, dated as of April 14, 2017, by and among Borrower and the Joint Lead Arrangers and Joint Bookrunner.
“Fees” shall mean all amounts payable pursuant to, or referred to in, Section 4.1.
“First Lien Net Leverage Ratio” shall mean, as of any date of determination, the ratio of (i) Consolidated First Lien Secured Debt as of such date of determination, minus unrestricted cash and Cash Equivalents of the Borrower and the Restricted Subsidiaries as of the such date of determination to (ii) Consolidated EBITDA for the Test Period then last ended.
“First Lien Obligations” shall mean the Obligations and the Permitted Other Indebtedness Obligations that are secured by the Collateral on an equal priority basis (but without regard to the control of remedies) with Liens on the Collateral securing the Initial Term Loans or any Obligations that are secured on a pari passu basis with the Initial Term Loans.
“Foreign Credit Party” shall mean Holdings, the Borrower and each additional Credit Party that is a Foreign Subsidiary.
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“Foreign Benefit Arrangement” shall mean any employee benefit arrangement mandated by non-U.S. law that is contributed to, but not sponsored or maintained by, any Credit Party or any of its Subsidiaries.
“Foreign Guarantee” shall mean each guarantee agreement or guarantee agreement joinder or supplement of any Foreign Credit Parties executed and delivered pursuant to Section 9.11.
“Foreign Guarantors” shall mean (i) Holdings (provided that such Foreign Guarantee shall be limited to Holdings’ interest in the Capital Stock of the Borrower) and (ii) on and after the Closing Date, each Wholly-Owned Restricted Subsidiary that is a Foreign Subsidiary of the Borrower that becomes a party to a Foreign Guarantee pursuant to Section 9.11 or otherwise; provided, for the avoidance of doubt, (x) unless expressly agreed by the Borrower, no Foreign Subsidiary that is an Excluded Subsidiary shall be a Foreign Guarantor, and (y) the Borrower may cause any Foreign Restricted Subsidiary that is not a Foreign Guarantor to guarantee the Foreign Obligations by causing such Restricted Subsidiary that is a Foreign Subsidiary to become a Foreign Guarantor under a Foreign Guarantee and a grantor under the applicable Foreign Security Documents in accordance with Section 9.11, and any such Restricted Subsidiary shall be a Foreign Guarantor hereunder and under the other Credit Documents for all purposes.
“Foreign Obligations” shall mean all advances to, and debts, liabilities, obligations, covenants, and duties of, any Foreign Credit Party arising under any Credit Document or otherwise with respect to any Commitment, any Loan or Letter of Credit or under any Foreign Secured Cash Management Agreement, Foreign Secured Bank Product Agreement or Foreign Secured Hedge Agreement (other than with respect to any Foreign Credit Party’s obligations that constitute Excluded Swap Obligations solely with respect to such Foreign Credit Party), in each case, entered into with Holdings, the Borrower or any of the Restricted Subsidiaries which are Foreign Subsidiaries, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, fees and other amounts that accrue after the commencement by or against any Foreign Credit Party or any Affiliate thereof of any proceeding under any bankruptcy or insolvency law naming such Person as the debtor in such proceeding, regardless of whether such interest, fees or other amounts are allowed claims in such proceeding. Without limiting the generality of the foregoing, the Foreign Obligations of the Foreign Credit Parties under the Credit Documents (and any of their Subsidiaries to the extent they have obligations under the Credit Documents) include the obligation (including guarantee obligations) to pay principal, premium, interest, charges, expenses, fees, attorney costs, indemnities, and other amounts payable by any Foreign Credit Party under any Credit Document.
“Foreign Plan” shall mean each employee pension benefit plan (within the meaning of Section 3(2) of ERISA, but that is not subject to ERISA) that is not subject to U.S. law and is maintained, contributed to, or sponsored by any Credit Party or any of its Subsidiaries (other than any Foreign Benefit Arrangement).
“Foreign Plan Event” shall mean (i) the failure to register or loss of good standing (if applicable) with applicable regulatory authorities of any such Foreign Plan required to be registered, or (ii) the failure of any Foreign Plan to comply in any material respect with any provisions of applicable law and regulations or with the terms of such Foreign Plan.
“Foreign Prepayment Event” shall have the meaning provided in Section 5.2(a)(iv).
“Foreign Pledge Agreements” shall mean each pledge agreement or pledge agreement joinder or supplement of any Foreign Restricted Subsidiaries executed and delivered pursuant to Section 9.11.
“Foreign Restricted Subsidiaries” shall mean each Restricted Subsidiary that is a Foreign Subsidiary.
“Foreign Secured Bank Product Agreement” shall mean any Bank Product Agreement that is entered into by and between Holdings, the Borrower or any of the Restricted Subsidiaries that are Foreign Subsidiaries and any Bank Product Provider, which is specified in writing by the Borrower to the Administrative Agent as constituting a Foreign Secured Bank Product Agreement hereunder.
“Foreign Secured Cash Management Agreement” shall mean any Cash Management Agreement that is entered into by and between Holdings, the Borrower or any of the Restricted Subsidiaries that are Foreign Subsidiaries and any Cash Management Bank, which is specified in writing by the Borrower to the Administrative Agent as constituting a Foreign Secured Cash Management Agreement hereunder.
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“Foreign Secured Cash Management Obligations” shall mean Foreign Obligations under Secured Cash Management Agreements.
“Foreign Secured Hedge Agreement” shall mean any Hedge Agreement that is entered into by and between Holdings, the Borrower or any Restricted Subsidiary that is a Foreign Subsidiary and any Hedge Bank, which is specified in writing by the Borrower to the Administrative Agent as constituting a “Foreign Secured Hedge Agreement” hereunder. For purposes of the preceding sentence, the Borrower may deliver one notice designating all Hedge Agreements entered into pursuant to a specified Master Agreement as “Foreign Secured Hedge Agreements.”
“Foreign Security Agreements” shall mean each security agreement or security agreement joinder or supplement of any Foreign Restricted Subsidiaries executed and delivered pursuant to Section 9.11.
“Forward-Looking Information” shall have the meaning provided in Section 8.8(a).
“Foreign Subsidiary” shall mean each Subsidiary of the Borrower that is not a Domestic Subsidiary.
“Fronting Exposure” shall mean, at any time there is a Defaulting Lender, with respect to any Letter of Credit Issuer, such Defaulting Lender’s Revolving Credit Commitment Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.
“Fronting Fee” shall have the meaning provided in Section 4.1(d).
“Fund” shall mean any Person (other than a natural Person) that is engaged or advises funds or other investment vehicles that are engaged in making, purchasing, holding, or investing in commercial loans and similar extensions of credit in the ordinary course.
“Funded Debt” shall mean all Indebtedness of the Borrower and the Restricted Subsidiaries for borrowed money that matures more than one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the sole option of the Borrower or any Restricted Subsidiary, to a date more than one year from the date of its creation or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date (including all amounts of such Funded Debt required to be paid or prepaid within one year from the date of its creation), and, in the case of the Credit Parties, Indebtedness in respect of the Loans.
“GAAP” shall mean generally accepted accounting principles in the United States, as in effect from time to time; provided, however, that if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof (including through conforming changes made consistent with IFRS) on the operation of such provision, regardless of whether any such notice is given before or after such change in GAAP or in the application thereof (including through conforming changes made consistent with IFRS), then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. Furthermore, at any time after the Closing Date, the Borrower may elect to apply for all purposes of this Agreement, in lieu of GAAP, IFRS and, upon such election, references to GAAP herein will be construed to mean IFRS as in effect from time to time; provided that (1) all financial statements and reports to be provided, after such election, pursuant to this Agreement shall be prepared on the basis of IFRS as in effect from time to time, and (2) from and after such election, all ratios, computations, and other determinations based on GAAP contained in this Agreement shall still be required to be computed in conformity with GAAP. The Borrower shall give written notice of any such election made in accordance with this definition to the Administrative Agent. For the avoidance of doubt, solely making an election (without any other action) referred to in this definition will not be treated as an incurrence of Indebtedness. Notwithstanding any other provision contained herein, the amount of any Indebtedness under GAAP with respect to Capitalized Lease Obligations shall be determined in accordance with the definition of Capitalized Lease Obligations.
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“General Restricted Payments Basket” shall have the meaning provided in Section 10.5(b)(11).
“General Subordinated Payments Basket” shall have the meaning provided in Section 10.5(b)(19).
“German Subsidiary” shall have the meaning provided in Section 11.5.
“Governmental Authority” shall mean any nation, sovereign, or government, any state, province, territory, or other political subdivision thereof, and any entity or authority exercising executive, legislative, judicial, taxing, regulatory, or administrative functions of or pertaining to government, including, the European Union, a central bank or stock exchange.
“Granting Lender” shall have the meaning provided in Section 13.7(g).
“guarantee obligations” shall mean, as to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness of any primary obligor in any manner, whether directly or indirectly, including any obligation of such Person, whether or not contingent, (i) to purchase any such Indebtedness or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (a) for the purchase or payment of any such Indebtedness or (b) 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 Indebtedness of the ability of the primary obligor to make payment of such Indebtedness, or (iv) otherwise to assure or hold harmless the owner of such Indebtedness against loss in respect thereof; provided, however, that the term guarantee obligations shall not include endorsements of instruments for deposit or collection in the ordinary course of business or customary and reasonable indemnity obligations or product warranties in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any guarantee obligation shall be deemed to be an amount equal to the stated or determinable amount of the Indebtedness in respect of which such guarantee obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.
“Guarantees” shall mean, collectively the U.S. Guarantee and any Foreign Guarantees.
“Guarantors” shall mean, collectively, the U.S. Guarantors and the Foreign Guarantors.
“Hazardous Materials” shall mean (i) any petroleum or petroleum products, radioactive materials, friable asbestos, polychlorinated biphenyls, and radon gas; (ii) any chemicals, materials, or substances defined as or included in the definition of “hazardous substances,” “hazardous waste,” “hazardous materials,” “extremely hazardous waste,” “restricted hazardous waste,” “toxic substances,” “toxic pollutants,” “contaminants,” or “pollutants,” or words of similar import, under any Environmental Law; and (iii) any other chemical, material, substance or waste, which is prohibited, limited, or regulated or which can give rise to liability under any Environmental Law.
“Hedge Agreements” shall mean (i) 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 (ii) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
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“Hedge Bank” shall mean (i) any Person that, at the time it enters into a Hedge Agreement, is a Lender, an Agent or an Affiliate or branch of a Lender or an Agent, (ii) with respect to any Hedge Agreement entered into prior to the Closing Date, any Person that is a Lender or an Agent or an Affiliate or branch of a Lender or an Agent on the Closing Date or (iii) any other Person as may be designated by the Borrower in writing to the Administrative Agent prior to the Closing Date; provided that, if such Person is not an Agent or a Lender, such Person executes and delivers to the Administrative Agent and the Borrower a letter agreement in form and substance reasonably acceptable to the Administrative Agent and the Borrower pursuant to which such Person (a) appoints the Administrative Agent as its agent under the applicable Credit Documents and (b) agrees to be bound by the provisions of Sections 11, 12, 13, 15 and 26 of the Pledge Agreements and Sections 5.4, 5.5, 5.7, 6.5, 7 and 8.1 of the Security Agreements, in each case, as if it were a Lender.
“Hedging Obligations” shall mean, with respect to any Person, the obligations of such Person under any Hedge Agreements.
“Historical Financial Statements” shall mean (i) the audited consolidated balance sheet and the related audited consolidated statements of income and cash flows of the Diversey Business for the fiscal years ended December 31, 2015 and December 31, 2016, and (ii) the unaudited consolidated balance sheet and the related unaudited consolidated statements of income and cash flows of Diversey Business for the fiscal quarters ended March 31, 2017 and June 30, 2017.
“Holdings” shall mean (i) Holdings (as defined in the preamble to this Agreement) or (ii) after the Closing Date any other Person or Persons (“New Holdings”) that is a Subsidiary of (or are Subsidiaries of) Holdings or of any direct or indirect parent of Holdings (or the previous New Holdings, as the case may be) but not the Borrower (“Previous Holdings”); provided that (a) such New Holdings directly owns 100% of the Equity Interests of the Borrower, (b) New Holdings shall expressly assume all the obligations of Previous Holdings under this Agreement and the other Credit Documents pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, (c) all Capital Stock of the Borrower and substantially all of the other assets of Previous Holdings are contributed or otherwise transferred, directly or indirectly, to such New Holdings and pledged to secure the Obligations, (d) (x) no Event of Default has occurred and is continuing at the time of such substitution and such substitution does not result in any Event of Default, (y) such substitution does not result in any material adverse tax consequences to any Credit Party and (z) such substitution does not result in any material adverse tax consequences to any Lender (unless reimbursed hereunder) or to the Administrative Agent (unless reimbursed hereunder), (e) no Change of Control shall occur, (f) the Administrative Agent shall have received at least five (5) Business Days’ prior written notice of the proposed transaction and Previous Holdings (or such shorter period as the Administrative Agent may agree), New Holdings and the Borrower shall promptly and in any event at least two (2) Business Days’ prior to the consummation of the transaction provide all information any Lender or any Agent may reasonably request to satisfy its “know your customer” and other similar requirements necessary for such Person to comply with its internal compliance and regulatory requirements with respect to the proposed successor New Holdings, (g) New Holdings shall be an entity organized or existing under the laws of the Netherlands, a European Company (Societas Europaea) or a Person organized or existing under the laws of the United States, any State of the United States or the District of Columbia, the United Kingdom or any member state of the European Union, provided that, in the case of any such member state of the European Union other than the United Kingdom, the Netherlands or Luxembourg, either (x) such jurisdiction is not materially disadvantageous to the Lenders on such date, as determined by the Borrower; or (y) such jurisdiction has been approved by the Required Lenders, (h) if reasonably requested by the Administrative Agent, the Credit Parties shall execute and deliver amendments, supplements and other modifications to all Credit Documents, instruments and agreements executed in connection therewith necessary to perfect and protect the liens and security interests in the Collateral of New Holdings, in each case in form and substance consistent with the instruments and agreements previously delivered in respect thereof or reasonably satisfactory to the Administrative Agent (such approval not to be unreasonably withheld, delayed, denied or conditioned), and (i) the Borrower delivers a certificate of an Authorized Officer with respect to the satisfaction of the conditions set forth in clauses (a), (d)(x) and (y), (e) and (g) of this definition; provided, further, that if each of the foregoing is satisfied, Previous Holdings shall be automatically released of all its obligations under the Credit Documents and any reference to “Holdings” in the Credit Documents shall refer to New Holdings.
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“IFRS” shall mean International Financial Reporting Standards, as adopted by the International Accounting Standards Board and/or the European Union, as in effect from time to time.
“Impacted Loans” shall have the meaning provided in Section 2.10(a).
“Increased Amount Date” shall have the meaning provided in Section 2.14(a).
“Incremental Loans” shall have the meaning provided in Section 2.14(c).
“Incremental Revolving Credit Commitments” shall have the meaning provided in Section 2.14(a).
“Incremental Revolving Credit Loans” shall have the meaning provided in Section 2.14(b).
“Incremental Revolving Loan Lenders” shall have the meaning provided in Section 2.14(b).
“Indebtedness” shall mean, with respect to any Person, (i) any indebtedness (including principal and premium), of such Person (a) in respect of borrowed money, (b) evidenced by bonds, notes, debentures or letters of credit or bankers’ acceptances (or, without double counting, reimbursement agreements in respect thereof), (c) representing the balance deferred and unpaid of the purchase price of any property (including Capitalized Lease Obligations), or (d) representing any Hedging Obligations, if and to the extent that any of the foregoing Indebtedness (other than letters of credit and Hedging Obligations) would appear as a net liability upon a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP; provided that Indebtedness of any direct or indirect parent company appearing upon the balance sheet of the Borrower solely by reason of push-down accounting under GAAP shall be excluded, (ii) to the extent not otherwise included, any obligation by such Person to be liable for, or to pay, as obligor, guarantor or otherwise, on the obligations of the type referred to in clause (i) above of another Person (whether or not such items would appear upon the balance sheet of such obligor or guarantor), other than by endorsement of negotiable instruments for collection in the ordinary course of business, and (iii) to the extent not otherwise included, the obligations of the type referred to in clause (i) above of another Person secured by a Lien on any asset owned by such Person, whether or not such Indebtedness is assumed by such Person; provided that notwithstanding the foregoing, Indebtedness shall be deemed not to include (1) Contingent Obligations incurred in the ordinary course of business, (2) obligations under or in respect of Receivables Facilities and Securitization Facilities, (3) prepaid or deferred revenue arising in the ordinary course of business, (4) purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy warrants or other unperformed obligations of the seller of such asset, (5) trade accounts and accrued expenses payable in the ordinary course of business and accruals for payroll and other liabilities accrued in the ordinary course of business, (6) any earn-out obligation until such obligation, within 60 days of becoming due and payable, has not been paid and such obligation is reflected as a liability on the balance sheet of such Person in accordance with GAAP or (7) customary obligations under employment agreements and deferred compensation. The amount of Indebtedness of any Person for purposes of clause (iii) above shall (unless such Indebtedness has been assumed by such Person) be deemed to be equal to the lesser of (x) the aggregate unpaid amount of such Indebtedness and (y) the Fair Market Value of the property encumbered thereby as determined by such Person in good faith.
For all purposes hereof, the Indebtedness of the Borrower and the Restricted Subsidiaries, shall (i) exclude all intercompany Indebtedness having a term not exceeding 365 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business and (ii) obligations constituting non-recourse Indebtedness shall only constitute “Indebtedness” for purposes of Section 10.1 and not for any other purpose hereunder.
“incur” shall have the meaning provided in Section 10.1.
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“Indemnified Liabilities” shall have the meaning provided in Section 13.5.
“Indemnified Persons” shall have the meaning provided in Section 13.5.
“Indemnified Taxes” shall mean all Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Credit Party hereunder or under any other Credit Document or required to be deducted or withheld from any such payment other than (a) Other Taxes or (b) VAT.
“Independent Financial Advisor” shall mean an accounting firm, appraisal firm, investment banking firm or consultant of nationally recognized standing that is, in the good faith judgment of the Borrower, qualified to perform the task for which it has been engaged and that is disinterested with respect to the applicable transaction.
“Initial Euro Term Loan” shall have the meaning provided in Section 2.1(a).
“Initial Euro Term Loan Commitment” shall mean, in the case of each Lender that is a Lender on the Closing Date, the amount set forth opposite such Lender’s name on Schedule 1.1(b) as such Lender’s Initial Euro Term Loan Commitment. The aggregate amount of the Initial Euro Term Loan Commitments as of the Closing Date is €970,000,000.
“Initial USD Term Loan” shall have the meaning provided in Section 2.1(a).
“Initial USD Term Loan Commitment” shall mean, in the case of each Lender that is a Lender on the Closing Date, the amount set forth opposite such Lender’s name on Schedule 1.1(b) as such Lender’s Initial USD Term Loan Commitment. The aggregate amount of the Initial USD Term Loan Commitments as of the Closing Date is $900,000,000.
“Initial Revolving Credit Commitments” shall have the meaning provided in the definition of the term Revolving Credit Commitment.
“Initial Term Loans” shall have the meaning provided in Section 2.1(a).
“Initial Term Loan Commitment” shall mean, collectively, the Initial Euro Term Loan Commitment and the Initial USD Term Loan Commitment.
“Initial Term Loan Lenders” shall mean a Lender with an Initial Term Loan Commitment or an outstanding Initial Term Loan.
“Initial Term Loan Maturity Date” shall mean the date that is the seventh anniversary of the Closing Date, or, if such date is not a Business Day, the immediately preceding Business Day.
“Initial Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(b).
“Initial Term Loan Repayment Date” shall have the meaning provided in Section 2.5(b).
“Insolvent” shall mean, with respect to any Multiemployer Plan, the condition that such Multiemployer Plan is insolvent within the meaning of Section 4245 of ERISA.
“Intellectual Property” shall mean U.S. and non-U.S. intellectual property rights arising under applicable laws, including all (i) (a) patents, inventions, designs, processes, developments, technology, and know-how; (b) copyrights and works of authorship in any media, including graphics, advertising materials, labels, package designs, and photographs; (c) trademarks, service marks, trade names, brand names, corporate names, domain names, logos, trade dress, and other source indicators, and the goodwill of any business symbolized thereby; and (d) trade secrets, confidential, proprietary, or non-public information and (ii) all registrations, issuances, applications, renewals, extensions, substitutions, continuations, continuations-in-part, divisions, re-issues, re-examinations, foreign counterparts, or similar legal protections related to the foregoing.
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“Intercompany License Agreement” shall mean any cost sharing agreement, commission or royalty agreement, license or sub-license agreement, distribution agreement, services agreement, Intellectual Property rights transfer agreement or any related agreements, in each case where all the parties to such agreement are one or more of the Borrower and any Restricted Subsidiary thereof.
“Intercompany Note” shall mean any intercompany note substantially in the form of Exhibit D.
“Interest Coverage Ratio” shall mean, as of any date of determination, the ratio of (i) Consolidated EBITDA for the Test Period then last ended to (ii) the Consolidated Interest Expense of the Borrower for such Test Period.
“Interest Period” shall mean, with respect to any Loan, the interest period applicable thereto, as determined pursuant to Section 2.9.
“Interpolated Rate” shall mean, in relation to any Eurocurrency Rate, the rate per annum determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the applicable Eurocurrency Rate for the longest period (for which the applicable Eurocurrency Rate is available for the applicable currency) that is shorter than the Interest Period of that Eurocurrency Rate Loan and (b) the applicable Eurocurrency Rate for the shortest period (for which such Eurocurrency Rate is available for the applicable currency) that exceeds the Interest Period of that Eurocurrency Rate Loan, in each case, as of 11:00 a.m. (London time) two (2) Business Days prior to the first day of such Interest Period, provided that for the purposes of calculating the Interpolated Rate, the shortest period for which the relevant Eurocurrency Rate is available shall be one month.
“Investment” shall mean, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of loans (including Guarantees), advances, or capital contributions (excluding accounts receivable, credit card and debit card receivables, trade credit, advances to customers, commission, travel, and similar advances to officers, directors, managers and employees, in each case made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests, or other securities issued by any other Person, investments that are required by GAAP to be classified on the balance sheet (excluding the footnotes) of such Person in the same manner as the other investments included in this definition to the extent such transactions involve the transfer of cash or other property or the purchase or other acquisition, in one transaction or a series of related transactions, of all or substantially all of the assets of another Person or assets constituting a business unit, line of business or division of such Person; provided that Investments shall not include, in the case of the Borrower and the Restricted Subsidiaries, intercompany loans, advances, or Indebtedness made to or owing by the Borrower or a Restricted Subsidiary having a term not exceeding 365 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business; provided, further, that, in the event that any Investment is made by Holdings, the Borrower or any Restricted Subsidiary in any Person through substantially concurrent interim transfers of any amount through the Borrower or any Restricted Subsidiaries, then such other substantially concurrent interim transfers shall be disregarded for purposes of Section 10.5.
For purposes of the definition of “Unrestricted Subsidiary” and Section 10.5,
(i) Investments shall include the portion (proportionate to the Borrower’s equity interest in such Subsidiary) of the Fair Market Value of the net assets of a Subsidiary of the Borrower at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Borrower shall be deemed to continue to have a permanent Investment in an Unrestricted Subsidiary in an amount (if positive) equal to (a) the Borrower’s “Investment” in such Subsidiary at the time of such redesignation less (b) the portion (proportionate to the Borrower’s equity interest in such Subsidiary) of the Fair Market Value of the net assets of such Subsidiary at the time of such redesignation; and
(ii) any property transferred to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value at the time of such transfer.
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The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced by any dividend, distribution, interest payment, return of capital, repayment, or other amount received by the Borrower or a Restricted Subsidiary in respect of such Investment (provided that, with respect to amounts received other than in the form of cash or Cash Equivalents, such amount shall be equal to the Fair Market Value of such consideration).
“Investment Grade Rating” shall mean a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other rating agency.
“Investment Grade Securities” shall mean:
(i) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (other than Cash Equivalents),
(ii) debt securities or debt instruments with an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among the Borrower and its Subsidiaries,
(iii) investments in any fund that invests all or substantially all of its assets in investments of the type described in clauses (i) and (ii) above which fund may also hold immaterial amounts of cash pending investment or distribution, and
(iv) corresponding instruments in countries other than the United States customarily utilized for high-quality investments.
“Investor Equity Investment” shall have the meaning provided in the recitals to this Agreement.
“IPO Reorganization Transaction” shall mean transactions taken in connection with and reasonably related to consummating a Qualifying IPO, so long as, after giving effect thereto, the security interest of the Lenders in the Collateral, taken as a whole, is not materially impaired (as determined by the Borrower in good faith).
“IP Security Agreement” shall mean one or more Intellectual Property security agreements by and among one or more of the Credit Parties and the Collateral Agent.
“ISP” shall mean, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
“Issuer Documents” shall mean with respect to any Letter of Credit, the Letter of Credit Request, and any other document, agreement, and instrument entered into by the Letter of Credit Issuer and the Borrower (or Holdings or any Restricted Subsidiary) or in favor of the Letter of Credit Issuer and relating to such Letter of Credit.
“Japanese Yen” shall mean the lawful currency of Japan.
“Joinder Agreement” shall mean an agreement substantially in the form of Exhibit E.
“Joint Lead Arrangers and Joint Bookrunners” shall have the meaning provided on the cover page of this Agreement.
“Judgment Currency” shall have the meaning provided in Section 13.22.
“Junior Debt” shall mean any (i) Indebtedness that is secured by a Lien ranking junior to the Lien on the Collateral securing any First Lien Obligations (other than any permitted intercompany indebtedness owing to Holdings, the Borrower or any Restricted Subsidiary) and (ii) Subordinated Indebtedness.
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“Junior Lien Intercreditor Agreement” shall mean an intercreditor agreement substantially in the form of Exhibit A-1 (with such changes to such form as may be reasonably acceptable to the Administrative Agent and the Borrower) among the Administrative Agent, the Collateral Agent, the Credit Parties and the representatives for purposes thereof for holders of one or more classes of Indebtedness.
“Latest Term Loan Maturity Date” shall mean, at any date of determination, the latest maturity or expiration date applicable to any Term Loan hereunder at such time, including the latest maturity or expiration date of any New Term Loan, any Extended Term Loan, any Refinancing Term Loan or any Replacement Term Loan, in each case as extended in accordance with this Agreement from time to time.
“Legal Reservations” shall mean, with respect to any Foreign Credit Party (a) the principle that equitable remedies (or remedies that are analogous to equitable remedies in other jurisdictions) may be granted or refused at the discretion of a court, the limitation of enforcement by laws related to bankruptcy, concurso mercantil, insolvency, liquidation, reorganization, court schemes, moratoria, administration, examinership and other laws generally affecting the rights of creditors and similar principles or limitations under the laws of any applicable jurisdiction, (b) the time barring of claims under the limitation acts or applicable statutes of limitation under any applicable laws of any Relevant Jurisdiction, the possibility that an undertaking to assume liability for or indemnifying a person against non-payment of stamp duty may be void and defenses of set-off or counterclaim and similar principles or limitations under the laws of any applicable jurisdiction, (c) any other matters which are set out as qualifications or reservation (however described) as to matters of law of general application in the foreign legal opinions delivered in connection with the Credit Documents including, without limitation, financial assistance or capital protection concerns in relation to the Credit Documents, or (d) similar principles, rights and defenses under the laws of any Relevant Jurisdiction to the extent that they are relevant and mandatorily applicable.
“L/C Borrowing” shall mean an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on or prior to the applicable Reimbursement Date or refinanced on the applicable Reimbursement Date as a Borrowing of Revolving Loans pursuant to the terms of this Agreement.
“L/C Credit Extension” shall mean, with respect to any letter of credit issued hereunder, the issuance thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof.
“L/C Facility Maturity Date” shall mean 5 Business Days before the scheduled Maturity Date then in effect for the applicable Class of Revolving Commitments (or, if such day is not a Business Day, the next preceding Business Day); provided that the L/C Facility Maturity Date may be extended beyond such date with the consent of the applicable Letter of Credit Issuer.
“L/C Obligations” shall mean, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit (including, without limitation, any and all Letters of Credit for which documents have been presented that have not been honored or dishonored) plus the aggregate of all Unpaid Drawings, including all L/C Borrowings. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.13 and Rule 3.14 of the International Standby Practices (ISP98), such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Stated Amount of such Letter of Credit in effect at such time.
“L/C Participant” shall have the meaning provided in Section 3.3(a).
“L/C Participation” shall have the meaning provided in Section 3.3(a).
“LCT Election” shall have the meaning provided in Section 1.12(f).
“LCT Test Date” shall have the meaning provided in Section 1.12(f).
“Lender” shall have the meaning provided in the preamble to this Agreement.
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“Lender Default” shall mean (i) the refusal or failure of any Lender to make available its portion of any incurrence of Loans or Reimbursement Obligations, which refusal or failure is not cured within two Business Days after the date of such refusal or failure, (ii) the failure of any Lender to pay over to the Administrative Agent, the Letter of Credit Issuer or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute, (iii) a Lender has notified the Borrower, the Letter of Credit Issuer and the Administrative Agent that it does not intend to comply with its funding obligations under this Agreement or has made a public statement to that effect with respect to its funding obligations under this Agreement, (iv) a Lender has failed to confirm in a manner reasonably satisfactory to the Administrative Agent, the Borrower and, in the case of a Revolving Lender, the Letter of Credit Issuer that it will comply with its funding obligations under this Agreement (provided that such Lender shall not be in Lender Default pursuant to this clause (iv) upon receipt of such written confirmation by the Administrative Agent, the Borrower and, in the case of a Revolving Lender, the Letter of Credit Issuer), (v) a Distressed Person has admitted in writing that it is insolvent or such Distressed Person becomes subject to a Lender-Related Distress Event or (vi) a Lender that has, or has a direct or indirect parent company that has, become the subject of a Bail-In Action.
“Lender-Related Distress Event” shall mean, with respect to any Lender or any other Person that directly or indirectly controls such Lender (each, a “Distressed Person”), (a)(i) that such Distressed Person is or becomes subject to a voluntary or involuntary case with respect to such Distressed Person under any debt relief law, (b) a custodian, conservator, receiver, or similar official is appointed for such Distressed Person or any substantial part of such Distressed Person’s assets (other than the appointment of a custodian, conservator, receiver, or similar official by a Governmental Authority under or based on the law in the country where such Lender or any Person that directly or indirectly controls such Lender is subject to home jurisdiction, if applicable law requires that such appointment not be disclosed), or (c) such Distressed Person is subject to a forced liquidation, makes a general assignment for the benefit of creditors or is otherwise adjudicated as, or determined by any Governmental Authority having regulatory authority over such Distressed Person or its assets to be, insolvent or bankrupt; provided that a 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” shall mean each letter of credit issued pursuant to Section 3.1 and each Existing Letter of Credit.
“Letter of Credit Commitment” shall mean $50,000,000, as the same may be reduced from time to time pursuant to Section 3.1.
“Letter of Credit Exposure” shall mean, with respect to any Lender, at any time, the sum of (i) the principal amount of any Unpaid Drawings in respect of which such Lender has made (or is required to have made) payments to the Letter of Credit Issuer pursuant to Section 3.4(a) at such time and (ii) such Lender’s Revolving Credit Commitment Percentage of the Letters of Credit Outstanding at such time (excluding the portion thereof consisting of Unpaid Drawings in respect of which the Lenders have made (or are required to have made) payments to the Letter of Credit Issuer pursuant to Section 3.4(a)).
“Letter of Credit Fee” shall have the meaning provided in Section 4.1(b).
“Letter of Credit Issuer” shall mean (i) Credit Suisse AG, Cayman Islands Branch, (ii) Goldman Sachs Bank USA, (iii) Bank of America, N.A., (iv) Barclays Bank PLC, (v) Citibank N.A. (vi) Royal Bank of Canada, (vii) HSBC Bank USA, N.A., (viii) Sun Trust Bank, (ix) Jefferies Finance, LLC (in the case of the preceding clauses (i), (ii), (iv), (vi), (viii) and (ix), such financial institutions shall not be required to provide any trade letters of credit), (x), any other Lender which has agreed in writing to be an additional Letter of Credit Issuer under any Class of Revolving Commitments (for purposes of standby, trade or both standby and trade letters of credit) and is reasonably acceptable to the Borrower and (xi) any of the foregoing entities’ respective Affiliates or branches approved by the Borrower; provided, that Credit Suisse AG, Cayman Islands Branch shall not be obligated to issue Letters of Credit from a branch located in the U.S. At any time there is more than one Letter of Credit Issuer references herein and in the other Credit Documents to the Letter of Credit Issuer shall be deemed to refer to the Letter of Credit Issuer in respect of the Letter of Credit or to all Letter of Credit Issuers, as the context requires.
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“Letter of Credit Percentage” shall mean, with respect to (i) Credit Suisse AG, Cayman Islands Branch 19.75%, (ii) Goldman Sachs Bank USA, 19.75%, (iii) Bank of America, N.A., 11.25%, (iv) Barclays Bank PLC, 11.25%, (v) Citibank N.A., 11.25%, (vi) Royal Bank of Canada, 11.25%, (vii) HSBC Bank USA, N.A., 6.25%, (viii) Sun Trust Bank, 6.25%, (ix) Jefferies Finance, LLC, 3.0%, (in each case as may be reduced to reflect any percentage allocated to another Letter of Credit Issuer pursuant to the immediately succeeding clause (x), and (x) any other Letter of Credit Issuer, a percentage to be agreed between the Borrower and such Letter of Credit Issuer.
“Letter of Credit Request” shall mean a notice executed and delivered by the Borrower pursuant to Section 3.2, and substantially in the form of Exhibit F or another form which is acceptable to the Letter of Credit Issuer and the Borrower, each in its reasonable discretion.
“Letters of Credit Outstanding” shall mean, at any time the sum of, without duplication, (i) the aggregate Stated Amount of all outstanding Letters of Credit (including, without limitation, any and all Letters of Credit for which documents have been presented that have not been honored or dishonored) and (ii) the aggregate amount of the principal amount of all Unpaid Drawings.
“Lien” shall mean with respect to any asset, any mortgage, lien, 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, and any lease in the nature thereof; provided that in no event shall an operating lease or a non-exclusive license to use Intellectual Property be deemed to constitute a Lien.
“Limited Condition Transaction” shall mean (i) any Permitted Acquisition or other permitted acquisition or Investment (including acquisitions subject to a letter of intent or purchase agreement) whose consummation is not conditioned on the availability of, or on obtaining, third party financing, (ii) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment and (iii) any Restricted Payment.
“Loan” shall mean any Revolving Loan or Term Loan or any other loan made by any Lender hereunder.
“Management Equityholders” shall mean any of (i) any current or former director, officer, employee or member of management of Holdings or any of its Subsidiaries or any direct or indirect parent company thereof who is an equityholder (including with respect to warrants and options) in Holdings or any direct or indirect parent thereof, (ii) any trust, partnership, limited liability company, corporate body or other entity established by any such director, officer, employee or member of management of Holdings or any of its Subsidiaries or any direct or indirect parent thereof or any Person described in the succeeding clauses (iii) and (iv), as applicable, to hold an investment in Holdings or any direct or indirect parent thereof in connection with such Person’s estate or tax planning, (iii) any spouse, former spouse, parents or grandparents of any such director, officer, employee or member of management of Holdings or any of its Subsidiaries or any direct or indirect parent thereof, and any and all descendants (including adopted children and step-children) of the foregoing, together with any spouse or former spouse of any of the foregoing Persons, who are transferred an investment in Holdings or any direct or indirect parent thereof by any such director, officer, employee or member of management of Holdings or any of its Subsidiaries or any direct or indirect parent thereof in connection with such Person’s estate or tax planning and (iv) any Person who acquires an investment in Holdings or any direct or indirect parent thereof by will or by the laws of intestate succession as a result of the death of any such director, officer, employee or member of management of Holdings or any of its Subsidiaries or any direct or indirect parent thereof.
“Management Co-Invest” shall have the meaning provided in the recitals to this Agreement.
“Master Agreement” shall have the meaning provided in the definition of the term “Hedge Agreement.”
“Material Adverse Effect” shall mean (a) on the Closing Date, a “Material Adverse Effect” (as defined in the Acquisition Agreement) and (b) after the Closing Date, a material and adverse effect on (i) the business, results of operations or financial condition of the Borrower and its Restricted Subsidiaries, taken as a whole, or (ii) the material remedies (taken as a whole) of the Administrative Agent and the Lenders under the Credit Documents.
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“Material Subsidiary” shall mean, at any date of determination, each Wholly-Owned Restricted Subsidiary (together with its Restricted Subsidiaries) (i) whose total assets at the last day of the Test Period ending on the last day of the most recent fiscal period for which Section 9.1 Financials have been delivered were equal to or greater than 5.00% of the Consolidated Total Assets of the Borrower and the Restricted Subsidiaries at such date or (ii) whose revenues during such Test Period were equal to or greater than 5.00% of the consolidated revenues of the Borrower and the Restricted Subsidiaries for such period (in the case of any determination relating to any Specified Transaction, on a Pro Forma Basis including the revenues of any Person being acquired in connection therewith), in each case determined in accordance with GAAP; provided that if, at any time and from time to time after the Closing Date, Restricted Subsidiaries that are not Material Subsidiaries (other than Restricted Subsidiaries that are Excluded Subsidiaries other than by virtue of clause (b) of the definition of “Excluded Subsidiary”) have, in the aggregate, (a) total assets at the last day of such Test Period equal to or greater than 7.50% of the Consolidated Total Assets of the Borrower and the Restricted Subsidiaries at such date or (b) revenues during such Test Period equal to or greater than 7.50% of the consolidated revenues of the Borrower and the Restricted Subsidiaries for such period, in each case determined in accordance with GAAP, then the Borrower shall, within 30 days after the date on which financial statements for the last quarter of such Test Period are delivered pursuant to this Agreement (or such longer period as the Administrative Agent agrees is its reasonable discretion), designate in writing to the Administrative Agent one or more of such Restricted Subsidiaries as Material Subsidiaries for each fiscal period until this proviso is no longer applicable.
“Maturity Date” shall mean the Initial Term Loan Maturity Date, any New Term Loan Maturity Date, the Revolving Credit Maturity Date or the maturity date of an Extended Term Loan, a Replacement Term Loan, a Refinancing Term Loan, an Extended Revolving Credit Loan, an Additional Revolving Credit Loan or a Refinancing Revolving Credit Loan, as applicable.
“Maximum Amount” shall have the meaning set forth in Section 13.6(a).
“Maximum Incremental Facilities Amount” shall mean, at any date of determination, an aggregate principal amount of up to the sum of (i) the greater of (x) $387,000,000 and (y) Consolidated EBITDA (on a Pro Forma Basis) for the most recent Test Period then ended for which financial statements have been or are required to be delivered, minus, subject to the last sentence in this definition, the sum of (1) the aggregate principal amount of Incremental Loans incurred (including any unused commitments obtained) pursuant to Section 2.14(a) prior to such date in reliance on this clause (i) and (2) the aggregate principal amount of Permitted Other Indebtedness issued or incurred (including any unused commitments obtained) pursuant to Section 10.1(x)(a) prior to such date in reliance on this clause (i), plus (ii) the aggregate amount of (x) voluntary prepayments of Term Loans, Incremental Loans and Permitted Other Indebtedness (including purchases of the Loans by Holdings, the Borrower or any of its Subsidiaries at or below par, in which case the amount of voluntary prepayments of Loans shall be deemed not to exceed the actual purchase price of such Loans below par, other debt buybacks and prepayments in connection with Section 13.8) and (y) permanent commitment reductions in respect of Revolving Loans, other than in each case under clauses (x) and (y) above, from proceeds of long-term Indebtedness (other than revolving Indebtedness), minus, subject to the last sentence in this definition, the sum of (1) the aggregate principal amount of Incremental Loans incurred (including any unused commitments obtained) pursuant to Section 2.14(a) prior to such date in reliance on this clause (ii) and (2) the aggregate principal amount of Permitted Other Indebtedness issued or incurred (including any unused commitments obtained) pursuant to Section 10.1(x)(a) prior to such date in reliance on this clause (ii), plus (iii) an unlimited amount, so long as in the case of this clause (iii) only, such amount at such date of determination can be incurred without causing (x) in the case of Incremental Loans or Permitted Other Indebtedness secured with a Lien on the Collateral ranking pari passu with the Liens securing any First Lien Obligations, the First Lien Net Leverage Ratio to exceed 4.75 to 1.00 as of the most recently ended Test Period, (y) in the case of Incremental Loans or Permitted Other Indebtedness consisting of Junior Debt, the Secured Net Leverage Ratio (on a Pro Forma Basis) to exceed 4.75 to 1.00 as of the most recently ended Test Period, or (z) in the case of unsecured Indebtedness or secured Indebtedness that is not secured by the Collateral, the Interest Coverage Ratio would not be less than 2.00 to 1.00 as of the most recently ended Test Period, in each case on a Pro Forma Basis, and after giving effect to any Specified Transaction consummated in connection therewith and assuming for purposes of this calculation that (1) the full committed amount of any new Incremental Revolving Credit Commitments and/or any Permitted Other Indebtedness constituting a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness, and (2) any cash proceeds of any new Incremental Loans and/or Permitted Other Indebtedness, as applicable, then being incurred shall not be netted from the numerator in the First Lien Net Leverage Ratio, Secured Net Leverage Ratio or Interest Coverage Ratio, as applicable, for purposes of calculating the First Lien Net Leverage Ratio, Secured Net Leverage Ratio or Interest Coverage Ratio, as applicable, under this clause (iii) for purposes of determining whether such Incremental Loans and Permitted Other Indebtedness can be incurred (provided, however, that if amounts incurred under this clause (iii) are incurred concurrently with the incurrence of Incremental Loans and/or Permitted Other Indebtedness (in each case, including any unused commitments obtained) in reliance on clause (i) and/or clause (ii) above, the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio or Interest Coverage Ratio shall be calculated without giving effect to such amounts incurred (or commitments obtained) in reliance on the foregoing clause (i) and/or clause (ii)); provided further, for the avoidance of doubt, to the extent the proceeds of any Incremental Loans are being utilized to repay Indebtedness, such calculations shall give pro forma effect to such repayments). The Borrower may elect to use clause (iii) above regardless of whether the Borrower has capacity under clause (i) or clause (ii) above. Further, the Borrower may elect to use clause (iii) above prior to using clause (i) or clause (ii) above, and if both clause (iii) and clause (i) and/or clause (ii) are available and the Borrower does not make an election, then the Borrower will be deemed to have elected to use clause (iii) above. Notwithstanding the foregoing, the Borrower may re-designate any Indebtedness originally designated as incurred under clause (i) and/or clause (ii) above as having been incurred under clause (iii), so long as at the time of such re-designation, the Borrower would be permitted to incur under clause (iii) the aggregate principal amount of Indebtedness being so re-designated (for purposes of clarity, with any such re-designation having the effect of increasing the Borrower’s ability to incur Indebtedness under clause (i) and/or clause (ii) above on and after the date of such re-designation by the amount of Indebtedness so re-designated).
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“Maximum Rate” shall have the meaning provided in Section 5.6(c).
“Minimum Borrowing Amount” shall mean (i) with respect to a Borrowing of Eurocurrency Loans, $250,000 (or, if less, the entire remaining applicable Commitments at the time of such Borrowing) and (ii) with respect to a Borrowing of ABR Loans, $250,000 (or, if less, the entire remaining applicable Commitments at the time of such Borrowing).
“Minimum Collateral Amount” shall mean, at any time, (i) with respect to Cash Collateral consisting of cash or Cash Equivalents or deposit account balances provided to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to 100% of the Fronting Exposure of the Letter of Credit Issuer with respect to Letters of Credit issued and outstanding at such time and (ii) with respect to Cash Collateral consisting of cash or Cash Equivalents or deposit account balances provided in accordance with the provisions of Section 3.8(a)(i), (a)(ii), or (a)(iii), an amount equal to 100% of the outstanding amount of all L/C Obligations.
“Minimum Tender Condition” shall have the meaning provided in Section 2.15(b).
“MNPI” shall mean, with respect to any Person, information and documentation that is (a) of a type that would not be publicly available (and could not be derived from publicly available information) if such Person and its Subsidiaries were public reporting companies and (b) material with respect to such Person, its Subsidiaries or the respective securities of such Person and its Subsidiaries for purposes of United States Federal and state securities laws, in each case, assuming such laws were applicable to such Person and its Subsidiaries.
“Moody’s” shall mean Moody’s Investors Service, Inc. or any successor by merger or consolidation to its business.
“Mortgage” shall mean a mortgage, deed of trust, deed to secure debt, trust deed, or other security document entered into by the Domestic Subsidiary owning the applicable Mortgaged Property and the Collateral Agent for the benefit of the Secured Parties in respect of that Mortgaged Property to secure the Obligations, in form and substance reasonably acceptable to the Collateral Agent and the Borrower, together with such terms and provisions as may be required by local laws.
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“Mortgaged Property” shall mean each parcel of fee-owned real property located in the United States and owned by a Domestic Subsidiary and improvements thereto with respect to which a Mortgage is granted pursuant to Section 9.14, if any.
“Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA subject to Title IV of ERISA to which any Credit Party makes or is obligated to make contributions, or otherwise has any liability (including on account of an ERISA Affiliate).
“Net Cash Proceeds” shall mean, with respect to any Prepayment Event and any incurrence of Permitted Other Indebtedness, Refinancing Term Loans or Replacement Term Loans, (i) the gross cash proceeds (including payments from time to time in respect of installment obligations, if applicable, but only as and when received) received by or on behalf of the Borrower or any of the Restricted Subsidiaries in respect of such Prepayment Event or incurrence of Permitted Other Indebtedness, Refinancing Term Loans or Replacement Term Loans, as the case may be, less (ii) the sum of:
(a) the amount, if any, of all taxes (including, in each case, in connection with any repatriation of funds) paid or estimated to be payable by the Borrower or any of the Restricted Subsidiaries and distributions with respect to taxes made under Section 10.5(b)(15)) in connection with such Prepayment Event or incurrence of Permitted Other Indebtedness, Refinancing Term Loans or Replacement Term Loans,
(b) the amount of any reasonable reserve established in accordance with GAAP against any liabilities (other than any taxes or distributions with respect to taxes deducted pursuant to clause (a) above) (1) associated with the assets that are the subject of such Prepayment Event or otherwise reasonably expected to be payable in connection with such transactions and (2) retained by the Borrower or any of the Restricted Subsidiaries; provided that the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Cash Proceeds of such a Prepayment Event occurring on the date of such reduction,
(c) the amount of any Indebtedness (other than the Loans and Permitted Other Indebtedness) secured by a Lien on the assets that are the subject of such Prepayment Event to the extent that the instrument creating or evidencing such Indebtedness requires that such Indebtedness be repaid upon consummation of such Prepayment Event,
(d) in the case of any Asset Sale Prepayment Event or Casualty Event, the amount of any proceeds of such Prepayment Event that the Borrower or any Restricted Subsidiary has reinvested (or intends to reinvest within the Reinvestment Period or has entered into a commitment or letter of intent prior to the last day of the Reinvestment Period to reinvest) in the business of the Borrower or any of the Restricted Subsidiaries, including by using such proceeds to acquire, maintain, develop, construct, improve, upgrade or repair any asset used or useful in the business of the Borrower or its Restricted Subsidiaries or to make Permitted Acquisitions or any acquisition, Capital Expenditures or Investments not prohibited by this Agreement; provided that an amount equal to any portion of such proceeds that has not been so reinvested within such Reinvestment Period (with respect to such Prepayment Event, the “Deferred Net Cash Proceeds”) shall, unless the Borrower or a Restricted Subsidiary has entered into a commitment or letter of intent with respect thereto prior to the last day of such Reinvestment Period to reinvest such proceeds no later than 6 months following the last day of such Reinvestment Period, (1) be deemed to be Net Cash Proceeds of an Asset Sale Prepayment Event or Casualty Event occurring on the last day of such Reinvestment Period or, if later, 6 months after the date the Borrower or such Restricted Subsidiary has entered into such commitment or letter of intent, as applicable (such last day or the last day of the 6 month period following the last day of such Reinvestment Period, as applicable, the “Deferred Net Cash Proceeds Payment Date”), and (2) be applied to the repayment of Term Loans in accordance with Section 5.2(a)(i) (it being understood that, so long as an amount equal to the amount of Net Cash Proceeds required to be applied in accordance with Section 5.2(a)(i) is applied by the Borrower, nothing in this Agreement (including Section 5) shall be construed to require any Foreign Subsidiary to repatriate cash),
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(e) in the case of any Asset Sale Prepayment Event or Casualty Event by a non-Wholly-Owned Restricted Subsidiary, the pro rata portion of the Net Cash Proceeds thereof (calculated without regard to this clause (e)) attributable to minority interests and not available for distribution to or for the account of the Borrower or a Wholly-Owned Restricted Subsidiary as a result thereof,
(f) in the case of any Asset Sale Prepayment Event, any funded escrow established pursuant to the documents evidencing any such sale or disposition to secure any indemnification obligations or adjustments to the purchase price associated with any such sale or disposition; provided that the amount of any subsequent reduction of such escrow (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Cash Proceeds of such a Prepayment Event occurring on the date of such reduction solely to the extent that the Borrower and/or any Restricted Subsidiaries receives cash in an amount equal to the amount of such reduction, and
(g) all fees and out of pocket expenses paid by the Borrower or a Restricted Subsidiary in connection with any of the foregoing (for the avoidance of doubt, including, (1) in the case of the issuance of Indebtedness, any fees, underwriting discounts, premiums, and other costs and expenses incurred in connection with such issuance and (2) attorney’s fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, underwriting discounts and commissions, other customary expenses, and brokerage, consultant, accountant, and other customary fees),
in each case, only to the extent not already deducted in arriving at the amount referred to in clause (i) above.
“Net Income” shall mean, with respect to any Person, the net income (loss) of such Person and its Restricted Subsidiaries, determined in accordance with GAAP and before any reduction in respect of preferred Capital Stock dividends.
“New Holdings” shall have the meaning provided in the definition of “Holdings.”
“New Loan Commitments” shall have the meaning provided in Section 2.14(a).
“New Refinancing Revolving Credit Commitments” shall have the meaning provided in Section 2.14(h).
“New Refinancing Term Loan Commitments” shall have the meaning provided in Section 2.14(h).
“New Revolving Credit Commitments” shall have the meaning provided in Section 2.14(a).
“New Revolving Credit Loan” shall have the meaning provided in Section 2.14(b).
“New Revolving Loan Lender” shall have the meaning provided in Section 2.14(b).
“New Term Loan” shall have the meaning provided in Section 2.14(c).
“New Term Loan Commitments” shall have the meaning provided in Section 2.14(a).
“New Term Loan Lender” shall have the meaning provided in Section 2.14(c).
“New Term Loan Maturity Date” shall mean the date on which a New Term Loan matures.
“New Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(c).
“New Term Loan Repayment Date” shall have the meaning provided in Section 2.5(c).
“Non-Bank Tax Certificate” shall have the meaning provided in Section 5.4(e)(ii)(B)(3).
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“Non-Consenting Lender” shall have the meaning provided in Section 13.8(b).
“Non-Defaulting Lender” shall mean and include each Lender other than a Defaulting Lender.
“Non-Extension Notice Date” shall have the meaning provided in Section 3.2(d).
“Non-Public Lender” means until interpretation of “public” as referred to in the CRR by the relevant authority/ies: an entity that provides repayable funds to the Borrower for a minimum amount of EUR 100,000 (or its equivalent in another currency) or following the publication of an interpretation of “public” as referred to in the CRR by the relevant authority/ies: such amount or such criterion as a result of which such entity shall qualify as not forming part of the public.
“Non-U.S. Lender” shall mean any Lender that is not a “United States person” as defined by Section 7701(a)(30) of the Code.
“Notice of Borrowing” shall mean a notice of borrowing substantially in the form of Exhibit J.
“Notice of Conversion or Continuation” shall have the meaning provided in Section 2.6(a).
“Notice of Drawing” shall have the meaning provided in Section 3.4(a).
“Obligations” shall mean, collectively, the U.S. Obligations and the Foreign Obligations.
“OFAC” shall have the meaning set forth in Section 8.20(c).
“Organizational Documents” shall mean, with respect to any Person, such Person’s charter, memorandum and articles of association, articles or certificate of organization or incorporation and bylaws or other organizational or governing or constitutive documents of such Person.
“Other Connection Taxes” shall mean, with respect to any Recipient, all Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than any such connection arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any Loan or Credit Document).
“Other Taxes” shall mean all present or future stamp, registration, court or documentary or similar Taxes or any other intangible, mortgage recording, filing or similar Taxes arising from any payment made hereunder or under any other Credit Document or from the execution, delivery, performance, enforcement or registration of, the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Credit Document; provided that such term shall not include (i) any Other Connection Taxes that result from an assignment, grant of a participation pursuant to Section 13.7(c) or transfer or assignment to or designation of a new lending office or other office for receiving payments under any Credit Document, except to the extent that any such action described in this proviso is requested or required by the Borrower, (ii) Excluded Taxes, or (iii) VAT.
“Outstanding Amount” shall mean (a) with respect to the Loans on any date, the outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Term Loans and Revolving Loans (including any refinancing of outstanding unpaid drawings under Letters of Credit or any L/C Borrowing), as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the outstanding amount thereof on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes thereto as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit issued hereunder (including any refinancing of outstanding unpaid drawings under Letters of Credit issued hereunder or any L/C Borrowing) or any reductions in the maximum amount available for drawing under letters of credit issued hereunder taking effect on such date.
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“Overnight Rate” shall mean, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Effective Rate and (ii) an overnight rate determined by the Administrative Agent or the Letter of Credit Issuer as the case may be, in accordance with banking industry rules on interbank compensation, and (b) with respect to any amount denominated in an Alternative Currency, the rate of interest per annum at which overnight deposits in the applicable Alternative Currency, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or Affiliate of the Administrative Agent in the applicable offshore interbank market for such currency to major banks in such interbank market.
“Parallel Debt” shall have the meaning given to that term in Section 12.14.
“Pari Intercreditor Agreement” shall mean an intercreditor agreement substantially in the form of Exhibit A-2 (with such changes to such form as may be reasonably acceptable to the Administrative Agent and the Borrower) among the Administrative Agent, the Collateral Agent, the Credit Parties and the representatives for purposes thereof for holders of one or more classes of Indebtedness.
“Participant” shall have the meaning provided in Section 13.7(c)(i).
“Participant Register” shall have the meaning provided in Section 13.7(c)(ii).
“Participating Member State” shall mean any member state of the European Union that adopts or has adopted the Euro as its lawful currency in accordance with legislation of the European Union relating to economic and monetary union.
“Patriot Act” shall have the meaning provided in Section 13.19.
“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“Perfection Requirements” shall mean the making or procuring of appropriate registrations, filings, endorsements, stampings, certified translations, notarizations, acknowledgments, legalization by consular authorities, or delivery of notices and/or the actions and steps required to be made in any Relevant Jurisdiction in order to perfect the security interests created or purported to be created pursuant to the Security Documents or in order to achieve the relevant priority for such Collateral.
“Pension Plan” shall mean any employee pension benefit plan (as defined in Section 3(2) of ERISA, but excluding any Multiemployer Plan) subject to Title IV of ERISA or Section 412 of the Code in respect of which any Credit Party is (or, if such plan were terminated, would under Section 4062 or Section 4069 of ERISA be reasonably expected to be deemed to be) an “employer” as defined in Section 3(5) of ERISA or has liability on account of an ERISA Affiliate.
“Permitted Acquisition” shall have the meaning provided in clause (iii) of the definition of “Permitted Investments.”
“Permitted Asset Swap” shall mean the concurrent purchase and sale or exchange of Related Business Assets or a combination of Related Business Assets and cash or Cash Equivalents between the Borrower or a Restricted Subsidiary and another Person; provided that any cash or Cash Equivalents received shall be applied in accordance with Section 10.4.
“Permitted Debt Exchange” shall have the meaning provided in Section 2.15(a).
“Permitted Debt Exchange Notes” shall have the meaning provided in Section 2.15(a).
“Permitted Debt Exchange Offer” shall have the meaning provided in Section 2.15(a).
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“Permitted Holder” shall mean any of (i) any Sponsor, any Sponsor’s Affiliates (other than any portfolio company of the Sponsor) and the Management Equityholders and any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of which any of the foregoing are members; provided that, in the case of such group and without giving effect to the existence of such group or any other group, the Sponsor, the Sponsor’s Affiliates and the Management Equityholders, collectively, have beneficial ownership of more than 50% of the aggregate ordinary voting power of the outstanding Voting Stock of Holdings or any other direct or indirect parent of Holdings; (ii) any direct or indirect parent of the Borrower not formed in connection with, or in contemplation of, a transaction (other than the Transactions) that, assuming such parent was not formed, after giving effect thereto would constitute a Change of Control; and (iii) any Person who is acting solely as an underwriter in connection with a public or private offering of Capital Stock of any direct or indirect parent of Holdings, acting in such capacity.
“Permitted Investments” shall mean:
(i) any Investment in the Borrower or any Restricted Subsidiary;
(ii) any Investment in cash, Cash Equivalents, or Investment Grade Securities at the time such Investment is made;
(iii) (a) the Transactions and Investments made to effect, or otherwise made in connection with, the Transactions (including under the Acquisition Agreement) and (b) any Investment by the Borrower or any Restricted Subsidiary in a Person if as a result of such Investment under this clause (iii)(b) (each, a “Permitted Acquisition”), (x) the Borrower and its Restricted Subsidiaries shall be in compliance with Section 9.16, and (y) either (1) such Person becomes a Restricted Subsidiary or is designated as an Unrestricted Subsidiary pursuant to the terms hereof or (2) such Person, in one transaction or a series of related transactions, is merged, consolidated, or amalgamated with or into, or transfers or conveys all or substantially all of its assets, or transfers or conveys assets constituting a business unit, line of business or division of such Person, to, or is liquidated into, the Borrower or a Restricted Subsidiary, and, in each case, any Investment held by such Person and the Borrower or Restricted Subsidiary shall otherwise comply with Sections 9.11 and 9.12;
(iv) any Investment in securities or other assets not constituting cash, Cash Equivalents, or Investment Grade Securities and received in connection with an Asset Sale made pursuant to Section 10.4 or any other disposition of assets not constituting an Asset Sale;
(v) (a) any Investment existing or contemplated on the Closing Date and to the extent in excess of (x) $7,500,000 individually or (y) $15,000,000 in the aggregate, in each case, listed on Schedule 10.5 and (b) Investments consisting of any modification, replacement, renewal, refinancing, reinvestment, or extension of any such Investment; provided that the amount of any such Investment is not increased from the amount of such Investment on the Closing Date except (x) pursuant to the terms of such Investment (including in respect of any unused commitment), plus any accrued but unpaid interest (including any portion thereof which is payable in kind in accordance with the terms of such modified, extended, renewed, refinanced or replaced Investment) and premium payable by the terms of such Investment thereon and fees and expenses associated therewith as in existence on the Closing Date and/or (y) as permitted under Section 10.5 or any other clause of this definition of “Permitted Investments”;
(vi) any Investment acquired by the Borrower or any Restricted Subsidiary (a) in exchange for any other Investment or accounts receivable held by the Borrower or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization, or recapitalization of, or settlement of delinquent accounts or disputes with or judgments against, the issuer, obligor or borrower of such original Investment or accounts receivable, (b) as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default or (c) as a result of the settlement, compromise or resolution of litigation, arbitration or other disputes with Persons who are not Affiliates;
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(vii) Hedging Obligations permitted under Section 10.1, Cash Management Services and Bank Products;
(viii) any Investment in a Similar Business having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (viii) that are at that time outstanding, not to exceed the greater of (a) $125,000,000 and (b) 32.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such Investment (with the Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); provided, however, that if any Investment pursuant to this clause (viii) is made in any Person that is not a Restricted Subsidiary at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (i) above and shall cease to have been made pursuant to this clause (viii) for so long as such Person continues to be a Restricted Subsidiary;
(ix) Investments the payment for which consists of Equity Interests of the Borrower or any direct or indirect parent company of the Borrower (exclusive of Disqualified Stock) or the proceeds received from the issuance of such Equity Interests; provided that such Equity Interests or the proceeds of such Equity Interests will not increase the amount available for Restricted Payments under Section 10.5(a)(iii)(B);
(x) Investments consisting of or resulting from Indebtedness, Liens, Restricted Payments (solely with respect to clauses (1) through (3) of the definition thereof) and dispositions permitted hereunder, in each case other than by reference to this clause (x);
(xi) Investments incurred in the ordinary course of business in connection with cash pooling arrangements, cash management and other Investments incurred in the ordinary course of business in respect of netting services, overdraft protections and similar arrangements, in each case in connection with cash management;
(xii) Investments consisting of purchases and acquisitions of inventory, supplies, material, equipment, or other similar assets, or of services, in the ordinary course of business;
(xiii) (a) additional Investments having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (xiii) that are at that time outstanding, not to exceed the greater of (a) $125,000,000 and (b) 32.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such Investment (with the Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value but giving effect to Returns); provided, however, that if any Investment pursuant to this clause (xiii) is made in any Person that is not a Restricted Subsidiary at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such investment shall thereafter be deemed to have been made pursuant to clause (i) above and shall cease to have been made pursuant to this clause (xiii) for so long as such Person continues to be a Restricted Subsidiary plus (b) at the option of the Borrower, any amounts available for use under the General Subordinated Payments Basket or the General Restricted Payments Basket (in each case, after taking into account any past amounts that have been re-designated by the Borrower) and redesignated by the Borrower as increasing amounts available for use under this clause (xiii);
(xiv) (a) any Investment in a Receivables Subsidiary or a Securitization Subsidiary in order to effectuate a Receivables Facility or a Qualified Securitization Financing, respectively, or any Investment by a Receivables Subsidiary or a Securitization Subsidiary in any other Person in connection with a Receivables Facility or a Qualified Securitization Financing, respectively; provided, however, that any such Investment in a Receivables Subsidiary or a Securitization Subsidiary is in the form of a contribution of additional Receivables Assets or Securitization Assets, as applicable, or as equity, and (b) distributions or payments of Receivables Fees or Securitization Fees and purchases of Receivables Assets or Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Receivables Facility or a Qualified Securitization Financing, respectively;
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(xv) loans and advances to, or guarantees of Indebtedness of, officers, directors, managers and employees in an aggregate principal amount at any time outstanding under this clause (xv) not in excess of the greater of (a) $19,000,000 and (b) 5.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such Investment;
(xvi) (a) loans and advances to officers, directors, managers, and employees for business-related travel expenses, payroll advances, moving expenses, and other similar expenses, in each case incurred in the ordinary course of business or to fund such Person’s purchase of Equity Interests of the Borrower or any direct or indirect parent thereof and (b) promissory notes received from equityholders of the Borrower, any direct or indirect parent of the Borrower or any Subsidiary thereof in connection with the exercise of stock or other options in respect of the Equity Interests of the Borrower, any direct or indirect parent of the Borrower and its Subsidiaries;
(xvii) asset purchases (including purchases of inventory, supplies and materials) and the licensing or contribution of Intellectual Property pursuant to joint marketing arrangements with other Persons;
(xviii) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(xix) non-cash Investments in connection with Permitted Reorganizations or an IPO Reorganization Transaction;
(xx) the licensing or contribution of Intellectual Property in the ordinary course of business;
(xxi) Investments of any Person existing at the time such Person becomes a Restricted Subsidiary or consolidates, amalgamates or merges with the Borrower or any Restricted Subsidiary (including in connection with an Acquisition or other Investment permitted hereunder);
(xxii) Investments in deposit accounts, commodities accounts, and securities accounts opened in the ordinary course of business;
(xxiii) deposits required under any Contractual Requirement or by any Governmental Authority or public utility, including with respect to Taxes and other similar charges;
(xxiv) Investments in prepaid expenses, negotiable instruments held for collection and lease, utility and workers compensation, performance and similar deposits entered into as a result of the operations of the business in the ordinary course of business;
(xxv) guarantees by the Borrower or any of its Restricted Subsidiaries of leases (other than Capital Leases), contracts or of other obligations of the Borrower or any Restricted Subsidiary that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(xxvi) any additional Investments; provided that after giving Pro Forma Effect to such Investments, the Total Net Leverage Ratio is equal to or less than 5.05 to 1.00 as of the most recently ended Test Period;
(xxvii) Investments solely to the extent such Investments reflect an increase in the value of Investments otherwise permitted under this Agreement;
(xxviii) the acquisition of additional Equity Interests of Restricted Subsidiaries from minority shareholders;
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(xxix) the repurchase and cancellation of Loans by the Borrower, Holdings or a Restricted Subsidiary pursuant to and in accordance with Section 13.7(h);
(xxx) Guarantee obligations of the Borrower or any Restricted Subsidiary in respect of letters of support, guarantees or similar obligations issued, made or incurred for the benefit of any Restricted Subsidiary of the Borrower to the extent required by law or in connection with any statutory filing or the delivery of audit opinions performed in jurisdictions other than within the United States; and
(xxxi) contributions to a “rabbi” trust for the benefit of employees or other grantor trust subject to claims of creditors in the case of a bankruptcy of the issuer.
“Permitted Liens” shall mean, with respect to any Person:
(i) Liens granted by such Person under workmen’s compensation laws, health, disability or unemployment insurance laws, other employee benefit legislation (including, but not limited to, any German laws regarding the rights and benefits of employees on any old age part time arrangement (Altersteilzeit), but, excluding Section 303 of Title IV of ERISA or Section 430 of the Code), unemployment insurance legislation and similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness), leases or other obligations of a like nature to which such Person is a party, or Liens granted to secure public or statutory obligations of such Person or deposits of cash or U.S. government bonds to secure surety, stay, customs, performance or appeal bonds to which such Person is a party, or deposits as security for the payment of rent or deposits made to secure obligations arising from contractual or warranty refunds or requirements, in each case incurred in the ordinary course of business, or letters of credit or bankers acceptances issued, and letters of credit or bank guaranties provided to support payment of the items in this clause (i);
(ii) (1) Liens imposed by statutory or common law, such as carriers’, warehousemen’s, materialmen’s, landlord’s, construction contractor’s, repairmen’s, and mechanics’ Liens, (2) customary Liens (other than in respect of borrowed money) in favor of landlords, so long as, in the cases of clauses (1) and (2) above, such Liens only secure (x) sums not overdue for a period of more than 60 days, (y) sums being contested in good faith by appropriate actions or (z) would not reasonably be expected to have a Material Adverse Effect, and (3) other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other actions for review; provided, in the case of clauses (1) through (3) above, adequate reserves with respect thereto are maintained on the books of such Person in accordance in all material respects with GAAP;
(iii) Liens for (A) taxes, assessments, or other governmental charges not yet overdue for a period of more than 60 days or which are (x) being contested in good faith by appropriate actions diligently conducted, if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP or (y) not required to be paid pursuant to Section 8.11, or for (B) property taxes on property the Borrower or any Subsidiary thereof has determined to abandon if the sole recourse for such tax, assessment, charge, levy, or claim is to such property;
(iv) (x) Liens (i) in favor of issuers of performance, surety, bid, indemnity, warranty, release, appeal, or similar bonds or (ii) with respect to other regulatory requirements or (y) letters of credit or bankers’ acceptances issued, and completion guarantees provided for, in each case pursuant to the request of and for the account of such Person in the ordinary course of its business;
(v) survey exceptions, minor encumbrances, ground leases, easements, or reservations of, or rights of others for, licenses, rights-of-way, servitudes, sewers, electric lines, drains, telegraph and telephone and cable television lines, gas and oil pipelines, 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 which were not incurred in connection with Indebtedness for borrowed money and which do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person, and Liens disclosed as exceptions to coverage in the final title policies and endorsements issued to the Collateral Agent with respect to any Mortgaged Properties;
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(vi) Liens securing Indebtedness and obligations (and any guarantees in respect thereof) permitted to be incurred pursuant to clause (a), (d), (i), (l)(ii), (w), (x) or (y), of Section 10.1; provided that, (a) in the case of clause (d) of Section 10.1, unless otherwise permitted under another clause of the definition of “Permitted Liens,” such Lien may not extend to any property or equipment (or assets affixed or appurtenant thereto and additions and accessions) other than the property or equipment (or assets affixed or appurtenant thereto and additions and accessions) being financed or refinanced under such clause (d) of Section 10.1, replacements of such property, equipment or assets, and additions and accessions and in the case of multiple financings of equipment provided by any lender, other equipment financed by such lender, and in each case, proceeds and products thereof; (b) in the case of clause (r) of Section 10.1, such Lien may not extend to any assets other than assets owned by Restricted Subsidiaries that are not Credit Parties; (c) in the case of clause (y) of Section 10.1 or Liens securing Permitted Other Indebtedness Obligations that constitute First Lien Obligations pursuant to this clause (vi), the holders of such Permitted Other Indebtedness Obligations or other Indebtedness (or a representative thereof on behalf of such holders) shall enter into security documents with terms and conditions not materially more restrictive to the Credit Parties (as determined by the Borrower in good faith), taken as a whole, than the terms and conditions of the Security Documents and (1) in the case of the first such issuance of Permitted Other Indebtedness or other Indebtedness, as applicable, constituting First Lien Obligations, the Collateral Agent, the Administrative Agent and the representative for the holders of such Permitted Other Indebtedness Obligations or such other Indebtedness shall have entered into the Pari Intercreditor Agreement and (2) in the case of subsequent issuances of Permitted Other Indebtedness or other Indebtedness, as applicable, constituting First Lien Obligations, the representative for the holders of such Permitted Other Indebtedness Obligations or other Indebtedness, as applicable, shall have become a party to the Pari Intercreditor Agreement in accordance with the terms thereof; and (d) in the case of clause (y) of Section 10.1 and Liens securing Permitted Other Indebtedness Obligations that do not constitute First Lien Obligations pursuant to this clause (vi), the holders of such Permitted Other Indebtedness Obligations or other Indebtedness (or a representative thereof on behalf of such holders) shall enter into security documents with terms and conditions not materially more restrictive to the Credit Parties, taken as a whole (as determined by the Borrower in good faith), than the terms and conditions of the Security Documents and shall (x) in the case of the first such issuance of Permitted Other Indebtedness or other Indebtedness, as applicable, that does not constitute First Lien Obligations, the Collateral Agent, the Administrative Agent, and the representative of the holders of such Permitted Other Indebtedness Obligations shall have entered into the Junior Lien Intercreditor Agreement and (y) in the case of subsequent issuances of Permitted Other Indebtedness or other Indebtedness, as applicable, that do not constitute First Lien Obligations, the representative for the holders of such Permitted Other Indebtedness or other Indebtedness shall have become a party to the Junior Lien Intercreditor Agreement in accordance with the terms thereof; provided, that without any further consent of the Lenders, the Administrative Agent and the Collateral Agent shall be authorized to execute and deliver on behalf of the Secured Parties the Junior Lien Intercreditor Agreement and the Pari Intercreditor Agreement contemplated by this clause (vi);
(vii) Liens existing on the Closing Date that (a) secure Indebtedness or other obligations not in excess of (x) $7,500,000 individually or (y) $15,000,000 in the aggregate (when taken together with all other Liens securing obligations outstanding in reliance on this clause (vii)(a)(y)) or (b) are set forth on Schedule 10.2, or (c) are permitted under the Acquisition Agreement (including, in the case of each of the foregoing clauses (a), (b) or (c) Liens securing any modifications, replacements, renewals, refinancings, or extensions of the Indebtedness or other obligations secured by such Liens);
(viii) Liens on property or Equity Interests of a Person at the time such Person becomes a Subsidiary; provided such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming a Subsidiary; provided, further, however, that such Liens may not extend to any other property owned by the Borrower or any Restricted Subsidiary (other than, with respect to such Person, (w) any improvements, replacements of such property or assets and additions and accessions thereto, (x) after-acquired property subject to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of after-acquired property of such Person, and the proceeds and the products thereof and customary security deposits in respect thereof, (y) in the case of multiple financings of equipment (or assets affixed or appurtenant thereto and additions and accessions) provided by any lender, other equipment (or assets affixed or appurtenant thereto and additions and accessions) financed by such lender, it being understood that such requirement to pledge such after-acquired property shall not be permitted to apply to any such after-acquired property to which such requirement would not have applied but for such acquisition or (z) as otherwise permitted in any other clause of the definition of “Permitted Liens”);
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(ix) Liens on property at the time the Borrower or a Restricted Subsidiary acquired the property, including any acquisition by means of a merger, consolidation or amalgamation with or into the Borrower or any Restricted Subsidiary or the designation of an Unrestricted Subsidiary as a Restricted Subsidiary; provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition, merger, consolidation, amalgamation or designation; provided, further, however, that such Liens may not extend to any other property owned by the Borrower or any Restricted Subsidiary (other than, with respect to such property, (w) any replacements of such property or assets and additions and accessions thereto and proceeds thereof, (x) after-acquired property subject to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of after-acquired property, and the proceeds and the products thereof and customary security deposits in respect thereof, (y) in the case of multiple financings of equipment (or assets affixed or appurtenant thereto and additions and accessions) provided by any lender, other equipment financed by such lender, it being understood that such requirement to pledge such after-acquired property shall not be permitted to apply to any such after-acquired property to which such requirement would not have applied but for such acquisition or (z) as otherwise permitted in any other clause of the definition of “Permitted Liens”);
(x) Liens securing Indebtedness or other obligations of a Restricted Subsidiary owing to the Borrower or another Restricted Subsidiary permitted to be incurred in accordance with Section 10.1;
(xi) Liens securing Hedging Obligations, Cash Management Services and Bank Products permitted hereunder (including, for the avoidance of doubt, Secured Hedge Obligations, Secured Cash Management Obligations and Secured Bank Product Obligations) and any Lien arising under Article 24 or 26 of the general terms and conditions (Algemene Bank Voorwaarden) of any member of the Dutch Bankers' Association (Nederlandse Vereniging van Banken) or any similar term applied by a financial institution in The Netherlands pursuant to its general terms and conditions;
(xii) Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances, bank guarantees or letters of credit issued or created for the account of such Person to facilitate the purchase, shipment, or storage of such inventory or other goods;
(xiii) leases, franchises, grants, subleases, licenses, sublicenses, covenants not to sue, releases, consents and other forms of license (including of Intellectual Property) granted to others in the ordinary course of business or which do not materially interfere with the ordinary conduct of the business of the Borrower or any Restricted Subsidiary and do not secure any Indebtedness;
(xiv) Liens arising from Uniform Commercial Code or any similar financing statement filings regarding operating leases or consignments entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(xv) Liens in favor of the Borrower or any Guarantor;
(xvi) Liens on equipment of the Borrower or any Restricted Subsidiary granted in the ordinary course of business to the Borrower’s or such Restricted Subsidiary’s client at which such equipment is located;
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(xvii) Liens on Receivables Assets and related assets incurred in connection with a Receivables Facility and Liens on Securitization Assets and related assets arising in connection with a Qualified Securitization Financing, in each case, in compliance with clause (h) of the definition of “Asset Sale”;
(xviii) Liens to secure any refinancing, refunding, extension, renewal, or replacement (or successive refinancing, refunding, extensions, renewals, or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in this clause (xviii) and clauses (vi), (vii), (viii), (ix), (x) and (xliv) of this definition of “Permitted Liens”; provided that (a) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus improvements on such property, replacements of such property, additions and accessions thereto, after-acquired property and the proceeds and the products of the foregoing and customary security deposits in respect thereof and, in the case of multiple financings of equipment (or assets affixed or appurtenant thereto and additions and accessions) provided by any lender, other equipment (or assets affixed or appurtenant thereto and additions and accessions) financed by such lender or as otherwise permitted in any other exception hereunder), and, (b) the aggregate principal amount of the Indebtedness that was originally secured by such Lien under any of clause (vii), (viii), (ix), (x) or (xliv) of this definition of Permitted Liens is not increased to an amount greater than the sum of the aggregate outstanding principal amount (plus the amount of any unused commitments thereunder) of the Indebtedness being refinanced, refunded, extended, renewed, or replaced, plus accrued interest, fees, defeasance costs and premium (including call and tender premiums), if any, under such refinanced Indebtedness, plus underwriting discounts, fees, commissions and expenses (including original issue discount, upfront fees and similar items) in connection with the refinancing of such Indebtedness and the incurrence or issuance of such refinancing Indebtedness, plus the principal amount of Indebtedness and other obligations with respect to after acquired property subject to a Lien incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of after acquired property of such Person, and the proceeds and the products thereof and customary security deposits in respect thereof, plus any additional amounts otherwise permitted under any other clause of the definition of “Permitted Liens”;
(xix) Liens provided to secure liabilities to insurance carriers under insurance or self-insurance arrangements, including Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto, in the ordinary course of business;
(xx) other Liens securing obligations which do not exceed the greater of (a) $75,000,000 and (b) 19.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of the incurrence of such Lien;
(xxi) Liens (a) securing judgments not constituting an Event of Default under Section 11.5 or 11.10, (b) arising out of judgments or awards against the Borrower or any Restricted Subsidiary with respect to which an appeal or other proceeding for review is then being pursued and (c) arising out of notices of lis pendens and associated rights related to litigation being contested in good faith by appropriate proceedings for which adequate reserves have been made;
(xxii) 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 of goods in the ordinary course of business;
(xxiii) Liens (a) of a collection bank arising under Section 4-208 of the New York Uniform Commercial Code or any comparable or successor provision on items in the course of collection, (b) attaching to commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business, and (c) in favor of banking or other financial institutions or other electronic payment service providers arising as a matter of law or customary contract encumbering deposits, including deposits in “pooled deposit” or “sweep” accounts (including the right of set-off) and which are within the general parameters customary in the banking or finance industry;
(xxiv) Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 10.5; provided that such Liens do not extend to any assets other than those that are the subject of such repurchase agreement;
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(xxv) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes, or any Lien over any account maintained with any bank or other financial institution pursuant to the relevant bank’s or other financial institution’s general terms and conditions relating to any business arrangement with the relevant holder of the account;
(xxvi) Liens that are contractual rights of set-off (a) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (b) relating to pooled deposit or sweep accounts of the Borrower or any of the Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower and the Restricted Subsidiaries, or (c) relating to purchase orders and other agreements entered into by the Borrower or any of the Restricted Subsidiaries in the ordinary course of business;
(xxvii) Liens (a) on any cash earnest money deposits or cash advances made by the Borrower or any of the Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted under this Agreement, (b) on other cash advances in favor of the seller of any property to be acquired in an Investment or other acquisition permitted hereunder to be applied against the purchase price for such Investment or other acquisition or (c) consisting of an agreement to dispose of any property pursuant to a disposition permitted hereunder (or reasonably expected to be so permitted by the Borrower at the time such Lien was granted);
(xxviii) rights reserved or vested in any Person by the terms of any lease, license, franchise, grant, or permit held by the Borrower or any of the Restricted Subsidiaries or by a statutory provision, to terminate any such lease, license, franchise, grant, or permit, or to require annual or periodic payments as a condition to the continuance thereof;
(xxix) restrictive covenants affecting the use to which real property may be put; provided that the covenants are complied with;
(xxx) security given to a public utility or any municipality or Governmental Authority when required by such utility or authority in connection with the operations of that Person in the ordinary course of business;
(xxxi) zoning by-laws and other land use restrictions, including, without limitation, site plan agreements, development agreements, and contract zoning agreements;
(xxxii) Liens arising out of conditional sale, title retention, consignment, or similar arrangements for sale of goods entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(xxxiii) Liens arising under the Security Documents;
(xxxiv) Liens on goods purchased in the ordinary course of business the purchase price of which is financed by a documentary letter of credit issued for the account of the Borrower or any of its Subsidiaries;
(xxxv) (a) Liens on Equity Interests in joint ventures; provided that any such Lien is in favor of a creditor of such joint venture and such creditor is not an Affiliate of any partner to such joint venture and (b) purchase options, call, rights of refusal, rights of first offer, rights of tag and drag and similar rights of, and restrictions for the benefit of, a third party with respect to Equity Interests held by the Borrower or any Restricted Subsidiary in joint ventures;
(xxxvi) Liens on cash and Cash Equivalents that are earmarked to be used to satisfy or discharge Indebtedness; provided (a) such cash and/or Cash Equivalents are deposited into an account from which payment is to be made, directly or indirectly, to the Person or Persons holding the Indebtedness that is to be satisfied or discharged, (b) such Liens extend solely to the account in which such cash and/or Cash Equivalents are deposited and are solely in favor of the Person or Persons holding the Indebtedness (or any agent or trustee for such Person or Persons) that is to be satisfied or discharged, and (c) the satisfaction or discharge of such Indebtedness is expressly permitted hereunder;
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(xxxvii) with respect to any Foreign Subsidiary, other Liens and privileges arising mandatorily by any Requirement of Law;
(xxxviii) purported Liens (other than Liens securing Indebtedness for borrowed money) evidenced by the filing of precautionary Uniform Commercial Code (or equivalent statute) financing statements or similar public filings;
(xxxix) Liens on Equity Interests of an Unrestricted Subsidiary that secure Indebtedness or other obligations of such Unrestricted Subsidiary;
(xl) Liens on property of any Restricted Subsidiary that is not a Credit Party, which Liens secure Indebtedness permitted under Section 10.1 (or other obligations not constituting Indebtedness), in each case, so long as such Liens do not secure Indebtedness for borrowed money of any Credit Party;
(xli) Liens or rights of set-off against credit balances of the Borrower or any of the Restricted Subsidiaries with credit card issuers or credit card processors or amounts owing by such credit card issuers or credit card processors to the Borrower or any Restricted Subsidiaries in the ordinary course of business to secure the obligations of any Subsidiary to the credit card issuers or credit card processors as a result of fees and charges;
(xlii) Liens arising in connection with Intercompany License Agreements;
(xliii) Liens arising or created as a result of or in connection with any transaction governed by the German Transformation Act (Umwandlungsgesetz) to the extent that such transaction is permitted under this Agreement;
(xliv) Liens including any netting or set-off arising by operation of Law as a result of the existence of a fiscal unity (fiscale eenheid) for Dutch tax purposes (or its equivalent in any other relevant jurisdiction) between Credit Parties;
(xlv) the reservations, limitations, provisos and conditions, if any, expressed in any original grant from the Canadian Crown of any real property or any interest therein or in any comparable grant in jurisdictions other than Canada, provided they do not reduce the value of any property assets and undertaking of the Person or materially interfere with the use of such property assets and undertaking in the operation of the business of the Person; and
(xlvi) additional Liens, so long as (i)(x) with respect to Indebtedness that is secured by Liens on the Collateral on a pari passu basis with any First Lien Obligations (without regard to control of remedies), immediately after the incurrence thereof, on a Pro Forma Basis, the First Lien Net Leverage Ratio is no greater than 4.75 to 1.00 as of the most recently ended Test Period and (y) with respect to Indebtedness that is secured by Liens on the Collateral that are junior in right of security to the Liens securing any First Lien Obligations or are secured by non-Collateral, immediately after the incurrence thereof, on a Pro Forma Basis, the Total Net Leverage Ratio is no greater than 5.80 to 1.00 as of the most recently ended Test Period and (ii) the holder(s) of such Liens (or a representative thereof) shall have entered into the Pari Intercreditor Agreement, the Junior Lien Intercreditor Agreement and/or another intercreditor agreement or arrangement reasonably acceptable to the Administrative Agent and the Borrower; provided that any cash proceeds of any new Indebtedness then being incurred shall not be netted from the numerator in the First Lien Net Leverage Ratio or Total Net Leverage Ratio, as applicable for purposes of calculating the First Lien Net Leverage Ratio or Total Net Leverage Ratio, as applicable, under this clause (xlv) for purposes of determining whether such Liens can be incurred.
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For purposes of this definition, the term Indebtedness shall be deemed to include interest, premiums (if any), fees, expenses and other obligations on such Indebtedness.
“Permitted Other Indebtedness” shall mean subordinated or senior Indebtedness (including all Registered Equivalent Notes issued in exchange for Indebtedness originally incurred as Permitted Other Indebtedness) (which Indebtedness may (i) be unsecured, (ii) consist of notes or loans secured by Liens on a pari passu basis with the First Lien Obligations (without regard to control of remedies) or (iii) be secured by Liens ranking junior to the Liens securing the First Lien Obligations), in each case, issued or incurred by a Credit Party, which:
(a) (1) in the case of any unsecured Permitted Other Indebtedness or Permitted Other Indebtedness secured by a Lien ranking junior to the Lien securing the First Lien Obligations, shall have a final maturity not sooner than 91 days after the Latest Term Loan Maturity Date, as determined at the time of issuance or incurrence of such Permitted Other Indebtedness, and (2) in the case of any Permitted Other Indebtedness secured by a Lien ranking pari passu with the First Lien Obligations, shall have a final maturity not sooner than the Latest Term Loan Maturity Date, as determined at the time of issuance or incurrence of such Permitted Other Indebtedness,
(b) in the case of any secured Permitted Other Indebtedness, shall be subject to customary intercreditor terms (including those in the Pari Intercreditor Agreement, the Junior Lien Intercreditor Agreement and/or any other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the Administrative Agent, as applicable),
(c) shall not provide for any mandatory repayment (except scheduled principal amortization payments), redemption or sinking fund payment obligations prior to the Latest Term Loan Maturity Date, as determined at the time of issuance or incurrence of the Permitted Other Indebtedness (other than, in each case, customary offers or obligations to repurchase, redeem or repay upon a change of control, asset sale, casualty or condemnation event or similar events; AHYDO Payments; customary acceleration rights after an event of default; solely with respect to any Permitted Other Indebtedness constituting Junior Debt secured by a Lien ranking junior to the First Lien Obligations, any payment obligations solely with respect to prepayment amounts declined by any Lender under this Agreement and/or any lender(s) in respect of any other First Lien Obligations being prepaid or that constitute a customary prepayment provision with respect to Refinancing Indebtedness on a pro rata basis in connection with such prepayment in accordance with this Agreement; and solely with respect to any Permitted Other Indebtedness secured by a Lien ranking pari passu to the First Lien Obligations, any payment obligations that will also be applied to the Term Loans hereunder on a pro rata or greater than pro rata basis or that constitute a customary prepayment provision with respect to Refinancing Indebtedness),
(d) shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Initial Term Loans,
(e) in the case of any Permitted Other Indebtedness (other than assumed Indebtedness not incurred in contemplation thereof) in the form of term loans incurred by a Credit Party to be secured by a Lien ranking pari passu with the First Lien Obligations outstanding under this Agreement (other than any Permitted Other Indebtedness with a maturity of more than 18 months after the maturity of the Initial Term Loans or that is used to finance any permitted Investment or Permitted Acquisition), the Effective Yield of the Initial Term Loans shall be subject to adjustment in the manner set forth in the provisos to Section 2.14(d)(iv), determined for purposes of this clause (e) as if the Permitted Other Indebtedness were New Term Loans,
(f) shall be issued or incurred only when no Event of Default (or, if such Permitted Other Indebtedness is being issued or incurred in connection with a Limited Condition Transaction, no Event of Default under Section 11.1 or Section 11.5) exists or would result from the issuance or incurrence of such Permitted Other Indebtedness, subject to Section 1.12(f),
(g) is not incurred or guaranteed by any Subsidiary other than any Credit Party,
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(h) if secured, is not secured by any assets of any Credit Party other than Collateral, and
(i) other than as required by the preceding clauses (a) through (h), shall contain such terms as are reasonably satisfactory to the Borrower, the borrower thereof (if not the Borrower) and the lender(s) providing such Permitted Other Indebtedness;
provided, the requirements of the foregoing clauses (a), (c) and (d) shall not apply to any customary bridge facility so long as the Indebtedness into which such customary bridge facility is to be converted complies with such requirements.
“Permitted Other Indebtedness Documents” shall mean any document, agreement or instrument (including any guarantee, security agreement, pledge agreement or mortgage and which may include any or all of the Credit Documents) issued or executed and delivered with respect to any Permitted Other Indebtedness by any Credit Party.
“Permitted Other Indebtedness Obligations” shall mean, if any Permitted Other Indebtedness is issued or incurred, all advances to, and debts, liabilities, obligations, covenants, and duties of, any Credit Party arising under any Permitted Other Indebtedness Document, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising, and including interest and fees that accrue after the commencement by or against any Credit Party or any Affiliate thereof of any proceeding under any bankruptcy or insolvency law naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. Without limiting the generality of the foregoing, the Permitted Other Indebtedness Obligations of the applicable Credit Parties under the Permitted Other Indebtedness Documents (and any of their Restricted Subsidiaries to the extent they have obligations under the Permitted Other Indebtedness Documents) include the obligation (including guarantee obligations) to pay principal, interest, charges, expenses, fees, attorney costs, indemnities, and other amounts payable by any such Credit Party under any Permitted Other Indebtedness Document.
“Permitted Other Provision” shall have the meaning provided in Section 2.14(g)(i).
“Permitted Reorganization” shall mean re-organizations and other activities related to tax planning and re-organization, so long as, after giving effect thereto, the security interest of the Lenders in the Collateral, taken as a whole, is not materially impaired (as determined by the Borrower in good faith).
“Permitted Sale Leaseback” shall mean any Sale Leaseback consummated by the Borrower or any of the Restricted Subsidiaries after the Closing Date; provided that any such Sale Leaseback not between the Borrower and a Restricted Subsidiary or between Restricted Subsidiaries is consummated for fair value as determined at the time of consummation in good faith by (i) the Borrower or such Restricted Subsidiary or (ii) in the case of any Sale Leaseback (or series of related Sales Leasebacks) the aggregate proceeds of which exceed the greater of (a) $40,000,000 and (b) 10.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of the consummation of such Sale Leaseback, the board of directors (or analogous governing body) of the Borrower or such Restricted Subsidiary (which such determination may take into account any retained interest or other Investment of the Borrower or such Restricted Subsidiary in connection with, and any other material economic terms of, such Sale Leaseback).
“Person” shall mean any individual, partnership, joint venture, firm, corporation, limited liability company, unlimited liability company, association, trust, or other enterprise or any Governmental Authority.
“Plan” shall mean, other than any Multiemployer Plan, any employee benefit plan (as defined in Section 3(3) of ERISA), including any employee welfare benefit plan (as defined in Section 3(1) of ERISA), any employee pension benefit plan (as defined in Section 3(2) of ERISA), and any plan which is both an employee welfare benefit plan and an employee pension benefit plan, and in respect of which any Credit Party or any ERISA Affiliate is (or, with respect to any such Plan subject to Title IV of ERISA, if such Plan were terminated, any Credit Party or any ERISA Affiliate would under Section 4062 or Section 4069 of ERISA be reasonably likely to be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
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“Planned Expenditures” shall have the meaning provided in clause (j) of the definition of the term Excess Cash Flow.
“Platform” shall have the meaning provided in Section 13.18(a).
“Pledge Agreements” shall mean the U.S. Pledge Agreements and the Foreign Pledge Agreements.
“Pounds Sterling” shall mean British Pounds Sterling or any successor currency in the United Kingdom.
“Prepayment Event” shall mean any Asset Sale Prepayment Event, Debt Incurrence Prepayment Event or Casualty Event.
“Prepayment Trigger” shall have the meaning provided in the definition of “Asset Sale Prepayment Event.”
“Previous Holdings” shall have the meaning provided in the definition of “Holdings.”
“Prime Rate” shall mean the rate of interest per annum determined from time to time by Credit Suisse AG as its prime rate in effect at its principal office in New York City and notified to the Borrower. The prime rate is a rate set by Credit Suisse AG based upon various factors including Credit Suisse AG’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such rate.
“primary obligations” shall have the meaning provided in the definition of the term Contingent Obligations.
“primary obligor” shall have the meaning provided in the definition of the term Contingent Obligations.
“Pro Forma Basis,” “Pro Forma Compliance,” and “Pro Forma Effect” shall mean, with respect to compliance with any test or covenant or calculation of any ratio hereunder, the determination or calculation of such test, covenant or ratio (including in connection with Specified Transactions) in accordance with Section 1.12.
“Prohibited Transaction” shall have the meaning assigned to such term in Section 406 of ERISA or Section 4975(c) of the Code.
“Projections” shall have the meaning provided in Section 9.1(c).
“Public Company Costs” shall mean costs relating to compliance with the provisions of the Sarbanes-Oxley Act of 2002, the Securities Act of 1933 and the Exchange Act, as applicable to companies with equity or debt securities held by the public, the rules of national securities exchange companies with listed equity or debt securities, directors’ or managers’ compensation, fees and expense reimbursement, costs relating to investor relations, shareholder meetings and reports to shareholders or debtholders, directors’ and officers’ insurance and other executive costs, legal and other professional fees, listing fees and other expenses arising out of or incidental to an entity’s status as a reporting company.
“Qualified Proceeds” shall mean assets that are used or useful in, or Capital Stock of any Person engaged in, a Similar Business.
“Qualified Securitization Financing” shall mean any Securitization Facility (and any guarantee of such Securitization Facility), as amended, supplemented, modified, extended, renewed, restated, refinanced, restructured or refunded from time to time, that meets the following conditions: (i) the Borrower shall have determined in good faith that such Securitization Facility (including financing terms, covenants, termination events and other provisions) is in the aggregate economically fair and reasonable to the Borrower and the Restricted Subsidiaries; (ii) all sales of Securitization Assets and related assets by the Borrower or any Restricted Subsidiary to the Securitization Subsidiary or any other Person are made at Fair Market Value (as determined in good faith by the Borrower); (iii) the financing terms, covenants, termination events and other provisions thereof shall be on market terms (as determined in good faith by the Borrower) and may include Standard Securitization Undertakings; and (iv) the obligations under such Securitization Facility are nonrecourse (except for customary representations, warranties, covenants and indemnities made in connection with such facilities) to the Borrower or any Restricted Subsidiary (other than a Securitization Subsidiary).
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“Qualified Stock” of any Person shall mean Capital Stock of such Person other than Disqualified Stock of such Person.
“Qualifying IPO” shall mean the issuance by the Borrower or any direct or indirect parent thereof of its common Equity Interests in an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration statement filed with the SEC in accordance with the Securities Act (whether alone or in connection with a secondary public offering) or in a firm commitment underwritten offering (or series of related offerings of securities to the public pursuant to a final prospectus) made pursuant to the Securities Act, or in any customary underwritten public offering process in the United Kingdom as a result of which the common Equity Interests of Borrower or any direct or indirect parent thereof will become publicly traded in the United Kingdom.
“Real Estate” shall mean land, buildings, facilities and improvements owned or leased by any Credit Party.
“Receivables Assets” shall mean (a) any accounts receivable owed to the Borrower or a Restricted Subsidiary subject to a Receivables Facility and the proceeds thereof and (b) all collateral securing such accounts receivable, all contracts and contract rights, guarantees or other obligations in respect of such accounts receivable, all records with respect to such accounts receivable and any other assets customarily transferred together with accounts receivable in connection with a non-recourse accounts receivable factoring arrangement and which are sold, conveyed, assigned or otherwise transferred or pledged in connection with a Receivables Facility.
“Receivables Facility” shall mean any of one or more receivables financing facilities (and any guarantee of such financing facility), as amended, supplemented, modified, extended, renewed, restated, refinanced, restructured or refunded from time to time, the obligations of which are non-recourse (except for customary representations, warranties, covenants, and indemnities made in connection with such facilities) to the Borrower and the Restricted Subsidiaries (other than a Receivables Subsidiary) pursuant to which the Borrower or any Restricted Subsidiary sells, directly or indirectly, grants a security interest in or otherwise transfers its Receivables Assets to either (i) a Person that is not the Borrower or a Restricted Subsidiary or (ii) a Receivables Subsidiary that in turn funds such purchase by purporting to sell its accounts receivable to a Person that is not the Borrower or a Restricted Subsidiary or by borrowing from such a Person or from another Receivables Subsidiary that in turn funds itself by borrowing from such a Person.
“Receivables Fee” shall mean distributions or payments made directly or by means of discounts with respect to any accounts receivable or participation interest issued or sold in connection with, and other fees paid to a Person that is not the Borrower or a Restricted Subsidiary in connection with, any Receivables Facility.
“Receivables Purchase Agreement” has the meaning provided in the definition of “Closing Releases.”
“Receivables Subsidiary” shall mean any Subsidiary formed for the purpose of facilitating or entering into one or more Receivables Facilities that engages only in activities reasonably related or incidental thereto or another Person formed for the purposes of engaging in a Receivables Facility in which any Subsidiary makes an Investment and to which any Subsidiary transfers accounts receivables and related assets.
“Recipient” shall mean the Administrative Agent or any Lender, as applicable.
“Reference Bank Rate” shall mean the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by the Reference Banks in relation to BBSY, as the mid discount rate (expressed as a yield percentage to maturity) observed by the relevant Reference Bank for marketable parcels of Australian Dollar denominated bank accepted bills and negotiable certificates of deposit accepted or issued by Prime Banks, and which mature on the last day of the relevant period, in the relevant currency and for the relevant period, were it to do so by asking for and then accepting interbank offers for deposits in a reasonable market size in that currency and for that period.
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“Reference Banks” shall mean, in relation to BBSY, up to three Lenders as may be appointed by the Agent in consultation with the Borrower.
“refinance” shall have the meaning provided in Section 10.1(m).
“Refinanced Debt” shall have the meaning provided in Section 2.14(h).
“Refinanced Term Loans” shall have the meaning provided in Section 13.1.
“Refinancing Amendment” shall have the meaning provided in Section 2.14(h)(vi).
“Refinancing Commitments” shall have the meaning provided in Section 2.14(h).
“Refinancing Facility Closing Date” shall have the meaning provided in Section 2.14(h)(iii).
“Refinancing Indebtedness” shall have the meaning provided in Section 10.1(m).
“Refinancing Lenders” shall have the meaning provided in Section 2.14(h)(ii).
“Refinancing Loan” shall have the meaning provided in Section 2.14(h)(i).
“Refinancing Loan Request” shall have the meaning provided in Section 2.14(h).
“Refinancing Permitted Other Indebtedness” shall have the meaning provided in Section 10.1(m).
“Refinancing Revolving Credit Commitments” shall have the meaning provided in Section 2.14(h).
“Refinancing Revolving Credit Lender” shall have the meaning provided in Section 2.14(h)(ii).
“Refinancing Revolving Credit Loan” shall have the meaning provided in Section 2.14(h)(i).
“Refinancing Term Lender” shall have the meaning provided in Section 2.14(h)(ii).
“Refinancing Term Loan” shall have the meaning provided in Section 2.14(h)(i).
“Refinancing Term Loan Commitments” shall have the meaning provided in Section 2.14(h).
“Refinancing Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(c).
“Refinancing Term Loan Repayment Date” shall have the meaning provided in Section 2.5(c).
“Refinancing Series” shall mean all Refinancing Term Loans, Refinancing Term Loan Commitments, Refinancing Revolving Credit Loans or Refinancing Revolving Credit Commitments, as the case may be, that are established pursuant to the same Refinancing Amendment (or any subsequent Refinancing Amendment to the extent such Refinancing Amendment expressly provides that the Refinancing Term Loans, Refinancing Term Loan Commitments, Refinancing Revolving Credit Loans or Refinancing Revolving Credit Commitments, as the case may be, provided for therein are intended to be a part of any previously established Refinancing Series) and that, in the case of Refinancing Term Loans, provide for the same amortization schedule.
“Refunding Capital Stock” shall have the meaning provided in Section 10.5(b)(2).
“Register” shall have the meaning provided in Section 13.7(b)(iv).
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“Registered Equivalent Notes” means, with respect to any notes originally issued in a Rule 144A or other private placement transaction under the Securities Act, substantially identical notes (having the same guarantees and collateral, if any) issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC.
“Regulation T” shall mean Regulation T of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.
“Regulation U” shall mean Regulation U of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.
“Regulation X” shall mean Regulation X of the Board as from time to time in effect and any successor to all or a portion thereof establishing margin requirements.
“Reimbursement Date” shall have the meaning provided in Section 3.4(a).
“Reimbursement Obligations” shall mean the Borrower’s obligations to reimburse Unpaid Drawings pursuant to Section 3.4(a).
“Reinvestment Period” shall mean 18 months following the date of receipt of Net Cash Proceeds of an Asset Sale Prepayment Event or Casualty Event.
“Rejection Notice” shall have the meaning provided in Section 5.2(f).
“Related Business Assets” shall mean assets (other than cash or Cash Equivalents) used or useful in a Similar Business; provided that any assets received by the Borrower or the Restricted Subsidiaries in exchange for assets transferred by the Borrower or a Restricted Subsidiary shall not be deemed to be Related Business Assets if they consist of securities of a Person, unless upon receipt of the securities of such Person, such Person would become a Restricted Subsidiary.
“Related Fund” shall mean, with respect to any Lender that is a Fund, any other Fund that is advised or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity or an Affiliate of such entity that administers, advises or manages such Lender.
“Related Parties” shall mean, with respect to any specified Person, such Person’s Affiliates and the directors, officers, employees, agents, trustees, and advisors of such Person and any Person that possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of such Person, whether through the ability to exercise voting power, by contract or otherwise; provided that, for purposes of Sections 13.5 and 13.7, “Related Parties” shall not include Excluded Affiliates.
“Release” shall mean any release, spill, emission, discharge, disposal, escaping, leaking, pumping, pouring, dumping, emptying, injection or leaching into the Environment.
“Relevant Jurisdiction” shall mean, in relation to a Credit Party (a) its jurisdiction of incorporation, organization or formation, (b) any jurisdiction where any asset of such Credit Party subject to or intended to constitute Collateral is situated, (c) any jurisdiction where it conducts business, and (d) the jurisdiction whose laws govern the perfection of any Lien arising pursuant to any of the Security Documents entered into by it.
“Removal Effective Date” shall have the meaning provided in Section 12.9(b).
“Repayment Amount” shall mean the Initial Term Loan Repayment Amount, a New Term Loan Repayment Amount with respect to any Series, a Replacement Term Loan Repayment Amount with respect to any Replacement Series, a Refinancing Term Loan Repayment Amount with respect to any Refinancing Series or an Extended Term Loan Repayment Amount with respect to any Extension Series, as applicable.
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“Replacement Series” shall mean all Replacement Term Loans or Replacement Term Loan Commitments that are established pursuant to the same amendment (or any subsequent amendment to the extent such amendment expressly provides that the Replacement Term Loans or Replacement Term Loan Commitments provided for therein are intended to be a part of any previously established Replacement Series) and that provide for the same amortization schedule.
“Replacement Term Loan Commitment” shall mean the commitments of the Lenders to make Replacement Term Loans.
“Replacement Term Loan Repayment Amount” shall have the meaning provided in Section 2.5(c).
“Replacement Term Loan Repayment Date” shall have the meaning provided in Section 2.5(c).
“Replacement Term Loans” shall have the meaning provided in Section 13.1.
“Reportable Event” shall mean any “reportable event,” as defined in Section 4043(c) of ERISA or the regulations issued thereunder, with respect to a Pension Plan, other than those events as to which notice is waived pursuant to 29 C.F.R. Part 43 or other guidance issued by PBGC.
“Repricing Transaction” shall mean (i) the incurrence by the Borrower of any Indebtedness in the form of a senior secured first lien term loan that is broadly marketed or syndicated to banks and other institutional investors (a) with an Effective Yield that is less than the Effective Yield for the Initial Term Loans being refinanced, but excluding Indebtedness incurred in connection with a Qualifying IPO, Change of Control, any Permitted Acquisition or other Investment permitted hereunder, any Restricted Payment, or any transaction (I) not otherwise permitted under this Agreement or (II) that results in an upsizing of the Initial Term Loans, and (b) the proceeds of which are used substantially concurrently to prepay (or, in the case of a conversion, deemed to prepay or replace), in whole or in part, outstanding principal of Initial Term Loans, or (ii) any transaction, the primary purpose of which is (and which achieves) the effective reduction in the Effective Yield for the Initial Term Loans, except for a reduction in connection with a Qualifying IPO, Change of Control, any Permitted Acquisition or other Investment permitted hereunder, any Restricted Payment, or any transaction not (I) otherwise permitted under this Agreement or (II) that results in an upsizing of the Initial Term Loans. Any determination by the Administrative Agent with respect to whether a Repricing Transaction shall have occurred shall be conclusive and binding on all Lenders holding the Initial Term Loans.
“Required Facility Lenders” shall mean, as of any date of determination, with respect to one or more Credit Facilities, Lenders having or holding a majority of the sum of (a) the Total Outstandings under such Credit Facility or Credit Facilities (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations, if applicable, under such Credit Facility or Credit Facilities being deemed “held” by such Lender for purposes of this definition) and (b) the aggregate unused Commitments under such Credit Facility or Credit Facilities; provided that the unused Commitments of, and the portion of the Total Outstandings under such Credit Facility or Credit Facilities held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of the Required Facility Lenders.
“Required Lenders” shall mean, as of any date of determination, Lenders having or holding a majority of the sum of (a) Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations, if applicable, under such Credit Facility or Credit Facilities being deemed “held” by such Lender for purposes of this definition), (b) aggregate unused Total Term Loan Commitments at such date and (c) aggregate unused Revolving Commitments, provided that the unused Commitments of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
“Required Revolving Credit Lenders” shall mean the Required Facility Lenders under a particular Class of Revolving Commitments.
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“Requirement of Law” shall mean, 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, regulation, official administrative pronouncement 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 assets or to which such Person or any of its property or assets is subject.
“Resignation Effective Date” shall have the meaning provided in Section 12.9(a).
“Restricted Investment” shall mean an Investment other than a Permitted Investment.
“Restricted Payments” shall have the meaning provided in Section 10.5(a).
“Restricted Persons” shall have the meaning provided in Section 13.1(b).
“Restricted Subsidiary” shall mean any Subsidiary of the Borrower other than an Unrestricted Subsidiary.
“Retained Asset Sale Proceeds” shall have the meaning provided in Section 5.2(a)(i).
“Retained Declined Proceeds” shall have the meaning provided in Section 5.2(f).
“Retained ECF Payments” shall have the meaning provided in Section 5.2(a)(iii).
“Retired Capital Stock” shall have the meaning provided in Section 10.5(b)(2).
“Return” shall mean, with respect to any Investment, any dividend, distribution, interest, fee, premium, return of capital, repayment of principal, income, profit (from a disposition or otherwise) and any other amount received or realized in respect thereof.
“Revaluation Date” shall mean with respect to any Letter of Credit, 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 amount thereof (solely with respect to the increased amount), (iii) each date of any payment by the Letter of Credit Issuer under any Letter of Credit denominated in an Alternative Currency and (iv) such additional dates as the Administrative Agent or Letter of Credit Issuer shall determine or the Required Revolving Credit Lenders shall require.
“Revolving Commitments” shall mean, collectively, the Initial Revolving Credit Commitments, the Revolving Credit Commitments, Extended Revolving Credit Commitments, Additional Revolving Credit Commitments, New Revolving Credit Commitments, and Refinancing Revolving Credit Commitments, as applicable, at such time.
“Revolving Credit Commitment” shall mean, as to each Revolving Credit Lender, its obligation to make Revolving Credit Loans to the Borrower pursuant to Section 2.1(b), in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 1.1(b) under the caption Revolving Credit Commitment or in the Assignment and Acceptance pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement (including Section 2.14). The aggregate Revolving Credit Commitments of all Revolving Credit Lenders shall be $250,000,000 on the Closing Date (the “Initial Revolving Credit Commitments”), as such amount may be adjusted after the Closing Date from time to time in accordance with the terms of this Agreement.
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“Revolving Credit Commitment Percentage” shall mean at any time, for each Lender, the percentage obtained by dividing (i) such Lender’s Revolving Commitments (or, to the extent referring to any single Class of Revolving Commitments, such Lender’s Revolving Commitments in respect of such Class) at such time by (ii) the amount of the Total Revolving Credit Commitment (or, to the extent referring to any single Class of Revolving Commitments, the aggregate Revolving Commitments of all Lenders in respect of such Class) at such time; provided that at any time when the Total Revolving Credit Commitment (or, to the extent referring to any single Class of Revolving Commitments, the aggregate Revolving Commitments in respect of such Class) shall have been terminated, each Lender’s Revolving Credit Commitment Percentage shall be the percentage obtained by dividing (a) such Lender’s Revolving Credit Exposure (or, to the extent referring to any single Class of Revolving Loans, such Lender’s Revolving Credit Exposure in respect of such Class) at such time by (b) the Revolving Credit Exposure of all Lenders at such time (or, to the extent referring to any single Class of Revolving Loans, the Revolving Credit Exposure of all Lenders in respect of such Class).
“Revolving Credit Exposure” shall mean, with respect to any Lender at any time, the sum of (i) the aggregate amount of the principal amount of Revolving Loans of such Lender then outstanding (or, to the extent referring to any single Class of Revolving Loans, the aggregate amount of the principal amount of Revolving Loans of such Class of such Lender then outstanding) and (ii) such Lender’s Letter of Credit Exposure at such time.
“Revolving Credit Facility” shall mean, at any time, the aggregate amount of the Revolving Credit Lenders’ Revolving Credit Commitments at such time.
“Revolving Credit Lender” shall mean, at any time, any Lender that has a Revolving Credit Commitment at such time.
“Revolving Credit Loan” shall have the meaning provided in Section 2.1(b).
“Revolving Credit Loan Extension Request” shall have the meaning provided in Section 2.14(g)(ii).
“Revolving Credit Maturity Date” shall mean the date that is the fifth anniversary of the Closing Date, or, if such date is not a Business Day, the immediately preceding Business Day.
“Revolving Credit Termination Date” shall mean the date on which the Revolving Credit Commitments shall have terminated, no Revolving Credit Loans shall be outstanding and the Revolving Credit Commitment Percentage of the aggregate Letters of Credit Outstanding at such time attributable to all Lenders with Revolving Credit Commitments at such time shall have been reduced to zero, Cash Collateralized, or backstopped in a manner reasonably acceptable to the applicable Letter of Credit Issuer.
“Revolving Lender” shall mean, at any time, any Lender that has a Revolving Commitment (including the Initial Revolving Credit Commitments), Extended Revolving Credit Commitment, Additional Revolving Credit Commitment, New Revolving Credit Commitment or Refinancing Revolving Credit Commitment, as applicable, at such time.
“Revolving Loan” shall mean, collectively or individually as the context may require, any (i) Revolving Credit Loan, (ii) Extended Revolving Credit Loan, (iii) New Revolving Credit Loan, (iv) Additional Revolving Credit Loan, (v) Refinancing Revolving Credit Loan or (vi) Initial Revolving Loans, in each case made pursuant to and in accordance with the terms and conditions of this Agreement.
“S&P” shall mean Standard & Poor’s Ratings Services or any successor by merger or consolidation to its business.
“Sale Leaseback” shall mean any arrangement with any Person providing for the leasing by the Borrower or any Restricted Subsidiary of any real or tangible personal property, which property has been or is to be sold or transferred by the Borrower or such Restricted Subsidiary to such Person in contemplation of such leasing.
“Screen Rate” shall mean, in relation to BBSY, the Australian Bank Bill Swap Reference Rate (Bid) administered by the Australian Financial Markets Association (or any other person which takes over the administration of that rate) for bills of exchange for the relevant period and displayed (before any correction, recalculation or republication by the administrator) on page BBSY of the Thomson Reuters Screen (or any replacement Thomson Reuters page which displays that rate), on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters. 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.
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“SEC” shall mean the United States Securities and Exchange Commission or any successor thereto.
“Section 2.14 Additional Amendment” shall have the meaning provided in Section 2.14(g)(iv).
“Section 9.1 Financials” shall mean the financial statements delivered, or required to be delivered, pursuant to Section 9.1(a) or (b), together with the accompanying officer’s certificate delivered, or required to be delivered, pursuant to Section 9.1(d).
“Secured Bank Product Agreement” shall mean any Bank Product Agreement that is entered into by and between Holdings, the Borrower or any of the Restricted Subsidiaries and any Bank Product Provider, which is specified in writing by the Borrower to the Administrative Agent as constituting a Secured Bank Product Agreement hereunder.
“Secured Bank Product Obligations” shall mean Obligations under any Secured Bank Product Agreement.
“Secured Cash Management Agreement” shall mean any Cash Management Agreement that is entered into by and between Holdings, the Borrower or any of the Restricted Subsidiaries and any Cash Management Bank, which is specified in writing by the Borrower to the Administrative Agent as constituting a Secured Cash Management Agreement hereunder.
“Secured Cash Management Obligations” shall mean Obligations under Secured Cash Management Agreements.
“Secured Hedge Agreement” shall mean collectively, the U.S. Secured Hedge Agreements and the Foreign Secured Hedge Agreements.
“Secured Hedge Obligations” shall mean Obligations under Secured Hedge Agreements.
“Secured Net Leverage Ratio” shall mean, as of any date of determination, the ratio of (i) Consolidated Total Debt in each case secured by, in whole or in part, Liens on the Collateral as of such date of determination, minus unrestricted cash and Cash Equivalents of the Borrower and the Restricted Subsidiaries as of the date of determination to (ii) Consolidated EBITDA for the Test Period then last ended.
“Secured Parties” shall mean the Administrative Agent, the Collateral Agent, the Letter of Credit Issuer, and each Lender, in each case with respect to the Credit Facilities, each Hedge Bank that is party to any Secured Hedge Agreement, each Cash Management Bank that is party to a Secured Cash Management Agreement, each Bank Product Provider that is a party to a Secured Bank Product Agreement and each sub-agent pursuant to Section 12 appointed by the Administrative Agent with respect to matters relating to the Credit Facilities or the Collateral Agent with respect to matters relating to any Security Document.
“Securitization Asset” shall mean (a) any accounts receivable or related assets and the proceeds thereof, in each case, subject to a Securitization Facility and (b) all collateral securing such receivable or asset, all contracts and contract rights, guaranties or other obligations in respect of such receivable or asset, lockbox accounts and records with respect to such account or asset and any other assets customarily transferred (or in respect of which security interests are customarily granted), together with accounts or assets in a securitization financing and which in the case of clause (a) and (b) above are sold, conveyed, assigned or otherwise transferred or pledged in connection with a Qualified Securitization Financing.
“Securitization Facility” shall mean any transaction or series of securitization financings that may be entered into by the Borrower or any Restricted Subsidiary pursuant to which the Borrower or any such Restricted Subsidiary may sell, convey or otherwise transfer, or may grant a security interest in, Securitization Assets to either (a) a Person that is not the Borrower or a Restricted Subsidiary or (b) a Securitization Subsidiary that in turn sells such Securitization Assets to a Person that is not the Borrower or a Restricted Subsidiary, or may grant a security interest in, any Securitization Assets of the Borrower or any of its Subsidiaries.
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“Securitization Fees” shall mean distributions or payments made directly or by means of discounts with respect to any Securitization Asset or participation interest therein issued or sold in connection with, and other fees and expenses (including reasonable fees and expenses of legal counsel) paid to a Person that is not the Borrower or a Restricted Subsidiary in connection with, any Qualified Securitization Financing.
“Securitization Repurchase Obligation” shall mean any obligation of a seller (or any guaranty of such obligation) of (i) Receivables Assets under a Receivables Facility to repurchase Receivables Assets or (ii) Securitization Assets in a Qualified Securitization Financing to repurchase Securitization Assets, in either case, arising as a result of a breach of a representation, warranty or covenant or otherwise, including, without limitation, as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.
“Securitization Subsidiary” shall mean any Subsidiary of the Borrower in each case formed for the purpose of, and that solely engages in, one or more Qualified Securitization Financings and other activities reasonably related thereto or another Person formed for the purposes of engaging in a Qualified Securitization Financing in which the Borrower or any Restricted Subsidiary makes an Investment and to which the Borrower or such Restricted Subsidiary transfers Securitization Assets and related assets.
“Security Agreements” shall mean the U.S. Security Agreements and the Foreign Security Agreements.
“Security Documents” shall mean, collectively, the Pledge Agreements, the Security Agreements, the IP Security Agreement, the Mortgages (if executed), the Junior Lien Intercreditor Agreement (if executed), the Pari Intercreditor Agreement (if executed) and each other security agreement or other instrument or document executed and delivered pursuant to Section 9.11, 9.12 or 9.14 or pursuant to any other such Security Documents to secure the Obligations.
“Senior Notes” shall mean the Borrower’s 5.625% senior unsecured notes due 2025 that are issued on the Closing Date pursuant to the Senior Notes Indenture, and including any Registered Equivalent Notes issued in respect thereof.
“Senior Notes Documents” shall mean the Senior Notes Indenture, the Senior Notes, and any other document, guarantee, agreement or letter entered into in connection therewith.
“Senior Notes Indenture” shall mean the Indenture for the Senior Notes, dated as of August 8, 2017, among, inter alios, the Borrower, as issuer, and Wilmington Trust, National Association, as trustee.
“Series” shall have the meaning provided in Section 2.14(a).
“Significant Subsidiary” shall mean, at any date of determination, (a) any Restricted Subsidiary whose gross revenues for the Test Period most recently ended on or prior to such date were equal to or greater than 10% of the consolidated gross revenues of the Borrower and the Restricted Subsidiaries for such period, determined in accordance with GAAP or (b) each other Restricted Subsidiary that, when such Restricted Subsidiary’s total gross revenues are aggregated with each other Restricted Subsidiary that is the subject of an Event of Default described in Section 11.5 would constitute a “Significant Subsidiary” under clause (a) above.
“Similar Business” shall mean any business conducted or proposed to be conducted by the Borrower and the Restricted Subsidiaries, taken as a whole, on the Closing Date or any other business activities which are reasonable extensions thereof or otherwise similar, incidental, corollary, complementary, synergistic, reasonably related, or ancillary to any of the foregoing (including non-core incidental businesses acquired in connection with any Permitted Acquisition or permitted Investment), in each case as determined by the Borrower in good faith.
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“Solvent” shall mean, after giving effect to the consummation of the Transactions, that (i) the fair value of the assets (on a going concern basis) of the Borrower and its Subsidiaries, on a consolidated basis, exceeds, on a consolidated basis, their debts and liabilities, subordinated, contingent or otherwise, (ii) the present fair saleable value of the property (on a going concern basis) of the Borrower and its Subsidiaries, on a consolidated basis, is greater than the amount that will be required to pay the probable liability, on a consolidated basis, of their debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured in the ordinary course of business, (iii) the Borrower and its Subsidiaries, on a consolidated basis, are able to pay their debts and liabilities, subordinated, contingent or otherwise, as such liabilities become absolute and matured in the ordinary course of business and (iv) the Borrower and its Subsidiaries, on a consolidated basis, are not engaged in, and are not about to engage in, business contemplated as of the date hereof for which they have unreasonably small capital. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that would reasonably be expected to become an actual and matured liability in the ordinary course of business.
“Specified Acquisition Agreement Representations” shall mean the representations and warranties made by or with respect to Diversey and its Subsidiaries in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that Borrower (or any of its Affiliates) has the right (taking into account any applicable cure provisions) to terminate its respective obligations under the Acquisition Agreement or decline to consummate the Acquisition (in each case, in accordance with the terms of the Acquisition Agreement) as a result of a breach of such representations and warranties in the Acquisition Agreement.
“Specified Existing Revolving Credit Commitment” shall have the meaning provided in Section 2.14(g)(ii).
“Specified Representations” shall mean the representations and warranties with respect to the Credit Parties set forth in Sections 8.1(a) (with respect to the organizational existence of the Credit Parties only), 8.2 (with respect to organizational power and authority of the Credit Parties and due authorization, execution and delivery by the Credit Parties, in each case, as they relate to their entry into and performance of, the Credit Documents, and enforceability of the Credit Documents against the Credit Parties), 8.3(c) (with respect to the Credit Parties only and as related to the borrowing under, guaranteeing under, granting of security interests in the Collateral pursuant to, and performance of, the Credit Documents by the Credit Parties), 8.5, 8.7, 8.17, 8.18 and, except with respect to items referred to on Schedule 9.14, and subject to the proviso contained in Section 6.1(b), 8.19 of this Agreement.
“Specified Transaction” shall mean, with respect to any period, (i) any Investment that results in a Person becoming a Restricted Subsidiary, (ii) any designation of a Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary, (iii) any Permitted Acquisition, (iv) any disposition that results in a Restricted Subsidiary ceasing to be a Subsidiary, (v) any Investment in, acquisition of or disposition of assets constituting a business unit, line of business or division of, or all or substantially all of the assets of, another Person, (vi) any Restricted Payment, (vii) any borrowing of any New Term Loan or establishment of any Incremental Revolving Credit Commitment, or (viii) any other event that by the terms of this Agreement requires Pro Forma Compliance with a test or covenant hereunder or requires such test or covenant to be calculated on a Pro Forma Basis or giving Pro Forma Effect to any such transaction or event.
“Sponsor” shall mean Bain and/or its Affiliates (including, as applicable, related funds, general partners thereof and limited partners thereof, but solely to the extent any such limited partners are directly or indirectly participating as investors pursuant to a side-by-side investing arrangement, but not including, however, any portfolio company of any of the foregoing).
“Sponsor Management Agreement” shall mean shall mean the Management Agreement, dated as of the date hereof, by and among BCPE Diamond US Holdco, Inc., Diamond (BC) Netherlands Holding B.V. and Bain, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Sponsor Model” shall mean that certain Sponsor model delivered to the Joint Lead Arrangers on March 3, 2017 (together with any updates or modifications thereto reasonably agreed between Sponsor and the Joint Lead Arrangers).
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“Spot Rate” for any currency, shall mean the rate determined by the Administrative Agent or the Letter of Credit Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided, that such Person may obtain such spot rate from another financial institution designated by such Person if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; provided further that the Letter of Credit Issuer may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in an Alternative Currency.
“SPV” shall have the meaning provided in Section 13.7(g).
“Standard Securitization Undertakings” shall mean representations, warranties, covenants and indemnities entered into by the Borrower or any Restricted Subsidiary which the Borrower has determined in good faith to be customary in a Securitization Facility, including, without limitation, those relating to the servicing of the assets of a Securitization Subsidiary, it being understood that any Securitization Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking.
“Stated Amount” of any Letter of Credit shall mean the maximum amount from time to time available to be drawn thereunder, determined without regard to whether any conditions to drawing could then be met; provided, however, that with respect to any Letter of Credit that by its terms or the terms of any Issuer Document provides for one or more automatic increases in the stated amount thereof, the Stated Amount shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
“Step-Up Letter of Credit” shall have the meaning provided in Section 1.13.
“Stock Equivalents” shall mean all securities convertible into or exchangeable for Capital Stock and all warrants, options, or other rights to purchase or subscribe for any Capital Stock, whether or not presently convertible, exchangeable, or exercisable, excluding from the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock, until any such conversion.
“Subject Lien” shall have the meaning provided in Section 10.2(a).
“Subject Party” has the meaning provided in Section 5.4(h).
“Subordinated Indebtedness” shall mean Indebtedness of the Borrower or any Restricted Subsidiary that is a Guarantor that is by its terms subordinated in right of payment to the obligations of the Borrower or such Guarantor, as applicable, under this Agreement or any Guarantee, as applicable.
“Subordination Agreement” means an agreement executed by BCPE Diamond Netherlands Holdco B.V., Holdings, the Borrower, Credit Suisse AG, Cayman Islands Branch and Wilmington Trust, National Association, in a form reasonably satisfactory to the Borrower and the Administrative Agent (such approval not to be unreasonably withheld, conditioned, denied or delayed).
“Subsequent Transaction” shall have the meaning provided in Section 1.12(f).
“Subsidiary” of any Person shall mean a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise expressly provided, all references herein to a Subsidiary shall mean a Subsidiary of the Borrower.
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“Successor Borrower” shall have the meaning provided in Section 10.3(a).
“Supplier” shall have the meaning provided in Section 5.4(h).
“Swap Obligation” shall mean, with respect to any Credit Party, any obligation to pay or perform under any agreement, contract, or transaction that constitutes a “swap” within the meaning of Section 1(a)(47) of the Commodity Exchange Act.
“SWIFT” shall have the meaning provided in Section 3.7.
“Swiss Guarantor” shall have the meaning provided in Section 13.6.
“Swiss Security Document” shall have the meaning provided in Section 12.1(b).
"Swiss Subsidiary" shall have the meaning provided in Section 11.5.
"Swiss Withholding Tax" means the tax imposed based on the Swiss Federal Act on Withholding Tax of 13 October 1965 (Bundesgesetz über die Verrechnungssteuer), as amended.
“Taxes” shall mean all present or future taxes, duties, levies, imposts, assessments, deductions, withholdings (including backup withholding), fees, or other similar charges imposed by any Governmental Authority and any interest, fines, penalties, or additions to tax with respect to the foregoing.
“Term Loan Commitment” shall mean, with respect to each Lender, such Lender’s Initial Term Loan Commitment and, if applicable, commitment with respect to any Extension Series, New Term Loan Commitment with respect to any Series, Refinancing Term Loan Commitment with respect to any Refinancing Series and Replacement Term Loan Commitment with respect to any Replacement Series.
“Term Loan Extension Request” shall have the meaning provided in Section 2.14(g)(i).
“Term Loan Increase” shall have the meaning provided in Section 2.14(a).
“Term Loan Lender” shall mean, at any time, any Lender that has a Term Loan Commitment or an outstanding Term Loan.
“Term Loans” shall mean the Initial Term Loans, any New Term Loans, any Replacement Term Loans, any Refinancing Term Loans, and any Extended Term Loans, collectively.
“Test Period” shall mean, for any determination under this Agreement, the four consecutive fiscal quarters of the Borrower then last ended and for which Section 9.1 Financials shall have been delivered (or were required to be delivered) to the Administrative Agent (or, before the first delivery of Section 9.1 Financials, the most recent period of four fiscal quarters at the end of which financial statements are available).
“Total Credit Exposure” shall mean, at any date, the sum, without duplication, of (i) the Total Revolving Credit Commitments at such date (or, if any applicable Total Revolving Credit Commitments shall have terminated on such date, the aggregate Revolving Credit Exposure of all applicable Revolving Lenders at such date), (ii) the Total Term Loan Commitment at such date, and (iii) without duplication of clause (ii) above, the aggregate outstanding principal amount of all Term Loans at such date.
“Total Initial Euro Term Loan Commitment” shall mean the sum of the Initial Euro Term Loan Commitments of all Lenders.
“Total Initial Term Loan Commitment” shall mean the sum of the Initial Term Loan Commitments of all Lenders.
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“Total Initial USD Term Loan Commitment” shall mean the sum of the Initial USD Term Loan Commitments of all Lenders.
“Total Net Leverage Ratio” shall mean, as of any date of determination, the ratio of (i) Consolidated Total Debt as of such date of determination, minus unrestricted cash and Cash Equivalents of the Borrower and the Restricted Subsidiaries as of the date of determination to (ii) Consolidated EBITDA for the Test Period then last ended.
“Total Outstandings” shall mean, at any time, the aggregate Outstanding Amount of all Loans and all L/C Obligations at such time.
“Total Revolving Credit Commitment” shall mean the sum of the Revolving Credit Commitments (including the Initial Revolving Credit Commitment) and, if applicable, any Extended Revolving Credit Commitments, Additional Revolving Credit Commitments, New Revolving Credit Commitments and Refinancing Revolving Credit Commitments, in each case, of all the Lenders.
“Total Term Loan Commitment” shall mean the sum of the Initial Term Loan Commitments and, if applicable, any New Term Loan Commitments, Replacement Term Loan Commitments, Refinancing Term Loan Commitments, or commitments in respect of Extended Term Loans, in each case, of all the Lenders.
“Transaction Expenses” shall mean any fees, costs, or expenses incurred, paid or payable by Holdings, the Borrower or any of their respective Affiliates in connection with the Transactions (including expenses in connection with hedging transactions, if any, and payments to officers, employees and directors as change of control payments, severance payments, special or retention bonuses, payments on account of phantom units and charges for repurchase or rollover of, or modifications to, equity options and/or restricted equity), this Agreement and the other Credit Documents, the Senior Notes Documents and the transactions contemplated hereby and thereby, including any currency hedges entered into in connection with the financing of the Transactions.
“Transactions” shall mean, collectively, the transactions constituting or contemplated by this Agreement and the other Credit Documents, the Senior Notes Indenture, the Acquisition Agreement, and the Equity Contribution and any repayment, repurchase, prepayment, or defeasance of Indebtedness of the Borrower or any of its Subsidiaries in connection therewith (including the Closing Releases), the Acquisition, the consummation of any other transactions in connection with the foregoing (including in connection with the Acquisition Agreement and the payment of the fees, costs and expenses incurred in connection with any of the foregoing (including the Transaction Expenses)).
“Transferee” shall have the meaning provided in Section 13.7(e).
“Type” shall mean as to any Loan, its nature as an ABR Loan or a Eurocurrency Loan.
“UCC” or “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that if a term is defined in Article 9 of the Uniform Commercial Code differently than in another Article thereof, the term shall have the meaning set forth in Article 9; provided, further, that, if by reason of mandatory provisions of law, perfection, or the effect of perfection or non-perfection, of a security interest in any Collateral or the availability of any remedy hereunder is governed by the Uniform Commercial Code as in effect in a jurisdiction other than New York, “UCC” or “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect in such other jurisdiction from time to time for purposes of the provisions hereof relating to such perfection or effect of perfection or non-perfection or availability of such remedy, as the case may be.
“UCP” shall mean, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).
“Unpaid Drawing” shall have the meaning provided in Section 3.4(a).
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“Unrestricted Subsidiary” shall have the meaning provided in Section 9.7(a).
“Upstream or Cross-Stream Secured Obligations” shall have the meaning provided in Section 13.6(a).
“U.S.” and “United States” shall mean the United States of America.
“U.S. Credit Party” shall mean each Credit Party that is a Domestic Subsidiary.
“U.S. Guarantee” shall mean that certain Guarantee Agreement, substantially in the form of Exhibit C, together with each other guaranty and guaranty joinder or supplement of any U.S. Credit Parties Subsidiaries executed and delivered pursuant to Section 9.11.
“U.S. Guarantors” shall mean, on and after the Closing Date, each Wholly-Owned Restricted Subsidiary that is a Domestic Subsidiary of the Borrower that becomes a party to a U.S. Guarantee pursuant to Section 9.11 or otherwise; provided, for the avoidance of doubt, (x) unless expressly agreed by the Borrower, no Domestic Subsidiary that is an Excluded Subsidiary shall be a Guarantor, and (y) the Borrower may cause any Restricted Subsidiary that is a Domestic Subsidiary that is not a U.S. Guarantor to guarantee the Obligations by causing such Restricted Subsidiary to become a U.S. Guarantor under a U.S. Guarantee and a grantor under the applicable U.S. Security Documents in accordance with Section 9.11, and any such Restricted Subsidiary shall be a U.S. Guarantor hereunder and under the other Credit Documents for all purposes.
“U.S. Newco” shall mean BCPE Diamond US Holdco, Inc., a Delaware corporation.
“U.S. Obligations” shall mean all advances to, and debts, liabilities, obligations, covenants, and duties of, any U.S. Credit Party arising under any Credit Document or otherwise with respect to any Commitment, any Loan or Letter of Credit or under any U.S. Secured Cash Management Agreement, U.S. Secured Bank Product Agreement or U.S. Secured Hedge Agreement (other than with respect to any U.S. Credit Party’s obligations that constitute Excluded Swap Obligations solely with respect to such U.S. Credit Party), in each case, entered into with any of the U.S. Restricted Subsidiaries, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, fees and expenses that accrue after the commencement by or against any U.S. Credit Party or any Affiliate thereof of any proceeding under any bankruptcy or insolvency law naming such Person as the debtor in such proceeding, regardless of whether such interest, fees or expenses are allowed claims in such proceeding. Without limiting the generality of the foregoing, the Obligations of the U.S. Credit Parties under the Credit Documents (and any of their Domestic Subsidiaries to the extent they have obligations under the Credit Documents) include the obligation (including guarantee obligations) to pay principal, premium, interest, charges, expenses, fees, attorney costs, indemnities, and other amounts payable by any U.S. Credit Party under any Credit Document.
“U.S. Pledge Agreements” shall mean any Pledge Agreement, entered into by the U.S. Credit Parties for the benefit of the Secured Parties, substantially in the form of Exhibit G, together with each other pledge or pledge joinder or supplement of any U.S. Restricted Subsidiaries executed and delivered pursuant to Section 9.11.
“U.S. Restricted Subsidiaries” shall mean each Restricted Subsidiary that is a Domestic Subsidiary.
“U.S. Secured Bank Product Agreement” shall mean any Bank Product Agreement that is entered into by and between Holdings, the Borrower or any of the Restricted Subsidiaries and any Bank Product Provider, which is specified in writing by the Borrower to the Administrative Agent as constituting a Secured Bank Product Agreement hereunder.
“U.S. Secured Cash Management Agreement” shall mean any Cash Management Agreement that is entered into by and between any of the Restricted Subsidiaries that are Domestic Subsidiaries of U.S. Newco and any Cash Management Bank, which is specified in writing by the Borrower to the Administrative Agent as constituting a U.S. Secured Cash Management Agreement hereunder.
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“U.S. Secured Cash Management Obligations” shall mean U.S. Obligations under Secured Cash Management Agreements.
“U.S. Secured Hedge Agreement” shall mean any Hedge Agreement that is entered into by and between any Restricted Subsidiary that is a Domestic Subsidiary of U.S. Newco and any Hedge Bank, which is specified in writing by the Borrower to the Administrative Agent as constituting a “U.S. Secured Hedge Agreement” hereunder. For purposes of the preceding sentence, the Borrower may deliver one notice designating all Hedge Agreements entered into pursuant to a specified Master Agreement as “U.S. Secured Hedge Agreements.”
“U.S. Security Agreement” shall mean the Security Agreement entered into by U.S. Credit Parties party thereto, and the Collateral Agent for the benefit of the Secured Parties, substantially in the form of Exhibit H, together with each other pledge or pledge joinder or supplement of any U.S. Restricted Subsidiaries executed and delivered pursuant to Section 9.11.
“U.S. Security Documents” shall mean, collectively, the U.S. Pledge Agreement, the U.S. Security Agreement, the IP Security Agreement, the Mortgages (if executed), the Junior Lien Intercreditor Agreement (if executed), the Pari Intercreditor Agreement (if executed) and each other security agreement or other instrument or document executed and delivered pursuant to Section 9.11, 9.12 or 9.14 or pursuant to any other such Security Documents to secure the U.S. Obligations.
“VAT” shall mean (i) any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax as amended (EC Directive 2006/112), and (ii) any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.
“VAT Recipient” has the meaning provided in Section 5.4(h).
“Voting Stock” shall mean, with respect to any Person as of any date, the Capital Stock of such Person that is at the time entitled to vote in the election of the board of directors (or analogous governing body) of such Person.
“Weighted Average Life to Maturity” shall mean, when applied to any Indebtedness, Disqualified Stock or Preferred Stock, as the case may be, at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining scheduled installment, sinking fund, serial maturity or other required scheduled payments of principal, including payment at final scheduled maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment by (b) the then outstanding principal amount of such Indebtedness, Disqualified Stock or Preferred Stock; provided that for purposes of determining the Weighted Average Life to Maturity of any Indebtedness, Disqualified Stock or Preferred Stock that is being modified, refinanced, refunded, renewed, replaced or extended (the “Applicable Indebtedness”), the effects of any prepayments or amortization made on such Applicable Indebtedness prior to the date of the applicable modification, refinancing, refunding, renewal, replacement or extension shall be disregarded.
“Wholly-Owned Restricted Subsidiary” of any Person shall mean a Wholly-Owned Subsidiary of such Person that is a Restricted Subsidiary.
“Wholly-Owned Subsidiary” of any Person shall mean a Subsidiary of such Person, 100% of the outstanding Capital Stock or other ownership interests of which (other than (x) directors’ qualifying shares or other ownership interests and (y) a nominal number of shares or other ownership interests issued to foreign nationals to the extent required by applicable laws) shall at the time be owned by such Person or by one or more Wholly-Owned Subsidiaries of such Person.
“Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Title IV of ERISA.
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“Withholding Agent” shall mean any Credit Party, the Administrative Agent and any other applicable withholding agent.
“Write-Down and Conversion Powers” shall mean, 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.
1.2 Other Interpretive Provisions. With reference to this Agreement and each other Credit Document, unless otherwise specified herein or in such other Credit Document:
(a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.
(b) The words “herein,” “hereto,” “hereof’, and “hereunder” and words of similar import when used in any Credit Document shall refer to such Credit Document as a whole and not to any particular provision thereof.
(c) Section, Exhibit, and Schedule references are to the Credit Document in which such reference appears.
(d) The term “including” is by way of example and not limitation. The word “or” is not exclusive.
(e) The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.
(f) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”; and the word “through” means “to and including.”
(g) Section headings herein and in the other Credit Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Credit Document.
(h) 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.
(i) All references to “knowledge” or “awareness” of any Credit Party or any Restricted Subsidiary thereof means the actual knowledge of an Authorized Officer of such Credit Party or such Restricted Subsidiary.
(j) All references to “in the ordinary course of business” of the Borrower or any Subsidiary thereof means (i) in the ordinary course of business of, or in furtherance of an objective that is in the ordinary course of business of the Borrower or such Subsidiary, as applicable, (ii) customary and usual in the industry or industries of the Borrower and its Subsidiaries in the United States or any other jurisdiction in which the Borrower or any Subsidiary does business, as applicable, or (iii) generally consistent with the past or current practice of the Borrower or such Subsidiary, as applicable, or any similarly situated businesses in the United States or any other jurisdiction in which the Borrower or any Subsidiary does business, as applicable.
(k) In the case of any cure or waiver, Holdings, the Borrower, the applicable Credit Parties, the Lenders and the Administrative Agent shall be restored to their former positions and rights hereunder and under the other Credit Documents, and any Default or Event of Default cured or waived shall be deemed to be cured and not continuing, it being understood that no such cure or waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.
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1.3 Accounting Terms.
(a) Except as expressly provided herein, all accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP, applied in a consistent manner.
(b) Where reference is made to “the Borrower and the Restricted Subsidiaries on a consolidated basis” or similar language, such consolidation shall not include any Subsidiaries of the Borrower other than Restricted Subsidiaries.
1.4 Rounding. Any financial ratios required to be maintained by the Borrower pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number.
1.5 References to Agreements Laws, Etc. Unless otherwise expressly provided herein, (a) references to Organizational Documents, agreements (including the Credit Documents), and other Contractual Requirements shall be deemed to include all subsequent amendments, restatements, amendment and restatements, extensions, supplements, modifications, replacements, refinancings, renewals, or increases (in each case, whether pursuant to one or more agreements or with different lenders or agents), but only to the extent that such amendments, restatements, amendment, and restatements, extensions, supplements, modifications, replacements, refinancings, renewals, or increases are not prohibited by any Credit Document; (b) references to any Requirement of Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing, or interpreting such Requirement of Law; and (c) any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all of the functions thereof.
1.6 Exchange Rates.
(a) Any amount specified in this Agreement (other than in Sections 2, 12 and 13) or any of the other Credit Documents to be in Dollars shall also include the equivalent of such amount in any currency other than Dollars, such equivalent amount to be determined at the rate of exchange quoted by the Reuters World Currency Page for the applicable currency at 11:00 a.m. (London time) on such day (or, in the event such rate does not appear on any Reuters World Currency Page, by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Administrative Agent and the Borrower, or, in the absence of such agreement, by reference to such publicly available service for displaying exchange rates as the Administrative Agent selects in its reasonable discretion).
(b) For purposes of determining the First Lien Net Leverage Ratio, Secured Net Leverage Ratio the Total Net Leverage Ratio and Interest Coverage Ratio, the amount of Indebtedness shall reflect the currency translation effects, determined in accordance with GAAP, of Hedge Agreements permitted hereunder for currency exchange risks with respect to the applicable currency in effect on the date of determination of the Dollar equivalent of such Indebtedness.
(c) Notwithstanding the foregoing, for purposes of determining compliance with Section 9.10, Section 10 and the definitions of “Asset Sale,” “Permitted Investments” and “Permitted Liens” (and, in each case, other definitions used therein) with respect to the amount of any Indebtedness, Lien, Asset Sale, disposition, Investment, Restricted Payment, Affiliate transaction, or other applicable transaction in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred solely as a result of changes in rates of currency exchange occurring after the time such Indebtedness or Lien is incurred or such disposition, Asset Sale, Investment, Restricted Payment or other applicable transaction is made (so long as such Indebtedness, Lien, disposition, Asset Sale, Investment, Restricted Payment, Affiliate transaction, or other applicable transaction at the time incurred or made was permitted hereunder). No Default or Event of Default shall arise as a result of any limitation or threshold set forth in Dollars in Section 11 being exceeded solely as a result of changes in currency exchange rates from those rates applicable on the last day of the fiscal quarter immediately preceding the fiscal quarter in which such determination occurs or in respect of which such determination is being made.
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(d) Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify with the Borrower’s prior written consent to appropriately reflect a change in currency of any country and any relevant market conventions or practices relating to such change in currency.
(e) The Administrative Agent (or a Letter of Credit Issuer to the extent otherwise set forth in this Agreement) shall determine the Dollar Equivalent of any Letter of Credit denominated in Euros or any other Alternative Currency as of (i) each date (with such date to be reasonably determined by the Administrative Agent or Letter of Credit Issuer, as applicable) that is on or about the date of each request for the issuance, amendment, renewal or extension of any Letter of Credit denominated in Euros or any other Alternative Currency, (ii) each date on which the Dollar Equivalent in respect of any Borrowing is determined pursuant to paragraph (f) of this Section, and each such amount shall be the Dollar Equivalent of such Letter of Credit denominated in Euros or other Alternative Currency until the next required calculation thereof pursuant to this Section 1.06(e) and (iii) from time to time with notice to the Borrower in its reasonable discretion.
(f) The Administrative Agent shall determine the Dollar Equivalent of any Borrowing denominated in Euros or any other Alternative Currency as of (i) each date (with such date to be reasonably determined by the Administrative Agent) that is on or about the date of a Notice of Borrowing or the beginning of each Interest Period with respect to any Borrowing, (ii) each date on which the Dollar Equivalent in respect of any Letter of Credit is determined pursuant to paragraph (e) of this Section, and each such amount shall be the Dollar Equivalent of such Borrowing until the next required calculation thereof pursuant to this clause 1.6(f), (iii) each date of determination of the rates specified in the definition of “Facility Fee Rate” and (iv) from time to time with notice to the Borrower, as applicable, in its reasonable discretion; provided that if a prepayment of Term Loans is required under Section 5.2, the Dollar Equivalent of such Term Loans for purposes of determining the relative application of the prepayment among multiple Classes of Term Loans shall be determined as of the date of such prepayment, or if earlier, the date that notice of such prepayment is furnished by the Borrower.
(g) The Dollar Equivalent of any L/C Borrowing made by a Letter of Credit Issuer in Euros or any other Alternative Currency and not reimbursed by the Borrower shall be determined as set forth in Section 2.5.
(h) The Administrative Agent (or the Letter of Credit Issuer) shall notify the Borrower, the applicable Lenders of each calculation of the Dollar Equivalent of each Letter of Credit denominated in Euros or any other Alternative Currency, Borrowing and L/C Borrowing.
1.7 Rates. The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission, or any other matter related to the rates in the definition of Eurocurrency Rate or with respect to any comparable or successor rate thereto.
1.8 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
1.9 Timing of Payment or Performance. Except as otherwise expressly provided herein, when the payment of any obligation or the performance of any covenant, duty, or obligation is stated to be due or performance required on (or before) a day which is not a Business Day, the date of such payment (other than as described in the definition of Interest Period) or performance shall extend to the immediately succeeding Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
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1.10 Certifications. All certifications to be made hereunder by an officer or representative of a Credit Party shall be made by such a Person in his or her capacity solely as an officer or a representative of such Credit Party, on such Credit Party’s behalf and not in such Person’s individual capacity.
1.11 Compliance with Certain Sections. For purposes of determining compliance with Section 9.10 and Section 10, in the event that any Lien, Investment, Indebtedness (whether at the time of incurrence or upon application of all or a portion of the proceeds thereof), disposition, Restricted Payment, Affiliate transaction, Contractual Requirement, or prepayment of Indebtedness meets the criteria of one, or more than one, of the “baskets” or categories of transactions then permitted pursuant to any clause or subsection of Section 9.10 and Section 10, such transaction (or portion thereof) at any time shall be permitted under one or more of such clauses at the time of such transaction or any later time from time to time, in each case, as determined by the Borrower in its sole discretion at such time and thereafter may be reclassified by the Borrower in any manner not expressly prohibited by this Agreement.
1.12 Pro Forma and Other Calculations.
(a) Notwithstanding anything to the contrary herein, financial ratios and tests, including the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio, the Total Net Leverage Ratio and the Interest Coverage Ratio, and compliance with covenants determined by reference to Consolidated EBITDA or Consolidated Total Assets, shall be calculated in the manner prescribed by this Section 1.12; provided, that notwithstanding anything to the contrary in clauses (b), (c), (d) or (e) of this Section 1.12, when calculating the First Lien Net Leverage Ratio for purposes of (i) determining the “Applicable Margin” and “Facility Fee Rate” with respect to the Revolving Credit Loans, (ii) Section 10.9 (other than for the purpose of determining pro forma compliance with Section 10.9) and (iii) Section 5.2(a)(ii), in each case, the events described in this Section 1.12 that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect.
(b) For purposes of calculating any financial ratio or test or compliance with any covenant determined by reference to Consolidated EBITDA or Consolidated Total Assets, Specified Transactions (with any incurrence or repayment of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.12) that have been made (i) during the applicable Test Period or (ii) other than as described in the proviso to clause (a) above, subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio or test, or any such calculation of Consolidated EBITDA or Consolidated Total Assets, is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Consolidated EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period (or, in the case of Consolidated Total Assets, on the last day of the applicable Test Period). If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of the Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.12, then such financial ratio or test (or Consolidated EBITDA or Consolidated Total Assets) shall be calculated to give pro forma effect thereto in accordance with this Section 1.12.
(c) Whenever pro forma effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by an Authorized Officer of the Borrower and may include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions, other operating improvements, changes and initiatives, and synergies resulting from or relating to such Specified Transaction that are readily identifiable and factually supportable and projected by the Borrower in good faith to be realizable as a result of actions taken or are expected to be taken (calculated on a pro forma basis as though such cost savings, operating expense reductions and other operating improvements, changes and initiatives, and synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions, operating improvements, changes and synergies were realized during the entirety of such period and such that “run-rate” means the full recurring benefit for a period that is associated with any action taken, for which substantial steps have been taken or are expected to be taken (including any savings expected to result from the elimination of a public target’s compliance costs with public company requirements) net of the amount of actual benefits realized during such period from such actions), and any such adjustments shall be included in the initial pro forma calculations of such financial ratios or tests relating to such Specified Transaction (and in respect of any subsequent pro forma calculations in which such Specified Transaction or cost savings, operating expense reductions, other operating improvements, changes and initiatives, and synergies are given pro forma effect) and during any applicable subsequent Test Period for any subsequent calculation of such financial ratios and tests; provided that (A) such amounts are reasonably identifiable and factually supportable in the good faith judgment of the Borrower, (B) such actions are taken or substantial steps with respect to such actions are or are expected to be taken no later than twenty-four (24) months after the date of such Specified Transaction, and (C) no amounts shall be added to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA (or any other components thereof), whether through a pro forma adjustment or otherwise, with respect to such period.
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(d) In the event that (w) the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by repurchase, redemption, repayment, retirement, discharge, defeasance or extinguishment) any Indebtedness (in each case, other than Indebtedness incurred or repaid under any revolving credit facility or line of credit in the ordinary course of business for working capital purposes) or (x) the Borrower or any Restricted Subsidiary issues, repurchases or redeems Disqualified Stock, (i) during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence, assumption, guarantee, repurchase, redemption, repayment, retirement, discharge, defeasance or extinguishment of Indebtedness, or such issuance, repurchase or redemption of Disqualified Stock, in each case to the extent required, as if the same had occurred on the last day of the applicable Test Period (except in the case of the Interest Coverage Ratio (or similar ratio), in which case such incurrence, assumption, guarantee, repurchase, redemption, repayment, retirement, discharge, defeasance or extinguishment of Indebtedness or such issuance, repurchase or redemption of Disqualified Stock will be given effect as if the same had occurred on the first day of the applicable Test Period).
(e) If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of the event for which the calculation of the Interest Coverage Ratio is made had been the applicable rate for the entire period (taking into account any interest hedging arrangements applicable to such Indebtedness). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by an Authorized Officer of the Borrower to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate as the Borrower or any applicable Restricted Subsidiary may designate.
(f) In connection with any action being taken in connection with a Limited Condition Transaction, for purposes of:
(i) determining compliance with any provision of this Agreement which requires the calculation of any financial ratio or test, including the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio, the Interest Coverage Ratio and the Total Net Leverage Ratio; or
(ii) testing availability under baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated EBITDA or Consolidated Total Assets);
in each case, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action is permitted hereunder shall be deemed to be the date the definitive agreement for such Limited Condition Transaction is entered into (the “LCT Test Date”), and if, after giving Pro Forma Effect to the Limited Condition Transaction, the Borrower or any of its Restricted Subsidiaries would have been permitted to take such action on the relevant LCT Test Date in compliance with such ratio, test or basket, such ratio, test or basket shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date would have failed to have been satisfied as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated EBITDA, Consolidated Interest Expense or Consolidated Total Assets, at or prior to the consummation of the relevant transaction or action, such baskets, tests or ratios will not be deemed to have failed to have been satisfied as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any event or transaction occurring after the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement or date for redemption, repurchase, defeasance, satisfaction and discharge or repayment specified in an irrevocable notice for such Limited Condition Transaction is terminated, expires or passes, as applicable, without consummation of such Limited Condition Transaction (a “Subsequent Transaction”) in connection with which a ratio, test or basket availability calculation must be made on a Pro Forma Basis or giving Pro Forma Effect to such Subsequent Transaction, for purposes of determining whether such ratio, test or basket availability has been complied with under this Agreement, any such ratio, test or basket shall be required to be satisfied on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith have been consummated.
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1.13 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Letter of Credit Request related thereto, provides for one or more automatic increases in the stated amount thereof (each such letter, a “Step-Up Letter of Credit”), the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by any reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
SECTION 2
Amount and Terms of Credit
2.1 Commitments.
(a) Subject to and upon the terms and express conditions herein set forth, each Lender having an Initial Term Loan Commitment severally agrees (i) to make a loan or loans denominated in Dollars (each, an “Initial USD Term Loan”) to the Borrower on the Closing Date, which Initial USD Term Loans shall not exceed for any such Lender the Initial USD Term Loan Commitment of such Lender and in the aggregate shall not exceed $900,000,000, and (ii) to make a loan or loans denominated in Euros (each, an “Initial Euro Term Loan,” and together with the Initial USD Term Loan, the “Initial Term Loans”) on the Closing Date, which Initial Euro Term Loans shall not exceed for any such Lender the Initial Euro Term Loan Commitment of such Lender and in the aggregate shall not exceed €970,000,000. Such Term Loans (i) may at the option of the Borrower be incurred and maintained as, and/or converted into, ABR Loans or Eurocurrency Loans; provided that (x) all Initial USD Term Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Term Loans of the same Type, (ii) may be repaid or prepaid (without premium or penalty, other than as set forth in Section 5.1(b)) in accordance with the provisions hereof, but once repaid or prepaid, may not be reborrowed, (iii) shall not exceed for any such Lender the Initial USD Term Loan Commitment of such Lender, and (iv) shall not exceed in the aggregate the Total Initial USD Term Loan Commitments and (y) all Initial Euro Term Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Term Loans of the same Type, (ii) may be repaid or prepaid (without premium or penalty, other than as set forth in Section 5.1(b)) in accordance with the provisions hereof, but once repaid or prepaid, may not be reborrowed, (iii) shall not exceed for any such Lender the Initial Euro Term Loan Commitment of such Lender, and (iv) shall not exceed in the aggregate the Total Initial Euro Term Loan Commitments. On the Initial Term Loan Maturity Date, all then outstanding (i) Initial USD Term Loans shall be repaid in full in Dollars and (ii) Initial Euro Term Loans shall be repaid in full in Euros.
(b) Subject to and upon the terms and conditions herein set forth, each Revolving Credit Lender severally agrees to make Revolving Credit Loans denominated in Dollars, Euros, Sterling, CAD Dollars or any other Alternative Currency to the Borrower (each such loan, a “Revolving Credit Loan”) in an aggregate principal amount not to exceed at any time outstanding the amount of such Revolving Credit Lender’s Revolving Credit Commitment, provided that any of the foregoing such Revolving Credit Loans (A) shall be made at any time and from time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (B) may, at the option of the Borrower, be incurred and maintained as, and/or converted into, Eurocurrency Loans or, if denominated in Dollars, ABR Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type, (C) may be repaid (without premium or penalty) and reborrowed in accordance with the provisions hereof, (D) shall not, for any Revolving Lender at any time, after giving effect thereto and to the application of the proceeds thereof, result in such Revolving Lender’s Revolving Credit Exposure in respect of any Class of Revolving Loans at such time exceeding such Revolving Lender’s Commitment in respect of such Class of Revolving Loans at such time and (E) shall not, after giving effect thereto and to the application of the proceeds thereof, result at any time in the aggregate amount of the Revolving Lenders’ Revolving Credit Exposures at such time exceeding the Total Revolving Credit Commitment then in effect or the aggregate amount of the Revolving Lenders’ Revolving Credit Exposures of any Class of Revolving Loans at such time exceeding the aggregate Commitments with respect to such Class.
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2.2 Minimum Amount of Each Borrowing; Maximum Number of Borrowings. The aggregate principal amount of each Borrowing of Term Loans or Revolving Loans shall be in a minimum amount of at least the Minimum Borrowing Amount for such Type of Loans and in a multiple of $100,000 or €100,000, as applicable (or other Alternative Currency, a like amount), in excess thereof (except that Revolving Loans to reimburse the Letter of Credit Issuer with respect to any Unpaid Drawing shall be made in the amounts required by Section 3.3 or Section 3.4, as applicable). More than one Borrowing may be incurred on any date; provided that at no time shall there be outstanding more than sixteen Borrowings of Eurocurrency Loans under this Agreement, plus up to an additional three Borrowings in respect of each Series of Incremental Loans, Extended Term Loans or Extended Revolving Credit Loans (or in the case of either of the foregoing limits, such greater number as may be acceptable to the Administrative Agent).
2.3 Notices of Borrowing.
(a) For Borrowings of Initial Term Loans on the Closing Date, the Borrower shall deliver to the Administrative Agent at the Administrative Agent’s Office (i) in the case of ABR Loans, an executed Notice of Borrowing prior to 12:00 p.m. on the Closing Date and (ii) in the case of Eurocurrency Loans, an executed Notice of Borrowing prior to 1:00 p.m. at least one Business Day prior to the Closing Date (or, in each case, such shorter notice as is approved by the Administrative Agent in its reasonable discretion). Each such Notice of Borrowing shall specify (A) the aggregate principal amount of the Initial Term Loans to be made, (B) the date of the Borrowing (which shall be the Closing Date), (C) whether such Initial Term Loans shall consist of ABR Loans or Eurocurrency Loans, (D) with respect to any Eurocurrency Loans, the Interest Period to be initially applicable thereto and (E) with respect to any Eurocurrency Loans, the currency of any such Borrowing. With respect to Initial Term Loans, if no election as to the Type of Borrowing is specified in any such notice, then the requested Borrowing shall be (x) so long as such notice was delivered with the advance notice required under Section 2.3(a)(ii), a Eurocurrency Loan, (y) with respect to the Initial USD Term Loans and any Revolving Loans denominated in Dollars, an ABR Loan and (z) with respect to the Initial Euro Term Loans and any Revolving Loans not denominated in Dollars, a Eurocurrency Loan. If no Interest Period with respect to any Borrowing of Eurocurrency Loans is specified in any such notice, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. The Administrative Agent shall promptly advise the applicable Lenders of any notice given pursuant to this Section 2.3 (and the contents thereof), and of each Lender’s pro rata share of the requested Borrowing.
(b) For Borrowings of Revolving Loans on and after the Closing Date (other than borrowings to repay Unpaid Drawings), the Borrower shall deliver to the Administrative Agent at the Administrative Agent’s Office, (i) in the case of ABR Loans, an executed Notice of Borrowing prior to 1:30 p.m. on the date of requested Borrowing, and (ii) in the case of Eurocurrency Loans, an executed Notice of Borrowing prior to 1:00 p.m. at least three Business Days prior to the date of requested Borrowing (or 1:00 p.m. four Business days prior to the date of the requested Borrowing in the case of Eurocurrency Loans denominated in Australian Dollars) (or, in each case, such shorter notice as is approved by the Administrative Agent in its reasonable discretion). Each such Notice of Borrowing, except as otherwise expressly provided in Section 2.10, shall specify (A) the aggregate principal amount of the Revolving Loans to be made pursuant to such Borrowing, (B) the date of Borrowing (which shall be a Business Day), (C) whether the respective Borrowing shall consist of ABR Loans, Eurocurrency Loans, (D) with respect to Revolving Loans that are Eurocurrency Loans, the Interest Period to be initially applicable thereto and (E) the currency of any such Borrowing. If no election as to the Type of Borrowing is specified in any such notice, then the requested Borrowing shall be a Eurocurrency Loan. If no Interest Period with respect to any Borrowing of Eurocurrency Loans is specified in any such notice, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. If no currency with respect to any Borrowing is specified in any such notice, then the Borrower shall be deemed to have selected Dollars. The Administrative Agent shall promptly give each relevant Revolving Lender written notice of each proposed Borrowing of Revolving Loans of each Class, of such Revolving Lender’s Revolving Credit Commitment Percentage thereof and of the other matters covered by the related Notice of Borrowing.
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(c) [reserved].
(d) [reserved].
(e) Borrowings to reimburse Unpaid Drawings shall be made upon the notice specified in Section 3.4(a).
(f) Without in any way limiting the obligation of the Borrower to confirm in writing any notice it shall give hereunder by telephone (which such obligation is absolute), the Administrative Agent may act prior to receipt of written confirmation without liability upon the basis of such telephonic notice believed by the Administrative Agent in good faith to be from an Authorized Officer of the Borrower.
(g) The notice in respect of any Loans on the Closing Date, or in connection with any Permitted Acquisition or other acquisition permitted under this Agreement, Investment, Restricted Payment, or in connection with any Borrowing under any Joinder Agreement, Refinancing Amendment, Extension Amendment or amendment in respect of Replacement Term Loans, may be rescinded, or revised to change the requested date for the making of the Loans contemplated thereby, by the Borrower by giving written notice to the Administrative Agent prior to 2:00 p.m. (or, such later time as the Administrative Agent may approve in its sole discretion) on the date of the proposed Borrowing.
2.4 Disbursement of Funds.
(a) No later than 3:00 p.m. on the date specified in each Notice of Borrowing, each Lender shall make available its pro rata portion, if any, of each Borrowing requested to be made on such date in the manner provided below; provided that on the Closing Date, such funds may be made available at such time as may be agreed among the Lenders, the Borrower and the Administrative Agent for the purpose of consummating the Transactions.
(b) Each Lender shall make available all amounts it is to fund to the Borrower under any Borrowing for its applicable Commitments, and in immediately available funds, to the Administrative Agent at the Administrative Agent’s Office and the Administrative Agent will (except in the case of Borrowings to repay Unpaid Drawings) make available to the Borrower, by depositing to an account or accounts designated by the Borrower to the Administrative Agent the aggregate of the amounts so made available in Dollars or the applicable Alternative Currency. Unless the Administrative Agent shall have been notified by any Lender prior to the date of any such Borrowing that such Lender does not intend to make available to the Administrative Agent its portion of the Borrowing or Borrowings to be made on such date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such date of Borrowing, and the Administrative Agent, in reliance upon such assumption, may (in its sole discretion and without any obligation to do so) make available to the Borrower a corresponding amount. If such corresponding amount is not in fact made available to the Administrative Agent by such Lender and the Administrative Agent has made available such amount to the Borrower, the Administrative Agent shall be entitled to recover such corresponding amount from such Lender. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify the Borrower and the Borrower shall immediately pay (or cause to be paid) such corresponding amount to the Administrative Agent in Dollars or the applicable Alternative Currency. The Administrative Agent shall also be entitled to recover from such Lender or the Borrower interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative Agent to the Borrower to the date such corresponding amount is recovered by the Administrative Agent, at a rate per annum equal to (i) if paid by such Lender, the Overnight Rate or (ii) if paid by the Borrower, the then-applicable rate of interest or fees, calculated in accordance with Section 2.8, for the respective Loans.
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(c) Nothing in this Section 2.4 shall be deemed to relieve any Lender from its obligation to fulfill its commitments hereunder or to prejudice any rights that the Borrower may have against any Lender as a result of any default by such Lender hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other Lender to fulfill its commitments hereunder).
2.5 Repayment of Loans; Evidence of Debt.
(a) The Borrower shall repay to the Administrative Agent, for the benefit of the applicable Term Loan Lenders, on the Initial Term Loan Maturity Date, the then-outstanding Initial USD Term Loans in Dollars. The Borrower shall repay to the Administrative Agent, for the benefit of the applicable Term Loan Lenders, on the Initial Term Loan Maturity Date, the then-outstanding Initial Euro Term Loans in Euros. The Borrower shall repay to the Administrative Agent for the benefit of the Revolving Credit Lenders, on the Revolving Credit Maturity Date, the then outstanding Revolving Credit Loans, with respect to each Borrowing, in each case in the currency originally drawn. To the extent applicable, the Borrower shall repay to the Administrative Agent for the benefit of the applicable Lenders, on each Maturity Date of any Class of Loans (other than Initial Term Loans and Revolving Credit Loans), the then outstanding amount of Loans of such Class.
(b) The Borrower shall repay to the Administrative Agent on the last Business Day of each March, June, September and December, commencing with the last Business Day of the second full fiscal quarter ending after the Closing Date and ending with the last such Business Day prior to the Initial Term Loan Maturity Date (each, an “Initial Term Loan Repayment Date”), for the benefit of the Initial Term Loan Lenders, a principal amount equal to (i) 0.25% of the aggregate principal amount of all Initial USD Term Loans outstanding on the Closing Date and (ii) 0.25% of the aggregate principal amount of all Initial Euro Term Loans outstanding on the Closing Date (each such repayment, an “Initial Term Loan Repayment Amount”) (which Initial Term Loan Repayment Amount shall be reduced by the amount of the relevant scheduled principal payment that has been prepaid or deemed prepaid in accordance with this Agreement, including as set forth in Section 5.1, Section 5.2(c) and Section 13.7(h)).
(c) In the event that any New Term Loans are made, such New Term Loans shall, subject to Section 2.14(d), be repaid by the Borrower in the amounts (each, a “New Term Loan Repayment Amount”) and on the dates (each, a “New Term Loan Repayment Date”) set forth in the applicable Joinder Agreement, including by amending the repayments under Section 2.5(b) to account for the addition of any New Term Loans to the extent, and as required pursuant to, the terms of any applicable Joinder Agreement involving a Term Loan Increase to the Initial USD Term Loans or Initial Euro Term Loans, as applicable. In the event that any Extended Term Loans are established, such Extended Term Loans shall, subject to Section 2.14(g), be repaid by the Borrower in the amounts (each such amount with respect to any Extended Term Loan Repayment Date, an “Extended Term Loan Repayment Amount”) and on the dates (each, an “Extended Term Loan Repayment Date”) set forth in the applicable Extension Amendment. In the event that any Refinancing Term Loans are made, such Refinancing Term Loans shall, subject to Section 2.14(h), be repaid by the Borrower in the amounts (each, a “Refinancing Term Loan Repayment Amount”) and on the dates (each, a “Refinancing Term Loan Repayment Date”) set forth in the applicable Refinancing Amendment. In the event that any Replacement Term Loans are made, such Replacement Term Loans shall, subject to the sixth paragraph in Section 13.1, be repaid by the Borrower in the amounts (each, a “Replacement Term Loan Repayment Amount”) and on the dates (each, a “Replacement Term Loan Repayment Date”) set forth in the applicable amendment to this Agreement in respect of such Replacement Term Loans.
(d) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Indebtedness of the Borrower to the appropriate lending office of such Lender resulting from each Loan made by such lending office of such Lender from time to time, including the amounts of principal and interest payable and paid to such lending office of such Lender from time to time under this Agreement.
(e) The Administrative Agent shall maintain the Register pursuant to Section 13.7(b), and a subaccount for each Lender, in which Register and subaccounts (taken together) shall be recorded (i) the amount of each Loan made hereunder, whether such Loan is an Initial USD Term Loan, Initial Euro Term Loan, New Term Loan, Extended Term Loan, Refinancing Term Loan, Replacement Term Loan, Revolving Credit Loan, Additional Revolving Credit Loan, New Revolving Credit Loan, Extended Revolving Credit Loan or Refinancing Revolving Credit Loan, as applicable, the Type of each Loan made, the currency of each Loan made, the name of the Borrower and the Interest Period, if any, applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder, and (iii) the amount of any sum received by the Administrative Agent hereunder from the Borrower and each Lender’s share thereof.
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(f) The entries made in the Register and accounts and subaccounts maintained pursuant to clauses (d) and (e) of this Section 2.5 shall, to the extent permitted by applicable law, be prima facie evidence, absent manifest error, 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 such accounts, such Register or subaccounts, as applicable, 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. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such entries, the accounts and records of the Administrative Agent shall control in the absence of manifest error.
(g) The Borrower hereby agrees that, promptly, following the reasonable request of any Lender at any time and from time to time after the Borrower has made an initial borrowing hereunder, the Borrower shall provide to such Lender, at the Borrower’s own expense, a promissory note, substantially in the form of Exhibit I-1, or Exhibit I-2 as applicable, evidencing the applicable Loans owing to such Lender. Thereafter, unless otherwise agreed to by the applicable Lender, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 13.7) be represented by one or more promissory notes in such form payable to the payee named therein (or, if requested by such payee, to such payee and its registered assigns).
2.6 Conversions and Continuations.
(a) Subject to the penultimate sentence of this clause (a), (x) the Borrower shall have the option on any Business Day to convert all or a portion equal to at least $1,000,000 (or if such Borrowing is less, the entire remaining applicable amount at such time) of the outstanding principal amount of Term Loans of one Type or Revolving Loans of one Type into a Borrowing or Borrowings of another Type and (y) the Borrower shall have the option on any Business Day to continue all or a portion of the outstanding principal amount of any Eurocurrency Loans as Eurocurrency Loans for an additional Interest Period; provided that (i) no partial conversion of Eurocurrency Loans shall reduce the outstanding principal amount of Eurocurrency Loans made pursuant to a single Borrowing to less than the Minimum Borrowing Amount, (ii) ABR Loans may not be converted into Eurocurrency Loans if an Event of Default is in existence on the date of the conversion and the Required Lenders have determined in their sole discretion not to permit such conversion, (iii) Eurocurrency Loans may not be continued as Eurocurrency Loans for an additional Interest Period if an Event of Default is in existence on the date of the proposed continuation and the Required Lenders have determined in their sole discretion not to permit such continuation, (iv) Borrowings resulting from conversions pursuant to this Section 2.6 shall be limited in number as provided in Section 2.2, (v) if less than a full Borrowing of Revolving Loans is converted, such conversion shall be made pro rata among the Lenders based upon their Revolving Credit Commitment Percentage of the applicable Class or Classes in accordance with the respective principal amounts of the Revolving Loans comprising such Borrowing held by such Lenders immediately prior to such conversion and (vi) the Borrower may not elect to convert any Borrowing denominated in Euros or an Alternative Currency to an ABR Borrowing and may not change the currency of any Borrowing. Each such conversion or continuation shall be effected by the Borrower by giving the Administrative Agent at the applicable Administrative Agent’s Office prior to 1:00 p.m. at least (i) three Business Days’ prior written notice, in the case of a continuation of or conversion to Eurocurrency Loans (other than in the case of a notice delivered on the Closing Date, which shall be deemed to be effective on the Closing Date), or (ii) one Business Day prior written notice in the case of a conversion into ABR Loans (each, a “Notice of Conversion or Continuation” substantially in the form of Exhibit J) specifying the Loans to be so converted or continued, the Type of Loans to be converted or continued into and, if such Loans are to be converted into or continued as Eurocurrency Loans, the Interest Period to be initially applicable thereto. If no Interest Period is specified in any such notice with respect to any conversion to or continuation of a Eurocurrency Loan, the Borrower shall be deemed to have selected a Eurocurrency Loan with an Interest Period of one month’s duration. The Administrative Agent shall give each applicable Lender notice as promptly as practicable of any such proposed conversion or continuation affecting any of its Loans.
(b) If any Event of Default is in existence at the time of any proposed continuation of any Eurocurrency Loans and the Required Lenders have determined in their sole discretion not to permit such continuation, such Eurocurrency Loans shall be automatically converted on the last day of the current Interest Period into ABR Loans. If upon the expiration of any Interest Period in respect of Eurocurrency Loans, the Borrower has failed to elect a new Interest Period to be applicable thereto as provided in clause (a), the Borrower shall be deemed to have elected to continue such Borrowing of Eurocurrency Loans as Eurocurrency Loans with an Interest Period of one month, effective as of the expiration date of such current Interest Period.
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2.7 Pro Rata Borrowings. Each Borrowing of Term Loans or Revolving Loans of any Class under this Agreement shall be made by the applicable Lenders pro rata on the basis of their then-applicable Commitments with respect to such Class. It is understood that (a) no Lender shall be responsible for any default by any other Lender in its obligation to make Loans hereunder and that each Lender severally but not jointly shall be obligated to make the Loans provided to be made by it hereunder, regardless of the failure of any other Lender to fulfill its commitments hereunder and (b) other than as expressly provided herein with respect to a Defaulting Lender, failure by a Lender to perform any of its obligations under any of the Credit Documents shall not release any Person from performance of its obligations under any Credit Document.
2.8 Interest.
(a) The unpaid principal amount of each ABR Loan shall bear interest from the date of the Borrowing thereof until maturity (whether by acceleration or otherwise) at a rate per annum that shall at all times be the Applicable Margin for ABR Loans plus the ABR, in each case, in effect from time to time.
(b) The unpaid principal amount of each Eurocurrency Loan shall bear interest from the date of the Borrowing thereof until maturity thereof (whether by acceleration or otherwise) at a rate per annum that shall at all times be the Applicable Margin for Eurocurrency Loans plus the relevant Eurocurrency Rate.
(c) If all or a portion of (i) the principal amount of any Loan or (ii) any interest payable thereon or any other amount payable hereunder shall not be paid when due (whether at the stated maturity, by acceleration or otherwise but after giving effect to any grace period set forth herein) then, during the continuance of an Event of Default under Section 11.1, such overdue amount shall bear interest at a rate per annum that is (the “Default Rate”) (x) in the case of overdue principal, the rate that would otherwise be applicable thereto plus 2.00% or (y) in the case of any other overdue amount, including overdue interest, to the extent permitted by applicable law, the rate described in Section 2.8(a) plus 2.00% from the date of such non-payment to the date on which such amount is paid in full (after as well as before judgment).
(d) Interest on each Loan shall accrue from and including the date of any Borrowing to but excluding the date of any repayment thereof; provided that any Loan that is repaid on the same date on which it is made shall bear interest for one day. Except as provided below, interest shall be payable (i) in respect of each ABR Loan, quarterly in arrears on the last Business Day of each March, June, September and December; provided, that interest shall also be payable on any Term Loans that are ABR Loans on the date of any repayment or prepayment with respect to such Term Loans, (ii) in respect of each Eurocurrency Loan, on the last day of each Interest Period applicable thereto and, in the case of an Interest Period in excess of three months, on each date occurring at three-month intervals after the first day of such Interest Period, and (iii) in respect of each Loan, (A) on any prepayment in respect of Eurocurrency Loans, (B) at maturity (whether by acceleration or otherwise), and (C) after such maturity, on demand. All payments of interest hereunder shall be made in each case, in the currency in which such Loans are denominated.
(e) All computations of interest hereunder shall be made in accordance with Section 5.5.
(f) The Administrative Agent, upon determining the interest rate for any Borrowing of Eurocurrency Loans, shall promptly notify the Borrower and the relevant Lenders thereof. Each such determination shall, absent clearly demonstrable error, be final and conclusive and binding on all parties hereto.
(g) The rates of interest provided for in this Agreement and any other Credit Document, including, without limitation this Section 2.8 (Interest), are minimum interest rates.
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(h) When entering into this Agreement, the parties have assumed that the interest payable at the rates set out in this Section 2.8 (Interest) or in other Sections of this Agreement or any other Credit Document is not and will not become subject to Swiss Withholding Tax. Notwithstanding that the parties do not anticipate (acting in good faith) that any payment of interest will be subject to Swiss Withholding Tax, they agree that, if a tax deduction or withholding for Swiss Withholding Tax is required by applicable Requirements of Law to be made by any Credit Party, the Administrative Agent, or any other applicable withholding agent in respect of any interest payable by any Credit Party under this Agreement or any other Credit Document and should in respect of such Credit Party Section 5.4(a)(ii), (b) or (c) (Net Payments) or similar provisions in any other Credit Document be unenforceable for any reason, the applicable interest rate in relation to that interest payment shall be:
(i) the interest rate which would have applied to that interest payment (as provided for in this Agreement or any other Credit Document in the absence of this paragraph (h)) divided by
(ii) 1 minus the rate at which the relevant tax deduction or withholding for Swiss Withholding Tax is required to be made (where the rate at which the relevant deduction or withholding of Swiss Withholding Tax is required to be made is for this purpose expressed as a fraction of 1 rather than as a percentage) and (A) the relevant Credit Party shall be obliged to pay the relevant interest at the adjusted rate in accordance with this paragraph, (B) the relevant Credit Party, the Administrative Agent, or the other applicable withholding agent shall make the deduction or withholding of Swiss Withholding Tax on the recalculated interest and (C) all references to a rate of interest in this Agreement and any other Credit Document shall be construed accordingly.
(i) To the extent that interest payable by a Credit Party under this Agreement or any other Credit Document becomes subject to Swiss Withholding Tax, each relevant Secured Party and the Credit Parties shall promptly co-operate in completing any procedural formalities (including submitting forms and documents required by the appropriate tax authority) to the extent possible and necessary for the relevant Credit Party to obtain authorization to make interest payments without them being subject to Swiss Withholding Tax or to allow the Secured Parties to prepare claims for the refund of any Swiss Withholding Tax so deducted.
2.9 Interest Periods. At the time the Borrower gives a Notice of Borrowing or Notice of Conversion or Continuation in respect of the making of, or conversion into or continuation as, a Borrowing of Eurocurrency Loans, the Borrower shall give the Administrative Agent written notice of the Interest Period applicable to such Borrowing, which Interest Period shall, at the option of the Borrower be a one, two, three or six month period (or if available to all the Lenders making such Eurocurrency Loans, a twelve month period or a period shorter than one month).
Notwithstanding anything to the contrary contained above:
(a) the initial Interest Period for any Borrowing of Eurocurrency Loans shall commence on the date of such Borrowing (including the date of any conversion from a Borrowing of ABR Loans) and each Interest Period occurring thereafter in respect of such Borrowing shall commence on the day on which the next preceding Interest Period expires;
(b) if any Interest Period relating to a Borrowing of Eurocurrency Loans begins on the last Business Day of a calendar month or begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period, such Interest Period shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(c) if any 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; provided that if any Interest Period in respect of a Eurocurrency Loan would otherwise expire on a day that is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the immediately preceding Business Day.
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2.10 Increased Costs, Illegality, Etc.
(a) In the event that (x) in the case of clause (i) below, the Administrative Agent and (y) in the case of clauses (ii) and (iii) below, any Lender shall have reasonably determined (which determination shall, absent clearly demonstrable error, be final and conclusive and binding upon all parties hereto):
(i) on any date for determining the Eurocurrency Rate for any Interest Period that (x) deposits in the principal amounts of the Loans comprising such Eurocurrency Borrowing are not generally available in the relevant market or (y) by reason of any changes arising on or after the Closing Date affecting the interbank Eurocurrency market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of Eurocurrency Rate; or
(ii) at any time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder or under any Credit Document with respect to any Eurocurrency Loans (including any increased costs or reductions attributable to Taxes, other than any increase or reduction attributable to Indemnified Taxes, Other Taxes or Excluded Taxes) because of any Change in Law; or
(iii) at any time, that the making or continuance of any Eurocurrency Loan has become unlawful by compliance by such Lenders in good faith with any law, governmental rule, regulation, guideline or order (or would conflict with any such governmental rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be unlawful), or has become impracticable as a result of a contingency occurring after the Closing Date that materially and adversely affects the interbank Eurocurrency market and the applicable Lenders are treating all similarly situated Persons in the same fashion;
(such Loans, “Impacted Loans”), then, and in any such event, such Lenders (or the Administrative Agent, in the case of clause (i) above) shall within a reasonable time thereafter give written notice to the Borrower, and to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurocurrency Loans shall no longer be available until such time as the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice of Conversion or Continuation given by the Borrower with respect to Eurocurrency Loans, as applicable, that have not yet been incurred shall be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower shall pay to such Lenders, promptly after receipt of written demand therefor such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lenders in their reasonable discretion shall determine) as shall be required to compensate such Lenders for such actual increased costs or reductions in amounts receivable hereunder (it being agreed that a written notice as to the additional amounts owed to such Lenders, showing in reasonable detail the basis for the calculation thereof, submitted to the Borrower by such Lenders shall, absent clearly demonstrable error, be final and conclusive and binding upon all parties hereto), and (z) in the case of subclause (iii) above, the Borrower shall take one of the actions specified in subclause (x) or (y), as applicable, of Section 2.10(b) promptly and, in any event, within the time period required by law.
Notwithstanding the foregoing, if the Administrative Agent has made the determination described in Section 2.10(a)(i)(x), the Administrative Agent, in consultation with the Borrower and the affected Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (x) of the first sentence of the immediately preceding paragraph, (2) the Administrative Agent notifies the Borrower or the applicable Lenders notify the Administrative Agent and the Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (3) any Lender reasonably determines that any law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable lending office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Borrower written notice thereof.
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(b) At any time that any Eurocurrency Loan is affected by the circumstances described in Section 2.10(a)(ii) or (iii), the Borrower may (and in the case of a Eurocurrency Loan affected pursuant to Section 2.10(a)(iii) shall) either (x) if a Notice of Borrowing or Notice of Conversion or Continuation with respect to the affected Eurocurrency Loan has been submitted pursuant to Section 2.3 or Section 2.6, as applicable, but the affected Eurocurrency Loan has not been funded or continued, cancel such requested Borrowing by giving the Administrative Agent written notice thereof on the same date that the Borrower was notified by Lenders pursuant to Section 2.10(a)(ii) or (iii), as applicable, or (y) if the affected Eurocurrency Loan is then outstanding in Dollars, upon at least three Business Days’ notice to the Administrative Agent, require the affected Lender to convert each such Eurocurrency Loan into an ABR Loan; provided that if more than one Lender is affected at any time, then all affected Lenders must be treated in the same manner pursuant to this Section 2.10(b).
(c) If, after the Closing Date, any Change in Law relating to capital adequacy or liquidity of any Lender or compliance by any Lender or its parent with any Change in Law relating to capital adequacy or liquidity occurring after the Closing Date, has or would have the effect of reducing the actual rate of return on such Lender’s or its parent’s or its Affiliate’s capital or assets as a consequence of such Lender’s commitments or obligations hereunder to a level below that which such Lender or its parent or its Affiliate could have achieved but for such Change in Law (taking into consideration such Lender’s or its parent’s policies with respect to capital adequacy or liquidity), then from time to time, promptly following written demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such actual additional amount or amounts as will compensate such Lender or its parent for such actual reduction, it being understood and agreed, however, that a Lender shall not be entitled to such compensation as a result of such Lender’s compliance with, or pursuant to any request or directive to comply with, any law, rule or regulation as in effect on the Closing Date or to the extent such Lender is not imposing such charges on, or requesting such compensation from, borrowers (similarly situated to the Borrower hereunder) under comparable syndicated credit facilities similar to the Credit Facilities. Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to this Section 2.10(c), will give prompt written notice thereof to the Borrower, which notice shall set forth in reasonable detail the basis of the calculation of such additional amounts, although the failure to give any such notice shall not, subject to Section 2.13, release or diminish the Borrower’s obligations to pay additional amounts pursuant to this Section 2.10(c) promptly following receipt of such notice.
2.11 Compensation. If (a) any payment of principal of any Eurocurrency Loan is made by the Borrower to or for the account of a Lender prior to the last day of the Interest Period for such Eurocurrency Loan as a result of a payment or conversion pursuant to Sections 2.5, 2.6, 2.10, 5.1, 5.2 or 13.8, as a result of acceleration of the maturity of the Loans pursuant to Section 11 or for any other reason, (b) any Borrowing of Eurocurrency Loans is not made as a result of a revised or withdrawn Notice of Borrowing or a failure to satisfy borrowing conditions, (c) any ABR Loan is not converted into a Eurocurrency Loan as a result of a revised or withdrawn Notice of Conversion or Continuation, (d) any Eurocurrency Loan is not continued as a Eurocurrency Loan as a result of a revised or withdrawn Notice of Conversion or Continuation or (e) any prepayment of principal of any Eurocurrency Loan is not made as a result of a revised or withdrawn notice of prepayment pursuant to Sections 5.1 or 5.2, the Borrower shall, after receipt of a written request by such Lender (which request shall set forth in reasonable detail the basis for requesting such amount), promptly pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that such Lender may reasonably incur as a result of such payment, failure to convert, failure to continue or failure to prepay, including any loss, cost or expense (excluding loss of anticipated profits or Applicable Margin) actually incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Eurocurrency Loan. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender as specified in this Section 2.11 and setting forth in reasonable detail the manner in which such amount or amounts were determined shall be delivered to the Borrower and shall be conclusive, absent manifest error.
2.12 Change of Lending Office. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Sections 2.10(a)(ii), 2.10(a)(iii), 2.10(c), 3.5 or 5.4 with respect to such Lender, it will, if requested by the Borrower use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Loans affected by such event; provided that such designation is made on such terms that such Lender and its lending office suffer no unreimbursed cost or other material economic, legal or regulatory disadvantage, with the object of avoiding the consequence of the event giving rise to the operation of any such Section. Nothing in this Section 2.12 shall affect or postpone any of the obligations of the Borrower or the right of any Lender provided in Sections 2.10, 3.5 or 5.4.
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2.13 Notice of Certain Costs. Notwithstanding anything in this Agreement to the contrary, to the extent any notice required by Sections 2.10, 2.11, 3.5 or 5.4 is given by any Lender more than 120 days after such Lender has knowledge (or should have had knowledge) of the occurrence of the event giving rise to the additional cost, reduction in amounts, loss, or other additional amounts described in such Sections, such Lender shall not be entitled to compensation under Sections 2.10, 2.11, 3.5 or 5.4, as the case may be, for any such amounts incurred or accruing prior to the 121st day prior to the giving of such notice to the Borrower.
2.14 Incremental Facilities; Extensions; Refinancing Facilities.
(a) The Borrower may by written notice to the Administrative Agent elect to request the establishment of one or more (x) additional term loans, which may be of the same Class as any then-existing Term Loans (a “Term Loan Increase”) or a separate Class of Term Loans (the commitments for additional term loans of the same Class or a separate Class, collectively, the “New Term Loan Commitments”) denominated, at the option of the Borrower, in Dollars or Euros, and/or (y) revolving credit commitments, which may be of the same Class as any then-existing Revolving Commitments (the commitments thereto, the “New Revolving Credit Commitments”) or a separate Class of Revolving Commitments (the commitments thereto, the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments, the “New Loan Commitments”) denominated, at the option of the Borrower, in Dollars or an Alternative Currency, or a combination thereof, by an aggregate amount not in excess of the Maximum Incremental Facilities Amount at the time of incurrence thereof and not less than $5,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount at such time). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments shall be effective. The Borrower may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the New Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide any New Loan Commitment. In each case, such New Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that subject to Section 1.12(f), (i) (x) other than as described in the immediately succeeding clause (y), no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such New Loan Commitments or (y) if such New Loan Commitment is being provided in connection with a Limited Condition Transaction, then no Event of Default under Section 11.1 or Section 11.5 shall exist on such Increased Amount Date, (ii) in connection with any incurrence of Incremental Loans, or establishment of New Loan Commitments, on an Increased Amount Date, there shall be no requirement for the Borrower to bring down the representations and warranties under the Credit Documents unless and until requested by the Persons holding more than 50% of the aggregate principal amount of the applicable Incremental Loans or New Loan Commitments (provided that, in the case of Incremental Loans or New Loan Commitments used to finance a Permitted Acquisition or a permitted Investment, only the Specified Representations (conformed as necessary for such acquisition or investment) shall be required to be true and correct in all material respects if requested by the Persons holding more than 50% of the aggregate principal amount of the applicable Incremental Loans or New Loan Commitments), (iii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e), and (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). For all purposes of this Agreement, (a) any New Term Loans made on an Increased Amount Date shall be designated (x) a separate series of Term Loans or (y) in the case of a Term Loan Increase, a part of the series of existing Term Loans subject to such increase and (b) any Incremental Revolving Credit Commitments made on an Increased Amount Date shall be designated (x) a separate series of Revolving Commitments or (y) in the case of a New Revolving Credit Commitment, a part of the series of existing Revolving Commitments subject to such increase (such new or existing series of Term Loans or Revolving Commitments, each, a “Series”).
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(b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction or waiver of the foregoing terms and conditions, (x) with respect to New Revolving Credit Commitments, each of the Revolving Lenders with an existing Revolving Commitment of the Class being increased by such New Revolving Credit Commitments shall automatically and without further act be deemed to have assigned to each Revolving Lender with a New Revolving Credit Commitment of such Class (each, a “New Revolving Loan Lender”), and each of such New Revolving Loan Lenders shall automatically and without further act be deemed to have purchased and assumed, (i) a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit, so that after giving effect to each such deemed assignment and assumption and participation, the percentage of the aggregate outstanding participations hereunder in such Letters of Credit held by each Revolving Lender holding Revolving Loans (including each such New Revolving Loan Lender), as applicable, will equal the percentage of the aggregate Total Revolving Credit Commitments of all Revolving Lenders under the Credit Facilities, and (ii) at the principal amount thereof, such interests in the Revolving Loans of such Class outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and assumptions, the Revolving Loans of such Class will be held by existing Revolving Lenders under such Class and New Revolving Loan Lenders under such Class ratably in accordance with their respective Revolving Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to such existing Revolving Commitments (the Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (x)), and (y) with respect to any Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Commitment and each loan made under a New Revolving Credit Commitment (each, a “New Revolving Credit Loan”) and each loan made under an Additional Revolving Credit Commitment (each, an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loans”) shall be deemed, for all purposes, Revolving Loans and (ii) each New Revolving Loan Lender and each Revolving Lender with an Additional Revolving Credit Commitment (each, an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Revolving Lender with respect to the applicable Incremental Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent and any applicable Letter of Credit Issuer shall have consented (in each case, such consent not to be unreasonably withheld, conditioned, denied or delayed) to such Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.7(b) for an assignment of Revolving Loans or Commitments with respect thereto, as applicable, to such Incremental Revolving Loan Lender.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction or waiver of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a term loan to the Borrower (a “New Term Loan” and, together with the Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto. The Borrower shall use the proceeds, if any, of the Incremental Loans for any purpose not prohibited by this Agreement and as agreed by the Borrower and the lender(s) providing such Incremental Loans.
(d) The terms and provisions of any New Term Loan Commitments and the related New Term Loans, in each case effected pursuant to a Term Loan Increase shall be substantially identical to the terms and provisions applicable to the Class of Term Loans subject to such increase; provided, that underwriting, arrangement, structuring, ticking, commitment, original issue discount, upfront or similar fees, and other fees payable in connection therewith that are not generally shared with all relevant lenders providing such New Term Loan Commitments and related New Term Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such New Term Loan Commitments may be paid in connection with such New Term Loan Commitments. The terms and provisions of any New Term Loans and New Term Loan Commitments of any Series not effected pursuant to a Term Loan Increase shall be on terms and documentation set forth in the applicable Joinder Agreement as determined by the Borrower; provided that:
(i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date;
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(ii) the Weighted Average Life to Maturity of the applicable New Term Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term Loans);
(iii) the New Term Loans and New Term Loan Commitments (w) shall rank pari passu or junior in right of payment with any First Lien Obligations outstanding under this Agreement, (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term Loans hereunder and may participate on a pro rata basis or less than pro rata basis (but, except as otherwise permitted by this Agreement, not on a greater than pro rata basis) in any mandatory prepayments of any Class of Term Loans hereunder, (y) shall not be guaranteed by any Person other than a Guarantor hereunder and (z) shall be unsecured or rank pari passu or junior in right of security with any First Lien Obligations outstanding under this Agreement and, if secured, shall not be secured by assets of a Credit Party other than Collateral (and, if applicable, shall be subject to a subordination agreement and/or the Junior Lien Intercreditor Agreement, the Pari Intercreditor Agreement or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the Administrative Agent);
(iv) the pricing, interest rate margins, discounts, premiums, interest rate floors, fees, and amortization schedule applicable to any New Term Loans shall be determined by the Borrower and the lender(s) thereunder; provided, however, that, with respect to any New Term Loans made under New Term Loan Commitments that are incurred (x) pursuant to clause (i) of the definition of “Maximum Incremental Facilities Amount,” (y) not in connection with any acquisition or Investment and mature earlier than the date that is eighteen months after the Initial Term Loan Maturity Date, and (z) prior to the date that is six (6) months after the Closing Date, if the Effective Yield in respect of any New Term Loans that rank pari passu in right of payment and security with the Initial Term Loans as of the date of funding thereof exceeds the Effective Yield in respect of any Initial Term Loans by more than 0.75%, the Applicable Margin in respect of such Initial Term Loans shall be adjusted so that the Effective Yield in respect of such Initial Term Loans is equal to the Effective Yield in respect of such New Term Loans minus 0.75%; provided, further, to the extent any change in the Effective Yield of the Initial Term Loans is necessitated by this clause (iv) on the basis of an effective interest rate floor in respect of the New Term Loans, the increased Effective Yield in the Initial Term Loans shall (unless otherwise agreed in writing by the Borrower) have such increase in the Effective Yield effected solely by increases in the interest rate floor(s) applicable to the Initial Term Loans; and
(v) all other terms of any New Term Loans (other than as described in clauses (i), (ii) (iii) and (iv) above) may differ from the terms of the Initial Term Loans if reasonably satisfactory to the Borrower and the lender(s) providing such New Term Loans.
(e) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be identical to the Class of Commitments and related Revolving Loans subject to increase by such New Revolving Credit Commitments and New Revolving Credit Loans; provided, that underwriting, arrangement, structuring, ticking, commitment, upfront or similar fees, and other fees payable in connection therewith that are not shared with all relevant lenders providing such New Revolving Credit Commitments and related New Revolving Credit Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such New Revolving Credit Commitments may be paid in connection with such New Revolving Credit Commitments. Additional Revolving Credit Commitments and Additional Revolving Credit Loans shall have terms and conditions set forth in the applicable Joinder Agreement as determined by the Borrower; provided that notwithstanding anything to the contrary in this Section 2.14 or otherwise:
(i) any such Additional Revolving Credit Commitments and Additional Revolving Credit Loans shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans or be unsecured;
(ii) any such Additional Revolving Credit Commitments and Additional Revolving Credit Loans shall not mature earlier than the Revolving Credit Maturity Date, determined at the time of establishment of such Incremental Revolving Credit Commitments (and, if applicable, shall be subject to a subordination agreement and/or the Junior Lien Intercreditor Agreement, the Pari Intercreditor Agreement or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the Administrative Agent);
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(iii) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Additional Revolving Credit Commitments (and related outstandings), (2) repayments required upon the Maturity Date of such Additional Revolving Credit Commitments, and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Additional Revolving Credit Loans with respect to Additional Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on such Increased Amount Date;
(iv) subject to the provisions of Section 3.12 to the extent dealing with Letters of Credit which mature or expire after a maturity date when there exists Revolving Commitments with a longer maturity date, all Letters of Credit shall be participated on a pro rata basis by all Revolving Lenders with Revolving Commitments in accordance with their percentage of such Revolving Commitments on the applicable Increased Amount Date (and except as provided in Section 3.12, without giving effect to changes thereto on an earlier maturity date with respect to Letters of Credit theretofore incurred or issued);
(v) the permanent repayment of Incremental Revolving Credit Loans with respect to, and termination of, Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, except that the Borrower shall be permitted, in its sole discretion, to permanently repay and terminate commitments of any such Class on a greater than a pro rata basis (x) as compared to any other Class with a later Maturity Date than such Class and (y) as compared to any other Class in connection with the refinancing thereof with Refinancing Revolving Credit Commitments;
(vi) assignments and participations of Additional Revolving Credit Commitments and Additional Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to the then-outstanding Revolving Commitments and Revolving Loans on the applicable Increased Amount Date; and
(vii) the pricing, fees and other immaterial terms of the Additional Revolving Credit Loans may be different and shall be determined by the Borrower and the lender(s) thereunder.
(f) Each Joinder Agreement may, with the consent of the New Revolving Loan Lenders or New Term Loan Lenders, as applicable, and without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.14.
(g) (i) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(g). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall, at the option of the Borrower, (A) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined in good faith by the Borrower) or (B) if not consistent with the terms of the applicable Existing Term Loan Class, shall not be materially more restrictive to the Credit Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Term Loans of the Existing Term Loan Class unless (x) the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms or (y) any such provisions apply after the Initial Term Loan Maturity Date (a “Permitted Other Provision”); provided, however, that (1) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in Section 2.14(g)(iv)), (2)(A) pricing terms shall be determined in good faith by the Borrower and the interest margins and floors with respect to the Extended Term Loans may be higher or lower than the interest margins and floors for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or AHYDO Payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins and floors contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment, (3) the Extended Term Loans may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term Loans hereunder and may participate on a pro rata basis or less than pro rata basis (but, except as otherwise permitted by this Agreement, not on a greater than pro rata basis) in any mandatory prepayments of any Class of Term Loans hereunder, (4) Extended Term Loans may have call protection terms as may be agreed by the Borrower and the Lenders thereof and (5) no consent shall be required by the Administrative Agent or any of the Lenders. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted; provided that any Extended Term Loans converted from an Existing Term Loan Class may, to the extent provided in the applicable Extension Amendment, be designated as an increase in any then outstanding Class of Term Loans other than the Existing Term Loan Class from which such Extended Term Loans were converted (in which case scheduled amortization with respect thereto shall be proportionally increased).
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(ii) The Borrower may at any time and from time to time request that all or a portion of the Revolving Commitments of any Class, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related Revolving Loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Revolving Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Revolving Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.14(g). In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments which such request shall be offered equally to all such Lenders) (a “Revolving Credit Loan Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which, shall, at the option of the Borrower, (A) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined in good faith by the Borrower) or (B) if not consistent with the terms of the applicable Existing Revolving Credit Commitments, shall not be materially more restrictive to the Credit Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of such Existing Revolving Credit Commitments (the “Specified Existing Revolving Credit Commitment”) unless (x) the Lenders providing Existing Revolving Credit Loans receive the benefit of such more restrictive terms or (y) any such provisions apply after the latest maturity date of any Revolving Commitments then outstanding under this Agreement, in each case, to the extent provided in the applicable Extension Amendment; provided, however, that (w) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Specified Existing Revolving Credit Commitments, (x) (A) the interest margins and floors with respect to the Extended Revolving Credit Commitments may be higher or lower than the interest margins and floors for the Specified Existing Revolving Credit Commitments and/or (B) additional fees and premiums may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any increased margins and floors contemplated by the preceding clause (A) and (y) the commitment fee rate with respect to the Extended Revolving Credit Commitments may be higher or lower than the commitment fee rate for the Specified Existing Revolving Credit Commitment; provided that, notwithstanding anything to the contrary in this Section 2.14(g) or otherwise, assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and the Revolving Credit Loans related to such Commitments set forth in Section 13.7. No Lender shall have any obligation to agree to have any of its Revolving Loans or Revolving Commitments of any Existing Revolving Credit Class converted into Extended Revolving Credit Loans or Extended Revolving Credit Commitments pursuant to any Revolving Credit Loan Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments; provided that any Extended Revolving Credit Commitments converted from an Existing Revolving Credit Class may, to the extent provided in the applicable Extension Amendment, be designated as an increase in any then outstanding Class of Revolving Commitments other than the Existing Revolving Credit Class from which such Extended Revolving Credit Commitments were converted.
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(iii) Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans or Revolving Commitment of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans or Revolving Commitments of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans or Revolving Commitments of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the amount of Term Loans or Revolving Commitments included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be treated identically to all then-outstanding Revolving Commitments for purposes of the obligations of a Revolving Lender in respect of Letters of Credit under Section 3, except that the applicable Extension Amendment may provide that the L/C Facility Maturity Date may be extended and the related obligations to issue Letters of Credit may be continued so long as the Letter of Credit Issuer has consented to such extensions in their sole discretion (it being understood that no consent of any other Lender shall be required in connection with any such extension).
(iv) Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall be established pursuant to an amendment (an “Extension Amendment”) to this Agreement (which, except to the extent expressly contemplated by the last sentence of this Section 2.14(g)(iv) and notwithstanding anything to the contrary set forth in Section 13.1, shall not require the consent of any Lender other than the Extending Lenders with respect to the Extended Term Loans or Extended Revolving Credit Commitments, as applicable, established thereby) executed by the Borrower, the Administrative Agent and the Extending Lenders. No Extension Amendment shall provide for any Class of Extended Term Loans or Extended Revolving Credit Commitments in an aggregate principal amount that is less than $5,000,000 (it being understood that the actual principal amount thereof provided by the applicable Lenders may be lower than such minimum amount), and the Borrower may condition the effectiveness of any Extension Amendment on an Extension Minimum Condition, which may be waived by the Borrower in its sole discretion. In addition to any terms and changes required or permitted by Section 2.14(g)(i), each Extension Amendment (x) shall amend the scheduled amortization payments pursuant to Section 2.5 or the applicable Joinder Agreement with respect to the Existing Term Loan Class from which the Extended Term Loans were converted to reduce each scheduled Repayment Amount for the Existing Term Loan Class in the same proportion as the amount of Term Loans of the Existing Term Loan Class is to be converted pursuant to such Extension Amendment (it being understood that the amount of any Repayment Amount payable with respect to any individual Term Loan of such Existing Term Loan Class that is not an Extended Term Loan shall not be reduced as a result thereof) and (y) may, but shall not be required to, impose additional requirements (not inconsistent with the provisions of this Agreement in effect at such time) with respect to the final maturity and Weighted Average Life to Maturity of New Term Loans incurred following the date of such Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14(g) and without limiting the generality or applicability of Section 13.1 (if any) to any Section 2.14 Additional Amendments, any Extension Amendment may provide for additional terms and/or additional amendments other than those referred to or contemplated above (any such additional amendment, a “Section 2.14 Additional Amendment”) to this Agreement and the other Credit Documents; provided that such Section 2.14 Additional Amendments are within the requirements of Section 2.14(g)(i) and Section 2.14(g)(ii) and do not become effective prior to the time that such Section 2.14 Additional Amendments have been consented to (including, without limitation, pursuant to (1) consents applicable to holders of New Term Loans and Incremental Revolving Credit Commitments provided for in any Joinder Agreement and (2) consents applicable to holders of any Extended Term Loans or Extended Revolving Credit Commitments provided for in any Extension Amendment) by such of the Lenders, Credit Parties and other parties (if any) as may be required in order for such Section 2.14 Additional Amendments to become effective in accordance with Section 13.1.
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(v) Notwithstanding anything to the contrary contained in this Agreement, (A) on any date on which any Existing Class is converted to extend the related scheduled maturity date(s) in accordance with clause (g)(i) and/or clause (g)(ii) above (an “Extension Date”), (I) in the case of the existing Term Loans of each Extending Lender, the aggregate principal amount of such existing Term Loans shall be deemed reduced by an amount equal to the aggregate principal amount of Extended Term Loans so converted by such Lender on such date, and the Extended Term Loans shall be established as a separate Class of Term Loans; provided that any Extended Term Loans converted from an Existing Term Loan Class may, to the extent provided in the applicable Extension Amendment, be designated as an increase in any then outstanding Class of Term Loans other than the Existing Term Loan Class from which such Extended Term Loans were converted (in which case scheduled amortization with respect thereto shall be proportionally increased), and (II) in the case of the Specified Existing Revolving Credit Commitments of each Extending Lender, the aggregate principal amount of such Specified Existing Revolving Credit Commitments shall be deemed reduced by an amount equal to the aggregate principal amount of Extended Revolving Credit Commitments so converted by such Lender on such date, and such Extended Revolving Credit Commitments shall be established as a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments; provided that any Extended Revolving Credit Commitments converted from an Existing Revolving Credit Class may, to the extent provided in the applicable Extension Amendment, be designated as an increase in any then outstanding Class of Revolving Credit Commitments other than the Existing Revolving Credit Class from which such Extended Revolving Credit Commitments were converted and (B) if, on any Extension Date, any Loans of any Extending Lender are outstanding under the applicable Specified Existing Revolving Credit Commitments, such Loans (and any related participations) shall be deemed to be allocated as Extended Revolving Credit Loans (and related participations) and Existing Revolving Credit Loans (and related participations) in the same proportion as such Extending Lender’s Specified Existing Revolving Credit Commitments to Extended Revolving Credit Commitments.
(vi) The Administrative Agent and the Lenders hereby consent to the consummation of the transactions contemplated by this Section 2.14 (including, for the avoidance of doubt, payment of any interest, fees, or premium in respect of any Extended Term Loans and/or Extended Revolving Credit Commitments on such terms as may be set forth in the relevant Extension Amendment) and hereby waive the requirements of any provision of this Agreement (including, without limitation, any pro rata payment or amendment section) or any other Credit Document that may otherwise prohibit or restrict any such extension or any other transaction contemplated by this Section 2.14.
(vii) No conversion of Loans pursuant to any extension in accordance with this Section 2.14(g) shall constitute a voluntary or mandatory payment or prepayment for purposes of this Agreement.
(h) The Credit Parties may, at any time or from time to time after the Closing Date, by notice to the Administrative Agent (a “Refinancing Loan Request”), request (A) (i) the establishment of one or more new Classes of term loans under this Agreement (any such new Class, “New Refinancing Term Loan Commitments”) or (ii) increases to one or more existing Classes of term loans under this Agreement (provided that the loans under such new commitments shall be fungible for U.S. federal income tax purposes with the existing Class of Term Loans proposed to be increased on the Refinancing Facility Closing Date for such increase) (any such increase to an existing Class, collectively with New Refinancing Term Loan Commitments, “Refinancing Term Loan Commitments”), or (B) (i) the establishment of one or more new Classes of revolving credit commitments under this Agreement (any such new Class, “New Refinancing Revolving Credit Commitments”) or (ii) increases to one or more existing Classes of Revolving Commitments (any such increase to an existing Class, collectively with the New Refinancing Revolving Credit Commitments, “Refinancing Revolving Credit Commitments” and, collectively with any Refinancing Term Loan Commitments, “Refinancing Commitments”), in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the Borrower, any one or more then-existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Commitment or Refinancing Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
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(i) Any Refinancing Term Loans made pursuant to New Refinancing Term Loan Commitments or any New Refinancing Revolving Credit Commitments made on a Refinancing Facility Closing Date shall be designated a separate Class of Refinancing Term Loans or Refinancing Revolving Credit Commitments, as applicable, for all purposes of this Agreement unless designated as a part of an existing Class of Term Loans or Revolving Commitments in accordance with this Section 2.14(h). On any Refinancing Facility Closing Date on which any Refinancing Term Loan Commitments of any Class are effected, subject to the satisfaction or waiver of the terms and conditions in this Section 2.14(h), (x) each Refinancing Term Lender of such Class shall make a term loan to the Borrower (each, a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Loan Commitment of such Class and (y) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Loan Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto. On any Refinancing Facility Closing Date on which any Refinancing Revolving Credit Commitments of any Class are effected, subject to the satisfaction or waiver of the terms and conditions in this Section 2.14(h), (x) each Refinancing Revolving Credit Lender of such Class shall make its Refinancing Revolving Credit Commitment available to the Borrower (when borrowed, a “Refinancing Revolving Credit Loan” and collectively with any Refinancing Term Loan, a “Refinancing Loan”) and (y) each Refinancing Revolving Credit Lender of such Class shall become a Lender hereunder with respect to the Refinancing Revolving Credit Commitment of such Class and the Refinancing Revolving Credit Loans of such Class made pursuant thereto.
(ii) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.14(h) shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans or Refinancing Revolving Credit Commitments and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made, and Refinancing Revolving Credit Commitments may be provided, by any existing Lender (but no existing Lender will have an obligation to make any Refinancing Commitment, nor will the Borrower have any obligation to approach any existing Lender to provide any Refinancing Commitment) or by any Additional Lender (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Revolving Credit Lender” or “Refinancing Term Lender,” as applicable, and, collectively, “Refinancing Lenders”); provided that (i) the Administrative Agent and, with respect to any Refinancing Revolving Credit Commitments and the Letter of Credit Issuer shall have consented (in each case, such consent not to be unreasonably conditioned, withheld, denied or delayed) to such Additional Lender’s making such Refinancing Term Loans or providing such Refinancing Revolving Credit Commitments to the extent such consent, if any, would be required under Section 13.7(b) for an assignment of Loans or Revolving Commitments, as applicable, to such Additional Lender, (ii) with respect to Refinancing Term Loans, any Affiliated Lender providing a Refinancing Term Loan Commitment shall be subject to the same restrictions set forth in Section 13.7(h)(iii) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (iii) Affiliated Lenders may not provide Refinancing Revolving Credit Commitments.
(iii) The effectiveness of any Refinancing Amendment, and the Refinancing Commitments thereunder, shall be subject to the satisfaction on the date thereof (each, a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in the Refinancing Amendment:
(A) each Refinancing Commitment shall be in an aggregate principal amount that is not less than $5,000,000 (or, in the case of Refinancing Commitments denominated in Euros, €1,000,000) (provided that such amount may be less than $5,000,000 (or €5,000,000) if such amount is equal to (x) the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans or (y) the entire outstanding principal amount of Refinanced Debt (or commitments) that is in the form of Revolving Credit Commitments), and
(B) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class.
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(iv) Upon any Refinancing Facility Closing Date on which Refinancing Revolving Credit Commitments are effected, (a) there shall be an automatic adjustment to the participations hereunder in Letters of Credit held by each Revolving Lender under the Revolving Commitments so that each such Revolving Lender shares ratably in such participations in accordance with their Revolving Commitments under all Revolving Commitments (after giving effect to the establishment of such Refinancing Revolving Credit Commitments), (b) each Refinancing Revolving Credit Commitment shall be deemed for all purposes a Revolving Commitment and each Refinancing Revolving Credit Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each Refinancing Revolving Credit Lender shall become a Lender with respect to the Refinancing Revolving Credit Commitments and all matters relating thereto. Upon any Refinancing Facility Closing Date on which Refinancing Revolving Credit Commitments are effected through the establishment of a new Class of Revolving Commitments pursuant to this Section 2.14(h), if, on such date, there are any Revolving Loans under any Revolving Commitments then outstanding, such Revolving Loans shall be prepaid from the proceeds of a new Borrowing of the Refinancing Revolving Credit Loans under such new Class of Refinancing Revolving Credit Commitments in such amounts as shall be necessary in order that, after giving effect to such Borrowing and all such related prepayments, all Revolving Loans under all Revolving Commitments will be held by all Revolving Lenders with Revolving Commitments (including Lenders providing such Refinancing Revolving Credit Commitments) ratably in accordance with all of their respective Revolving Commitments of all Classes (after giving effect to the establishment of such Refinancing Revolving Credit Commitments). Upon any Refinancing Facility Closing Date on which Refinancing Revolving Credit Commitments are effected through the increase to any existing Class of Revolving Commitments pursuant to this Section 2.14(h), if, on the date of such increase, there are any Revolving Loans outstanding under such Class of Revolving Commitments being increased, each of the Revolving Lenders under such Class shall automatically and without further act be deemed to have assigned to each of the Refinancing Revolving Credit Lenders under such Class, and each of such Refinancing Revolving Credit Lenders shall automatically and without further act be deemed to have purchased and assumed, at the principal amount thereof, such interests in the Revolving Loans of such Class outstanding on such Refinancing Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and assumptions, such Revolving Loans of such Class will be held by existing Revolving Lenders under such Class and Refinancing Revolving Credit Lenders under such Class ratably in accordance with their respective Revolving Commitments of such Class after giving effect to the addition of such Refinancing Revolving Credit Commitments to such existing Revolving Commitments under such Class. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the two preceding sentences.
(v) The terms, provisions and documentation of the Refinancing Term Loans and Refinancing Term Loan Commitments or the Refinancing Revolving Credit Loans and Refinancing Revolving Credit Commitments, as the case may be, of any Class shall be as agreed between the Borrower and the applicable Refinancing Lenders providing such Refinancing Commitments, and except as otherwise set forth herein, to the extent not identical to (or constituting a part of) any Class of Term Loans or Revolving Commitments, as applicable, each existing on the Refinancing Facility Closing Date, shall be consistent with clauses (A) or (B) below, as applicable, and otherwise shall either, at the option of the Borrower, (x) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower) or (y) if not consistent with the terms of the corresponding Class of Term Loans or Revolving Commitments, as applicable, not be materially more restrictive to the Borrower (as determined by the Borrower), when taken as a whole, than the terms of the applicable Class of Term Loans or Revolving Commitments being refinanced or replaced (except (1) covenants or other provisions applicable only to periods after the Maturity Date (as of the applicable Refinancing Facility Closing Date) of such Class being refinanced and (2) pricing (as to which neither Section 2.14(d)(iv) nor any other “most-favored nation” provision shall apply), fees, rate floors, premiums, optional prepayment or redemption terms (which shall be determined by the Borrower) unless the Lenders under the Term Loans or Revolving Commitments, as applicable, each existing on the Refinancing Facility Closing Date, receive the benefit of such more restrictive terms. In any event:
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(A) the Refinancing Term Loans:
(1) (I) shall rank pari passu or junior in right of payment with any First Lien Obligations outstanding under this Agreement and (II) shall be unsecured or rank pari passu or junior in right of security with any First Lien Obligations outstanding under this Agreement and, if secured, shall not be secured by assets of the Credit Parties other than Collateral (and, if applicable, shall be subject to a subordination agreement and/or the Junior Lien Intercreditor Agreement, the Pari Intercreditor Agreement or any other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the Administrative Agent);
(2) as of the Refinancing Facility Closing Date, shall not have a Maturity Date earlier than the Maturity Date of the Refinanced Debt;
(3) shall have an amortization schedule as determined by the Borrower and the applicable new Refinancing Term Lenders, provided that, as of the Refinancing Facility Closing Date, such Refinancing Term Loans shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity (without giving effect to any amortization or prepayments on the outstanding Refinanced Debt) of the Refinanced Debt on the date of incurrence of such Refinancing Term Loans;
(4) shall have an Effective Yield determined by the Borrower and the applicable Refinancing Term Lenders;
(5) may provide for the ability to participate on a pro rata basis or less than or greater than a pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but, except as otherwise permitted by this Agreement, not on a greater than pro rata basis) in any mandatory repayments or prepayments of principal of Term Loans hereunder;
(6) unless otherwise permitted hereby (including utilization of any other available baskets or incurrence-based amounts as permitted hereunder), shall not have a greater principal amount than the principal amount of the Refinanced Debt (plus the amount of any unused commitments thereunder), plus accrued interest, fees, defeasance costs and premium (including call and tender premiums), if any, under the Refinanced Debt, plus underwriting discounts, fees, commissions and expenses (including original issue discount, upfront fees and similar items) in connection with the refinancing of such Refinanced Debt and the incurrence or issuance of such Refinancing Term Loans; and
(7) may not be guaranteed by any Subsidiary other than a Credit Party;
(B) the Refinancing Revolving Credit Commitments and Refinancing Revolving Credit Loans:
(1) (I) shall rank pari passu or junior in right of payment and (II) shall be pari passu or junior in right of security with the Revolving Credit Loans, or be unsecured;
(2) as of the Refinancing Facility Closing Date, shall not mature earlier than, or provide for mandatory scheduled commitment reductions prior to, the maturity date with respect to the Refinanced Debt;
(3) shall provide that the borrowing, prepayments and repayment (except for (1) payments of interest and fees at different rates on Refinancing Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Refinancing Revolving Credit Commitments and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (4) below)) of Revolving Loans with respect to Refinancing Revolving Credit Commitments after the associated Refinancing Facility Closing Date shall be made on a pro rata basis with all other Revolving Commitments existing on the Refinancing Facility Closing Date;
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(4) shall provide that the permanent repayment of Revolving Loans with respect to, and termination or reduction of, Refinancing Revolving Credit Commitments after the associated Refinancing Facility Closing Date be made on a pro rata basis or less than pro rata basis (but not greater than pro rata basis, except that (x) Refinancing Revolving Credit Commitments may participate on a greater than pro rata basis in any permanent prepayments and termination with other Revolving Commitments, and (y) the Borrower shall be permitted to permanently repay and terminate Commitments in respect of any such Class of Revolving Loans on a greater than pro rata basis as compared to any other Class of Revolving Loans with a later maturity date than such Class or in connection with any refinancing thereof permitted by this Agreement) with all other Revolving Commitments existing on the Refinancing Facility Closing Date;
(5) shall have an Effective Yield determined by the Borrower and the applicable Refinancing Revolving Credit Lenders;
(6) unless otherwise permitted hereby (including utilization of any other available baskets or incurrence-based amounts as permitted hereunder), shall not have a greater principal amount of Commitments than the principal amount of the utilized Commitments of the Refinanced Debt (plus the amount of any unused commitments thereunder), plus accrued interest, fees, defeasance costs and premium (including call and tender premiums), if any, under the Refinanced Debt, plus underwriting discounts, fees, commissions and expenses (including original issue discount, upfront fees and similar items) in connection with the refinancing of such Refinanced Debt and the incurrence or issuance of such Refinancing Revolving Credit Commitments or Refinancing Revolving Credit Loans; and
(7) may not be guaranteed by any Subsidiary other than a Credit Party.
(vi) Commitments in respect of Refinancing Term Loans and Refinancing Revolving Credit Commitments shall become additional Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Credit Documents, executed by the Borrower, each Refinancing Lender providing such Commitments and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Credit Party, Agent or Lender, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.14(h). The Borrower will use the proceeds, if any, of the Refinancing Term Loans and Refinancing Revolving Credit Commitments in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, substantially concurrently, the applicable Refinanced Debt.
(vii) The Administrative Agent and the Lenders hereby consent to the consummation of the transactions contemplated by this Section 2.14(h) (including, for the avoidance of doubt, payment of any interest, fees, or premium in respect of any Refinanced Debt on such terms as may be set forth in the relevant Refinancing Amendment) and hereby waive the requirements of any provision of this Agreement (including, without limitation, any pro rata payment or amendment section) or any other Credit Document that may otherwise prohibit or restrict any such refinancing or any other transaction contemplated by this Section 2.14.
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2.15 Permitted Debt Exchanges.
(a) Notwithstanding anything to the contrary contained in this Agreement, pursuant to one or more offers (each, a “Permitted Debt Exchange Offer”) made from time to time by the Borrower, the Borrower may from time to time following the Closing Date consummate one or more exchanges of Term Loans for Permitted Other Indebtedness in the form of notes or mezzanine Indebtedness, in the case of securities, whether issued in a public offering, Rule 144A or other private placement or any bridge facility in lieu of the foregoing or otherwise (such notes or mezzanine Indebtedness, “Permitted Debt Exchange Notes,” and each such exchange a “Permitted Debt Exchange”), so long as the following conditions are satisfied or waived: (i) unless otherwise permitted hereby (including utilization of any other available baskets or incurrence-based amounts as permitted hereunder), the aggregate principal amount (calculated on the face amount thereof) of Term Loans exchanged shall equal no more than the aggregate principal amount (calculated on the face amount thereof) of Permitted Debt Exchange Notes issued in exchange for such Term Loans; provided that the aggregate principal amount of the Permitted Debt Exchange Notes may include accrued interest, fees and premium (if any) under the Term Loans exchanged and underwriting discounts, fees, commissions and expenses (including original issue discount, upfront fees and similar items) in connection with the exchange of such Term Loans and the issuance of such Permitted Debt Exchange Notes, (ii) the aggregate principal amount (calculated on the face amount thereof) of all Term Loans exchanged under each applicable Class by the Borrower pursuant to any Permitted Debt Exchange shall automatically be cancelled and retired by the Borrower on the date of the settlement thereof (and, if requested by the Administrative Agent, any applicable exchanging Lender shall execute and deliver to the Administrative Agent an Assignment and Acceptance, or such other form as may be reasonably requested by the Administrative Agent, in respect thereof pursuant to which the respective Lender assigns its interest in the Term Loans being exchanged pursuant to the Permitted Debt Exchange to the Borrower for immediate cancellation), (iii) if the aggregate principal amount of all Term Loans of a given Class (calculated on the face amount thereof) tendered by Lenders in respect of the relevant Permitted Debt Exchange Offer (with no Lender being permitted to tender a principal amount of Term Loans which exceeds the principal amount thereof of the applicable Class actually held by it) shall exceed the maximum aggregate principal amount of Term Loans of such Class offered to be exchanged by the Borrower pursuant to such Permitted Debt Exchange Offer, then the Borrower shall exchange Term Loans subject to such Permitted Debt Exchange Offer tendered by such Lenders ratably up to such maximum amount based on the respective principal amounts so tendered, (iv) all documentation in respect of such Permitted Debt Exchange shall be consistent with the foregoing, and all written communications generally directed to the Lenders in connection therewith shall be in form and substance consistent with the foregoing and made in consultation with the Borrower and the Auction Agent, and (v) any applicable Minimum Tender Condition shall be satisfied (or waived by the Borrower in its sole discretion).
(b) With respect to all Permitted Debt Exchanges effected by the Borrower pursuant to this Section 2.15, (i) such Permitted Debt Exchanges (and the cancellation of the exchanged Term Loans in connection therewith) shall not constitute voluntary or mandatory payments or prepayments for purposes of Section 5.1 or 5.2, and (ii) such Permitted Debt Exchange Offer shall be made for not less than $5,000,000 in aggregate principal amount of Term Loans; provided that subject to the foregoing clause (ii) the Borrower may at its election specify as a condition (a “Minimum Tender Condition”) to consummating any such Permitted Debt Exchange that a minimum amount (to be determined and specified in the relevant Permitted Debt Exchange Offer in the Borrower’s discretion) of Term Loans of any or all applicable Classes be tendered.
(c) In connection with each Permitted Debt Exchange, the Borrower and the Auction Agent shall mutually agree to such procedures as may be necessary or advisable to accomplish the purposes of this Section 2.15 and without conflict with Section 2.15(d); provided that the terms of any Permitted Debt Exchange Offer shall provide that the date by which the relevant Lenders are required to indicate their election to participate in such Permitted Debt Exchange shall be not less than a reasonable period (in the discretion of the Borrower and the Auction Agent) of time following the date on which the Permitted Debt Exchange Offer is made.
(d) The Borrower shall be responsible for compliance with, and hereby agrees to comply with, all applicable securities and other laws in connection with each Permitted Debt Exchange, it being understood and agreed that (x) none of the Auction Agent, the Administrative Agent nor any Lender assumes any responsibility in connection with the Borrower’s compliance with such laws in connection with any Permitted Debt Exchange and (y) each Lender shall be solely responsible for its compliance with any applicable “insider trading” laws and regulations to which such Lender may be subject under the Exchange Act.
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2.16 Defaulting Lenders.
(a) Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
(i) Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Lenders, Required Facility Lenders and Section 13.1.
(ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 11 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 13.9 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer hereunder; third, to Cash Collateralize the Letter of Credit Issuer’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 3.8; fourth, as the Borrower may request (so long as no Default exists), 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; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize each Letter of Credit Issuer’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 3.8; sixth, to the payment of any amounts owing to the Borrower, the Lenders, any Letter of Credit Issuer as a result of any judgment of a court of competent jurisdiction obtained by the Borrower, any Lender, any Letter of Credit Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and seventh, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the applicable conditions set forth in Section 7 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section 2.16(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.16(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) Certain Fees.
(A) No Defaulting Lender shall be entitled to receive any fee payable under Section 4 or any interest at the Default Rate payable under Section 2.8(d) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee or interest that otherwise would have been required to have been paid to that Defaulting Lender).
(B) Each Defaulting Lender shall be entitled to receive Letter of Credit Fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its applicable Revolving Credit Commitment Percentage of the Stated Amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.16(a)(ii).
(C) With respect to any Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C Obligations that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the Letter of Credit Issuer the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such Letter of Credit’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
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(iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation in L/C Obligations shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Revolving Credit Commitment Percentages (calculated without regard to such Defaulting Lender’s applicable Revolving Commitment) but only to the extent that such reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s applicable Revolving Commitment(s). Subject to Section 13.24, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
(v) Cash Collateral. If the reallocation described in clause (a)(iv) above cannot, or can only partially, be effected the Letter of Credit Issuer may require the Borrower to, without prejudice to any right or remedy available to them hereunder or under applicable law, Cash Collateralize the Letter of Credit Issuer’s Fronting Exposure in accordance with the procedures set forth in Section 3.8.
(b) Defaulting Lender Cure. If the Borrower, the Administrative Agent and each Letter of Credit Issuer agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Revolving Loans and funded and unfunded participations in Letters of Credit to be held on a pro rata basis by the Lenders in accordance with their Revolving Credit Commitment Percentages (without giving effect to Section 2.16(a)(iv)), whereupon such Lender will 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.
SECTION 3
Letters of Credit
3.1 Letters of Credit.
(a) Subject to and upon the terms and conditions herein set forth, at any time and from time to time on and after the Closing Date and prior to the earlier of (i) the L/C Facility Maturity Date and (ii) the Revolving Credit Termination Date, the Letter of Credit Issuer agrees, in reliance upon the agreements of the Revolving Lenders set forth in this Section 3, to issue from time to time for the account of the Borrower (or, so long as the Borrower is the primary obligor, for the account of the Borrower or any Subsidiary) trade and standby Letters of Credit in such form as may be approved by the Letter of Credit Issuer in its reasonable discretion.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of Credit Commitment then in effect; (ii) no Letter of Credit shall be issued the Stated Amount of which would cause the aggregate amount of the Lenders’ Revolving Credit Exposures at the time of the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) unless otherwise agreed to by the Letter of Credit Issuer, each Letter of Credit shall have an expiration date occurring no later than one year after the date of issuance thereof (except as set forth in Section 3.2(d)); provided, in each case, that in no event shall such expiration date occur later than the L/C Facility Maturity Date, in each case, unless otherwise agreed upon by the Administrative Agent, the Letter of Credit Issuer and, unless such Letter of Credit has been Cash Collateralized or backstopped, or approved by the Required Revolving Credit Lenders; (iv) the Letter of Credit shall be denominated in Dollars or any Alternative Currency; (v) no Letter of Credit shall be issued if it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; (vi) no Letter of Credit shall be issued by the Letter of Credit Issuer after it has received a written notice from the Required Revolving Credit Lenders stating that a Default or Event of Default has occurred and is continuing until such time as the Letter of Credit Issuer shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering such notice or (y) the cure or waiver of such Default or Event of Default in accordance with the provisions of Section 13.1; and (vii) unless otherwise agreed to by the Letter of Credit Issuer, no Letter of Credit shall be issued the Stated Amount of which would exceed, when added together with all other Letters of Credit issued by such Letter of Credit Issuer, the Letter of Credit Percentage for such Letter of Credit Issuer multiplied by the Letter of Credit Sublimit.
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(c) Upon at least three Business Days’ prior written notice to the Administrative Agent and the Letter of Credit Issuer (which notice the Administrative Agent shall promptly transmit to each of the Lenders), the Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit Commitment in whole or in part without prepayment or penalty; provided that, after giving effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment. The Borrower, with the consent of the Required Revolving Credit Lenders and each of the Letter of Credit Issuers providing such increase, shall have the right, on any day, to increase the Letter of Credit Commitment in an amount up to the Revolving Credit Commitments on such date (provided that the Letter of Credit Percentage of each Letter of Credit Issuer providing such increase shall be increased and the Letter of Credit Percentage of each other Letter of Credit Issuer shall be decreased, as applicable, to give effect to such increase in the Letter of Credit Commitment).
(d) Notwithstanding anything to the contrary provided in this Agreement, the Existing Letters of Credit shall be deemed issued under this Agreement from and after the Closing Date.
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms enjoin or restrain the Letter of Credit Issuer from issuing such Letter of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any material restriction, reserve or capital requirement (in each case, for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the Letter of Credit Issuer in good faith deems material to it;
(ii) the issuance of such Letter of Credit would violate one or more of the policies of the Letter of Credit Issuer now or hereafter applicable to letters of credit generally;
(iii) except as otherwise agreed by the Letter of Credit Issuer, such Letter of Credit is in an initial Stated Amount less than $10,000 or €10,000 (or other Alternative Currency, a like amount) (or such lower amount as may be agreed to by the Letter of Credit Issuer);
(iv) unless the Letter of Credit Issuer otherwise agrees, such Letter of Credit is denominated in a currency other than Dollars or an Alternative Currency;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder;
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(vi) the Stated Amount of such Letter of Credit would cause the aggregate Stated Amount of all outstanding Letters of Credit issued by the Letter of Credit Issuer to exceed the aggregate amount of such Letter of Credit Issuer’s Letter of Credit Percentage of the Letter of Credit Commitment; or
(vii) if a Lender Default exists or any Revolving Lender is at such time a Defaulting Lender hereunder, unless, in each case, the Borrower has entered into arrangements reasonably satisfactory to the Letter of Credit Issuer to eliminate the Letter of Credit Issuer’s risk with respect to such Revolving Lender or such risk has been reallocated in accordance with Section 2.16.
(f) The Letter of Credit Issuer shall not increase the Stated Amount of any Letter of Credit if the Letter of Credit Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if (A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Lenders with respect to any Letters of Credit issued by it and the documents associated therewith and the Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Section 13 with respect to any acts taken or omissions suffered by the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Section 13 included the Letter of Credit Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
3.2 Letter of Credit Requests.
(a) Whenever the Borrower desires that a Letter of Credit be issued for its account (or, so long as the Borrower is the primary obligor, for the account of the Borrower or any Restricted Subsidiary) or amended, the Borrower shall give the Administrative Agent and the Letter of Credit Issuer a Letter of Credit Request by no later than 1:00 p.m. at least three (3) Business Days (or such other period as may be agreed upon by the Borrower, the Administrative Agent and the Letter of Credit Issuer) prior to the proposed date of issuance or amendment. Each Letter of Credit Request shall be executed by the Borrower. Such Letter of Credit Request may be sent by facsimile, by United States mail, by overnight courier, by electronic transmission using the system provided by the Letter of Credit Issuer, by personal delivery or by any other means acceptable to the Letter of Credit Issuer.
(b) In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Request shall specify in form and detail reasonably satisfactory to the Letter of Credit Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the Stated Amount thereof; (C) the proposed currency thereof; (D) the expiry date thereof; (E) the name and address of the beneficiary thereof; (F) the documents to be presented by such beneficiary in case of any drawing thereunder; (G) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (H) the identity of the applicant; and (I) such other matters as the Letter of Credit Issuer may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Request shall specify in form and detail reasonably satisfactory to the Letter of Credit Issuer (I) the Letter of Credit to be amended; (II) the proposed date of amendment thereof (which shall be a Business Day); (III) the nature of the proposed amendment; and (IV) such other matters as the Letter of Credit Issuer may reasonably require. Additionally, the Borrower shall furnish to the Letter of Credit Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the Letter of Credit Issuer or the Administrative Agent may reasonably require.
(c) Unless the Letter of Credit Issuer has received written notice from the Required Revolving Credit Lenders, at least one Business Day prior to the requested date of issuance or amendment of the Letter of Credit, that one or more applicable conditions contained in Sections 6 (solely with respect to any Letter of Credit issued on the Closing Date) and 7 shall not then be satisfied to the extent required thereby or waived in accordance with Section 13.1, then, subject to the terms and conditions hereof, the Letter of Credit Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower (or, so long as the Borrower is the primary obligor, for the account of the Borrower or any Subsidiary) or enter into the applicable amendment, as the case may be, in each case in accordance with the Letter of Credit Issuer’s usual and customary business practices.
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(d) If the Borrower so requests in any Letter of Credit Request, the Letter of Credit Issuer shall agree to issue a standby Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”) in its sole discretion and on terms reasonably acceptable to the applicable Letter of Credit Issuer; provided that any such Auto-Extension Letter of Credit must permit the Letter of Credit Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof and the Borrower not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the Letter of Credit Issuer, the Borrower shall not be required to make a specific request to the Letter of Credit Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the Letter of Credit Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the L/C Facility Maturity Date, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit Issuer; provided, however, that the Letter of Credit Issuer shall not permit any such extension if (A) the Letter of Credit Issuer has reasonably determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (b) of Section 3.1 or otherwise), or (B) it has received written notice on or before the day that is seven Business Days before the Non-Extension Notice Date from the Administrative Agent, any Revolving Lender or the Borrower that one or more of the applicable conditions specified in Section 7 are not then satisfied, and in each such case directing the Letter of Credit Issuer not to permit such extension until such conditions can be satisfied or are waived in accordance with Section 13.1.
(e) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit (including any Existing Letter of Credit) to an advising bank with respect thereto or to the beneficiary thereof, the Letter of Credit Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment. On the first Business Day of each month, the Letter of Credit Issuer shall provide the Administrative Agent a list of all Letters of Credit (including any Existing Letter of Credit) issued by it that are outstanding at such time.
3.3 Letter of Credit Participations.
(a) Immediately upon the issuance by the Letter of Credit Issuer of any Letter of Credit, the Letter of Credit Issuer shall be deemed to have sold and transferred to each Revolving Lender (each such Revolving Lender, in its capacity under this Section 3.3, an “L/C Participant”) (regardless of whether the conditions set forth in Section 7 have been satisfied or waived), and each such L/C Participant shall be deemed irrevocably and unconditionally to have purchased and received from the Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation (each, an “L/C Participation”), to the extent of such L/C Participant’s Revolving Credit Commitment Percentage in each Letter of Credit, each substitute therefor, each drawing made thereunder and the obligations of the Borrower under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto; provided that the Letter of Credit Fees will be paid directly to the Administrative Agent for the ratable account of the L/C Participants as provided in Section 4.1(b) and the L/C Participants shall have no right to receive any portion of any Fronting Fees.
(b) In determining whether to pay under any Letter of Credit, the relevant Letter of Credit Issuer shall have no obligation relative to the L/C Participants other than to confirm that any documents required to be delivered under such Letter of Credit have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by the relevant Letter of Credit Issuer under or in connection with any Letter of Credit issued by it, if taken or omitted in the absence of bad faith, material breach, gross negligence or willful misconduct as determined in the final non-appealable judgment of a court of competent jurisdiction, shall not create for the Letter of Credit Issuer any resulting liability.
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(c) In the event that the Letter of Credit Issuer makes any payment under any Letter of Credit issued by it and the Borrower shall not have repaid such amount in full to the respective Letter of Credit Issuer through the Administrative Agent pursuant to Section 3.4(a), the Administrative Agent shall promptly notify each L/C Participant of such failure, and each L/C Participant shall within one Business Day of such notice pay to the Administrative Agent for the account of the Letter of Credit Issuer, the amount of such L/C Participant’s Revolving Credit Commitment Percentage of the Dollar Equivalent of such unreimbursed payment in Dollars and in immediately available funds. If and to the extent such L/C Participant shall not have so made its Revolving Credit Commitment Percentage of the amount of such payment available to the Administrative Agent for the account of the Letter of Credit Issuer, such L/C Participant agrees to pay to the Administrative Agent for the account of the Letter of Credit Issuer, forthwith on demand, such amount, together with interest thereon for each day from such date until the date such amount is paid to the Administrative Agent for the account of the Letter of Credit Issuer at a rate per annum equal to the Overnight Rate from time to time then in effect, plus any administrative, processing or similar fees that are reasonably and customarily charged by the Letter of Credit Issuer in connection with the foregoing. The failure of any L/C Participant to make available to the Administrative Agent for the account of the Letter of Credit Issuer its Revolving Credit Commitment Percentage of any payment under any Letter of Credit shall not relieve any other L/C Participant of its obligation hereunder to make available to the Administrative Agent for the account of the Letter of Credit Issuer its Revolving Credit Commitment Percentage of any payment under such Letter of Credit on the date required, as specified above, but no L/C Participant shall be responsible for the failure of any other L/C Participant to make available to the Administrative Agent such other L/C Participant’s Revolving Credit Commitment Percentage of any such payment.
(d) Whenever the Administrative Agent receives a payment in respect of an unpaid reimbursement obligation as to which the Administrative Agent has received for the account of the Letter of Credit Issuer any payments from the L/C Participants pursuant to clause (c) above, the Administrative Agent shall promptly pay to each L/C Participant that has paid its Revolving Credit Commitment Percentage of such reimbursement obligation, in Dollars and in immediately available funds, an amount equal to such L/C Participant’s share (based upon the proportionate aggregate amount originally funded by such L/C Participant to the aggregate amount funded by all L/C Participants) of the Dollar Equivalent of the amount so paid in respect of such reimbursement obligation and interest thereon accruing after the purchase of the respective L/C Participations at the Overnight Rate.
(e) The obligations of the L/C Participants to make payments to the Administrative Agent for the account of the Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances.
(f) If any payment received by the Administrative Agent for the account of the Letter of Credit Issuer pursuant to Section 3.3(c) is required to be returned under any circumstance described in Section 13.20 (including pursuant to any settlement entered into by the Letter of Credit Issuer in its discretion), each Lender shall pay to the Administrative Agent for the account of the Letter of Credit Issuer its Revolving Credit Commitment Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the applicable Overnight Rate from time to time in effect. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
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3.4 Agreement to Repay Letter of Credit Drawings.
(a) The Borrower hereby agrees to reimburse the Letter of Credit Issuer, by making payment with respect to any drawing under any Letter of Credit in the same amount and in the same currency in which such drawing was made unless the Letter of Credit Issuer (at its option) shall have specified in the notice of drawing that it will require reimbursement in Dollars. In the case of any such reimbursement in Dollars of a drawing under a Letter of Credit denominated in an Alternative Currency, the Letter of Credit Issuer shall notify the Borrower of the Dollar Equivalent of the amount of the drawing promptly following the determination thereof. Any such reimbursement shall be made by the Borrower to the Letter of Credit Issuer in immediately available funds and in the applicable currency (whether with its own funds or with the proceeds of any Borrowings of Revolving Loans under this Agreement) for any payment or disbursement made by the Letter of Credit Issuer under any Letter of Credit (each such amount so paid until reimbursed, an “Unpaid Drawing”) no later than the date that is one Business Day after the date on which the Borrower receives a written notice (the “Notice of Drawing”) of such payment or disbursement (the “Reimbursement Date”) (which Notice of Drawing shall also be delivered to the Administrative Agent), with interest on the amount so paid or disbursed by the Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. on the Reimbursement Date, from the Reimbursement Date to the date the Letter of Credit Issuer is reimbursed therefor at a rate per annum that shall at all times be (i) with respect to a Letter of Credit denominated in Dollars, the Applicable Margin for ABR Loans that are Revolving Credit Loans plus the ABR as in effect from time to time, and (ii) with respect to a Letter of Credit denominated in an Alternative Currency, the Applicable Margin for Eurocurrency Loans that are Revolving Credit Loans plus the Eurocurrency Rate as in effect from time to time, provided that, notwithstanding anything contained in this Agreement to the contrary, (i) unless the Borrower shall have notified the Administrative Agent and the relevant Letter of Credit Issuer prior to 1:00 p.m. on the Reimbursement Date that the Borrower intends to reimburse the relevant Letter of Credit Issuer for the amount of such drawing with funds other than the proceeds of Loans, the Borrower shall be deemed to have given a Notice of Borrowing requesting that, with respect to Letters of Credit, the Revolving Lenders make Revolving Loans (which shall be ABR Loans) in Dollars on the Reimbursement Date in the amount, or the Dollar Equivalent of the amount, as applicable, of such drawing and (ii) the Administrative Agent shall promptly notify each L/C Participant of such drawing and the amount of its Revolving Loan to be made in respect thereof, and each L/C Participant shall be irrevocably obligated to make a Revolving Loan to the Borrower in the manner deemed to have been requested in the amount of its Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 2:00 p.m. on such Reimbursement Date by making the amount of such Revolving Loan available to the Administrative Agent. Such Revolving Loans shall be made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Loans solely for purpose of reimbursing the Letter of Credit Issuer for the related Unpaid Drawing. In the event that the Borrower fails to Cash Collateralize any Letter of Credit that is outstanding on the L/C Facility Maturity Date, the full amount of the Letters of Credit Outstanding in respect of such Letter of Credit shall be deemed to be an Unpaid Drawing subject to the provisions of this Section 3.4 except that the Letter of Credit Issuer shall hold the proceeds received from the L/C Participants as contemplated above as cash collateral for such Letter of Credit to reimburse any Drawing under such Letter of Credit and shall use such proceeds first, to reimburse itself for any Drawings made in respect of such Letter of Credit following the L/C Facility Maturity Date, second, to the extent such Letter of Credit expires or is returned undrawn while any such cash collateral remains, to the repayment of obligations in respect of any Revolving Loans that have not been paid at such time and third, to the Borrower or as otherwise directed by a court of competent jurisdiction. Nothing in this Section 3.4(a) shall affect the Borrower’s obligation to repay all outstanding Revolving Loans when due in accordance with the terms of this Agreement.
(b) The obligation of the Borrower to reimburse the Letter of Credit Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing (and the obligations of the L/C Participants to make payments to the Administrative Agent for the account of the Letter of Credit Issuer with respect to Letters of Credit in accordance with Section 3.3) shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, set-off, defense (other than a defense of payment or performance) or other right that the Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, the Letter of Credit Issuer, any Lender or other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
(iv) waiver by the Letter of Credit Issuer of any requirement that exists for the Letter of Credit Issuer’s protection and not the protection of the Borrower (or a Restricted Subsidiary) or any waiver by the Letter of Credit Issuer which does not in fact materially prejudice the Borrower (or a Restricted Subsidiary);
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(v) any payment made by the Letter of Credit Issuer in respect of an otherwise complying item presented after the date specified as the expiration date of, or the date by which documents must be received under, such Letter of Credit if presentation after such date is authorized by the UCC, the ISP or the UCP, as applicable;
(vi) any payment by the Letter of Credit Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the Letter of Credit Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under the Bankruptcy Code;
(vii) honor of a demand for payment presented electronically even if such Letter of Credit requires that demand be in the form of a draft;
(viii) any adverse change in any relevant exchange rates or in the relevant currency markets generally; or
(ix) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower (or a Restricted Subsidiary) (other than the defense of payment or performance).
(c) The Borrower shall not be obligated to reimburse the Letter of Credit Issuer for any wrongful payment made by the Letter of Credit Issuer under the Letter of Credit issued by it as a result of acts or omissions constituting willful misconduct, bad faith, material breach or gross negligence on the part of the Letter of Credit Issuer (or any of its Related Parties) as determined in the final non-appealable judgment of a court of competent jurisdiction.
3.5 Increased Costs. If after the Closing Date, any Change in Law shall either (x) impose, modify or make applicable any reserve, deposit, capital adequacy or similar requirement against letters of credit issued by the Letter of Credit Issuer, or any L/C Participant’s L/C Participation therein, or (y) impose on the Letter of Credit Issuer or any L/C Participant any other conditions or costs affecting its obligations under this Agreement in respect of Letters of Credit or L/C Participations therein or any Letter of Credit or such L/C Participant’s L/C Participation therein, and the result of any of the foregoing is to increase the actual cost to the Letter of Credit Issuer or such L/C Participant of issuing, maintaining or participating in any Letter of Credit, or to reduce the actual amount of any sum received or receivable by the Letter of Credit Issuer or such L/C Participant hereunder (including any increased costs or reductions attributable to Taxes, other than any such increase or reduction attributable to Indemnified Taxes, Other Taxes or Excluded Taxes) in respect of Letters of Credit or L/C Participations therein, then, promptly after receipt of written demand to the Borrower by the Letter of Credit Issuer or such L/C Participant, as the case may be (a copy of which notice shall be sent by the Letter of Credit Issuer or such L/C Participant to the Administrative Agent), the Borrower shall pay to the Letter of Credit Issuer or such L/C Participant such actual additional amount or amounts as will compensate the Letter of Credit Issuer or such L/C Participant for such material increased cost or reduction, it being understood and agreed, however, that the Letter of Credit Issuer or an L/C Participant shall not be entitled to such compensation as a result of such Person’s compliance with, or pursuant to any request or directive to comply with, any such law, rule or regulation as in effect on the Closing Date or to the extent the Letter of Credit Issuer or L/C Participant is not imposing such charges on, or requesting such compensation from, borrowers (similarly situated to the Borrower hereunder) under comparable letter of credit facilities similar to the Letter of Credit Commitment. A certificate submitted to the Borrower by the relevant Letter of Credit Issuer or an L/C Participant, as the case may be (a copy of which certificate shall be sent by the Letter of Credit Issuer or such L/C Participant to the Administrative Agent), setting forth in reasonable detail the basis for the determination of such actual additional amount or amounts necessary to compensate the Letter of Credit Issuer or such L/C Participant as aforesaid shall be conclusive and binding on the Borrower absent manifest error. The Borrower shall promptly pay such Letter of Credit Issuer or an L/C Participant, as the case may be, the amount shown as due on any such certificate after receipt thereof.
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3.6 New or Successor Letter of Credit Issuer.
(a) The Letter of Credit Issuer may resign as the Letter of Credit Issuer upon 30 days’ prior written notice to the Administrative Agent, the Lenders and the Borrower only so long as a Lender that is reasonably acceptable to the Borrower has agreed to be appointed as a successor Letter of Credit Issuer and to assume a Letter of Credit Percentage equal to or greater than the Letter of Credit Percentage of the resigning Letter of Credit Issuer, in each case in accordance with this Section 3.6. The Borrower may replace the Letter of Credit Issuer for any reason upon written notice to the Administrative Agent and the Letter of Credit Issuer. The Borrower may add Letter of Credit Issuers at any time upon notice to the Administrative Agent. If the Letter of Credit Issuer shall resign or be replaced, or if the Borrower shall decide to add a new Letter of Credit Issuer under this Agreement, then the Borrower may appoint from among the Lenders a successor issuer of Letters of Credit or a new Letter of Credit Issuer (with the agreement to become a successor issuer of Letters of Credit or a new Letter of Credit Issuer to be in the sole discretion of such Lender), as the case may be, or, with the consent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned, denied or delayed), another successor or new issuer of Letters of Credit, whereupon such successor issuer accepting such appointment shall succeed to the rights, powers and duties of the replaced or resigning Letter of Credit Issuer under this Agreement and the other Credit Documents, or such new issuer of Letters of Credit accepting such appointment shall be granted the rights, powers and duties of a Letter of Credit Issuer hereunder. At the time such resignation or replacement shall become effective, the Borrower shall pay to the resigning or replaced Letter of Credit Issuer all accrued and unpaid fees applicable to the Letters of Credit pursuant to Sections 4.1(b) and 4.1(d). The acceptance of any appointment as the Letter of Credit Issuer hereunder whether as a successor issuer or new issuer of Letters of Credit in accordance with this Agreement, shall be evidenced by an agreement entered into by such new or successor issuer of Letters of Credit, in a form reasonably satisfactory to the Borrower, and, from and after the effective date of such agreement, such new or successor issuer of Letters of Credit shall become a Letter of Credit Issuer hereunder. After the resignation or replacement of the Letter of Credit Issuer hereunder, the resigning or replaced Letter of Credit Issuer shall remain a party hereto and shall continue to have all the rights and obligations of the Letter of Credit Issuer under this Agreement and the other Credit Documents with respect to Letters of Credit issued by it prior to such resignation or replacement, but shall not be required to issue additional Letters of Credit. In connection with any resignation or replacement pursuant to this clause (a) (but, in case of any such resignation, only to the extent that a successor issuer of Letters of Credit shall have been appointed), either (i) the Borrower, the resigning or replaced Letter of Credit Issuer and the successor issuer of Letters of Credit shall arrange to have any outstanding Letters of Credit issued by the resigning or replaced Letter of Credit Issuer replaced with Letters of Credit issued by the successor issuer of Letters of Credit or (ii) the Borrower shall cause the successor issuer of Letters of Credit, if such successor issuer is reasonably satisfactory to the replaced or resigning Letter of Credit Issuer, to issue “back-stop” Letters of Credit naming the resigning or replaced Letter of Credit Issuer as beneficiary for each outstanding Letter of Credit issued by the resigning or replaced Letter of Credit Issuer, which new Letters of Credit shall be denominated in the same currency as, and shall have a face amount equal to, the Letters of Credit being back-stopped and the sole requirement for drawing on such new Letters of Credit shall be a drawing on the corresponding back-stopped Letters of Credit. After any resigning or replaced Letter of Credit Issuer’s resignation or replacement as Letter of Credit Issuer, the provisions of this Agreement relating to the Letter of Credit Issuer shall inure to its benefit as to any actions taken or omitted to be taken by it (A) while it was the Letter of Credit Issuer under this Agreement or (B) at any time with respect to Letters of Credit issued by such Letter of Credit Issuer.
(b) To the extent there are, at the time of any resignation or replacement as set forth in clause (a) above, any outstanding Letters of Credit, nothing herein shall be deemed to impact or impair any rights and obligations of any of the parties hereto with respect to such outstanding Letters of Credit (including, without limitation, any obligations related to the payment of Fees or the reimbursement or funding of amounts drawn), except that the Borrower, the resigning or replaced Letter of Credit Issuer and the successor issuer of Letters of Credit shall have the obligations regarding outstanding Letters of Credit described in clause (a) above.
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3.7 Role of Letter of Credit Issuer. Each Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the Letter of Credit Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the Letter of Credit Issuer, the Administrative Agent, any of their respective Affiliates nor any correspondent, participant or assignee of the Letter of Credit Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Required Lenders or the Required Revolving Credit Lenders; (ii) any action taken or omitted in the absence of gross negligence, bad faith, material breach or willful misconduct as determined in the final non-appealable judgment of a court of competent jurisdiction; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided that this assumption is not intended to, and shall not, preclude the Borrower’s pursuit of such rights and remedies as they may have against the beneficiary or transferee at law or under any other agreement. None of the Letter of Credit Issuer, the Administrative Agent, any of their respective Affiliates nor any correspondent, participant or assignee of the Letter of Credit Issuer shall be liable or responsible for any of the matters described in Section 3.3(b); provided that anything in such Section to the contrary notwithstanding, the Borrower may have a claim against the Letter of Credit Issuer, and the Letter of Credit Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by the Letter of Credit Issuer’s willful misconduct or gross negligence or the Letter of Credit Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit in each case as determined in the final non-appealable judgment of a court of competent jurisdiction. In furtherance and not in limitation of the foregoing, the Letter of Credit Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the Letter of Credit Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
The Letter of Credit Issuer may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (“SWIFT”) message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.
Notwithstanding anything else herein to the contrary (i) neither Barclays Bank PLC, Jefferies Finance, LLC nor any of their respective affiliates that is a Letter of Credit Issuer shall be required to issue a Letter of Credit denominated in any currency other than Dollars and (ii) none of Credit Suisse AG, Cayman Islands Branch, Goldman Sachs Bank USA, Barclays Bank PLC, Royal Bank of Canada, SunTrust Bank or Jefferies Finance, LLC, or any of their respective affiliates that are Letter of Credit Issuers, shall be required to issue any “documentary” letters of credit.
3.8 Cash Collateral.
(a) Certain Credit Support Events. Upon the written request of the Administrative Agent or the Letter of Credit Issuer, if (i) as of the L/C Facility Maturity Date, any L/C Obligation for any reason remains outstanding, (ii) the Borrower shall be required to provide Cash Collateral pursuant to Section 11.12 or Section 11.13, or (iii) the provisions of Section 2.16(a)(v) are in effect, the Borrower shall promptly following any written request by the Administrative Agent or the Letter of Credit Issuer, provide Cash Collateral in an amount not less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant to clause (iii) above, after giving effect to Section 2.16(a)(iv) and any Cash Collateral provided by the Defaulting Lender).
(b) Grant of Security Interest. The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grant to (and subject to the control of) the Administrative Agent or a depositary institution designated by the Administrative Agent, for the benefit of the Administrative Agent, the Letter of Credit Issuer and the Lenders, and agree to maintain, a first priority security interest (subject to Permitted Liens) in all such cash, deposit accounts and all balances therein as described in Section 3.8(a), and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 3.8(c). If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent or the Letter of Credit Issuer as herein provided, other than Permitted Liens, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount (including, without limitation, as a result of exchange rate fluctuations), the Borrower will, promptly following written demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency. Cash Collateral shall be maintained in blocked, interest bearing deposit accounts with the Administrative Agent (with such interest accruing for the benefit of the Borrower). The Borrower shall pay promptly following written demand therefor from time to time all customary account opening, activity and other administrative fees and charges in connection with the maintenance and disbursement of Cash Collateral.
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(c) Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 3.8 or Sections 2.16, 5.2, 11.12 or 11.13 in respect of Letters of Credit shall be held and applied to the satisfaction of the specific L/C Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.
(d) Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 13.7(b)(ii)) or there is no longer existing an Event of Default) or (ii) the determination by the Administrative Agent and the Letter of Credit Issuer (in consultation with the Borrower) that there exists excess Cash Collateral.
3.9 Governing Law; Applicability of ISP and UCP. Unless otherwise expressly agreed by the Letter of Credit Issuer and the Borrower when a Letter of Credit is issued, each Letter of Credit shall be governed by, and shall be construed in accordance with, the rules of the ISP, and as to matters not governed by the ISP, the laws of the State of New York. Notwithstanding the foregoing, the Letter of Credit Issuer shall not be responsible to the Borrower for, and the Letter of Credit Issuer’s rights and remedies against the Borrower shall not be impaired by, any action or inaction of the Letter of Credit Issuer required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the applicable law or any order of a jurisdiction where the Letter of Credit Issuer or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements, or official commentary of the International Chamber of Commerce Banking Commission, the Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.
3.10 Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control and any grant of security interest in any Issuer Documents shall be void.
3.11 Letters of Credit Issued for the Borrower or Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, the Borrower or a Subsidiary, the Borrower shall be obligated to reimburse the Letter of Credit Issuer hereunder for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of any Subsidiary inures to the benefit of the Borrower and that the Borrower’s business derives substantial benefits from the businesses of the Subsidiaries.
3.12 Provisions Related to Extended Revolving Credit Commitments. If the L/C Facility Maturity Date in respect of any Class of Revolving Commitments occurs prior to the expiry date of any Letter of Credit, then (i) if consented to by the Letter of Credit Issuer which issued such Letter of Credit, if one or more other Classes of Revolving Commitments in respect of which the L/C Facility Maturity Date shall not have so occurred are then in effect, such Letters of Credit for which consent has been obtained shall automatically be deemed to have been issued (including for purposes of the obligations of the Revolving Lenders to purchase participations therein and to make Revolving Loans and payments in respect thereof pursuant to Sections 3.3 and 3.4) under (and ratably participated in by Lenders pursuant to) the Revolving Commitments in respect of such non-terminating Classes up to an aggregate amount not to exceed the aggregate amount of the unutilized Revolving Commitments thereunder at such time (it being understood that no partial face amount of any Letter of Credit may be so reallocated) and (ii) to the extent not reallocated pursuant to the immediately preceding clause (i), the Borrower shall Cash Collateralize any such Letter of Credit in accordance with Section 3.8. Upon the maturity date of any Class of Revolving Commitments, the sublimit for Letters of Credit may be reduced as agreed between the Letter of Credit Issuer and the Borrower, without the consent of any other Person.
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SECTION 4
Fees and Commitment Reductions
4.1 Fees.
(a) Without duplication, the Borrower agrees to pay to the Administrative Agent in Dollars, for the account of each Revolving Credit Lender (in each case pro rata according to the respective Revolving Credit Commitments of all such Lenders), a facility fee (the “Facility Fee”) for each day from the Closing Date to the Revolving Credit Termination Date. Each Facility Fee shall be payable (x) quarterly in arrears on the last Business Day of each March, June, September and December (for the three-month period (or portion thereof) ended on such day for which no payment has been received) and (y) on the Revolving Credit Termination Date (for the period ended on such date for which no payment has been received pursuant to clause (x) above), and shall be computed for each day during such period at a rate per annum equal to the Facility Fee Rate in effect on such day on the aggregate principal amount of Revolving Credit Commitments in effect on such day regardless of usage.
(b) Without duplication, the Borrower agrees to pay to the Administrative Agent in dollars for the account of the Revolving Credit Lenders pro rata on the basis of their respective Letter of Credit Exposure, a fee in respect of each Letter of Credit issued on the Borrower’s or any Restricted Subsidiaries’ behalf (the “Letter of Credit Fee”), for the period from the date of issuance of such Letter of Credit to the termination date of such Letter of Credit computed at the per annum rate for each day equal to the then Applicable Margin for Revolving Credit Loans that are Eurocurrency Loans. Except as provided below, such Letter of Credit Fees shall be due and payable (x) quarterly in arrears on the last Business Day of each March, June, September and December and (y) on the date upon which the Total Revolving Credit Commitment terminates and the Letters of Credit Outstanding shall have been reduced to zero (or such Letters of Credit have been Cash Collateralized or backstopped in a manner reasonably acceptable to the Letter of Credit Issuer).
(c) Without duplication, the Borrower agrees to pay to the Administrative Agent in Dollars, for its own account, administrative agent fees as have been previously agreed in writing, or as may be agreed in writing, by the Borrower from time to time.
(d) Without duplication, the Borrower agrees to pay to the Letter of Credit Issuer a fee in Dollars in respect of each Letter of Credit issued by it (the “Fronting Fee”), for the period from the date of issuance of such Letter of Credit to the termination date of such Letter of Credit, computed at the rate for each day equal to 0.125% per annum on the average daily Dollar Equivalent Stated Amount of such Letter of Credit (or at such other rate per annum as agreed in writing between the Borrower and the Letter of Credit Issuer). Such Fronting Fees shall be due and payable (x) quarterly in arrears on the last Business Day of each March, June, September and December and (y) on the date upon which the Total Revolving Credit Commitment terminates and the Letters of Credit Outstanding shall have been reduced to zero (or such Letters of Credit have been Cash Collateralized or backstopped in a manner reasonably acceptable to the Letter of Credit Issuer).
(e) Without duplication, the Borrower agrees to pay directly to the Letter of Credit Issuer in Dollars upon each issuance or renewal of, drawing under, and/or amendment of, a Letter of Credit issued by it such amount as shall at the time of such issuance or renewal of, drawing under, and/or amendment be the reasonable processing charge that the Letter of Credit Issuer is customarily charging for issuances or renewals of, drawings under or amendments of, letters of credit issued by it.
(f) Notwithstanding the foregoing, the Borrower shall not be obligated to pay any amounts to any Defaulting Lender pursuant to this Section 4.1.
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4.2 Voluntary Reduction or Termination of Revolving Commitments. Upon at least two Business Days’ prior written notice to the Administrative Agent at the Administrative Agent’s Office (or such shorter period of time as agreed to by the Administrative Agent in its reasonable discretion) (which notice the Administrative Agent shall promptly transmit to each of the Lenders), the Borrower shall have the right, without premium or penalty, on any day, to permanently terminate or reduce the Revolving Commitments of any Class in whole or in part; provided that (a) any such reduction shall apply proportionately and permanently to reduce the Revolving Commitment of each of the Revolving Lenders of any applicable Class, except that (i) notwithstanding the foregoing, in connection with the establishment on any date of any Extended Revolving Credit Commitments pursuant to Section 2.14(g), the Revolving Commitments of any one or more Revolving Lenders providing any such Extended Revolving Credit Commitments on such date shall be reduced in an amount equal to the amount of Revolving Commitments so extended on such date (provided that (x) after giving effect to any such reduction and to the repayment of any Revolving Loans made on such date, the Revolving Credit Exposure of any such Lender does not exceed any Revolving Commitment thereof and (y) for the avoidance of doubt, any such repayment of Revolving Loans contemplated by the preceding clause shall be made in compliance with the requirements of Section 5.3(a) with respect to the ratable allocation of payments hereunder, with such allocation being determined after giving effect to any conversion pursuant to Section 2.14(g) of Revolving Commitments and Revolving Loans of any existing Class into Extended Revolving Credit Commitments and Extended Revolving Credit Loans pursuant to Section 2.14(g) prior to any reduction being made to the Revolving Commitment of any other Lender) and (ii) the Borrower may at its election permanently reduce any Revolving Commitment of a Defaulting Lender to $0 without affecting the Revolving Commitments of any other Lender, (b) any partial reduction pursuant to this Section 4.2 shall be in the amount of at least $500,000, and (c) after giving effect to such termination or reduction and to any prepayments of the Revolving Loans made on the date thereof in accordance with this Agreement, the aggregate amount of the Lenders’ Revolving Credit Exposures shall not exceed the Total Revolving Credit Commitment and the aggregate amount of the Lenders’ Revolving Credit Exposures in respect of any Class shall not exceed the aggregate Revolving Commitment of such Class. Notwithstanding anything to the contrary contained in this Agreement, the Borrower may by giving written notice to the Administrative Agent rescind, or extend the date for termination or reduction specified in, any notice delivered under this Section 4.2 on the date of such termination or reduction if such termination or reduction would have occurred in connection with a refinancing of all or any portion of any Credit Facility or Credit Facilities or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed.
4.3 Mandatory Termination of Commitments.
(a) The Initial Term Loan Commitments shall terminate on the Closing Date, contemporaneously with the Borrowing of the Initial Term Loans.
(b) The Initial Revolving Credit Commitment shall terminate at 12:00 p.m. on the Revolving Credit Maturity Date.
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SECTION 5
Payments
5.1 Voluntary Prepayments.
(a) The Borrower shall have the right to prepay Loans, including Term Loans and Revolving Loans, as applicable, in each case, other than as set forth in Section 5.1(b), without premium or penalty, in whole or in part from time to time on the following terms and conditions: (a) the Borrower shall give the Administrative Agent at the Administrative Agent’s Office written notice of its intent to make such prepayment, the amount of such prepayment and (in the case of Eurocurrency Loans) the specific Borrowing(s) pursuant to which made, which notice shall be given by the Borrower no later than 1:00 p.m. (i) in the case of Eurocurrency Loans, three Business Days prior to or (ii) in the case of ABR Loans, one (1) Business Day prior to the date of such prepayment and shall promptly be transmitted by the Administrative Agent to each of the Lenders; (b) each partial prepayment of (i) any Borrowing of Eurocurrency Loans shall be in a minimum amount of $250,000 or €250,000 (respectively) (or, if any Alternative Currency, the Dollar Equivalent thereof) and in multiples of $100,000 or €100,000 (respectively) (or, if any Alternative Currency, the Dollar Equivalent thereof) in excess thereof, and (ii) any ABR Loans shall be in a minimum amount of $250,000 and in multiples of $100,000 in excess thereof; provided that no partial prepayment of Eurocurrency Loans made pursuant to a single Borrowing shall reduce the outstanding Eurocurrency Loans made pursuant to such Borrowing to an amount less than the applicable Minimum Borrowing Amount for such Eurocurrency Loans; and (c) in the case of any prepayment of Eurocurrency Loans pursuant to this Section 5.1 on any day prior to the last day of an Interest Period applicable thereto, the applicable Borrower shall, promptly after receipt of a written request by any applicable Lender (which request shall set forth in reasonable detail the basis for requesting such amount), pay to the Administrative Agent for the account of such Lender any amounts required pursuant to Section 2.11. Each prepayment in respect of any Loans pursuant to this Section 5.1 shall be (1) applied to the Class or Classes of Loans as the Borrower may specify and (2) with respect to prepayments of Term Loans, applied to reduce Initial Term Loan Repayment Amounts, any New Term Loan Repayment Amounts, any Replacement Term Loan Repayment Amount, any Refinancing Term Loan Repayment Amount and any Extended Term Loan Repayment Amounts, as the case may be, in each case, in such order (including order of application to scheduled amortization payments) as the Borrower may specify. In the event that the Borrower does not specify the order in which to apply prepayments of Term Loans to reduce scheduled installments of principal or as between Classes of Term Loans, the Borrower shall be deemed to have elected that such prepayment be applied to reduce the scheduled installments of principal in direct order of maturity on a pro rata basis with the applicable Class or Classes, if a Class or Classes were specified, or among all Classes of Term Loans then outstanding, if no Class was specified. At the Borrower’s election in connection with any prepayment pursuant to this Section 5.1, such prepayment shall not be applied to any Term Loan or Revolving Loan of a Defaulting Lender.
(b) In the event that, prior to the six-month anniversary of the Closing Date, the Borrower (i) makes any prepayment of Initial Term Loans in connection with any Repricing Transaction the primary purpose (as determined by the Borrower in good faith) of which is to decrease the Effective Yield of such Initial Term Loans or (ii) effects any amendment of this Agreement resulting in a Repricing Transaction the primary purpose (as determined by the Borrower in good faith) of which is to decrease the Effective Yield of the Initial Term Loans, the Borrower shall pay to the Administrative Agent, for the ratable account of each of the applicable Lenders, (x) in the case of clause (i), a prepayment premium of 1.00% of the principal amount of Initial Term Loans being prepaid in connection with such Repricing Transaction and (y) in the case of clause (ii) above, a premium equal to 1.00% of the aggregate principal amount of the applicable Initial Term Loans outstanding immediately prior to such amendment that are subject to an effective pricing reduction pursuant to such Repricing Transaction.
(c) Notwithstanding anything to the contrary contained in this Agreement, the Borrower may by giving written notice to the Administrative Agent rescind, or extend the date for prepayment specified in, any notice of prepayment under Section 5.1(a) prior to noon (or, such later time as the Administrative Agent may approve in its sole discretion) on the date of such prepayment if such prepayment would have resulted from a refinancing of all or any portion of any Credit Facility or Credit Facilities or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed.
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5.2 Mandatory Prepayments.
(a) Term Loan Prepayments.
(i) On each occasion that a Prepayment Event occurs, the Borrower shall, within five (5) Business Days after receipt of the Net Cash Proceeds of a Debt Incurrence Prepayment Event (other than one covered by clause (iii) below) and within ten (10) Business Days after the receipt of Net Cash Proceeds of any other Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within ten (10) Business Days after the Deferred Net Cash Proceeds Payment Date), prepay (or cause to prepay), in accordance with Section 5.2(c), Term Loans with an equivalent principal amount equal to 100.0% of the Net Cash Proceeds from such Prepayment Event; provided that, with respect to the Net Cash Proceeds of an Asset Sale Prepayment Event or Casualty Event, the Borrower may use a portion of such Net Cash Proceeds to prepay or repurchase Permitted Other Indebtedness (and with such prepaid or repurchased Permitted Other Indebtedness permanently extinguished) with a Lien on the Collateral ranking pari passu with the Liens securing any First Lien Obligations outstanding under this Agreement to the extent any applicable Permitted Other Indebtedness Document requires the issuer of such Permitted Other Indebtedness to prepay or make an offer to purchase or prepay such Permitted Other Indebtedness with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of the Permitted Other Indebtedness with a Lien on the Collateral ranking pari passu with the Liens securing any First Lien Obligations outstanding under this Agreement and with respect to which such a requirement to prepay or make an offer to purchase or prepay exists and the denominator of which is the sum of the outstanding principal amount of such Permitted Other Indebtedness and the outstanding principal amount of Term Loans provided, further, that with respect to any Prepayment Event, (A) the percentage in this Section 5.2(a)(i) shall be reduced to 50% if, at the time of such Prepayment Event, the pro forma First Lien Net Leverage Ratio (after to giving effect thereto) for the most recent Test Period is less than or equal to 4.25 to 1.00 but greater than 3.75 to 1.00 and (B) no prepayment of any Term Loans shall be required under this Section 5.2(a)(i) if, at the time of such Prepayment Event, the First Lien Net Leverage Ratio (after giving effect thereto) for the most recent Test Period ended on the last day of the applicable fiscal year is less than or equal to 3.75 to 1.00 (such Net Cash Proceeds not required to prepay the Term Loans, the “Retained Asset Sale Proceeds”).
(ii) Not later than fifteen Business Days after the date on which financial statements are required to be delivered pursuant to Section 9.1(a) for any fiscal year commencing with the fiscal year ending December 31, 2018, the Borrower shall prepay (or cause to be prepaid), in accordance with Section 5.2(c), Term Loans with a principal amount (the “ECF Payment Amount”) equal to (x) 50% of Excess Cash Flow for such fiscal year; provided that (A) the percentage in this Section 5.2(a)(ii) shall be reduced to 25% if the First Lien Net Leverage Ratio (after to giving effect thereto and giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended on the last day of the applicable fiscal year is less than or equal to 4.25 to 1.00 but greater than 3.75 to 1.00 and (B) no payment of any Term Loans shall be required under this Section 5.2(a)(ii) if the First Lien Net Leverage Ratio (after to giving effect thereto and giving effect to any prepayment described in clause (y) below and as certified by an Authorized Officer of the Borrower) for the most recent Test Period ended on the last day of the applicable fiscal year is less than or equal to 3.75 to 1.00, minus (y) (i) the principal amount of Initial Term Loans and any other Term Loans, Permitted Debt Exchange Notes, Refinancing Term Loans, Refinancing Revolving Credit Loans, Replacement Term Loans, Extended Term Loans, Extended Revolving Credit Loans, Incremental Loans, Permitted Other Indebtedness and any other Indebtedness that is secured on a pari passu basis with the Initial Term Loans voluntarily prepaid pursuant to Section 5.1 or Section 13.7 (in each case, including purchases of the such Indebtedness by Holdings, the Borrower and its Subsidiaries at or below par, in which case the amount of voluntary prepayments of such Indebtedness shall be deemed not to exceed the actual purchase price of such Indebtedness below par) or otherwise during such fiscal year (without duplication of any prepayments in such fiscal year that reduced the amount of Excess Cash Flow required to be repaid pursuant to this Section 5.2(a)(ii) for any prior fiscal year) or at the option of the Borrower, after such fiscal year and prior to the date of the required Excess Cash Flow payment, (ii) to the extent accompanied by permanent reductions of the applicable revolving credit commitments, payments of Revolving Loans or loans under other revolving credit facilities during such fiscal year (without duplication of any prepayments in such fiscal year that reduced the amount of Excess Cash Flow required to be repaid pursuant to this Section 5.2(a)(ii) for any prior fiscal year) or, at the option of the Borrower, after such fiscal year and prior to the date of the required Excess Cash Flow payment, (iii) repaid borrowings of Revolving Credit Loans made on the Closing Date to account for any additional original issue discount or upfront fees that are implemented pursuant to the Fee Letter or in connection with the issuance of the Senior Notes on or prior to the Closing Date, (iv) at the option of Borrower, cash amounts used to make prepayments pursuant to “excess cash flow sweep” provisions or similar provisions applicable to any term loans incurred as Permitted Other Indebtedness (to the extent any amounts payable thereunder are paid on a pro rata basis with prepayments of the Term Loans as required by this Section 5.2(a)(ii))), and (v) amounts attributable to Foreign Subsidiaries that are not required to be prepaid pursuant to Section 5.2(a)(iv); provided, that a prepayment of the principal amount of Term Loans pursuant to this Section 5.2(a)(ii) in respect of any fiscal year shall only be required in the amount by which the ECF Payment Amount for such fiscal year exceeds $15,000,000 (the “Retained ECF Payment”); provided, further, that at the option of the Borrower, to the extent that the foregoing prepayments exceed the amount of payments otherwise due pursuant to this Section 5.2(a)(ii) for the applicable fiscal year, such prepayments may be applied to any subsequent fiscal year.
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(iii) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 10.1(w), or any Refinancing Term Loans or Replacement Term Loans are incurred, in each case to refinance any Class (or Classes) of Term Loans resulting in Net Cash Proceeds (as opposed to such Permitted Other Indebtedness, Refinancing Term Loans or Replacement Term Loans arising out of an exchange of existing Term Loans for such Permitted Other Indebtedness, Refinancing Term Loans or Replacement Term Loans), the Borrower shall within five (5) Business Days of receipt of the Net Cash Proceeds of such Permitted Other Indebtedness, Refinancing Term Loans or Replacement Term Loans prepay, in accordance with Section 5.2(c), such Class (or Classes) of Term Loans in a principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness, Refinancing Term Loans or Replacement Term Loans, as applicable.
(iv) Notwithstanding any other provisions of this Section 5.2, (A) to the extent that any or all of the Net Cash Proceeds of any Prepayment Event by a Foreign Subsidiary giving rise to a prepayment pursuant to clause (i) above (a “Foreign Prepayment Event”) or Excess Cash Flow of a Foreign Subsidiary giving rise to a prepayment pursuant to clause (ii) above are prohibited or delayed by any Requirement of Law (including as a result of financial assistance, corporate benefit, restrictions on dividends and fiduciary and statutory duties) or any material agreement (including constituent documents) binding on any Foreign Subsidiary, from being repatriated to any Credit Party, or any such repatriation would reasonably be expected to give rise to personal liability of any director or similar officer of any member of the Group under any Requirement of Law, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in clauses (i) and (ii) above, as the case may be, but only so long as the applicable Requirement of Law or material agreement will not permit repatriation to any Credit Party, and once a repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable Requirement of Law or material agreement, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than ten (10) Business Days after such repatriation is permitted) applied (net of any taxes, costs or expenses that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) pursuant to clauses (i) and (ii) above, as applicable, and (B) to the extent that the Borrower has determined in good faith that any of or all the repatriation of Net Cash Proceeds of any Foreign Prepayment Event or Excess Cash Flow could have an adverse tax or regulatory consequence with respect to such Net Cash Proceeds or Excess Cash Flow (including, for the avoidance of doubt, but not limited to, any prepayment whereby doing so Holdings, the Borrower and their Restricted Subsidiaries or any of their respective affiliates or equityholders would incur a tax liability, including a tax dividend, deemed dividend pursuant to Section 956 of the Internal Revenue Code or a withholding tax), an amount equal to the Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in clauses (i) and (ii) above, until such time as it may repatriate such amount without incurring such adverse tax or regulatory consequences (at which time such amount shall be promptly applied to repay the Term Loans in accordance with this Section 5.2). For the avoidance of doubt, so long as an amount equal to the amount of Net Cash Proceeds or Excess Cash Flow, as applicable, required to be applied in accordance with Section 5.2(a)(i) or 5.2(a)(ii), respectively, is applied by the Borrower, nothing in this Agreement (including this Section 5) shall be construed to require any Foreign Subsidiary to repatriate cash.
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(b) Repayment of Revolving Loans. Except as otherwise provided in this Section 5.2(b), if on any date the aggregate amount of the Lenders’ Revolving Credit Exposures in respect of any Class of Revolving Loans for any reason exceeds 100% of the Revolving Commitment of such Class then in effect, the Borrower shall promptly repay within one Business Day after receipt of written notice thereof from the Administrative Agent Revolving Loans of such Class in an amount equal to such excess. If after giving effect to the prepayment of all outstanding Revolving Loans of such Class, the Revolving Credit Exposures of such Class exceed the Revolving Commitments of such Class then in effect, the Borrower shall Cash Collateralize the Letters of Credit Outstanding in relation to such Class to the extent of such excess. If the aggregate amount of the Lenders’ Revolving Credit Exposures in respect of any Class of Revolving Loans exceeds 105% of the Revolving Credit Commitment of such Class as then in effect for three (3) consecutive Business Days solely due to fluctuations in currency exchange rates, the Borrower shall, within three Business Days after the receipt of written notice thereof from the Administrative Agent, repay Revolving Credit Loans in a principal amount such that, after giving effect to such repayment, the Revolving Credit Exposures in respect of such Class do not exceed 100% of the Revolving Credit Commitment of such Class. If, after giving effect to the prepayment of all outstanding Revolving Credit Loans of such Class to the extent required by the preceding sentence, the Revolving Credit Exposures of such Class exceed the Revolving Credit Commitment of such Class then in effect, the Borrower shall Cash Collateralize or backstop (in the case of a backstop only, on terms reasonably satisfactory to the Letter of Credit Issuer), the Letters of Credit Outstanding in relation to such Class to the extent of such excess and for as long as such excess exists.
(c) Application to Repayment Amounts. Subject to Section 5.2(f), except as may otherwise be set forth in any Joinder Agreement, any Refinancing Amendment, any Extension Amendment or any amendment in respect of Replacement Term Loans, each prepayment of Term Loans required by Section 5.2(a)(i) or (ii) shall be allocated pro rata among the Initial Term Loans and any New Term Loans, Refinancing Term Loans, Extended Term Loans and Replacement Term Loans then outstanding based on the applicable remaining Repayment Amounts due thereunder and shall be applied within each Class of Term Loans in respect of such Term Loans in direct forward order of scheduled maturity thereof or as otherwise directed by the Borrower; provided any Class of New Term Loans, Refinancing Term Loans, Extended Term Loans and Replacement Term Loans may specify that one or more other Classes of Term Loans may be prepaid prior to (or on a greater than pro rata basis than) such Class of New Term Loans, Refinancing Term Loans, Extended Term Loans and Replacement Term Loans. Any prepayment of Term Loans with the Net Cash Proceeds of, or in exchange for, Permitted Other Indebtedness, Refinancing Term Loans or Replacement Term Loans pursuant to Section 5.2(a)(iii) shall be applied solely to each applicable Class or Classes of Term Loans being refinanced as selected by the Borrower.
(d) Application to Term Loans. With respect to each prepayment of Term Loans required by Section 5.2(a), the Borrower may, if applicable, designate the Types of Term Loans that are to be prepaid and the specific Borrowing(s) pursuant to which made; provided that, if any Lender has provided a Rejection Notice in compliance with Section 5.2(f), such prepayment shall be applied with respect to the Term Loans to be prepaid on a pro rata basis across all outstanding Types of such Term Loans in proportion to the percentage of such outstanding Term Loans to be prepaid represented by each such Class. In the absence of a Rejection Notice or a designation by the Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its reasonable discretion with a view, but no obligation, to minimize breakage costs owing under Section 2.11.
(e) Application to Revolving Credit Loans. With respect to each prepayment of Revolving Loans required by Section 5.2(a), the Borrower may designate (i) the Types of Revolving Loans that are to be prepaid and the specific Borrowing(s) pursuant to which made and (ii) the Revolving Loans to be prepaid, provided that (x) each prepayment shall be applied to the prepayment of outstanding Revolving Loans, (y) after giving effect to the preceding clause (x), each prepayment of any Revolving Loans made pursuant to a Borrowing shall be applied pro rata among such Revolving Loans; and (z) notwithstanding the provisions of the preceding clauses (x) or (y), no prepayment of Revolving Loans shall be applied to the Revolving Loans of any Defaulting Lender unless otherwise agreed in writing by the Borrower. In the absence of a designation by the Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its reasonable discretion with a view, but no obligation, to minimize breakage costs owing under Section 2.11. The mandatory prepayments set forth in this Section 5.2 shall not reduce the aggregate amount of Commitments and amounts prepaid may be reborrowed in accordance with the terms hereof.
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(f) Rejection Right. The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to Section 5.2(a) no later than 1:00 p.m. at least three (3) Business Days prior to the date such prepayment is required to be made (or such shorter period of time as agreed to by the Administrative Agent in its reasonable discretion); provided, however, that, notwithstanding anything to the contrary contained in this Agreement, the Borrower may rescind, or extend the date for prepayment specified in, any notice of prepayment under this Section 5.2(f) if such prepayment would have resulted from a refinancing of all or any portion of any Credit Facility or Credit Facilities or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the anticipated date of such prepayment and provide a reasonably detailed estimated calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Lender holding Term Loans to be prepaid in accordance with such prepayment notice of the contents of such prepayment notice and of such Lender’s pro rata share of the estimated prepayment. Each Term Loan Lender may reject all (but not less than all) of its pro rata share of any mandatory prepayment of Term Loans required to be made pursuant to Section 5.2(a) other than any such mandatory prepayment with respect to a Debt Incurrence Prepayment Event under Section 5.2(a)(i) or any mandatory prepayment under Section 5.2(a)(iii) (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent (and the Administrative Agent shall promptly provide such notice to the Borrower) no later than 3:00 p.m. one Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above, or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be retained by the Borrower (“Retained Declined Proceeds”).
5.3 Method and Place of Payment.
(a) All payments under this Agreement shall be made by the Borrower, without set-off, counterclaim or deduction of any kind, and (except as otherwise specifically provided herein) shall be made to the Administrative Agent for the ratable account of the Lenders entitled thereto or the Letter of Credit Issuer entitled thereto, as the case may be, not later than 1:00 p.m., in the case of payments in Dollars and 9:00 a.m. in the case of payments in any Alternative Currency, on the date when due and shall be made in immediately available funds at the Administrative Agent’s Office or at such other office as the Administrative Agent shall specify for such purpose by written notice to the Borrower, it being understood that written or facsimile notice by the Borrower to the Administrative Agent to make a payment from the funds in the Borrower’s account at the Administrative Agent’s Office shall constitute the making of such payment to the extent of such funds held in such account. All repayments or prepayments of any Loans (whether of principal, interest or otherwise) hereunder shall be made in each case, in the currency in which such Loans are denominated or as otherwise specified herein in the case of Fees. The Administrative Agent will thereafter cause to be distributed on the same day (if payment was actually received by the Administrative Agent prior to 1:00 p.m. in the case of payments in Dollars and 9:00 a.m. in the case of payments in any Alternative Currency or, otherwise, on the next Business Day in the Administrative Agent’s sole discretion) like funds relating to the payment of principal or interest or Fees ratably to the Lenders entitled thereto.
(b) Any payments under this Agreement that are made later than 1:00 p.m. in the case of payments in Dollars and 9:00 a.m. in the case of payments in any Alternative Currency may be deemed to have been made on the next succeeding Business Day in the Administrative Agent’s sole discretion for purposes of calculating interest thereon. Except as otherwise provided herein, whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, the due date thereof shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest shall be payable during such extension at the applicable rate in effect immediately prior to such extension.
5.4 Net Payments.
(a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.
(i) All payments by or on account of any obligation of any Credit Party hereunder or under any other Credit Document shall to the extent permitted by applicable Requirements of Law be made free and clear of and without reduction or withholding for any Taxes.
(ii) If any applicable Withholding Agent shall be required by applicable Requirements of Law to withhold or deduct any Taxes from any such payment, then (A) such Withholding Agent shall withhold or make such deductions as are reasonably determined by such Withholding Agent to be required by applicable Requirements of Law, (B) such Withholding Agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes or Other Taxes, the sum payable by the applicable Credit Party shall be increased as necessary so that after any required withholding or deductions have been made (including withholding or deductions applicable to additional sums payable under this Section 5.4) each Lender (or, in the case of a payment to the Administrative Agent for its own account, the Administrative Agent) receives an amount equal to the sum it would have received had no such withholding or deductions been made.
(b) Payment of Other Taxes by the Borrower. Without limiting the provisions of subsection (a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law or, at the option of the Administrative Agent, timely reimburse the Administrative Agent or any Lender for the payment of any Other Taxes.
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(c) Tax Indemnifications. Without limiting the provisions of subsection (a) or (b) above and without duplication of such provisions, the Borrower shall indemnify the Administrative Agent and each Lender, and shall make payment in respect thereof within 15 days after demand therefor, for the full amount of Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 5.4) paid or payable by the Administrative Agent or such Lender, as the case may be, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of any such payment or liability (along with a written statement setting forth in reasonable detail the basis and calculation of such amounts) delivered to the Borrower by a Lender, or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. If the Borrower reasonably believes that any such Indemnified Taxes or Other Taxes were not correctly or legally asserted, the Administrative Agent and/or each affected Lender will use reasonable efforts to cooperate with the Borrower in pursuing a refund of such Indemnified Taxes or Other Taxes so long as such efforts would not, in the sole determination exercised in good faith of the Administrative Agent or affected Lender, result in any additional costs, expenses or risks or be otherwise disadvantageous to it. Notwithstanding anything to the contrary contained in this Section 5.4(c), the Borrower shall not be required to indemnify the Administrative Agent or any Lender pursuant to this Section 5.4(c) for any incremental interest, penalties or expenses resulting from the failure of such Administrative Agent or Lender to notify the Borrower of such possible indemnification claim within 120 days after the Administrative Agent or such Lender, as applicable, receives written notice from the applicable taxing authority of the specific tax assessment giving rise to such indemnification claim.
(d) Evidence of Payments. After any payment of Taxes by any Credit Party or the Administrative Agent to a Governmental Authority as provided in this Section 5.4, the Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by laws to report such payment or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be.
(e) Status of Lenders and Tax Documentation.
(i) Each Lender shall deliver to the Borrower and to the Administrative Agent, at such time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Requirements of Law and such other reasonably requested information as will permit the Borrower or the Administrative Agent, as the case may be, to determine (A) whether or not any payments made hereunder or under any other Credit Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Lender’s entitlement to any available exemption from, or reduction of, applicable withholding Taxes in respect of any payments to be made to such Lender by any Credit Party pursuant to any Credit Document or otherwise to establish such Lender’s status for withholding tax purposes in the applicable jurisdiction. Any documentation and information required to be delivered by a Lender pursuant to this Section 5.4(e) (including any specific documentation set forth in subsection (ii) below) shall be delivered by such Lender (i) on or prior to the Closing Date (or on or prior to the date it becomes a party to this Agreement), (ii) on or before any date on which such previously provided documentation expires or becomes obsolete or invalid, (iii) after the occurrence of any change in the Lender’s circumstances requiring a change in the most recent documentation previously delivered by it to the Borrower and the Administrative Agent, and (iv) from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent, and each such Lender shall promptly notify in writing the Borrower and the Administrative Agent if such Lender is no longer legally eligible to provide any documentation previously provided.
(ii) Without limiting the generality of the foregoing:
(A) each Lender that is a “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to such Borrower and the Administrative Agent executed originals of Internal Revenue Service Form W-9;
(B) each Non-U.S. Lender shall deliver to such Borrower and the Administrative Agent two duly executed originals of whichever of the following is applicable:
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(1) executed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or any successor form thereto), that claims eligibility for benefits of an income tax treaty to which the United States is a party
(2) executed copies of Internal Revenue Service Form W-8ECI (or any successor form thereto);
(3) executed copies of Internal Revenue Service Form W-8EXP (or any successor form thereto);
(4) in the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) or 871(h) of the Code, (x) a certificate substantially in the form of Exhibit K-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of U.S. Newco within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “Non-Bank Tax Certificate”) and that no interest payments in connection with any Credit Documents are effectively connected with the Non-U.S. Lender’s conduct of a U.S. trade or business and (y) Internal Revenue Service Form W-8BEN or W-8BEN-E;
(5) to the extent a Non-U.S. Lender is not the beneficial owner (for example, where such Non-U.S. Lender is a partnership or a participating Lender), Internal Revenue Service Form W-8IMY, accompanied by Internal Revenue Service Form W-8ECI, Internal Revenue Service Form W-8BEN or W-8BEN-E, a Non-Bank Tax Certificate substantially in the form of Exhibit K-2 or Exhibit K-3, Internal Revenue Service Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Non-U.S. Lender is a partnership (and not a participating Lender) and one or more partners of such Non-U.S. Lender are claiming the portfolio interest exemption, such Non-U.S. Lender may provide a Non-Bank Tax Certificate substantially in the form of Exhibit K-4 on behalf of each such partner;
(6) executed copies of any other form prescribed by applicable Requirements of Law as a basis for claiming exemption from or a reduction in United States federal withholding tax together with such supplementary documentation as may be prescribed by applicable Requirements of Law to permit such Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(C) if a payment made to a Lender under any Credit Document would be subject to any Tax imposed under 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 Borrower and the Administrative Agent at the time or times prescribed by applicable Requirements of Law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender’s obligations under FATCA and to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (C), FATCA shall include any amendments made to FATCA after the date of this Agreement.
(iii) Notwithstanding anything to the contrary in this Section 5.4, no Lender shall be required to deliver any documentation that it is not legally eligible to deliver. Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to this Section 5.4(e).
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(iv) On or before the date the Administrative Agent becomes a party to this Agreement, the Administrative Agent shall provide to the Borrower two duly-signed, properly completed copies of the documentation prescribed in clause (A) or (B) below, as applicable (together with all required attachments thereto): (A) Internal Revenue Service Form W-9 or any successor thereto, or (B) (1) with respect to payments received for its own account, Internal Revenue Service Form W-8ECI or any successor thereto, and (2) with respect to payments received on account of any Lender, a U.S. branch withholding certificate on Internal Revenue Service Form W-8IMY or any successor thereto evidencing its agreement with the Borrower to be treated as a U.S. Person for U.S. federal withholding purposes. At any time thereafter, the Administrative Agent shall provide updated documentation previously provided (or a successor form thereto) when any documentation previously delivered has expired or become obsolete or invalid or otherwise upon the reasonable request of the Borrower. Notwithstanding anything to the contrary in this Section 5.4(e)(iv), the Administrative Agent shall not be required to provide any documentation that the Administrative Agent is not legally eligible to deliver as a result of a Change in Law after the Closing Date.
(f) Treatment of Certain Refunds. If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by any Credit Party or with respect to which any Credit Party has paid additional amounts pursuant to this Section 5.4, the Administrative Agent or such Lender (as applicable) shall promptly pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Credit Parties under this Section 5.4 with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses (including any Taxes) incurred by the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the Borrower, upon the request of the Administrative Agent or such Lender, shall repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. In such event, the Administrative Agent or such Lender, as the case may be, shall, at the Borrower’s request, provide the Borrower with a copy of any notice of assessment or other evidence of the requirement to repay such refund received from the relevant taxing authority (provided that the Administrative Agent or such Lender may delete any information therein that it deems confidential). Notwithstanding anything to the contrary in this Section 5.4(f), in no event will the Administrative Agent or any Lender be required to pay any amount to an indemnifying party pursuant to this Section 5.4(f) the payment of which would place the Administrative Agent or any Lender in a less favorable net after-Tax position than the Administrative Agent or any Lender 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 subsection shall not be construed to require the Administrative Agent or any Lender 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.
(g) All amounts set out or expressed in this Agreement to be payable by any party to this Agreement to any recipient which (in whole or in part) constitute the consideration for any supply or supplies for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply or supplies, and accordingly, subject to Section 5.4(h) below, if VAT is or becomes chargeable on any supply made by any recipient to any party under this Agreement and such recipient is required to account to the relevant tax authority for the VAT, that party shall pay to such recipient, as applicable, (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 provided that such recipient, as applicable, shall promptly provide an appropriate VAT invoice to such party to this Agreement).
(h) If VAT is or becomes chargeable on any supply made by any recipient (the “Supplier”) to any other recipient (the “VAT Recipient”) under this Agreement, and any party to this Agreement other than the VAT Recipient (the “Subject Party”) is required by the terms of this Agreement to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse the VAT Recipient in respect of that consideration):
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(i) where the Supplier is the person required to account to the relevant tax authority for the VAT, the Subject 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 VAT Recipient will, where this Section 5.4(h)(b) applies, promptly pay to the Subject Party an amount equal to any credit or repayment obtained by the VAT Recipient from the relevant tax authority which the VAT Recipient reasonably determines relates to the VAT chargeable on the supply; and
(ii) where the VAT Recipient is the person required to account to the relevant tax authority for the VAT, the Subject Party shall promptly, following demand from the VAT Recipient, pay to the VAT Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the VAT Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.
(i) Where this Agreement requires any party to this Agreement to reimburse or indemnify a recipient for any cost or expense, that party shall reimburse or indemnify (as the case may be) such recipient for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that the Recipient reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
(j) Any reference in this Section 5.4 to any party to this Agreement shall, at any time when such Party is treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated at that time as making the supply, or (as appropriate) receiving the supply, under the grouping rules (provided for in Article 11 of Council Directive 2006/112/EC (or as implemented by the relevant member state of the European Union) or any other similar provision in any jurisdiction which is not a member state of the European Union) so that a reference to a party to this Agreement shall be construed as a reference to that party or the relevant group or unity (or fiscal unity) of which that party is a member for VAT purposes at the relevant time or the relevant representative member (or head) of that group or unity (or fiscal unity) at the relevant time (as the case may be).
(k) In relation to any supply made by a recipient to any party under this Agreement, if reasonably requested by such Recipient, that party must promptly provide details of its VAT registration and such other information as is reasonably requested in connection with such Recipient’s VAT reporting requirements in relation to such supply.
(l) For the avoidance of doubt, for purposes of this Section 5.4, the term Lender includes any Letter of Credit Issuer.
(m) Each party’s obligations under this Section 5.4 shall survive the resignation or replacement 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 obligations under the Credit Documents.
5.5 Computations of Interest and Fees.
(a) Except as provided in the next succeeding sentence, interest on Eurocurrency Loans shall be calculated on the basis of a 360-day year for the actual days elapsed. Interest on ABR Loans shall be calculated on the basis of a 365- (or 366-, in the case of a leap year) day year for the actual days elapsed.
(b) Fees and the average daily Stated Amount of Letters of Credit shall be calculated on the basis of a 360-day year for the actual days elapsed.
5.6 Limit on Rate of Interest.
(a) No Payment Shall Exceed Lawful Rate. Notwithstanding any other term of this Agreement, the Borrower shall not be obliged to pay any interest or other amounts under or in connection with this Agreement or otherwise in respect of the Obligations in excess of the amount or rate permitted under or consistent with any applicable law, rule or regulation.
(b) Payment at Highest Lawful Rate. If the Borrower is not obliged to make a payment that it would otherwise be required to make, as a result of Section 5.6(a), the Borrower shall make such payment to the maximum extent permitted by or consistent with applicable laws, rules, and regulations.
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(c) Adjustment if Any Payment Exceeds Lawful Rate. If any provision of this Agreement or any of the other Credit Documents would obligate the Borrower to make any payment of interest or other amount payable to any Lender in an amount or calculated at a rate that would be prohibited by any applicable law, rule or regulation, 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 law (the “Maximum Rate”), such adjustment to be effected, to the extent necessary, by reducing the amount or rate of interest required to be paid by the Borrower to the affected Lender under Section 2.8; provided that to the extent lawful, the interest or other amounts that would have been payable but were not payable as a result of the operation of this Section shall be cumulated and the interest payable to such Lender in respect of other Loans or periods 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.
Notwithstanding the foregoing, and after giving effect to all adjustments contemplated thereby, if any Lender shall have received from the Borrower an amount in excess of the maximum permitted by any applicable law, rule or regulation, then the Borrower shall be entitled, by notice in writing to the Administrative Agent to obtain reimbursement from that Lender in an amount equal to such excess, and pending such reimbursement, such amount shall be deemed to be an amount payable by that Lender to the Borrower.
SECTION 6
Conditions Precedent to Initial Borrowing
6.1 Conditions Precedent. The initial Borrowing under this Agreement is subject to the satisfaction or waiver (by the Joint Lead Arrangers and Joint Bookrunner, in its reasonable discretion) of the following conditions precedent:
(a) Credit Documents. The Administrative Agent (or its counsel) shall have received:
(i) this Agreement, executed and delivered by a duly Authorized Officer of Holdings and the Borrower;
(ii) the U.S. Guarantee, executed and delivered by a duly Authorized Officer of each U.S. Guarantor a party thereto;
(iii) the U.S. Pledge Agreement, executed and delivered by a duly Authorized Officer of each U.S. Credit Party a party thereto;
(iv) the U.S. Security Agreement, executed and delivered by a duly Authorized Officer of each U.S. Credit Party a party thereto; and
(v) each other Security Document described on Schedule 6.1(a)(v) executed and delivered by a duly authorized officer of each Credit Party a party thereto.
(b) Collateral. Except for any items referred to on Schedule 9.14:
(i) The Collateral Agent shall have received the certificates representing securities of the Borrower and of each U.S. Credit Party’s Wholly-Owned Restricted Subsidiaries to the extent required to be delivered and pledged under the Security Documents (to the extent certificated, accompanied by undated stock (or equivalent) powers endorsed in blank); and
(ii) All Uniform Commercial Code financing statements or other appropriate filing offices of each jurisdiction of organization of each Credit Party to be filed, registered or recorded to perfect the Liens intended to be created by any Security Document to the extent required by, and with the priority required by, such Security Document shall have been delivered to the Collateral Agent for filing, registration or recording;
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provided that each of the requirements set forth in clauses (a) and (b)(ii) (except to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of certificates, if any, representing the Equity Interests of the Borrower (to the extent the Borrower is a domestic entity) and each Wholly-Owned Restricted Subsidiary that is a Domestic Subsidiary of any Credit Party that constitutes a Material Subsidiary to the extent possession of such certificates perfects a security interest therein) shall not (i) constitute conditions precedent to the initial Borrowing on the Closing Date after the Borrower’s use of commercially reasonable efforts to provide such items on or prior to the Closing Date or without undue burden or expense if the Borrower agrees to deliver, or cause to be delivered, such documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within (x) with respect to the pledge of the equity in the Borrower if the Borrower is not a domestic entity, 10 days after the Closing Date and (y) with respect to each other requirement, 90 days after the Closing Date (subject to extensions approved by the Administrative Agent in its reasonable discretion) and (ii) (other than in respect of Borrower and Holdings) be subject to the Agreed Security Principles.
(c) Acquisition. The Acquisition shall have been, or substantially concurrently with the initial Borrowing under this Agreement shall be, consummated in all material respects in accordance with the Acquisition Agreement. No material provision of the Acquisition Agreement shall have been waived, amended, supplemented or otherwise modified, or consents granted thereunder, by Holdings in a manner material and adverse to the Lenders (in their capacity as such) without the consent of the Joint Lead Arrangers and Joint Bookrunners (not to be unreasonably withheld, delayed, denied or conditioned and provided that the Joint Lead Arrangers and Joint Bookrunners shall be deemed to have consented to such waiver, amendment, consent or other modification unless they shall object thereto within three (3) Business Days after notice of such waiver, amendment, consent or other modification); provided that (i) any reduction in the purchase price for the Acquisition set forth in the Acquisition Agreement shall not be deemed to be material and adverse to the interests of the Lenders so long as (except in the case of any such decrease (x) pursuant to any purchase price adjustment provisions set forth in the Acquisition Agreement, or (y) that, excluding the amount of any such purchase price or similar adjustment, is less than fifteen percent (15%) of the total Acquisition consideration, which in the case of clauses (x) and/or (y) shall not be considered material and adverse to the interests of the Lenders) any such reduction is applied to (x) first reduce the Equity Contribution on a dollar-for-dollar basis until the Equity Contribution has been reduced to 25.0% of the Capitalization Amount and (y) thereafter, after giving effect to the application of the reduction of the purchase price in clause (x) above, reduce the Equity Contribution and the Initial Term Loans (or such other indebtedness as reasonably agreed between the Borrower and the Joint Lead Arrangers, provided, however, that the Joint Lead Arrangers shall be deemed to have approved the amounts of the Senior Notes that have been escrowed as permitted by the terms of the escrow arrangements) on a pro rata basis, (ii) any increase in the purchase price set forth in the Acquisition Agreement shall be deemed to be not material and adverse to the interests of the Lenders so long as such purchase price increase is not funded with additional Indebtedness of Holdings, the Borrower or its Restricted Subsidiaries, other than amounts permitted to be drawn under the Revolving Credit Facility on the Closing Date (it being understood and agreed that no working capital, purchase price or similar adjustment provisions set forth in the Acquisition Agreement shall constitute a reduction or increase in the purchase price), and (iii) any change to the definition of Material Adverse Effect (as defined in the Acquisition Agreement) shall be deemed materially adverse to the Lenders and shall require the consent of the Joint Lead Arranger and Joint Bookrunners (not to be unreasonably withheld, delayed, denied or conditioned).
(d) Financial Information. The Joint Lead Arranger and Joint Bookrunners shall have received copies of the Historical Financial Statements.
(e) Pro Forma Financial Information. The Joint Lead Arrangers and Joint Bookrunners shall have received an unaudited pro forma consolidated balance sheet and related unaudited pro forma consolidated statement of income of the Borrower and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recent consolidated balance sheet and related consolidated statement of income delivered pursuant to the preceding paragraph, prepared after giving effect to the Transactions as if the Transactions had occurred on such date (in the case of such pro forma balance sheet) or on the first day of such period (in the case of such pro forma statement of income), as applicable (which need not be prepared in compliance with Regulations S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting (including adjustments of the type contemplated by Financial Accounting Standards Board Accounting Standards Codification 805 Business Combinations (formerly SFAS 141R)).
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(f) Patriot Act, Know Your Customer Regulation. The Administrative Agent shall have received (at least three (3) Business Days prior to the Closing Date) all documentation and other information about Holdings and Borrower as has been reasonably requested in writing at least ten (10) Business Days prior to the Closing Date by the Administrative Agent or the Joint Lead Arrangers and Joint Bookrunners that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act.
(g) Specified Representations. The Specified Representations shall be true and correct in all material respects as of the Closing Date.
(h) Specified Acquisition Agreement Representations. The Specified Acquisition Agreement Representations shall be true and correct in all material respects as of the Closing Date (or, as of such earlier date if expressly made as of an earlier date), but only to the extent that Borrower (or any of its Affiliates) has the right (taking into account any applicable cure provisions) to terminate its obligations under the Acquisition Agreement or decline to consummate the Acquisition (in each case, in accordance with the terms of the Acquisition Agreement) as a result of a breach of such Specified Acquisition Agreement Representation.
(i) Equity Contribution and Subordination Agreement. (a) The Equity Contribution (as such amount may be modified pursuant to Section 6.1(c)) shall have been made prior to, or shall be made substantially concurrently with, the initial Borrowing hereunder and (b) the Administrative Agent shall have received the Subordination Agreement executed and delivered by a duly Authorized Officer of each party thereto.
(j) No Company Material Adverse Effect. Since March 25, 2017, there shall not have occurred and be continuing a Material Adverse Effect (as defined in the Acquisition Agreement).
(k) Closing Releases. The Closing Releases shall have been made or consummated prior to, or shall be made or consummated substantially concurrently with, the initial Borrowing hereunder.
(l) Solvency Certificate. On the Closing Date, the Administrative Agent shall have received a certificate from the Chief Financial Officer of the Borrower (or other Authorized Officer of the Borrower with similar responsibilities) to the effect that after giving effect to the consummation of the Transactions, the Borrower, together with its Subsidiaries on a consolidated basis, is Solvent.
(m) Legal Opinions Closing Date Certificate. The Administrative Agent (or its counsel) shall have received (x) an executed legal opinion, in customary form, from (A) Kirkland & Ellis LLP, as counsel to the U.S. Credit Parties, (B) Brownstein Hyatt Farber Schreck, LLP, as counsel to the U.S. Credit Parties incorporated in Nevada and (C) Loyens & Loeff N.V. as counsel to the Administrative Agent, and (y) a certificate of each Credit Party, dated the Closing Date, substantially in the form of Exhibit L, with appropriate insertions and modifications addressing local law requirements and circumstances, and relevant market practice, and attaching (i) a copy of the resolutions of the applicable governing body (including, where relevant, a meeting of shareholders) of each Credit Party (or a duly authorized committee thereof) authorizing (a) the execution, delivery, and performance of the Credit Documents (and any agreements relating thereto) to which it is a party and (b) in the case of the Borrower, the extensions of credit contemplated hereunder to be made on the Closing Date, (ii) the applicable Organizational Documents of each of each Credit Party and, to the extent applicable in the jurisdiction of organization of such Credit Party, a certificate as to its good standing as of a recent date from an applicable Governmental Authority in such jurisdiction of organization and (iii) signature and incumbency certificates (or other comparable documents evidencing the same) of the Authorized Officers of each Credit Party executing the Credit Documents to which it is a party. The Borrower hereby instructs and agrees to instruct the other Credit Parties to have such counsel deliver such legal opinions.
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(n) Fees and Expenses. All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable and documented out-of-pocket expenses previously agreed in writing to be paid on the Closing Date, in each case to the extent invoiced at least three (3) Business Days prior to the Closing Date, shall have been paid, or shall be paid substantially concurrently with, the initial Borrowings hereunder (which amounts may, at the Borrower’s option, be offset against the proceeds of the Initial Term Loans).
(o) Notice of Borrowing. The Administrative Agent (or its counsel) shall have received a Notice of Borrowing with respect to the Initial Term Loans and any Revolving Credit Loans to be made on the Closing Date meeting the requirements of Section 2.3.
For purposes of determining compliance with the conditions specified in this Section 6.1 on the Closing Date, each Lender that has funded a Loan under this Agreement on such date 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.
SECTION 7
Conditions Precedent to All Credit Events after the Closing Date
The agreement of each Lender to make any Revolving Loan requested to be made by it on any date after the Closing Date (excluding Revolving Loans required to be made by the Revolving Lenders in respect of Unpaid Drawings pursuant to Sections 3.3 and 3.4, any Incremental Revolving Credit Loan made to finance a Limited Condition Transaction, in accordance with Section 2.14 and, for the avoidance of doubt, any conversion or continuation of any Loan pursuant to Section 2.6) and the obligation of the Letter of Credit Issuer to issue Letters of Credit on any date after the Closing Date is subject to the satisfaction (or waiver) by the Administrative Agent or Letter of Credit Issuer, as applicable, of the following conditions precedent:
7.1 No Default; Representations and Warranties. At the time of each Credit Event and also after giving effect thereto (other than any Credit Event on the Closing Date) (a) no Default or Event of Default shall have occurred and be continuing and (b) all representations and warranties made by any Credit Party contained herein or in the other Credit Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Credit Event (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date).
7.2 Notice of Borrowing; Letter of Credit Request.
(a) Prior to the making of each Revolving Loan (other than any Revolving Loan made pursuant to Section 3.4(a)), the Administrative Agent shall have received a Notice of Borrowing meeting the requirements of Section 2.3.
(b) Prior to the issuance of each Letter of Credit, the Administrative Agent and the Letter of Credit Issuer shall have received a Letter of Credit Request meeting the requirements of Section 3.2(a).
The acceptance of the benefits of each Credit Event on any date after the Closing Date shall constitute a representation and warranty by each Credit Party to each of the Lenders that all the applicable conditions specified in Section 7 above have been satisfied as of that time.
SECTION 8
Representations and Warranties
In order to induce the Lenders to enter into this Agreement, to make the Loans and issue or participate in Letters of Credit as provided for herein, the Borrower makes the following representations and warranties to the Lenders, all of which shall survive the execution and delivery of this Agreement and the making of the Loans and the issuance of the Letters of Credit (it being understood that the following representations and warranties shall be deemed made with respect to any Foreign Subsidiary only to the extent relevant under applicable law); provided that, on the Closing Date, the only representations and warranties made under this Section 8 shall be the Specified Representations:
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8.1 Corporate Status. Each Credit Party (a) is a duly organized and validly existing corporation, limited liability company or other entity in good standing (if applicable) under the laws of the jurisdiction of its organization and has the corporate, limited liability company or other organizational power and authority to own its property and assets and to transact the business in which it is engaged and (b) has duly qualified and is authorized to do business and is in good standing (if applicable) in all jurisdictions where it is required to be so qualified, except, in each case, where the failure to be so qualified, authorized and in good standing or to have such power would not reasonably be expected to result in a Material Adverse Effect.
8.2 Corporate Power and Authority. Each Credit Party has the corporate or other organizational power and authority to execute, deliver and carry out the terms and provisions of the Credit Documents to which it is a party and has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of the Credit Documents to which it is a party. Each Credit Party has duly executed and delivered each Credit Document to which it is a party and each such Credit Document constitutes the legal, valid, and binding obligation of such Credit Party enforceable in accordance with its terms, subject to (i) applicable bankruptcy, concurso mercantile, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law, (ii) the need for filings and registrations necessary to create or perfect the Liens on the Collateral granted by the Credit Parties in favor of the Secured Parties and (iii) with respect to enforceability against Foreign Subsidiaries or under foreign laws, and the effect of foreign laws, rules and regulations as they relate to Foreign Security Documents.
8.3 No Violation. Subject to any Legal Reservation, neither the execution, delivery or performance by any Credit Party of the Credit Documents to which it is a party nor compliance with the terms and provisions thereof will (a) contravene any applicable provision of any law, statute, rule, regulation, order, writ, injunction or decree of any court or governmental instrumentality, other than any such contravention that would not reasonably be expected to result in a Material Adverse Effect, (b) result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of any Lien upon any of the property or assets of such Credit Party or any of the Restricted Subsidiaries (other than Liens created under the Credit Documents or Permitted Liens) pursuant to, the terms of any material Contractual Requirement of such Credit Party for borrowed money or any of the Restricted Subsidiaries, other than any such breach, default or Lien that would not reasonably be expected to result in a Material Adverse Effect or (c) violate any provision of the certificate of incorporation, by-laws, articles or other Organizational Documents of such Credit Party in any material respect.
8.4 Litigation. Except as set forth on Schedule 8.4, there are no actions, suits or proceedings pending or, to the knowledge of the Borrower, threatened in writing against the Borrower or any of the Restricted Subsidiaries that have a reasonable likelihood of adverse determination and such determination would reasonably be expected to result in a Material Adverse Effect.
8.5 Margin Regulations. Neither the making of any Loan hereunder nor the use of the proceeds thereof will violate the provisions of Regulation T, U or X of the Board.
8.6 Governmental Approvals. The execution, delivery and performance of each Credit Document by any Credit Party does not require any material consent or approval of, registration or filing with, or other action by, any Governmental Authority, except for (i) such as have been obtained or made and are in full force and effect (except to the extent not required to be obtained or made or be in full force and effect pursuant to the Agreed Security Principles), (ii) filings, consents, approvals, registrations and recordings in respect of the Liens created pursuant to the Security Documents (and to release existing Liens), and (iii) such licenses, approvals, authorizations, registrations, filings, consents or other actions the failure of which to obtain or make would not reasonably be expected to result in a Material Adverse Effect and, in the case of each Foreign Credit Party and any Foreign Security Document, subject to the Legal Reservations and Perfection Requirements.
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8.7 Investment Company Act. No Credit Party is required to be registered as an “investment company” under the Investment Company Act of 1940.
8.8 True and Complete Disclosure.
(a) As of the Closing Date, none of the written factual information and written data (taken as a whole) concerning the Borrower, the Restricted Subsidiaries and their respective businesses heretofore or contemporaneously furnished by or on behalf of the Borrower or any of the Restricted Subsidiaries or any of their respective authorized representatives, to the Administrative Agent, the Joint Lead Arrangers and Joint Bookrunners, and/or any Lender on or before the Closing Date (including all such written information and data contained in (i) the Confidential Information Memorandum (as updated prior to the Closing Date) concerning Holdings, the Borrower and its Subsidiaries and (ii) the Credit Documents) for purposes of or in connection with this Agreement or any transaction contemplated herein contained any untrue statement of any material fact or omitted to state any material fact necessary to make such information and data (taken as a whole) not materially misleading at such time in light of the circumstances under which such information or data was furnished (after giving effect to all supplements and updates from time to time), it being understood and agreed that for purposes of this Section 8.8(a), such factual information and data shall not include pro forma financial information, projections, estimates (including financial estimates, forecasts, and other forward-looking information) or other forward looking information or information of a general economic or general industry nature (collectively, “Forward-Looking Information”).
(b) The Forward-Looking Information contained in the Confidential Information Memorandum was prepared in good faith based upon assumptions believed by such Persons to be reasonable at the time of delivery thereof, it being recognized by the Lenders that all Forward-Looking Information as to future events are not to be viewed as facts or a guarantee of performance, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Borrower and its Subsidiaries, that no assurance can be given that any particular Forward-Looking Information will be realized and that actual results during the period or periods covered by any such Forward-Looking Information may differ from the projected results and such differences may be material.
8.9 Financial Condition; Financial Statements.
(a) The Historical Financial Statements present fairly, in all material respects, the consolidated financial position of the Borrower and its Subsidiaries’, in each case, at the respective dates thereof and their consolidated results of operations for the respective periods covered thereby in accordance with GAAP in all material respects, except as otherwise expressly noted therein (subject, in the case of the any unaudited Historical Financial Statements to changes resulting from normal year-end adjustments and the absence of footnotes).
(b) There has been no Material Adverse Effect since the Closing Date.
Each Lender and the Administrative Agent hereby acknowledges and agrees that the Borrower and its Subsidiaries may be required to restate historical financial statements as the result of the implementation of changes in GAAP or IFRS, or the respective interpretation thereof, and that such restatements will not result in a Default or an Event of Default under the Credit Documents.
8.10 Compliance with Laws. Subject to any Legal Reservation, each Credit Party is in compliance with all Requirements of Law applicable to it or its property, except where the failure to be so in compliance would not reasonably be expected to result in a Material Adverse Effect.
8.11 Tax Matters. Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect: (a) the Borrower and each of the Restricted Subsidiaries has filed all Tax returns required to be filed by it and has timely paid all Taxes payable by it (whether or not shown on a Tax return and including in its capacity as withholding agent) that have become due, other than those being contested in good faith and by proper actions if it has maintained adequate reserves (in the good faith judgment of management of the Borrower or such Restricted Subsidiary, as applicable) with respect thereto to the extent required by GAAP; and (b) the Borrower and each of the Restricted Subsidiaries has provided adequate reserves (in the good faith judgment of management of the Borrower or such Restricted Subsidiary, as applicable) in accordance with GAAP for the payment of all Taxes not yet due and payable.
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8.12 Compliance with ERISA.
(a) Except as would not reasonably be expected to have a Material Adverse Effect, each Credit Party has complied, as applicable, with ERISA, the Code, and other Requirements of Law with respect to each Plan, Foreign Plan and Foreign Benefit Arrangement.
(b) Except as would not reasonably be expected to have a Material Adverse Effect, no ERISA Event has occurred or is reasonably expected to occur.
(c) Except as would not reasonably be expected to have a Material Adverse Effect, no Foreign Plan Event has occurred or is reasonably expected to occur.
8.13 Subsidiaries. Schedule 8.13 lists each Subsidiary of Holdings and the Borrower, in each case, existing on the Closing Date, after giving effect to the Transactions.
8.14 Intellectual Property. Each of the Borrower and the Restricted Subsidiaries owns or has the right to use all Intellectual Property that is used in or otherwise necessary for the operation of their respective businesses as currently conducted, except where the failure of the foregoing would not reasonably be expected to have a Material Adverse Effect. The operation of their respective businesses by the Borrower and the Restricted Subsidiaries does not infringe upon, misappropriate, violate or otherwise conflict with the Intellectual Property of any third party, except, in each case, as would not reasonably be expected to have a Material Adverse Effect.
8.15 Environmental Laws.
(a) Except as would not reasonably be expected to have a Material Adverse Effect: (i) each of the Borrower and the Restricted Subsidiaries and their respective operations and properties are in compliance with all applicable Environmental Laws and has obtained and is in compliance with all licenses, permits or approvals required thereunder; (ii) none of the Borrower or any Restricted Subsidiary has received written notice of any Environmental Claim; (iii) none of the Borrower or any Restricted Subsidiary is conducting any investigation, removal, remedial or other corrective action pursuant to any Environmental Law at any location; (iv) to the knowledge of the Borrower, no underground or above ground storage tank or related piping, or any impoundment or other disposal area containing Hazardous Materials is located at, on or under any Real Estate currently owned or leased by the Borrower or any of the Restricted Subsidiaries; and (v) to the knowledge of any Borrower or any Restricted Subsidiary, there are no facts, circumstances, conditions or occurrences which would expect to result in a liability under Environmental Laws of the Borrower or any Restricted Subsidiary.
(b) Except as set forth on Schedule 8.15, none of the Borrower or any of the Restricted Subsidiaries has treated, stored, transported, Released or arranged for disposal or transport for disposal or treatment of Hazardous Materials at, on, under or from any currently or, formerly owned or operated property nor, to the knowledge of the Borrower, has there been any other Release of Hazardous Materials at, on, under or from any such properties, in each case, in a manner that would reasonably be expected to have a Material Adverse Effect.
8.16 Properties.
(a) Each of the Borrower and the Restricted Subsidiaries has good and valid record title to, valid leasehold interests in, or rights to use, all properties that are necessary for the ordinary operation of their respective businesses as currently conducted, free and clear of all Liens (other than any Liens permitted by this Agreement) except where the failure to have such title, interest or rights would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, and no Mortgage, if any, encumbers improved Real Estate that is located in an area that has been identified by the Secretary of Housing and Urban Development as an area having special flood hazards within the meaning of the National Flood Insurance Act of 1968 unless flood insurance available under such Act has been obtained in accordance with Section 9.3(b).
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(b) Set forth on Schedule 1.1(a) is a list of each real property located in the United States owned in fee by any Credit Party as of the Closing Date having a Fair Market Value in excess of $15,000,000, if any.
8.17 Solvency. On the Closing Date, after giving effect to the Transactions (including the Borrowing of any Revolving Credit Loans and issuance of any Senior Notes on or prior to the Closing Date), immediately following the making of the Initial Term Loans and after giving effect to the application of the proceeds of such Initial Term Loans and such Revolving Credit Loans and Senior Notes, the Borrower, on a consolidated basis with the Subsidiaries, will be Solvent.
8.18 Patriot Act; Anti-Terrorism Laws. On the Closing Date, no proceeds of the Loans will be used by Holdings, the Borrower or their respective Subsidiaries (a) in violation of United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 and other similar applicable anti-corruption legislation in other applicable jurisdictions, (b) in violation of the Patriot Act or (c) in violation of applicable economic sanctions laws related to financing the activities of any person currently subject to any U.S. sanctions administered by OFAC or any equivalent European Union or United Kingdom measure, including sanctions imposed against certain states, organizations and individuals under the European Union’s Common Foreign & Security Policy, in each case, in any material respect, provided that this representation shall, to the extent that it is given or relates to any Subsidiary which is subject to the laws of any member state of the European Union, be limited so not to give rise to any breach of any anti-sanctions, anti-boycott or similar laws (including, but not limited to, the German Foreign Trade Administrative Order (Außenwirtschaftsverordnung) and the Regulation (EC) No 2271/96).
8.19 Security Interest in Collateral. Subject to the terms of the proviso contained in Section 6.1(b), the Agreed Security Principles and in respect of the Foreign Credit Parties and Foreign Security Documents the Legal Reservations and the Perfection Requirements, the provisions of this Agreement and the other Credit Documents (taken as a whole) create legal and valid Liens on all of the Collateral in favor of the Collateral Agent, for the benefit of itself and the other Secured Parties (provided that, with respect to the creation and perfection of security interests with respect to Capital Stock and Stock Equivalents of Foreign Subsidiaries (other than a Foreign Subsidiary that becomes a Guarantor pursuant to the definition of “Guarantor” and to the extent local law security documents are delivered pursuant to Section 9.11), only to the extent the creation and perfection of such obligation is governed by the Uniform Commercial Code), and upon the making of such filings and taking of such other actions required to be taken hereby or by the applicable Credit Documents (including the filing of appropriate Uniform Commercial Code financing statements with the office of the Secretary of State of the state of organization of each Credit Party or similar filings under other applicable laws, the filing of appropriate notices with the U.S. Patent and Trademark Office and the U.S. Copyright Office or similar filings under other applicable laws, and the proper recordation of Mortgages and fixture filings with respect to any Mortgaged Property, in each case in favor of the Collateral Agent for the benefit of the Secured Parties and the delivery to the Collateral Agent of any stock or equivalent certificates or promissory notes required to be delivered pursuant to the applicable Credit Documents (including as required by and subject to the Agreed Security Principles)), such Liens constitute perfected Liens on the Collateral of the type required by the Security Documents securing the Obligations to the extent such Liens may be perfected by such filings and the taking of such other actions. Notwithstanding anything herein (including this Section 8.19) or in any other Credit Document to the contrary, neither the Borrower nor any Credit Party makes any representation or warranty as to (A) with respect to any Foreign Credit Party the pledge or creation of any security interest, or the effects of perfection or non-perfection, the priority or enforceability of any pledge of security interest to the extent such pledge, security interest, perfection or priority is not required pursuant to the Agreed Security Principles, or (B) on the Closing Date and until required pursuant to Section 9.11, 9.12, 9.14 or 6.1(b), the pledge or creation of any security interest, or the effect of perfection or non-perfection, the priority or enforceability of any pledge or security interest to the extent not required to be given on the Closing Date).
8.20 Anti-Terrorism / Anti-Corruption Laws.
(a) To the extent applicable, each of Holdings, the Borrower and each Restricted Subsidiary is in compliance, in all material respects, with (i) the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar applicable anti-corruption legislation in other applicable jurisdictions and (ii) the Trading with the Enemy Act and each of the foreign assets control regulations of the United States Treasury Department (31 CFR Subtitle B, Chapter V) and any other enabling legislation or executive order relating thereto.
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(b) No part of the proceeds of the Loans will be used by Holdings, the Borrower or any of the Restricted Subsidiaries, directly or indirectly for any payments to any governmental official or employee, political party, official of a political party, or anyone else acting in an official capacity, in order to obtain, retain or direct business, or to obtain any improper advantage, in violation in any applicable material respect of the United States Foreign Corrupt Practices Act of 1977.
(c) None of Holdings, the Borrower or any Restricted Subsidiary nor, to the knowledge of the Borrower, any director, officer or employee of Holdings, the Borrower or any Restricted Subsidiary, (i) is a Person on the list of “Specially Designated Nationals and Blocked Persons” or (ii) is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).
(d) Any representation given under paragraphs (a) to (c) (inclusive) shall, to the extent that it is given or relates to any Subsidiary which is subject to the laws of any member state of the European Union, be limited so not to give rise to any breach of any anti-sanctions, anti-boycott or similar laws (including, but not limited to, the German Foreign Trade Administrative Order (Außenwirtschaftsverordnung) and the Regulation (EC) No 2271/96).
8.21 Use of Proceeds. The proceeds of the Initial Term Loans and the Revolving Credit Loans will be used in accordance with Section 9.13; provided that the proceeds of any Incremental Loans may be used for any purpose agreed to by the lenders thereof and otherwise not prohibited by this Agreement.
8.22 Labor Matters. As of the Closing Date, there are no strikes, work stoppages or material labor disputes against the Borrower or any Restricted Subsidiary pending or, to the actual knowledge of the Borrower threatened in writing, in each case, that would reasonably be expected to have a Material Adverse Effect.
SECTION 9
Affirmative Covenants
The Borrower hereby covenants and agrees that on the Closing Date (immediately after consummation of the Acquisition) and thereafter, until the Commitments, each Letter of Credit has terminated or been Cash Collateralized or backstopped in accordance with the terms of this Agreement and the Loans and Unpaid Drawings, together with interest, Fees and all other Obligations incurred hereunder (other than contingent obligations, Secured Hedge Obligations, Secured Bank Product Obligations and Secured Cash Management Obligations and Letters of Credit Cash Collateralized or backstopped in accordance with the terms of this Agreement), are paid in full:
9.1 Information Covenants. The Borrower will furnish to the Administrative Agent (which shall promptly make such information available to the Lenders in accordance with its customary practice):
(a) Annual Financial Statements. On or before the date that is 120 days (or, solely for the fiscal year ending December 31, 2017, 150 days) after the end of each fiscal year of the Borrower, the consolidated balance sheets of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of operations and cash flows for such fiscal year, setting forth, in the case of such financial statements delivered for fiscal years of the Borrower ending December 31, 2019 and thereafter comparative consolidated and/or combined figures for the preceding fiscal year (to the extent such comparative presentation is permitted under GAAP), all in reasonable detail and prepared in accordance in all material respects with GAAP, and, in each case, certified by independent certified public accountants of recognized national standing or such other independent certified public accountants approved by the Administrative Agent in its reasonable judgment whose opinion shall not contain a going concern qualification or exception (except to the extent such qualification or exception is (i) a result of the impending maturity of any Credit Facility or any other Indebtedness of the Borrower or any Subsidiary, an actual or a prospective or actual Default under Section 10.9 or any other financial maintenance covenant in any agreement governing Indebtedness of the Borrower or any Subsidiary; provided, that if at the end of any applicable fiscal year there are any Unrestricted Subsidiaries, the Borrower shall also furnish a reasonably detailed presentation, either in the annual financial statements delivered pursuant to this clause (a) or in the footnotes thereto of the financial condition and results of operations of the Borrower and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries or (ii) the activities, operations, financial result, assets or liabilities of any Unrestricted Subsidiaries).
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(b) Quarterly Financial Statements. Commencing with the fiscal quarter ending September 30, 2017, on or before the date that is 60 days after the end of each of the first three quarterly accounting periods in each fiscal year of the Borrower (or, solely for (A) the fiscal quarters ending September 30, 2017 and March 31, 2018, 120 days and (B) the fiscal quarter ending June 30, 2018, 90 days), (i) the consolidated balance sheets of the Borrower and its Subsidiaries as at the end of such quarterly period, (ii) the related consolidated statements of operations for such quarterly accounting period and for the elapsed portion of the fiscal year ended after the Closing Date with the last day of such quarterly period and (iii) the related consolidated statement of cash flows for the elapsed portion of the fiscal year ended with the last day of such quarterly period, and setting forth, in the case of such financial statements delivered after one full fiscal year has passed since the Closing Date, comparative consolidated and/or combined figures for the corresponding periods in the prior fiscal year (to the extent such comparative presentation is permitted under GAAP) or, in the case of such consolidated balance sheet, for the last day of the corresponding period in the prior fiscal year, all of which shall be certified by an Authorized Officer of the Borrower as fairly presenting in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance in all material respects with GAAP (except as noted therein), subject to changes resulting from normal year-end adjustments and the absence of footnotes.
(c) Budgets. Prior to any Qualifying IPO, within 90 days after the commencement of each fiscal year of the Borrower beginning with the fiscal year ending December 31, 2018, a budget of the Borrower in reasonable detail on a quarterly basis for such fiscal year prepared by management of the Borrower, setting forth the principal assumptions upon which such budget is based (collectively, the “Projections”), which Projections shall in each case be accompanied by a certificate of an Authorized Officer of the Borrower stating that such Projections have been prepared in good faith on the basis of the assumptions stated therein, which assumptions were based on good faith estimates and assumptions believed by management of the Borrower to be reasonable at the time of preparation and delivery of such Projections, it being understood and agreed that such Projections and assumptions as to future events are not to be viewed as facts or a guarantee of performance, are subject to significant uncertainties and contingencies, many of which are beyond the control of the Borrower and its Subsidiaries, and that actual results during the period or periods covered by any such Projections may differ from the projected results and such differences may be material.
(d) Officer’s Certificates. Not later than five Business Days after the delivery of the financial statements provided for in Sections 9.1(a) and (b), a certificate of an Authorized Officer of the Borrower to the effect that no Event of Default exists or, if any Event of Default does exist, specifying the nature and extent thereof, as the case may be, which certificate shall set forth (i) a specification of any change in the identity of the Restricted Subsidiaries and Unrestricted Subsidiaries as at the end of such fiscal year or period, as the case may be, from the Restricted Subsidiaries and Unrestricted Subsidiaries, respectively, identified to the Administrative Agent on the Closing Date, the date of the most recent certificate delivered pursuant to this clause (d) or the most recent disclosure of any such information to the Administrative Agent, as the case may be, and (ii) commencing with the Compliance Certificate delivered for the first full fiscal quarter of the Borrower ending after the Closing Date pursuant to this Section 9.1(d), a reasonably detailed calculation of the First Lien Net Leverage Ratio and Total Net Leverage Ratio as of the last day of the period covered by such Compliance Certificate. At the time of the delivery of the financial statements provided for in Section 9.1(a), a certificate of an Authorized Officer of the Borrower setting forth changes to the legal name, jurisdiction of formation, type of entity and organizational number (or equivalent) (to the extent such Person is organized in a jurisdiction where an organizational identification number is required to be included in a Uniform Commercial Code financing statement (or equivalent document)), in each case for each Credit Party or confirming that there has been no change in such information since the Closing Date, the date of the most recent certificate delivered pursuant to this clause (d) or the most recent disclosure of any such information to the Administrative Agent, as the case may be.
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(e) Notice of Events of Default, Litigation or ERISA Event. Promptly after an Authorized Officer of the Borrower or any Restricted Subsidiary obtains knowledge thereof, notice of (i) the occurrence and continuance of any event that constitutes a an Event of Default, which notice shall specify the nature thereof, the period of existence thereof and what action the Borrower proposes to take with respect thereto, (ii) any litigation or governmental proceeding pending against the Borrower or any of the Restricted Subsidiaries that has a reasonable likelihood of adverse determination and such adverse determination would reasonably be expected to result in a Material Adverse Effect, and (iii) the occurrence of any ERISA Event that would reasonably be expected to result in a Material Adverse Effect.
(f) Other Information. Promptly upon filing thereof, copies of any filings (including on Form 10-K, 10-Q or 8-K) or registration statements with, and reports to, the SEC or any analogous Governmental Authority in any relevant jurisdiction by the Borrower or any of the Restricted Subsidiaries (other than amendments to any registration statement (to the extent such registration statement, in the form it becomes effective, is delivered to the Administrative Agent), exhibits to any registration statement and, if applicable, any registration statements on Form S-8) and copies of all financial statements, notices of default, and reports that the Borrower or any of the Restricted Subsidiaries shall send or otherwise make available to the holders of any publicly issued debt in excess of the greater of (x) $50,000,000 and (y) 13.0% of Consolidated EBITDA for the most reasonably ended Test Period (calculated on a pro forma basis), which shall include securities issued pursuant to a Rule 144A offering (including to holders of the Senior Notes) of the Borrower or any of the Restricted Subsidiaries, in their capacity as such holders (in each case to the extent not theretofore delivered to the Administrative Agent pursuant to this Agreement) and, with reasonable promptness, such other information (financial or otherwise) as the Administrative Agent on its own behalf or on behalf of any Lender (acting through the Administrative Agent) may reasonably request in writing from time to time; provided, that none of the Borrower nor any Restricted Subsidiary will be required to disclose or permit the inspection or discussion of, any document, information or other matter (unless such information is otherwise in such filing or other information sent or made available to the holders of any publicly issued debt (including to holders of the Senior Notes) in their capacity as such holders) (i) that constitutes non-registered Intellectual Property, non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or their respective contractors) is prohibited (or would otherwise cause a breach of default thereunder) by law or any binding agreement or (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product.
Notwithstanding the foregoing, the obligations in clauses (a) and (b) of this Section 9.1 may be satisfied with respect to financial information of the Borrower and the Restricted Subsidiaries by furnishing (A) the applicable financial statements of any direct or indirect parent of the Borrower or (B) the Forms 8-K, 10-K or 10-Q, as applicable, of the Borrower or any direct or indirect parent of the Borrower, as applicable, filed with the SEC; provided, that, with respect to each of subclauses (A) and (B) of this Section 9.1, to the extent such information relates to a direct or indirect parent of the Borrower, such information is accompanied by unaudited consolidating or other information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand.
Documents required to be delivered pursuant to clauses (a), (b), (c), (e) and (f) of this Section 9.1 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the earliest date on which (i) the Borrower posts such documents, or provides a link thereto, on the Borrower’s website on the Internet; (ii) such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent), or (iii) such financial statements and/or other documents are posted on the SEC’s website on the internet at www.sec.gov; provided, that, (A) the Borrower shall, at the request of the Administrative Agent, continue to deliver copies (which delivery may be by electronic transmission) of such documents to the Administrative Agent and (B) the Borrower shall notify (which notification may be by facsimile or electronic transmission) the Administrative Agent of the posting of any such documents on any website described in this paragraph. Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such documents from the Administrative Agent and maintaining its copies of such documents.
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9.2 Books, Records, and Inspections.
(a) The Borrower will, and will cause each Restricted Subsidiary to, permit officers and designated representatives of the Administrative Agent to visit and inspect any of the properties or assets of the Borrower and any such Restricted Subsidiary in whomsoever’s possession to the extent that it is within such party’s control to permit such inspection, and to examine the books and records of the Borrower and any such Restricted Subsidiary and discuss the affairs, finances and accounts of the Borrower and any such Restricted Subsidiary with, and be advised as to the same by, its and their officers and independent accountants, all at such reasonable times and intervals, and reasonable advance notice, and to such reasonable extent as the Administrative Agent may request (and subject, in the case of any such meetings or advice from such independent accountants, to such accountants’ customary policies and procedures); provided that, excluding any such visits and inspections during the continuation of an Event of Default, (1) only the Administrative Agent on behalf of the Required Lenders may exercise rights of the Administrative Agent and the Lenders under this Section 9.2, (2) the Administrative Agent shall not exercise such rights more than one time in any calendar year, which such visit will be at the Borrower’s reasonable expense, and (3) notwithstanding anything to the contrary in this Section 9.2, none of the Borrower or any of the Restricted Subsidiaries will be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter that (x) constitutes non-registered Intellectual Property, non-financial trade secrets or non-financial proprietary information, (y) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by (or otherwise constitutes a breach or violation of) law or any binding agreement or (z) is subject to attorney-client or similar privilege or constitutes attorney work product; provided, further, that when an Event of Default exists, the Administrative Agent (or any of its respective representatives or independent contractors) may do any of the foregoing at the reasonable expense of the Borrower at any time during normal business hours and upon reasonable advance notice. The Administrative Agent shall give the Borrower and its advisors the opportunity to participate in any discussions with the Borrower’s independent accountants.
(b) The Borrower will, and will cause each Restricted Subsidiary to, maintain proper books of record and account, in which entries that are full, true and correct in all material respects and are in conformity, in all material respects, with GAAP shall be made of all material financial transactions and matters involving the assets of the business of the Borrower or such Restricted Subsidiary, as the case may be (it being understood and agreed that any Restricted Subsidiary may maintain its individual books and records in conformity with local standards or customs and that such maintenance shall not constitute a breach of the representations, warranties or covenants hereunder).
9.3 Maintenance of Insurance.
(a) The Borrower will, and will cause each Material Subsidiary to, at all times maintain in full force and effect, pursuant to self-insurance arrangements or with insurance companies that the Borrower believes (in the good faith judgment of the management of the Borrower) are financially sound and responsible at the time the relevant coverage is placed or renewed, insurance in at least such amounts (after giving effect to any self-insurance which the Borrower believes (in the good faith judgment of management of the Borrower) is reasonable and prudent in light of the size, nature and location of its business and the availability of insurance on a cost-effective basis) and against at least such risks (and with such risk retentions) as the Borrower believes (in the good faith judgment of management of the Borrower) is reasonable and prudent in light of the size and nature of its business and the availability of insurance on a cost-effective basis; and will furnish to the Administrative Agent, promptly following written request from the Administrative Agent, information presented in reasonable detail as to the insurance so carried (provided that, for so long as no Event of Default has occurred and is continuing, the Administrative Agent shall be entitled to make such request only once in any calendar year) and (b) with respect to any Mortgaged Property, the Borrower will obtain flood insurance in such total amount as may reasonably be required by the Collateral Agent, if at any time the area in which any improvements located on any Mortgaged Property is designated a “special flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), and otherwise comply with the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973. Each such policy of insurance shall (i) in the case of each general liability and umbrella liability insurance policy, name the Collateral Agent, on behalf of the Secured Parties as an additional insured thereunder as its interests may appear and (ii) in the case of each casualty insurance policy, contain a loss payable clause or endorsement that names the Collateral Agent, on behalf of the Secured Parties as a loss payee thereunder; provided, that notwithstanding any provision hereof to the contrary Borrower and its Subsidiaries shall not be deemed to not be in compliance with this Section 9.3 until the date that is at least ninety (90) days after the Closing Date (as such deadline may be extended by the Administrative Agent, in its sole discretion).
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9.4 Payment of Taxes. The Borrower will pay and discharge, and will cause each of the Restricted Subsidiaries to pay and discharge, all Taxes imposed upon it (including in its capacity as a withholding agent) or upon its income or profits, or upon any properties belonging to it, prior to the date on which penalties attach thereto, and all lawful claims in respect of any Taxes imposed, assessed or levied that, if unpaid, would reasonably be expected to become a Lien upon any properties of the Borrower or any of the Restricted Subsidiaries; provided that neither the Borrower nor any of the Restricted Subsidiaries shall be required to pay or discharge any such Tax (x) that is being contested in good faith and by appropriate actions if it has maintained adequate reserves (in the good faith judgment of management of the Borrower) with respect thereto to the extent required by GAAP or (y) the failure to pay or discharge, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
9.5 Preservation of Existence; Consolidated Corporate Franchises. The Borrower will, and will cause each Material Subsidiary to, take all actions necessary (a) to preserve and keep in full force and effect its existence, organizational rights and authority and (b) to maintain its rights, privileges (including its good standing (if applicable)), permits, licenses and franchises necessary in the normal conduct of its business, in each case, except to the extent that the failure to do so would not reasonably be expected to have a Material Adverse Effect; provided, however, that the Borrower and its Subsidiaries may consummate any transaction otherwise permitted hereunder, including pursuant to Permitted Investments, transactions permitted by the definition of “Asset Sale” and Sections 10.2, 10.3, 10.4 or 10.5.
9.6 Compliance with Statutes, Regulations, Etc. The Borrower will, and will cause each Restricted Subsidiary to, comply with all laws, rules, regulations and orders of any Governmental Authority (including all Environmental Laws) applicable to it or its operations at or use of any property (owned or leased), except where the failure to do so would not reasonably be expected to have a Material Adverse Effect; provided that this Section 9.6 shall not apply to laws related to Taxes.
9.7 Designation of Unrestricted Subsidiaries.
(a) The Borrower shall only designate any Subsidiary of the Borrower (including any existing Subsidiary and any newly acquired or newly formed Subsidiary) to be an unrestricted subsidiary (such Subsidiary, in addition to each Subsidiary of such Subsidiary, after giving effect to such designation, an “Unrestricted Subsidiary”) if (i) such Subsidiary or any of its Subsidiaries does not own any Equity Interests of the Borrower or any Subsidiary of the Borrower (other than any Subsidiary of the Subsidiary to be so designated or any Unrestricted Subsidiary) and (ii) that, immediately after giving effect to such designation no Event of Default shall have occurred and be continuing or would result therefrom.
(b) The Borrower may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that, immediately after giving effect to such designation no Event of Default shall have occurred and be continuing.
(c) Any such designation by the Borrower shall be notified by the Borrower to the Administrative Agent by promptly delivering to the Administrative Agent a certificate of an Authorized Officer of the Borrower certifying that such designation complied with the foregoing provisions.
(d) Any Subsidiary of an Unrestricted Subsidiary shall also be an Unrestricted Subsidiary.
(e) For purposes of designating any Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by the Borrower and the Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so designated will be deemed to be an Investment in an amount determined as set forth in the last sentence of the definition of Investment. Such designation will be permitted only if a Restricted Payment in such amount would be permitted at such time, whether pursuant to Section 10.5(a) or under clauses (7), (10), (11) or (14) of Section 10.5(b), or pursuant to the definition of Permitted Investments, and if such Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. Unrestricted Subsidiaries will not be subject to any of the restrictive covenants set forth in this Agreement.
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9.8 Maintenance of Properties. The Borrower will, and will cause each of the Restricted Subsidiaries to, keep and maintain all tangible property material to the conduct of its business in good working order and condition, ordinary wear and tear, casualty, and condemnation excepted, except to the extent that the failure to do so would not reasonably be expected to have a Material Adverse Effect; provided, however, that the Borrower and its Subsidiaries may consummate any transaction otherwise permitted hereunder, including pursuant to Permitted Investments, transactions permitted by the definition of “Asset Sale” and Sections 10.2, 10.3, 10.4 or 10.5.
9.9 Changes to Fiscal Year. The Borrower will not change its fiscal year to end on a date inconsistent with past practice; provided, however, that the Borrower may, upon written notice from the Borrower to the Administrative Agent and upon Administrative Agent’s consent (not to be unreasonably withheld, conditioned, denied or delayed), change the financial reporting convention specified above to any other financial reporting convention reasonably acceptable to the Administrative Agent, in which case the Borrower and the Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to this Agreement that are necessary in order to reflect such change in financial reporting.
9.10 Affiliate Transactions. The Borrower will not conduct, and will not permit the Restricted Subsidiaries to conduct, any transactions (or series of related transactions) with an aggregate value in excess of $10,000,000 with any of the Borrower’s Affiliates (other than the Borrower and the Restricted Subsidiaries or any entity that becomes a Restricted Subsidiary as a result of such transaction), unless such transaction is on terms (taken as a whole) that are not materially less favorable to the Borrower or such Restricted Subsidiary than those that would have been obtained in a comparable arm’s-length transaction at such time (as determined in good faith by the Borrower) with a Person that is not an Affiliate; provided, that the foregoing restrictions shall not apply to:
(a) (i) the payment of management, monitoring, consulting, advisory and other fees (including termination and transaction fees) to the Sponsors pursuant to the Sponsor Management Agreement (plus any unpaid management, monitoring, consulting, advisory and other fees (including transaction and termination fees) accrued in any prior year); provided, that the annual management fee payable under this clause (a)(i) shall accrue but may not be paid during the continuance of an Event of Default under Section 11.1 or Section 11.5 and may be paid upon cure, waiver or cessation of such Event of Default, (ii) customary payments by the Borrower or any of the Restricted Subsidiaries to the Sponsors made for any financial advisory, financing, underwriting or placement services or in respect of other investment banking activities (including in connection with acquisitions or divestitures), which payments are approved by the majority of the members of the board of directors (or analogous governing body) or a majority of the disinterested members of the board of directors (or analogous governing body) of the Borrower in good faith, and (iii) indemnification and reimbursement of expenses pursuant to the Sponsor Management Agreement (plus any unpaid indemnities and expenses accrued in any prior year),
(b) (i) Restricted Payments permitted by Section 10.5, (ii) Investments permitted by the definition of Permitted Investments, and (iii) other transactions permitted under Sections 10.1 through 10.8 (other than solely by reference to this Section 9.10),
(c) the consummation of the Transactions and the payment of fees and expenses (including the Transaction Expenses) related to the Transactions,
(d) the issuance and transfer of Qualified Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries not otherwise prohibited by the Credit Documents,
(e) loans, advances and other transactions (including any cash pooling transaction) between or among the Borrower, any Restricted Subsidiary or any joint venture (regardless of the form of legal entity) in which the Borrower or any Subsidiary has invested (and which Subsidiary or joint venture would not be an Affiliate of the Borrower but for the Borrower’s or a Subsidiary of the Borrower’s ownership of Capital Stock or Stock Equivalents in such joint venture or Subsidiary) to the extent permitted under Section 10,
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(f) (i) employment, consulting and severance arrangements between the Borrower and the Restricted Subsidiaries (or any direct or indirect parent of the Borrower) and their respective officers, employees, directors or consultants in the ordinary course of business (including loans and advances in connection therewith) and (ii) issuances of securities, or other payments, awards or grants in cash, securities or otherwise and other transactions pursuant to any equityholder, employee or director equity plan or stock or other equity option plan or any other management or employee benefit plan or agreement, other compensatory arrangement or any stock or other equity subscription, co-invest or equityholder agreement, including any arrangement including Equity Interests rolled over by management of the Borrower, any Restricted Subsidiary or any direct or indirect parent of the Borrower in connection with the Transactions,
(g) payments by the Borrower (and any direct or indirect parent thereof) and any Subsidiaries thereof pursuant to tax sharing agreements among the Borrower (and any such parent thereof) and such Subsidiaries on customary terms to the extent attributable to the ownership or operations of the Borrower and the Restricted Subsidiaries; provided, that in each case the amount of such payments in respect of any taxable year does not exceed the amount permitted to be paid under Section 10.5(b)(15)(B),
(h) the payment of customary fees and reasonable out of pocket costs to, and indemnities provided on behalf of, directors, managers, consultants, officers, employees of the Borrower (or any direct or indirect parent thereof) and the other Subsidiaries,
(i) transactions undertaken pursuant to membership in a purchasing consortium,
(j) transactions pursuant to any agreement or arrangement (x) outstanding on the Closing Date, and to the extent in excess of (A) $7,500,000 individually or (B) $15,000,000 in the aggregate listed on Schedule 9.10 or (y) contemplated by the Acquisition Agreement, or any amendment, modification, extension, renewal, supplement or replacement thereto (so long as any such amendment, modification, extension, renewal, supplement or replacement is not materially disadvantageous to the Lenders when taken as a whole as compared to the applicable agreement as in effect immediately prior thereto as determined by the Borrower in good faith),
(k) transactions in which Holdings, the Borrower or any Restricted Subsidiary, as the case may be, delivers to the Administrative Agent a letter from an Independent Financial Advisor stating that such transaction is fair to the Borrower or such Restricted Subsidiary from a financial point of view or meets the requirements of Section 9.10,
(l) the existence and performance of agreements and transactions with any Unrestricted Subsidiary that were entered into prior to the designation of a Restricted Subsidiary as such Unrestricted Subsidiary to the extent that the transaction was permitted at the time that it was entered into with such Restricted Subsidiary and transactions entered into by an Unrestricted Subsidiary with an Affiliate prior to the redesignation of any such Unrestricted Subsidiary as a Restricted Subsidiary; provided, that such transaction was not entered into in contemplation of such designation or redesignation, as applicable,
(m) Affiliate repurchases of (i) the Loans or Commitments to the extent permitted hereunder or (ii) the Senior Notes, and the holding of such Loans or Commitments or Senior Notes and, in the case of each of the foregoing, the payments and other transactions reasonably related thereto,
(n) (i) investments by Permitted Holders in securities of the Borrower or any Subsidiary (and payment of reasonable out-of-pocket expenses incurred by such Permitted Holders in connection therewith) so long as the investment is being offered by the Borrower or such Subsidiary generally to other investors on the same or more favorable terms, and (ii) payments to Permitted Holders in respect of securities or loans of the Borrower or any Subsidiary contemplated in the foregoing clause (i) or that were acquired from Persons other than the Borrower and the Subsidiaries, in each case, in accordance with the terms of such securities or loans,
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(o) transactions pursuant to any arrangement or agreement set forth on Schedule 9.10,
(p) any customary transactions with a Receivables Subsidiary effected as part of a Receivables Facility and any customary transactions with a Securitization Subsidiary effected as part of a Qualified Securitization Financing, and
(q) transactions constituting any part of a Permitted Reorganization or an IPO Reorganization Transaction;
(r) the payment of reasonable out-of-pocket costs and expenses relating to registration rights and indemnities provided to shareholders of Holdings or any direct or indirect parent thereof pursuant to the equityholders agreement, limited liability company agreement or the registration rights agreement entered into on or after the Closing Date,
(s) Intercompany License Agreements,
(t) payments to or from, and transactions with, joint ventures (to the extent any such joint venture is only an Affiliate as a result of Investments by the Borrower and the Restricted Subsidiaries in such joint venture) in the ordinary course of business, and
(u) with respect to any of the foregoing transactions permitted pursuant to this Section 9.10, any amendment, extension, renewal, modification or replacement of any such arrangement or agreement (so long as any such amendment, extension, renewal, modification or replacement is not materially adverse to the Lenders in the good faith judgment of the Borrower when taken as a whole).
9.11 Additional Guarantors and Grantors. In each case subject to any applicable limitations set forth in the Credit Documents and in the case of any Foreign Subsidiary, in all circumstances (including, without limitation, in respect of the form and substance of any Security Document or Guarantee) subject to the Agreed Security Principles, the Borrower shall cause each (x) direct or indirect Wholly-Owned Restricted Subsidiary (other than, in each case, any Excluded Subsidiary) of the Borrower formed or otherwise purchased or acquired after the Closing Date (including pursuant to a Permitted Acquisition) and (y) other Subsidiary which would otherwise be required to provide a Guarantee but for its classification as an Excluded Subsidiary that ceases to constitute an Excluded Subsidiary to, within sixty (60) days from the date of the applicable formation, acquisition or cessation, as applicable (which in the case of any Excluded Subsidiary shall commence on the date of delivery of the certificate required by Section 9.1(d)) (or such later date as the Administrative Agent may determine in its reasonable discretion), and the Borrower may at its option cause any other Subsidiary to, execute a supplement to each of the Guarantee, the U.S. Pledge Agreements, the U.S. Security Agreements or any other applicable Security Document in order to become a Guarantor under the U.S. Guarantee or a Foreign Guarantee, as applicable, and a grantor under such Security Documents, respectively, or, to the extent reasonably requested by the Collateral Agent, enter into an appropriate new guarantee and appropriate new Security Documents substantially consistent with the analogous existing Guarantee and Security Documents or otherwise in form and substance reasonably satisfactory to Borrower and Collateral Agent and take all other action reasonably requested by the Collateral Agent to grant a perfected (with respect to Collateral consisting of Intellectual Property, if and to the extent required under the Security Agreements and/or the Agreed Security Principles, as applicable) security interest in the Capital Stock of such Subsidiary and its assets to substantially the same extent as created by the Credit Parties and only if and to the extent required under, and in accordance with, this Agreement, and the Security Documents (including the Agreed Security Principles). Notwithstanding anything to the contrary herein or in any other Credit Document, it is understood and agreed that:
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Notwithstanding anything in this Agreement or any Security Document to the contrary: (A) neither the Administrative Agent nor the Collateral Agent shall take, and the Credit Parties shall not be required to grant, a security interest in any Excluded Property; (B) any security interest required to be granted or any action required to be taken, including to perfect such security interest, shall be subject to the same exceptions and limitations as those set forth in the applicable Security Documents, (C) no U.S. Credit Party shall be required, nor shall the Administrative Agent or Collateral Agent be authorized, except with respect to the pledge of Capital Stock of any Restricted Subsidiary (other than any Excluded Stock and Stock Equivalents), in each case, as set forth in Section 9.12, to perfect any pledges, charges, assignments, security interests and mortgages in any Collateral by any means other than (1) filings pursuant to the Uniform Commercial Code in the office of the secretary of state (or similar central filing office) of the relevant State(s) and filings in the applicable real estate records with respect to mortgaged properties or any fixtures relating to Mortgaged Property as otherwise required hereunder, (2) filings in United States government offices with respect to Intellectual Property as expressly required by the Credit Documents, (3) delivery to the Collateral Agent to be held in its possession of all Collateral consisting of (i) intercompany notes in an amount individually in excess of $20,000,000, (ii) stock certificates of the Borrower and its Restricted Subsidiaries and (iii) other instruments issued to any Credit Party in an amount individually in excess of $20,000,000, (4) mortgages other than as required pursuant to Section 9.14 and (5) necessary perfection steps with respect to Commercial Tort Claims over $5,000,000, individually, and Letter of Credit Rights over $15,000,000, individually, (D) other than as expressly required by this Sections 9.11, 9.12 or 9.14 or with respect to the Equity Interests of any Foreign Credit Party, no U.S. Credit Party or any U.S. Restricted Subsidiary shall be required to take any action outside the United States to perfect any security interest in the Collateral (including the execution of any agreement, document or other instrument governed by the law of any jurisdiction other than the United States of America, any State thereof or the District of Columbia); (E) no Credit Party shall have any obligation under any Credit Document to enter into any landlord, bailee or warehousemen waiver, estoppel or consent or any other document of similar effect; (F) in no event shall any U.S. Credit Party be required to (i) to enter into any deposit account control agreement or securities account control agreement with respect to any deposit account or securities account (including securities entitlements and related assets credited thereto) or (ii) take any other action to perfect through control agreements or perfection by “control” (other than possession by the Collateral Agent to the extent expressly required under the U.S. Security Documents) in each case under this clause (F), except, in each case, to the extent such perfection may be achieved by the filing of a Uniform Commercial Code financing statement; (G) no environmental reports shall be required to be delivered hereunder or under any other Credit Document; (H) no notice to obtain the consent of any Governmental Authority under the Federal Assignment of Claims Act (or any state equivalent thereof) shall be required with respect to any U.S. Credit Party; (I) no U.S. Credit Party shall be required to enter into any source code escrow arrangement (or, except as set forth in the U.S. Security Agreement, be obligated to register Intellectual Property) and (J) the requirements of Foreign Subsidiaries in respect of any guarantee or provision of security shall in all respects be subject to the Agreed Security Principles.
9.12 Pledge of Additional Stock and Evidence of Indebtedness. Subject to any applicable limitations set forth in the Credit Documents and in the case of any Foreign Subsidiary or equity issued by any Foreign Subsidiaries, in all circumstances (including, without limitation, in respect of the form and substance of any Security Document or Guarantee) subject to the Agreed Security Principles, and other than (x) when in the reasonable determination of the Administrative Agent and the Borrower (as agreed to in writing), the cost, burden or other consequences of doing so would be excessive in view of the benefits to be obtained by the Lenders therefrom or (y) to the extent doing so could result in an adverse tax consequence (that is not de minimis) as reasonably determined by the Borrower (provided that in the case of a U.S. Credit Party (unless such U.S. Credit Party is the subsidiary of another U.S. Credit Party) this clause (y) shall only apply with respect to assets acquired after the Closing Date), the Borrower will cause (i) all Capital Stock and certificates representing Capital Stock of any Restricted Subsidiary (other than any Excluded Stock and Stock Equivalents) held directly by the Borrower or any Guarantor, (ii) all evidences of Indebtedness in excess of $20,000,000 received by the Borrower or any of the Guarantors in connection with any disposition of assets pursuant to Section 10.4(b), and (iii) any promissory notes executed after the Closing Date evidencing Indebtedness in excess of $20,000,000 that is owing to the Borrower or any Guarantor, in each case, other than Excluded Collateral, to be subject to a valid and perfected first priority Lien (other than Liens permitted hereunder) of the Collateral Agent for the benefit of the applicable Secured Parties and delivered to the Collateral Agent as security for the (A) U.S. Obligations with respect to any Collateral pledged by a U.S. Credit Party or (B) Foreign Obligations with respect to any Collateral pledged by a Credit Party accompanied by undated instruments of transfer executed in blank pursuant to the terms of the applicable Security Documents. Notwithstanding the foregoing, any promissory note among the Borrower or its Subsidiaries need not be delivered to the Collateral Agent pursuant to this Section 9.12 so long as (i) a global intercompany note, including any Intercompany Note, superseding or supplementing such promissory note has been delivered to the Collateral Agent, and (ii) such promissory note is not delivered to any other party other than the Borrower or its Subsidiaries, in each case, owed money thereunder.
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9.13 Use of Proceeds.
(a) The proceeds of the Initial Term Loans will be applied on the Closing Date, together with the Equity Contribution, the proceeds of any Senior Notes, any amount drawn under the Revolving Credit Facility and certain cash on the balance sheet of Diversey and its Subsidiaries, to (i) finance a portion of the Acquisition, (ii) payments in connection with the Closing Releases, and (iii) pay Transaction Expenses.
(b) The proceeds of Revolving Loans may be utilized (i) on the Closing Date (x) to fund a portion of the Acquisition and Transaction Expenses, (y) to fund any original issue discount or upfront fees required to be funded in connection with the issuance of the Senior Notes pursuant to any offering undertaken to finance the Acquisition and (z) for working capital (including working capital payments or adjustments under the Acquisition Agreement) (ii) on and after the Closing Date, to cash collateralize letters of credit outstanding under the Existing Credit Agreement and (iii) after the Closing Date, for working capital, capital expenditures and general corporate purposes (including acquisitions, Permitted Investments, Restricted Payments and other transactions not expressly prohibited by this Agreement); provided, that the Revolving Loans borrowed on the Closing Date for purposes set forth in clauses (i)(x) above of this Section 9.13(b) shall not exceed $40,000,000.
(c) The proceeds of the Loans will be utilized in accordance with Sections 8.18 and 8.20(b).
(d) The Credit Parties shall ensure that no Letter or Credit is or will be issued or proceeds from any Term Loans or any Revolving Loans have been or will be used in a manner which would constitute a "use of proceeds in Switzerland" as interpreted by Swiss tax authorities for purposes of Swiss Withholding Tax, except and to the extent that a written confirmation or tax ruling countersigned by the Swiss Federal Tax Administration (Eidgenössische Steuerverwaltung) has been obtained (in a form satisfactory to the Administrative Agent) confirming that the intended "use of proceeds in Switzerland" will not result in any interest payments in respect of any Letter or Credit, Term Loan or Revolving Loan becoming subject to a withholding or deduction for Swiss Withholding Tax.
9.14 Further Assurances.
(a) Subject to the terms of, and limitations and exceptions contained in, Sections 9.11, 9.12, this Section 9.14, the Agreed Security Principles and the Security Documents, the Borrower will, and will cause each other Credit Party 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, fixture filings, mortgages, deeds of trust, and other documents) that may be required under any applicable law, or that the Collateral Agent or the Required Lenders may reasonably request, in order to grant, preserve, protect, and perfect (if and to the extent required under the Security Documents) the validity and priority (subject to Liens permitted by this Agreement) of the security interests created or intended to be created by the applicable Security Documents, all at the reasonable expense of the Borrower.
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(b) Subject to any applicable limitations set forth in the Security Documents and the Agreed Security Principles and other than (x) when in the reasonable determination of the Administrative Agent and the Borrower (as agreed to in writing), the cost or other consequences of doing so could be excessive in view of the benefits to be obtained by the Lenders therefrom or (y) to the extent doing so could result in an adverse tax consequence (other than de minimis taxes) as reasonably determined by the Borrower, if any assets (other than Excluded Property) (including any fee-owned real property, but only fee-owned real property, located in the United States or improvements thereto or any interest therein but excluding Capital Stock and Stock Equivalents of any Subsidiary and excluding any real estate which the Borrower or applicable Credit Party intends to dispose of pursuant to a Permitted Sale Leaseback so long as actually disposed of within 270 days of acquisition (or such longer period as the Administrative Agent may reasonably agree)) with a book value in excess of $15,000,000 (at the time of acquisition) are acquired by the Borrower or any other Credit Party after the Closing Date (other than assets constituting Collateral under a Security Document that become subject to the Lien of the applicable Security Document upon acquisition thereof) that are of a nature secured by a Security Document or that constitute fee-owned real property in the United States, the Borrower will reasonably promptly notify the Collateral Agent, and, if requested by the Collateral Agent in writing, the Borrower will cause such assets to be subjected to a Lien securing the Obligations (provided, that in the event such real property required to be subject to a Mortgage pursuant to this Section 9.14(b) is located in a jurisdiction which imposes mortgage recording tax, intangibles tax or any similar taxes, fees or charges, such Mortgage shall only secure an amount equal to the Fair Market Value of such real property or such other amounts specified in the Agreed Security Principles) and will take, and cause the other applicable Credit Parties to take, such actions as shall be necessary or reasonably requested by the Collateral Agent, as soon as commercially reasonable but in no event later than 90 days after such request from the Administrative Agent, unless extended by the Administrative Agent in its reasonable discretion, to grant and perfect such Liens consistent with the applicable requirements of the Security Documents, including actions described in clause (a) of this Section 9.14.
(c) Any Mortgage delivered to the Collateral Agent by a U.S. Credit Party in accordance with the preceding clause (b) shall, if requested by the Collateral Agent, be received no later than 90 days after such request from the Administrative Agent, unless extended by the Administrative Agent in its reasonable discretion, and shall be accompanied by (w) a policy or policies (or an unconditional binding commitment therefor to be replaced by a final title policy) of title insurance issued by a nationally recognized title insurance company, in such amounts as are reasonably acceptable to the Administrative Agent not to exceed the Fair Market Value of the applicable Mortgaged Property, insuring the Lien of each Mortgage as a valid first Lien on the Mortgaged Property described therein, free of any other Liens except as permitted by Section 10.2 or as otherwise permitted by the Administrative Agent and otherwise in form reasonably acceptable to the Administrative Agent and the Borrower, together with such endorsements, coinsurance and reinsurance as the Administrative Agent may reasonably request but only to the extent such endorsements are (i) available in the relevant jurisdiction (provided in no event shall the Administrative Agent request a creditors’ rights endorsement) and (ii) available at commercially reasonable rates, (x) to the extent reasonably requested by the Collateral Agent, a customary opinion of local counsel to the applicable Credit Party in the jurisdiction in which any Mortgaged Property is located, with respect to the local law enforceability and perfection of the Mortgage(s) in form and substance reasonably satisfactory to the Collateral Agent, (y) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination, and if any improvements on such Mortgaged Property are located in a special flood hazard area, (i) a notice about special flood hazard area status and flood disaster assistance duly executed by the applicable Credit Parties and (ii) certificates of insurance evidencing the insurance required by Section 9.3 in form reasonably satisfactory to the Administrative Agent, and (z) an ALTA survey in a form and substance reasonably acceptable to the Collateral Agent or such existing survey together with a no-change affidavit sufficient for the title company to remove all standard survey exceptions from the title policy related to such Mortgaged Property and issue the endorsements required in clause (w) above.
(d) Post-Closing Covenant. The Borrower agrees that it will deliver, or will cause to be delivered, to the Administrative Agent the items described on Schedule 9.14 by the times specified on such Schedule 9.14 with respect to such items, or such later time as the Administrative Agent may agree in its reasonable discretion. All conditions precedent, covenants and representations and warranties contained in this Agreement and the other Credit Documents shall be deemed modified to the extent necessary to effect the foregoing (and to permit the taking of the actions described on Schedule 9.14 within the time periods required by this Section 9.14(d), rather than as elsewhere provided in the Credit Documents).
(e) Notwithstanding anything contained in this Agreement to the contrary, no Mortgage shall be executed and delivered with respect to any real property unless and until the Administrative Agent and each Revolving Credit Lender shall have received the documents described in Section 9.14(c)(iii) and such other documents as it may reasonably request to complete its flood insurance due diligence and has confirmed to the Administrative Agent that flood insurance due diligence and flood insurance compliance has been completed to its satisfaction.
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9.15 Maintenance of Ratings. The Borrower will use commercially reasonable efforts to obtain and maintain (but not obtain or maintain any specific rating) a corporate family and/or corporate credit rating, as applicable, and ratings in respect of the Term Loans provided pursuant to this Agreement, in each case, from each of S&P and Moody’s.
9.16 Lines of Business. The Borrower and the Restricted Subsidiaries, taken as a whole, will not fundamentally, materially and substantively alter the character of their business, taken as a whole, from the business conducted by the Borrower and the Restricted Subsidiaries, taken as a whole, on the Closing Date and other business activities which are extensions thereof or otherwise similar, incidental, complementary, corollary, synergistic, reasonably related, or ancillary to any of the foregoing (and non-core incidental businesses acquired in connection with any Permitted Acquisition or permitted Investment), in each case as determined by the Borrower in good faith.
SECTION 10
Negative Covenants
The Borrower hereby covenants and agrees that on the Closing Date (immediately after consummation of the Acquisition) and thereafter, until the Commitments and each Letter of Credit have terminated or been Cash Collateralized in accordance with the terms of this Agreement and the Loans and Unpaid Drawings, together with interest, Fees and all other Obligations incurred hereunder (other than contingent obligations, Secured Hedge Obligations, Secured Bank Product Obligations and Secured Cash Management Obligations and Letters of Credit Cash Collateralized in accordance with the terms of this Agreement), are paid in full:
10.1 Limitation on Indebtedness. The Borrower will not, and will not permit any Restricted Subsidiary to, create, incur, issue, assume, guarantee or otherwise become liable (collectively, “incur” and collectively, an “incurrence”), with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower will not, and will not permit any Restricted Subsidiary to, issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred Capital Stock; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness), and issue shares of Disqualified Stock and issue shares of preferred Capital Stock, in an aggregate outstanding principal amount at the time of incurrence or issuance not greater than (1) the greater of (x) $75,000,000 and (y) 19.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence or issuance, in each case plus (2) additional amounts if, after giving effect thereto, for the most recently ended Test Period (on a Pro Forma Basis) at the time of incurrence or issuance, the Interest Coverage Ratio is not less than 2.00 to 1.00; provided, that the amount of Indebtedness (including Acquired Indebtedness), Disqualified Stock and preferred Capital Stock that may be incurred and issued pursuant to the foregoing together with any amounts incurred under Section 10.1(n)(x) by Restricted Subsidiaries that are not Guarantors shall not exceed an aggregate-amount equal to at any one time outstanding the greater of (x) $140,000,000 and (y) 36.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis), plus (3) additional amounts, to the extent issued as Registered Equivalent Notes in exchange for Indebtedness originally incurred under clause (1) or (2).
The foregoing limitations will not apply to:
(a) Indebtedness arising under or secured by the Credit Documents (including, for the avoidance of doubt, any Incremental Loans Refinancing Loans, Extended Term Loans or Extended Revolving Credit Commitments);
(b) Indebtedness representing deferred compensation to, or similar arrangements with, employees and independent contractors of the Borrower or any Restricted Subsidiary to the extent incurred in the ordinary course of business;
(c) (i) Indebtedness (including any unused commitment) (x) outstanding on the Closing Date, and to the extent in excess of (A) $7,500,000 individually or (A) $15,000,000 in the aggregate listed on Schedule 10.1 or (y) contemplated by the Acquisition Agreement, and (ii) intercompany Indebtedness (including any unused commitment) outstanding on the Closing Date owed by the Borrower to a Restricted Subsidiary, by a Restricted Subsidiary to the Borrower or by a Restricted Subsidiary to another Restricted Subsidiary;
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(d) Indebtedness (including Capitalized Lease Obligations), Disqualified Stock and preferred Capital Stock incurred or issued by the Borrower or any Restricted Subsidiary to finance the purchase, lease, construction, installation, maintenance, replacement or improvement of property (real or personal) or equipment that is used or useful in a Similar Business, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets and Indebtedness arising from the conversion of the obligations of the Borrower or any Restricted Subsidiary under or pursuant to any “synthetic lease” transactions to on-balance sheet Indebtedness of the Borrower or such Restricted Subsidiary, in an aggregate principal amount which, when aggregated with the principal amount of all other Indebtedness, Disqualified Stock and preferred Capital Stock then outstanding and incurred or issued pursuant to this clause (d), does not exceed the greater of (x) $100,000,000 and (y) 26.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of incurrence or issuance; provided that Capitalized Lease Obligations incurred by the Borrower or any Restricted Subsidiary pursuant to this clause (d) in connection with a Permitted Sale Leaseback shall not be subject to the foregoing limitation so long as the net cash proceeds of such Permitted Sale Leaseback are used by the Borrower or such Restricted Subsidiary to permanently repay outstanding Term Loans or other Indebtedness secured by a Lien on the assets subject to such Permitted Sale Leaseback;
(e) Indebtedness incurred by the Borrower or any Restricted Subsidiary (including letter of credit obligations and reimbursement obligations with respect to letters of credit issued in the ordinary course of business), in respect of workers’ compensation claims, bid, appeal, performance or surety bonds, performance or completion guarantees, trade contracts, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance and similar obligations in the ordinary course of business or other Indebtedness with respect to reimbursement or indemnification type obligations regarding workers’ compensation claims, bid, appeal, performance or surety bonds, performance or completion guarantees, trade contracts, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance and similar obligations in the ordinary course of business or consistent with past practice;
(f) Indebtedness constituting any part of any Permitted Reorganization or an IPO Reorganization Transaction;
(g) Indebtedness of the Borrower owing, or Disqualified Stock of the Borrower issued, to a Restricted Subsidiary; provided that any Indebtedness under this clause (g) owing to a Restricted Subsidiary that is not a Credit Party must be subordinated in right of payment to the Obligations pursuant to an Intercompany Note (or otherwise to prohibit the repayment thereof after the acceleration of the Loans or bankruptcy of such Credit Party); provided, further, that any subsequent issuance or transfer of any Capital Stock or any other event which results in any applicable Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such Indebtedness or Disqualified Stock (except to Holdings, the Borrower or another Restricted Subsidiary or any pledge of such Indebtedness constituting a Permitted Lien) shall be deemed, in each case to be an incurrence of such Indebtedness, or issuance of such Disqualified Stock, as applicable, not permitted by this clause;
(h) Indebtedness of a Restricted Subsidiary owing, or Disqualified Stock or preferred Capital Stock of a Restricted Subsidiary issued, to the Borrower or another Restricted Subsidiary; provided that if a Guarantor incurs such Indebtedness owing to a Restricted Subsidiary that is not a Guarantor, such Indebtedness is subordinated in right of payment to the Guarantee of such Guarantor to prohibit the repayment thereof after the acceleration of the Loans or bankruptcy of such party; provided, further, that any subsequent transfer of any such Indebtedness, Disqualified Stock or preferred Capital Stock (except to Holdings, the Borrower or another Restricted Subsidiary or any pledge of such Indebtedness constituting a Permitted Lien) shall be deemed, in each case to be an incurrence of such Indebtedness, or issuance of Disqualified Stock or preferred Capital Stock, as applicable, not permitted by this clause;
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(i) to the extent constituting Indebtedness, customer deposits and advance payments (including progress payments) received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(j) Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes) and obligations in respect of Bank Products and Cash Management Services;
(k) obligations in respect of self-insurance, performance, bid, appeal, and surety bonds and completion guarantees and similar obligations provided by the Borrower or any Restricted Subsidiary or obligations in respect of letters of credit, bankers’ acceptances, warehouse receipts, bank guarantees or similar instruments related thereto, in each case, in the ordinary course of business;
(l) (i) Indebtedness, Disqualified Stock and preferred Capital Stock of the Borrower or any Restricted Subsidiary in an aggregate principal amount or liquidation preference up to 100% of the net cash proceeds received by the Borrower since immediately after the Closing Date from the issue or sale of Equity Interests of the Borrower or cash contributed to the capital of the Borrower (in each case, other than Excluded Contributions, Cure Amounts, proceeds of Disqualified Stock or proceeds of sales of Equity Interests to the Borrower or any of its Restricted Subsidiaries) as determined in accordance with Sections 10.5(a)(iii)(B) and 10.5(a)(iii)(C) to the extent such net cash proceeds or cash have not been applied pursuant to such clauses to make Restricted Payments or to make other Investments, payments or exchanges pursuant to Section 10.5(b) or to make Permitted Investments (other than Permitted Investments specified in clauses (i), (iii) and (viii) of the definition thereof) and (ii) Indebtedness, Disqualified Stock or preferred Capital Stock of Borrower or any Restricted Subsidiary not otherwise permitted hereunder in an aggregate principal amount or liquidation preference, which when aggregated with the principal amount and liquidation preference of all other Indebtedness, Disqualified Stock and preferred Capital Stock then outstanding and incurred or issued pursuant to this clause (l)(ii), does not at any one time outstanding exceed the greater of (x) $150,000,000 and (y) 39.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of incurrence or issuance (it being understood that any Indebtedness, Disqualified Stock or preferred Capital Stock incurred or issued pursuant to this clause (l)(ii) shall cease to be deemed incurred, issued or outstanding for purposes of this clause (l)(ii) but shall be deemed incurred or issued for the purposes of the first paragraph of this Section 10.1 from and after the first date on which the Borrower or such Restricted Subsidiary could have incurred or issued such Indebtedness, Disqualified Stock or preferred Capital Stock under the first paragraph of this Section 10.1 without reliance on this clause (l)(ii));
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(m) the incurrence or issuance by the Borrower or any Restricted Subsidiary of Indebtedness, Disqualified Stock or preferred Capital Stock which serves to refinance any Indebtedness, Disqualified Stock or preferred Capital Stock incurred or issued as permitted under (i) the first paragraph of this Section 10.1, (ii) Sections 10.1, (c), (d), (f), (l), (n), (r), (w), (x), (y), (bb), (dd) and (hh)and this Section 10.1(m) or (iii) any Indebtedness, Disqualified Stock or preferred Capital Stock incurred or issued to so refinance, replace, refund, extend, renew, defease, restructure, amend, restate or otherwise modify (collectively, “refinance”) such Indebtedness, Disqualified Stock or preferred Capital Stock (the “Refinancing Indebtedness”) on or prior to its respective maturity, so long as the aggregate principal amount, accreted value or liquidation preference, as applicable, of such Refinancing Indebtedness shall equal no more than the aggregate outstanding principal amount, accreted value or liquidation preference of the refinanced Indebtedness, Disqualified Stock or preferred Capital Stock (plus the amount of any unused commitments thereunder), plus amounts otherwise permitted under this Section 10.1, plus accrued interest, fees, defeasance costs and premium (including call and tender premiums), if any, under the refinanced Indebtedness, Disqualified Stock or preferred Capital Stock, plus underwriting discounts, fees, commissions and expenses (including original issue discount, upfront fees and similar items) in connection with the refinancing of such Indebtedness, Disqualified Stock or preferred Capital Stock and the incurrence or issuance of such Refinancing Indebtedness; provided that such Refinancing Indebtedness (other than such Refinancing Indebtedness incurred or issued in respect of Indebtedness under Section 10.1(d)) (1) has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is incurred which is not less than the remaining Weighted Average Life to Maturity of the Indebtedness, Disqualified Stock or preferred Capital Stock being refinanced, (2) to the extent such Refinancing Indebtedness refinances (I) Indebtedness that is (x) secured by a Lien on the Collateral ranking junior to the Liens securing any First Lien Obligations, such Refinancing Indebtedness is unsecured or secured by a Lien on the Collateral ranking junior to the Liens securing any First Lien Obligations, (y) secured by a Lien on the Excluded Property, such Refinancing Indebtedness is unsecured or secured by a Lien on Excluded Property or (z) unsecured, such Refinancing Indebtedness is unsecured or (II) Disqualified Stock or preferred Capital Stock, such Refinancing Indebtedness must consist of Disqualified Stock or preferred Capital Stock, respectively, and (2) shall not include Indebtedness, Disqualified Stock or preferred Capital Stock of a Subsidiary of the Borrower that is not a Guarantor that refinances Indebtedness, Disqualified Stock or preferred Capital Stock of the Borrower or a Guarantor (unless otherwise permitted by this Section 10.1); provided, further, that (x) in the case of a refinancing of Permitted Other Indebtedness incurred pursuant to Section 10.1(x)(b) with other Refinancing Indebtedness (“Refinancing Permitted Other Indebtedness”), such Refinancing Permitted Other Indebtedness, if secured, may only be secured by a Lien ranking junior to the Lien securing the First Lien Obligations outstanding under this Agreement and in the case of Refinancing Indebtedness with respect to clauses (d), (l)(ii), (n) (but only to the extent such Refinancing Indebtedness is incurred by non-Credit Parties), (r), (bb), (dd) and (hh) of this Section 10.1, the incurrence of such Refinancing Indebtedness shall be without duplication of any amounts outstanding under any such clauses;
(n) Indebtedness, Disqualified Stock or preferred Capital Stock of (x) the Borrower or a Restricted Subsidiary incurred, assumed or issued to finance an acquisition, merger, amalgamation or consolidation, and (y) Persons that are acquired by the Borrower or any Restricted Subsidiary or merged into or amalgamated or consolidated with the Borrower or a Restricted Subsidiary in accordance with the terms hereof (including designating an Unrestricted Subsidiary a Restricted Subsidiary); provided that either (i) the Interest Coverage Ratio as of the most recently ended Test Period is, on a Pro Forma Basis, at least the greater of (A) 2.00 to 1.00 or (B) a ratio not less than the Interest Coverage Ratio for such Test Period immediately prior to giving Pro Forma Effect to such acquisition, merger, amalgamation, consolidation or designation or (ii) the Total Net Leverage Ratio as of the most recently ended Test Period is, on a Pro Forma Basis, not more than the greater of (A) 5.80 to 1.00 or (B) a ratio not less than the Total Net Leverage Ratio for such Test Period immediately prior to giving Pro Forma Effect to such acquisition, merger, amalgamation, consolidation or designation; provided that the amount of Indebtedness (excluding Acquired Indebtedness not incurred in contemplation thereof), Disqualified Stock and preferred Capital Stock that may be incurred or issued pursuant to the foregoing, together with any amounts incurred or issued under the first paragraph of this Section 10.1, in each case, by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (A) $140,000,000 and (B) 36.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at any one time outstanding;
(o) 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;
(p) (i) Indebtedness of the Borrower or any Restricted Subsidiary supported by a letter of credit, in a principal amount not in excess of the stated amount of such letter of credit so long as such letter of credit is otherwise permitted to be incurred pursuant to this Section 10.1 or (ii) obligations in respect of
letters of support, guarantees or similar obligations issued, made or incurred for the benefit of the Borrower or any Subsidiary of the Borrower to the extent required by law or in connection with any statutory filing or the delivery of audit opinions performed in jurisdictions other than within the United States;
(q) (i) any guarantee by the Borrower or any Restricted Subsidiary of Indebtedness or other obligations of any Restricted Subsidiary so long as in the case of a guarantee of Indebtedness by a Restricted Subsidiary that is not a Guarantor, such Indebtedness could have been incurred directly by the Restricted Subsidiary providing such guarantee or (ii) any guarantee by a Restricted Subsidiary of Indebtedness or other obligations of the Borrower;
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(r) Indebtedness of (or Disqualified Stock or preferred Capital Stock issued by) Restricted Subsidiaries that are not Guarantors, including in respect of working capital lines, in an amount not to exceed, in the aggregate at any one time outstanding, the greater of (x) $185,000,000 and (y) 48.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) (it being understood that any Indebtedness, Disqualified Stock or preferred Capital Stock incurred or issued pursuant to this clause (r) shall cease to be deemed incurred, issued or outstanding for purposes of this clause (r) but shall be deemed incurred or issued for the purposes of the first paragraph of this covenant from and after the first date on which such Restricted Subsidiary could have incurred such Indebtedness or issued such Disqualified Stock or preferred Capital Stock under the first paragraph of this Section 10.1 without reliance on this clause (r));
(s) Indebtedness of the Borrower or any Restricted Subsidiary consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements in each case, incurred in the ordinary course of business or consistent with past practice;
(t) Indebtedness of the Borrower or any Restricted Subsidiary undertaken in connection with cash pooling arrangements, cash management (including netting services, automatic clearinghouse arrangements, overdraft protections, employee credit card programs and related or similar services or activities) with respect to the Borrower or any of its Subsidiaries or with respect to any joint venture in the ordinary course of business, including with respect to financial accommodations of the type described in the definition of Cash Management Services and Bank Products;
(u) Indebtedness consisting of Indebtedness issued by the Borrower or any Restricted Subsidiary to future, current or former officers, directors, consultants, managers and employees thereof, their respective trusts, heirs, estates, spouses or former spouses, in each case to finance the purchase or redemption of Equity Interests of the Borrower or any direct or indirect parent company of the Borrower to the extent described in Section 10.5(b)(4);
(v) Any Guarantee issued for the purpose of complying with any employee benefit legislation (including, but not limited to, any German laws regarding the rights and benefits of employees on any old age part time arrangement (Altersteilzeit));
(w) Indebtedness in respect of Permitted Other Indebtedness to the extent that the Net Cash Proceeds therefrom are applied to the prepayment of Term Loans in the manner set forth in Section 5.2(a)(iii);
(x) Indebtedness in respect of Permitted Other Indebtedness; provided that either (a) the aggregate principal amount of such Permitted Other Indebtedness issued or incurred pursuant to this clause (x) shall not exceed the Maximum Incremental Facilities Amount at the time of incurrence or issuance thereof or (b) the Net Cash Proceeds thereof shall be applied no later than ten (10) Business Days after the receipt thereof to repurchase, repay, redeem or otherwise defease Junior Debt or unsecured Indebtedness (provided, in the case of this clause (x)(b), such Permitted Other Indebtedness is unsecured or secured by a Lien ranking junior to the Lien securing any First Lien Obligations);
(y) Indebtedness in respect of Permitted Debt Exchange Notes incurred pursuant to a Permitted Debt Exchange in accordance with Section 2.15;
(z) Indebtedness arising from agreements of the Borrower or a Restricted Subsidiary providing for indemnification, adjustment of purchase price, earnout or any similar obligations, in each case, incurred or assumed in connection with any transaction not expressly prohibited by this Agreement;
(aa) Indebtedness to the seller of any business or assets permitted to be acquired by the Borrower or any Restricted Subsidiary under this Agreement; provided that the aggregate amount of Indebtedness permitted under this clause (aa) shall not exceed the greater of (x) $40,000,000 and (y) 10.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) outstanding at any time;
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(bb) obligations in respect of Disqualified Stock and preferred Capital Stock in an amount not to exceed the greater of (x) $50,000,000 and (y) 13.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) outstanding at any time;
(cc) Indebtedness incurred in connection with any accounts receivable factoring facility (i) in compliance with clause (h) of the definition of “Asset Sale” or (ii) in the ordinary course of business;
(dd) Indebtedness (including Guarantees thereof by the Credit Parties) under the Senior Notes Documents (including in respect of the Senior Notes) in an aggregate principal amount at any time outstanding not to exceed €450,000,000;
(ee) Indebtedness consisting of management fees to any Sponsor and other management fees to any Sponsor not permitted to be paid (but permitted to accrue) pursuant to Section 9.10(a);
(ff) Indebtedness incurred in connection with the repurchase of Equity Interests pursuant to Section 10.5(b)(4); provided, that the original principal amount of any such Indebtedness incurred pursuant this clause (ee) shall not exceed the amount of such Equity Interests so repurchased with such Indebtedness (or with the proceeds thereof);
(gg) to the extent constituting Indebtedness, Guarantees in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of the Borrower and its Subsidiaries;
(hh) Indebtedness incurred in connection with Permitted Sale Leaseback transactions in an aggregate principal amount not to exceed the greater of (x) $40,000,000 and (y) 10.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at any time;
(ii) Indebtedness of (a) any Securitization Subsidiary arising under any Securitization Facility or (b) the Borrower or any Restricted Subsidiary arising under any Receivables Facility;
(jj) Indebtedness incurred by the Borrower or any Restricted Subsidiary for the benefit of joint ventures, not to exceed the greater of (x) $125,000,000 and (y) 32.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis);
(kk) Indebtedness arising under guarantees entered into pursuant to Section 2:403 of the Dutch Civil Code in respect of group company incorporated in the Netherlands and any residual liability with respect to such guarantees arising under Section 2:404 of the Dutch Civil Code;
(ll) Indebtedness arising from any joint and several liability arising by operation of Law as a result of the existence of a fiscal unity (fiscale eenheid) for Dutch tax purposes (or its equivalent in any other relevant jurisdiction) between credit parties; and
(mm) to the extent constituting Indebtedness, all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (ll) above.
For purposes of determining compliance with this Section 10.1: (i) in the event that an item of Indebtedness, Disqualified Stock or preferred Capital Stock (or, in each case, any portion thereof) meets the criteria of more than one of the categories of permitted Indebtedness, Disqualified Stock or preferred Capital Stock described in clauses (a) through (mm) above or is entitled to be incurred pursuant to the first paragraph of this Section 10.1, the Borrower, in its sole discretion, will classify and may reclassify from time to time, in each case, such item of Indebtedness, Disqualified Stock or preferred Capital Stock (or, in each case, any portion thereof) and will only be required to include the amount and type of such Indebtedness, Disqualified Stock or preferred Capital Stock in one of the above clauses or paragraphs; provided that the Senior Notes shall be deemed to have been incurred pursuant to clause (dd) above and shall not be permitted to be reclassified; and (ii) at the time of incurrence or issuance or at the time of any reclassification, the Borrower will be entitled to divide and classify (or reclassify) an item of Indebtedness, Disqualified Stock or preferred Capital Stock in more than one of the types of Indebtedness, Disqualified Stock or preferred Capital Stock described in this Section 10.1.
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Accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Indebtedness, Disqualified Stock or preferred Capital Stock will not be deemed to be an incurrence or issuance of Indebtedness, Disqualified Stock or preferred Capital Stock for purposes of this covenant.
For purposes of determining compliance with any Dollar-denominated restriction on the incurrence of Indebtedness, the principal amount of Indebtedness denominated in another currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in another currency, and such refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (i) the principal amount of such Indebtedness being refinanced (plus unused commitments thereunder) plus (ii) the aggregate amount of accrued interest, premiums (including call and tender premiums), defeasance costs, underwriting discounts, fees, commissions, costs and expenses (including original issue discount, upfront fees and similar items) incurred in connection with such refinancing.
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 respective Indebtedness is denominated that is in effect on the date of such refinancing.
This Agreement will not treat (1) unsecured Indebtedness as subordinated or junior to secured Indebtedness merely because it is unsecured or (2) senior Indebtedness as subordinated or junior to any other senior Indebtedness merely because it has a junior priority with respect to the same collateral.
10.2 Limitation on Liens.
(a) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any property or assets of any kind (real or personal, tangible or intangible) of the Borrower or any Restricted Subsidiary, whether now owned or hereafter acquired (each, a “Subject Lien”) that secures obligations under any Indebtedness on any asset or property of the Borrower or any Restricted Subsidiary, except:
(i) in the case of Subject Liens on any Collateral, if such Subject Lien is a Permitted Lien; and
(ii) in the case of any other asset or property, any Subject Lien if (i) the Obligations are equally and ratably secured with (or on a senior basis to, in the case such Subject Lien secures any secured Junior Debt) the obligations secured by such Subject Lien or (ii) such Subject Lien is a Permitted Lien.
(b) Any Lien created for the benefit of the Secured Parties pursuant to Section 10.2(a)(ii) shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Subject Lien that gave rise to the obligation to so secure the Obligations.
10.3 Limitation on Fundamental Changes. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, merge, consolidate or amalgamate, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer or otherwise dispose of, all or substantially all its business units, assets or other properties, except that:
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(a) so long as no Event of Default has occurred and is continuing or would result therefrom, any Subsidiary of the Borrower or any other Person may be merged, amalgamated or consolidated with or into the Borrower; provided that (A) the Borrower shall be the continuing or surviving entity or (B) if the Person formed by or surviving any such merger, amalgamation or consolidation is not the Borrower (such other Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of the Netherlands, a European Company (Societas Europaea) or a Person organized or existing under the laws of the United States, any State of the United States or the District of Columbia, the United Kingdom or any member state of the European Union, provided that, in the case of any such member state of the European Union other than the United Kingdom, the Netherlands or Luxembourg, either (x) such jurisdiction is not materially disadvantageous to the Lenders on such date, as determined by the Borrower; or (y) such jurisdiction has been approved by the Required Lenders, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Credit Documents in a manner and pursuant to documentation reasonably satisfactory to the Administrative Agent, (3) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation, shall have by a supplement to the Guarantee confirmed that its guarantee thereunder shall apply to any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its Guarantee as reaffirmed pursuant to clause (3) above, (5) each mortgagor of a Mortgaged Property, if any, unless it is the other party to such merger, amalgamation or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its Guarantee as reaffirmed pursuant to clause (3) above, (6) the Successor Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate of an Authorized Officer stating that such merger, amalgamation, or consolidation complies with the applicable requirements set forth in this clause (a), (7) such transaction does not result in any materially adverse tax consequences to any Lender (unless reimbursed hereunder) or to the Administrative Agent (unless reimbursed hereunder), and (8) the Administrative Agent shall have received at least five (5) Business Days’ prior written notice of the proposed transaction (or such shorter period of time as agreed by the Administrative Agent in its reasonable discretion) and the Borrower shall promptly and in any event at least two (2) Business Days’ prior to the consummation of the transaction provide all information any Lender or any Agent may reasonably request to satisfy its “know your customer” and other similar requirements necessary for such Person to comply with its internal compliance and regulatory requirements with respect to the proposed Successor Borrower (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement);
(b) any Subsidiary of the Borrower or any other Person (in each case, other than the Borrower) may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Borrower; provided that in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) the Borrower shall cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary;
(c) the Acquisition and the Transactions may be consummated;
(d) any Restricted Subsidiary may convey, sell, lease, assign, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or dissolution or otherwise) to the Borrower or to any other Restricted Subsidiary;
(e) any Restricted Subsidiary may liquidate, dissolve or wind up if the Borrower determines in good faith that such liquidation, dissolution or winding up is in the best interests of the Borrower and the Restricted Subsidiaries, taken as a whole, and is not materially disadvantageous to the Lenders;
(f) the Borrower and the Restricted Subsidiaries may consummate a merger, amalgamation, dissolution, liquidation, consolidation, investment or conveyance, sale, lease, license, sublicense, assignment or disposition, the purpose of which is to effect (i) a disposition otherwise permitted hereunder, other than a disposition effected pursuant to clause (b) of the definition of “Asset Sale” or (ii) a dividend, distribution, Investment or other Restricted Payment permitted pursuant to Section 10.5, including an Investment that constitutes a Permitted Investment;
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(g) the Borrower or any Restricted Subsidiary may change its legal form;
(h) the Borrower or any Restricted Subsidiary may consummate any Permitted Reorganization or IPO Reorganization Transaction;
(i) the Borrower and the Restricted Subsidiaries may enter into and consummate any Intercompany License Agreement;
(j) any merger, consolidation or amalgamation the purpose and only substantive effect of which is to reincorporate or reorganize the Borrower or any Restricted Subsidiary; provided, that, solely with respect to the Borrower, after such merger, consolidation, or amalgamation, the Borrower shall be an entity organized or existing under the laws of the Netherlands, a European Company (Societas Europaea) or a Person organized or existing under the laws of the United States, any State of the United States or the District of Columbia, the United Kingdom or any Participating Member State of the European Union; provided that, in the case of any such member state of the European Union other than the United Kingdom, the Netherlands or Luxembourg, either (x) such jurisdiction is not materially disadvantageous to the Lenders on such date, as determined by the Borrower; or (y) such jurisdiction has been approved by the Required Lenders; and
(k) transactions listed on Schedule 10.3 may be consummated.
10.4 Limitation on Sale of Assets. The Borrower will not, and will not permit any Restricted Subsidiary to, consummate an Asset Sale, unless:
(a) the Borrower or such Restricted Subsidiary, as the case may be, may sell or otherwise disposed of assets: provided, that to the extent such transaction or related series of transactions exceeds the greater of (x) $50,000,000 and (y) 13.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis), such Borrower or Restricted Subsidiary shall receive consideration at least equal to the Fair Market Value (as determined by the Borrower at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(b) except in the case of a Permitted Asset Swap, so long as no Event of Default has occurred and is continuing or would result therefrom, if the property or assets sold or otherwise disposed of have a Fair Market Value in excess of $40,000,000, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(i) any liabilities (as reflected on the Borrower’s or such Restricted Subsidiary’s most recent consolidated balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, that (A) are assumed by the transferee of any such assets or (B) are otherwise cancelled, extinguished or terminated in connection with the transactions relating to such Asset Sale and, in the case of clause (A) above only, for which the Borrower and all such Restricted Subsidiaries have been validly released by all applicable creditors in writing;
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(ii) any securities, notes or other obligations or assets received by the Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within 180 days following the closing of such Asset Sale;
(iii) Indebtedness, other than liabilities that are by their terms subordinated to the Loans, that is of any Person that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Borrower and all Restricted Subsidiaries have been validly released from any guarantee of payment of such Indebtedness in connection with such Asset Sale;
(iv) consideration consisting of Indebtedness of any Credit Party (other than Subordinated Indebtedness) received after the Closing Date from Persons who are not Restricted Subsidiaries; and
(v) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (v) that is at that time outstanding, not to exceed the greater of $50,000,000 and 13.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of the receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash for purposes of this clause (b) and for no other purpose.
An amount equal to any Net Cash Proceeds of any Asset Sale permitted by this Section 10.4 shall be applied to prepay Term Loans, Permitted Other Indebtedness and other Indebtedness in accordance with, and to the extent required by, Section 5.2(a)(i).
(c) Pending the final application of an amount equal to any Net Cash Proceeds from any Asset Sale made pursuant to this Section 10.4, the Borrower or the applicable Restricted Subsidiary may apply such Net Cash Proceeds temporarily to reduce Indebtedness outstanding under the Revolving Credit Facility or any other revolving credit facility or otherwise invest such Net Cash Proceeds in any manner not prohibited by this Agreement.
10.5 Limitation on Restricted Payments.
(a) The Borrower will not, and will not permit any Restricted Subsidiary to:
(1) declare or pay any dividend or make any payment or distribution on account of the Borrower’s or any Restricted Subsidiary’s Equity Interests, including any dividend or distribution payable in connection with any merger or consolidation, other than:
(A) dividends or distributions by the Borrower payable in Equity Interests (other than Disqualified Stock unless otherwise permitted hereby) of the Borrower or in options, warrants or other rights to purchase such Equity Interests; or
(B) dividends or distributions by any Restricted Subsidiary so long as, in the case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Subsidiary other than a Wholly-Owned Subsidiary, the Borrower or a Restricted Subsidiary, as applicable, receives at least its pro rata share of such dividend or distribution in accordance with its Equity Interests in such class or series of securities;
(2) purchase, redeem, defease or otherwise acquire or retire for value any Equity Interests of the Borrower or any direct or indirect parent of the Borrower, including in connection with any merger, amalgamation or consolidation, in each case held by Persons other than the Borrower or a Restricted Subsidiary which is a Credit Party;
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(3) make any principal payment on, or redeem, purchase, repurchase, defease or otherwise acquire or retire for value, in each case, prior to any scheduled repayment, sinking fund payment or maturity, any Subordinated Indebtedness with an aggregate principal amount in excess of the greater of (x) $50,000,000 and (y) 13.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such Restricted Payment (it being understood that payments of regularly scheduled principal, interest and mandatory prepayments shall be permitted), other than (A) Indebtedness permitted under clauses (g) and (h) of Section 10.1 or (B) the purchase, repurchase, redemption, defeasance, retirement for value or other acquisition of Subordinated Indebtedness 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 payment, redemption, repurchase, defeasance, acquisition or retirement; or
(4) make any Restricted Investment;
(all such payments and other actions set forth in clauses (1) through (4) above being collectively referred to as “Restricted Payments”), unless, at the time of such Restricted Payment, such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Borrower and the Restricted Subsidiaries after the Closing Date (excluding Restricted Payments permitted by Section 10.5(b)), is less than the sum of (without duplication):
(A) the greater of (i) an amount equal to 50% of the Consolidated Net Income of the Borrower for the period (taken as one accounting period) from the first day of the fiscal quarter during which the Closing Date occurs to the end of the Borrower’s most recently ended fiscal quarter for which financial statements have been delivered pursuant to Sections 9.1(a) or (b), or, in the case such Consolidated Net Income for such period is a deficit, minus 100% of such deficit (which amount in this clause (1) shall not be less than zero) and (2) Cumulative Retained Excess Cash Flow Amount (which amount in this clause (2) shall not be less than zero); provided, that amounts in respect of this clause (A) may only be used to make Restricted Payments described in clauses (a)(1) and (2) above, to the extent no Event of Default has occurred and is continuing, plus
(B) 100% of the aggregate net cash proceeds and the Fair Market Value of marketable securities or other property received by the Borrower since immediately after the Closing Date (other than net cash proceeds from Cure Amounts or to the extent such net cash proceeds have been used to incur or issue Indebtedness, Disqualified Stock or preferred Capital Stock pursuant to clause (l)(i) of Section 10.1) from the issue or sale of (x) Equity Interests of the Borrower, including Retired Capital Stock, but excluding cash proceeds and the Fair Market Value of marketable securities or other property received from the sale of (A) Equity Interests to any employee, director, manager or consultant of the Borrower, any direct or indirect parent of the Borrower and any of the Borrower’s Subsidiaries after the Closing Date to the extent such amounts have been applied to Restricted Payments made in accordance with clause (4) of Section 10.5(b) below, (B) Designated Preferred Stock, and, to the extent such net cash proceeds or such marketable securities or other property, or Terms contributed to the Borrower for cancellation (which contribution shall increase the amount otherwise available under this Section 10.5(a)(ii)(B) by an amount equal to the purchase price of such Term Loans) are actually contributed to the Borrower, Equity Interests of any direct or indirect parent of the Borrower (excluding contributions of the proceeds from the sale of Designated Preferred Stock to any such parent or contributions to the extent such amounts have been applied to Restricted Payments made in accordance with clause (4) of Section 10.5(b) below or the Fair Market Value marketable securities or other property, or Terms contributed to the Borrower for cancellation (which contribution shall increase the amount otherwise available under this Section 10.5(a)(ii)(B) by an amount equal to the purchase price of such Term Loans) or (y) Indebtedness, Disqualified Stock or preferred Capital Stock of the Borrower or a Restricted Subsidiary that has been converted into or exchanged for Equity Interests of the Borrower or any direct or indirect parent of the Borrower; provided that this clause (B) shall not include the proceeds from (a) Refunding Capital Stock, (b) Equity Interests or Indebtedness that has been converted or exchanged for Equity Interests of the Borrower sold to a Restricted Subsidiary, as the case may be, (c) Disqualified Stock or Indebtedness that has been converted or exchanged into Disqualified Stock or (d) Excluded Contributions, plus
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(C) 100% of the aggregate amount of cash and the Fair Market Value of marketable securities or other property contributed to the capital of the Borrower following the Closing Date (other than net cash proceeds from Cure Amounts or to the extent such net cash proceeds (i) have been used to incur Indebtedness, Disqualified Stock or preferred Capital Stock pursuant to clause (l)(i) of Section 10.1), (ii) are contributed by the Borrower or a Restricted Subsidiary or (iii) constitute Excluded Contributions), plus
(D) 100% of the aggregate amount received in cash and the Fair Market Value of marketable securities or other property received by means of (A) the sale or other disposition (other than to the Borrower or a Restricted Subsidiary) of Restricted Investments made by the Borrower or any Restricted Subsidiary and repurchases and redemptions of such Restricted Investments from the Borrower or any Restricted Subsidiary and repayments of loans or advances, and releases of guarantees, which constitute Restricted Investments made by the Borrower or any Restricted Subsidiary, in each case, after the Closing Date; or (B) the sale (other than to the Borrower or a Restricted Subsidiary) of the stock or other ownership interest of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary was made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5(b)(7) or to the extent such Investment constituted a Permitted Investment) or joint venture or a dividend from an Unrestricted Subsidiary or joint venture after the Closing Date, plus
(E) in the case of the redesignation of an Unrestricted Subsidiary as, or merger, consolidation or amalgamation of an Unrestricted Subsidiary with or into, a Restricted Subsidiary after the Closing Date, the Fair Market Value of the Investment in such Unrestricted Subsidiary at the time of the redesignation of such Unrestricted Subsidiary as, or merger, consolidation or amalgamation of such Unrestricted Subsidiary with or into, a Restricted Subsidiary, other than to the extent the Investment in such Unrestricted Subsidiary was made by the Borrower or a Restricted Subsidiary pursuant to Section 10.5(b)(7) below or to the extent such Investment constituted a Permitted Investment, plus
(F) the aggregate amount (without duplication of other amounts included pursuant to clause (A) hereof, of any (i) Retained Declined Proceeds, (ii) Retained ECF Payments, and (iii) Retained Asset Sale Proceeds not required to be prepaid pursuant to the Prepayment Trigger threshold, in each case since the Closing Date, plus
(G) the greater of (x) $75,000,000 and (y) 19.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such Restricted Payment; plus
(H) without duplication of any amounts above, any returns, profits, distributions and similar amounts received on account of a Restricted Investment made in reliance upon this Section 10.5(a).
(b) The foregoing provisions of Section 10.5(a) will not prohibit:
(1) the payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration thereof or the giving of such irrevocable 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 Agreement;
(2) (x) the redemption, repayment, repurchase, extinguishment, defeasance, retirement or other acquisition of any Equity Interests of the Borrower or any direct or indirect parent of the Borrower, including any accrued and unpaid dividends or distributions thereon (“Retired Capital Stock”), or Subordinated Indebtedness, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to Holdings, the Borrower or a Restricted Subsidiary) of, Equity Interests of the Borrower or any direct or indirect parent of the Borrower to the extent contributed to the Borrower (in the case of proceeds only) (in each case, other than Excluded Contributions, Cure Amounts, Disqualified Stock or sales of Equity Interests to any Subsidiary) (“Refunding Capital Stock”), (y) the declaration and payment of dividends or distributions on Retired Capital Stock out of the proceeds of the substantially concurrent sale or issuance (other than to the Borrower or a Restricted Subsidiary) of Refunding Capital Stock and (z) if immediately prior to the retirement of Retired Capital Stock, the declaration and payment of dividends or distributions thereon was permitted under Section 10.5(b)(6) and not made pursuant to clause (y) above, the declaration and payment of dividends or distributions on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which were used to redeem, repurchase, retire or otherwise acquire any Equity Interests of any direct or indirect parent of the Borrower) in an aggregate amount per year no greater than the aggregate amount of dividends per annum that were declarable and payable on such Retired Capital Stock immediately prior to such retirement;
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(3) the prepayment, redemption, repayment, defeasance, extinguishment, repurchase or other acquisition or retirement for value of Subordinated Indebtedness made by exchange for, or out of the proceeds of, the substantially concurrent sale of, new Indebtedness of the Borrower or a Restricted Subsidiary, as the case may be, which is incurred or issued in compliance with Section 10.1 so long as: (A) the principal amount (or accreted value, if applicable) of such new Indebtedness does not exceed the principal amount of (or accreted value, if applicable unless otherwise permitted), plus any accrued and unpaid interest on the Subordinated Indebtedness being so redeemed, defeased, repurchased, exchanged, acquired or retired for value, plus the amount of any premium (including call and tender premiums), defeasance costs, unused commitment amounts and any reasonable fees and expenses (including original issue discount, upfront fees and similar items) incurred in connection with the incurrence or issuance of such new Indebtedness, (B) such new Indebtedness is subordinated to the Obligations or the applicable Guarantee at least to the same extent (taken as a whole) as determined by the Borrower in good faith, in all material respects, as such Subordinated Indebtedness so purchased, exchanged, redeemed, defeased, repurchased, acquired or retired for value, (C) such new Indebtedness has a final scheduled maturity date equal to or later than the final scheduled maturity date of the Subordinated Indebtedness being so prepaid, repaid, redeemed, defeased, repurchased, exchanged, extinguished, acquired or retired, (D) if such Subordinated Indebtedness so purchased, exchanged, redeemed, repurchased, acquired or retired for value is (i) unsecured then such new Indebtedness shall be unsecured or (ii) Permitted Other Indebtedness incurred pursuant to Section 10.1(x)(b) and is secured by a Lien ranking junior to the Liens securing any First Lien Obligations then such new Indebtedness shall be unsecured or secured by a Lien ranking junior to the Liens securing any First Lien Obligations, and (E) such new Indebtedness has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Subordinated Indebtedness being so redeemed, repaid, prepaid, extinguished, defeased, repurchased, exchanged, acquired or retired;
(4) any Restricted Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Stock) of the Borrower or any direct or indirect parent of the Borrower held by any future, present or former employee, director, officer, manager or consultant of the Borrower, any of its Subsidiaries or any direct or indirect parent of the Borrower, or their respective estates, descendants, family, trusts, heirs, spouse or former spouse pursuant to any equityholder, employee or director equity plan or stock or other equity option plan or any other management or employee benefit plan or agreement, other compensatory arrangement or any stock or other equity subscription, co-invest or equityholder agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by the Borrower or any direct or indirect parent of the Borrower in connection with such repurchase, retirement or other acquisition), including any arrangement including Equity Interests rolled over by management of the Borrower, any Subsidiary of the Borrower or any direct or indirect parent of the Borrower in connection with the Transactions; provided that, except with respect to non-discretionary purchases, the aggregate Restricted Payments made under this clause (4) subsequent to the Closing Date do not exceed (i) before the occurrence of a Qualifying IPO, in any calendar year, the greater of (A) $25,000,000 or (B) 6.5% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis or (ii) after the occurrence of a Qualifying IPO, in any calendar year, the greater of (A) $40,000,000 or (B) 10.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis (in each case with unused amounts in any calendar year being carried over to succeeding calendar years)); provided, further, that such amount in any calendar year may be increased by an amount not to exceed: (A) the cash proceeds from the sale of Equity Interests (other than Disqualified Stock) of the Borrower and, to the extent contributed to the Borrower, the cash proceeds from the sale of Equity Interests of any direct or indirect parent of the Borrower, in each case to any future, present or former employees, directors, officers, managers or consultants of the Borrower, any of its Subsidiaries or any direct or indirect parent of the Borrower that occurs after the Closing Date, to the extent the cash proceeds from the sale of such Equity Interests have not otherwise been applied to the payment of Restricted Payments by virtue of Section 10.5(a)(iii), plus (B) the cash proceeds of key man life insurance policies received by the Borrower and the Restricted Subsidiaries after the Closing Date, less (C) the amount of any Restricted Payments previously made pursuant to subclauses (A) and (B) of this clause (4); and provided, further, that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employees, directors, officers, managers or consultants of the Borrower, any direct or indirect parent of the Borrower or any Restricted Subsidiary, or their estates, descendants, family, trusts, heirs, spouse or former spouse in connection with a repurchase of Equity Interests of the Borrower or any direct or indirect parent of the Borrower will not be deemed to constitute a Restricted Payment for purposes of this Section 10.5 or any other provision of this Agreement;
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(5) the declaration and payment of Restricted Payments to holders of any class or series of Disqualified Stock of the Borrower or any Restricted Subsidiary or any class or series of preferred Capital Stock of any Restricted Subsidiary, in each case, issued in accordance with Section 10.1;
(6) (A) the declaration and payment of Restricted Payments to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) issued by the Borrower or any Restricted Subsidiary after the Closing Date, (B) the declaration and payment of Restricted Payments to any direct or indirect parent of the Borrower, the proceeds of which will be used to fund the payment of Restricted Payments to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) of such parent; provided that the amount of Restricted Payments paid pursuant to this clause (B) shall not exceed the aggregate amount of cash actually contributed to the Borrower from the sale of such Designated Preferred Stock or (C) the declaration and payment of Restricted Payments on Refunding Capital Stock in excess of the dividends declarable and payable thereon pursuant to clause (2) of Section 10.5(b); provided that, in the case of each of subclauses (A), (B), and (C) of this clause (6), for the most recently ended Test Period as of the date of issuance of such Designated Preferred Stock or the declaration of such dividends on Refunding Capital Stock, after giving effect to such issuance or declaration on a Pro Forma Basis, the Borrower would have had an Interest Coverage Ratio of at least 2.00 to 1.00;
(7) Investments in (i) Unrestricted Subsidiaries, taken together with all other Investments made pursuant to this clause (7)(i) that are at the time outstanding, in an aggregate amount outstanding not to exceed the greater of (x) $125,000,000 and (y) 32.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such Investment (with the Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value) and (ii) joint ventures, taken together with all other Investments made pursuant to this clause (7)(ii) that are at the time outstanding, in an aggregate amount outstanding not to exceed the greater of (x) $125,000,000 and (y) 32.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such Investment (with the Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value);
(8) payments made or expected to be made by the Borrower or any Restricted Subsidiary in respect of withholding, employment or similar taxes payable by any future, present or former employee, director, manager, or consultant of the Borrower or any Restricted Subsidiary or any direct or indirect parent of the Borrower and any repurchases of Equity Interests deemed to occur upon exercise, vesting or settlement of, or payment with respect to, any equity or equity-based award, including, without limitation, stock or other equity options, stock or other equity appreciation rights, warrants, restricted equity units, restricted equity, deferred equity units or similar rights if such Equity Interests are used by the holder of such award to pay a portion of the exercise price of such options, appreciation rights, warrants or similar rights or to satisfy any required withholding or similar taxes with respect to any such award;
(9) the declaration and payment of dividends or distributions on the Borrower’s Equity Interests (or the payment of dividends or distributions to any direct or indirect parent of the Borrower to fund a payment of dividends or distributions on such parent’s Equity Interests), following consummation of the first public offering of the Borrower’s Equity Interests or the Equity Interests of any direct or indirect parent of the Borrower after the Closing Date, in an aggregate amount per annum not to exceed the sum of (x) 6.0% per annum of the net cash proceeds received by or contributed to the Borrower in or from any such public offering, plus (y) 6.0% of the market capitalization of Borrower or a direct or indirect parent of the Borrower, as applicable, in each case other than public offerings with respect to the Borrower’s (or its direct or indirect parent’s) Equity Interests registered on Form S-8 and other than any public sale constituting an Excluded Contribution;
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(10) Restricted Payments in an amount that does not exceed the amount of Excluded Contributions made since the Closing Date;
(11) Restricted Payments in an aggregate amount taken together with all other Restricted Payments made pursuant to this clause (11) not to exceed the greater of (x) $125,000,000 and (y) 32.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time made (this clause (11), the “General Restricted Payments Basket”);
(12) Restricted Payments of Receivables Fees and Securitization Fees;
(13) any Restricted Payment made in connection with the Transactions (and the fees and expenses related thereto) or used to fund amounts owed to Affiliates (including dividends or distributions to any direct or indirect company of the Borrower to permit payment by such parent of such amount) to the extent permitted by Section 9.10 (other than clause (b) thereof), and Restricted Payments in respect of working capital adjustments or purchase price adjustments pursuant to the Acquisition Agreement, any Permitted Acquisition, any Permitted Investment or other Investment permitted hereby and to satisfy indemnity and other similar obligations under the Acquisition Agreement, any Permitted Acquisition, any Permitted Investment or other Investment permitted hereby;
(14) Restricted Payments; provided that after giving Pro Forma Effect to such Restricted Payments the Total Net Leverage Ratio is equal to or less than 4.80 to 1.00 as of the most recently ended Test Period;
(15) the declaration and payment of dividends or distributions by the Borrower to, or the making of loans or advances to, any direct or indirect parent of the Borrower in amounts required for any such direct or indirect parent (or such parent’s direct or indirect equity owners) to pay:
(A) franchise, excise and similar taxes, and other fees and expenses, required to maintain such direct or indirect parent’s corporate, legal and organizational existence including legal and accounting and other costs directly attributable to maintaining its corporate, legal, or organizational existence and out-of-pocket costs attributable to the preparation of tax returns,
(B) for any taxable period in respect of which the Borrower and/or any of its Subsidiaries is a member of a consolidated, combined or similar income tax group of which a direct or indirect parent of the Borrower is the common parent (a “Tax Group”), income taxes of the Tax Group solely to the extent that such income taxes are attributable to the income of the Borrower and its applicable Restricted Subsidiaries and, to the extent of the amount actually received by the Borrower or its Restricted Subsidiaries from its applicable Unrestricted Subsidiaries for such purpose to the income of such Unrestricted Subsidiaries, provided that in each case the amount of such payments with respect to any taxable year does not exceed the amount that the Borrower, the applicable Restricted Subsidiaries and the applicable Unrestricted Subsidiaries (to the extent described above) would have been required to pay in respect of such income taxes for such fiscal year had the Borrower, the applicable Restricted Subsidiaries and the applicable Unrestricted Subsidiaries (to the extent described above) been a stand-alone taxpayer or stand-alone tax group (separate from any such direct or indirect parent of the Borrower) for all taxable years ending after the Closing Date,
(C) customary salary, bonus, severance (including, in each case, payroll, social security and similar taxes in respect thereof) and other benefits payable to, and indemnities provided on behalf of, officers, employees, directors, consultants and managers of any direct or indirect parent of the Borrower to the extent such salaries, bonuses, and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries, including the Borrower’s and the Restricted Subsidiaries’ proportionate share of such amount relating to such parent being a public company and Public Company Costs,
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(D) general corporate, administrative, compliance or other operating (including, without limitation, expenses related to auditing or other accounting matters and director indemnities, fees and expenses) and overhead costs and expenses of any direct or indirect parent of the Borrower to the extent such costs and expenses are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries, including the Borrower’s and the Restricted Subsidiaries’ proportionate share of such amount relating to such parent company being a public company and Public Company Costs,
(E) amounts required for any direct or indirect parent of the Borrower to pay fees and expenses incurred by any direct or indirect parent of the Borrower related to (i) the maintenance by such parent entity of its corporate or other entity existence and (ii) transactions of such parent of the type described in clause (xi) of the definition of Consolidated Net Income,
(F) cash payments in lieu of issuing fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of the Borrower or any direct or indirect parent of the Borrower,
(G) repurchases deemed to occur upon the cashless exercise of stock or other equity options,
(H) to finance Permitted Acquisition and other Investments or other acquisitions otherwise permitted to be made pursuant to this Section 10.5 if made by the Borrower or a Restricted Subsidiary; provided, that (i) such Restricted Payment shall be made substantially concurrently with the closing of such Investment or other acquisition, (ii) such direct or indirect parent of the Borrower shall, promptly following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or a Restricted Subsidiary or (2) the merger, amalgamation, consolidation, or sale of the Person formed or acquired into the Borrower or a Restricted Subsidiary (in a manner not prohibited by Section 10.3) in order to consummate such Investment or other acquisition, (iii) such direct or indirect parent of the Borrower and its Affiliates (other than the Borrower or a Restricted Subsidiary) receives no consideration or other payment in connection with such transaction except to the extent the Borrower or a Restricted Subsidiary could have given such consideration or made such payment in compliance herewith, (iv) any property received in connection with such transaction shall not constitute an Excluded Contribution or increase amounts available for Restricted Payments pursuant to Section 10.5(a)(iii)(C) and (v) to the extent constituting an Investment, such Investment shall be deemed to be made by the Borrower or such Restricted Subsidiary pursuant to another provision of this Section 10.5 or pursuant to the definition of Permitted Investments,
(I) to the extent constituting Restricted Payments, amounts that would be permitted to be paid directly by the Borrower or its Restricted Subsidiaries under Section 9.10 (other than Section 10.9(b)),
(J) AHYDO Payments with respect to Indebtedness of any direct or indirect parent of the Borrower; provided that the proceeds of such Indebtedness have been contributed to the Borrower as a capital contribution, and
(K) expenses incurred by any direct or indirect parent of the Borrower in connection with any public offering or other sale of Capital Stock or Indebtedness (i) where the net proceeds of such offering or sale are intended to be received by or contributed to the Borrower or a Restricted Subsidiary, (ii) in a pro-rated amount of such expenses in proportion to the amount of such net proceeds intended to be so received or contributed or (iii) otherwise on an interim basis prior to completion of such offering so long as any direct or indirect parent of the Borrower shall cause the amount of such expenses to be repaid to the Borrower or the relevant Restricted Subsidiary out of the proceeds of such offering promptly if completed;
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(16) the repurchase, redemption or other acquisition for value of Equity Interests of the Borrower or Restricted Subsidiary deemed to occur in connection with paying cash in lieu of fractional shares of such Equity Interests in connection with a share dividend, distribution, share split, reverse share split, merger, consolidation, amalgamation or other business combination of the Borrower or any Restricted Subsidiary, in each case, permitted under this Agreement;
(17) the distribution, by dividend or otherwise, of shares of Capital Stock or other assets of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries or the proceeds thereof;
(18) any Restricted Payment constituting any part of a Permitted Reorganization or IPO Reorganization Transaction;
(19) the prepayment, redemption, defeasance, repurchase or other acquisition or retirement for value of Subordinated Indebtedness in an aggregate amount pursuant to this clause (19) not to exceed the greater of (x) $125,000,000 and (y) 32.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time such prepayment, redemption, defeasance, repurchase or other acquisition or retirement for value is made (this clause (19), the “General Subordinated Payments Basket”); and
(20) AHYDO Payments with respect to Indebtedness permitted under Section 10.1;
provided that at the time of, and after giving effect to, any Restricted Payment permitted under clauses (9) and (14), no Event of Default shall have occurred and be continuing or would occur as a consequence thereof (or in the case of a Restricted Investment, no Event of Default under Section 11.1 or 11.5 shall have occurred and be continuing or would occur as a consequence thereof).
For purposes of determining compliance with this covenant, in the event that a proposed Restricted Payment or Investment (or a portion thereof) meets the criteria of clauses (1) through (20) above or is entitled to be made pursuant to Section 10.5(a) and/or one or more of the exceptions contained in the definition of Permitted Investments, the Borrower will be entitled to classify or later reclassify (based on circumstances existing on the date of such reclassification) such Restricted Payment (or portion thereof) among such clauses (1) through (20), Section 10.5(a) and/or one or more of the exceptions contained in the definition of “Permitted Investments,” in a manner that otherwise complies with this covenant.
(c) [Reserved].
10.6 Limitation on Subsidiary Distributions. The Borrower will not, and will not permit any Restricted Subsidiary that is not a Guarantor to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Borrower or any Restricted Subsidiary that is a Guarantor on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits or (ii) pay any Indebtedness owed to the Borrower or any Restricted Subsidiary that is a Guarantor;
(b) make loans or advances to the Borrower or any Restricted Subsidiary that is Guarantor;
(c) sell, lease or transfer any of its properties or assets to the Borrower or any Restricted Subsidiary that is a Guarantor;
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except (in each case) for such encumbrances or restrictions (x) which the Borrower has reasonably determined in good faith will not materially impair the Borrower’s ability to make payments under this Agreement when due or (y) existing under or by reason of:
(i) restrictions and encumbrances imposed by contractual encumbrances or restrictions in effect on the Closing Date, including pursuant to this Agreement and the related documentation and related Hedging Obligations;
(ii) restrictions and encumbrances imposed by the Senior Notes Indenture and all other Senior Note Documents;
(iii) restrictions and encumbrances imposed by purchase money obligations and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (a), (b) or (c) above on the property so acquired, any replacements of such property or assets and additions and accessions thereto, after-acquired property subject to such arrangement, the proceeds and the products thereof and customary security deposits in respect thereof and in the case of multiple financings of equipment (or assets affixed or appurtenant thereto and additions and accessions) provided by any lender, other equipment (or assets affixed or appurtenant thereto and additions and accessions) financed by such lender (it being understood that such restriction shall not be permitted to apply to any property to which such restriction would not have applied but for such acquisition);
(iv) restrictions and encumbrances imposed by Requirement of Law or any applicable rule, regulation or order, or any request of any Governmental Authority having regulatory authority over the Borrower or any of its Subsidiaries;
(v) restrictions and encumbrances imposed by any agreement or other instrument of a Person acquired by or merged or consolidated with or into the Borrower or any Restricted Subsidiary, or of an Unrestricted Subsidiary that is designated a Restricted Subsidiary, or that is assumed in connection with the acquisition of assets from such Person, in each case that is in existence at the time of such transaction (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 or designated, any replacements of such property or assets and additions and accessions thereto, after-acquired property subject to such agreement or instrument, the proceeds and the products thereof and customary security deposits in respect thereof and in the case of multiple financings of equipment (or assets affixed or appurtenant thereto and additions and accessions) provided by any lender, other equipment (or assets affixed or appurtenant thereto and additions and accessions) financed by such lender (it being understood that such encumbrance or restriction shall not be permitted to apply to any property to which such encumbrance or restriction would not have applied but for such acquisition);
(vi) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Borrower pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary and restrictions on transfer of assets subject to Permitted Liens;
(vii) (x) secured Indebtedness otherwise permitted to be incurred pursuant to Sections 10.1 and 10.2 that limit the right of the debtor to dispose of the assets securing such Indebtedness and (y) restrictions or encumbrances on transfers of assets subject to Permitted Liens (but, with respect to any such Permitted Lien, only to the extent that such transfer restrictions apply solely to the assets that are the subject of such Permitted Lien);
(viii) restrictions or encumbrances on cash or other deposits or net worth imposed by customers under, or made necessary or advisable by, contracts entered into in the ordinary course of business;
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(ix) restrictions or encumbrances imposed by other Indebtedness, Disqualified Stock or preferred Capital Stock of Restricted Subsidiaries permitted to be incurred subsequent to the Closing Date pursuant to the provisions of Section 10.1;
(x) customary provisions in joint venture agreements, shareholder agreements or arrangements and other similar agreements or arrangements relating solely to such joint venture (including its assets and Subsidiaries) and the Equity Interests issued thereby;
(xi) customary provisions contained in leases, sub-leases, licenses, sub-licenses or similar agreements, in each case, entered into in the ordinary course of business;
(xii) restrictions and encumbrances created in connection with any Receivables Facility or any Securitization Facility that, in the good faith determination of the board of directors (or analogous governing body) of the Borrower, are necessary or advisable to effect such Receivables Facility or Securitization Facility, as the case may be;
(xiii) customary restrictions and encumbrances on leases, subleases, licenses, sublicenses or asset sale agreements otherwise permitted hereby so long as such restrictions relate to property interest, rights or the assets subject thereto;
(xiv) customary provisions restricting assignment or transfer of any agreement entered into in the ordinary course of business; or
(xv) any encumbrances or restrictions of the type referred to in clauses (a), (b), and (c) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xiv) above; provided that such amendments, modifications, restatements, renewals, increases, extensions, supplements, refundings, replacements, restructurings, or refinancings (x) are, in the good faith judgment of the Borrower, not materially more restrictive with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, extension, supplement, refunding, replacement, restructuring or refinancing or (y) do not materially impair the Borrower’s ability to pay its obligations under the Credit Documents as and when due (as determined in good faith by the Borrower).
provided that (x) the priority of any preferred Capital Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Borrower or any Restricted Subsidiary that is a Guarantor to other Indebtedness incurred by the Borrower or any Restricted Subsidiary that is a Guarantor shall not be deemed to constitute such an encumbrance or restriction.
10.7 Organizational and Subordinated Indebtedness Documents. The Borrower will not, and will not permit any Restricted Subsidiary to:
(a) amend its Organizational Documents after the Closing Date in a manner that is materially adverse to the Lenders, except as required by law; or
(b) amend (i) documentation governing Subordinated Indebtedness having a principal amount of more than the greater of (x) $50,000,000 and (y) 13.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) or (ii) the documentation governing Indebtedness of Holdings, in each case in a manner materially adverse to the Lenders, other than in connection with (i) a refinancing or replacement of such Indebtedness permitted hereunder or (ii) in a manner expressly permitted by, or not prohibited under, the applicable intercreditor or subordination terms or agreement(s) governing the relationship between the Lenders, on the one hand, and the lenders or purchasers of the applicable Subordinated Indebtedness, on the other hand.
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10.8 Permitted Activities. Holdings will not engage in any material operating or business activities; provided that the following and any activities incidental or related thereto shall be permitted in any event: (i) its ownership of the Equity Interests of the Borrower and Borrower’s other Subsidiaries and Holdings’ other Subsidiaries, including receipt and payment of Restricted Payments and other amounts in respect of Equity Interests, (ii) the maintenance of its legal existence (including the ability to incur and pay, as applicable, fees, costs and expenses and taxes relating to such maintenance), (iii) the performance of its obligations with respect to the Transactions (including under the Acquisition Agreement), the Credit Documents, the Senior Notes, the Senior Notes Indenture, the Senior Notes Documents and any other documents governing Indebtedness permitted hereby, (iv) any public offering of its or a direct or indirect parent entity’s common equity or any other issuance or sale of its or a direct or indirect parent entity’s Equity Interests, (v) financing activities, including the issuance of securities, incurrence of debt, receipt and payment of dividends and distributions, making contributions to the capital of its Subsidiaries and guaranteeing the obligations of the Borrower, Holdings, and their other direct and indirect Subsidiaries, (vi) if applicable, participating in tax, accounting and other administrative matters as a member of the consolidated group and the provision of administrative and advisory services (including treasury and insurance services) to its Subsidiaries of a type customarily provided by a holding company to its direct and indirect Subsidiaries, (vii) holding any cash or property (but not operate any material or corollary property), (viii) making and receiving of any Restricted Payments or Investments permitted hereunder, (ix) providing indemnification to officers and directors, (x) activities relating to any Permitted Reorganization, a Qualifying IPO or IPO Reorganization Transaction, (xi) merging, amalgamating or consolidating with or into any direct or indirect parent or subsidiary of Holdings (in compliance with the definitions of “Holdings” and “New Holdings” in this Agreement), (xii) repurchases of Indebtedness through open market purchases and Dutch auctions, (xiii) activities incidental to Permitted Acquisitions or similar Investments consummated by the Borrower, Holdings and their direct and indirect Subsidiaries, including the formation of acquisition vehicle entities and intercompany loans and/or Investments incidental to such Permitted Acquisitions or similar Investments, (xiv) any transaction with the Borrower or any Restricted Subsidiary to the extent expressly permitted under this Section 10 and (xv) any activities incidental or reasonably related to the foregoing.
10.9 First Lien Net Leverage Ratio. Solely with respect to the Revolving Credit Facility, the Borrower will not permit the First Lien Net Leverage Ratio, as of the last day of any Test Period on which day the Compliance Trigger is exceeded, to exceed 7.50:1.00. The provisions of this Section 10.9 are for the benefit of the Revolving Credit Lenders only, and the Required Facility Lenders under the Revolving Credit Facility may (a) amend, waive or otherwise modify this Section 10.9, or the defined terms used solely for purposes of this Section 10.9, or (b) waive any Default or Event of Default resulting from a breach of this Section 10.9, in each case under the foregoing clauses (a) and (b), without the consent of any Lenders other than the Required Facility Lenders under the Revolving Credit Facility in accordance with the provisions of Section 13.1.
SECTION 11
Events of Default
Each of the following specified events referred to in Sections 11.1 through 11.11 shall constitute an “Event of Default”:
11.1 Payments. The Borrower shall (a) default in the payment when due of any principal of the Loans, (b) default, and such default shall continue for five or more Business Days, in the payment when due of any interest on the Loans or (c) default, and such default shall continue for ten or more Business Days, in the payment when due of any Fees or any Unpaid Drawings or of any other amounts owing hereunder or under any other Credit Document; or
11.2 Representations, Etc. (a) On the Closing Date, any Specified Representation made by any Credit Party shall be false or incorrect in any material respect as of the Closing Date and (b) after the Closing Date, any representation and warranty made or deemed made by any Credit Party herein or in any other Credit Document or any certificate delivered or required to be delivered pursuant hereto or thereto shall prove to be untrue in any material respect on the date as of which made or deemed made, and, to the extent capable of being cured, such incorrect representation and warranty shall remain incorrect in any material respect for a period of 30 days after written notice thereof from the Administrative Agent to the Borrower; or
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11.3 Covenants. Any Credit Party shall:
(a) default in the due performance or observance by it of any term, covenant or agreement contained in Section 9.1(e)(i) (provided that the delivery of a notice of an Event of Default at any time will cure any Event of Default resulting from a breach of Section 9.1(e)(i) arising from the failure to timely deliver such notice), Section 9.5(a) (solely with respect to the Borrower’s existence) or Section 10; provided that (1) any default under Section 10.9 shall not constitute an Event of Default with respect to the Term Loans, (2) the Term Loans may not be accelerated as a result thereof and (3) Administrative Agent and the Collateral Agent may not exercise rights and remedies with regard to the Collateral, in each case, until the date on which the Revolving Credit Loans (if any) have been accelerated and the Revolving Credit Commitments have been terminated by the Required Revolving Credit Lenders (and such declaration has not been rescinded); provided, further, that any Event of Default under Section 10.9 is subject to cure as provided in Section 11.14 and an Event of Default with respect to Section 10.9 shall not occur until the expiration of the fifteenth Business Day after the date that the relevant financial statements are required to be delivered pursuant to Section 9.1(a) or (b), as applicable, for the fiscal quarter in which such default occurred; or
(b) default in the due performance or observance by it of any term, covenant or agreement (other than those referred to in Section 11.1 or 11.2 or clause (a) of this Section 11.3) contained in this Agreement or any Security Document and such default shall continue unremedied for a period of at least 30 days after receipt by the Borrower of written notice thereof from the Administrative Agent.
11.4 Default Under Other Agreements. (a) The Borrower or any of the Restricted Subsidiaries shall (i) default in any payment with respect to any Indebtedness (other than the Obligations) in excess of the greater of (x) $50,000,000 and (y) 13.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) in the aggregate, the Borrower and such Restricted Subsidiaries, beyond the period of grace and following all required notices, if any, provided in the instrument or agreement under which such Indebtedness was created or (ii) default in the observance or performance of any agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist (after giving effect to all applicable grace periods and delivery of all required notices) (other than, with respect to Indebtedness consisting of any Hedge Agreements, termination events or equivalent events pursuant to the terms of such Hedge Agreements (it being understood that clause (i) shall apply to any failure to make any payment in excess of the greater of (x) $50,000,000 and (y) 13.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) that is required as a result of any such termination or similar event and that is not otherwise being contested in good faith)), the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, any such Indebtedness to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or (b) without limiting the provisions of clause (a) above, any such Indebtedness shall be declared to be due and payable, or required to be prepaid other than by a regularly scheduled required prepayment or as a mandatory prepayment (and, with respect to Indebtedness consisting of any Hedge Agreements, other than due to a termination event or equivalent event pursuant to the terms of such Hedge Agreements (it being understood that clause (a)(i) above shall apply to any failure to make any payment in excess of the greater of (x) $50,000,000 and (y) 13.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) that is required as a result of any such termination or equivalent event and that is not otherwise being contested in good faith)), prior to the stated maturity thereof; provided that clauses (a) and (b) above shall not apply to (x) secured Indebtedness that becomes due as a result of the sale, transfer or other disposition (including as a result of a casualty or condemnation event) of the property or assets securing such Indebtedness (to the extent such sale, transfer or other disposition is not prohibited under this Agreement or is otherwise reasonably expected to be permitted), (y) Indebtedness which is convertible into Equity Interests and converts to Equity Interests in accordance with its terms and such conversion is not prohibited hereunder, or (z) any breach or default that is (I) remedied, or being contested in good faith, by Holdings, the Borrower or the applicable Restricted Subsidiary or (II) waived (including in the form of amendment) by the required holders of the applicable item of Indebtedness, in either case, prior to the acceleration of Loans pursuant to this Section 11; or
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11.5 Bankruptcy, Etc.. Except as otherwise permitted by Section 10.3, Holdings, the Borrower or any Significant Subsidiary shall commence a voluntary case, proceeding or action concerning itself under (a) Title 11 of the United States Code entitled “Bankruptcy,” or (b) in the case of any Foreign Subsidiary (other than a Subsidiary which falls under the German Insolvency Code (Insolvenzordnung), a “German Subsidiary” or a subsidiary organized or incorporated under the laws of Switzerland, a “Swiss Subsidiary”) that is a Significant Subsidiary (other than a German Subsidiary or a Swiss Subsidiary), any domestic or applicable foreign law relating to bankruptcy, judicial management, insolvency, liquidation, receivership, reorganization, administration or relief of debtors in effect in its jurisdiction of organization or incorporation, in each case as now or hereafter in effect, or any successor thereto (collectively, the “Bankruptcy Code”); or an involuntary case, proceeding or action is commenced against Holdings, the Borrower or any Significant Subsidiary (other than a German Subsidiary or a Swiss Subsidiary) and the petition is not dismissed or stayed within 60 consecutive days after commencement of the case, proceeding or action; or a custodian (as defined in the Bankruptcy Code), judicial manager, compulsory manager, receiver, receiver manager, trustee, liquidator, administrator, administrative receiver or similar Person is appointed for, or takes charge of, all or substantially all of the property of Holdings, the Borrower or any Significant Subsidiary (other than a German Subsidiary or a Swiss Subsidiary); or Holdings, the Borrower or any Significant Subsidiary (other than a German Subsidiary or a Swiss Subsidiary) commences any other voluntary proceeding or action under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency, winding-up, administration or liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to Holdings, the Borrower or any Significant Subsidiary (other than a German Subsidiary or a Swiss Subsidiary); or there is commenced against Holdings, the Borrower or any Significant Subsidiary (other than a German Subsidiary or a Swiss Subsidiary) any such proceeding or action that remains undismissed or unstayed for a period of 60 consecutive days; or Holdings, the Borrower or any Significant Subsidiary (other than a German Subsidiary or a Swiss Subsidiary) is adjudicated bankrupt; or any order of relief or other order approving any such case or proceeding or action is entered; or Holdings, the Borrower or any Significant Subsidiary (other than a German Subsidiary or a Swiss Subsidiary) suffers any appointment of any custodian receiver, receiver manager, trustee, administrator or the like for it or substantially all of its property to continue undischarged or unstayed for a period of 60 consecutive days; or Holdings, the Borrower or any Significant Subsidiary (other than a German Subsidiary or a Swiss Subsidiary) makes a general assignment for the benefit of creditors; or any Significant Subsidiary which is a German Subsidiary is illiquid or over-indebted in the sense of sections 17 or 19 of the German Insolvency Code (Insolvenzordnung) or files for the opening of any insolvency proceeding pursuant to the German Insolvency Code (Insolvenzordnung); or in respect of a Swiss Subsidiary, (a) a filing for the declaration of bankruptcy (Antrag auf Konkurseröffnung) or a formal declaration of bankruptcy (Konkurseröffnung) within the meaning of the Swiss Federal Act on Debt Enforcement and Bankruptcy (Bundesgesetz über Schuldbetreibung und Konkurs), (ii) the filing for a request for a moratorium (Gesuch um Nachlasstundung) or a grant of a moratorium (Nachlassstundung) within the meaning of the Swiss Federal Act on Debt Enforcement and Bankruptcy (Bundesgesetz über Schuldbetreibung und Konkurs), (iii) institutes or has instituted against it for a moratorium on any of its indebtedness, its dissolution or liquidation, (iv) a postponement of a bankruptcy (Konkursaufschub) within the meaning of Art. 725a of the Swiss Code of Obligations (Schweizerisches Obligationenrecht), (v) becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due or (vi) makes a general assignment, arrangement or composition with or for the benefit of its creditors.
11.6 ERISA. An ERISA Event or a Foreign Plan Event shall have occurred, and such ERISA Event or Foreign Plan Event, alone or together with all other such ERISA Events and Foreign Plan Events, if any, would reasonably be expected to result in a Material Adverse Effect; or
11.7 Guarantee. Subject to Legal Reservations, any Guarantee provided by Holdings or any Guarantor that is a Material Subsidiary, or any material provision thereof, shall cease to be in full force or effect (other than pursuant to the terms hereof or thereof or as a result of the acts, omissions or mistakes of the Administrative Agent or Collateral Agent) or any Credit Party shall deny or disaffirm in writing any such Guarantor’s material obligations under its Guarantee; or
11.8 Pledge Agreements. Subject to Legal Reservations, the Security Documents (as to a material portion of the Collateral) pursuant to which the Capital Stock of the Borrower or any Material Subsidiary is pledged or any material provision thereof shall cease to be in full force or effect (other than pursuant to the terms hereof or thereof, as a result of acts or omissions of the Collateral Agent within its control or required to be taken (or not taken) under the Credit Documents or as a result of the Collateral Agent’s failure to maintain possession of any Capital Stock that has been previously delivered to it) or any Credit Party shall deny or disaffirm in writing such Credit Party’s obligations under any Security Document; or
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11.9 Security Agreement. Subject to Legal Reservations, the Security Agreements or any other Security Document (as to a material portion of the Collateral) pursuant to which the assets of Holdings, the Borrower or any Material Subsidiary are pledged as Collateral or any material provision thereof shall cease to be in full force or effect (other than pursuant to the terms hereof or thereof, as a result of acts or omissions of the Collateral Agent within its control or required to be taken (or not taken) under the Credit Documents), which results in the Collateral Agent ceasing to have (on behalf of the Lenders) a perfected security interests on a material portion of the Collateral on the terms and conditions set forth in such Security Documents or any Credit Party shall deny or disaffirm in writing its obligations under the Security Documents; or
11.10 Judgments. One or more final judgments or decrees shall be entered against Holdings, the Borrower or any of the Material Subsidiaries involving a liability requiring the payment of money in an amount of the greater of (x) $50,000,000 and (y) 13.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) or more in the aggregate for all such final judgments and decrees against Holdings, the Borrower and the Material Subsidiaries (to the extent not paid or covered by insurance or indemnities as to which the applicable insurance company or third party has not denied coverage) and any such final judgments or decrees shall not have been satisfied, vacated, discharged or stayed or bonded pending appeal within 60 consecutive days after the entry thereof; or
11.11 Change of Control. A Change of Control shall occur.
11.12 Remedies Upon Event of Default. If an Event of Default occurs and is continuing (other than in the case of an Event of Default under Section 11.3(a) with respect to any default of performance or compliance with the covenant under Section 10.9 prior to the date the Revolving Credit Loans (if any) have been accelerated and the Revolving Credit Commitments have been terminated (and such declaration has not been rescinded)), the Administrative Agent shall, upon the written request of the Required Lenders, by written notice to the Borrower, take any or all of the following actions, without prejudice to the rights of the Administrative Agent to enforce the claims of itself or the Lenders against Holdings and the Borrower, except as otherwise specifically provided for in this Agreement (provided that, if an Event of Default specified in Section 11.5 shall occur with respect to Holdings or the Borrower, the result that would occur upon the giving of written notice by the Administrative Agent as specified in clauses (i), (ii), (iii), and (iv) below shall occur automatically without the giving of any such notice): (i) declare the Total Revolving Credit Commitment terminated, whereupon the Revolving Commitments, if any, of each Lender shall forthwith terminate immediately and any Fees theretofore accrued shall forthwith become due and payable without any other notice of any kind; (ii) declare the principal of and any accrued interest and fees in respect of all Loans and all Obligations to be, whereupon the same shall become, forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower to the extent permitted by applicable law; (iii) terminate any Letter of Credit that may be terminated in accordance with its terms; and/or (iv) direct the Borrower to pay (and the Borrower agrees that upon receipt of such notice, or upon the occurrence of an Event of Default specified in Section 11.5 with respect to the Borrower, it will pay) to the Administrative Agent at the Administrative Agent’s Office such additional amounts of cash, to be held as security for the Borrower’s reimbursement obligations for Drawings that may subsequently occur thereunder, equal to the aggregate Stated Amount of all Letters of Credit issued and then outstanding. In the case of an Event of Default under Section 11.3(a) in respect of a failure to observe or perform the covenant under Section 10.9 (provided that the actions hereinafter described will be permitted to occur only following the expiration of the ability to effectuate the Cure Right if such Cure Right has not been so exercised, and at any time thereafter during the continuance of such event), the Administrative Agent shall, upon the written request of the Required Revolving Credit Lenders under the Revolving Credit Facility, by written notice to the Borrower, take either or both of the following actions, at the same or different times (except the following actions may not be taken until the ability to exercise the Cure Right under Section 11.14 has expired (but may be taken as soon as the ability to exercise the Cure Right has expired and it has not been so exercised)): (i) declare the Revolving Credit Commitment terminated, whereupon the Revolving Credit Commitment, if any, of each Lender shall forthwith terminate immediately and any Fees theretofore accrued shall forthwith become due and payable without any other notice of any kind; and (ii) declare the Revolving Credit Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter, during the continuance of such event, be declared to be due and payable), and thereupon the principal of the Revolving Credit Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower (to the extent permitted by applicable law).
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11.13 Application of Proceeds. Subject to the terms of the Junior Lien Intercreditor Agreement, the Pari Intercreditor Agreement and any other intercreditor agreement permitted by this Agreement, any amount received by the Administrative Agent or the Collateral Agent from any Credit Party (or from proceeds of any Collateral) following any acceleration of the Obligations under this Agreement or any Event of Default with respect to the Borrower under Section 11.5 shall be applied:
(i) first, to the payment of all reasonable and documented out-of-pocket costs and expenses incurred by the Administrative Agent or the Collateral Agent in connection with any collection or sale of the Collateral or otherwise in connection with any Credit Document, including all court costs and the reasonable fees and expenses of its agents and legal counsel, the repayment of all advances made by the Administrative Agent or the Collateral Agent hereunder or under any other Credit Document on behalf of any Credit Party and any other reasonable and documented out-of-pocket costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Credit Document, in each case to the extent reimbursable hereunder or thereunder;
(ii) second, to the Secured Parties, an amount (x) equal to all Obligations owing to them on the date of any distribution and (y) sufficient to Cash Collateralize all Letters of Credit Outstanding on the date of any distribution, and, if such moneys shall be insufficient to pay such amounts in full and Cash Collateralize all Letters of Credit Outstanding, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the unpaid amounts thereof and to Cash Collateralize the Letters of Credit Outstanding; and
(iii) third, any surplus then remaining shall be paid to the applicable Credit Parties or their successors or assigns or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct;
provided that any amount applied to Cash Collateralize any Letters of Credit Outstanding that has not been applied to reimburse the Borrower for Unpaid Drawings under the applicable Letters of Credit at the time of expiration of all such Letters of Credit shall be applied by the Administrative Agent in the order specified in clauses (i) through (iii) above. Notwithstanding the foregoing, amounts received from any Guarantor that is not an “Eligible Contract Participant” (as defined in the Commodity Exchange Act) shall not be applied to its Obligations that are Excluded Swap Obligations.
11.14 Equity Cure. Notwithstanding anything to the contrary contained in this Section 11, in the event that the Borrower fails to comply with the requirement of the financial covenant set forth in Section 10.9, the Borrower may elect to cure such failure (the “Cure Right”) by including in the calculation of such financial covenant the cash net equity proceeds derived from an issuance of Capital Stock or Stock Equivalents (other than Disqualified Stock, unless reasonably satisfactory to the Administrative Agent) by the Borrower, or from a contribution to the common equity capital of the Borrower, in each case, received at any time from the first day of the last fiscal quarter of the Test Period in respect of which such financial covenant is being measured until the expiration of the fifteenth Business Day following the date financial statements referred to in Section 9.1(a) or (b) (such period, the “Cure Period”) are required to be delivered in respect of such Test Period for which such financial covenant is being measured (such cash amount being referred to as the “Cure Amount”), and upon such election by the Borrower to exercise such Cure Right, such financial covenant shall be recalculated giving effect to the following pro forma adjustments:
(a) Consolidated EBITDA shall be increased, solely for the purpose of determining the existence of an Event of Default resulting from a breach of the financial covenant set forth in Section 10.9 with respect to any period of four consecutive fiscal quarters that includes the fiscal quarter for which the Cure Right was exercised and not for any other purpose under this Agreement, by an amount equal to the Cure Amount;
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(b) to the extent proceeds of the Cure Amount are applied to repay any Indebtedness, the calculation of the covenant in Section 10.9 shall not give pro forma effect to such repayment for the Test Period ending with the fiscal quarter for which the Cure Right is exercised (but shall be given effect in calculations of the covenant in Section 10.9 in subsequent fiscal quarters) unless such proceeds are actually applied to prepay Loans pursuant to Section 5.1; and
(c) if, after giving effect to the foregoing recalculations, the Borrower shall then be in compliance with the requirements of the financial covenant set forth in Section 10.9, the Borrower shall be deemed to have satisfied the requirements of the financial covenant set forth in Section 10.9 as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of such financial covenant that had occurred shall be deemed cured for the purposes of this Agreement; provided that (i) in each period of four consecutive fiscal quarters there shall be at least two fiscal quarters in which no Cure Right is exercised, (ii) there shall be a maximum of five Cure Rights exercised during the term of this Agreement, (iii) each Cure Amount shall be no greater than the amount required to cause the Borrower to be in compliance with the financial covenant set forth in Section 10.9 (it being understood that to the extent the notice described in the immediately succeeding paragraph is provided in advance of delivery of a Compliance Certificate for the applicable fiscal period, the amount of such net equity proceeds that is designated as the Cure Amount may be lower than the amount specified in such notice to the extent the amount necessary to cure such Event of Default is less than the full amount originally designated); and (iv) all Cure Amounts shall be disregarded for the purposes of any financial ratio determination under the Credit Documents other than for determining compliance with Section 10.9.
The Borrower shall not be permitted to borrow Revolving Loans or make any Letter of Credit Request in respect of issuing a new Letter of Credit or otherwise extending or increasing the face amount of an existing Letter of Credit unless and until (x) the proceeds of the issuance or contribution, as the case may be, constituting the Cure Amount shall have been received by the Borrower such that, upon recalculation taking into account such Cure Amount received, the Borrower shall be in compliance with the covenant contained in Section 10.9 or (y) all such Defaults and Event of Defaults shall have been waived in accordance with the terms of this Agreement; provided, further, that if the Cure Amount is not received before the expiration of the Cure Period, unless all such Defaults and Events of Default shall have been waived in accordance with the terms of this Agreement, each such Default or Event of Default shall be deemed reinstated. No Agent or Lender shall take any action to foreclose on, or take possession of, the Collateral, accelerate any Obligations, terminate any Commitments or otherwise exercise any remedies under any Credit Document or any applicable law on the basis of a breach of Section 10.9 (or any other Default or Event of Default as a result thereof) unless and until the Cure Period has expired and the Borrower has not received the Cure Amount.
SECTION 12
The Agents
12.1 Appointment.
(a) Each Lender hereby irrevocably designates and appoints the Administrative Agent as the agent of such Lender under this Agreement and the other Credit Documents and irrevocably authorizes the Administrative Agent, in such capacity, to take such action on its behalf under the provisions of this Agreement and the other Credit Documents and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms of this Agreement and the other Credit Documents, together with such other powers as are reasonably incidental thereto. The provisions of this Section 12 (other than Section 12.1(c) with respect to the Joint Lead Arrangers and Joint Bookrunners and Sections 12.1, 12.9, 12.11, 12.12 and 12.13 with respect to the Borrower) are solely for the benefit of the Agents and the Lenders, and none of Holdings, the Borrower or any other Credit Party shall have rights as third party beneficiary of any such provision. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Credit Document or otherwise exist against the Administrative Agent. In performing its functions and duties hereunder, each Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for Holdings, the Borrower or any of their respective Subsidiaries.
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(b) The Administrative Agent, each Lender and the Letter of Credit Issuer hereby irrevocably designate and appoint the Collateral Agent as their agent with respect to the Collateral, and each of the Administrative Agent, each Lender and the Letter of Credit Issuer irrevocably authorizes the Collateral Agent, in such capacity, to take such action on its behalf under the provisions of this Agreement and the other Credit Documents and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Agreement and the other Credit Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth herein, or any fiduciary relationship with any of the Administrative Agent, the Lenders or the Letter of Credit Issuer, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Credit Document or otherwise exist against the Collateral Agent.
(c) In relation to any Security Agreements governed by the laws of Switzerland (“Swiss Security Documents”), (i) the Collateral Agent holds (x) any security created or evidenced or expressed to be created or evidenced under or pursuant to a Swiss Security Document by way of a security assignment (Sicherungsabtretung) or transfer for security purposes (Sicherungsübereignung) or any other non-accessory (nicht akzessorische) security, (y) the benefit of this clause 12.1.(b), and (z) any proceeds and other benefits of such security, as fiduciary (treuhänderisch) in its own name but for the account of each Secured Party which have the benefit of such security in accordance with this Agreement and the respective Swiss Security Document, (ii) each present and future Secured Party hereby authorizes the Collateral Agent, (w) to (A) accept and execute as its direct representative (direkter Stellvertreter) in its name and for its account any Swiss law pledge or any other Swiss law accessory (akzessorische) security created or evidenced or expressed to be created or evidenced under or pursuant to a Swiss Security Document for the benefit of such Secured Party and (B) hold, administer and, if necessary, enforce any such security on behalf of each relevant Secured Party which has the benefit of such security, (x) to agree as its direct representative (direkter Stellvertreter) in its name and for its account to amendments and alterations to any Swiss Security Document which creates or evidences or expressed to create or evidence a pledge or any other Swiss law accessory (akzessorische) security, (y) to effect as its direct representative (direkter Stellvertreter) in its name and for its account any release of a security created or evidenced or expressed to be created or evidenced under a Swiss Security Document in accordance with this Agreement; and (z) to exercise as its direct representative (direkter Stellvertreter) in its name and for its account such other rights granted to the Collateral Agent hereunder or under the relevant Swiss Security Documents, and (iii) each present and future Secured Party hereby authorizes the Collateral Agent, when acting in its capacity as creditor of the Parallel Debt, to hold (x) any Swiss law pledge or any other Swiss law accessory (akzessorische) security, (y) any proceeds of such security, and (z) the benefit of this paragraph and the Parallel Debt, as creditor in its own right but for the benefit of such Secured Parties in accordance with this Agreement.
(d) The Collateral Agent is appointed as vertegenwoordiger/représentant for the purposes of article 5 of the Belgian law of 15 December 2004 on financial collateral, as amended from time to time.
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(e) In relation to any Security Agreements governed by the laws of Spain (“Spanish Security Documents”) each of the Secured Parties (other than the Collateral Agent) hereby grants full power to the Collateral Agent (with express faculty of self-contracting, sub-empowering or multiple representation, or even in case of a conflict of interest), which accepts, so that the Collateral Agent, acting through a duly appointed representative, may exercise, in the name and on behalf of the Secured Parties the following faculties: (i) to execute and/or appear before a Spanish notary public and raise into the status of a public document this Agreement or any Credit Document, or any novation, amendment, assignment or transfer, release or ratification thereto, (ii) to appear before a Spanish notary public and accept, execute, amend, assign or transfer, release or ratify any type of guarantee or security, or irrevocable power of attorney, granted in favour of the relevant Secured Parties (whether in its own capacity or as agent of other parties) over any and all kind of assets (including, without limitation, shares, quotas, rights, receivables, accounts, real estate properties or other goods and chattels), fixing their price for the purposes of an auction and the address for serving of notices and submitting to the jurisdiction of law courts by waiving its own forum, release such guarantees or security and revoke irrevocable power of attorney, and to carry out such actions and execute such documents as may be necessary or advisable to enforce the relevant security, all of the foregoing under the terms and conditions which the attorney may freely agree, signing the private or public documents that the attorney may deem fit, (iii) to execute and/or do any and all deeds, documents, acts and things, required in connection with the execution and performance of the abovementioned documents (including, without limitation, notarial deed of amendment), (iv) to ratify, if necessary or convenient any such private or public documents (including escrituras públicas or pólizas) executed by an orally appointed representative in the name or on behalf of the Secured Parties, (v) to carry out, execute, effect and perform all the actions that may be necessary or convenient for the purposes of complying with the purpose of this Agreement, including, but not limited to the granting of any public or private document and any action required for the purposes of enforcing in Spain any Security Document, and to take any other enforcement action as foreseen in the Security Documents, (vi) to represent the Secured Parties in any auction of any asset charged under the Spanish Security Documents and grant, in their name and behalf, all private and public documents as may be necessary in relation to the enforcement of such Security Documents (including the deed of auction/sale) and the transfer of credit rights (or other pledged or mortgaged assets) in favour of the acquirer(s) according to the terms of such documents, (vii) to dispose or formalise the disposal of any asset charged under the Spanish Security Documents in favour of the acquirer(s) which becoming their owner(s) as a result of the auction or as a result of any of the enforcement proceedings foreseen in the Security Documents, (viii) to request and obtain the copy issued for enforcement purposes (copia ejecutiva) of this Agreement, any Spanish Security Documents or any other Credit Document; and (ix) to identify the Secured Parties before any notary public, public registry or relevant authority.
(f) The Collateral Agent shall (i) hold and administer any security created by a Security Document governed by German law which is security transferred, assigned (Sicherungseigentum/Sicherungsabtretung) or otherwise granted under a non-accessory security right (nicht-akzessorische Sicherheit) to it as trustee for the benefit of the Credit Parties; and (ii) administer any security created by a Security Document governed by German law which is pledged (Verpfändung) or otherwise granted to any Credit Party under an accessory security right (akzessorische Sicherheit) as agent; and (iii) hold any other security created by a Security Document governed by German law on trust for the Credit Parties on the terms contained in the Credit Documents, and will apply all payments and other benefits received by it under a Security Document in accordance with the Credit Documents. Each Credit Party (other than Collateral Agent) hereby authorizes the Collateral Agent (whether or not by or through employees or agents) and grants power of attorney (Vollmacht) to the Collateral Agent: (i) to exercise such rights, remedies, powers and discretions as are specifically delegated to or conferred upon the Collateral Agent under the Security Documents together with such powers and discretions as are reasonably incidental thereto; (ii) to take such action on its behalf as may from time to time be authorized under or in accordance with the Security Documents, including the release of any collateral under the Security Documents and to amend, supplement and/or confirm any Security Document; and (iii) to accept as its representative (Stellvertreter) any pledge or other creation of any accessory security right granted in favor of such Credit Party in connection with the Credit Documents under German law and to agree to and execute on its behalf as its representative (Stellvertreter) any amendments and/or alterations to any Security Document governed by German law which creates a pledge or any other accessory security right (akzessorische Sicherheit) including the release or confirmation of release of such security interest. Each of the Credit Parties (other than the Collateral Agent) hereby for all purposes of the Credit Documents, including for the purpose of this Clause 12.1, exempt the Collateral Agent from any restrictions on representing several persons and self-dealing under any applicable law, and in particular from the restrictions of section 181 of the German Civil Code (Bürgerliches Gesetzbuch), in each case to the extent legally possible to such Credit Party, to make use of any authorization granted under this Agreement and to perform its duties and obligations as Collateral Agent hereunder and under the Security Documents. A Credit Party which is barred by its constitutional documents or by-laws from granting such exemption shall notify the Collateral Agent accordingly. Each Credit Party (other than the Collateral Agent) hereby ratifies and approves all acts and declarations previously done by the Collateral Agent on such Loan 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 any Credit Party as future pledgee or otherwise). Each of the Credit Parties (other than the Collateral Agent) hereby authorizes the Collateral Agent to (sub-)delegate any powers granted to it under this Clause 12.1 to any representative it may elect in its discretion and to grant powers of attorney to any such representative including the exemption from self-dealing and representing several persons (in particular from the restrictions of section 181 of the German Civil Code (Bürgerliches Gesetzbuch) (in each case to the extent legally possible)). Each of the Parties agrees that the Collateral Agent shall have only those duties, obligations and responsibilities expressly specified in this agreement or in the Credit Documents (and no others shall be implied).
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(g) Each of the Secured Parties (other than the Collateral Agent) hereby (i) appoints, with the express consent to self-dealing pursuant to article 1395 of the Italian civil code, the Collateral Agent to be its mandatario con rappresentanza (pursuant to article 1704 of the Italian civil code) for the purpose of executing in the name and on behalf of the Secured Parties any Security Agreement which is expressed to be governed by Italian law (each an “Italian Security Document”) and the Collateral Agent hereby accepts such appointment; (ii) grants the Collateral Agent with the power to negotiate and approve the terms and conditions of each Italian Security Document, 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; (iii) confirms that in the event that any security created under Italian Security Documents remains registered in the name of a Secured Party after it has ceased to be a Secured Party then the Collateral Agent shall remain empowered to execute a release of such security in its name and on its behalf; and (iv) 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.
(h) This paragraph sets out the agreement of the Parties with respect to the role of the Collateral Agent under and in connection with the French law Security Documents (other than in case the Collateral Agent is acting as creditor under the Parallel Debt). The terms of this Agreement apply to the Collateral Agent in its role as Collateral Agent under the French law Security Documents, except to the extent that there is a conflict between the terms of this paragraph and any other term of this Agreement in which case the terms of this clause (Collateral Agent for French Security Documents) will prevail. Each Credit Party (other than the Collateral Agent) (as mandant) irrevocably and unconditionally appoints the Collateral Agent to act as its agent (mandataire) (with full power to delegate its rights, powers and authorities and discretions) under and in connection with the French law Security Documents. Each other Credit Party (as mandant) authorises the Collateral Agent (as mandataire) under the French law Security Documents, in addition to and without prejudice to any other term of this Agreement, to: (i) perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Collateral Agent under or in connection with the French law Security Documents together with any incidental rights, powers, authorities and discretions; (ii) enter into for and on its behalf (and on behalf of the other Credit Parties) each French law Security Documents and empowers and directs the Collateral Agent so to do (by itself or by such person(s) as it may nominate); (iii) appoint a custodian which may hold assets in custody on its behalf in connection with any French law Security Document; (iv) enforce on its behalf the French law Security Documents (by itself or by any person(s) which it may nominate) and in connection with any enforcement, or any step it takes in connection with any enforcement, of the French law Security Documents, appoint any expert, collect any sums, give good discharge for any amount payable and make any payment (including any soulte) in its name and on its behalf; and (v) take any action on its behalf to release any security interest granted in its favour pursuant to any French law Security Document and take any action to make that release effective, in each case to the extent the release is permitted under the Credit Documents. The Collateral Agent accepts the appointment as mandataire. The Collateral Agent will act for itself (as Secured Party) and as agent for the other Secured Parties in carrying out its functions as collateral agent (mandataire) under the relevant French law Security Documents. In relation to the French law Security Documents, the relationship between the Secured Parties (other than the Collateral Agent) and the Collateral Agent is that of principal (mandant) and agent (mandataire). The Collateral Agent will not have, nor will it be deemed to have, assumed any duties, obligations or responsibilities to, or fiduciary relationship with, any Party except for those for which specific provision is made by the French law Security Documents and this Agreement. Without prejudice to any other term of this Agreement, each Credit Party must, promptly on request by the Collateral Agent, ratify and confirm any transaction entered into and any other action taken by the Collateral Agent (or any of its delegates) in the exercise of the rights, powers, authorities and discretions granted to it under this Agreement or the French law Security Documents including by executing any power of attorney allowing the Collateral Agent to appear in court on its behalf (mandat ad litem). Each relevant Credit Party and each Secured Party agree that the Collateral Agent may act as tiers convenu in relation to any lower ranking Security Document governed by French law or may designate or appoint any person or entity to act as tiers convenu as it sees fit. The Collateral Agent shall, if and when acting in its capacity as creditor of the Parallel Debt, hold: (x) any French law Security which is created or expressed to be created pursuant to a French law Security Documents in favour of Collateral Agent as creditor of the Parallel Debt; (y) any proceeds of such French law Security; and (z) the benefit of this sub-paragraph and of the Parallel Debt, as creditor in its own right but for the benefit of the relevant Secured Parties in accordance with this Agreement. If, for any reason, following a foreclosure of a French law Security Document by the Collateral Agent in respect of the Parallel Debt, the Collateral Agent has paid any soulte, the Secured Parties holding Corresponding Obligations which have been extinguished as a result of the enforcement of such French law Security Document will pay to the Collateral Agent a fraction of such soulte in the proportions which their respective Corresponding Obligations at the date of the foreclosure bore to the aggregate Corresponding Obligations of all such Secured Parties at the date of the Foreclosure.
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(i) No Joint Lead Arranger or Joint Bookrunner, in its capacity as such, shall have any obligations, duties or responsibilities under this Agreement but shall be entitled to all benefits of this Section 12.
12.2 Delegation of Duties. The Administrative Agent and the Collateral Agent may each execute any of its duties under this Agreement and the other Credit Documents by or through agents, sub-agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The exculpatory, indemnification and other provisions of this Section 12 shall apply to any such sub-agent and to the Affiliates of the Administrative Agent or the Collateral Agent, as applicable, and any such sub-agent, and shall apply, without limiting the foregoing, to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Neither the Administrative Agent nor the Collateral Agent shall be responsible for the negligence or misconduct of any agents, subagents or attorneys-in-fact selected by it in the absence of its bad faith, material breach, gross negligence or willful misconduct (as determined in the final non-appealable judgment of a court of competent jurisdiction).
12.3 Exculpatory Provisions. No Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be (a) liable for any action lawfully taken or omitted to be taken by any of them under or in connection with this Agreement or any other Credit Document (except for its or such Person’s own bad faith, gross negligence or willful misconduct, or such Person’s material breach of this Agreement or any other Credit Document, as determined in the final non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein) or (b) responsible in any manner to any of the Lenders or any participant 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, or the perfection or priority of any Lien or security interest created or purported to be created under the Security Documents, or for any failure of any Credit Party to perform its obligations hereunder or thereunder. No Agent shall be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Credit Document, or to inspect the properties, books or records of any Credit Party or any Affiliate thereof. The Collateral Agent shall not be under any obligation to the Administrative Agent or any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Credit Document, or to inspect the properties, books or records of any Credit Party.
12.4 Reliance by Agents. The Administrative Agent and the Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or teletype message, statement, order or other document or instruction believed by it (in good faith) to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including counsel to the Borrower), independent accountants and other experts selected by the Administrative Agent or the Collateral Agent. Each Agent also may rely upon any statement made to it orally and believed by it (in good faith) to be made by a proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may deem and treat the Lender specified in the Register with respect to any amount owing hereunder as the owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent. The Administrative Agent and the Collateral Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Credit Document unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent and the Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Credit Documents in accordance with a request of the Required Lenders, and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Loans; provided that the Administrative Agent and the Collateral Agent shall not be required to take any action that, in its opinion or in the opinion of its counsel, may expose it to liability or that is contrary to any Credit Document or applicable law.
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12.5 Notice of Default. Neither the Administrative Agent nor the Collateral Agent shall be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless the Administrative Agent or the Collateral Agent has received written notice from a Lender or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default.” In the event that the Administrative Agent receives such a notice, it shall give notice thereof to the Lenders and the Collateral Agent. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders or Required Revolving Credit Lenders, as applicable; provided that unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of the Lenders except to the extent that this Agreement requires that such action be taken only with the approval of the Required Lenders, Required Revolving Credit Lenders, each directly and adversely affected Lender or each of the Lenders, as applicable.
12.6 Non-Reliance on Administrative Agent, Collateral Agent, and Other Lenders. Each Lender expressly acknowledges that neither the Administrative Agent nor the Collateral Agent nor any of their respective officers, directors, employees, agents, attorneys-in-fact or Affiliates has made any representations or warranties to it and that no act by the Administrative Agent or the Collateral Agent hereinafter taken, including any review of the affairs of the Borrower or any other Credit Party, shall be deemed to constitute any representation or warranty by the Administrative Agent or the Collateral Agent to any Lender or any Letter of Credit Issuer. Each Lender and the Letter of Credit Issuer represents to the Administrative Agent and the Collateral Agent that it has, independently and without reliance upon the Administrative Agent, the Collateral Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of, and investigation into, the business, operations, property, financial and other condition and creditworthiness of the Borrower and each other Credit Party and made its own decision to make its Loans hereunder and enter into this Agreement. Each Lender also represents that it will, independently and without reliance upon the Administrative Agent, the Collateral 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 analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Credit Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of any of the Credit Parties. Except for notices, reports, and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, neither the Administrative Agent nor the Collateral Agent shall have any duty or responsibility to provide any Lender with any credit or other information concerning the business, assets, operations, properties, financial condition, prospects or creditworthiness of any Credit Party that may come into the possession of the Administrative Agent or the Collateral Agent any of their respective officers, directors, employees, agents, attorneys-in-fact or Affiliates.
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12.7 Indemnification. The Lenders agree to severally indemnify each Agent in its capacity as such (to the extent not reimbursed by the Credit Parties and without limiting the obligation of the Credit Parties to do so), ratably according to their respective portions of the Total Credit Exposure in effect on the date on which indemnification is sought (or, if indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with their respective portions of the Total Credit Exposure in effect immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses, or disbursements of any kind whatsoever that may at any time (including at any time following the payment of the Loans) be imposed on, incurred by or asserted against an Agent in any way relating to or arising out of the Commitments, this Agreement, any of the other Credit Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Administrative Agent or the Collateral Agent under or in connection with any of the foregoing; provided that no Lender shall be liable to an Agent for the payment of 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 by a final non-appealable judgment of a court of competent jurisdiction; provided, further, that no action taken by the Administrative Agent in accordance with the directions of the Required Lenders (or such other number or percentage of the Lenders as shall be required by the Credit Documents) shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section 12.7. In the case of any investigation, litigation or proceeding giving rise to any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time occur (including at any time following the payment of the Loans), this Section 12.7 applies whether any such investigation, litigation or proceeding is brought by any Lender or any other Person. Without limitation of the foregoing, each Lender shall reimburse each Agent upon demand for its ratable share of any costs or out-of-pocket expenses (including attorneys’ fees) incurred by such Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice rendered in respect of rights or responsibilities under, this Agreement, any other Credit Document, or any document contemplated by or referred to herein, to the extent that such Agent is not reimbursed for such expenses by or on behalf of the Borrower; provided that such reimbursement by the Lenders shall not affect the Borrower’s continuing reimbursement obligations with respect thereto. 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 portion 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 resulting from such Agent’s gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction. The agreements in this Section 12.7 shall survive the payment of the Loans and all other amounts payable hereunder. The indemnity provided to each Agent under this Section 12.7 shall also apply to such Agent’s respective Affiliates, directors, officers, members, controlling persons, employees, trustees, investment advisors and agents and successors.
12.8 Agents in Their Individual Capacities. The agency hereby created shall in no way impair or affect any of the rights and powers of, or impose any duties or obligations upon, any Agent in its individual capacity as a Lender hereunder. Each Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with any Credit Party as though such Agent were not an Agent hereunder and under the other Credit Documents. With respect to the Loans made by it, each Agent shall have the same rights and powers under this Agreement and the other Credit Documents as any Lender and may exercise the same as though it were not an Agent, and the terms Lender and Lenders shall include each Agent in its individual capacity.
12.9 Successor Agents.
(a) Each of the Administrative Agent and the Collateral Agent may at any time give 30 days prior written notice of its resignation to the Lenders, the Letter of Credit Issuer and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, subject to the consent of the Borrower (not to be unreasonably withheld or delayed) so long as no Event of Default under Sections 11.1 or 11.5 is continuing, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States (in each case, other than any Disqualified Lender). If no such 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 (the “Resignation Effective Date”), then the retiring Agent may on behalf of the Lenders, appoint a successor Agent meeting the qualifications set forth above (including receipt of the Borrower’s consent); provided that if the Administrative Agent or the Collateral Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice. Notwithstanding the above, it is acknowledged and agreed that, for the purposes of any right of pledge governed by the laws of the Netherlands, any resignation of the Collateral Agent is not effective with respect to its rights and obligations under the Parallel Debt until such rights and obligations are assigned to the successor agent. The Collateral Agent will reasonably cooperate in assigning its rights and obligations under the Parallel Debt to any such successor agent and will reasonably cooperate in transferring all rights and obligations under any security document governed by Netherlands law (as the case may be) to such successor agent.
(b) If the Person serving as the Administrative Agent is a Defaulting Lender pursuant to clause (v) of the definition of Lender Default, the Required Lenders may to the extent permitted by applicable law, subject to the consent of the Borrower (not to be unreasonably withheld or delayed), by notice in writing to the Borrower and such Person, remove such Person as the Administrative Agent and, with the consent of the Borrower (not to be unreasonably withheld or delayed) so long as no Event of Default under Section 11.1 or 11.5 is continuing, appoint a successor. If no such successor shall have been so appointed by the Required Lenders (with the consent of the Borrower as required above) and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders and the Borrower) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.
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(c) With effect from the Resignation Effective Date or the Removal Effective Date (as applicable), (1) the retiring or removed agent shall be discharged from its duties and obligations hereunder (other than its obligations under Section 13.17) and under the other Credit Documents (except that in the case of any collateral security held by the Collateral Agent on behalf of the Lenders or the Letter of Credit Issuer under any of the Credit Documents, the retiring or removed Collateral Agent shall continue to hold such collateral security as nominee until such time as a successor Collateral Agent is appointed) and (2) all payments, communications and determinations provided to be made by, to or through the retiring or removed Administrative Agent shall instead be made by or to each Lender or the Letter of Credit Issuer directly, until such time as the Required Lenders appoint a successor Agent as provided for above in this paragraph (and otherwise subject to the terms above). Upon the acceptance of a successor’s appointment as the Administrative Agent or the Collateral Agent, as the case may be, hereunder, and upon the execution and filing or recording of such financing statements, or amendments thereto, and such amendments or supplements to the Mortgages, and such other instruments or notices, as may be necessary or desirable, or as the Required Lenders may request, in order to continue the perfection of the Liens granted or purported to be granted by the Security Documents, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) or removed Agent, and the retiring or removed Agent shall be discharged from all of its duties and obligations hereunder (other than its obligations under Section 13.17) or under the other Credit Documents (if not already discharged therefrom as provided above in this Section 12.9). Except as provided above, any resignation or removal of Credit Suisse AG, Cayman Islands Branch, as the Administrative Agent pursuant to this Section 12.9 shall also constitute the resignation or removal of such Person as the Collateral Agent. The fees payable by the Borrower (following the effectiveness of such appointment) to such Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor (other than appropriate pro rata reductions for partial periods). After the retiring or removed Agent’s resignation or removal hereunder and under the other Credit Documents, the provisions of this Section 12 (including Section 12.7) and Section 13.5 shall continue in effect for the benefit of such retiring or removed 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 or removed Agent was acting as an Agent.
(d) Any resignation by or removal of the Administrative Agent pursuant to this Section 12.9 shall also constitute its resignation or removal as U.S. federal withholding Tax agent (if applicable) and resignation or removal as a Letter of Credit Issuer; provided that, a resignation or removal of the Administrative Agent pursuant to this Section 12.9 shall also constitute its resignation or removal as Letter of Credit Issuer (as applicable) only so long as a Lender has agreed to be appointed as a successor Letter of Credit Issuer and to assume a Letter of Credit Percentage equal to or greater than the Letter of Credit Percentage of the resigning Letter of Credit Issuer in accordance with Section 3.6, as applicable; provided further that, for the avoidance of doubt, any such appointment referred to in either of the foregoing clauses (i) or (ii) shall not be a condition to any resignation by or removal of the Administrative Agent in its capacity as such pursuant to this Section 12.9. Upon the acceptance of a successor’s appointment as the Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Letter of Credit Issuer unless another Lender has agreed to become the successor Letter of Credit Issuer, as the case may be, (b) the retiring Letter of Credit Issuer shall be discharged from all of their respective duties and obligations hereunder or under the other Credit Documents, and (c) the successor Letter of Credit Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements reasonably satisfactory to the retiring Letter of Credit Issuer to effectively assume the obligations of the retiring Letter of Credit Issuer with respect to such Letters of Credit.
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12.10 Withholding Tax. To the extent required by any applicable Requirements of Law, the Administrative Agent may withhold from any payment to any Lender under any Credit Document an amount equivalent to any applicable withholding Tax. If the Internal Revenue Service or any authority of the United States or other jurisdiction asserts a claim that the Administrative Agent did not properly withhold Tax from amounts paid to or for the account of any Lender for any reason (including, because the appropriate form was not delivered, was not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstances that rendered the exemption from, or reduction of, withholding Tax ineffective) or if the Administrative Agent reasonably determines that a payment was made to a Lender pursuant to this Agreement without deduction of applicable withholding Tax from such payment, such Lender shall indemnify the Administrative Agent (to the extent that the Administrative Agent has not already been reimbursed by any applicable Credit Party and without limiting the obligation of any applicable Credit Party to do so) fully for all amounts paid, directly or indirectly, by the Administrative Agent as Tax or otherwise, including penalties, additions to Tax and interest, together with all expenses incurred, including legal expenses, allocated staff costs and any out of pocket expenses. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Credit Document against any amount due to the Administrative Agent under this Section 12.10. The agreements in this Section 12.10 shall survive the resignation and/or replacement of the Administrative Agent, 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. For the avoidance of doubt, for purposes of this Section 12.10, the term Lender includes any Letter of Credit Issuer.
12.11 Agents Under Security Documents and Guarantees. Each Secured Party hereby further authorizes the Administrative Agent or the Collateral Agent, as applicable, on behalf of and for the benefit of the Secured Parties, to be the agent for and representative of the Secured Parties with respect to the Collateral and the Security Documents; provided that neither the Administrative Agent nor the Collateral Agent shall owe any fiduciary duty, duty of loyalty, duty of care, duty of disclosure or any other obligation whatsoever to any holder of Secured Hedge Obligations. Subject to Section 13.1, without further written consent or authorization from any Secured Party, the Administrative Agent or the Collateral Agent, as applicable, may execute any documents or instruments necessary to (a) release any Lien on any property granted to or held by the Administrative Agent or the Collateral Agent (or any sub-agent thereof) under any Credit Document (i) upon the payment in full (or Cash Collateralization) of all Obligations (except for contingent obligations in respect of which a claim has not yet been made, Secured Hedge Obligations, Secured Bank Product Obligations and Secured Cash Management Obligations), (ii) that is sold or to be sold or transferred as part of or in connection with any sale or other transfer permitted hereunder or under any other Credit Document to a Person that is not a Credit Party or in connection with the designation of any Restricted Subsidiary as an Unrestricted Subsidiary, (iii) if the property subject to such Lien is owned by a Credit Party, upon the release of such Credit Party from its Guarantee otherwise in accordance with the Credit Documents, (iv) as to the extent provided in the Security Documents, (v) that constitutes Excluded Property or Excluded Stock and Stock Equivalents, or (vi) if approved, authorized or ratified in writing in accordance with Section 13.1; (b) release any Guarantor from its obligations under the Guarantees if such Person ceases to be a Restricted Subsidiary (or becomes an Excluded Subsidiary) as a result of a transaction or designation permitted hereunder; (c) subordinate any Lien on any property granted to or held by the Administrative Agent or the Collateral Agent under any Credit Document to the holder of any Lien permitted under clauses (v), (vi) (solely with respect to Section 10.1(d) and (vii), (viii), (ix) and (xviii) (solely with respect to a refinancing of the foregoing clauses) of the definition of Permitted Lien; or (d) enter into subordination or intercreditor agreements with respect to Indebtedness to the extent the Administrative Agent or the Collateral Agent is otherwise contemplated herein as being a party to such intercreditor or subordination agreement, including the Junior Lien Intercreditor Agreement and the Pari Intercreditor Agreement.
The Collateral Agent shall have its own independent right to demand payment of the amounts payable by the Borrower under this Section 12.11, irrespective of any discharge of the Borrower’s obligations to pay those amounts to the other Lenders resulting from failure by them to take appropriate steps in insolvency proceedings affecting the Borrower to preserve their entitlement to be paid those amounts.
Any amount due and payable by the Borrower to the Collateral Agent under this Section 12.11 shall be decreased to the extent that the other Lenders have received (and are able to retain) payment in full of the corresponding amount under the other provisions of the Credit Documents and any amount due and payable by the Borrower to the Collateral Agent under those provisions shall be decreased to the extent that the Collateral Agent has received (and is able to retain) payment in full of the corresponding amount under this Section 12.11.
Without prejudice to the provisions of this Agreement and the other Credit Documents, the parties hereto acknowledge and agree with the creation of parallel debt obligations of the Credit Parties as will be described in the Parallel Debts (to the extent possible under the laws of the relevant Credit Documents), including that any payment received by the Collateral Agent in respect of the Parallel Debts will be deemed a satisfaction of the corresponding amounts of the Obligations.
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12.12 Right to Realize on Collateral and Enforce Guarantee. Anything contained in any of the Credit Documents to the contrary notwithstanding, the Borrower, the Agents, and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Guarantees, it being understood and agreed that all powers, rights, and remedies hereunder may be exercised solely by the Administrative Agent, on behalf of the Secured Parties in accordance with the terms hereof and all powers, rights, and remedies under the Security Documents may be exercised solely by the Collateral Agent, and (ii) in the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Collateral Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Collateral Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless 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 at 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 or other disposition. No holder of Secured Hedge Obligations, Secured Bank Product Obligations or Secured Cash Management Obligations shall have any rights in connection with the management or release of any Collateral or of the obligations of any Credit Party under this Agreement. No holder of Secured Hedge Obligations, Secured Bank Product Obligations or Secured Cash Management Obligations that obtains the benefits of any Guarantees or any Collateral by virtue of the provisions hereof or of any other Credit Document shall have any right to notice of any action or to consent to or vote on, direct or object to any action hereunder or under any other Credit Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than in its capacity as a Lender or Agent and, in such case, only to the extent expressly provided in the Credit Documents. Notwithstanding any other provision of this Agreement to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Secured Hedge Agreements, Secured Bank Product Agreements and Secured Cash Management Agreements, unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be.
12.13 Intercreditor Agreements Govern. The Administrative Agent, the Collateral Agent, each Secured Party and each Lender (a) hereby agrees that it will be bound by and will take no actions contrary to the provisions of any intercreditor agreement entered into pursuant to the terms hereof, (b) hereby authorizes and instructs the Administrative Agent and the Collateral Agent to enter into each intercreditor agreement (including the Junior Lien Intercreditor Agreement and the Pari Intercreditor Agreement) entered into pursuant to the terms hereof and to subject the Liens securing the Obligations to the provisions thereof and (c) hereby authorizes and instructs the Administrative Agent and the Collateral Agent to enter into any intercreditor agreement that includes, or to amend any then-existing intercreditor agreement to provide for, the terms described in the definition of Permitted Other Indebtedness. In the event of any conflict or inconsistency between the provisions of each intercreditor agreement (including the Junior Lien Intercreditor Agreement and the Pari Intercreditor Agreement) and this Agreement, the provisions of such intercreditor agreement shall control in all respects.
12.14 Parallel Debt. Each Credit Party hereby irrevocably and unconditionally undertakes to pay to the Collateral Agent amounts equal to the amounts due in respect of the Corresponding Obligations as they may exist from time to time. The payment undertakings of each Credit Party under this Section 12.14 (Parallel Debt) are each to be referred to as a “Parallel Debt”, to the extent possible under the laws of the relevant Credit Documents. Each Parallel Debt will be payable in the currency or currencies of the relevant Corresponding Obligations and will become due and payable as and when and to the extent the relevant Corresponding Obligations become due and payable or would have fallen due but for any discharge from failure of another Secured Party to take appropriate steps, in insolvency proceedings affecting that Credit Party, to preserve its entitlement to be paid that amount. An Event of Default in respect of the payment of the Corresponding Obligations shall constitute a default within the meaning of Section 3:248 Dutch Civil Code with respect to the payment of the Parallel Debts without any notice being required. Each of the parties to this Agreement acknowledges that:
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(a) each Parallel Debt constitutes an undertaking, obligation and liability to the Collateral Agent which is separate and independent from, and without prejudice to, the Corresponding Obligations of the relevant Credit Party; and
(b) each Parallel Debt represents the Collateral Agent's own separate and independent claim to receive payment of the Parallel Debt from the relevant Credit Party, it being understood, in each case, that the amounts which may be payable by each Credit Party as Parallel Debt at any time shall never exceed the total of the amounts which are payable under or in connection with the Corresponding Obligations at that time, provided that:
(i) the Parallel Debt shall be decreased to the extent that the Corresponding Obligations have been irrevocably paid or discharged (other than, in each case, contingent obligations);
(ii) the Corresponding Obligations shall be decreased to the extent that the Parallel Debt has been irrevocably paid or discharged;
(iii) the amount of the Parallel Debt shall at all times be equal to the amount of the Corresponding Obligations;
(iv) the Credit Parties shall have all objections and defences against the Parallel Debt as they have against the Corresponding Obligations (including Corresponding Obligations reinstated for any reason); and
(v) the parties to this Agreement acknowledge and confirm that the parallel debt provisions contained herein shall not be interpreted so as to increase the maximum total amount to be paid in discharge of the Obligations
With respect to the Parallel Debt, the Collateral Agent acts in its own name and not as trustee and it shall have its own independent right to demand payment of the amounts payable by each Credit Party under this Section 12.14, irrespective of any discharge of such Credit Party’s obligation to pay those amounts to the other Secured Parties resulting from failure by them to take appropriate steps, in insolvency proceedings affecting that Credit Party, to preserve their entitlement to be paid those amounts.
Without limiting or affecting the Collateral Agent’s rights against the Credit Parties (whether under this Section 12.14 or under any other provision of the Credit Documents), each Credit Party acknowledges that: (x) nothing in this Section 12.14 shall impose any obligation on the Collateral Agent to advance any sum to any Credit Party or otherwise under any Credit Document, except in its capacity as lender thereunder and (y) for the purpose of any vote taken under any Credit 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.
For the purpose of this Section 12.14, the Collateral Agent acts as Collateral Agent under this Agreement and the other Credit Documents and for the benefit of the Administrative Agent, each Lender and the Letter of Credit Issuer, but not as representative of or trustee for these parties.
For the avoidance of doubt, this Section 12.14 shall not operate and may not be construed as operating to disapply, suspend or circumvent any guarantee and/or indemnity limitations in relation to any claim of a Secured Party set out in any Credit Document and any such guarantee limitation shall apply mutatis mutandis to the relevant Parallel Debt claim.
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SECTION 13
Miscellaneous
13.1 Amendments, Waivers, and Releases. Neither this Agreement nor any other Credit Document, nor any terms hereof or thereof, may be amended, supplemented, modified or waived except in accordance with the provisions of this Section 13.1. Except as provided to the contrary under Section 2.14 or 2.15 or the third, fifth, sixth, seventh, eighth, ninth, tenth and eleventh paragraphs hereof, and other than with respect to any amendment, modification or waiver contemplated in clause (x)(i), clause (x)(viii), clause (y) or clause (z) below, which, in each case, shall only require the consent of the Lenders or the Administrative Agent, as applicable, as expressly set forth therein and not Required Lenders, the Required Lenders may, or, with the written consent of the Required Lenders, the Administrative Agent and/or the Collateral Agent may, from time to time, (a) enter into with the relevant Credit Party or Credit Parties written amendments, supplements or modifications hereto and to the other Credit Documents for the purpose of adding any provisions to this Agreement or the other Credit Documents for changing in any manner the rights of the Lenders or of the Credit Parties hereunder or thereunder or for any other purpose or (b) waive in writing, on such terms and conditions as the Required Lenders or the Administrative Agent and/or the Collateral Agent, as the case may be, may specify in such instrument, any of the requirements of this Agreement or the other Credit Documents or any Default or Event of Default and its consequences; provided, however, that each such waiver and each such amendment, supplement or modification shall be effective only in the specific instance and for the specific purpose for which given; and provided, further, that no such waiver and no such amendment, supplement or modification shall:
(i) forgive or reduce any portion of any Loan or extend the final scheduled maturity date of any Loan or reduce the stated interest rate (it being understood that only the consent of the Required Lenders shall be necessary to waive any obligation of the Borrower to pay interest at the “default rate” or amend Section 2.8(d)), or forgive any portion thereof, or extend the scheduled date for the payment of any interest or fee payable hereunder (other than as a result of waiving the applicability of any post-default increase in interest rates), or make any Loan, interest, Fee or other amount payable in any currency other than expressly provided herein, in each case without the written consent of each Lender directly and adversely affected thereby; provided that, in each case for purposes of this clause (x)(i) and clause (y) below, a waiver of any condition precedent in Section 6 or Section 7 of this Agreement, the waiver of any Default, Event of Default, default interest, mandatory prepayment or reductions, any modification, waiver or amendment to the financial definitions or financial ratios or any component thereof or the waiver of any other covenant shall not constitute an increase of any Commitment of a Lender, a reduction or forgiveness of any portion of any Loan or in the interest rates or the fees or premiums or a postponement of any date scheduled for the payment of principal or interest or an extension of the final maturity of any Loan or the scheduled termination date of any Commitment, or
(ii) consent to the assignment or transfer by the Borrower of its rights and obligations under any Credit Document to which it is a party (except as permitted pursuant to Section 10.3), in each case without the written consent of each Lender directly and adversely affected thereby, or
(iii) amend, modify or waive any provision of Section 12 without the written consent of the then-current Administrative Agent and Collateral Agent in a manner that directly and adversely affects such Person, or
(iv) release all or substantially all of the Guarantors under the Guarantees (except as expressly permitted by the Guarantees, the Junior Lien Intercreditor Agreement, the Pari Intercreditor Agreement, any other intercreditor agreement or arrangement permitted under this Agreement or this Agreement) or release all or substantially all of the Collateral under the Security Documents (except as expressly permitted by the Security Documents, the Junior Lien Intercreditor Agreement, the Pari Intercreditor Agreement, any other intercreditor agreement or arrangement permitted under this Agreement or this Agreement) without the prior written consent of each Lender, or
(v) reduce the percentages specified in the definitions of the terms Required Lenders, Required Revolving Credit Lenders or Required Facility Lenders or amend, modify or waive any provision of this Section 13.1 that has the effect of decreasing the number of Lenders that must approve any amendment, modification or waiver, without the written consent of each Lender, or
(vi) [reserved], or
(vii) [reserved], or
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(viii) amend, modify or waive any provision of Section 3 with respect to any Letter of Credit (including an amendment of this Section 13.1) without the written consent of the Letter of Credit Issuer to the extent such amendment, modification or waiver directly and adversely affects the Letter of Credit Issuer, or
(ix) notwithstanding anything to the contrary in clause (x) above, (i) extend the final expiration date of any Lender’s Commitment or (ii) increase the aggregate amount of the Commitments of any Lender, in each case, without the written consent of such Lender (but no other Lender), or
(ix) in connection with an amendment that addresses solely a repricing transaction in which any Class of Commitments and/or Loans is refinanced with a replacement Class of Commitments and/or Loans bearing (or is modified in such a manner such that the resulting Commitments and/or Loans bear) a lower Effective Yield, require the consent of any Lender other than the Lenders holding Commitments and/or Loans subject to such permitted repricing transaction that will continue as Lenders in respect of the repriced Class of Commitments and/or Loans or modified Class of Commitments and/or Loans.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except (x) that the Commitment of such Lender may not be increased or extended without the consent of such Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of the Lenders and it being further understood that only the consent of the Required Lenders shall be necessary to waive any obligation of the Borrower to pay interest at the “default rate” or amend Section 2.8(c)) and (y) for any such amendment, waiver or consent that treats such Defaulting Lender disproportionately and adversely from the other Lenders of the same Class (other than because of its status as a Defaulting Lender).
Notwithstanding the foregoing, only the Required Revolving Credit Lenders under the Revolving Credit Facility shall have the ability to (i) waive, amend, supplement or modify the covenant set forth in Section 10.9 (or the defined terms to the extent used therein but not as used in any other Section of this Agreement) or Section 11 (solely as it relates to Section 10.9), or Section 9.1(a), (solely as it relates to a qualification resulting from an actual Event of Default under Section 10.11) or (ii) together with the consent of each Letter of Credit Issuer providing such increase, to increase the Letter of Credit Commitment.
Any such waiver and any such amendment, supplement or modification shall apply equally to each of the affected Lenders and shall be binding upon Holdings, the Borrower, such Lenders, the Administrative Agent, the Collateral Agent and all future holders of the affected Loans. In the case of any waiver, Holdings, the Borrower, the Lenders, the Administrative Agent and the Collateral Agent shall be restored to their former positions and rights hereunder and under the other Credit Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing, it being understood that no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. In connection with the foregoing provisions, the Administrative Agent may, but shall have no obligations to, with the concurrence of any Lender, execute amendments, modifications, waivers or consents on behalf of such Lender.
Notwithstanding the foregoing, in addition to any credit extensions and related Joinder Agreement(s), Extension Amendment(s) and Refinancing Amendment(s) effectuated without the consent of Lenders (other than the New Revolving Loan Lenders, New Term Loan Lenders, Extending Lenders or Refinancing Lenders, as applicable) in accordance with Section 2.14, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Holdings and the Borrower (a) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Credit Documents with the Term Loans and the Revolving Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders, Required Revolving Credit Lenders or Required Facility Lenders and other definitions related to such new Term Loans and Revolving Loans.
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In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, Holdings, the Borrower and the Lenders providing the relevant Replacement Term Loans to permit the refinancing of all outstanding Term Loans of any Class (“Refinanced Term Loans”) with a replacement term loan tranche (“Replacement Term Loans”) hereunder; provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans (plus an amount equal to all accrued but unpaid interest, fees, premiums, and expenses incurred in connection therewith (including original issue discount, upfront fees and similar items)) unless otherwise permitted hereunder (including utilization of any other available baskets or incurrence based amounts), (b) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of such Refinanced Term Loans at the time of such refinancing, and (c) the covenants, events of default and guarantees shall not be materially more restrictive to the Borrower (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Refinanced Term Loans (except for (1) covenants, events of default and guarantees which are on market terms as determined by the Borrower in good faith, (2) covenants, events of default and guarantees applicable only to periods after the Maturity Date (as of the date of the refinancing) of such Class of Refinanced Term Loans and (3) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless the Lenders under the other Classes of Term Loans existing on the refinancing date (other than the Refinanced Term Loans), receive the benefit of such more restrictive terms.
The Lenders hereby irrevocably agree that the Liens granted to the Collateral Agent by the Credit Parties on any Collateral shall be automatically released (i) in full, upon the termination of this Agreement and the payment of all Obligations hereunder (except for Secured Cash Management Obligations, Secured Bank Product Obligations, Secured Hedge Obligations and contingent obligations in respect of which a claim has not yet been made, and Cash Collateralized Letters of Credit), (ii) upon the sale or other disposition of such Collateral (including as part of or in connection with any other sale or other disposition permitted hereunder) to any Person other than another Credit Party, to the extent such sale or other disposition is made in compliance with the terms of this Agreement (and the Collateral Agent may rely conclusively on a certificate to that effect provided to it by any Credit Party upon its reasonable request without further inquiry), (iii) to the extent such Collateral is comprised of property leased to a Credit Party, upon termination or expiration of such lease, (iv) if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders (or such other percentage of the Lenders whose consent may be required in accordance with this Section 13.1), (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the applicable Guarantee (in accordance with the second following sentence), (vi) as required to effect any sale or other disposition of Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to the Security Documents, and (vii) if such assets constitute Excluded Property or Excluded Stock or Stock Equivalents. Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those being released) upon (or obligations (other than those being released) 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 except to the extent otherwise released in accordance with the provisions of the Credit Documents. Additionally, the Lenders hereby irrevocably agree that any Restricted Subsidiary that is a Guarantor shall be automatically released from the Guarantees upon consummation of any transaction not prohibited by this Agreement resulting in such Subsidiary ceasing to constitute a Restricted Subsidiary or upon becoming an Excluded Subsidiary. The Lenders hereby authorize the Administrative Agent and the Collateral Agent, as applicable, to, and the Administrative Agent and the Collateral Agent agree to, execute and deliver any instruments, documents, and agreements necessary or desirable or reasonably requested by the Borrower to evidence and confirm the release of any Guarantor or Collateral pursuant to the foregoing provisions of this paragraph, all without the further consent or joinder of any Lender.
Notwithstanding anything herein to the contrary, the Credit Documents may be amended to (i) add syndication or documentation agents and make customary changes and references related thereto and (ii) if applicable, add or modify “parallel debt” language in any jurisdiction in favor of the Collateral Agent or add Collateral Agents, in each case under (i) and (ii), with the consent of only the Borrower and the Administrative Agent, and in the case of clause (ii), the Collateral Agent.
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Notwithstanding anything in this Agreement (including, without limitation, this Section 13.1) or any other Credit Document to the contrary, (i) this Agreement and the other Credit Documents may be amended to effect an incremental facility, refinancing facility or extension facility pursuant to Section 2.14 (and the Administrative Agent and the Borrower may effect such amendments to this Agreement and the other Credit Documents without the consent of any other party as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the terms of any such incremental facility, refinancing facility or extension facility); (ii) no Lender consent is required to effect any amendment or supplement to the Junior Lien Intercreditor Agreement, the Pari Intercreditor Agreement or other intercreditor agreement permitted under this Agreement that is for the purpose of adding the holders of any Indebtedness as expressly contemplated by the terms of the Junior Lien Intercreditor Agreement, the Pari Intercreditor Agreement or such other intercreditor agreement permitted under this Agreement, as applicable (it being understood that any such amendment or supplement may make such other changes to the applicable intercreditor agreement as, in the good faith determination of the Administrative Agent in consultation with the Borrower, are required to effectuate the foregoing; provided that such other changes are not adverse, in any material respect, to the interests of the Lenders taken as a whole); provided, further, that no such agreement shall amend, modify or otherwise directly and adversely affect the rights or duties of the Administrative Agent hereunder or under any other Credit Document without the prior written consent of the Administrative Agent; (iii) any provision of this Agreement or any other Credit Document (including, for the avoidance of doubt, any exhibit, schedule or other attachment to any Credit Document) may be amended by an agreement in writing entered into by the Borrower and the Administrative Agent to (x) cure any ambiguity, omission, mistake, defect or inconsistency (as reasonably determined by the Administrative Agent and the Borrower) and (y) to effect administrative changes of a technical or immaterial nature and such amendment shall be deemed approved by the Lenders if the Lenders shall have received at least five Business Days’ prior written notice of such change and the Administrative Agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment; and (iv) guarantees, collateral documents and related documents executed by the 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 and the Administrative Agent or the Collateral Agent in its or their respective sole discretion, 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 or advice of counsel 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 (as reasonably determined by the Administrative Agent and the Borrower) or to cause such guarantee, collateral security document or other document to be consistent with this Agreement and the other Credit Documents.
Notwithstanding anything in this Agreement or any Security Document to the contrary, the Administrative Agent may, in its reasonable discretion, grant extensions of time for the satisfaction of any of the requirements under Sections 9.11, 9.12 and 9.14 or any Security Documents in respect of any particular Collateral or any particular Subsidiary if it determines that the satisfaction thereof with respect to such Collateral or such Subsidiary cannot be accomplished without undue expense or unreasonable effort or due to factors beyond the control of Holdings, the Borrower and the Restricted Subsidiaries by the time or times at which it would otherwise be required to be satisfied under this Agreement or any Security Document.
In addition, notwithstanding the foregoing, this Agreement may be amended, supplemented or modified with the written consent of the Administrative Agent and the Borrower in a manner not materially adverse to any Lender.
13.2 Notices. Unless otherwise expressly provided herein, all notices and other communications provided for hereunder or under any other Credit Document shall be in writing (including by facsimile or other electronic transmission). All such written notices shall be mailed, faxed or delivered to the applicable address, facsimile number or electronic mail address, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(a) if to Holdings, the Borrower, the Administrative Agent, the Collateral Agent or the Letter of Credit Issuer, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 13.2 or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the other parties; and
(b) if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to Holdings, the Borrower, the Administrative Agent, the Collateral Agent and the Letter of Credit Issuer.
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All such notices and other communications shall be deemed to be given or made upon the earlier to occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail, three Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail, when delivered; provided that notices and other communications to the Administrative Agent or the Lenders pursuant to Sections 2.3, 2.6, 2.9, 4.2 and 5.1 shall not be effective until received.
13.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Administrative Agent, the Collateral Agent or any Lender, any right, remedy, power or privilege hereunder or under the other Credit Documents shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers, and privileges provided by law.
13.4 Survival of Representations and Warranties. All representations and warranties made hereunder, in the other Credit Documents and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Agreement and the making of the Loans hereunder.
13.5 Payment of Expenses; Indemnification. The Borrower agrees, in each case within thirty days of written demand, (a) to pay or reimburse the Agents for all their reasonable and documented out-of-pocket costs and expenses (without duplication) incurred in connection with the preparation and execution and negotiation of, and any amendment, supplement, waiver or modification to, this Agreement and the other Credit Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby (limited (i) in the case of legal fees and expenses, to the reasonable documented fees, and out-of-pocket expenses of Cahill Gordon & Reindel LLP (or such other counsel as may be agreed by the Administrative Agent and the Borrower) and, if reasonably necessary, of a single firm of local counsel in each relevant material jurisdiction, excluding in all cases allocated costs of in-house counsel, and (ii) in the case of fees and expenses related to any other advisor or consultant, solely to the extent the Borrower has consented to the retention or engagement of such Person), (b) to pay or reimburse each Agent for all its reasonable and documented out-of-pocket costs and expenses incurred in connection with the enforcement or preservation of any rights under this Agreement, the other Credit Documents and any other documents delivered in connection herewith or therewith upon the occurrence and during the continuance of an Event of Default (limited, in the case of legal fees and expenses of the Agents, the Letter of Credit Issuer and the Lenders (taken as a whole), to the reasonable documented fees, and out-of-pocket expenses of Cahill Gordon & Reindel LLP (or such other counsel as may be agreed by the Administrative Agent and the Borrower) and (x) if reasonably necessary, of a single firm of local counsel a single firm of local counsel in each relevant material jurisdiction and (y) if there is an actual conflict of interest, one additional counsel for the affected similarly situated (taken as a whole) Persons), in each case excluding in all cases allocated costs of in-house counsel, and (c) to pay, indemnify, and hold harmless each Lender, each Agent, the Letter of Credit Issuer and their respective Affiliates, directors, officers, members, controlling persons, employees, trustees, investment advisors, and agents and successors of the foregoing involved in the Transactions (in each case, excluding any Excluded Affiliate, the “Indemnified Persons”) from and against any and all actual losses, damages, claims, expenses or liabilities of any kind or nature whatsoever (limited (i) in the case of legal fees and expenses, to the reasonable and documented out-of-pocket fees and out-of-pocket expenses of one primary counsel and, if reasonably necessary, one local counsel in each relevant material jurisdiction for all such Indemnified Persons (taken as a whole) and, if there is an actual conflict of interest, one additional counsel for the affected Indemnified Persons similarly situated (taken as a whole), in each case excluding in all cases allocated costs of in-house counsel, and (ii) in the case of fees and expenses related to any other advisor or consultant, solely to the extent the Borrower has consented to the retention or engagement of such Person in writing), in each case to the extent arising out of or relating to any claim, litigation, investigation or other proceeding, regardless whether any such Indemnified Person is a party thereto or whether such claim, litigation or other proceeding is brought by a third party or by the Borrower or any of its Affiliates, that is related to the execution, delivery, enforcement, performance, and administration of this Agreement, the other Credit Documents and other documents delivered in connection herewith or therewith or the use of proceeds of any Credit Facility or any actual or alleged presence or Release of any Hazardous Materials at or from any facility currently or formerly owned or operated by the Borrower, or any liability under Environmental Laws relating in any way to the Borrower (all the foregoing in this clause (c), collectively, the “Indemnified Liabilities”); provided that the Borrower shall have no obligation hereunder to any Indemnified Person with respect to Indemnified Liabilities (i) resulting from disputes between and among any Indemnified Persons (or any of such Indemnified Person’s Affiliates or any of its or their respective officers, directors, employees, agents, controlling persons, members or the successors of any of the foregoing) that does not involve an act or omission by the Borrower or any of its Subsidiaries (other than any claims against the Administrative Agent or any Joint Lead Arranger in their respective capacities as such, subject to the immediately succeeding clause (ii)), (ii) to the extent it has been determined by a final non-appealable judgment of a court of competent jurisdiction to have resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnified Person (or any of such Indemnified Person’s Affiliates or any of its or their respective officers, directors, employees, agents, controlling persons, members or the successors of any of the foregoing) or (y) a material breach of any Credit Document by such Indemnified Person (or any of such Indemnified Person’s Affiliates or any of its or their respective officers, directors, employees, agents, controlling persons, members or the successors of any of the foregoing), (iii) in its capacity as a financial advisor to the Sponsor, the Borrower and any of its Subsidiaries in connection with the Transactions or any of the other potential acquisition of Diversey or its Subsidiaries or (iv) in its capacity as a co-investor in the Transactions or any potential acquisition of Diversey or its Subsidiaries. No Person entitled to indemnification under Section 13.5(c) and no other Person party to this Agreement shall be liable (1) for any damages to any other Indemnified Person or party hereto arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement except to the extent that such damage resulted from bad faith, willful misconduct, material breach or gross negligence of such Indemnified Person, such other Person or any of such Indemnified Person’s or such other Person’s Affiliates or any of its or their respective officers, directors, employees, agents, controlling persons, members or the successors of any of the foregoing or (2) for any special, punitive, indirect or consequential damages relating to this Agreement or any other Credit Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date); provided, that this clause (2) shall not limit the Borrower’s indemnity or reimbursement obligations to the extent such special, punitive, indirect or consequential damages are included in any claim by a third party unrelated to or unaffiliated with such Indemnified Person with respect to which the applicable Indemnified Person is entitled to indemnification in accordance with Section 13.5(c). All amounts due under this Section 13.5 shall be paid within thirty (30) days after written demand therefor (together with backup documentation supporting such reimbursement request); provided, however, that an Indemnified Person shall promptly refund any amount to the extent that there is a final judicial or arbitral determination that such Indemnified Person was not entitled to indemnification rights with respect to such payment pursuant to this Section 13.5.
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The Borrower shall not be liable for any settlement of any proceeding effected without the Borrower’s prior written consent (which consent shall not be unreasonably withheld or delayed), but if settled with the Borrower’s prior written consent or if there is a final and non-appealable judgment by a court of competent jurisdiction for the plaintiff in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnified Person from and against any and all actual losses, damages, claims, liabilities, and reasonable and documented legal or other out-of-pocket expenses by reason of such settlement or judgment in accordance with, and to the extent provided in, the other provisions of this Section 13.5.
Holdings, the Borrower and their respective Subsidiaries shall not, without the prior written consent of any Indemnified Person (which consent shall not be unreasonably withheld or delayed), effect any settlement of any pending or threatened proceedings in respect of which indemnity could have been sought hereunder by such Indemnified Person unless such settlement (i) includes an unconditional release of such Indemnified Person in form and substance reasonably satisfactory to such Indemnified Person from all liability or claims that are the subject matter of such proceedings and (ii) does not include any statement as to or any admission of fault, culpability, wrongdoing or a failure to act by or on behalf of any Indemnified Person.
Each Indemnified Person, by its acceptance of the benefits of this Section 13.5, agrees to refund and return any and all amounts paid by the Borrower (or on its behalf) to it if, pursuant to limitations on indemnification set forth in this Section 13.5, such Indemnified Person was not entitled to receipt of such amounts.
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The agreements in this Section 13.5 shall survive repayment of the Loans and all other amounts payable hereunder. This Section 13.5 shall not apply with respect to Taxes, other than any Taxes that represent liabilities, obligations, losses, damages, penalties, judgments, costs, expenses, or disbursements, etc., arising from any non-Tax claim.
13.6 Limitation on Swiss guarantee
Notwithstanding anything to the contrary in this Agreement, the obligations of any Guarantor organized or incorporated under the laws of Switzerland (a “Swiss Guarantor”) and the rights of the Collateral Agent and any other Lender or Secured Party under this Agreement or any other Credit Document are subject to the following limitations:
(a) | If and to the extent a guarantee or security granted, indemnity or other obligation assumed by a Swiss Guarantor under this Agreement or any other Credit Document guarantees or secures obligations of any of its (direct or indirect) parent companies (upstream security) or sister companies (cross-stream security) (the “Upstream or Cross-Stream Secured Obligations”) and if and to the extent using the proceeds from the enforcement of such guarantee, security, indemnity or other obligation to discharge the Upstream or Cross-Stream Secured Obligations would be unlawful under Swiss corporate law (inter alia, prohibiting capital repayments or violation of the legally protected reserves (gesetzlich geschützte Reserven)) at such time, the proceeds from the enforcement of such guarantee, security, indemnity or other obligation to be used to discharge the Upstream or Cross-Stream Secured Obligations shall be limited to the maximum amount of such Swiss Guarantor’s freely disposable shareholder equity at the time of enforcement (the “Maximum Amount”); provided that such limitation is required under the applicable Swiss corporate law at that time; provided, further, that such limitation shall not free that Swiss Guarantor from its obligations in excess of the Maximum Amount, but merely postpone the performance date of those obligations until such time or times as performance is again permitted under then applicable Swiss corporate law. This Maximum Amount of freely disposable shareholder equity shall be determined in accordance with Swiss law and applicable Swiss accounting principles. |
(b) | In respect of Upstream or Cross-Stream Secured Obligations, each Swiss Guarantor shall, as concerns the proceeds resulting from the enforcement of any guarantee or security granted or indemnity or other obligation assumed by such Swiss Guarantor under this Agreement or any other Credit Document, if and to the extent required by applicable Requirements of Law in force at the relevant time: |
(i) | procure that such enforcement proceeds can be used to discharge Upstream or Cross-Stream Secured Obligations without deduction of Swiss Withholding Tax by discharging the liability to such tax by notification pursuant to applicable Requirements of Law (including double tax treaties) rather than payment of the tax; |
(ii) | if the notification procedure pursuant to sub-paragraph (i) above does not apply, (x) in case of a guarantee, deduct, or (y) in case of enforcement of security, the Administrative Agent or Collateral Agent (as applicable) shall (if requested to do so by the relevant Credit Party within 5 days after such enforcement) deduct, the Swiss Withholding Tax at such rate (currently 35% at the date of this Agreement) as is in force from time to time from any such enforcement proceeds used to discharge Upstream or Cross-Stream Secured Obligations, and pay, without delay, any such taxes deducted to the Swiss Federal Tax Administration; |
(iii) | notify the Administrative Agent and the Collateral Agent that such notification or, as the case may be, deduction has been made, and provide the Administrative Agent and the Collateral Agent with evidence that such a notification of the Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration; and |
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(iv) | in the case of a deduction of Swiss Withholding Tax, |
(A) | use its best efforts to ensure that any person, which is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such enforcement proceeds, will, as soon as possible after such deduction request a refund of the Swiss Withholding Tax under applicable Requirements of Law (including tax treaties), and pay to the Administrative Agent or Collateral Agent (as applicable) upon receipt any amount so refunded; and |
(B) | if the Administrative Agent, the Collateral Agent or any other Secured Party is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment, and if requested by Administrative Agent, the Collateral Agent or a Secured Party, shall provide the Administrative Agent, the Collateral Agent or the respective Secured Party those documents that are required by applicable Requirements of Law and applicable tax treaties to be provided by the payer of such tax to prepare a claim for refund of Swiss Withholding Tax. |
(c) | If a Swiss Guarantor is obliged to withhold Swiss Withholding Tax in accordance with paragraph (b) above, the Secured Parties shall be entitled to further enforce the guarantee or security granted or indemnity or other obligation assumed by such Swiss Guarantor under this Agreement or any other Credit Document and/or further apply proceeds therefrom against Upstream or Cross-Stream Secured Obligations up to an amount which is equal to that amount which would have been obtained if no withholding of Swiss Withholding Tax were required, whereby such further enforcements/applications of proceeds shall always be limited to the maximum amount as set out in paragraph (a) above. |
(d) | If and to the extent requested by the Administrative Agent or the Collateral Agent (as applicable) or if and to the extent required under Swiss mandatory law applicable at the relevant time, in order to allow the Secured Parties to obtain a maximum benefit under the guarantee or security granted or indemnity or other obligation assumed by such Swiss Guarantor, such Swiss Guarantor shall, and any parent company of such Swiss Guarantor being a party to this Agreement shall procure that such Swiss Guarantor will, promptly take and promptly cause to be taken any action, including the following: |
(i) | the passing of any shareholders' resolutions to approve the use of the enforcement proceeds, which may be required as a matter of Swiss mandatory law in force at the time of the enforcement of the Upstream or Cross-Stream Secured Obligations in order to allow a prompt use of the enforcement proceeds; |
(ii) | preparation of up-to-date audited balance sheet of that Swiss Guarantor; |
(iii) | statement of the auditors of that Swiss Guarantor confirming the Maximum Amount; |
(iv) | conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (to the extent permitted by mandatory Swiss law); |
(v) | revaluation of hidden reserves (to the extent permitted by mandatory Swiss law); |
(vi) | to the extent permitted by applicable Requirements of Law and Swiss accounting standards, write-up or realize any of its assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of realization, however, only if such assets are not necessary for the that respective Swiss Guarantor's business (nicht betriebsnotwendig); and |
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(vii) | all such other measures necessary or useful to allow the Secured Parties to use enforcement proceeds as agreed hereunder with a minimum of limitations. |
13.7 Successors and Assigns; Participations and Assignments.
(a) 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) except as expressly permitted by Section 10.3, the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and 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 13.7. 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 clause (c) of this Section 13.7) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Collateral Agent, the Letter of Credit Issuer and the Lenders and each other Person entitled to indemnification under Section 13.5) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in clause (b)(ii) below and Section 13.8, any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments of any Class and the Loans (including participations in L/C Obligations) of any Class at the time owing to it) with the prior written consent (in each case, such consent not to be unreasonably withheld or delayed; it being understood that, without limitation, the Borrower shall have the right to withhold or delay its consent to any assignment if, (x) in order for such assignment to comply with applicable law, the Borrower would be required to obtain the consent of, or make any filing or registration with, any Governmental Authority or (y) such assignment is to a Disqualified Lender) of:
(A) the Borrower; provided that no consent of the Borrower shall be required (1) for an assignment of Term Loans to (X) a Lender, (Y) an Affiliate of a Lender, or (Z) an Approved Fund, (2) for an assignment of Loans or Commitments to any assignee if an Event of Default under Section 11.1 or Section 11.5 (with respect to the Borrower) has occurred and is continuing or (3) for any assignment between Goldman Sachs Bank USA and Goldman Sachs Lending Partners LLC; and
(B) the Administrative Agent and, in the case of Revolving Commitments or Revolving Loans only, the Letter of Credit Issuer; provided that no consent of the Administrative Agent shall be required for (1) an assignment of any Commitment or Loan to a Lender, an Affiliate of a Lender, an Approved Fund or, in the case of any Term Loan, Holdings and its Subsidiaries or an Affiliated Lender or (2) any assignment between Goldman Sachs Bank USA and Goldman Sachs Lending Partners LLC.
Notwithstanding the foregoing, no such assignment shall be made to (i) a natural Person, Excluded Affiliate, Disqualified Lender or Defaulting Lender and (ii) with respect to the Revolving Commitments or Revolving Loans, the Borrower or any of its Subsidiaries or any Affiliated Lender (other than a Bona Fide Debt Fund). For the avoidance of doubt, the Administrative Agent shall have no obligation with respect to, and shall bear no responsibility or liability for, the monitoring or enforcing of the list of Persons who are Disqualified Lenders (or any provisions relating thereto) at any time.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $2,500,000 in the case of Revolving Commitments and $1,000,000 in the case of Term Loans, unless each of the Borrower and the Administrative Agent otherwise consents (which consents shall not be unreasonably withheld or delayed); provided that no such consent of the Borrower shall be required if an Event of Default under Section 11.1 or Section 11.5 (with respect to any Credit Party) has occurred and is continuing; provided, further, that contemporaneous assignments by a Lender and its Affiliates or Approved Funds shall be aggregated for purposes of meeting the minimum assignment amount requirements stated above (and simultaneous assignments to or by two or more Related Funds shall be treated as one assignment), if any;
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(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; provided that this clause (B) shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance via an electronic settlement system or other method reasonably acceptable to the Administrative Agent, together with a processing and recordation fee in the amount of $3,500; provided that the Administrative Agent may, in its sole discretion, elect to waive or reduce such processing and recordation fee in the case of any assignment;
(D) the assignee, if it was not a Lender prior to such assignment, shall deliver to the Administrative Agent an administrative questionnaire in a form approved by the Administrative Agent and the Borrower (the “Administrative Questionnaire”) and applicable tax forms (as required under Section 5.4(e)); and
(E) any assignment to the Borrower, any Subsidiary or an Affiliated Lender (other than a Bona Fide Debt Fund) shall also be subject to the requirements of Section 13.7(h).
For the avoidance of doubt, the Administrative Agent shall have no obligation with respect to, and shall bear no responsibility or liability for, the tracking or monitoring of assignments to or participations by any Affiliated Lender.
(iii) Subject to acceptance and recording thereof pursuant to clause (b)(v) of this Section 13.7 from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations (other than under Section 13.17) under this Agreement (and, in the case of an Assignment and Acceptance 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 2.10, 2.11, 3.5, 5.4 and 13.5). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 13.7 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 clause (c) of this Section 13.7. For the avoidance of doubt, in case of an assignment to a new Lender pursuant to this Section 13.7, (i) the Administrative Agent, the new Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the new Lender been an original Lender signatory to this Agreement with the rights and/or obligations acquired or assumed by it as a result of the assignment and to the extent of the assignment the assigning Lender shall each be released from further obligations under the Credit Documents and (ii) the benefit of each Security Document shall be maintained in favor of the new Lender.
(iv) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amount of the Loans (and stated interest amounts) owing to each Lender, and any payment made by the Letter of Credit Issuer under any Letter of Credit, pursuant to the terms hereof from time to time (the “Register”) and no such Assignment and Acceptance shall be effective until recorded in such Register. Further, the Register shall contain the name and address of the Administrative Agent and the lending office through which each such Person acts under this Agreement. Notwithstanding anything to the contrary herein, the entries in the Register shall be conclusive, absent manifest error, and the Borrower, the Administrative Agent, the Collateral Agent, the Letter of Credit Issuer 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, the Collateral Agent, the Letter of Credit Issuer, the Administrative Agent and its Affiliates and, with respect to itself, any Lender, at any reasonable time and from time to time upon reasonable prior notice. The parties intend that the Loans and Letters of Credit shall be treated as at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code.
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(v) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire and applicable tax forms (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in Section 13.7(b)(ii)(C) and any written consent to such assignment required by Section 13.7(b)(i), the Administrative Agent shall promptly accept such Assignment and Acceptance and record the information contained therein in the Register. No assignment, whether or not evidenced by a promissory note, shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this clause (b)(v).
(c) (i) Any Lender may, without the consent of the Borrower or the Administrative Agent or the Letter of Credit Issuer, sell participations to one or more banks or other entities (other than (x) the Borrower and its Subsidiaries, and (y) any Disqualified Lender provided, however, that, notwithstanding clause (y) hereof, participations may be sold to Disqualified Lenders unless a list of Disqualified Lenders pursuant to clause (i) or (ii) of the definition thereof has been made available to all Lenders who so request) (each, a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (C) the Borrower, the Administrative Agent, the Letter of Credit Issuer, 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. For the avoidance of doubt, the Administrative Agent shall have no obligation with respect to, and shall bear no responsibility or liability for, the monitoring or enforcing of the list of Disqualified Lenders with respect to the sales of participations at any time. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to (I) enforce this Agreement and (II) approve any amendment, modification or waiver of any provision of this Agreement or any other Credit Document; 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 clauses (x)(i) and (x)(iv) of the second proviso to Section 13.1 that directly and adversely affects such Participant. Subject to clause (c)(ii) of this Section 13.7, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.10, 2.11, 3.5 and 5.4 to the same extent as if it were a Lender (subject to the limitations and requirements of those Sections as though it were a Lender and had acquired its interest by assignment pursuant to clause (b) of this Section 13.7, including the requirements of clause (e) of Section 5.4) (it being agreed that any documentation required under Section 5.4(e) shall be provided to the participating Lender, and if additional amounts are required to be paid pursuant to Section 5.4, to the Borrower and the Administrative Agent). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 13.9(b) as though it were a Lender; provided such Participant shall be subject to Section 13.9(a) as though it were a Lender.
(ii) A participant shall not be entitled to receive any greater payment under Section 2.10, 2.11, 3.5 or 5.4 than the applicable Lender would have been entitled to receive absent the sale of the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent (which consent shall not be unreasonably withheld or delayed). 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 (and stated interest amounts) of each Participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”). 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. No Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (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 Credit Document) 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 or as is otherwise required by law.
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(d) Any Lender may, without the consent of the Borrower or the Administrative Agent, at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or other central bank having jurisdiction over it, and this Section 13.7 shall not apply to any such pledge or assignment of a security interest.
(e) Subject to Section 13.17, the Borrower authorizes each Lender to disclose to any Participant, secured creditor of such Lender or assignee (each, a “Transferee”) and any prospective Transferee any and all financial information in such Lender’s possession concerning the Borrower and its Affiliates that has been delivered to such Lender by or on behalf of the Borrower and its Affiliates pursuant to this Agreement or that has been delivered to such Lender by or on behalf of the Borrower and its Affiliates in connection with such Lender’s credit evaluation of the Borrower and its Affiliates prior to becoming a party to this Agreement.
(f) The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Acceptance shall be deemed to include electronic signatures 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 or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
(g) SPV Lender. Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPV”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPV to make any Loan and (ii) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPV hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPV shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, it shall not institute against, or join any other Person in instituting against, such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 13.7, any SPV may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by the Borrower and the Administrative Agent) other than a Disqualified Lender providing liquidity and/or credit support to or for the account of such SPV to support the funding or maintenance of Loans and (ii) subject to Section 13.17, disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPV. As to any SPV, this Section 13.7(g) may not be amended without the written consent of such SPV. Notwithstanding anything to the contrary in this Agreement but subject to the following sentence, each SPV shall be entitled to the benefits of Sections 2.10, 2.11, 3.5 and 5.4 to the same extent as if it were a Lender (subject to the limitations and requirements of those Sections as though it were a Lender and had acquired its interest by assignment pursuant to clause (b) of this Section 13.7, including the requirements of clause (e) of Section 5.4 (it being agreed that any documentation required under Section 5.4(e) shall be provided to the Granting Lender)). Notwithstanding the prior sentence, an SPV shall not be entitled to receive any greater payment under Section 2.10, 2.11, 3.5 or 5.4 than its Granting Lender would have been entitled to receive absent the grant to such SPV.
(h) Notwithstanding anything to the contrary contained herein, (x) any Lender may, at any time, assign all or a portion of its rights and obligations under this Agreement in respect of its Term Loans to Holdings, the Borrower, any Subsidiary or an Affiliated Lender and (y) Holdings, the Borrower and any Subsidiary may, from time to time, purchase or prepay Term Loans, in each case, on a non-pro rata basis through (1) Dutch auction procedures open to all applicable Lenders on a pro rata basis in accordance with customary procedures to be mutually agreed between the Borrower and the Auction Agent or (2) open market purchases; provided that:
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(i) any Loans or Commitments acquired by Holdings, the Borrower or any Subsidiary shall be retired and cancelled to the extent permitted by applicable law as determined in good faith by the Borrower or its advisors (and any such Loans not cancelled shall be subject to the voting and other restrictions applicable to Affiliated Lenders);
(ii) by its acquisition of Loans or Commitments, an Affiliated Lender shall be deemed to have acknowledged and agreed that:
(A) it shall not have any right to (x) attend or participate in (including, in each case, by telephone) any meeting (including “Lender only” meetings) or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Borrower are not invited to attend, (y) receive any information or material prepared by the Administrative Agent or any Lender or any communication by or among the Administrative Agent and one or more Lenders or any other material which is “Lender only,” except to the extent such information or materials have been made available to the Borrower or its representatives (and in any case, other than the right to receive notices of prepayments and other administrative notices in respect of its Loans required to be delivered to Lenders pursuant to Section 2) or receive any advice of counsel to the Administrative Agent or (z) make any challenge to the Administrative Agent’s or any other Lender’s attorney-client privilege on the basis of its status as a Lender; and
(B) except with respect to any amendment, modification, waiver, consent or other action (I) in Section 13.1 requiring the consent of all Lenders, all Lenders directly and adversely affected or specifically such Lender, (II) that alters an Affiliated Lender’s pro rata share of any payments given to all Lenders, or (III) affects the Affiliated Lender (in its capacity as a Lender) in a manner that is disproportionate to the effect on any Lender in the same Class, the Loans held by an Affiliated Lender shall be disregarded in both the numerator and denominator in the calculation of any Lender vote (and, in the case of a plan of reorganization that does not affect the Affiliated Lender in a manner that is adverse to such Affiliated Lender relative to other Lenders, shall be deemed to have voted its interest in the Term Loans in the same proportion as the other Lenders in the same Class) (and shall be deemed to have been voted in the same percentage as all other applicable Lenders voted if necessary to give legal effect to this paragraph) (but, in any event, in connection with any amendment, modification, waiver, consent or other action, shall be entitled to any consent fee, calculated as if all of such Affiliated Lender’s Loans had voted in favor of any matter for which a consent fee or similar payment is offered);
(iii) no such acquisition by an Affiliated Lender shall be permitted if, after giving effect to such acquisition, the aggregate principal amount of Term Loans held by Affiliated Lenders would exceed 25% of the aggregate principal amount of all Term Loans outstanding at the time of such purchase; provided that to the extent any assignment to an Affiliated Lender would result in the aggregate principal amount of all Loans held by Affiliated Lenders exceeding such 25% threshold at the time of such purchase, the purchase of such excess amount will be void ab initio;
(iv) any such Loans acquired by an Affiliated Lender may, with the consent of the Borrower, be (but shall not be required to be) contributed to the Borrower (whether through any of its direct or indirect parent entities or otherwise) and exchanged for debt or equity securities of the Borrower or such parent entity that are otherwise permitted to be issued by such entity at such time (and such Loans or Commitments contributed to the Borrower shall be retired and cancelled to the extent permitted by applicable law as determined in good faith by the Borrower or its advisors (and any such Loans not cancelled shall be subject to the voting and other restrictions applicable to Affiliated Lenders));
(v) no assignment of Term Loans to Holdings, the Borrower or any Subsidiary (x) may be purchased with the proceeds of any Revolving Credit Loans or (y) may occur while an Event of Default has occurred and is continuing hereunder;
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(vi) in connection with each assignment pursuant to this Section 13.7(h), none of Holdings, the Borrower, any Subsidiary or an Affiliated Lender purchasing any Lender’s Term Loans shall be required to make a representation that it is not in possession of MNPI with respect to the Borrower and its Subsidiaries or their respective securities, and all parties to such transaction may render customary “big boy” letters to each other (or to the Auction Agent, if applicable);
(vii) in the case of any Term Loans (A) acquired by, or contributed to, Holdings, the Borrower or any Subsidiary thereof and (B) cancelled and retired in accordance with this Section 13.7(h), (1) the aggregate outstanding principal amount of the Term Loans of the applicable Class shall be deemed reduced by the full par value of the aggregate principal amount of such Term Loans acquired by, or contributed to, Holdings, the Borrower or such Subsidiary and (2) any scheduled principal repayment installments with respect to the Term Loans of such Class occurring pursuant to Sections 2.5(b) through (c), as applicable, prior to the final maturity date for Term Loans of such Class, shall be reduced pro rata by the par value of the aggregate principal amount of Term Loans so purchased or contributed (and subsequently cancelled and retired), with such reduction being applied solely to the remaining Term Loans of the Lenders which sold or contributed such Term Loans; and
(viii) assignment to or assumption by any Person of Loans with respect to the Borrower shall only be permitted if such Person is a Non-Public Lender.
For avoidance of doubt, the foregoing limitations in Section 13.7(h) shall not be applicable to Bona Fide Debt Funds. Each Lender that sells its Term Loans pursuant to this Section 13.7 acknowledges and agrees that (i) the Affiliated Lenders, Holdings and its Subsidiaries may come into possession of additional information regarding the Loans or the Credit Parties at any time after a repurchase has been consummated pursuant to an auction or open market purchase hereunder that was not known to such Lender or the Affiliated Lenders at the time such repurchase was consummated and that, when taken together with information that was known to the Affiliated Lenders at the time such repurchase was consummated, may be information that would have been material to such Lender’s decision to enter into an assignment of such Term Loans hereunder (“Excluded Information”), (ii) such Lender will independently make its own analysis and determination to enter into an assignment of its Loans and to consummate the transactions contemplated by an auction notwithstanding such Lender’s lack of knowledge of Excluded Information and (iii) none of the direct or indirect equityholders of Holdings, Sponsors or any of their respective Affiliates, or any other Person, shall have any liability to such Lender with respect to the nondisclosure of the Excluded Information.
13.8 Replacements of Lenders Under Certain Circumstances.
(a) The Borrower shall be permitted (x) to replace any Lender with a replacement bank, other financial institution or other Person (other than a natural Person) and/or (y) terminate the Commitment of such Lender or Letter of Credit Issuer, as the case may be, and (1) in the case of a Lender (other than the Letter of Credit Issuer), repay all Obligations of the Borrower due and owing to such Lender relating to the Loans and participations held by such Lender as of such termination date and (2) in the case of the Letter of Credit Issuer only, repay all Obligations of the Borrower owing to such Letter of Credit Issuer relating to the Loans and participations held by the Letter of Credit Issuer as of such termination date and cancel or Cash Collateralize any Letters of Credit issued by it that (I) requests reimbursement for amounts owing pursuant to Section 2.10, 3.5 or 5.4, (II) is affected in the manner described in Section 2.10(a)(iii) and as a result thereof any of the actions described in such Section is required to be taken, (III) becomes a Defaulting Lender, (IV) is a Disqualified Lender or (V) refuses to make an Extension Election pursuant to Section 2.14; provided that, solely in the case of the foregoing clause (x), (i) such replacement does not conflict with any Requirement of Law, (ii) the Borrower shall repay (or the replacement bank, other financial institution or other Person (other than a natural Person) shall purchase, at par) all Loans and other amounts pursuant to Section 2.10, 2.11, 3.5 or 5.4, as the case may be, owing to such replaced Lender (in respect of any applicable Credit Facility only, at the election of the Borrower) prior to the date of replacement, (iii) the replacement bank, other financial institution or other Person (other than a natural Person), if not already a Lender, an Affiliate of a Lender, an Affiliated Lender or Approved Fund, shall be reasonably satisfactory to the Administrative Agent (solely to the extent such consent would be required under Section 13.7), (iv) the replacement bank, other financial institution or other Person (other than a natural Person), if not already a Lender shall be subject to the provisions of Section 13.7(b), (v) the replaced Lender shall be obligated to make such replacement in accordance with the provisions of Section 13.7 (provided that, unless otherwise agreed, the Borrower shall be obligated to pay the registration and processing fee referred to therein), and (vi) any such replacement shall not be deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any other Lender shall have against the replaced Lender.
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(b) If any Lender (such Lender, a “Non-Consenting Lender”) has failed to consent to a proposed amendment, waiver, discharge or termination that pursuant to the terms of Section 13.1 requires the consent of either (i) all of the Lenders of the applicable Class or Classes directly and adversely affected or (ii) all of the Lenders of the applicable Class or Classes, and, in each case, with respect to which the Required Lenders (or Required Facility Lenders in respect of the applicable Class or Classes) or a majority (in principal amount of applicable Loans and Commitments) of the directly and adversely affected Lenders shall, in each case, shall have granted their consent, then, the Borrower shall have the right (unless such Non-Consenting Lender grants such consent) to (x) replace such Non-Consenting Lender by requiring such Non-Consenting Lender to assign its Loans and its Commitments hereunder (in respect of any applicable Class only, at the election of the Borrower) to one or more assignees reasonably acceptable to the Administrative Agent (to the extent such consent would be required under Section 13.7) or (y) terminate the Commitment (including prepaying all outstanding Obligations owed to such Lender) of such Lender or Letter of Credit Issuer, as the case may be, and (1) in the case of a Lender (other than the Letter of Credit Issuer), repay all Obligations of the Borrower due and owing to such Lender relating to the Loans and participations held by such Lender as of such termination date and (2) in the case of the Letter of Credit Issuer only, repay all Obligations of the Borrower owing to such Letter of Credit Issuer relating to the Loans and participations held by the Letter of Credit Issuer as of such termination date and cancel or Cash Collateralize any Letters of Credit issued by it; provided that solely in the case of the foregoing clause (x), (I) all Obligations hereunder of the Borrower owing to such Non-Consenting Lender being replaced shall be paid in full to such Non-Consenting Lender concurrently with such assignment including any amounts that such Lender is owed pursuant to Section 2.11, (II) the replacement Lender shall purchase the foregoing by paying to such Non-Consenting Lender a price equal to the principal amount thereof plus accrued and unpaid interest thereon, and (III) the Borrower shall pay to such Non-Consenting Lender the amount, if any, owing to such Lender pursuant to Section 5.1(b). In connection with any such assignment, the Borrower, the Administrative Agent, such Non-Consenting Lender and the replacement Lender shall otherwise comply with Section 13.7.
(c) Notwithstanding the foregoing, no Disqualified Lender that purports to become a Lender hereunder (notwithstanding the provisions of this Agreement that prohibit Disqualified Lenders from becoming Lenders) without the Borrower’s written consent shall (i) be entitled to any of the rights or privileges enjoyed by the other Lenders with respect to voting, information and lender meetings, or (ii) be entitled to any expense reimbursement or indemnification under the Credit Documents, and nothing in the Credit Documents shall restrict the rights and remedies of the Credit Parties against such Disqualified Lender.
13.9 Adjustments; Set-off.
(a) Except as contemplated in Section 13.7 or elsewhere herein or in any other Credit Document, if any Lender (a “Benefited Lender”) shall at any time receive any payment of all or part of its Loans, or interest thereon, or receive any collateral in respect thereof as part of the exercise of remedies under this Agreement or any other Credit Document (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 11.5, or otherwise), in a greater proportion than any such payment to or such collateral received by any other Lender, if any, in respect of such other Lender’s Loans, or interest thereon, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of each such other Lender’s Loan, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) After the occurrence and during the continuance of an Event of Default, in addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to the Credit Parties but with the prior consent of the Administrative Agent, any such notice being expressly waived by the Borrower and the other Credit Parties to the extent permitted by applicable law, upon any amount becoming due and payable by the Credit Parties hereunder (whether at the stated maturity, by acceleration or otherwise) to set-off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final) (other than payroll, trust, tax, fiduciary, employee health and benefits, pension, 401(k), and petty cash accounts (collectively, “Excluded Deposit Accounts”)), in any currency, and any other credits, indebtedness or claims, in any currency, in each case then matured and owing by such Lender or any branch or agency thereof to or for the credit or the account of the Borrower or the other Credit Parties. Each Lender agrees promptly to notify the Credit Parties and the Administrative Agent after any such set-off and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such set-off and application.
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13.10 Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts (including by facsimile or other electronic transmission), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. A set of the copies of this Agreement signed by all the parties shall be lodged with the Borrower and the Administrative Agent.
13.11 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.
13.12 Integration. This Agreement and the other Credit Documents represent the agreement of Holdings, the Borrower, the Collateral Agent, the Administrative Agent and the Lenders with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties by Holdings, the Borrower, the Administrative Agent, the Collateral Agent nor any Lender relative to the subject matter hereof not expressly set forth or referred to herein or in the other Credit Documents.
13.13 GOVERNING LAW. THIS AGREEMENT 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.
13.14 Submission to Jurisdiction; Waivers. Each party hereto irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to this Agreement and the other Credit Documents to which it is a party to the exclusive general jurisdiction of the courts of the State of New York or the courts of the United States for the Southern District of New York, in each case sitting in New York City in the Borough of Manhattan, and appellate courts from any thereof;
(b) consents that any such action or proceeding shall be brought in such courts and waives (to the extent permitted by applicable law) any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same or to commence or support any such action or proceeding in any other courts;
(c) agrees that service of process in any such action or proceeding shall be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such Person at its address set forth on Schedule 13.2 at such other address of which the Administrative Agent shall have been notified pursuant to Section 13.2;
(d) agrees that nothing herein shall affect the right of the Administrative Agent, any Lender or another Secured Party to effect service of process in any other manner permitted by law; 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 13.14 any special, exemplary, punitive or consequential damages.
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13.15 Acknowledgments. The Borrower hereby acknowledges that:
(a) the Borrower and the other Credit Parties are capable of evaluating and understanding, and understand and accept, the terms, risks and conditions of the transactions contemplated hereby and by the other Credit Documents (including any amendment, waiver or other modification hereof or thereof);
(b) the Administrative Agent, each other Agent and each Affiliate of the foregoing may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and their Affiliates, and neither the Administrative Agent nor any other Agent has any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship;
(c) neither the Administrative Agent nor any other Agent has provided and none will provide any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Credit Document) and the Borrower have consulted their own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate. The Borrower hereby waives and releases, to the fullest extent permitted by law, any claims that it may have against the Administrative Agent or any other Agent with respect to any breach or alleged breach of agency or fiduciary duty in connection with the transactions contemplated hereby or the process leading thereto; and
(d) no joint venture is created hereby or by the other Credit Documents or otherwise exists by virtue of the transactions contemplated hereby among the Lenders or among the Borrower, on the one hand, and any Lender, on the other hand.
13.16 WAIVERS OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW) THE RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY ANY PARTY RELATED TO OR ARISING OUT OF THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR THE PERFORMANCE OF SERVICES HEREUNDER OR THEREUNDER.
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13.17 Confidentiality. The Administrative Agent, each other Agent and each Lender (collectively, the “Restricted Persons” and, each, a “Restricted Person”) shall treat confidentially all non-public information provided to any Restricted Person by or on behalf of any Credit Party hereunder in connection with such Restricted Person’s evaluation of whether to become a Lender hereunder or obtained by such Restricted Person pursuant to the requirements of this Agreement (“Confidential Information”) and shall not publish, disclose or otherwise divulge such Confidential Information without the Borrower’s consent; provided that nothing herein shall prevent any Restricted Person from disclosing any such Confidential Information (a) pursuant to the order of any court or administrative agency or in any pending legal, judicial or administrative proceeding, or otherwise as required by applicable law, rule or regulation or compulsory legal process (in which case such Restricted Person agrees (except with respect to any routine or ordinary course audit or examination conducted by bank accountants or any governmental or bank regulatory authority exercising examination or regulatory authority), to the extent practicable and not prohibited by applicable law, rule or regulation, to inform the Borrower promptly thereof prior to disclosure), (b) upon the request or demand of any regulatory authority having jurisdiction over such Restricted Person or any of its Affiliates (in which case such Restricted Person agrees (except with respect to any audit or examination conducted by bank accountants or any governmental or bank regulatory authority exercising examination or regulatory authority) to the extent practicable and not prohibited by applicable law, rule or regulation, to inform the Borrower promptly thereof prior to disclosure), (c) to the extent that such Confidential Information becomes publicly available other than by reason of improper disclosure by such Restricted Person or any of its Affiliates or any Related Parties thereto in violation of any confidentiality obligations owing under this Section 13.17 or other confidentiality obligations owed to the Borrower or its Affiliates, (d) to the extent that such Confidential Information is received by such Restricted Person from a third party that is not, to such Restricted Person’s knowledge, subject to confidentiality obligations owing to any Credit Party or any of their respective Subsidiaries or Affiliates, (e) to the extent that such Confidential Information was already in such Restricted Person’s possession prior to any duty or other undertaking of confidentiality or is independently developed by the Restricted Persons without the use of such Confidential Information or otherwise subject to any confidentiality obligation, (f) to such Restricted Person’s Affiliates and to its and their respective officers, directors, partners, employees, legal counsel, independent auditors and other experts or agents, in each case who need to know such Confidential Information in connection with providing the Loans or action as an Agent hereunder and who are informed of the confidential nature of such Confidential Information and who are subject to customary confidentiality obligations of professional practice or who agree to be bound by the terms of this Section 13.17 (or confidentiality provisions at least as restrictive as those set forth in this Section 13.17) (with each such Restricted Person, to the extent within its control, responsible for such person’s compliance with this paragraph), (g) to potential or prospective Lenders, hedge providers or counterparties to other derivative transactions (“Derivative Counterparties”), participants or assignees, in each case who agree (pursuant to customary syndication practice) to be bound by the terms of this Section 13.17 (or confidentiality provisions at least as restrictive as those set forth in this Section 13.17); provided that (i) the disclosure of any such Confidential Information to any Lenders, Derivative Counterparties or prospective Lenders, Derivative Counterparties or participants or prospective participants referred to above shall be made subject to the acknowledgment and acceptance by such Lender, Derivative Counterparty or prospective Lender or participant or prospective participant that such Confidential Information is being disseminated on a confidential basis (on substantially the terms set forth in this Section 13.17 or confidentiality provisions at least as restrictive as those set forth in this Section 13.17) in accordance with the standard syndication processes of such Restricted Person or customary market standards for dissemination of such type of information, which shall in any event require “click through” or other affirmative actions on the part of recipient to access such Confidential Information and (ii) no such disclosure shall be made by such Restricted Person to any Person that is at such time a Disqualified Lender or to any Person to which, to the knowledge of such Restricted Person after due inquiry, the Borrower has declined to consent to any assignment by such Lender prior to such disclosure, (h) for purposes of establishing a “due diligence” defense, or (i) to rating agencies in connection with obtaining ratings for the Borrower and the Credit Facilities to the extent such rating agencies are subject to customary confidentiality obligations of professional practice or agree to be bound by the terms of this Section 13.17 (or confidentiality provisions at least as restrictive as those set forth in this Section 13.17), and (i) to any state, federal or foreign authority or examiner (including the National Association of Insurance Commissioners or any other similar organization) regulating any Agent or Lender or any Affiliate of any Agent or Lender; provided that, no such disclosure shall be made to any Excluded Affiliates other than a limited number of senior employees who are required, in accordance with industry regulations or the relevant Restricted Person’s internal policies and procedures to act in a supervisory capacity and such Restricted Person’s internal legal, compliance, risk management, credit or investment committee members. Notwithstanding the foregoing, (i) Confidential Information shall not include, with respect to any Person, information available to it or its Affiliates on a non-confidential basis (and not in violation of any confidential obligations) from a source other Holdings, its Subsidiaries or their respective Affiliates, (ii) the Administrative Agent shall not be responsible for compliance with this Section 13.17 by any other Restricted Person (other than its officers, directors or employees), (iii) in no event shall any Lender, the Administrative Agent or any other Agent be obligated or required to return any materials furnished by Holdings or any of its Subsidiaries, (iv) each Agent and each Lender may disclose the existence of this Agreement and the information about this Agreement to market data collectors, similar services providers to the lending industry, and service providers to the Agents and the Lenders in connection with the administration, settlement and management of this Agreement and the other Credit Documents.
13.18 Direct Website Communications. Each of Holdings and the Borrower may, at its option, provide to the Administrative Agent any information, documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to the Credit Documents, including, without limitation, all notices, requests, financial statements, financial, and other reports, certificates, and other information materials, but, unless otherwise agreed by the Administrative Agent, excluding any such communication that (A) relates to a request for a new, or a conversion of an existing, borrowing or other extension of credit (including any election of an interest rate or interest period relating thereto), (B) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor, or (C) provides notice of any default or event of default under this Agreement (all such non-excluded communications being referred to herein collectively as “Communications”), by transmitting the Communications in an electronic/soft medium in a format reasonably acceptable to the Administrative Agent to the Administrative Agent at an email address provided by the Administrative Agent from time to time; provided that (i) upon written request by the Administrative Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent and (ii) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such documents from the Administrative Agent and maintaining its copies of such documents. Nothing in this Section 13.18 shall prejudice the right of Holdings, the Borrower, the Administrative Agent, any other Agent or any Lender to give any notice or other communication pursuant to any Credit Document in any other manner specified in such Credit Document.
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The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent at its e-mail address set forth on Schedule 13.2 shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Credit Documents. Each Lender agrees that notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Credit Documents. Each Lender agrees (A) to notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lender’s e-mail address to which the foregoing notice may be sent by electronic transmission and (B) that the foregoing notice may be sent to such e-mail address.
(a) Each of Holdings and the Borrower further agrees that any Agent may make the Communications available to the Lenders by posting the Communications on Intralinks or a substantially similar electronic transmission system (the “Platform”), so long as the access to such Platform (i) is limited to the Agents, the Lenders, the Letter of Credit Issuer and Transferees or prospective Transferees and (ii) remains subject to the confidentiality requirements set forth in Section 13.17.
(b) THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF ANY MATERIALS OR INFORMATION PROVIDED BY THE CREDIT PARTIES (THE “BORROWER MATERIALS”) OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. 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 ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall (x) the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties” and, each, an “Agent Party”) have any liability to the Borrower, any Lender, or any other Person or (y) Holdings, the Borrower or any of their respective Subsidiaries have any liability to any Agent, any Lender or any other Person, for actual losses, claims, damages, liabilities, or expenses of any kind (whether in tort, contract or otherwise) arising out of any Credit Party’s or the Administrative Agent’s transmission of Borrower Materials through the internet, except to the extent, in the case of clause (x) above, the liability of any Agent Party resulted from such Agent Party’s (or any of its Related Parties’ (other than any trustee or advisor)) gross negligence, bad faith or willful misconduct or material breach of the Credit Documents, in each case, as determined in the final non-appealable judgment of a court of competent jurisdiction or, in the case of clause (y) above, the liability of any of Holdings, the Borrower or any of their respective Subsidiaries resulted from such Person’s (or any of its Related Parties’ (other than any trustee or advisor)) gross negligence, bad faith or willful misconduct or material breach of the Credit Documents, in each case, as determined in the final non-appealable judgment of a court of competent jurisdiction.
(c) Each of Holdings and the Borrower and each Lender acknowledge that certain of the Lenders may be “public-side” Lenders (Lenders that do not wish to receive MNPI with respect to the Borrower or its Subsidiaries or their respective securities) and, if documents or notices required to be delivered pursuant to the Credit Documents or otherwise are being distributed through the Platform, any document or notice that Holdings or the Borrower has indicated contains only publicly available information with respect to Holdings or the Borrower may be posted on that portion of the Platform designated for such public-side Lenders. If Holdings or the Borrower has not indicated whether a document or notice delivered contains only publicly available information, the Administrative Agent shall post such document or notice solely on that portion of the Platform designated for Lenders who wish to receive MNPI with respect to the Borrower, its Subsidiaries and their respective securities. Notwithstanding the foregoing, the Borrower shall use commercially reasonable efforts to indicate whether any document or notice to be distributed through the Platform contains only publicly available information; provided, however, that the Borrower shall not be required to mark any materials “PUBLIC”; provided, further, however, that, the following documents shall be deemed to be marked “PUBLIC,” unless the Borrower notifies the Administrative Agent promptly (after the Borrower has been given a reasonable opportunity to review such documents) that any such document contains material nonpublic information: (1) the Credit Documents, (2) any notification of changes in the terms of any Credit Facility and (3) all financial statements and certificates delivered pursuant to Sections 9.1(a) and (b). In no event shall the Administrative Agent distribute Compliance Certificates (unless the Borrower has agreed in writing that such Compliance Certificate can be distributed to “public-side” Lenders) or Projections delivered hereunder to “public-side” Lenders. Each “public side” Lender agrees to cause at least one individual at or on behalf of such Person to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such “public side” Lender or its delegate, in accordance with such Person’s compliance procedures and applicable law, including foreign, United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States Federal or state securities laws.
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13.19 USA PATRIOT Act. Each Lender hereby notifies each Credit Party that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required to obtain, verify, and record information that identifies each Credit Party, which information includes the name and address of each Credit Party and other information that will allow such Lender to identify each Credit Party in accordance with the Patriot Act.
13.20 Payments Set Aside. To the extent that any payment by or on behalf of Holdings or the Borrower is made to any Agent or any Lender, or any Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by such Agent or such Lender in its discretion) to be repaid to a trustee, receiver, or any other party, in connection with any proceeding or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share of any amount so recovered from or repaid by any Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the applicable Overnight Rate from time to time in effect.
13.21 No Fiduciary Duty. Each Agent, each Lender and their Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”), may have economic interests that conflict with those of the Credit Parties, their stockholders and/or their affiliates. Each Credit Party agrees that nothing in the Credit Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender, on the one hand, and such Credit Party, its stockholders or its affiliates, on the other. The Credit Parties acknowledge and agree that (i) the transactions contemplated by the Credit Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on the one hand, and the Credit Parties, on the other, and (ii) in connection therewith and with the process leading thereto, (x) except as otherwise expressly agreed in writing, no Lender has assumed an advisory or fiduciary responsibility in favor of any Credit Party, its stockholders or its affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise any Credit Party, its stockholders or its Affiliates on other matters) or any other obligation to any Credit Party except the obligations expressly set forth in the Credit Documents and (y) each Lender is acting solely as principal and not as the agent or fiduciary of any Credit Party, its management, stockholders or creditors. Each Credit Party acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto. Each Credit Party agrees that it will not claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to such Credit Party, in connection with such transaction or the process leading thereto.
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13.22 Judgment Currency. If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Credit Document in one currency into another currency, 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 on the Business Day preceding that on which final judgment is given. The obligation of the Borrowers in respect of any such sum due from it to the Administrative Agent or the Lenders hereunder or under the other Credit Documents 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 the Administrative Agent of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative Agent from the Borrowers in the Agreement Currency, the Borrowers agree, as a separate joint and several obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or the Person to whom such obligation was owing against such loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due to the Administrative Agent in such currency, the Administrative Agent agrees to return the amount of any excess to the Borrowers (or to any other Person who may be entitled thereto under applicable law).
13.23 Special Provisions Relating to Currencies Other Than Dollars. All funds to be made available to the Administrative Agent or the Letter of Credit Issuer, as applicable, pursuant to this Agreement in any currency other than Dollars shall be made available to the Administrative Agent or the Letter of Credit Issuer, as applicable, in immediately available, freely transferable, cleared funds to such account with such bank in such principal financial center as the Administrative Agent or the Letter of Credit Issuer, as applicable, shall from time to time nominate for this purpose. In relation to the payment of any amount denominated in any currency other than Dollars, neither the Administrative Agent nor the Letter of Credit Issuer shall be liable to the Borrowers or any of the Lenders for any delay, or the consequences of any delay, in the crediting to any account of any amount required by this Agreement to be paid by the Administrative Agent or the Letter of Credit Issuer if the Administrative Agent or the Letter of Credit Issuer shall have taken all relevant and necessary steps to achieve, on the date required by this Agreement, the payment of such amount in immediately available, freely transferable, cleared funds (in the relevant currency) to the account with the bank in the principal financial center in the Participating Member State which any Borrower or, as the case may be, any Lender shall have specified for such purpose. In this Section 13.24, “all relevant and necessary steps” means all such steps as may be prescribed from time to time by the regulations or operating procedures of such clearing or settlement system as the Administrative Agent or the Letter of Credit Issuer may from time to time determine for the purpose of clearing or settling payments of such currency. Furthermore, and without limiting the foregoing, none of the Administrative Agent or the Letter of Credit Issuer shall be liable to any Borrower or any of the Lenders with respect to the foregoing matters in the absence of its gross negligence, willful misconduct or bad faith (as determined in the final non-appealable judgment of a court of competent jurisdiction).
13.24 Acknowledgement and Consent to Bail-In of EEA 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 EEA Financial Institution arising under any Credit Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA 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 an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA 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 Credit Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written.
BCPE DIAMOND NETHERLANDS TOPCO, B.V., as Holdings | ||
By: | /s/ Terry Coelho | |
Name: Terry Coelho | ||
Title: Authorised Signatory | ||
DIAMOND (BC) B.V., as the Borrower | ||
By: | /s/ Terry Coelho | |
Name: Terry Coelho | ||
Title: Authorised Signatory | ||
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as the Administrative Agent, the Collateral Agent, a Letter of Credit Issuer and a Lender |
||
By: | /s/ Judith Smith | |
Name: Judith Smith | ||
Title: Authorised Signatory |
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as the Administrative Agent, the Collateral Agent, a Letter of Credit Issuer and a Lender |
||
By: | /s/ Joan Park | |
Name: Joan Park | ||
Title: Authorised Signatory |
[Project Clean Credit Agreement]
GOLDMAN SACHS BANK USA, | ||
as a Lender | ||
By: | /s/ Robert Ehudin | |
Name: Robert Ehudin | ||
Title: Authorised Signatory | ||
BANK OF AMERICA, N.A., | ||
as a Lender | ||
By: | /s/ David H. Strickert | |
Name: David H. Strickert | ||
Title: Managing Director | ||
BARCLAYS BANK PLC, | ||
as a Lender | ||
By: | /s/ Craig Malloy | |
Name: Craig Malloy | ||
Title: Director | ||
CITIGROUP GLOBAL MARKETS INC., | ||
as a Lender | ||
By: | /s/ Michael Moore | |
Name: Michael Moore | ||
Title: Vice President | ||
ROYAL BANK OF CANADA, | ||
as a Lender | ||
By: | /s/ Sinan Tarlan | |
Name: Sinan Tarlan | ||
Title: Authorised Signatory | ||
HSBC BANK USA, N.A., | ||
as a Lender | ||
By: | /s/ Peggy Yip | |
Name: Peggy Yip | ||
Title: Vice President |
[Project Clean Credit Agreement]
SUNTRUST BANK, | ||
as a Lender | ||
By: | /s/ David Duffieu | |
Name: David Duffieu | ||
Title: Director | ||
JEFFERIES FINANCE LLC, | ||
as a Lender | ||
By: | /s/ Jason Kennedy | |
Name: Jason Kennedy | ||
Title: Managing Director |
[Project Clean Credit Agreement]
Exhibit 10.2
JOINDER AGREEMENT AND AMENDMENT NO. 1
Execution Version
JOINDER AGREEMENT AND AMENDMENT NO. 1, dated as of June 23, 2020 (this “Agreement”), by and among Credit Suisse AG, Cayman Islands Branch (the “New Term Loan Lender”), Diamond (BC) B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, having its statutory seat in Amsterdam, the Netherlands, registered office at Maarssenbroeksedijk 2, 3542 DN, Utrecht, the Netherlands and registered under number 68305133 (the “Borrower”) and Credit Suisse AG, Cayman Islands Branch, as the Administrative Agent (the “Administrative Agent”).
RECITALS:
WHEREAS, reference is hereby made to the Credit Agreement, dated as of September 6, 2017 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among BCPE Diamond Netherlands TopCo B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under laws of the Netherlands, having its statutory seat in Amsterdam, the Netherlands, registered office at Maarssenbroeksedijk 2, 3542 DN, Utrecht, the Netherlands and registered under number 68636059, the Borrower, the lending institutions from time to time party thereto, and Credit Suisse AG, Cayman Islands Branch, as the Administrative Agent, the Collateral Agent, a Letter of Credit Issuer, and a Lender (capitalized terms used but not defined herein having the meaning provided in the Credit Agreement); and
WHEREAS, subject to the terms and conditions of the Credit Agreement, the Borrower may establish New Term Loan Commitments by, among other things, entering into one or more Joinder Agreements with New Term Loan Lenders;
NOW, THEREFORE, in consideration of the premises and agreements, provisions and covenants herein contained, the parties hereto agree as follows:
The New Term Loan Lender party hereto hereby commits to provide its respective New Term Loan Commitment as set forth on Schedule A annexed hereto, on the terms and subject to the conditions set forth below.
The New Term Loan Lender (i) confirms that it has received a copy of the Credit Agreement and the other Credit Documents and the exhibits thereto, together with copies of the most recent financial statements referred to in Section 8.9 of the Credit Agreement or delivered pursuant to Section 9.1 of the 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 this Agreement; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, the Collateral Agent, any other Lender or Agent, 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 Credit Agreement; (iii) appoints and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Credit Documents as are delegated to the Administrative Agent or the Collateral Agent, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Documents are required to be performed by it as a Lender. For the avoidance of doubt, the New Term Loan Lender shall constitute a “New Term Loan Lender” and the New Term Loans shall constitute “New Term Loans” under the Credit Agreement.
The New Term Loan Lender hereby agrees to make its New Term Loan Commitment on the following terms and conditions:
1. | New Term Loans. The New Term Loans shall constitute a New Term Loan (as defined in the Credit Agreement) and shall be treated as a separate Class of Term Loans. |
2. | Applicable Margin. The Applicable Margin for ABR Loans or for Eurocurrency Loans, as applicable, for the New Term Loans shall mean, as of any date of determination, the applicable percentage per annum as set forth below. |
Eurocurrency
Loans |
ABR Loans |
5.00% | 4.00% |
3. | Certain Amendments to the Credit Agreement. |
(a) The following definitions shall be added to the Credit Agreement:
“Amendment No. 1” shall mean the Joinder Agreement and Amendment No. 1, dated as of the Amendment No. 1 Effective Date, by and between the Borrower, the Administrative Agent, and the New Term Loan Lender party thereto.
“Amendment No. 1 Effective Date” shall mean June 23, 2020, the first Business Day on which all conditions precedent set forth in Section 7 of Amendment No. 1 were satisfied or waived.
“Amendment No. 1 Arrangers” shall mean Credit Suisse Loan Funding LLC, Barclays Bank PLC, RBC Capital Markets LLC[1], HSBC Securities (USA) Inc., SunTrust Robinson Humphrey, Inc. and Jefferies Finance LLC, as joint lead arrangers and joint bookrunners for Amendment No. 1 and the Amendment No. 1 Term Loans.
“Amendment No. 1 Term Loan Commitment” shall mean, in the case of each Amendment No. 1 Term Loan Lender on the Amendment No. 1 Effective Date, the amount set forth opposite such Amendment No. 1 Term Loan Lender’s name on Schedule A to Amendment No. 1 as such Amendment No. 1 Term Loan Lender’s Amendment No. 1 Term Loan Commitment. The aggregate amount of the Amendment No. 1 Term Loan Commitments as of the Amendment No. 1 Effective Date is $150,000,000.
“Amendment No. 1 Term Loans” shall mean the New Term Loans established pursuant to Amendment No. 1 on the Amendment No. 1 Effective Date.
1 | RBC Capital Markets is a marketing name for the capital markets activities of Royal Bank of Canada and its affiliates. |
“Amendment No. 1 Term Loan Lenders” shall mean a Lender with a Amendment No. 1 Term Loan Commitment or an outstanding Amendment No. 1 Term Loan.
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(b) Section 1.1 of the Credit Agreement is hereby amended by amending and restating the following definitions as set forth below:
“Agents” shall mean the Administrative Agent, the Collateral Agent, the Joint Lead Arrangers, the Joint Bookrunners and the Amendment No. 1 Arrangers.
“New Term Loan” shall have the meaning provided in Section 2.14(c), and shall include, for the avoidance of doubt, the Amendment No. 1 Term Loans.
“New Term Loan Commitments” shall have the meaning provided in Section 2.14(a), and shall include, for the avoidance of doubt, the Amendment No. 1 Term Loan Commitments.
“New Term Loan Lender” shall have the meaning provided in Section 2.14(c), and shall include, for the avoidance of doubt, the Amendment No. 1 Term Loan Lenders.
(c) The definition of “Applicable Margin” set forth in Section 1.1 of the Credit Agreement is hereby amended by adding the following clause (iii) thereto:
“(iii) for the Amendment No. 1 Term Loans:
Eurocurrency
Loans |
ABR Loans |
5.00% | 4.00% |
(d) The definition of “Eurocurrency Rate” set forth in Section 1.1 of the Credit Agreement is hereby amended by replacing the proviso at the end thereof with the following:
“provided that, notwithstanding the foregoing, (x) with respect to the Revolving Credit Loans and the Initial Term Loans, if the Eurocurrency Rate would otherwise be equal to or less than zero, the Eurocurrency Rate for Revolving Credit Loans and Initial Term Loans for the applicable Interest Period shall be equal to 0.00%, and (y) with respect to the Amendment No. 1 Term Loans, if the Eurocurrency Rate would otherwise be equal to or less than 1.00%, the Eurocurrency Rate for Amendment No. 1 Term Loans for the applicable Interest Period shall be equal to 1.00%.”
(e) Section 2.5(b) of the Credit Agreement is hereby amended by deleting such Section and replacing it with the following:
“(b) The Borrower shall repay to the Administrative Agent on the last Business Day of each March, June, September and December, commencing with the last Business Day of (i) the second full fiscal quarter ending after the Closing Date and ending with the last such Business Day prior to the Initial Term Loan Maturity Date (each, an “Initial Term Loan Repayment Date”), for the benefit of the Initial Term Loan Lenders, a principal amount equal to (A) 0.25% of the aggregate principal amount of all Initial USD Term Loans outstanding on the Closing Date and (B) 0.25% of the aggregate principal amount of all Initial Euro Term Loans outstanding on the Closing Date (each such repayment, an “Initial Term Loan Repayment Amount”) (which Initial Term Loan Repayment Amount shall be reduced by the amount of the relevant scheduled principal payment that has been prepaid or deemed prepaid in accordance with this Agreement, including as set forth in Section 5.1, Section 5.2(c) and Section 13.7(h)), and (ii) with respect to the Amendment No. 1 Term Loans, the fiscal quarter ending December 31, 2020 and ending with the last such Business Day prior to the Initial Term Loan Maturity Date, for the benefit of the Amendment No. 1 Term Loan Lenders, a principal amount equal to 0.25% of the aggregate principal amount of all Amendment No. 1 Term Loans outstanding on the Amendment No. 1 Effective Date (which repayment amount shall be reduced by the amount of the relevant scheduled principal payment that has been prepaid or deemed prepaid in accordance with this Agreement, including as set forth in Section 5.1, Section 5.2(c) and Section 13.7(h)).
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(f) Section 5.1 of the Credit Agreement is hereby amended by adding the following clause (d) thereto:
“(d) In the event that, prior to the six-month anniversary of the Amendment No. 1 Effective Date, the Borrower (i) makes any prepayment of Amendment No. 1 Term Loans in connection with any Repricing Transaction the primary purpose (as determined by the Borrower in good faith) of which is to decrease the Effective Yield of such Amendment No. 1 Term Loans or (ii) effects any amendment of this Agreement resulting in a Repricing Transaction the primary purpose (as determined by the Borrower in good faith) of which is to decrease the Effective Yield of the Amendment No. 1 Term Loans, the Borrower shall pay to the Administrative Agent, for the ratable account of each of the applicable Lenders, (x) in the case of clause (i), a prepayment premium of 1.00% of the principal amount of Amendment No. 1 Term Loans being prepaid in connection with such Repricing Transaction and (y) in the case of clause (ii) above, a premium equal to 1.00% of the aggregate principal amount of the applicable Amendment No. 1 Term Loans outstanding immediately prior to such amendment that are subject to an effective pricing reduction pursuant to such Repricing Transaction.”
(g) Section 9.13 of the Credit Agreement is hereby amended by adding the following clause (e) thereto:
“(e) The proceeds of the Amendment No. 1 Term Loans incurred on the Amendment No. 1 Effective Date will be utilized (i) to repay outstanding Revolving Loans, (ii) for general corporate purposes (including acquisitions, Permitted Investments, Restricted Payments and other transactions no expressly prohibited by this Agreement) and (iii) to pay fees and expenses incurred in connection with the foregoing and in connection with the incurrence of the Amendment No. 1 Term Loans.”
(h) Section 10.5 of the Credit Agreement is hereby amended by adding the following clause (d) thereto:
“(d) Notwithstanding anything to the contrary contained in this Section 10.5, for the period commencing with the Amendment No. 1 Effective Date and ending December 31, 2020, the Borrower and its Restricted Subsidiaries shall not make any Restricted Payment to the Sponsor and other equity holders pursuant to Sections 10.5(a)(A) through (H), (b)(11), and (b)(14).”
(i) Section 12.1(a) of the Credit Agreement is hereby amended by replacing the words “Joint Lead Arrangers and Joint Bookrunners” with the words “Joint Lead Arrangers and Joint Bookrunners, and the Amendment No. 1 Arrangers”.
(j) Section 12.1(i) of the Credit Agreement is hereby amended by replacing the words “No Joint Lead Arranger or Joint Bookrunner” with the words “None of the Joint Lead Arrangers and Joint Bookruners, nor the Amendment No. 1 Arrangers”.
(k) Section 13.5 of the Credit Agreement is hereby amended by replacing the words “the Administrative Agent or any Joint Lead Arranger” with the words “the Administrative Agent, Joint Lead Arrangers and Joint Bookrunners, or Amendment No. 1 Arrangers”.
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4. | Proposed Borrowing. This Agreement represents a request by the Borrower to borrow New Term Loans in the form of the Amendment No. 1 Term Loans from the Amendment No. 1 Term Loan Lenders as follows (the “Proposed Borrowing”): |
(a) | Business Day of Proposed Borrowing: June 23, 2020 |
(b) | Amount of Proposed Borrowing: $150,000,000 |
(c) | Interest rate option: Eurocurrency Loans with an initial Interest Period ending July 31, 2020. |
This Section 4 shall be deemed a Notice of Borrowing for purposes of the Credit Agreement.
5. | New Term Loan Lenders. Each New Term Loan Lender acknowledges and agrees that upon its execution of this Agreement and the New Term Loans, that such New Term Loan Lender shall become a “Lender” under, and for all purposes of, the Credit Agreement and the other Credit Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender thereunder and under the Intercreditor Agreements, as applicable, pursuant to Section 12.13 of the Credit Agreement. |
6. | Credit Agreement Governs. Except as set forth in this Agreement, the New Term Loans established hereby shall otherwise be subject to the provisions of the Credit Agreement and the other Credit Documents. |
7. | Conditions to Effectiveness of this Agreement. This Agreement shall become effective on the first Business Day on which each of the following conditions is satisfied: |
(a) The Administrative Agent shall have received (i) from the New Term Loan Lender, (ii) from the Administrative Agent and (iii) from the Borrower, a counterpart of this Agreement signed on behalf of such party;
(b) The Administrative Agent shall have received the executed legal opinion of (x) Kirkland & Ellis LLP, special counsel to the Borrower and (y) Loyens & Loeff N.V. as counsel to the Administrative Agent. The Borrower and the Administrative Agent hereby instruct such counsel to deliver such legal opinion;
(c) The Borrower shall have paid (i) the Agents the fees in the amounts previously agreed in writing to be received on the Amendment No. 1 Effective Date and (ii) the Administrative Agent all reasonable costs and expenses (including, without limitation the reasonable and documented fees, charges and disbursements of (x) Cahill Gordon & Reindel llp, counsel for the Agents and (y) if reasonably necessary, of a single firm of local counsel in each relevant material jurisdiction (which can be a single local counsel acting in multiple jurisdictions)) of the Administrative Agent for which invoices have been presented prior to the Amendment No. 1 Effective Date;
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(d) The Administrative Agent shall have received (A) a certificate of the Borrower, dated the Amendment No. 1 Effective Date, substantially in the form of Exhibit L to the Credit Agreement, with appropriate insertions, executed by a board member A and a board member B of the Borrower, and attaching the documents referred to in the following clause (B) or, to the extent applicable, confirming the continued effectiveness and no amendments or other modifications to such documents since the Closing Date and (B) (x) a copy of the resolutions, in form and substance satisfactory to the Administrative Agent, of the board of directors or other managers of the Borrower (or a duly authorized committee thereof) authorizing (I) the execution, delivery and performance of this Agreement (and any agreements relating thereto) to which it is a party and (II) the extensions of credit contemplated hereunder, (y) the deed of incorporation and articles of association or other comparable organizational documents of the Borrower, as applicable, to the extent amended or otherwise modified since the Closing Date and (z) signature and incumbency certificates of the Authorized Officers of the Borrower executing the Credit Documents to which it is a party.
(e) At the time of and immediately after giving effect to this Agreement, no Default or Event of Default shall have occurred and be continuing;
(f) The representations and warranties made by the Borrower, before and after giving effect to this Agreement, contained in Section 8 hereof and in the Credit Agreement and in the other Credit Documents shall be true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) with the same effect as though such representations and warranties had been made on and as of the Amendment No. 1 Effective Date, except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date.
(g) The Administrative Agent shall have received (at least three (3) Business Days prior to the Amendment No. 1 Effective Date) all documentation and other information about Holdings and Borrower as has been reasonably requested in writing at least ten (10) Business Days prior to the Amendment No. 1 Effective Date by the Administrative Agent or the Amendment No. 1 Arrangers that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act.
8. | Borrower Certifications. By its execution of this Agreement, the undersigned officer of the Borrower, to the best of his or her knowledge, hereby certifies, solely in his or her capacity as an officer of the Borrower and not in his or her individual capacity, that no Event of Default exists on the date hereof before or after giving Pro Forma Effect to the New Term Loan Commitments contemplated hereby. |
9. | Notice. For purposes of the Credit Agreement, the initial notice address of each relevant New Term Loan Lender shall be as set forth below its signature below. |
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10. | Notice of Borrowing. The notice in respect of any initial Borrowing under this Agreement may be conditioned on any Permitted Acquisition or other acquisition, investment, redemption, repurchase, defeasance, satisfaction, discharge or repayment of Indebtedness or any Restricted Payments. |
11. | Tax Forms. For each relevant New Term Loan Lender, delivered herewith to the Administrative Agent and the Borrower are such forms, certificates or other evidence with respect to United States federal income tax withholding matters as such New Term Loan Lender may be required to deliver to the Administrative Agent and/or the Borrower pursuant to Section 5.4(e) of the Credit Agreement. |
12. | Recordation of the New Term Loans. Upon execution and delivery hereof, the Administrative Agent will record the New Term Loans made by the New Term Loan Lender in the Register as additional Amendment No. 1 Term Loans. |
13. | Amendment, Modification and Waiver. This Agreement may not be amended, modified or waived except by an instrument or instruments in writing signed and delivered on behalf of each of the parties hereto. |
14. | Entire Agreement. This Agreement, the Credit Agreement and the other Credit Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof. |
15. | GOVERNING LAW. THIS AGREEMENT 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. |
16. | 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. |
17. | Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts (including by facsimile or other electronic transmission), and all of said counterparts shall be deemed originals and taken together shall be deemed to constitute one and the same instrument. A set of the copies of this Agreement signed by all the parties shall be lodged with the Borrower and the Administrative Agent. |
18. | Post-Closing Covenant. The Borrower agrees that it will deliver, or will cause to be delivered, to the Administrative Agent the items described on Schedule B annexed hereto by the times specified on such Schedule B with respect to such items, or such later time as the Administrative Agent may agree in its reasonable discretion. All conditions precedent, covenants and representations and warranties contained in this Agreement and the other Credit Documents shall be deemed modified to the extent necessary to effect the foregoing (and to permit the taking of the actions described on Schedule B within the time periods required by this Section 18, rather than as elsewhere provided in the Credit Documents). |
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19. | Effect of this Agreement. Except as expressly set forth herein, this Agreement shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or the Agents under the Credit Agreement or any other Credit Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other provision of the Credit Agreement or any other Credit Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. This Agreement shall not constitute a novation of the Credit Agreement as in effect immediately prior to giving effect hereto or any of the Credit Documents. By executing and delivering a copy hereof, the Borrower hereby consents to the terms of this Agreement and the transactions contemplated thereby and hereby confirms its prior pledges and grants of security interests, as applicable, under and subject to the terms of each of the Credit Documents to which it is party, and agrees that, after giving effect to this Agreement, such pledges and grants of security interests, and the terms of each of the Security Documents, shall continue to be in full force and effect, including to secure the Obligations (including, without limitation, the New Term Loans established hereunder). For the avoidance of doubt, on and after the Amendment No. 1 Effective Date, this Agreement shall for all purposes constitute a Credit Document. |
[Signature pages follow]
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IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute and deliver this Agreement as of the date first set forth above.
CREDIT
SUISSE AG, CAYMAN ISLANDS
BRANCH, as Administrative Agent and the New Term Loan Lender |
||
By: | /s/ Judith E. Smith | |
Name: | Judith E. Smith | |
Title: | Authorized Signatory | |
By: | /s/ Brady Bingham | |
Name: | Brady Bingham | |
Title: | Authorized Signatory |
[Signature Page to Joinder Agreement and Amendment No. 1 (Diversey)]
DIAMOND (BC) B.V., as Borrower | ||
By: | /s/ Alexander Tiedemann | |
Name: | Alexander Tiedemann | |
Title: | Board member A | |
By: | /s/ Gaetano Redaelli | |
Name: | Gaetano Redaelli | |
Title: | Board member B |
[Signature Page to Joinder Agreement and Amendment No. 1 (Diversey)]
SCHEDULE A
TO
JOINDER AGREEMENT AND AMENDMENT NO. 1
New Term Loan Commitments
Amendment No. 1 Term Loan Lender | Amendment No. 1 Term Loan Commitment |
Credit Suisse AG, Cayman Islands Branch | $150,000,000 |
Total: $150,000,000 |
SCHEDULE B
TO
JOINDER AGREEMENT AND AMENDMENT NO. 1
Post-Closing Covenant
Within 90 days of the Amendment No. 1 Effective Date, or such later date as the Administrative Agent may reasonably agree, each of the applicable Foreign Guarantors shall, if necessary under applicable local law in connection with the incurrence of the Amendment No. 1 Term Loans, enter into amendments, supplements, joinders, or modifications to the applicable Foreign Security Agreements and/or Foreign Guarantee, and deliver customary opinions with respect thereto, in each case subject to the Agreed Security Principles.
Exhibit 10.4
DATED 14 July 2020
Diversey Limited (1)
and
Philip Robert Wieland (2)
SERVICE AGREEMENT
1
THIS AGREEMENT IS DATED 14 July 2020
PARTIES:
(1) | Diversey Limited whose registered office is Weston Favell Centre, Northampton, NN3 8PD (the "Employer"); and |
(2) | Philip Robert Wieland of Sixpenny Buckle, Clodhouse Hill, Woking, Surrey, GU22 0QS ("you"). |
AGREED TERMS:
1. | DEFINITIONS |
1.1 | In this agreement, the following expressions have the following meanings: |
"Board" means the principal board of directors (or equivalent body) of the Group or any committee of such board duly appointed by it;
"Cause" means any of
1.1.1 | you are guilty of gross misconduct or commit any material or (after warning) repeated or continued breach or non-observance of your obligations to the Employer or to any member of the Group (whether under this agreement or otherwise) or if you refuse or neglect to comply with any reasonable and lawful directions of the Employer or the Board; |
1.1.2 | you are guilty of any fraud or dishonesty or act in a manner which in the reasonable opinion of the Employer brings or is likely to bring you or the Employer or any member of the Group into disrepute or is materially adverse to the interests of the Employer or any member of the Group; |
1.1.3 | you are, in the reasonable opinion of the Employer, grossly negligent and/or incompetent in the performance of your duties, or fail to perform your duties to a satisfactory standard (having previously been given written notice of such failure (whether by means of routine appraisal or otherwise) and a reasonable opportunity to improve); |
1.1.4 | you are guilty of a serious breach of any principles, rules, regulations or policies or any corporate governance code or guidelines applicable to you or the Employer or adopted by the Employer from time to time; |
1.1.5 | you commit any criminal offence (other than a motoring offence for which a non-custodial penalty may be imposed); |
1.1.6 | you facilitate tax evasion; |
1.1.7 | you are disqualified from holding any office which you hold in the Employer or any member of the Group or resign from such office without the prior written approval of the Board; |
1.1.8 | you have failed to promptly report a notifiable data security breach of which you are aware in accordance with the Group’s relevant policy then in place and legal obligations; |
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1.1.9 | you become bankrupt or make any arrangement with or for the benefit of your creditors or have a county court administration order made against you under the County Court Act 1984; or |
1.1.10 | you commit a Material Breach. |
"Confidential Information" means all and any information, in whatever form, of or relating to the Employer or any member of the Group or any investor in or shareholder of the Group which you (or, where the context so requires, another person) have obtained by virtue of your employment or engagement and which the Employer or any member of the Group regards as confidential, including (but not limited to):
(a) | financial information, results and forecasts, sales targets and statistics, market share and pricing statistics, profit margins, price lists, discounts, credit and payment policies and procedures; |
(b) | information relating to business methods, corporate plans, business strategy, marketing plans, management systems, maturing new business opportunities, tenders, advertising and promotional material; |
(c) | information relating to and details of customers, prospective customers, suppliers and prospective suppliers including their identities, business requirements and contractual arrangements and negotiations with the Employer or any member of the Group; |
(d) | details of employees, officers and workers of and consultants to the Employer or any member of the Group, their remuneration details, job skills, experience and capabilities and other personal information; |
(e) | information relating to trade secrets, research activities, development projects, inventions, designs, know-how, technical specification and other technical information in relation to the development or supply of any future product or service of the Employer or any member of the Group and information concerning the intellectual property portfolio and strategy of the Employer or any member of the Group; and |
(f) | any information in respect of which the Employer or any member of the Group is bound by an obligation of confidence to a third party |
but excluding any information which:
(i) | is part of your own stock in trade; |
(ii) | is readily ascertainable to persons not connected with the Employer or any member of the Group without significant expenditure of labour, skill or money; or |
(iii) | which becomes available to the public generally other than by reason of a breach by you of your obligations under this agreement; |
"Copies" means copies or records of any Confidential Information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical drive or solid state memory device or cloud server and wherever located) including, without limitation, extracts, analysis, studies, plans, compilations or any other way of representing or recording and recalling information which contains, reflects or is derived or generated from Confidential Information;
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"Employment" means your employment under this agreement;
"Employment IPRs" means all Intellectual Property Rights subsisting (or which may in the future subsist) in all Work Product or created or contributed by you in the course of your Employment (whether or not during working hours or using the Employer's resources or premises) and all works and materials embodying them including, but not limited to, all works, publications, records and any materials used in and associated with the business activities of the Employer (and any member of the Group) and any other know-how or strategies that might be used, developed or contributed to by you;
"Garden Leave" means any period during which the Employer exercises its rights under clause 16;
“Good Reason” means the occurrence of any of the following, in each case, without your written consent: (i) a reduction in your Base Salary; (ii) a reduction in the your Target Bonus; (iii) a material and adverse change in your title, authority or duties (other than temporarily while you are physically or mentally incapacitated or as required by applicable law); or (iv) a material breach by a member of the Group of any agreement between you and such member of the Group. You cannot terminate the Employment for Good Reason unless you have provided written notice to the Employer of the existence of the circumstances providing grounds for termination for Good Reason within ninety (90) days of the initial existence of such grounds and the Employer or member of the Group has had at least thirty (30) days from the date on which such notice is provided to cure such circumstances. If you do not terminate your Employment for Good Reason within thirty (30) days after the Employer’s failure to cure the applicable grounds, then you will be deemed to have waived your right to terminate for Good Reason with respect to such grounds.
"Group" means Constellation (BC) S.à r.l. and any subsidiary undertaking of Constellation (BC) S.à r.l. from time to time (for the avoidance of doubt, including the Employer) and "member of the Group" includes any undertaking in the Group. In this agreement, "subsidiary undertaking" has the meaning set out in sections 1161 and 1162 of the Companies Act 2006 (and include, without limitation, limited liability partnerships), modified so that: sections 1162(2)(c) and 1162(4) do not apply; and in section 1162(3)(b), without limitation, a person is deemed to be "acting on behalf of" an undertaking or any of its subsidiary undertakings if any of that undertaking's shares are registered in the name of that person (i) as bare nominee; or (ii) by way of security or in connection with the taking of security;
"HMRC" means HM Revenue and Customs;
"Intellectual Property Rights" means patents, rights to Work Product, copyright and related rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world;
"Investment" means any holding as a bona fide investment of not more than two percent (2%) of the outstanding stock of any class of a corporation which is publicly traded or any comingled fund, so long as you have no active participation in the business of such corporation;
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"Material Breach" means (a) any material breach by you of any non-compete, non-solicit, anti-disparagement or confidentially undertakings given by you in favour of any member of the Group (including, for the purposes of this agreement, the covenants set forth in Clause 17 herein); (b) any material breach by you of the amended and restated securityholders’ agreement relating to Constellation (BC) S.à r.l. dated 10 March 2020 (as amended and/or restated from time to time, the "Investment Agreement"), any applicable equity agreements or any other agreement (other than this agreement) between you and a member of the Group; and/or, (c) any material breach by you of Sections, 11, 12, 13, 15, 16 or 19 herein;
"Work Product" means any and all information, ideas, concepts, improvements, discoveries and inventions, whether patentable or not, and all other works of a creative, technical or professional nature (and any derivatives of any of the foregoing) that are conceived, made, developed, or acquired by you during your Employment (either for the Employer or any other member of the Group) that relate in any way to the Employer's current, proposed or planned research, developments, operations, business, strategies, products or services; and
"Termination Date" means the date on which the Employment terminates.
2. | APPOINTMENT AND TERM |
2.1 | You will be employed as the Chief Executive Officer of the Group. |
2.2 | The Employment commences on 14 July 2020 and will, subject to the remaining terms of this agreement, continue until terminated by either party giving to the other party not less than six months’ prior written notice, save for termination by the Employer for Cause (in accordance with Clause 14.5) or by you for Good Reason. |
3. | DUTIES |
3.1 | During the Employment you will: |
3.1.1 | act as a member of the Board and as a director of any other member of the Group as requested by the Board; |
3.1.2 | abide by your statutory, fiduciary and common law duties to the Employer; |
3.1.3 | comply with the articles of association (as amended from time to time) of the Employer; |
3.1.4 | comply with the terms of the Investment Agreement; |
3.1.5 | devote the whole of your working time, attention and abilities to the business of the Employer and the Group; |
3.1.6 | diligently exercise such powers and perform such duties as may from time to time be assigned to you by the Board; |
3.1.7 | use your best endeavours to promote, protect, develop and extend the business of the Employer and any member of the Group in existence from time to time; |
3.1.8 | comply with all reasonable and lawful directions given to you by the Employer and the Board; |
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3.1.9 | under no circumstances whatsoever either directly or indirectly receive or accept for your own benefit any commission, rebate, discount, gratuity or profit from any person, firm or company having business transactions with the Employer or any member of the Group in existence from time to time unless previously agreed with the Board. For the avoidance of doubt this provision will not include any sums received by you from Bain Capital Private Equity in connection with your previous role as an operating partner at Bain Capital Private Equity; |
3.1.10 | promptly make such reports to the Board on any matters concerning the affairs of the Employer as are reasonably required; |
3.1.11 | report your own wrongdoing and any wrongdoing or proposed wrongdoing of any other employee or director of the Employer or any member of the Group in existence from time to time to the Board within a reasonable time (but without undue delay) of becoming aware of it; |
3.1.12 | comply with any code relating to dealing in the securities of any member of the Group, adopted by the Employer from time to time; |
3.1.13 | comply with any law, principles, rules and regulations which apply to the Employer or you as a director or employee of the Employer or any member of the Group, including those of any regulatory authority or of any market on which the securities of any member of the Group are quoted or traded; |
3.1.14 | comply with any corporate governance code or guidelines to the extent required by law or regulation or as adopted by the Employer from time to time; and |
3.1.15 | notify the Board or such other person stipulated by the Employer immediately on becoming aware of an actual or potential data security breach and take such steps that may be required to handle such breach. |
3.2 | The Employer may issue policies, procedures and rules on the conduct that it expects from its employees and may amend or replace them from time to time. You must familiarise yourself with and comply with the content of any such policies, procedures and rules. |
3.3 | You may be required to carry out work for or to hold office in any member of the Group at any time without additional remuneration. |
4. | HOURS AND PLACE OF WORK |
4.1 | Your normal working hours are 9 am to 6 pm, Monday to Friday, together with such additional hours as may be necessary for the proper performance of your duties. |
4.2 | The Working Time Regulations 1998 provides a limit on weekly working time of an average of 48 hours. However, you acknowledge that you may be required to work in excess of these hours and you agree that the limit on working time will not apply to your employment. You are entitled to terminate this opt-out at any time by giving not less than three months' written notice addressed to the Board. |
4.3 | Your normal place of work will be your own residence, but the Employer may require you to work at any other location on either a temporary or an indefinite basis. |
4.4 | You agree to travel (both within the United Kingdom and abroad) as and when required for the proper performance of your duties. However, you will not be required to work outside the United Kingdom for any continuous period of more than one month. |
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5. | REMUNERATION |
5.1 | You will be paid a salary consisting of USD 900,000 per annum, which will accrue from day to day and be payable in USD by equal monthly instalments in arrears on or before the last working day of each calendar month (the "Base Salary"). You will not receive additional remuneration by way of fees for acting as a director of the Employer or any member of the Group. |
5.2 | Your Base Salary shall be reviewed by the Board in or around March each year. There shall be no obligation to increase your Base Salary at any time. The Employer confirms that any salary review will not result in any decrease to your Base Salary. There will be no review of the salary after notice has been given by either party to terminate the Employment. |
5.3 | The Employer may deduct from your salary or any other payments due to you any sums owed by you to the Employer or any member of the Group at any time. |
5.4 | In addition to the Base Salary, for each fiscal year ending during the Employment, you shall have the opportunity to earn an annual bonus (the “Annual Bonus”), with the target bonus opportunity equal to no less than 100% of your then current Base Salary (the “Target Bonus”), subject to meeting such quantitative and qualitative performance goals to be established by a relevant subcommittee of the Board (after consultation with you) to the reasonable satisfaction of the Board in its sole discretion, and subject always to any terms and condition of the Diversey annual incentive plan. The actual amount of any Annual Bonus may range from 0% to 200% of the Target Bonus, based upon achievement of the designated performance goals to the reasonable satisfaction of the Board in its sole discretion.. The Annual Bonus, if any, shall be paid to you in the following fiscal year no later than the first payroll following completion of the audit of the financial statements of the Group for the fiscal year relating to such Annual Bonus and confirmation of the Annual Bonus for such fiscal year unless your Employment terminates for Cause in accordance with clause 14.5 or you have given notice of termination other than for Good Reason, prior to such date. |
5.5 | For the 2020 fiscal year, your Annual Bonus will be prorated based on your actual Employment (by multiplying the amount of such Annual Bonus which you may be entitled to as determined by the Board for the full fiscal year 2020 (the “Full-year 2020 Bonus Amount”) by a fraction, the numerator of which is the number of days during the fiscal year 2020 that you were employed by the Employer, and the denominator of which is three hundred sixty-six (366) (the “2020 Annual Bonus Amount”)). If the EBITDA of the Group for the fiscal year 2020 is equal to or greater than USD 375,000,000, as determined by, and to the reasonable satisfaction of, the Board in its sole discretion, then you will be entitled to receive, in addition to the 2020 Annual Bonus Amount, an additional bonus in an amount (the “2020 Compensation Top-Up Amount”), which is equal to the excess amount, if any, of (a) the sum of (i) $900,000, plus (ii) the Full-year 2020 Bonus Amount, over (b) the sum (i) of the amount of Base Salary actually paid or payable to you by the Employer for the 2020 fiscal year, plus (ii) the 2020 Annual Bonus Amount plus (iii) the amount of base salary and cash bonus actually paid or payable to you in respect of the calendar year 2020 from Bain Capital Private Equity in respect of your role as operating partner at Bain Capital Private Equity. Schedule 2 attached hereto contains a worked example, for illustrative purposes only, of the manner in which the 2020 Compensation Top-Up Amount will be calculated in accordance with the foregoing formula. The 2020 Compensation Top-Up Amount, if any, shall be paid to you in the fiscal year 2021 no later than the first payroll following completion of the audit of the financial statements of the Group for the fiscal year 2020 unless your Employment terminates for Cause in accordance with clause 14.5 or you have given notice of termination other than for Good Reason, prior to such date. |
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5.6 | Within ten (10) days of the commencement of your Employment, you shall be offered the opportunely to subscribe for 1,966,655 Class B Shares of Constellation (BC) Poolco S.C.A (the “Incentive Award”), representing 21% of the overall management incentive shares pool at such time. The Incentive Award will be subject to the terms of the Investment Agreement, the articles of association of Constellation (BC) Poolco S.C.A and Constellation (BC) S.a.r.l and the other governing documents applicable to such award, including a side letter and a MIP Loan Agreement with respect to your payment of consideration for and receipt of such Incentive Award. Such documents shall be substantially in the form which have been provided to you. |
5.7 | Within thirty (30) days following the commencement of your Employment, you will be given an opportunity to make an indirect co-investment in Constellation (BC) S.a.r.l by subscribing for such number of securities of Constellation (BC) Poolco S.C.A and for such price as agreed between you and the Board. The co-investment will be made in the same class of securities and on a pari passu basis as the co-invest equity securities held by the existing management co-investors and shall be subject to the terms of the Investment Agreement, the articles of association of Constellation (BC) Poolco S.C.A and Constellation (BC) S.a.r.l and the other governing documents applicable to such co-investment securities (with such purchased co-investment securities, the “Co-Investment Securities”). |
6. | EXPENSES |
The Employer will reimburse all reasonable expenses wholly, properly and necessarily incurred by you in the performance of your duties under this agreement which are consistent with the Group’s policies in effect from time to time with respect to travel, entertainment and other business expenses and subject to production of such receipts or other appropriate evidence as the Employer may require. The Employer will pay the reasonable and duly invoiced attorneys’ fees incurred by you in connection with the negotiation and documentation of this Agreement and related agreements up to a cap of USD 30,000 in aggregate. |
7. | HOLIDAYS |
7.1 | You will be entitled to 25 days' paid holiday in each holiday year (being the period from 1 January to 31 December) together with the usual bank and other public holidays. In the respective holiday years in which the Employment commences or terminates, your holiday entitlement will be calculated on a pro rata basis for each complete month of service during the relevant year. |
7.2 | Holiday can only be taken with the advance approval of the Board. You may carry forward a maximum of five days' holiday from one holiday year to the next. Any such holiday carried forward must be taken within the first three months in the subsequent holiday year otherwise they will be cancelled. This is not a contractual right and is at the Employer’s discretion. You are not entitled to receive any payment in lieu in respect of such entitlement, save on termination as provided in clause 7.3. |
7.3 | On termination of the Employment, the Employer may either require you to take any unused and accrued holiday entitlement during any notice period (but such holiday entitlement will be deemed to be taken during any period of Garden Leave) or make a payment in lieu based on your entitlement under clause 7.1 for the holiday year in which your employment terminates. If you have taken more holiday than your accrued entitlement, you will be required to reimburse the Employer in respect of the excess days taken and the Employer is authorised to deduct the appropriate amount from any sums due to you. Any payment in lieu or deduction made shall be calculated on the basis that each day of paid holiday is equivalent to 1/260th of your salary. |
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8. | SICKNESS ABSENCE |
8.1 | Your qualifying days for SSP purposes are your normal working days. |
8.2 | Provided you comply with the sickness absence procedures below (or such additional or alternative procedures as the Employer shall notify from time to time), at the sole discretion of the Employer you may continue to receive your full salary and contractual benefits during any absence from work due to illness or injury for an aggregate of up to six months (or such longer period as the Board may approve), in accordance with the Group’s applicable policy (as may be amended, restated, terminated or replaced from time to time). Such payments will be inclusive of any statutory sick pay that may be due and the Employer may deduct from such payments the amount of any social security or other benefits that you may be entitled to receive and, to the extent that damages for loss of earnings are recoverable from any third party in relation to such incapacity, any payments under this clause will constitute a loan repayable to the Employer on demand at such time as you receive such third party payment (provided that you will not be required to repay a sum in excess of the amount of damages recovered). |
8.3 | You will notify the Board as soon as possible on the first day of absence of the reasons for your absence and how long it is likely to last. You will be required to complete self-certification forms in respect of any period of absence and to provide a medical certificate for any period of incapacity of more than seven days (including weekends). Further certificates must be provided to cover any further periods of incapacity. |
8.4 | You agree to consent to medical examinations (at the Employer's expense) by a doctor appointed by the Employer should the Employer reasonably require and you will provide to that doctor copies of your medical records. The results of the examination may be disclosed to the Employer and the Employer may discuss such results with the relevant doctor. Alternatively, you may be asked to obtain a medical report from your GP or another person responsible for your clinical care and to provide this to the Employer. |
8.5 | If you are away from work due to illness or injury for a consecutive period of 60 days the Employer may appoint another person or persons to perform your duties. |
8.6 | No sick pay under clause 8.1 will be paid on any day when: |
8.6.1 | a hearing is pending which relates to any aspect of your conduct or performance and which could result in the imposition of a warning, dismissal or other sanction; or |
8.6.2 | you have been told, whether formally or informally, that there are concerns about any aspect of your conduct or performance which could result in a disciplinary hearing; or |
8.6.3 | you are in breach of your obligations in relation to medical examinations and reports set out above. |
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9. | PENSION |
9.1 | The Employer will comply with its pension duties in relation to you, in accordance with Part I of the Pensions Act 2008. |
9.2 | You may participate in the Employer's contributory stakeholder pension scheme, subject to the rules of the scheme and HMRC limits from time to time. Alternatively, the Employer will pay the cash equivalent of its contribution into such pension scheme directly to you subject to necessary statutory deductions, in accordance with the applicable Group’s policy (as may be amended, restated, terminated or replaced from time to time) . If you do not join upon commencement of your employment, and if you meet the eligibility criteria for auto-enrolment, you will be automatically enrolled into the Employer contributory stakeholder pension scheme, though you have a right to opt out. The Employer withholds the right to change the pension arrangements subject to changing pension legislation or the needs of the business, in a manner consistent with any other affected senior executives. |
10. | OTHER BENEFITS |
10.1 | You will be entitled to participate in the Group’s (i) Accident & Life Insurance plan; (ii) Permanent Health Insurance (Long Term Sick benefit); and (iii) Private medical health insurance, in each case depending on your pension contributions (if any) and in accordance with the Group policy then in place and the rules of such schemes and related insurance policies (as may be amended, restated, terminated or replaced from time to time). |
10.2 | You will be entitled to (i) car allowance in accordance with the Group’s Company Car Plan; and (ii) Enhanced Maternity and Paternity Pay, in each case in accordance with and subject to the relevant and applicable Group’s policy then in place (as may be amended, restated, terminated or replaced from time to time). |
10.3 | The Employer reserves the right to discontinue, vary or amend the schemes set out in Sections 9.2, 10.1 and 10.2 (including the level of cover) or change the providers at any time and is under no obligation to provide or continue to provide these benefits if they are not available for you (or, if applicable, for your spouse or civil partner or any dependant children under the age of 18) or not available at a cost the Employer considers reasonable. If the insurance providers refuse for any reason to provide any of the benefits to you or, if applicable, your family, the Employer will not be liable to provide you with any replacement benefits of the same or similar kind or to pay any compensation in lieu of such benefits. The Employer will further not assume any liability for any payments that any insurer shall decline to make. |
10.4 | All insurances are provided to you at no expense to the Employer, save for any premiums that may be payable to the insurer from time to time, in accordance with the rules of the applicable plan. |
11. | OTHER INTERESTS |
11.1 | You will not (except as a representative of the Employer or with the prior written approval of the Board (not to be unreasonably withheld or delayed)) whether paid or unpaid, directly or indirectly: |
11.1.1 | undertake, be engaged or concerned in the conduct of; |
11.1.2 | be or become an employee, agent, partner, consultant or director of; or |
11.1.3 | assist or have any financial interest (other than the holding of an Investment or the holding of any personal or family real estate investment) in any other business, trade, profession or occupation, whether actual or prospective. For the avoidance of doubt, interests or activities that may, whether individually or in the aggregate, in the opinion of the Board interfere or conflict with your duties or the interests of the Employer or the Group will not be approved by the Board. |
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11.2 | It is acknowledged that you have disclosed to the Employer and will continue to be involved in such other activities as are set out in Schedule 1. |
11.3 | Nothing herein will prohibit you from holding an Investment. |
11.4 | You agree to disclose to the Board any matters relating to your spouse or civil partner (or anyone living as such), children or parents which may, in the reasonable opinion of the Board, be considered to interfere, conflict or compete with the proper performance of your obligations under this agreement. |
12. | CONFIDENTIAL INFORMATION |
12.1 | You will not (save in the proper course of your duties or as specifically authorised by the Employer) either during the Employment or any time after its termination (howsoever arising) directly or indirectly: |
12.1.1 | use any Confidential Information; |
12.1.2 | disclose or permit the disclosure of Confidential Information to any person, company, or organisation whatsoever; or |
12.1.3 | make or use any Copies. |
12.2 | You are responsible for protecting the confidentiality of the Confidential Information and shall: |
12.2.1 | use your best endeavours to prevent the use or communication of any Confidential Information by any unauthorised person, company or organisation; and |
12.2.2 | inform the Employer immediately upon becoming aware, or suspecting, that any such person, company or organisation knows or has used any Confidential Information. |
12.3 | At any time during the Employment, following the written request of the Employer, you agree to return any Confidential Information and any Copies to the Employer and to irretrievably delete any information relating to the business of the Employer or any member of the Group or any of their shareholders stored on any magnetic or optical drive or solid state memory device or cloud server and all matter derived from such sources which is in your possession or under your control outside the Employer's premises. You further agree to deliver up to the Employer, on request, your electronic devices so the Employer can ensure your compliance with this clause 12.3 and will, if requested, provide a signed statement that you have complied fully with your obligations under this clause 12.3. |
12.4 | During the Employment and at any time following the Termination Date, you shall not make any adverse, disparaging or derogatory comments (whether orally or in writing, including, without limitation, any comments or references in any online blog or personal webspace) about the Employer, any member of the Group or its or their employees, officers, affiliates, investors, representatives, business, products or services, or do anything which may bring the Employer, any member of the Group or its or their employees, officers, affiliates, investors, representatives, business, products or services into disrepute. |
12.5 | The restrictions above shall not apply to information which you, the Employer or another person may be ordered to disclose by a court of competent jurisdiction or which you or the Employer disclose pursuant to and in accordance with the Public Interest Disclosure Act 1998, in reporting misconduct to a regulator, in cooperating with a criminal investigation or prosecution, or as may be required by law. |
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13. | INTELLECTUAL PROPERTY |
13.1 | You shall give the Employer full written details of all Work Product and of all materials and works embodying Intellectual Property Rights made wholly or partially by you at any time during the course of your Employment (whether or not for the Employer or any other member of the Group, or during working hours or using the Employer's premises or resources) which relate to, or are reasonably capable of being used in, the business of the Employer or any member of the Group. You acknowledge that all Employment IPRs shall automatically, on creation, vest in the Employer absolutely regardless of whether it was created in the course of providing services to another member of the Group. At any time on the Employer's request and in any event on the termination of the Employment you shall give the Employer all originals and copies of all works, publications, records and any materials, including, without limitation, code, backups, correspondence, documents, papers and records on all media which record or relate to any Work Product or Employment IPRs. To the extent that any Work Product or Employment IPRs do not vest automatically, you hold them on trust for the Employer. You agree promptly to execute all documents and do all acts as may, in the opinion of the employer, be necessary to give effect to this clause 13.1. |
13.2 | You understand and agree that the Employment IPRs are the exclusive property of the Employer and shall be owned by the Employer. |
13.3 | You hereby irrevocably waive all moral rights under the Copyright, Designs and Patents Act 1988 (and all similar rights in other jurisdictions) which you have or will have in any existing or future works referred to in clause 13.1 above. |
13.4 | You hereby irrevocably appoint the Employer to be your attorney to execute and do any such instrument or thing and generally to use your name for the purpose of giving the Employer or its nominee the benefit of this clause 13 and acknowledge in favour of any third party that a certificate in writing signed by any Director or the Secretary of the Employer that any instrument or act falls within the authority conferred by this clause 13 shall be conclusive evidence that such is the case. |
13.5 | You must ensure that any business contacts which you make in the course of the Employment are reported to the Employer and entered into such customer relationship management database as the Employer may from time to time direct. |
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14. | TERMINATION |
14.1 | Notwithstanding clause 2.2, the Employer may (in its sole and absolute discretion) terminate the Employment at any time and with immediate effect by giving you notice whether orally or in writing that it is exercising its right to do so under this clause and that it will make you a payment in lieu of notice equal to your salary and contractual benefits (excluding, for the avoidance of doubt, any bonus) which you would have been entitled to receive during the notice period (or remainder of the notice period) referred to in clause 2.2 (the “Notice Pay”) less income tax and national insurance contributions. The Employer may elect, as regards the contractual benefits due under this clause, to either (i) make a payment equivalent to the cost of the Employer of providing the benefit; or (ii) continue to provide the benefit during the period for which payment in lieu of notice is made. |
14.2 | The Employer may elect to pay the payment in lieu of notice in equal monthly instalments during what would otherwise have been the notice period referred to in clause 2.2. |
14.3 | You will have no right to receive a Notice Pay unless the Employer has exercised its discretion in clause 14.1 above. Nothing in this clause 14 shall prevent the Employer from terminating the Employment and electing not to make you any payment in lieu of notice. |
14.4 | Notwithstanding clause 14.1, you will not be entitled to any Notice Pay if the Employer would otherwise have been entitled to terminate the Employment without notice in accordance with clause 14.5. In that case the Employer will also be entitled to recover from you any payment in lieu (or instalments thereof) already made. |
14.5 | The Employer may also terminate the Employment at any time with immediate effect without notice and without Notice Pay for Cause. |
14.6 | The rights of the Employer under clause 14.5 are without prejudice to any other rights that it might have at law to terminate the Employment or to accept any breach by you of this agreement as having brought the agreement to an end. Any delay by the Employer in exercising its rights to terminate shall not constitute a waiver thereof. |
14.7 | If the Employment is terminated by the Employer without Cause or by you for Good Reason, you shall receive the following payments (less statutory deductions): |
14.7.1 | an amount equal to (i) one (1.0) time your Base Salary, less (ii) the gross amount of any Notice Pay paid or payable to you pursuant to clauses 14.1 to 14.5, with such amount being payable in a lump sum within 30 days of your Termination Date; and |
14.7.2 | a pro-rata portion of any Annual Bonus determined by the Board payable to you for the fiscal year in which the Termination Date occurs, with the amount of such Annual Bonus based on the Target Bonus for such fiscal year (determined by multiplying the amount of such Annual Bonus which would be due for the full fiscal year by a fraction, the numerator of which is the number of days during the fiscal year of termination that you were employed by the Employer, and the denominator of which is three hundred sixty-six (366)), payable in accordance with Section 5.3 and subject to the terms and conditions applicable to the Annual Bonus. |
15. | OBLIGATIONS ON TERMINATION |
15.1 | On the termination of the Employment (howsoever arising) or, if earlier, at the start of any Garden Leave, you will: |
15.1.1 | immediately deliver to the Employer all property of the Employer or any member of the Group which may be in your possession or control including, without limitation, keys, mobile phone, company car (if any), blackberry, computer equipment, and all Copies, correspondence, documents, papers, memoranda, notes and records (including, without limitation, any records stored by electronic means, together with any codes or implements necessary to give full access to such records), system designs, software designs and software programmes (in whatever media) relating to the business or affairs of the Employer and all copies of the above, provided that where you are on Garden Leave you will not be required to return to the Employer (until the termination of the Employment) any property provided to you as a contractual benefit under the terms of this agreement; |
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15.1.2 | irretrievably delete any information relating to the business of the Employer or any member of the Group stored on any magnetic or optical drive or solid state memory device or cloud server and all matter derived from such sources which is in your possession or under your control outside the Employer's premises; |
15.1.3 | deliver up to the Employer, on request, your electronic devices so the Employer can ensure your compliance under clauses 15.1.1 and 15.1.2 and, if requested, provide a signed statement that you have complied fully with your obligations under such clauses; |
15.2 | On termination of the Employment (howsoever arising and whether lawful or not) any rights which you may have with respect to the Incentive Award, Co-Investment Securities and under or with respect to any share option or incentive scheme in which you participate or may have received grants or allocations shall be exclusively governed by the Investment Agreement, the articles of association of Constellation (BC) Poolco S.C.A and Constellation (BC) S.a.r.l and other agreements and rules applicable to such award, securities and scheme(s) as in force from time to time. Any termination of this employment agreement (howsoever arising an whether lawful or not) will not entitle you to any right to compensation under or in respect of any such award, securities and schemes referred to in this clause 15.2. |
15.3 | On termination of the Employment (howsoever arising and whether lawful or not) or, if earlier, at the start of any Garden Leave, you will immediately resign, without any claim for compensation, from all offices held in the Employer or any member of the Group and as a trustee of any pension scheme connected to the Employer or any member of the Group, and you hereby irrevocably appoint the Employer to be your attorney to execute any documents and do any things and generally to use your name for the purpose of giving the Employer or its nominee the full benefit of this clause. |
16. | GARDEN LEAVE |
16.1 | The Employer is under no obligation to provide you with work and may (if either party serves notice to terminate the Employment or if you purport to terminate the Employment in breach of contract) require you not to perform any duties or to perform only specified duties. |
16.2 | During any period of Garden Leave, you shall: |
16.2.1 | remain an employee of the Employer and be bound by the terms of this agreement (including, but not limited to, your implied duties of good faith and fidelity); |
16.2.2 | continue to receive your salary and contractual benefits in the usual way (subject to the rules of the relevant benefits scheme(s) in force from time to time and the terms of this agreement); |
16.2.3 | not, without the prior written consent of the Board attend your place of work or any other premises of the Employer or any member of the Group; |
16.2.4 | not contact or deal with (or attempt to contact or deal with) any officer or employee (other than on a purely social basis), consultant, client, customer, supplier, agent, distributor, shareholder, adviser or other business contact of the Employer or any member of the Group except such person(s) as the Employer shall designate in writing, and the Employer may suspend your access to all or any information technology systems of the Employer and any member of the Group; |
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16.2.5 | be deemed to take any accrued but unused holiday entitlement; and |
16.2.6 | (except during any periods taken as holiday, which should be notified in advance in accordance with the usual procedures) ensure that the Board knows where and how you can be contacted during normal working hours. |
16.3 | During any period of Garden Leave, the Board may, in its absolute discretion, appoint another person to perform your responsibilities jointly with you or in your place. |
17. | RESTRICTIVE COVENANTS |
17.1 | In this clause 17: |
“Applicable Area” means each of North America, Latin America, Europe, Asia Pacific, Middle East and Africa, but if such area is determined by judicial action to be too broad, then it means the broadest permissible area permitted by applicable law;
“Business” means, collectively, (a) the businesses in which the Group is engaged as of the date of this agreement and (b) any other lines of businesses in which the Group is actually engaged, or which either Board is actively considering (to your knowledge), as of the Termination Date;
"Capacity" means as an officer, director, manager, member, trustee, stockholder, beneficiary, owner, partner, joint venture, investor, employee, independent contractor, agent, consultant, advisor, representative or in any other capacity; and
“Customer” means any person who (a) purchased products or services from the Group during the twenty-four (24) months prior to the Termination Date; or (b) was called upon or solicited by the Group during such twenty-four (24)-month period, with whom or which you, or any person who reported directly to you, had any dealings at any time during such twenty-four (24)-month period.
17.2 | You covenant with the Employer (for itself and as trustee and agent for each member of the Group) that you will not, directly or indirectly, on your own behalf or on behalf of or in conjunction with any firm, company or person, anywhere in the Applicable Area, for 12 months following the Termination Date less any period of Garden Leave as provided at clause 16 above: |
17.2.1 | act in any Capacity, or provide services, for any business that directly or indirectly competes with the Business; |
17.2.2 | otherwise engage in any business, venture or activity that is competitive with the Business; or |
17.2.3 | except as permitted below, own any interest in, consult with, render services to or otherwise assist any person that does any of the foregoing. |
17.3 | Section 17.2 shall not prohibit you from holding an Investment. In addition, the provisions of Section 17.2 shall not be violated by you commencing employment with (or providing services to or having an ownership interest in) a private equity or financial sponsor that owns a company engaged in the Business, or otherwise commencing employment with, or providing services to, a subsidiary, division or unit of any entity that engages in or competes with the Business, in each case, so long as (i) you do not perform services for, or provide any assistance to (whether directly or indirectly), the company, subsidiary, division or unit that competes with the Business or (ii) the entity for which you provide services only derives de minimis revenues from activities competitive with the Business, as determined by the Board in good faith. |
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17.4 | You covenant with the Employer (for itself and as trustee and agent for each member of the Group) that you will not, directly or indirectly, in any manner (whether on your own account, as an owner, operator, officer, director, partner, manager, employee, agent, contractor, consultant or otherwise or in conjunction with any firm, company or person), for 12 months following the Termination Date less any period of Garden Leave as provided at clause 16 above: |
17.4.1 | (i) canvass, solicit or endeavour to entice away, employ, retain, recruit or otherwise attempt to employ or retain (A) any current employee or consultant of the Group or (B) any former employee or consultant who was employed by or providing services to the Group within the preceding six (6)-month period (but excluding any employee or consultant whose employment or service was terminated by the Group without “cause”) or (ii) knowingly induce or attempt to induce any current employee of, or consultant to, the Group to leave the employ or service of the Group or knowingly interfere with the relationship between the Group and any of its employees or consultants; or |
17.4.2 | canvass, solicit or endeavour to entice away from the Group, call on or service any Customer with the intent of providing goods or services to that Customer or attempting to provide goods or services sold by (or similar to the service or product sold by) the Group, (ii) in any way accept business covered in (i) from, or knowingly interfere with the relationship between the Group and, any Customer (or any known prospective Customer), or (iii) knowingly interfere with the relationship between the Group and any supplier, licensee or other business relation of the Group or discourage or prevent any Customer from conducting business with the any member of the Group; provided, that, the foregoing shall not prevent you from making otherwise permissible statements in any litigation proceeding between you, on the one hand, and the Group, on the other hand. |
17.5 | Notwithstanding the foregoing, the provisions of Section 17.4 you shall not be restricted from (A) placing a bona fide general advertising or solicitation not specifically targeted at Group-related persons or entities (provided that such advertising or solicitation is not undertaken with the intent to circumvent the restrictions herein), (B) you serving as a reference, upon request, for any employee of the Group, or (C) actions taken by any person or entity with which you are associated, if you are not involved in the matter and has not identified such Group-related person or entity for solicitation or hiring. |
17.6 | At any time after the Termination Date, you may not represent yourself as being in any way connected with (other than as a former employee or as a shareholder, as the case may be), or interested in the business of the Employer or any member of the Group or use any registered names or trading names associated with the Employer or any member of the Group. |
17.7 | Each of the restrictions contained in this clause 17 (on which you have had the opportunity to take independent legal advice) is intended to be separate and severable and while they are considered by the parties to be reasonable in all the circumstances, it is agreed that if any one or more of such restrictions is held to go beyond what is reasonable in all the circumstances for the protection of the legitimate interests of the Employer or any member of the Group but would be valid if any particular restriction(s) were deleted or some part or parts of its or their wording were deleted, restricted or limited then such restriction(s) shall apply with such deletions, restrictions or limitations as the case may be. |
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17.8 | You agree that you will (at the request and cost of the Employer) enter into a separate agreement with any member of the Group for which you perform services under which you will agree to be bound by restrictions corresponding to the restrictions contained in this clause 17 (or such similar restrictions as will be appropriate provided that such restrictions shall be no wider in scope than those contained in this clause) in relation to such member of the Group. |
17.9 | You agree that if your employment is transferred to any person, company, firm, organisation or other entity other than the Employer or any member of the Group (the "New Employer") pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006, you will, if required, enter into an agreement with the New Employer that will contain provisions that provide protection to the New Employer similar to that provided to the Employer and any member of the Group under clause 17.2 and clause 17.4. |
17.10 | If, during the Employment or any period during which the restrictions in this clause 17 apply you receive an offer to be involved in a business in any Capacity, you will notify the person making the offer of the terms of this clause 17. |
18. | DISCIPLINARY AND GRIEVANCE PROCEDURE |
18.1 | You are subject to the Employer's disciplinary procedures, which can be obtained from the Group’s HR department. These procedures do not form part of your contract of employment. If you are dissatisfied with any disciplinary decision, you should apply in writing to the Chairman of the Board. |
18.2 | The Employer may at any time suspend you on full pay for a period of up to 20 working days, or such longer period as shall be reasonably necessary, for the purposes of investigating any allegation of misconduct or neglect against you. |
18.3 | If you wish to obtain redress of any grievance relating to the Employment you should apply in writing to the Board, in accordance with the Employer's grievance procedures which can be obtained from the Group’s HR department. These procedures do not form part of your contract of employment. |
19. | PERSONAL DATA |
19.1 | You acknowledge that the Employer will from time to time process data that relates to you for the purposes of the administration and management of its employees and its business, for compliance with applicable procedures, laws and regulations, and for other legitimate purposes. |
19.2 | You will at all times comply with the Employer's data protection policy when processing other people's personal data. |
19.3 | You are referred to the Employer's data protection policy (as amended from time to time) for further details. |
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20. | E-MAIL AND INTERNET |
Telephone calls made and received by you using the Employer's equipment, use of the e-mail system to send or receive business or personal correspondence and use of the internet may be monitored and/or recorded by the Employer. You acknowledge that the content of any communications using the Employer's systems or anything stored on such systems will not be private and confidential to you but will belong to the Employer and that the use of such systems is for business purposes only. |
21. | TRAINING |
No training will be provided to you during the Employment. |
22. | OTHER PAID LEAVE |
You may be eligible to take other types of paid leave, subject to any statutory eligibility requirements or conditions and the Employer's rules, such leave includes statutory paternity, adoption, shared parental, parental and parental bereavement leave. |
23. | COLLECTIVE AGREEMENTS |
There are no collective agreements which directly affect the Employment. |
24. | NOTICES |
Any notice to be given under this agreement shall be in writing. Notices may be given by either party by personal delivery or post or by fax addressed to the other party at (in the case of the Employer) its registered office for the time being and (in the case of you) either to your address shown in this agreement or to your last known address (with a copy by electronic mail with confirmation of transmission by the transmitting equipment) and shall be deemed to have been served at the time at which it was delivered personally or transmitted or, if sent by post, would be delivered in the ordinary course of post. For the avoidance of doubt, no notices may be served by e-mail except with the written consent of the other party. |
25. | FORMER AGREEMENTS |
25.1 | This agreement contains the entire understanding between the parties and is in substitution for any previous letters of appointment, agreements or arrangements, whether written, oral or implied, relating to your employment or engagement, which shall be deemed to have been terminated by mutual consent as from the commencement of this agreement. |
25.2 | You hereby warrant and represent to the Employer that you will not, in entering into this agreement or carrying out your duties under this agreement, be in breach of any other terms of employment whether express or implied or any other obligation binding upon you. |
26. | CONSTRUCTION |
26.1 | The headings in this agreement are inserted for convenience only and shall not affect its construction. |
26.2 | Any reference to a statutory provision shall be construed as a reference to any statutory modification or re-enactment of such provision (whether before or after the date of this agreement) for the time being in force. |
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26.3 | Schedule 1 to this agreement forms part of and are incorporated into this agreement. |
26.4 | No modification, variation or amendment to this agreement shall be effective unless such modification, variation or amendment is in writing (not including e-mail) and has been signed by or on behalf of both parties. |
27. | THIRD PARTY RIGHTS |
The Contracts (Rights of Third Parties) Act 1999 shall not apply to this agreement and no person other than you and the Employer and any member of the Group benefitting from a provision of this agreement shall have any rights under it. |
28. | COUNTERPARTS |
This agreement may be executed in any number of counterparts and by the parties to it on separate counterparts, each of which shall be an original but all of which together shall constitute one and the same instrument. The agreement is not effective until each party has executed at least one counterpart, and it has been received by the other party (transmission by fax or email (in a PDF format) being acceptable for this purpose) and the agreement has been dated by agreement. |
29. | INDEMNIFICATION AND D&O COVERAGE |
The Employer and, as applicable, other members of the Group, shall cover you with directors and officers liability insurance to the extent of the coverage they provide to any other officer or director. The Employer and, as applicable, the other members of the Group shall, to the extent the same is provided by such entities to other officers or directors of the Group, indemnify and hold you harmless, to the fullest extent permitted by law and the organizational documents of any relevant members of the Group, from and against all reasonable costs, charges and expenses (including, without limitation, reasonable attorneys’ fees) and on the same basis as any other officer or director of each relevant member of the Group and in accordance with the constitutional documents of any such member of the Group and any applicable Group policy (as amended from time to time). The provisions of this Clause 29 shall not be deemed exclusive of any other rights to which you may have under any applicable law, certificate of incorporation, by-law, agreement, vote of shareholders or directors, or otherwise. |
30. | PROPER LAW |
30.1 | Any claim or matter of whatever nature arising out of or relating to this agreement or its subject matter (including, but not limited to, non-contractual disputes or claims) shall be governed by, and this agreement shall be construed in all respects in accordance with, the law of England and Wales. |
30.2 | Each party irrevocably agrees to submit to the exclusive jurisdiction of the courts of England and Wales over any claim or matter arising out of or relating to this agreement or its subject matter (including, but not limited to, non-contractual disputes or claims). |
This agreement has been executed as a deed and is delivered and takes effect on the date stated at the beginning of it.
[Signature pages follow]
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EXECUTED as a deed by Susan Bean | Signature | ||
DIVERSEY LIMITED | |||
/s/ Susan Bean | |||
acting by a director, in the presence of: | |||
Director | |||
Print name | |||
Susan Bean | |||
Witness signature | /s/ Michael Chapman |
Name (in BLOCK CAPITALS) | MICHAEL CHAPMAN |
Address | xxxxx | |
SIGNED as a deed by | Signature |
PHILIP ROBERT WIELAND | |
in the presence of: | /s/ Philip Robert Wieland |
Witness signature | /s/ Rebecca Middleton |
Name (in BLOCK CAPITALS) | Rebecca Middleton |
Address | xxxxx | |
Exhibit 10.5
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September 3, 2019 To:PaulBudsworth From: Mark Burgess, CEO Subject: New Severance Terms Dear Paul, As you may recall, following the split from Sealed Air, you were deemed a participant eligible to receive severance benefits under the Diversey Enhanced Severance Plan. This Plan expires on September 6, 2019, which means that following that date, the Plan will no longer govern (1) your employment with Diversey and (2) any severance benefits you may have resulting from your employment with Diversey. Following the Plan expiration, however, you will be eligible for the following severance terms: In the event your employment ends for a reason other than for cause (not due to death or disability) or your resignation, then subject to your timely execution and non"revocation of a release of claims, the provisions of reasonable transition services and compliance with restrictive covenants (which include but are not limited to non-competition and non solicitation agreements), you will receive severance in the amount equal to the sum of your then current base salary and target annual Incentive to be paid in ratable installments over the 12"month period following the end of your employment. Please note, this letter shall solely govern any severance benefit to which you would be entitled as a result of your employment with Diversey. Thus, any Company severance practice or policy in effect at the end of your employment shall not govern any severance benefit to which you would be entitled. Should you have any questions related to this letter, please contact Michael Kriner in Human Resources. Sincerely, Mark Burgess, CEO CC:Annette Bergknut, Chief Human Resources Officer Employee Personnel Fiie |
Exhibit 10.6
EXECUTION VERSION
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this “Agreement”) is made as of October 16, 2019 (the “Execution Date”), by and among Diversey, Inc., a Delaware corporation (the “Company”), Diamond (BC) B.V. (“Diamond”), and Todd Herndon (the “Executive”). The Company, Diamond and the Executive are sometimes hereinafter referred to individually as a “Party” and together as “Parties.”
WHEREAS, the Executive has substantial business knowledge and experience, and the Company and Diamond desire to retain the knowledge and experience of the Executive to assist in the operations and management of the Company and Diamond;
WHEREAS, the Executive acknowledges that the Company and Diamond expend substantial resources establishing long term relationships with their respective customers, clients and suppliers, and the Executive will from time to time during the course of his employment be exposed to such customers, clients and suppliers and prospective customers, clients and suppliers; WHEREAS, the Executive acknowledges that in connection with his employment the Executive will have access to valuable Confidential Information (as defined in Section 5 below) including, but not limited to, the Company’s and Diamond’s methods of doing business, business plans and trade secrets;
WHEREAS, the Company and Diamond desire that the Executive not directly or indirectly compete with the Company, Diamond or their respective Subsidiaries, if any, for a reasonable period of time because of the detrimental effect such competition would have on the business of the Company and Diamond; and
WHEREAS, all of the foregoing recitals are incorporated into the covenants of this Agreement as if set forth herein at length.
NOW THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, agree as follows:
1. Employment Term; Position; Duties; Location.
(a) Employment Term. The Company will employ the Executive, and the Executive hereby accepts employment with the Company, upon the terms and conditions set forth in this Agreement, for the period beginning on November 18, 2019 (the “Effective Date”), provided that the Executive commences employment with the Company on the Effective Date, and, unless sooner terminated as provided in Section 4 hereof, ending on the fifth (5th) anniversary hereafter (the “Initial Term”). At the expiration of the Initial Term, this Agreement will automatically renew for successive additional terms of one (1) year (each, a “Renewal Term,” and, together with the Initial Term, the “Employment Period”), unless notice of termination is given in writing by either Party hereto to the other Party at least sixty (60) days prior to the expiration of the Initial Term or any successive Renewal Term. A notice of non-renewal given by the Company shall be treated as a termination without Cause at the end of the then current Term. For the avoidance of doubt, if the Executive does not commence employment on the Effective Date, this Agreement will be null and void ab initio, and the Executive shall have no rights hereunder, absent further written agreement among the Company, Diamond and the Executive.
(b) Position. During the Employment Period, the Executive will serve as the Chief Financial Officer of the Company. The Executive will have the normal duties, responsibilities and authority of this office, subject to the power of the Board of Directors of the Company (the “Company Board”) to expand or adjust such duties, responsibilities and authority in a manner consistent with his position. Additionally, during the Employment Period, the Executive will serve as the Chief Financial Officer of Diamond for no additional compensation and will have the normal duties, responsibilities and authority of this office, subject to the direction of the Board of Directors of Diamond (the “Diamond Board” and, together with the Company Board, the “Boards”).
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(c) Duties. During the Employment Period, the Executive will report directly to the Chief Executive Officer of the Company and the Boards. The Executive will devote substantially all of his business time and attention (except for permitted vacation periods and reasonable periods of illness or other incapacity) to the business and affairs of the Company, Diamond and their respective Subsidiaries (collectively, the “Company Group”) and to the performance of his duties hereunder; provided that the Executive will be permitted to (i) serve on the boards of non-profit and charitable organizations, (ii) with the prior consent of the Boards (not to be unreasonably withheld, delayed or conditioned), serve on the board of directors of a corporation (or other similar governing body of another entity) (other than one that competes with the Business), and (iii) manage his personal and legal affairs and his passive personal investments that do not violate any of the restrictive covenants set forth herein or in any other agreement that the Executive has entered into with the Company Group, to the extent such activities, individually or in the aggregate, do not interfere with the Executive’s performance of his duties and responsibilities hereunder.
(d) Location. During the Employment Period, the Executive’s principal office will be in Charlotte, North Carolina, provided that the Executive understands and agrees that the Executive frequently will be required to travel for business purposes.
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2. | Compensation. |
(a) Base Salary. As of the Effective Date, the Executive’s base salary will be no less than $600,000 per annum in the aggregate. The Executive’s base salary will be paid by the Company in regular installments in accordance with the Company’s general payroll practices and may be increased (but not decreased) in the sole discretion of the Company Board (as increased, “Base Salary”).
(b) Annual Bonus. In addition to the Base Salary, for each full fiscal year ending during the Employment Period, the Executive shall have the opportunity to earn an annual bonus (the “Annual Bonus”), with the target bonus opportunity equal to no less than 80% of the Executive’s then current Base Salary (the “Target Bonus”), based on meeting performance goals to be established by the Compensation Committee of the Company Board no later than sixty (60) days after the commencement of the applicable fiscal year. The actual amount of the Annual Bonus may range from 0% to 200% of the Target Bonus, based upon achievement of the designated performance goals; provided, that, for the 2019 fiscal year only, Executive shall be entitled to an Annual Bonus at least equal to a pro-rated portion of the Target Bonus, with such pro-ration based on the portion of the 2019 fiscal year that Executive is employed with the Company. The Annual Bonus, if any, shall be paid to the Executive in the following fiscal year no later than ten (10) days after the completion of the audit of the financial statements of the Company for the fiscal year relating to such Annual Bonus, subject to the Executive’s continued employment with the Company through the payment date, except as otherwise set forth below (including Section 4(d) hereof).
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(c) | Equity-Related Matters. |
(i) Incentive Equity Award. Within thirty (30) days following the Effective Date, the Executive shall be granted an equity-based incentive award (an “Incentive Equity Award”) in the form of an award of 1,170,628 Class B Shares of Constellation (BC) Poolco S.C.A. (“Poolco”), which are intended to be “profits interests” for U.S. federal income tax purposes and will be allocated 50% time-vesting and 50% performance-vesting. The Incentive Equity Award will be subject to the terms of the Side Letter attached hereto as Exhibit A, as well as the governing documents set forth in Section 2(c)(iv) below.
(ii) Co-Investment. Within thirty (30) days following the Effective Date, the Executive will invest an aggregate amount equal to $500,000 (with the understanding that, between the Execution Date and the Effective Date, the Executive may elect to increase (but not decrease) the amount of such co-investment, in which case he shall notify the Company of such election in writing on or before the Effective Date) as a co-investment in Constellation (BC) S.a.r.l. (“Constellation”), and Constellation shall accept such co-investment. The co-investment will be made in the same class of securities and on a pari passu basis as the co-invest equity securities held by the existing management co-investors as of the Effective Date (with such purchased co-investment securities, the “Co-Investment Securities”). The purchase price for the Co-Investment Securities will be the same as the purchase price paid by the management co-investors who co-invested at the time of the Acquisition (as defined in the Securityholders Agreement in respect of Constellation, dated 4 June 2018 (as amended from time to time, the “SHA”)). For clarity, the Executive will make the investment in USD, so the exact number of Co-Investment Securities issued to the Executive will be determined by reference to the spot rate of exchange between USD and Euros, as published in the London edition of the Financial Times two (2) business days immediately prior to the date of issuance.
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(iii) Transition-Related Resignation. In the event that, prior to the first (1st) anniversary of the Effective Date, the Company Board appoints a new Chief Executive Officer of the Company to succeed Mark Burgess, and the Executive resigns following such appointment, but in all events before the first (1st) anniversary of the Effective Date, because such individual is not acceptable to the Executive (such resignation, a “Transition-Related Resignation”), then subject to the Executive’s satisfaction of the Termination Conditions (as defined in Section 11(a) hereof), upon the Executive’s written election (which the Executive must make, if at all, within thirty (30) days after his resignation), the Company or an affiliate shall purchase or redeem, within sixty (60) days of receipt of the Executive’s written election, the Co-Investment Securities at a purchase price equal to the purchase price the Executive paid to acquire the Co-Investment Securities; provided that such obligation shall be tolled to the extent necessary due to liquidity limitations or applicable restrictions in debt or equity financing agreements. For the avoidance of doubt, the Executive’s resignation due to the Company Board’s appointment of any subsequent Chief Executive Officer of the Company, or the Executive’s resignation without Good Reason on or after the first (1st) anniversary of the Effective Date due to finding Mark Burgess’ successor unacceptable, shall not constitute a Transition-Related Resignation.
(iv) Governing Documents. As a condition to receiving the Incentive Equity Award and purchasing the Co-Investment Securities, the Executive will be required to enter into: (A) a Deed of Adherence to the SHA; (B) a Poolco Subscription Agreement; and (C) a Side Letter with Constellation and Poolco.
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(d) Withholding. All amounts payable to the Executive hereunder will be subject to all required withholding by the Company.
3. Benefits. In addition to the Base Salary and other compensation provided for in Section 2 above, the Executive will be entitled to the following benefits during the Employment Period:
(a) Vacation. The Executive will be entitled to vacation in accordance with Company policy, during which time his compensation shall be paid in full, and such holidays and other nonworking days as are consistent with the policies of the Company for employees generally; provided, however, that Executive shall be entitled to no less than five (5) weeks of vacation for each twelve (12) month period within the Employment Period. Vacation shall be taken in the reasonable judgment of the Executive, subject to the Company’s business needs and the oversight of the Chief Executive Officer of the Company and the Boards.
(b) Health and Welfare; Employee Benefits. The Executive will be entitled to participate in the Company’s health and welfare benefit programs for which other employees of the Company are generally eligible, subject to any eligibility requirements of such plans and programs. In addition, the Executive will be entitled to participate in any employee benefit, fringe benefit or perquisite plan or program that any member of the Company Group has adopted or may adopt, maintain or contribute to for the benefit of its employees or its executive officers generally, subject to any eligibility requirements of such plans and programs.
(c) Business Expenses. The Company will reimburse the Executive for all reasonable expenses incurred by him in the course of performing his duties and responsibilities under this Agreement which are consistent with the Company’s policies in effect from time to time with respect to travel, entertainment and other business expenses, subject to the Company’s requirements with respect to reporting and documentation of such expenses. In addition, within ten (10) days of the Effective Date, the Company will reimburse the Executive for the reasonable attorneys’ fees incurred by him in connection with the negotiation and documentation of this Agreement and related agreements, not to exceed a maximum of $7,000 in the aggregate.
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(d) | Commuting; Relocation. |
(i) Notwithstanding anything to the contrary in Section 1(d) of this Agreement, the Executive may maintain his primary residence in the Milwaukee, Wisconsin area and will not be required to relocate to the Charlotte, North Carolina metropolitan area. Until the six (6)-month anniversary of the Effective Date, the Company will reimburse the Executive on a fully tax grossed-up basis (i.e., the Company will gross-up the reimbursements to the minimal extent necessary for the Executive not to incur an out-of-pocket cost) for his reasonable travel expenses incurred in traveling to and from his residence (limited to one round trip per week), provided that such expenses are incurred in accordance with, and reimbursable under, the Company’s travel policy then in effect.
(ii) Should the Executive subsequently decide to relocate to the Charlotte, North Carolina metropolitan area (or the then-current location of the Company’s headquarters), the Executive shall be entitled to participate in the Company’s relocation program.
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4. | Termination. |
(a) Notwithstanding Section 1 of this Agreement, the Executive’s employment with the Company and the Employment Period will end on the earlier of (i) the Executive’s death or Disability, (ii) the Executive’s resignation without Good Reason (provided that the Executive must provide the Company with at least sixty (60) days’ advance written notice of a resignation without Good Reason), (iii) termination by the Company at any time with Cause (as defined below), or (iv) termination by the Company at any time without Cause (other than a termination pursuant to Section 4(a)(i)), resignation by the Executive for Good Reason or Transition-Related Resignation (provided, that, for the avoidance of doubt, there can be no Transition-Related Resignation on or after the first (1st) anniversary of the Effective Date). Except as otherwise provided herein, any termination of the Employment Period by the Company or by the Executive will be effective as specified in a written notice from the terminating Party to the other Party. For purposes of this Agreement, a termination of the Executive’s employment with the Company will constitute a termination of the Executive’s service as the Chief Financial Officer of Diamond. Upon any termination of his employment with the Company, the Executive will automatically resign from the Boards and any Subsidiary boards on which he may be serving (if any) and will promptly execute any additional documentation necessary to effectuate the foregoing.
(b) If the Executive’s employment with the Company is terminated pursuant to Section 4(a)(i), (ii) or (iii), then the Executive will only be entitled to receive his Base Salary through the date of termination and will not be entitled to any other salary, bonus, severance, compensation or benefits from the Company or any of its Subsidiaries or Affiliates thereafter, other than (i) payment of any unpaid Base Salary through the date of termination and payment in lieu of any accrued but unused vacation time through the date of termination in accordance with Company policy, (ii) those expressly required under applicable law (such as the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”)), (iii) amounts described under Section 3, (iv) amounts payable under the Company’s applicable plans and programs in which the Executive participates, including equity arrangements, and (v) indemnification and officer and director liability insurance. The amounts described in clauses (i)-(v) of this Section 4(b) are referred to herein as the “Accrued Benefits.”
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(c) If the Executive’s employment with the Company is terminated pursuant to Section 4(a)(iv), then, in addition to the Accrued Benefits, the Executive will be entitled to receive (i) an amount equal to one (1.0) times the sum of his (A) Base Salary (at the highest rate in effect during the twelve (12)-month period immediately preceding the date of termination) and (B) Target Bonus (the “Severance Amount”), with such amount payable in ratable installments in accordance with the Company’s then current payroll practices over the twelve (12)-month period following the termination date, and (ii) subject to the Executive’s (A) timely election of continuation coverage under COBRA and (B) continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months immediately following the date of such termination, provided that the Executive is eligible and remains eligible for COBRA coverage, provided, further, that the Company may modify the continuation coverage contemplated by this Section 4(c)(ii) to the extent reasonably necessary to avoid the imposition of any excise taxes on the Company for failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and/or the Health Care and Education Reconciliation Act of 2010, as amended (to the extent applicable), and provided, further, that in the event that the Executive obtains other employment that offers group health benefits, such continuation of coverage by the Company under this Section 4(c)(ii) shall immediately cease.
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(d) Upon any termination event other than one pursuant to Section 4(a)(iii), the Executive will be entitled to any earned but unpaid Annual Bonus for any previously completed fiscal year.
(e) For the purpose of clarity, the non-renewal of the Employment Period by the Company shall constitute a termination event pursuant to Section 4(a)(iv) at the end of the Employment Period.
(f) Unpaid reimbursement as provided in Sections 3(c) and 3(d) shall also be paid when due, despite any termination.
(g) Except as otherwise expressly provided herein or in any applicable equity agreements, all of the Executive’s rights to salary, bonuses, fringe benefits and other compensation hereunder or under any policy or program of the Company which accrue or become payable on or after the termination of the Employment Period will cease upon such termination other than those expressly required under applicable law (such as COBRA) or provided for under such policy or program.
(h) In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Executive under any of the provisions of this Agreement, nor shall the amount of any payment hereunder be reduced by any compensation earned by the Executive as a result of employment by a subsequent employer (except as provided in Section 4(c)(ii)). Subject to Section 29, the Company’s obligations to pay the Executive amounts hereunder shall be subject to set-off, counterclaim or recoupment of bona fide amounts owed by the Executive to the Company Group or any of its Affiliates.
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5. Confidential Information. The Executive recognizes and acknowledges that the continued success of the Company Group depends upon the use and protection of a large body of confidential and proprietary information and that the Executive will have access to certain Confidential Information of the Company Group and corporations with which the Company Group does business, and that such Confidential Information constitutes valuable, special and unique property of the Company Group and such other corporations. “Confidential Information” will be interpreted to include all confidential information of any sort (whether merely remembered or embodied in a tangible or intangible form) that is (a) related to the Company Group’s (including any predecessor of any member thereof) current or potential business and (b) not generally or publicly known. Confidential Information includes, without limitation, the information, observations and data obtained by the Executive, while employed by the Company Group, concerning the business or affairs of the Company Group, including information concerning acquisition opportunities in or reasonably related to the Company Group’s business or industry, development, transition and transformation plans, methodologies and methods of doing business, strategic, marketing and expansion plans, financial and business plans, financial data, pricing information, employee lists and telephone numbers, locations of sales representatives, new and existing customer or supplier programs and services, customer terms, customer service and integration processes, requirements and costs of providing service, support and equipment. Confidential Information does not include any general technical skills or general experience gained by the Executive during the Executive’s affiliation with the Company Group. The Executive agrees that he will use the Confidential Information only as necessary in the performance of his duties hereunder. The Executive agrees that he will not disclose to any unauthorized Person or use for his own purposes (except as described in the immediately preceding sentence) any Confidential Information without the prior written consent of the Company Board, unless and to the extent that (i) the Confidential Information becomes generally known to and available for use by the public other than as a result of the Executive’s acts or omissions or (ii) the Executive is ordered by a court of competent jurisdiction to disclose Confidential Information, provided that in such circumstance the Executive must (A) provide prompt written notice of such order to the Company and (B) cooperate with the Company when revealing such Confidential Information to such court. In addition, nothing in this Agreement shall prohibit the Executive from disclosing information and documents to the Executive’s attorney or tax adviser for the purpose of securing legal or tax advice, or disclosing the post-employment restrictions in this Agreement to any potential new employer; provided that, in each case, the Executive shall instruct such individuals to ensure the continued confidentiality and protection of the Confidential Information. Notwithstanding anything to the contrary contained herein, no provision of this Agreement shall be interpreted so as to impede the Executive (or any other individual) from reporting possible violations of federal law or regulation to any governmental agency or entity, including but not limited to the Department of Justice, the Securities and Exchange Commission, the Congress, and any agency Inspector General, or making other disclosures under the whistleblower provisions of federal law or regulation. The Executive does not need the prior authorization of the Company to make any such reports or disclosures and the Executive shall not be required to notify the Company that such reports or disclosures have been made.
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6. Return of Corporate Property. The Executive acknowledges and agrees that all notes, records, reports, sketches, plans, unpublished memoranda or other documents, whether in paper, electronic or other form (and all copies thereof), held by the Executive concerning any information relating to the business of the Company Group, whether confidential or not, are the property of the Company. The Executive will deliver to the Company at the termination or expiration of the Employment Period, or at any other time the Company may request, all equipment, files, property, memoranda, notes, plans, records, reports, computer tapes, printouts and software and other documents and data (and all electronic, paper or other copies thereof) belonging to the Company Group, which includes, but is not limited to, any materials that contain, embody or relate to the Confidential Information, Work Product (as defined in Section 7 below) or the business of the Company Group, which he may then possess or have under his control; provided however, that the Executive may retain (and make copies of) the Executive’s address book and correspondence, files and documents relating to the Executive’s equity rights, personal compensation, benefits and obligations. During the Executive’s employment and continuing for sixty (60) months thereafter (the “Restricted Period”), upon written notice to the Executive, the Executive will take any and all reasonable actions reasonably deemed necessary or appropriate by the Company or Diamond from time to time, in its reasonable discretion, to ensure the continued confidentiality and protection of the Confidential Information. During the Executive’s employment and the Restricted Period, the Executive will notify the Company promptly and in writing of any circumstances of which the Executive has knowledge relating to any possession or use of any Confidential Information by any Person that the Executive knows is not authorized to possess or use such Confidential Information.
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7. Intellectual Property Rights. The Executive acknowledges and agrees that all inventions, technology, processes, innovations, ideas, improvements, developments, methods, designs, analyses, trademarks, service marks, and other indicia of origin, writings, audiovisual works, concepts, drawings, reports and all similar, related, or derivative information or works (whether or not patentable or subject to copyright), including but not limited to all patents, copyrights, copyright registrations, trademarks, and trademark registrations in and to any of the foregoing, along with the right to practice, employ, exploit, use, develop, reproduce, copy, distribute copies, publish, license, or create works derivative of any of the foregoing, and the right to choose not to do or permit any of the aforementioned actions, which relate to the Company Group’s actual or anticipated business, research and development or existing or future products or services and which are conceived, developed or made by the Executive prior to or while employed by the Company Group (collectively, the “Work Product”) belong to the Company Group. All Work Product created by the Executive while employed by the Company or Diamond will be considered “work made for hire,” and as such, the Company or Diamond (as applicable) is the sole owner of all rights, title, and interests therein. All other rights to any new Work Product and all rights to any existing Work Product, including but not limited to all of the Executive’s rights to any copyrights or copyright registrations related thereto, are conveyed, assigned and transferred to the Company or Diamond (as applicable) pursuant to this Agreement. The Executive will, at the Company’s expense, perform all actions reasonably requested by the Company (whether during or after the Employment Period) to establish, confirm and protect such ownership (including, without limitation, the execution of assignments, copyright registrations, consents, licenses, powers of attorney and other instruments). The provisions of this Section 7 shall not apply to an invention or any work product (a) for which no equipment, supplies, facility, trade secret information or Confidential Information of the Company Group was used, (b) which was developed on the Executive’s own time, and (c) which is not materially related to the Business. 18 U.S.C. § 1833(b) provides: “An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.” Nothing in this Agreement is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by 18 U.S.C. § 1833(b). Accordingly, the Parties to this Agreement have the right to disclose in confidence trade secrets to federal, state, and local government officials, or to an attorney, for the sole purpose of reporting or investigating a suspected violation of law. The Parties also have the right to disclose trade secrets in a document filed in a lawsuit or other proceeding, but only if the filing is made under seal and protected from public disclosure.
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8. Non-Compete. In further consideration of the compensation to be paid to the Executive hereunder, the Executive acknowledges that, in the course of his employment with the Company Group, he will become familiar with the Company Group’s trade secrets, methods of doing business, business plans and other valuable Confidential Information concerning the Company Group and its customers and suppliers and that his services have been and will be of special, unique and extraordinary value to the Company Group. The Executive agrees that, so long as the Executive is employed by the Company Group and continuing for twelve (12) months thereafter (the “Non-Compete Period”), the Executive will not, anywhere in the Applicable Area (whether on his own account, or as an employee, consultant, agent, partner, manager, joint venturer, owner, operator or officer of any other Person, or in any other capacity):
(a) act in a capacity, or provide services, for any business that directly competes with the Business;
(b) engage in the Business or manage, control, participate in, consult with, or render services for, any other Person that engages in the Business;
(c) otherwise engage in any business, venture or activity that directly competes with the Business; or
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(d) except as permitted below, own any interest in, consult with, render services to or otherwise assist any Person that does any of the foregoing.
Nothing herein will prohibit the Executive from: (i) being a passive owner of a competitive business, so long as the Executive has no active participation in the business of such corporation; or (ii) being employed by or otherwise providing services to or for a competitor of the Company Group in a capacity that is not the same as or similar to any capacity in which the Executive worked for the Company Group (acknowledging that the Executive’s role requires the Executive to, among other things, engage in executive, managerial, strategic, technical, and business development activities). For the avoidance of doubt, the Executive will be considered to be “directly” competing if he is officially employed or engaged by an entity’s subsidiary, division or unit that does not engage in or compete with the Business, but nevertheless provides services or any assistance to a subsidiary, division or unit that does compete with the Business. For illustrative purposes only, and not by way of limitation, the following entities are considered to be in “direct” competition with the Business as of the Effective Date: AFCO/Zep, Clorox (Building Care/Laundry), Ecolab, Henkel (F&B), Nilfisk-Advance (Taski/Equipment), P&G (Building Care/Laundry), SC Johnson (Building Care) and Tennant (Taski/Equipment).
9. Non-Solicitation.
(a) The Executive agrees that, so long as the Executive is employed by the Company Group and continuing for twelve (12) months thereafter (the “Non-Solicitation Period”), the Executive will not, directly or indirectly, in any manner (whether on his own account, as an owner, operator, officer, director, partner, manager, employee, agent, contractor, consultant or otherwise): (i) employ, retain, recruit, solicit or otherwise attempt to employ or retain (A) any current employee or consultant of the Company Group or (B) any former employee or consultant who was employed by or providing services to the Company Group within the preceding six (6)-month period (but excluding any employee or consultant whose employment or service was terminated by the Company Group without “cause”) or (ii) knowingly induce or attempt to induce any current employee of, or consultant to, the Company Group to leave the employ or service of the Company Group or otherwise knowingly interfere with the relationship between the Company Group and any of its employees or consultants.
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(b) During the Non-Compete Period, the Executive will not, directly or indirectly, in any manner (whether on his own account, as an owner, operator, officer, director, partner, manager, employee, agent, contractor, consultant or otherwise): (i) call on, solicit or service any Customer with the intent of selling or attempting to sell any service or product sold by (or similar to the service or product sold by) the Company Group, (ii) in any way accept business covered in (i) from, or knowingly interfere with the relationship between the Company Group and, any Customer (or any known prospective Customer), or (iii) knowingly interfere with the relationship between the Company Group and any supplier, licensee or other business relation of the Company Group; provided, that, the foregoing shall not prevent the Executive from making otherwise permissible statements in any litigation proceeding between the Executive, on the one hand, and the Company Group, on the other hand.
Notwithstanding the foregoing, the provisions of this Section 9 shall not be violated by the Executive serving as a reference, upon request, for any employee of the Company Group.
10. Non-Disparagement. During the Employment Period and then for all times thereafter, the Executive will not disparage the Company, Diamond or any of their respective Subsidiaries, any majority investor in the Company or Diamond or the operations, officers, directors or employees of any of the foregoing. Similarly, the Company and Diamond will instruct their respective officers and directors not to disparage the Executive. The foregoing shall not be violated by statements made in connection with the good faith discharge of duties to the Company Group, otherwise permissible statements made in any litigation proceeding involving the parties covered hereby, statements made in response to legal process, rebuttal of false or misleading statements about the parties covered hereby or normal competitive type statements if permissibly competing.
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11. | Release and Enforcement. |
(a) As a condition to receipt of any severance payments under this Agreement, (i) the Executive, within sixty (60) days following termination of the Executive’s employment, shall have delivered, to the Company a complete release of any claims, pursuant to a form substantially similar to the form agreement attached hereto as Exhibit B, and (ii) the Executive will not have breached, and does not breach, the provisions of Sections 5, 6, 7, 8, 9 and 10 hereof (with (i) and (ii), collectively, the “Termination Conditions”). Payment of severance hereafter shall commence within ten (10) days of the Release having become effective and irrevocable, provided that, to the extent that the payment of any amount constitutes “nonqualified deferred compensation” for purposes of Code Section 409A (as defined in Section 29 hereof), any such payment scheduled to occur during the first sixty (60) days following the termination of employment shall not be paid until the first regularly scheduled pay period following the sixtieth (60th) day following such termination and shall include payment of any amount that was otherwise scheduled to be paid prior thereto.
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(b) The Executive acknowledges and agrees that the restrictions contained in Sections 8 and 9 with respect to time, geographical area, and scope of activity are reasonable and do not impose a greater restraint than is necessary to protect the goodwill and other legitimate business interests of the Company Group and that the Executive has had the opportunity to review the provisions of this Agreement with his legal counsel. In particular, the Executive agrees and acknowledges that the Company and Diamond are currently engaging in business and actively marketing their services and products throughout the Applicable Area, the Company Group expend significant time and effort developing and protecting the confidentiality of their methods of doing business, customer lists, long term customer relationships and trade secrets and such methods, customer lists, customer relationships and trade secrets have significant value. However, if, at the time of enforcement of Sections 8 and/or 9, a court holds that the duration, geographical area or scope of activity restrictions stated therein are unreasonable under circumstances then existing or impose a greater restraint than is necessary to protect the goodwill and other business interests of the Company and Diamond, the Parties agree that the maximum duration, scope or area reasonable under such circumstances will be substituted for the stated duration, scope or area and that the court will be allowed to revise the restrictions contained herein to cover the maximum duration, scope and area permitted by law, in all cases giving effect to the intent of the Parties that the restrictions contained herein be given effect to the broadest extent possible. The existence of any claim or cause of action by the Executive against the Company Group, whether predicated on this Agreement or otherwise, will not constitute a defense to the enforcement by the Company or Diamond of the provisions of Sections 5, 6, 7, 8, 9 or 10, or this Section 11. During the Restricted Period, the Executive will notify prospective future employers of the Executive’s obligations under Sections 5, 6, 7, 8, 9 or 10 hereof.
(c) In the event of the breach or a threatened breach by the Executive of any of the provisions of Sections 5, 6, 7, 8, 9 or 10, or this Section 11, the Company Group, in addition and supplementary to any other rights and remedies existing in their favor, will be entitled to specific performance and/or injunctive or other equitable relief from a court of competent jurisdiction in order to enforce or prevent any violations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation by the Executive of Sections 8 and/or 9, the Non-Solicitation Period and/or the Non-Compete Period, as applicable, will be tolled until such breach or violation has been duly cured.
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(d) For the avoidance of doubt, except as set forth Section 14, each party to the Agreement hereto agrees that both parties will solely be responsible for any cost associated with resolving any dispute arising hereunder, including but not limited to any attorneys’ fees or costs, regardless of which party ultimately prevails. Notwithstanding the foregoing, to the extent that the Executive challenges the enforceability or reasonableness of any of the provisions set forth in Sections 5, 6, 7, 8, 9 or 10, or this Section 11, the Executive will, in addition to any other rights and remedies available to the Company, reimburse the Company for any and all reasonable costs and expenses (including attorneys’ fees) incurred by any member of the Company Group in connection with such action or proceeding. For the sake of clarity, the preceding sentence will not apply to disputes regarding whether the Executive in fact violated the provisions of Sections 5, 6, 7, 8, 9 or 10, or this Section 11.
12. Executive’s Representations. The Executive hereby represents and warrants to the Company that (a) he has entered into this Agreement of his own free will for no consideration other than as referred to herein; (b) the execution, delivery and performance of this Agreement by the Executive does not and will not conflict with, breach, violate or cause a default under any contract, agreement, instrument, order, judgment or decree to which the Executive is a party or by which the Executive is bound; (c) the Executive is not a party to or bound by any employment, non-competition, confidentiality or other similar agreement with any other Person that would impair his ability to perform his duties for the Company and Diamond; and (d) upon the execution and delivery of this Agreement by the Company and Diamond, this Agreement will be the valid and binding obligation of the Executive, enforceable in accordance with its terms. The Executive hereby acknowledges and represents that the Executive has had the opportunity to consult with independent legal counsel regarding the Executive’s rights and obligations under this Agreement and that the Executive fully understands the terms and conditions contained herein.
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13. Definitions.
“Affiliate” means, with respect to an entity, any other person or entity, directly or indirectly controlling, controlled by or under common control with the entity
“Applicable Area” means North America, Latin America, Europe, Asia Pacific, Middle East and Africa, but if such area is determined by judicial action to be too broad, then it means the broadest permissible area permitted by applicable law.
“Business” means, collectively, (a) the businesses in which the Company Group is engaged as of the Effective Date and (b) any other lines of businesses in which the Company Group is actually engaged, or which either Board is actively considering (to the Executive’s knowledge), as of the date on which the Employment Period ends.
“Cause” means any of the following: (a) the Executive’s gross negligence or willful misconduct in the performance of his duties owed to the Company Group, (b) the Executive’s indictment for or conviction of (which shall be deemed to have occurred in the case of any plea by the Executive of guilty or nolo contendere to any of the following) a felony or any crime involving moral turpitude (provided that, for the avoidance of doubt, a traffic offense that does not result in significant physical injury shall not constitute a crime of moral turpitude), (c) the Executive’s commission of any willful act or omission involving theft or fraud with respect to the Company Group or any of its customers, suppliers or vendors, (d) the Executive reporting to work intoxicated or under the influence of illegal drugs, or other willful conduct, in each case, causing the Company Group substantial public disgrace or disrepute or material economic harm, (e) the Executive’s repeated failure to perform his material duties after written notice from either Board, (f) the Executive’s willful breach of fiduciary duty (provided that the Executive’s act or omission to act on the advice of counsel to the Company or any of its Affiliates will not result in such a breach), or (g) any other material breach of this Agreement by the Executive. Notwithstanding the foregoing, with respect to any Cause termination relying on clauses (d), (e), (f) or (g) above, if the event giving rise to Cause is subject to cure, the Company will be required to provide five (5) business days’ advance written notice to the Executive and such termination will not be effective if the Executive cures the Cause event within such five (5) business day notice period.
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“Customer” means any Person who (a) purchased products or services from the Company Group during the twenty-four (24) months prior to the date of termination of the Executive’s employment; or (b) was called upon or solicited by the Company Group during such twenty-four (24)-month period, if the Executive had direct or indirect contact with such Person as an employee of the Company Group.
“Disability” means, following written notice from the Company to the Executive that the Executive is unable, by reason of physical or mental impairment that cannot be reasonably accommodated, to carry out and perform the duties and obligations ordinarily required of his then current position for a period of one hundred twenty (120) consecutive days or one hundred eighty (180) days during any twelve (12)-month period, upon the determination by an independent, licensed physician selected by the Company. Notwithstanding the foregoing, with respect to any “nonqualified deferred compensation” (as defined in Code Section 409A) that is payable upon a Disability, Disability shall mean that the Executive is disabled under Code Section 409A(a)(2)(C)(i) or (ii).
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“Good Reason” means the occurrence of any of the following, in each case, during the Employment Period without the Executive’s written consent: (i) a reduction in the Executive’s Base Salary; (ii) a reduction in the Executive’s Target Bonus; (iii) a material and adverse change in the Executive’s title, authority, duties, reporting or responsibilities, (other than temporarily while the Executive is physically or mentally incapacitated or as required by applicable law); (iv) an involuntary relocation of the Executive’s principal office location by more than fifty (50) miles from its then-current location; (v) a material breach by the Company or Diamond of a material provision of this Agreement; or (vi) the failure of the Company or Diamond to obtain the assumption in writing (or by operation of law) of its obligations under this Agreement by any successor to all or substantially all of the assets of the Company or Diamond upon the consummation of a merger, consolidation, sale or similar transaction. The Executive cannot terminate his employment for Good Reason unless he has provided written notice to the Company of the existence of the circumstances providing grounds for termination for Good Reason within thirty (30) days of the initial existence of such grounds and the Company has had at least thirty (30) days from the date on which such notice is provided to cure such circumstances. If the Executive does not terminate his employment for Good Reason within thirty (30) days after the Company’s failure to cure the applicable grounds, then the Executive will be deemed to have waived his right to terminate for Good Reason with respect to such grounds.
“Person” means any natural person, corporation, general partnership, limited partnership, limited liability company or partnership, proprietorship, other business organization, trust, union, association or governmental or regulatory entities, department, agency or authority.
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“Subsidiaries” means any corporation, limited liability company or other entity of which the securities or other ownership interests having the voting power to elect a majority of the board of directors or other governing body are, at the time of determination, owned by the Company (or Diamond, as applicable) or any corporation or other entity of which the Company (or Diamond, as applicable) or one of its respective Subsidiaries serves as the managing member or in a similar capacity, in each case either directly or through one of more Subsidiaries.
14. Indemnification, Etc. The Company, Diamond and, as applicable, the Company’s Subsidiaries shall cover the Executive by directors and officers liability insurance to the extent of the coverage they provide to any other officer or director. The Company and Diamond shall indemnify and hold the Executive harmless, to the fullest extent permitted by law and the organizational documents of the Company Group, from and against all reasonable costs, charges and expenses (including, without limitation, reasonable attorneys’ fees) and on the same basis as any other officer or director. The provisions of this Section 14 shall not be deemed exclusive of any other rights to which the Executive seeking indemnification may have under any applicable law, certificate of incorporation, by-law, agreement, vote of shareholders or directors, or otherwise.
15. Survival. Sections 4 through 29 will survive and continue in full force in accordance with their terms notwithstanding the termination of the Employment Period.
16. Notices. Any notice provided for in this Agreement will be in writing and will be either personally delivered, sent by reputable overnight courier service, sent by facsimile (with hard copy to follow by regular mail) or mailed by first class mail, return receipt requested, to the recipient at the address below indicated:
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Notices to the Executive:
Todd Herndon
At the most recent address on file with the Company
Notices to the Company:
Diversey, Inc.
2415 Cascade Point Blvd.
Charlotte, NC 28208
Attn: Mike Chapman
Email: Mike.chapman@diversey.com
Notices to Diamond:
Diamond (BC) B.V.
Tower A, 12th Floor
Strawinskylaan 1209
1077 XX Amsterdam, Netherlands
Attn: Board of Directors of Diamond
and to:
Bain Capital Private Equity, LP
200 Clarendon Street
Boston, MA 02116
Attn: Ken Hanau
Email: KHanau@baincapital.com
Fax: (617) 516-2010
with a copy (which shall not constitute notice) to:
Kirkland & Ellis LLP
200 Clarendon Street
Boston, MA 02116
Attn: Katherine V. Coverdale
Email: katherine.coverdale@kirkland.com Fax: (617) 385-7501
or such other address or to the attention of such other person as the recipient Party will have specified by prior written notice to the sending Party. Any notice under this Agreement will be deemed to have been given when so delivered, sent or mailed.
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17. Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any action in any other jurisdiction, but this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.
18. Complete Agreement. This Agreement embodies the complete agreement and understanding among the Parties and supersedes and preempts any prior understandings, agreements or representations by or among the Parties, written or oral, which may have related to the subject matter hereof in any way. The Executive hereby releases and waives any claims or rights he may have under any prior agreement or understanding he may have with the Company Group.
19. Counterparts. This Agreement may be executed in separate counterparts (including by facsimile and electronic signature pages), each of which is deemed to be an original and all of which taken together constitute one and the same agreement.
20. No Strict Construction. The parties hereto jointly participated in the negotiation and drafting of this Agreement. The language used in this Agreement will be deemed to be the language chosen by the parties hereto to express their collective mutual intent, this Agreement will be construed as if drafted jointly by the parties hereto, and no rule of strict construction will be applied against any Person.
21. Successors and Assigns. This Agreement is intended to bind and inure to the benefit of and be enforceable by the Executive, the Company, Diamond and their respective heirs, successors and assigns. The Executive may not assign his rights or delegate his duties or obligations hereunder without the prior written consent of the Company and Diamond. Upon notice to the Executive, each of the Company and Diamond may assign its rights and obligations hereunder, without the consent of the Executive, to any of its Affiliates or Subsidiaries or to Person that acquires the Company or Diamond, in which case all references to the Company or Diamond (as applicable) will refer to such assignee; provided, in each case, that the Company and Diamond shall require such successor to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place.
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22. Choice of Law; Exclusive Venue. THIS AGREEMENT, AND ALL ISSUES AND QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT, WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE. THE PARTIES AGREE THAT ALL DISPUTES, LEGAL ACTIONS, SUITS AND PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT EXCLUSIVELY IN A FEDERAL DISTRICT COURT LOCATED IN THE DISTRICT OF DELAWARE OR THE DELAWARE STATE COURT IN NEW CASTLE COUNTY, DELAWARE (COLLECTIVELY, THE “DESIGNATED COURTS”). EACH PARTY HEREBY CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE DESIGNATED COURTS. NO LEGAL ACTION, SUIT OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN ANY OTHER FORUM. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL CLAIMS OF IMMUNITY FROM JURISDICTION AND ANY OBJECTION WHICH SUCH PARTY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING IN ANY DESIGNATED COURT, INCLUDING ANY RIGHT TO OBJECT ON THE BASIS THAT ANY DISPUTE, ACTION, SUIT OR PROCEEDING BROUGHT IN THE DESIGNATED COURTS HAS BEEN BROUGHT IN AN IMPROPER OR INCONVENIENT FORUM OR VENUE.
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23. Mutual Waiver of Jury Trial. THE COMPANY, DIAMOND AND THE EXECUTIVE EACH WAIVES ITS OR HIS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AFFILIATE OF ANY OTHER SUCH PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THE COMPANY, DIAMOND AND THE EXECUTIVE EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION WILL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, EACH OF THE PARTIES FURTHER AGREES THAT ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER WILL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
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24. Business Days. If any time period for giving notice or taking action hereunder expires on a day which is a Saturday, Sunday or legal holiday in the state in which the Company’s chief-executive office is located, the time period shall automatically be extended to the business day immediately following such Saturday, Sunday or legal holiday.
25. | Withholding; 280G. |
(a) The Company Group will be entitled to deduct or withhold from any amounts owing to the Executive any federal, state, local or foreign withholding taxes, excise tax, or employment taxes (“Taxes”) required to be withheld with respect to the Executive’s compensation or other payments from the Company Group or the Executive’s ownership interest in the Company Group or the direct or indirect parents of any member thereof (including, without limitation, wages, bonuses, dividends, the receipt or exercise of equity options and/or the receipt or vesting of restricted equity).
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(b) Notwithstanding anything contained in this Agreement to the contrary to the extent that any of the payments and benefits provided for under this Agreement together with any payments or benefits under any other agreement or arrangement between the Company, Diamond or any of their respective Affiliates and the Executive (collectively, the “Payments”) would (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section 25 would be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then such Payments shall be either: (A) delivered in full, or (B) reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income and employment taxes and the Excise Tax (and any equivalent state or local excise taxes), results in the receipt by the Executive, on an after-tax basis, of the greatest amount of the Payments, notwithstanding that all or some portion of such Payments may be subject to the Excise Tax. Unless the Company and the Executive otherwise agree in writing, any determination required under this Section 25 will be made in writing by independent public accountants mutually selected by the Company and the Executive (the “Accountants”), whose determination will be conclusive and binding (absent manifest error) upon the Executive and the Company for all purposes. For purposes of making the calculations required by this Section 25, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive agree to furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 25. The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 25. Any reduction in Payments required by this provision shall occur in the following order (and in a manner compliant with Section 409A of the Code): (1) reduction of cash payments, beginning with payments scheduled to occur soonest; (2) reduction of vesting acceleration of equity awards (in reverse order of the date of the grant); and (3) reduction of other benefits paid or provided to Executive. In addition, if any portion of the Payments would be subject to the Excise Tax (before giving effect to any reduction in Payments as may be applicable pursuant to the preceding sentences), the Company shall use its reasonable efforts to obtain (in a manner which satisfies all applicable requirements of such Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder, including Q-7 of Section 1.280G-1 of such Treasury Regulations) the approval by such number of shareholders of the Company (or other applicable equityholders of another member of the Company Group) as is required by the terms of Section 280G(b)(5)(B) of the Code so as to render the parachute payment provisions of Section 280G of the Code inapplicable to the Payments that would be reduced or eliminated by operation of the previous sentence if such shareholder approval was not obtained.
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26. Corporate Opportunities. During the Employment Period, the Executive will discuss with the Diamond Board all Business Offers which relate to the Business of the Company, Diamond or their respective Subsidiaries as such Business of the Company, Diamond or their respective Subsidiaries exists at the time of such Business Offer (“Corporate Opportunities”). During the Employment Period, unless approved by the Board, the Executive will not accept or pursue, directly or indirectly, any Corporate Opportunities on the Executive’s own behalf. “Business Offer” means a material business or investment offer formally presented to the Executive in writing.
27. Assistance in Proceedings. During the Employment Period and for twelve (12) months thereafter, the Executive will cooperate with the Company Group in any internal investigation or administrative, regulatory or judicial proceeding as reasonably requested by the Company Group (including, without limitation, the Executive being available to the Company Group upon reasonable notice for interviews and factual investigations, appearing at the Company Group’s request to give testimony without requiring service of a subpoena or other legal process, volunteering to the Company Group all pertinent information and turning over to the Company Group all relevant documents which are or may come into the Executive’s possession, all at times and on schedules that are reasonably consistent with the Executive’s other permitted activities and commitments). In requesting the Executive’s assistance hereunder, the Company Group shall use its commercially reasonable best efforts not to interfere with the Executive’s employment, professional or personal obligations. In the event the Company Group requires the Executive’s cooperation in accordance with this Section 27, the Company will pay the Executive, only to the extent the Executive is not receiving severance in connection with his termination, a per diem (determined by dividing (a) the Executive’s Base Salary in effect on the date of termination by (b) two hundred fifty (250)) and reimburse the Executive for reasonable expenses pre-approved by the Company and incurred in connection therewith (including lodging and meals, upon submission of receipts).
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28. Amendment and Waiver. The provisions of this Agreement may be amended or waived only with the prior written consent of the Company, Diamond and the Executive, and no course of conduct or course of dealing or failure or delay by any Party hereto in enforcing or exercising any of the provisions of this Agreement will affect the validity, binding effect or enforceability of this Agreement or be deemed to be an implied waiver of any provision of this Agreement.
29. | Code Section 409A Compliance. |
(a) The intent of the parties is that payments and benefits under this Agreement comply with, or be exempt from, Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively, “Code Section 409A”), and accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. If the Executive notifies the Company (with specificity as to the reason therefor) that the Executive believes that any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause the Executive to incur any additional tax or interest under Code Section 409A and the Company concurs with such belief or the Company (without any obligation whatsoever to do so) independently makes such determination, the Company shall, after consulting with the Executive, consider reforming such provision to try to comply with Code Section 409A through good faith modifications to the minimum extent reasonably appropriate to conform with Code Section 409A. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to the Executive and the Company of the applicable provision without violating the provisions of Code Section 409A. The Parties acknowledge and agree that taxes and penalties provided for under Code Section 409A are imposed on the Executive by the tax laws.
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(b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment that are considered “nonqualified deferred compensation” under Code Section 409A unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” If the Executive is deemed on the date of termination to be a “specified employee” within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment that is considered non-qualified deferred compensation under Code Section 409A payable on account of a “separation from service,” such payment or benefit shall be made or provided at the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of such “separation from service” of the Executive, and (ii) the date of the Executive’s death (the “Delay Period”). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 29 (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Executive in a lump sum and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
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(c) With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit; (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be violated without regard to expenses reimbursed under any arrangement covered by Internal Revenue Code Section 105(b) solely because such expenses are subject to a limit related to the period the arrangement is in effect; and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred. Any tax gross-up payment as provided herein shall be made in any event no later than the end of the calendar year immediately following the calendar year in which the Executive remits the related taxes, and any reimbursement of expenses incurred due to a tax audit or litigation shall be made no later than the end of the calendar year immediately following the calendar year in which the taxes that are the subject of the audit or litigation are remitted to the taxing authority, or, if no taxes are to be remitted, the end of the calendar year following the calendar year in which the audit or litigation is completed. Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
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(d) For purposes of Code Section 409A, the Executive’s right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. In no event may the Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement that is considered nonqualified deferred compensation. In no event shall the timing of Executive’s execution of the general release of claims, directly or indirectly, result in the Executive designating the calendar year of payment.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties hereto have executed this Employment Agreement as of the date first written above.
COMPANY | ||
Diversey, Inc. | ||
By: | /s/ M. Chapman | |
Name: | M. Chapman | |
Title: | General Counsel | |
DIAMOND | ||
Diamond (BC) B.V | ||
By: | /s/ Herman Weber | |
Name: | Herman Weber | |
Title: | Director |
[Signature Page to Employment Agreement]
EXECUTIVE | |
/s/ Todd Herndon | |
Todd Herndon |
[Signature Page to Employment Agreement]
Exhibit A
Side Letter
A-1
SIDE LETTER
THIS SIDE LETTER (this “Agreement”) is made as of ________________________ 2019, by and among (i) Constellation (BC) S.à r.l., a société à responsabilité limitée incorporated and existing under the laws of the Grand Duchy of Luxembourg (“Luxco”), (ii) Constellation (BC) 2 S.à r.l, a société à responsabilité limitée incorporated and existing under the laws of the Grand Duchy of Luxembourg (the “Investor”), (iii) Constellation (BC) Poolco S.C.A., a société en commandite par actions incorporated and existing under the laws of the Grand Duchy of Luxembourg (“Poolco”), and (iv) Todd Herndon (the “Executive”). Luxco, the Investor, Poolco and the Executive are the “Parties” and each a “Party” to this Agreement.
RECITAL
WHEREAS, the Parties desire to enter into this Agreement to provide for certain rights and obligations of the Parties with respect to the securities issued by Luxco and Poolco.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
1. Definitions. Capitalised terms that are used but not otherwise defined herein shall have the meanings ascribed to them in that certain Securityholders’ Agreement in respect of Luxco, dated 4 June 2018 and adhered to by the Executive on or around the date hereof (the “Securityholders’ Agreement”).
2. Variation of Certain Terms of the Securityholders’ Agreement. Notwithstanding anything to the contrary contained in the Securityholders’ Agreement, the Parties agree and acknowledge that the definition of “Vesting Percentage” in the Securityholders’ Agreement (in its application to the Executive only) shall be deemed to be amended and replaced in its entirety with the following:
“Vesting Percentage” means, as of any date of determination, the Vesting Percentage set forth next to the most recent historical date in the table below upon which the relevant Executive (or Affiliated Individual, if applicable) has been employed by, or otherwise engaged to provide services to, the Group, provided that in the event of a Change in Control, each Executive’s Vesting Percentage shall be deemed to be 100%. For the avoidance of doubt, each Executive’s vesting will cease immediately upon that Executive’s (or Affiliated Individual’s, as applicable) Termination Date.
Date | Vesting Percentage |
On or after the Vesting Commencement Date but prior to the first anniversary of the Vesting Commencement Date | 0% |
On or after the first anniversary but prior to the second anniversary of the Vesting Commencement Date | 331/3% |
Date | Vesting Percentage |
On or after the second anniversary but prior to the third anniversary of the Vesting Commencement Date
|
662/3% |
On or after the third anniversary of the Vesting Commencement Date
|
100% |
Notwithstanding section 1(a) (Definitions) of the Securityholders’ Agreement, for all purposes of the Securityholders’ Agreement and this Agreement, “Cause” and “Good Reason” shall be defined as set forth in section 13 of that certain Employment Agreement, effective as of November 18, 2019, by and among Diversey, Inc., Diamond (BC) B.V. and the Executive.
3. Future Issuances.
(a) Preemptive Right. Subject to Section 3(c) below, if Luxco or any of its Subsidiaries proposes to issue (an “Issuance”) any equity securities or any securities containing options or rights to acquire any shares or other securities that are exchangeable or exercisable or convertible into any equity securities or any equity appreciation rights or phantom equity (collectively, “Equity Securities”) to any Bain Fund or any Affiliate of any Bain Fund (for the avoidance of doubt, excluding any Excluded Issuance) (each, a “New Subscriber”), the Executive shall have the right (the “Preemptive Right”) to indirectly participate in such Issuance by causing Poolco to subscribe for and purchase, for the same price and upon the same terms and conditions as the New Subscriber, a portion of the number or amount of Equity Securities in any such Issuance up to the Executive’s Pro Rata Percentage of such class and type of Equity Securities; provided that Poolco, on behalf of the Executive, shall only be entitled to participate if it subscribes in a strip for the same proportion of all classes and types of Equity Securities.
(b) Procedure. Luxco shall cause a written notice to be given to the Executive at least twenty-five (25) Business Days prior to the proposed Issuance setting forth the number of Equity Securities to be issued, the consideration that Luxco intends to receive and the terms and conditions upon which the Equity Securities shall be issued (the “Preemptive Notice”). After receiving a Preemptive Notice, the Executive must give notice to Luxco in writing, within fifteen (15) Business Days after the date that such Preemptive Notice is deemed given pursuant to Section 23 of the Securityholders’ Agreement, indicating the number of Equity Securities of each class or type for which the Executive desires Poolco to subscribe on its behalf (the “Preemptive Reply”). The Executive shall, simultaneously with delivery of the Preemptive Reply, pay to Poolco, by wire transfer of immediately available funds the amount it wishes to subscribe for Poolco Securities. If the Executive fails to make a Preemptive Reply and transfer immediately available funds to Poolco in accordance with this Section 3(b), the Equity Securities may thereafter, for a period not exceeding ninety (90) days (the “Issuance Deadline”), be issued to the New Subscriber(s) on terms and conditions no less favorable and at a price not less than the price set forth in the Preemptive Notice. Poolco shall, within the Issuance Deadline issue additional Poolco Securities to the Executive (if applicable). The closing of the Issuance to Poolco (of Securities in the same type and amount as Poolco Securities subscribed by the Executive pursuant to this Section 3(b)) and the New Subscriber(s) shall occur no later than the Issuance Deadline. Any such Equity Securities not issued before such Issuance Deadline shall thereafter be subject again to the Preemptive Rights provided for in this Section 3.
2
(c) Emergency Equity Offering. Notwithstanding any other provision in this Agreement or the articles of association of Luxco, in the event that the Board determines in good faith that it is in the best interests of Luxco or its Subsidiaries that an Issuance otherwise subject to this Section 2 be conducted on an accelerated basis due to cash or liquidity requirements (including, but not limited to, a prospective breach of a liquidity covenant) or other business considerations of Luxco or any of its Subsidiaries (an “Emergency Equity Offering”), then such Issuance may be completed otherwise than in compliance with the procedures set forth in this Section 3; provided that the purchaser(s) of the Equity Securities offered pursuant to the Emergency Equity Offering shall be required to promptly, and in any event not later than ninety (90) days after the date of completion of such Emergency Equity Offering, offer to sell to Poolco on behalf of the Executive such portions of the Issuance as the Executive would have been entitled to (indirectly) subscribe for had such Issuance been effected through an offering subject to the Preemptive Rights set forth above in Section 3(a), at the price and on the other terms thereof.
4. Amendment of the Luxco Capital Structure. The Parties acknowledge and agree that, as soon as reasonably practicable following the date hereof (to the extent not effectuated prior to the date hereof), the Luxco capital structure shall be amended (including amendments to the Luxco articles of association, the Securityholders' Agreement and such other ancillary documents as is required) in order to reflect the following adjustments to the existing performance hurdles:
9% Equity Pool | Prior | New | ||||||||||||||||||||||
Tranche Out | Vest | Tranche Out | Vest | |||||||||||||||||||||
C | 2 | x | 5.6250 | % | 62.5 | % | 6.003 | % | 66.7 | % | 1.75 | x | ||||||||||||
D | 2.5 | x | 6.7500 | % | 75.0 | % | 7.497 | % | 83.3 | % | 2.25 | x | ||||||||||||
E | 3.0 | x | 7.8750 | % | 87.5 | % | 9.000 | % | 100.0 | % | 2.75 | x | ||||||||||||
F | 3.5 | x | 9.0000 | % | 100.0 | % | na | na |
5. Representations and Warranties. In connection with the execution of this Agreement, the Investor, Poolco and the Executive, severally and not jointly, represents and warrants to Luxco as of the date hereof, and on a continuing basis hereafter, that this Agreement has been duly authorized, executed and delivered by such Person and constitutes the legal, valid and binding obligation of such person, enforceable in accordance with its terms, and the execution, delivery and performance of this Agreement by such person does not and will not conflict with, violate or cause a breach of any agreement, contract or instrument to which such person is a party or any judgment, order or decree to which such person is subject.
6. Other. Section 15, Section 16, and Sections 18 through 26 (inclusive) of the Securityholders’ Agreement shall apply mutatis mutandis to this Side Letter.
* * * * *
3
IN WITNESS WHEREOF, this Agreement has been executed as of the date first written above.
Constellation (BC) S.à r.l.
By :
Title : Manager and authorized signatory
By :
Title : Manager and authorized signatory
IN WITNESS WHEREOF, this Agreement has been executed as of the date first written above.
Constellation (BC) 2 S.à r.l.
By :
Title : Manager and authorized signatory
By :
Title : Manager and authorized signatory
IN WITNESS WHEREOF, this Agreement has been executed as of the date first written above.
Constellation (BC) Poolco S.C.A.
represented by its general partner
Constellation (BC) 2 S.À R.L.
By :
Title : Manager and authorized signatory
By :
Title : Manager and authorized signatory
IN WITNESS WHEREOF, this Agreement has been executed as of the date first written above.
Todd Herndon
/s/ Todd Herndon |
Exhibit B
GENERAL RELEASE
I, Todd Herndon, in consideration of and subject to the performance by Diversey, Inc. (together with its subsidiaries, the “Company”) of its obligations under the Employment Agreement effective as of November 18, 2019 (the “Agreement”), do hereby release and forever discharge as of the date hereof the Company, Diamond (BC) B.V. (“Diamond”) and their respective affiliates and, in such capacity related solely to their relationship with the Company, Diamond and their respective affiliates and related matters, all present, former and future managers, directors, officers, employees, successors and assigns of the Company, Diamond and their respective affiliates and direct or indirect owners (collectively, the “Released Parties”) to the extent provided below (this “General Release”). The Released Parties are intended to be third-party beneficiaries of this General Release, and this General Release may be enforced by each of them in accordance with the terms hereof in respect of the rights granted to such Released Parties hereunder. Terms used herein but not otherwise defined shall have the meanings given to them in the Agreement.
1. I understand that [any payments or benefits provided to me under Section 2(c)(iii)][any payments or benefits (in excess of the Accrued Benefits) paid or granted to me under Section 4(c)] of the Agreement represent, in part, consideration for signing this General Release and are not salary, wages or benefits to which I was already entitled. I understand and agree that I will not receive any payments or benefits in excess of the Accrued Benefits unless I execute this General Release and do not revoke this General Release within the time period permitted hereafter. Such payments and benefits will not be considered compensation for purposes of any employee benefit plan, program, policy or arrangement maintained or hereafter established by the Company or its affiliates.
2. Except as provided in paragraphs 4 and 5 below and except for the provisions of the Agreement which expressly survive the termination of my employment with the Company and Diamond, I knowingly and voluntarily (for myself and my heirs, executors, administrators and assigns) release and forever discharge the Company, Diamond and the other Released Parties from any and all claims, suits, controversies, actions, causes of action, cross-claims, counter-claims, demands, debts, compensatory damages, liquidated damages, punitive or exemplary damages, other damages, claims for costs and attorneys’ fees, or liabilities of any nature whatsoever in law and in equity, both past and present (through the date on which I execute this General Release) and whether known or unknown, suspected, or claimed against the Company, Diamond or any of the Released Parties which I, my spouse, or any of my heirs, executors, administrators or assigns, may have, including those that arise out of or are connected with my employment with, or my separation or termination from, the Company and Diamond (including, but not limited to, any allegation, claim or violation, arising under: Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as amended (including the Older Workers Benefit Protection Act); the Equal Pay Act of 1963, as amended; the Americans with Disabilities Act of 1990; the Family and Medical Leave Act of 1993; the Worker Adjustment Retraining and Notification Act; the Employee Retirement Income Security Act of 1974; any applicable Executive Order Programs; the Fair Labor Standards Act; or their state or local counterparts; or under any other federal, state or local civil or human rights law, or under any other local, state, or federal law, regulation or ordinance; or under any public policy, contract or tort, or under common law; or arising under any policies, practices or procedures of the Company or Diamond; or any claim for wrongful discharge, breach of contract, infliction of emotional distress, defamation; or any claim for costs, fees, or other expenses, including attorneys’ fees incurred in these matters) (all of the foregoing collectively referred to herein as the “Claims”).
B-1 |
3. I represent that I have made no assignment or transfer of any right, claim, demand, cause of action, or other matter covered by paragraph 2 of this General Release.
4. I agree that this General Release does not waive or release any rights or claims that I may have under the Age Discrimination in Employment Act of 1967 which arise after the date I execute this General Release. I acknowledge and agree that my separation from employment with the Company and Diamond in compliance with the terms of the Agreement shall not serve as the basis for any claim or action (including, without limitation, any claim under the Age Discrimination in Employment Act of 1967).
5. I agree that I hereby waive all rights to sue or obtain equitable, remedial or punitive relief from any or all Released Parties of any kind whatsoever in respect of any Claim, including, without limitation, reinstatement, back pay, front pay, and any form of injunctive relief. Notwithstanding the above, I further acknowledge that I am not waiving and am not being required to waive any right that cannot be waived under law, including the right to file an administrative charge or participate in an administrative investigation or proceeding; provided, however, that I disclaim and waive any right to share or participate in any monetary award resulting from the prosecution of such charge or investigation or proceeding. Additionally, I am not waiving (i) any right to the Accrued Benefits to which I am entitled under the Agreement, (ii) any claim relating to directors’ and officers’ liability insurance coverage or any right of indemnification (or advancement of legal fees) under the Company’s or Diamond’s organizational documents or otherwise, or (iii) my rights as an equity or security holder in the Company, Diamond or their affiliates, including, without limitation, any applicable sale, merger or transaction agreement with respect thereto.
6. In signing this General Release, I acknowledge and intend that it shall be effective as a bar to each and every one of the Claims hereinabove mentioned or implied. I expressly consent that this General Release shall be given full force and effect according to each and all of its express terms and provisions, including those relating to unknown and unsuspected Claims (notwithstanding any state or local statute that expressly limits the effectiveness of a general release of unknown, unsuspected and unanticipated Claims), if any, as well as those relating to any other Claims hereinabove mentioned or implied. I acknowledge and agree that this waiver is an essential and material term of this General Release and that without such waiver the Company and Diamond would not have agreed to the terms of the Agreement. I further agree that in the event I should bring a Claim seeking damages against the Company or Diamond, or in the event I should seek to recover against the Company or Diamond in any Claim brought by a governmental agency on my behalf, this General Release shall serve as a complete defense to such Claims to the maximum extent permitted by law. I further agree that I am not aware of any pending claim of the type described in paragraph 2 of this General Release as of the execution of this General Release.
B-2 |
7. I agree that neither this General Release, nor the furnishing of the consideration for this General Release, shall be deemed or construed at any time to be an admission by the Company, any Released Party or myself of any improper or unlawful conduct.
8. I agree that the terms of this General Release are confidential and agree not to disclose any information regarding the terms of this General Release, except to my immediate family and any tax, legal or other counsel I have consulted regarding the meaning or effect hereof or as required by law, and I will instruct each of the foregoing not to disclose the same to anyone. I may disclose the terms of the General Release to governmental entities.
9. Any non-disclosure provision in this General Release does not prohibit or restrict me (or my attorney) from responding to any inquiry about this General Release or its underlying facts and circumstances by the Securities and Exchange Commission (SEC), the Financial Industry Regulatory Authority (FINRA), any other self-regulatory organization or any governmental entity.
10. I hereby acknowledge that Sections 5 through 29 of the Agreement shall survive my execution of this General Release.
11. I represent that I am not aware of any claim by me other than the claims that are released by this General Release. I acknowledge that I may hereafter discover claims or facts in addition to or different than those which I now know or believe to exist with respect to the subject matter of the release set forth in paragraph 2 of this General Release and which, if known or suspected at the time of entering into this General Release, may have materially affected this General Release and my decision to enter into it.
12. Notwithstanding anything in this General Release to the contrary, this General Release shall not relinquish, diminish, or in any way affect any rights or claims arising out of any breach by the Company or by any Released Party of the Agreement after the date hereof.
13. Whenever possible, each provision of this General Release shall be interpreted in, such manner as to be effective and valid under applicable law, but if any provision of this General Release is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this General Release shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.
BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:
(i) | I HAVE READ IT CAREFULLY; |
(ii) | I UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP IMPORTANT RIGHTS, INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS AMENDED; TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED; THE EQUAL PAY ACT OF 1963; THE AMERICANS WITH DISABILITIES ACT OF 1990; AND THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED; |
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(iii) | I VOLUNTARILY CONSENT TO EVERYTHING IN IT; |
(iv) | I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT AND I HAVE DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION, I HAVE CHOSEN NOT TO DO SO OF MY OWN VOLITION; |
(v) | I HAVE HAD AT LEAST [TWENTY-ONE (21)]/[FORTY-FIVE (45)] DAYS FROM THE DATE OF MY RECEIPT OF THIS GENERAL RELEASE TO CONSIDER IT, AND THE CHANGES MADE SINCE MY RECEIPT OF THIS RELEASE ARE NOT MATERIAL OR WERE MADE AT MY REQUEST AND WILL NOT RESTART THE REQUIRED [TWENTY-ONE (21)]/[FORTY-FIVE (45)]-DAY PERIOD; |
(vi) | I UNDERSTAND THAT I HAVE SEVEN (7) DAYS AFTER THE EXECUTION OF THIS GENERAL RELEASE TO REVOKE IT AND THAT THIS GENERAL RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS EXPIRED; |
(vii) | I HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH THE ADVICE OF ANY COUNSEL RETAINED TO ADVISE ME WITH RESPECT TO IT; AND |
(viii) | I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED, WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY ME. |
SIGNED: |
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Exhibit 10.7
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DIVERSEY, INC. 2415 Cascade Point Blvd. Charlotte, NC 28208 October 4, 2019 Mr. Mark Burgess Via Email Re:Transition Letter Agreement Dear Mark: This letter agreement (this “Letter Agreement”) will confirm our understanding with regard to your transition and resignation from employment with Diversey, Inc. (the “Company”) without Good Reason (as defined in that certain Employment Agreement, dated December 17, 2018, by among the Company, Diamond (BC) B.V., and you (the “Employment Agreement”)). Capitalized terms used herein but not otherwise defined shall have the meanings ascribed thereto in the Employment Agreement. Termination. Your service under this Letter Agreement will commence as of the date hereof and continue through January 9, 2020 (the “Transition Date” and such period through the Transition Date is hereafter referred to as the “Transition Period”). During the Transition Period, the Company will continue to pay your regular annual base salary at its current rate, payable in accordance with the Company’s normal payroll practices, and you will continue to be eligible for all employee benefits to which you are currently entitled or to which employees of the Company become entitled, subject, in each case, to the terms and conditions of the applicable plans or programs. Unless you and the Company mutually agree that your service under this Letter Agreement will extend past the Transition Date to a later date, the Transition Date will be the last day of your employment with the Company. If you and the Company mutually agree that your employment with the Company under this Letter Agreement will extend past the Transition Date and that your last day of employment with the Company will occur on a later date (with the period from the Transition Date through such later date, the “Extended Transition Period”), then during the Extended Transition Period, the Company will pay you a base salary at a rate of $225,000 per month (pro-rated for any partial months of service), payable in accordance with the Company’s normal payroll practices, and you will continue to be eligible for all employee benefits to which you are currently entitled or to which employees of the Company become entitled, subject, in each case, to the terms and conditions of the applicable plans or programs. The last date of your employment with the Company will be referred to herein as the “Separation Date.” During the Transition Period and, if applicable, the Extended Transition Period, you will continue to perform your duties and responsibilities in accordance with the Employment Agreement. Prior to the Separation Date, the Company may transition your duties and responsibilities to other individuals, and you hereby acknowledge and agree that neither such transition, nor the Company’s search for a new chief executive officer, will constitute Good {8362700:5 } |
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Reason to terminate your employment, including, without limitation, on the basis that any of the foregoing constitutes an adverse change in your title, authority, duties, reporting or responsibilities. You further agree that you will assist with the transition of your job responsibilities to the individual(s) designated by the Company. The Company and you hereby agree to communicate your separation from the Company (both internally and externally) as your voluntary resignation of employment to pursue other opportunities. On the Separation Date, you will cease to serve as the Chief Executive Officer of each of the Company and Diamond and automatically will resign from the Boards and the boards of any holding company and/or Subsidiary of the Company (except that you will not resign from the Diamond Board, as further discussed in paragraph 4 hereof), and you will promptly execute any additional documentation necessary to effectuate the foregoing. Following the Separation Date, you agree to provide limited transition assistance to the Company, Bain Capital Private Equity, LP and their respective representatives (e.g., responding to questions via telephone and/or email from time to time, etc.) in order to facilitate the transition of your duties and responsibilities to your successor, but you will not be required to provide any particular level of services in connection with the foregoing. The foregoing assistance is in addition to your obligations under Section 27 of the Employment Agreement, which shall survive both the execution of this Letter Agreement and your execution and non-revocation of the release of claims attached hereto as Exhibit A within thirty (30) days of the Separation Date (the “Release Requirement”). Accrued Benefits. Upon the Separation Date, you shall be entitled to all Accrued Benefits, payable in accordance with the terms of the Employment Agreement. The Company will pay you, on or about January 3, 2020, the guaranteed minimum bonus for fiscal year 2019 equal to $1,125,000 (the “FY 2019 Bonus”); provided that your right to retain the FY 2019 Bonus is subject to your satisfaction of the Employment Requirement (as defined and described below) and the Release Requirement. Transition Benefits. In consideration for your performance of your existing duties and responsibilities and the transition services and your continued compliance with paragraph 8 hereof, you will receive the transition payments and benefits set forth in this paragraph 3 (collectively, the “Transition Benefits”); provided that you remain continuously employed with the Company through the Transition Date (the “Employment Requirement”). Notwithstanding the foregoing, if your employment is terminated by the Company without Cause or your employment terminates due to your death or Disability, or you terminate employment as a result of a Company Breach (as defined below), in each case, prior to the Transition Date, then the Employment Requirement will be deemed satisfied. For the avoidance of doubt, you will forfeit your right to the Transition Benefits upon any resignation (other than a resignation due to a Company Breach) prior to the Transition Date. Special Bonus Payments. The Company shall pay you the following amounts: in the first (or second, to the extent administratively necessary) regularly scheduled payroll period immediately following the date on which you execute this Letter Agreement, the Company shall pay you an amount equal to $60,000; and (ii) in the first (or second, to the extent administratively necessary) regularly scheduled payroll period immediately following the date on which the Release Requirement has been satisfied, the Company shall pay you an amount equal to $285,000. |
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Equity Grant. On or about October 11, 2019, Constellation (BC) Poolco S.C.A. (“Poolco”) will issue you the Initial Award on terms and conditions no less favorable to you than as set forth in the Employment Agreement (including, without limitation, the Side Letter attached as Annex I to the Employment Agreement). Poolco, the Company, Diamond and their affiliates hereby acknowledge and agree that all time-based vesting conditions applicable to the Initial Award shall be deemed to have commenced as of December 17, 2018, and the Initial Award shall remain outstanding and continue to vest through the Transition Date. For the avoidance of doubt, you will not be entitled to any Make-Whole Bonus, as the “floor amount” applicable to the Initial Award is the same as the “floor amount” that would have applied to the Initial Award had it been granted on the date of the Acquisition (as defined in the Securityholders Agreement in respect of Constellation (BC) S.a.r.l. (“Constellation”), dated 4 June 2018 (as amended from time to time, the “SHA”)). Your Initial Award will be in the form of 2,861,534 Class B Shares of Poolco (“Poolco Class B Shares”). You will be permitted to retain your indirect interest in any distributions made in respect of your Vested Poolco Class B Shares (as defined below) that derive from the Constellation Class B Shares held by Poolco in relation to your Vested Poolco Class B Shares, as follows: (i) Sponsor will call 75% of your Poolco Class B Shares (i.e., 2,146,150 Poolco Class B Shares) for nil consideration and will waive its right to call the remaining 25% of your Poolco Class B Shares (i.e., 715,384 Poolco Class B Shares) (such remaining 25%, your “Vested Poolco Class B Shares” referred to above), subject to your compliance with the Release Requirement; you will waive your right to any distributions in respect of the Vested Poolco Class B Shares that derive from the Constellation Class C-F Shares held by Poolco (i.e., you will only be entitled to receive distributions in respect of the Vested Poolco Class B Shares that derive from the Constellation Class B Shares held by Poolco), such that you only receive distributions made in respect of the portion of the Initial Award that is fully vested as of the Transition Date, which portion represents 12.5% of the Initial Award; and (iii) following the Transition Date, your Vested Poolco Class B Shares will remain subject to all of the terms and conditions of the SHA, as modified by the Side Letter. For the sake of clarity, the Company, Sponsor and their affiliates hereby waive all rights to call or repurchase any of your Vested Poolco Class B Shares (and any equity securities acquired pursuant to paragraph 5(a) below), provided you satisfy the Employment Requirement and the Release Requirement and comply with paragraph 8 hereof. For the avoidance of doubt, the Company, Sponsor and their affiliates expressly retain the right to call all of your Poolco Class B Shares that are unvested as of the Transition Date. You hereby agree that you will execute any and all documentation reasonably necessary to effectuate the terms of this Letter Agreement as it relates to the Initial Award. Legal Expenses. Within ten (10) days following the date hereof, the Company will pay directly the legal fees actually incurred by you in connection with the drafting, review and negotiation of this Letter Agreement, not to exceed $4,500 in the aggregate. Continuing Service. In consideration of your continued service on the Diamond Board following the Separation Date (the “Board Service Period”), the Company shall pay you an amount in cash equal to $12,500 per quarter, payable quarterly in arrears and pro-rated for any partial quarters of service; for the avoidance of doubt, you will not receive the foregoing quarterly fee for your service on the Diamond Board prior to the Separation Date. In addition, you will be entitled to equity compensation for such service during the Board Service Period, |
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which will be in the form of an award of 357,692 Class B Shares of Poolco (the “Board Equity Award”). Time vesting of the Board Equity Award shall commence upon commencement of the Board Service Period. Co-Investment. Constellation Investment. Subject to the Company’s and its affiliates’ continued compliance with the terms of this Letter Agreement, you hereby acknowledge and agree that, on or about October 11, 2019, you will invest an aggregate amount equal to $350,000 as a co-investment in Constellation, and Constellation shall accept such investment. The co-investment will be made in the same class of securities and on a pari passu basis as the co-invest equity securities held by the existing management co-investors as of the date hereof. The purchase price for the co-investment will be the same as the purchase price paid by the management co-investors who co-invested at the time of the Acquisition. For clarity, you will make the investment in USD, so the exact number of co-investment securities issued to you will be determined by reference to the spot rate of exchange between USD and Euros, as published in the London edition of the Financial Times two business days immediately prior to the date of issuance. In the event the Company or Sponsor, respectively, materially breaches this Letter Agreement and does not cure such breach within thirty (30) days of its receipt of your written notice outlining in detail the alleged breach (a “Company Breach”), then upon your written election (which you must make, if at all, within thirty (30) days after the end of the cure period), without limiting any of your rights or remedies, the Company or an affiliate shall purchase or redeem, within thirty (30) days of receipt of your written election, your co-investment securities at a purchase price equal to the higher of (i) cost and (ii) the then-current Fair Market Value (as defined in the Constellation organizational documents) of the co-investment securities; provided that such obligation shall be tolled to the extent necessary due to liquidity limitations or applicable restrictions in debt or equity financing agreements. The Company shall provide a deed of adherence to the SHA and the other definitive documentation memorializing such co-investment. For the sake of clarity, this paragraph shall exclusively govern your obligation(s) to co-invest in the Company and its affiliates notwithstanding anything to the contrary. Fund Investment. You and Bain Capital Private Equity, LP hereby acknowledge and agree that you will invest, and Bain Capital Private Equity, LP shall accept your investment of, an aggregate amount equal to $700,000 in a Bain Fund designated by Sponsor and approved by you on customary terms and conditions. Bain Capital Private Equity, LP shall provide the definitive documentation memorializing such investment. Indemnification and D&O. In addition to your rights under applicable law, the Company hereby acknowledges and agrees that Section 14 of the Employment Agreement shall survive the execution of this Letter Agreement and your termination of employment. No Other Compensation or Benefits. You acknowledge that you will not receive any severance from the Company following the Separation Date, and that the payments set forth herein shall be in full settlement of all amounts payable to you and any and all other entitlements you may have under the Employment Agreement. |
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Restrictive Covenants; Survival. You and the Company each hereby reaffirm your respective obligations under Sections 5 through 10 and 11(b) through 11(d) of the Employment Agreement and the SHA, which shall survive both the execution of this Letter Agreement and your execution of the release of claims. Section 13 of the Employment Agreement shall survive both the execution of this Letter Agreement and your execution of the release of claims. Governing Law; Dispute Resolution. This Letter Agreement will be governed by, and construed under and in accordance with, the internal laws of the State of Delaware, without regard to the choice of law rules thereof. Sections 22 and 23 of the Employment Agreement will apply mutatis mutandis to this Letter Agreement. Notices. Any notices required by this Letter Agreement will be provided in accordance with Section 16 of the Employment Agreement, which will apply mutatis mutandis to this Letter Agreement. Tax Matters. The Company may withhold from any and all amounts payable under this Letter Agreement such federal, state, local or foreign taxes required to be withheld pursuant to applicable law; provided that with respect to all compensation earned during the Board Service Period, you will be solely responsible for payment of all federal, state, local and foreign taxes, as applicable, as you will be serving in the capacity of an independent contractor. The intent of the parties is that payments and benefits contemplated under this Letter Agreement that are subject to Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (or any successor law) comply with the requirements thereof, and, accordingly, to the maximum extent permitted, this Letter Agreement will be interpreted to be in compliance therewith. Entire Agreement. Except as otherwise expressly provided or referenced herein, this Letter Agreement constitutes the entire agreement between you and the Company with respect to the subject matter hereof and supersedes any and all prior agreements or understandings between you and the Company with respect to the subject matter hereof, whether written or oral (including, without limitation, the Employment Agreement, provided that, for the avoidance of doubt, the restrictive covenant obligations set forth therein shall survive execution of this Letter Agreement and your execution of the release of claims, as set forth in paragraph 8 hereof). This Letter Agreement will bind the heirs, personal representatives, successors and permitted assigns of both you and the Company, and will inure to the benefit of each of you and the Company and your respective heirs, successors and permitted assigns. This Letter Agreement may be amended or modified only by a written instrument executed by you and the Company. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] |
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I I * :· '1, ' ' : I If this Letter Agreement accurately reflects your understanding as to the terms and conditions of your termination of employment with the Company, please sign and date one copy of this Letter Agreement in the space provided below and return the same to me for the Company's records . Very truly yours, Name: Ken Hanau Title:Manager of Constellation By:_ Name: Jonathon Penn Title:Manager of Constellation DIAMOND (BC) B.V. By:Constellation, · parent oBllS----• By:_ Name: Ken Hanau Title:Manager of Constellation By:_ Name: Jonathon Penn Title:Manager of Constellation |
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For purposes of paragraph 5(b) only, BAIN CAPITAL PR1f,£:!EQUITY, L.P. By:I!. Name: Ken Hanau Title:Managing Director |
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The above terms and conditions accurately reflect our understanding regarding the terms and conditions of my tennination of employment with the Company, and I hereby confirm my agreement to the same. Mark Btirgess |
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EXHIBIT A I, Mark Burgess, in consideration of and subject to the performance by Diversey, Inc. (together with its subsidiaries, the “Company”) of its obligations under the Transition Letter Agreement dated as of October 4, 2019 (the “Agreement”), do hereby release and forever discharge as of the date hereof the Company, Diamond (BC) B.V. (“Diamond”) and their respective affiliates and, in such capacity related solely to their relationship with the Company, Diamond and their respective affiliates and related matters, all present, former and future managers, directors, officers, employees, successors and assigns of the Company, Diamond and their respective affiliates and direct or indirect owners (collectively, the “Released Parties”) to the extent provided below (this “General Release”). The Released Parties are intended to be third-party beneficiaries of this General Release, and this General Release may be enforced by each of them in accordance with the terms hereof in respect of the rights granted to such Released Parties hereunder. Terms used herein but not otherwise defined shall have the meanings given to them in the Agreement. I understand that the FY 2019 Bonus and the Transition Benefits represent, in part, consideration for signing this General Release and are not salary, wages or benefits to which I was already entitled. I understand and agree that I will not receive the FY 2019 Bonus and the Transition Benefits specified in the Agreement unless I execute this General Release and do not revoke this General Release within the time period permitted hereafter. The FY 2019 Bonus and the Transition Benefits will not be considered compensation for purposes of any employee benefit plan, program, policy or arrangement maintained or hereafter established by the Company or its affiliates. Except as provided in paragraphs 4 and 5 below and except for the provisions of the Agreement which expressly survive the termination of my employment with the Company and Diamond, I knowingly and voluntarily (for myself and my heirs, executors, administrators and assigns) release and forever discharge the Company, Diamond and the other Released Parties from any and all claims, suits, controversies, actions, causes of action, cross-claims, counter-claims, demands, debts, compensatory damages, liquidated damages, punitive or exemplary damages, other damages, claims for costs and attorneys’ fees, or liabilities of any nature whatsoever in law and in equity, both past and present (through the date on which I execute this General Release) and whether known or unknown, suspected, or claimed against the Company, Diamond or any of the Released Parties which I, my spouse, or any of my heirs, executors, administrators or assigns, may have, including those that arise out of or are connected with my employment with, or my separation or termination from, the Company and Diamond (including, but not limited to, any allegation, claim or violation, arising under: Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as amended (including the Older Workers Benefit Protection Act); the Equal Pay Act of 1963, as amended; the Americans with Disabilities Act of 1990; the Family and Medical Leave Act of 1993; the Worker Adjustment Retraining and Notification Act; the Employee Retirement Income Security Act of 1974; any applicable Executive Order Programs; the Fair Labor Standards Act; or their state or local counterparts; or under any other federal, state or local civil or human rights law, or under any other local, state, or federal law, regulation or ordinance; or under any public policy, contract or tort, or under |
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common law; or arising under any policies, practices or procedures of the Company or Diamond; or any claim for wrongful discharge, breach of contract, infliction of emotional distress, defamation; or any claim for costs, fees, or other expenses, including attorneys’ fees incurred in these matters) (all of the foregoing collectively referred to herein as the “Claims”). I represent that I have made no assignment or transfer of any right, claim, demand, cause of action, or other matter covered by paragraph 2 of this General Release. I agree that this General Release does not waive or release any rights or claims that I may have under the Age Discrimination in Employment Act of 1967 which arise after the date I execute this General Release. I acknowledge and agree that my separation from employment with the Company and Diamond in compliance with the terms of the Agreement shall not serve as the basis for any claim or action (including, without limitation, any claim under the Age Discrimination in Employment Act of 1967). I agree that I hereby waive all rights to sue or obtain equitable, remedial or punitive relief from any or all Released Parties of any kind whatsoever in respect of any Claim, including, without limitation, reinstatement, back pay, front pay, and any form of injunctive relief. Notwithstanding the above, I further acknowledge that I am not waiving and am not being required to waive any right that cannot be waived under law, including the right to file an administrative charge or participate in an administrative investigation or proceeding; provided, however, that I disclaim and waive any right to share or participate in any monetary award resulting from the prosecution of such charge or investigation or proceeding. Additionally, I am not waiving (i) any right to the Accrued Benefits to which I am entitled under the Agreement, (ii) any claim relating to directors’ and officers’ liability insurance coverage or any right of indemnification (or advancement of legal fees) under the Company’s or Diamond’s organizational documents or otherwise, (iii) my rights as an equity or security holder in the Company, Diamond or their affiliates, including, without limitation, any applicable sale, merger or transaction agreement with respect thereto, or (iv) my rights to enforce the Agreement. In signing this General Release, I acknowledge and intend that it shall be effective as a bar to each and every one of the Claims hereinabove mentioned or implied. I expressly consent that this General Release shall be given full force and effect according to each and all of its express terms and provisions, including those relating to unknown and unsuspected Claims (notwithstanding any state or local statute that expressly limits the effectiveness of a general release of unknown, unsuspected and unanticipated Claims), if any, as well as those relating to any other Claims hereinabove mentioned or implied. I acknowledge and agree that this waiver is an essential and material term of this General Release and that without such waiver the Company and Diamond would not have agreed to the terms of the Agreement. I further agree that in the event I should bring a Claim seeking damages against the Company or Diamond, or in the event I should seek to recover against the Company or Diamond in any Claim brought by a governmental agency on my behalf, this General Release shall serve as a complete defense to such Claims to the maximum extent permitted by law. I further agree that I am not aware of |
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any pending claim of the type described in paragraph 2 of this General Release as of the execution of this General Release. I agree that neither this General Release, nor the furnishing of the consideration for this General Release, shall be deemed or construed at any time to be an admission by the Company, any Released Party or myself of any improper or unlawful conduct. I agree that the terms of this General Release are confidential and agree not to disclose any information regarding the terms of this General Release, except to my immediate family and any tax, legal or other counsel I have consulted regarding the meaning or effect hereof or as required by law, and I will instruct each of the foregoing not to disclose the same to anyone. I may disclose the terms of the General Release to governmental entities. Any non-disclosure provision in this General Release does not prohibit or restrict me (or my attorney) from responding to any inquiry about this General Release or its underlying facts and circumstances by the Securities and Exchange Commission (SEC), the Financial Industry Regulatory Authority (FINRA), any other self-regulatory organization or any governmental entity. I hereby acknowledge that Sections 5 through 10, 11(b) through 11(d), 13 through 14, 16, 22 through 23 and 27 of the Employment Agreement and my obligations under the SHA shall survive my execution of this General Release. I represent that I am not aware of any claim by me other than the claims that are released by this General Release. I acknowledge that I may hereafter discover claims or facts in addition to or different than those which I now know or believe to exist with respect to the subject matter of the release set forth in paragraph 2 of this General Release and which, if known or suspected at the time of entering into this General Release, may have materially affected this General Release and my decision to enter into it. Notwithstanding anything in this General Release to the contrary, this General Release shall not relinquish, diminish, or in any way affect any rights or claims arising out of any breach by the Company or by any Released Party of the Agreement after the date hereof. Whenever possible, each provision of this General Release shall be interpreted in, such manner as to be effective and valid under applicable law, but if any provision of this General Release is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this General Release shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT: I HAVE READ IT CAREFULLY; |
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I UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP IMPORTANT RIGHTS, INCLUDING, BUT NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS AMENDED; TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED; THE EQUAL PAY ACT OF 1963; THE AMERICANS WITH DISABILITIES ACT OF 1990; AND THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED; I VOLUNTARILY CONSENT TO EVERYTHING IN IT; I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT AND I HAVE DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION, I HAVE CHOSEN NOT TO DO SO OF MY OWN VOLITION; I HAVE HAD AT LEAST TWENTY-ONE (21) DAYS FROM THE DATE OF MY RECEIPT OF THIS GENERAL RELEASE TO CONSIDER IT, AND THE CHANGES MADE SINCE MY RECEIPT OF THIS RELEASE ARE NOT MATERIAL OR WERE MADE AT MY REQUEST AND WILL NOT RESTART THE REQUIRED TWENTY-ONE (21)-DAY PERIOD; I UNDERSTAND THAT I HAVE SEVEN (7) DAYS AFTER THE EXECUTION OF THIS GENERAL RELEASE TO REVOKE IT AND THAT THIS GENERAL RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS EXPIRED; I HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH THE ADVICE OF ANY COUNSEL RETAINED TO ADVISE ME WITH RESPECT TO IT; AND I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED, WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY ME. SIGNED: |
Exhibit 10.8
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\ Diversey/\ !lQd<l(a f>'W arioni ., 8CHEMI\ DIPHn1;r::TTO DI F'OFr'i/\ZT.OUE E L/11./fJ[:(_l ['.<f:'H\:1--:iiflJTOid;:1 -:r_·r11,-·,, 1/ENDlTORE TECillC<.J ['E"fl GliMJ!ll r;fJC:!IH ll![JIJ:3Tli!J id.'iilc!IT·H!'. Sede Amminj.strativa: f1iJ.2no - vi A. Meucci 110 Addetti a tempo indeter·minato: n.3? op rai n. 156 impiegat·_i n.10 d.i.r'igent.i. C.C.JJ.L. applicato: Industria Chimica Figura pr·ofession3le alla zione e lavoro: VENDITORE TARE. qu3l e' preor·di11qto il contr· 1 to di fct·rri TECNICO PER GR.r1NIJI CL IFNTT Hl[il.::;T:n, ALil:tn-Num01·0 di cor1tr·atti da stipular·e: uno Durata d l contratto: 211 mesi Tempi di assunz icne: r ntro duo? m·: si d.:il 1;"1 data di S'/as i011e-a.: .:;en2:) Inquadr.:i.mento iniziale: Impiegnto li vellci 11 D 11 lndu.s .ria Chir:-ij C8. '•.v ' lndustri;:-t Chimicci PROGRAMt·l;\ l'ELLA F·om:A?.H1NF: Il giovane. verrn' inserito gradualrnenLe, pern.12 mc::;.i_ ccH1m2n ;_ .:-n.'.. di a.:Jsistenza tecnj ca rr esso cli nti Jn costr:inte af'f.ianc.:i.m'-:.H1t.o con '.'e 1-ditor·i tecnic:i e t'esponsabi li di prodotto. Verra' istr·uito alla compt·ensione delle cat·atterist:.ictl0. t\J 'r.PJl.:i .l·.:•:! de . rrodotti cletergenti e disinfett:anti commerci;::i_li.zzrlti (!.1:1.: n.'_ . /1zii_:::nd:l verso il merr::a -o delle lndustr'i8 alimentari, ln m··:ido ci;1 .i.ntr?t'prr:-t; r-: 11 mcglio le moc! lit ' c cor1dizionipplicati e. |
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VIA MEUCCI '10 - ?.0128 MILA JO . TELE:FONO 02/2593041 (5 lin":A) ::''.i9:J 1<t1 Cl linf • l - TELEX 340230 OIVSFY ! TELEFAX 2Sfi69GU - C/\SEll.A POSTAl.E 71 - 215013 CPEMA - JNOlf:HlZO TELEGflf.S-ICO ()!VEASEY - Mil.ANO Per que.s!-,o pi·irno pr.:riodo E.'-' previ.'Jto l'i_nqu8dr-3rn13nt.,o al li.ve]J.(1 JI[)'' Im piegati Induntr1. Cl1jmicR. Successj_vnm r1te a iJ sLa fase, ne8li ultc rj_rJri 12 m•:-::;i. 1 C'.ltt'r-: al pro eguire q 11,1nto ,3c;pr3 verra' i.str·uit,rJ alJe ter:n.i.ctie che vend.t1··-1, m0dril.i.ta' di visit,;:i, 1 t-:;mpi. rJj controllo, .ser·1izio post-vendJta, U .J.liZ.1:<=11lclO t d in funzion di 1j!lant0 rtppreSO nella f::i:-:'.:': precAd nLc. M0DALITA' DI SVOLGTMEllTO DELLA rnnnA7.lf):IF, HI AZ. IEllDP. La formione sara 1 di tipo t orico appl.icati.vo per la pro ressiva a8r1ui- siz]one delle cap0c.i.ta' profe sion::tli t;Ui P. 1 pri::.'ordinata la for·mazi0n . Come indicato, J.' arJdestramr::n!-,o s;::ira' realizzato sottola cost-J.nte gllid ed affJ.ancamento di pPi·a nale gia' qt1alificnto 1 quali tecr1ici di l bor1-torio, responsablli rli prodotto, vcnditori tecnici. L'JstruzioneVAr1·at impnrtitn conriferiment0 aiseguentt ccn1t nuti programmi; - conoscenza dei prodotti e delle caratteristiche chimico-fi::::iche 1.n r:ip por·to alla natur·a formulativa e applicazione; ccnoscenza dellen1odalita 1 appli.cative, l'ottimizzazionedell'L1so, i benefici e risultati conscguenti; conoscenza delle tecniche di approccio, vendita e servizio. Utilizzazione al r·iguardo dei concetti di costo/efficacia; acquisizione dell'atitonomia operativa tipica della posizione di cui al iprogetto di for·mJzione. Il tutto si svolger·a 1 r1ell'2mbito a Bagnolo Cremasco,ellaSede Clientela. dei localidella Amminiotrativadi .Sede di Stabil.imento Milanoe pressoJ.2 Si ritiene utile specificare he il rapporto di formazione e lavor0, oggett.o di questo s hem.:1, per la parte contrattuctle e normativ-?.., .saro.' regolarizzato, oltre che dal C.C.N.L. Industr·ia Chimica, dnll'Acco1 do Intercot1federale 8 maggio 1986, e cl1e la ris/ azienda aderir;c al la Con findust.rin medi.::tnte un 1\:1rp(H'to nssociativo nei conf'ronti dell'Assolom barda. STABILIMENTO Bo\GNOLO CflU.M$CO 1cn1 - T[I f.X :11 l/l )f_; ()lVS!'Y ITEI.El OtlO O:J7ltl;Ul';12 - c r; p 1(}1J:);>(i7 fJAGNOl.O CRfMASCO 1c:n1 CAP l 10f>0(10Q0(l(l l lT vrns : CC1!\ IU) :J"i /Clll. flf:(l :;nc CllEM!\ VOL"' N f!nO - COOICF. rt<:;CAl.l'. F. PAllTITA IVAN 01l!O:_>l1in!Qti . --· ----· -.-·--·..-. ·,,-_·.-..-.·-·-.. , |
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Vf,\ MEUCCI 40 - 2012fl f.,.11!_.AUO - TELEF'Ot C 02t259'.!0,J1 /5 linPn\ 27"i931·11 (J linee) - TEI.EX 3,\0210 DIV>EY I TELEFAX 25CG9110 - Cf\SF:I LA roSfAL!; 71 - 2fo013 Cll[MA - ltlOlrHZ70 fELEGn1iFICO D!VERSEY M!l_ ·'rJ() Per qua.lsi;isi. u1terJore inf'orm3z.i.on8 ch 1. 0.i rF ndf:•:J:-;·nec s :i 1r.ia r·et' l.l '.·, 'j ·, '·. \ I ST/\OIUMFNTO_ (IAGNOLO CRE ASCO tCfllf!:.tf:X :11M11Jfi ('llVfiEY ITELF.FONO OJT'.\1fl4 <;1? - CCP !011'i fi1 OAG lOl.0 r.nF.MASCO (Cll) CAP l. 1 OfiOOOOOOO INT vEnsCCl1\ ·12{'"> 1crn nt:(; srv: Cl1 .MA VOi "'' N fl()O CO[JICE Fl!,CllLE F. Pl\qrnA IVAN ')<J!OJT Ol'.l-' .... -·--··---'"'.. ·--···-···-;-· ···-·o;""'-· '" |
Exhibit 10.9
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Nederlandse Unilever Bedrijven BV postadres: postbus 760 3000 DK Rotterdam telefoon 010-464 59 11 kantooradres: Museumpark 1 telegrammen Unilever telex21415 .De heer R.C.S. Verheul Geachte heer Verheul, Rotterdam, 17 mei 1989 Hierbij bevestigen wij Uw overplaatsing per 15 juni 1989 naar Development Application Centre. U zult met ingang van deze datum geplaatst worden in de funktie van Project Manager Fabric Washing. Uw funktieklasse is 21. Uw salaris bedraagt met ingang ·van 15 juni 1.989 f 69.500,-:--all-:in :per jaar. Alle rechten en verplichtingen blijven van kracht die zijn vastgelegd in de arbeidsovereenkomst zeals deze met U is gesloten . Indien U in verband met deze overplaatsing verhuist, zullen de kosten van transport van Uw inboedel worden vergoed. Bovendien ontvangt U dan, zodra U verhuisd bent, 1 1/2 maand all-in salaris, als tegemoetkoming in de kosten van inrichting van Uw nieuwe woning. Nederlandse Unilever Bedrijven B.V. heeft de uitoefening van de rechten en de naleving van de verplichtingen welke voor haar uit Uw arbeidsovereenkomst voortvloeien aan het Hoofd van Development Application Centre gedelegeerd, met uitzondering van die welke betrekking hebben op beeindiging van die overeenkomst. Gaarne ontvangen wij bijgaande kopie van deze brief door U voor akkoord getekend uiterlijk 31 mei 1989 van U terug, t.a.v . Mevr. Drs. M. Veenendaal, Algemene Personeelszaken Nederland, Rotterdam. Hoogachtend, NEDERLANDSE UNILEVER Drs. M. Veenendaal Bijlage tel 1ntl!rna.11ona al .. 3110 .!645911 |
Exhibit 10.10
DIVERSEY HOLDINGS, LTD.
2021 Omnibus Incentive Plan
1. Purpose.
The purpose of the Plan is to assist the Company in attracting, retaining, motivating, and rewarding certain employees, officers, directors, and consultants of the Company and its Affiliates and promoting the creation of long-term value for shareholders of the Company by closely aligning the interests of such individuals with those of such shareholders. The Plan authorizes the award of Share-based and cash-based incentives to Eligible Persons to encourage such Eligible Persons to expend maximum effort in the creation of shareholder value.
2. Definitions.
For purposes of the Plan, the following terms shall be defined as set forth below:
(a) “Affiliate” means, with respect to a Person, any other Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Person.
(b) “Award” means any Option, award of Restricted Shares, Restricted Share Unit, Share Appreciation Right, or other Share-based or cash-based award granted under the Plan.
(c) “Award Agreement” means an Option Agreement, a Restricted Share Agreement, an RSU Agreement, a SAR Agreement, or an agreement governing the grant of any other Award granted under the Plan.
(d) “Board” means the Board of Directors of the Company.
(e) “Cause” means, with respect to a Participant and in the absence of an Award Agreement or Participant Agreement otherwise defining Cause, (1) the Participant’s plea of guilty or nolo contendere to, conviction of, or indictment for, any crime (whether or not involving the Company or its Affiliates) (i) constituting a felony or (ii) that has, or could reasonably be expected to result in, an adverse impact on the performance of the Participant’s duties to the Service Recipient, or otherwise has, or could reasonably be expected to result in, an adverse impact on the business or reputation of the Company or its Affiliates; (2) conduct of the Participant, in connection with his or her employment or service, that has resulted, or could reasonably be expected to result, in injury to the business or reputation of the Company or its Affiliates; (3) any material violation of the policies of the Service Recipient, including, but not limited to, those relating to sexual harassment, ethics, discrimination, or the disclosure or misuse of confidential information, or those set forth in the manuals, or statements of policy of the Service Recipient; (4) the Participant’s act(s) of negligence or willful misconduct in the course of his or her employment or service with the Service Recipient; (5) misappropriation by the Participant of any assets or business opportunities of the Company or its Affiliates; (6) embezzlement or fraud committed by the Participant, at the Participant’s direction, or with the Participant’s prior actual knowledge; or (7) willful neglect in the performance of the Participant’s duties for the Service Recipient or willful or repeated failure or refusal to perform such duties. If, subsequent to the Termination of a Participant for any or no reason (other than a Termination by the Service Recipient for Cause), it is discovered that grounds to terminate the Participant’s employment or service for Cause existed, such Participant’s employment or service shall, at the discretion of the Committee, be deemed to have been terminated by the Service Recipient for Cause for all purposes under the Plan, and the Participant shall be required to repay or return to the Company all amounts and benefits received by him or her in respect of any Award following such Termination that would have been forfeited under the Plan had such Termination been by the Service Recipient for Cause. In the event that there is an Award Agreement or Participant Agreement defining Cause, “Cause” shall have the meaning provided in such agreement, and a Termination by the Service Recipient for Cause hereunder shall not be deemed to have occurred unless all applicable notice and cure periods in such Award Agreement or Participant Agreement are complied with.
(f) “Change in Control” means:
(1) a change in the ownership or control of the Company effected through a transaction or series of transactions (other than an offering of Shares to the general public through a registration statement filed with the U.S. Securities and Exchange Commission or similar non-U.S. regulatory agency or pursuant to a Non-Control Transaction) whereby any “person” (as defined in Section 3(a)(9) of the Exchange Act) or any two or more persons deemed to be one “person” (as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act), other than the Company or any of its Affiliates, an employee benefit plan sponsored or maintained by the Company or any of its Affiliates (or its related trust), or any underwriter temporarily holding securities pursuant to an offering of such securities, directly or indirectly acquire, other than pursuant to a Reorganization (as defined in subclause (3) below) that does not constitute a Change in Control under such subclause (3), “beneficial ownership” (within the meaning of Rule 13d-3 under the Exchange Act) of securities of the Company possessing more than 50% of the total combined voting power of the Company’s securities eligible to vote in the election of the Board (“Company Voting Securities”);
(2) the date, within any consecutive 24-month period commencing on or after the Effective Date, upon which individuals who constitute the Board as of the Effective Date (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual who becomes a director subsequent to the Effective Date and whose nomination for election by the Company’s shareholders or appointment was approved by a vote of at least a majority of the directors then constituting the Incumbent Board (either by a specific vote or by approval of the proxy statement of the Company in which such individual is named as a nominee for director, without objection to such nomination) shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest (including, but not limited to, a consent solicitation) with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a person other than the Board; or
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(3) the consummation of a merger, consolidation, share exchange, or similar form of corporate transaction involving the Company or any of its Affiliates that requires the approval of the Company’s shareholders (whether for such transaction, the issuance of securities in the transaction, or otherwise) (a “Reorganization”), unless, immediately following such Reorganization, (i) more than 50% of the total voting power of (A) the corporation resulting from such Reorganization (the “Surviving Company”), or (B) if applicable, the ultimate parent corporation that has, directly or indirectly, beneficial ownership of 100% of the voting securities of the Surviving Company (the “Parent Company”), is represented by Company Voting Securities that were outstanding immediately prior to such Reorganization (or, if applicable, is represented by shares into which such Company Voting Securities were converted pursuant to such Reorganization), and such voting power among the holders thereof is in substantially the same proportion as the voting power of such Company Voting Securities among holders thereof immediately prior to such Reorganization, (ii) no person, other than an employee benefit plan sponsored or maintained by the Surviving Company or the Parent Company (or its related trust), is or becomes the beneficial owner, directly or indirectly, of 50% or more of the total voting power of the outstanding voting securities eligible to elect directors of the Parent Company or, if there is no Parent Company, the Surviving Company, and (iii) following the consummation of such Reorganization, at least a majority of the members of the board of directors of the Parent Company or, if there is no Parent Company, the Surviving Company are members of the Incumbent Board at the time of the Board’s approval of the execution of the initial agreement providing for such Reorganization (any Reorganization which satisfies all of the criteria specified in clauses (i), (ii), and (iii) above shall be a “Non-Control Transaction”); or
(4) the sale or disposition, in one or a series of related transactions, of all or substantially all of the assets of the Company and its subsidiaries (on a consolidated basis) to any “person” (as defined in Section 3(a)(9) of the Exchange Act) or to any two (2) or more persons deemed to be one “person” (as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act), other than the Company’s Affiliates.
Notwithstanding the foregoing, (x) a Change in Control shall not be deemed to occur solely because any person acquires beneficial ownership of 50% or more of the Company Voting Securities as a result of an acquisition of Company Voting Securities by the Company that reduces the number of Company Voting Securities outstanding; provided that, if after such acquisition by the Company, such person becomes the beneficial owner of additional Company Voting Securities that increases the percentage of outstanding Company Voting Securities beneficially owned by such person, a Change in Control shall then be deemed to occur, and (y) with respect to the payment of any amount that constitutes a deferral of compensation subject to Section 409A of the Code payable upon a Change in Control, a Change in Control shall not be deemed to have occurred, unless the Change in Control constitutes a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company under Section 409A(a)(2)(A)(v) of the Code.
(g) “Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time, including the rules and regulations thereunder and any successor provisions, rules, and regulations thereto.
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(h) “Committee” means the Board, the Compensation Committee of the Board, or such other committee consisting of two or more individuals appointed by the Board to administer the Plan and each other individual or committee of individuals designated to exercise authority under the Plan.
(i) “Company” means Diversey Holdings, Ltd., a Cayman Islands limited company, and its successors by operation of law.
(j) “Corporate Event” has the meaning set forth in Section 10(b) hereof.
(k) “Data” has the meaning set forth in Section 20(g) hereof.
(l) “Disability” means, in the absence of an Award Agreement or Participant Agreement otherwise defining Disability, the permanent and total disability of such Participant within the meaning of Section 22(e)(3) of the Code. In the event that there is an Award Agreement or Participant Agreement defining Disability, “Disability” shall have the meaning provided in such Award Agreement or Participant Agreement.
(m) “Disqualifying Disposition” means any disposition (including any sale) of Shares acquired upon the exercise of an Incentive Share Option made within the period that ends either (1) two years after the date on which the Participant was granted the Incentive Share Option or (2) one year after the date upon which the Participant acquired the Shares.
(n) “Effective Date” means [DATE], 2021, which is the date on which the Plan was approved by the Board.
(o) “Eligible Person” means (1) each employee and officer of the Company or any of its Affiliates; (2) each non-employee director of the Company or any of its Affiliates; (3) each other natural Person who provides substantial services to the Company or any of its Affiliates as a consultant or advisor (or a wholly owned alter ego entity of the natural Person providing such services of which such Person is an employee, shareholder, or partner) and who is designated as eligible by the Committee; and (4) each natural Person who has been offered employment by the Company or any of its Affiliates; provided that such prospective employee may not receive any payment or exercise any right relating to an Award until such Person has commenced employment or service with the Company or its Affiliates; provided, further, however, that (i) with respect to any Award that is intended to qualify as a “stock right” that does not provide for a “deferral of compensation” within the meaning of Section 409A of the Code, the term “Affiliate” as used in this Section 2(o) shall include only those corporations or other entities in the unbroken chain of corporations or other entities beginning with the Company where each of the corporations or other entities in the unbroken chain, other than the last corporation or other entity, owns stock possessing at least 50% or more of the total combined voting power of all classes of stock in one of the other corporations or other entities in the chain, and (ii) with respect to any Award that is intended to be an Incentive Share Option, the term “Affiliate” as used in this Section 2(o) shall include only those entities that qualify as a “subsidiary corporation” with respect to the Company within the meaning of Section 424(f) of the Code. An employee on an approved leave of absence may be considered as still in the employ of the Company or any of its Affiliates for purposes of eligibility for participation in the Plan.
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(p) “Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended from time to time, including the rules and regulations thereunder and any successor provisions, rules, and regulations thereto.
(q) “Expiration Date” means, with respect to an Option or Share Appreciation Right, the date on which the term of such Option or Share Appreciation Right expires, as determined under Sections 5(b) or 8(b) hereof, as applicable.
(r) “Fair Market Value” means, as of any date when the Shares are listed on one or more national securities exchange(s), the closing price reported on the principal national securities exchange on which such Shares are listed and traded on the date of determination or, if the closing price is not reported on such date of determination, the closing price reported on the most recent date prior to the date of determination. If the Shares are not listed on a national securities exchange, “Fair Market Value” shall mean the amount determined by the Board in good faith, and in a manner consistent with Section 409A of the Code, to be the fair market value per Share.
(s) “GAAP” means the U.S. Generally Accepted Accounting Principles, as in effect from time to time.
(t) “Incentive Share Option” means an Option intended to qualify as an “incentive stock option” within the meaning of Section 422 of the Code.
(u) “Nonqualified Share Option” means an Option not intended to be an Incentive Share Option.
(v) “Option” means a conditional right, granted to a Participant under Section 5 hereof, to purchase Shares at a specified price during a specified time period.
(w) “Option Agreement” means a written agreement between the Company and a Participant evidencing the terms and conditions of an individual Option Award.
(x) “Participant” means an Eligible Person who has been granted an Award under the Plan or, if applicable, such other Person who holds an Award.
(y) “Participant Agreement” means an employment or other services agreement between a Participant and the Service Recipient that describes the terms and conditions of such Participant’s employment or service with the Service Recipient and is effective as of the date of determination.
(z) “Person” means any individual, corporation, partnership, firm, joint venture, association, joint-stock company, trust, unincorporated organization, or other entity.
(aa) “Plan” means this Diversey Holdings, Ltd. 2021 Omnibus Incentive Plan, as amended from time to time.
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(bb) “Qualified Member” means a member of the Committee who is a “Non-Employee Director” within the meaning of Rule 16b-3 under the Exchange Act and an “independent director” as defined under, as applicable, the NASDAQ Listing Rules, the NYSE Listed Company Manual, or other applicable stock exchange rules.
(cc) “Qualifying Committee” has the meaning set forth in Section 3(b) hereof.
(dd) “Restricted Shares” means Shares granted to a Participant under Section 6 hereof that are subject to certain restrictions and to a risk of forfeiture.
(ee) “Restricted Share Agreement” means a written agreement between the Company and a Participant evidencing the terms and conditions of an individual Restricted Share Award.
(ff) “Restricted Share Unit” means a notional unit representing the right to receive one Share (or the cash value of one Share, if so determined by the Committee) on a specified settlement date.
(gg) “RSU Agreement” means a written agreement between the Company and a Participant evidencing the terms and conditions of an individual Award of Restricted Share Units.
(hh) “SAR Agreement” means a written agreement between the Company and a Participant evidencing the terms and conditions of an individual Award of Share Appreciation Rights.
(ii) “Securities Act” means the U.S. Securities Act of 1933, as amended from time to time, including the rules and regulations thereunder and any successor provisions, rules, and regulations thereto.
(jj) “Service Recipient” means, with respect to a Participant holding an Award, either the Company or an Affiliate of the Company by which the original recipient of such Award is, or following a Termination was most recently, principally employed or to which such original recipient provides, or following a Termination was most recently providing, services, as applicable.
(kk) “Share” means an ordinary share, par value $[___] per share, of the Company, and such other securities as may be substituted for such shares pursuant to Section 10 hereof.
(ll) “Share Appreciation Right” means a conditional right, granted to a Participant under Section 8 hereof, to receive an amount equal to the value of the appreciation in the Shares over a specified period. Except in the event of extraordinary circumstances, as determined in the sole discretion of the Committee, or pursuant to Section 10(b) hereof, Share Appreciation Rights shall be settled in Shares.
(mm) “Substitute Award” has the meaning set forth in Section 4(a) hereof.
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(nn) “Termination” means the termination of a Participant’s employment or service, as applicable, with the Service Recipient; provided, however, that, if so determined by the Committee at the time of any change in status in relation to the Service Recipient (e.g., a Participant ceases to be an employee and begins providing services as a consultant, or vice versa), such change in status will not be deemed a Termination hereunder. Unless otherwise determined by the Committee, in the event that the Service Recipient ceases to be an Affiliate of the Company (by reason of sale, divestiture, spin-off, or other similar transaction), unless a Participant’s employment or service is transferred to another entity that would constitute the Service Recipient immediately following such transaction, such Participant shall be deemed to have suffered a Termination hereunder as of the date of the consummation of such transaction. Notwithstanding anything herein to the contrary, a Participant’s change in status in relation to the Service Recipient (for example, a change from employee to consultant) shall not be deemed a Termination hereunder with respect to any Awards constituting “nonqualified deferred compensation” subject to Section 409A of the Code that are payable upon a Termination, unless such change in status constitutes a “separation from service” within the meaning of Section 409A of the Code. Any payments in respect of an Award constituting nonqualified deferred compensation subject to Section 409A of the Code that are payable upon a Termination shall be delayed for such period as may be necessary to meet the requirements of Section 409A(a)(2)(B)(i) of the Code. On the first business day following the expiration of such period, the Participant shall be paid, in a single lump sum without interest, an amount equal to the aggregate amount of all payments delayed pursuant to the preceding sentence, and any remaining payments not so delayed shall continue to be paid pursuant to the payment schedule applicable to such Award.
3. Administration.
(a) Authority of the Committee. Except as otherwise provided below, the Plan shall be administered by the Committee. The Committee shall have full and final authority, in each case, subject to and consistent with the provisions of the Plan, to (1) select Eligible Persons to become Participants; (2) grant Awards; (3) determine the type, number, and type of Shares subject to, other terms and conditions of, and all other matters relating to, Awards; (4) prescribe Award Agreements (which need not be identical for each Participant) and rules and regulations for the administration of the Plan; (5) construe and interpret the Plan and Award Agreements and correct defects, supply omissions, and reconcile inconsistencies therein; (6) suspend the right to exercise Awards during any period that the Committee deems appropriate to comply with applicable securities laws, and thereafter extend the exercise period of an Award by an equivalent period of time or such shorter period required by, or necessary to comply with, applicable law; and (7) make all other decisions and determinations as the Committee may deem necessary or advisable for the administration of the Plan. Any action of the Committee shall be final, conclusive, and binding on all Persons, including, without limitation, the Company, its shareholders and Affiliates, Eligible Persons, Participants, and beneficiaries of Participants. Notwithstanding anything in the Plan to the contrary, the Committee shall have the ability to accelerate the vesting of any outstanding Award at any time and for any reason, including upon a Corporate Event, subject to Section 10(d), or in the event of a Participant’s Termination by the Service Recipient other than for Cause, or due to the Participant’s death, Disability, or retirement (as such term may be defined in an applicable Award Agreement or Participant Agreement or, if no such definition exists, in accordance with the Company’s then-current employment policies and guidelines). For the avoidance of doubt, the Board shall have the authority to take all actions under the Plan that the Committee is permitted to take.
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(b) Manner of Exercise of Committee Authority. At any time that a member of the Committee is not a Qualified Member, any action of the Committee relating to an Award granted or to be granted to a Participant who is then subject to Section 16 of the Exchange Act in respect of the Company must be taken by the remaining members of the Committee or a subcommittee, designated by the Committee or the Board, composed solely of two or more Qualified Members (a “Qualifying Committee”). Any action authorized by such a Qualifying Committee shall be deemed the action of the Committee for purposes of the Plan. The express grant of any specific power to a Qualifying Committee, and the taking of any action by such a Qualifying Committee, shall not be construed as limiting any power or authority of the Committee.
(c) Delegation. To the extent permitted by applicable law, the Committee may delegate to officers or employees of the Company or any of its Affiliates, or committees thereof, the authority, subject to such terms as the Committee shall determine, to perform such functions under the Plan, including, but not limited to, administrative functions, as the Committee may determine appropriate. The Committee may appoint agents to assist it in administering the Plan. Any actions taken by an officer or employee delegated authority pursuant to this Section 3(c) within the scope of such delegation shall, for all purposes under the Plan, be deemed to be an action taken by the Committee. Notwithstanding the foregoing or any other provision of the Plan to the contrary, any Award granted under the Plan to any Eligible Person who is not an employee of the Company or any of its Affiliates (including any non-employee director of the Company or any Affiliate) or to any Eligible Person who is subject to Section 16 of the Exchange Act must be expressly approved by the Committee or Qualifying Committee in accordance with Section 3(b) above.
(d) Sections 409A and 457A. The Committee shall take into account compliance with Sections 409A and 457A of the Code in connection with any grant of an Award under the Plan, to the extent applicable. While the Awards granted hereunder are intended to be structured in a manner to avoid the imposition of any penalty taxes under Sections 409A and 457A of the Code, in no event whatsoever shall the Company or any of its Affiliates be liable for any additional tax, interest, or penalties that may be imposed on a Participant as a result of Section 409A or Section 457A of the Code or any damages for failing to comply with Section 409A or Section 457A of the Code or any similar state or local laws (other than for withholding obligations or other obligations applicable to employers, if any, under Section 409A or Section 457A of the Code).
4. Shares Available Under the Plan; Other Limitations.
(a) Number of Shares Available for Delivery. Subject to adjustment as provided in Section 10 hereof, the total number of Shares reserved and available for delivery in connection with Awards under the Plan shall equal [NUMBER OF SHARES]. Shares delivered under the Plan shall consist of authorized and unissued shares or previously issued Shares reacquired by the Company on the open market or by private purchase. Notwithstanding the foregoing, (i) except as may be required by reason of Section 422 of the Code, the number of Shares available for issuance hereunder shall not be reduced by Shares issued pursuant to Awards issued or assumed in connection with a merger or acquisition as contemplated by, as applicable, NYSE Listed Company Manual Section 303A.08, NASDAQ Listing Rule 5635(c) and IM-5635-1, AMEX Company Guide Section 711, or other applicable stock exchange rules, and their respective successor rules and listing exchange promulgations (each such Award, a “Substitute Award”), and (ii) Shares shall not be deemed to have been issued pursuant to the Plan with respect to any portion of an Award that is settled in cash.
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(b) Share Counting Rules. The Committee may adopt reasonable counting procedures to ensure appropriate counting, avoid double-counting (as, for example, in the case of tandem awards or Substitute Awards), and make adjustments if the number of Shares actually delivered differs from the number of Shares previously counted in connection with an Award. Other than with respect to a Substitute Award, to the extent that an Award expires or is canceled, forfeited, settled in cash, or otherwise terminated without delivery to the Participant of the full number of Shares to which the Award related, the undelivered Shares will again be available for grant. Shares withheld or surrendered in payment of taxes relating to an Award shall not be deemed to constitute shares delivered to the Participant and shall be deemed to again be available for delivery under the Plan. Shares withheld or surrendered in payment of the exercise price relating to an Award shall not be deemed to constitute Shares delivered to the Participant and shall be deemed to again be available for delivery under the Plan.
(c) Incentive Share Options. No more than [NUMBER OF SHARES] Shares (subject to adjustment as provided in Section 10 hereof) reserved for issuance hereunder may be issued or transferred upon exercise or settlement of Incentive Share Options.
(d) Shares Available Under Acquired Plans. To the extent permitted by NYSE Listed Company Manual Section 303A.08, NASDAQ Listing Rule 5635(c), or other applicable stock exchange rules, subject to applicable law, in the event that a company acquired by the Company, or with which the Company combines, has shares available under a pre-existing plan approved by shareholders and not adopted in contemplation of such acquisition or combination, the shares available for grant pursuant to the terms of such pre-existing plan (as adjusted, to the extent appropriate, using the exchange ratio or other adjustment or valuation ratio of formula used in such acquisition or combination to determine the consideration payable to the holders of common stock of the entities party to such acquisition or combination) may be used for Awards under the Plan and shall not reduce the number of Shares reserved and available for delivery in connection with Awards under the Plan; provided, that, Awards using such available shares shall not be made after the date awards could have been made under the terms of such pre-existing plan, absent the acquisition or combination, and shall only be made to individuals who were not employed by the Company or any subsidiary of the Company immediately prior to such acquisition or combination.
(e) Minimum Vesting. No Award may vest earlier than the first anniversary of the date of grant; provided, however, that the foregoing minimum vesting period shall not apply to (i) a Substitute Award that does not reduce the vesting period of the award being replaced or assumed, or (ii) Awards involving an aggregate number of Shares not in excess of 5% of the aggregate number of Shares that may be delivered in connection with Awards (as set forth in Section 4 hereof).
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(f) Limitation on Awards to Non-Employee Directors. Notwithstanding anything herein to the contrary, the maximum value of any Awards granted to a non-employee director of the Company in any one calendar year, taken together with any cash fees paid to such non-employee director during such calendar year in respect of the non-employee director’s services as a member of the Board during such year, shall not exceed $750,000 (calculating the value of any such Awards based on the grant date fair value of such Awards for financial reporting purposes); provided, that, the Committee may make exceptions to this limit, except that the non-employee director receiving such additional compensation may not participate in the decision to award such compensation.
5. Options.
(a) General. Certain Options granted under the Plan may be intended to be Incentive Share Options; however, no Incentive Share Options may be granted hereunder following the tenth anniversary of the earlier of (i) the date the Plan is adopted by the Board, and (ii) the date the shareholders of the Company approve the Plan. Options may be granted to Eligible Persons in such form and having such terms and conditions as the Committee shall deem appropriate; provided, however, that Incentive Share Options may be granted only to Eligible Persons who are employees of the Company or an Affiliate (as such definition is limited pursuant to Section 2(o) hereof) of the Company. The provisions of separate Options shall be set forth in separate Option Agreements, which agreements need not be identical. No dividends or dividend equivalents shall be paid on Options.
(b) Term. The term of each Option shall be set by the Committee at the time of grant; provided, however, that no Option granted hereunder shall be exercisable after, and each Option shall expire, ten years from the date it was granted.
(c) Exercise Price. The exercise price per Share for each Option shall be set by the Committee at the time of grant and shall not be less than the Fair Market Value on the date of grant, subject to Section 5(g) hereof in the case of any Incentive Share Option. Notwithstanding the foregoing, in the case of an Option that is a Substitute Award, the exercise price per Share for such Option may be less than the Fair Market Value on the date of grant; provided, that, such exercise price is determined in a manner consistent with the provisions of Section 409A of the Code and, if applicable, Section 424(a) of the Code.
(d) Payment for Shares. Payment for Shares acquired pursuant to an Option granted hereunder shall be made in full upon exercise of the Option in a manner approved by the Committee, which may include any of the following payment methods: (1) in immediately available funds in U.S. dollars, or by certified or bank cashier’s check; (2) by delivery of Shares having a value equal to the exercise price; (3) by a broker-assisted cashless exercise in accordance with procedures approved by the Committee, whereby payment of the Option exercise price or tax withholding obligations may be satisfied, in whole or in part, with Shares subject to the Option by delivery of an irrevocable direction to a securities broker (on a form prescribed by the Committee) to sell Shares and to deliver all or part of the sale proceeds to the Company in payment of the aggregate exercise price and, if applicable, the amount necessary to satisfy the Company’s withholding obligations; or (4) by any other means approved by the Committee (including, by delivery of a notice of “net exercise” to the Company, pursuant to which the Participant shall receive (i) the number of Shares underlying the Option so exercised, reduced by (ii) the number of Shares equal to (A) the aggregate exercise price of the Option divided by (B) the Fair Market Value on the date of exercise). Notwithstanding anything herein to the contrary, if the Committee determines that any form of payment available hereunder would be in violation of Section 402 of the Sarbanes-Oxley Act of 2002, such form of payment shall not be available.
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(e) Vesting. Options shall vest and become exercisable in such manner, on such date or dates, or upon the achievement of performance or other conditions, in each case, as may be determined by the Committee and set forth in an Option Agreement. Unless otherwise specifically determined by the Committee, the vesting of an Option shall occur only while the Participant is employed by or rendering services to the Service Recipient, and all vesting shall cease upon a Participant’s Termination for any or no reason. To the extent permitted by applicable law and unless otherwise determined by the Committee, vesting shall be suspended during the period of any approved unpaid leave of absence by a Participant following which the Participant has a right to reinstatement and shall resume upon such Participant’s return to active employment. If an Option is exercisable in installments, such installments or portions thereof that become exercisable shall remain exercisable until the Option expires, is canceled, or otherwise terminates.
(f) Termination of Employment or Service. Except as provided by the Committee in an Option Agreement, Participant Agreement, or otherwise:
(1) In the event of a Participant’s Termination prior to the applicable Expiration Date for any reason other than (i) by the Service Recipient for Cause, or (ii) by reason of the Participant’s death or Disability, (A) all vesting with respect to such Participant’s Options outstanding shall cease; (B) all of such Participant’s unvested Options outstanding shall terminate and be forfeited for no consideration as of the date of such Termination; and (C) all of such Participant’s vested Options outstanding shall terminate and be forfeited for no consideration on the earlier of (x) the applicable Expiration Date, and (y) the date that is 90 days after the date of such Termination.
(2) In the event of a Participant’s Termination prior to the applicable Expiration Date by reason of such Participant’s death or Disability, (i) all vesting with respect to such Participant’s Options outstanding shall cease; (ii) all of such Participant’s unvested Options outstanding shall terminate and be forfeited for no consideration as of the date of such Termination; and (iii) all of such Participant’s vested Options outstanding shall terminate and be forfeited for no consideration on the earlier of (x) the applicable Expiration Date, and (y) the date that is 12 months after the date of such Termination.
(3) In the event of a Participant’s Termination prior to the applicable Expiration Date by the Service Recipient for Cause, all of such Participant’s Options outstanding (whether or not vested) shall immediately terminate and be forfeited for no consideration as of the date of such Termination.
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(g) Special Provisions Applicable to Incentive Share Options.
(1) No Incentive Share Option may be granted to any Eligible Person who, at the time the Option is granted, owns directly, or indirectly within the meaning of Section 424(d) of the Code, Shares possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or of any parent or subsidiary thereof, unless such Incentive Share Option (i) has an exercise price of at least 110% of the Fair Market Value on the date of the grant of such Option, and (ii) cannot be exercised more than five years after the date it is granted.
(2) To the extent that the aggregate Fair Market Value (determined as of the date of grant) of the Shares for which Incentive Share Options are exercisable for the first time by any Participant during any calendar year (under all plans of the Company and its Affiliates) exceeds $100,000, such excess Incentive Share Options shall be treated as Nonqualified Share Options.
(3) Each Participant who receives an Incentive Share Option must agree to notify the Company in writing immediately after the Participant makes a Disqualifying Disposition of any Shares acquired pursuant to the exercise of an Incentive Share Option.
6. Restricted Shares.
(a) General. Restricted Shares may be granted to Eligible Persons in such form and having such terms and conditions as the Committee shall deem appropriate. The provisions of separate Awards of Restricted Shares shall be set forth in separate Restricted Share Agreements, which Restricted Share Agreements need not be identical. Subject to the restrictions set forth in Section 6(b) hereof, and except as otherwise set forth in the applicable Restricted Share Agreement, the Participant shall generally have the rights and privileges of a shareholder as to such Restricted Shares, including the right to vote such Restricted Share. Unless otherwise set forth in a Participant’s Restricted Share Agreement, cash dividends and share dividends, if any, with respect to the Restricted Shares shall be withheld by the Company for the Participant’s account, and shall be subject to forfeiture to the same degree as the Restricted Shares to which such dividends relate. Except as otherwise determined by the Committee, no interest will accrue or be paid on the amount of any cash dividends withheld.
(b) Vesting and Restrictions on Transfer. Restricted Shares shall vest in such manner, on such date or dates, or upon the achievement of performance or other conditions, in each case, as may be determined by the Committee and set forth in a Restricted Share Agreement. Unless otherwise specifically determined by the Committee, the vesting of an Award of Restricted Shares shall occur only while the Participant is employed by or rendering services to the Service Recipient, and all vesting shall cease upon a Participant’s Termination for any or no reason. To the extent permitted by applicable law and unless otherwise determined by the Committee, vesting shall be suspended during the period of any approved unpaid leave of absence by a Participant following which the Participant has a right to reinstatement and shall resume upon such Participant’s return to active employment. In addition to any other restrictions set forth in a Participant’s Restricted Share Agreement, the Participant shall not be permitted to sell, transfer, pledge, or otherwise encumber the Restricted Shares prior to the time the Restricted Shares have vested pursuant to the terms of the Restricted Share Agreement.
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(c) Termination of Employment or Service. Except as provided by the Committee in a Restricted Share Agreement, Participant Agreement, or otherwise, in the event of a Participant’s Termination for any or no reason prior to the time that such Participant’s Restricted Shares have vested, (1) all vesting with respect to such Participant’s Restricted Shares outstanding shall cease; and (2) as soon as practicable following such Termination, the Company shall repurchase from the Participant, and the Participant shall sell, all of such Participant’s unvested Restricted Shares at a purchase price equal to the lesser of (A) the original purchase price paid for the Restricted Shares (as adjusted for any subsequent changes in the outstanding Shares or in the capital structure of the Company), less any dividends or other distributions or bonus received (or to be received) by the Participant (or any transferee) in respect of such Restricted Shares prior to the date of repurchase, and (B) the Fair Market Value of the Shares on the date of such repurchase; provided that, if the original purchase price paid for the Restricted Shares is equal to zero dollars ($0), such unvested Restricted Shares shall be forfeited to the Company by the Participant for no consideration as of the date of such Termination.
7. Restricted Share Units.
(a) General. Restricted Share Units may be granted to Eligible Persons in such form and having such terms and conditions as the Committee shall deem appropriate. The provisions of separate Restricted Share Units shall be set forth in separate RSU Agreements, which RSU Agreements need not be identical.
(b) Vesting. Restricted Share Units shall vest in such manner, on such date or dates, or upon the achievement of performance or other conditions, in each case, as may be determined by the Committee and set forth in an RSU Agreement. Unless otherwise specifically determined by the Committee, the vesting of a Restricted Share Unit shall occur only while the Participant is employed by or rendering services to the Service Recipient, and all vesting shall cease upon a Participant’s Termination for any or no reason. To the extent permitted by applicable law and unless otherwise determined by the Committee, vesting shall be suspended during the period of any approved unpaid leave of absence by a Participant following which the Participant has a right to reinstatement and shall resume upon such Participant’s return to active employment.
(c) Settlement. Restricted Share Units shall be settled in Shares, cash, or property, as determined by the Committee, in its sole discretion, on the date or dates determined by the Committee and set forth in an RSU Agreement. Unless otherwise set forth in a Participant’s RSU Agreement, a Participant shall not be entitled to dividends, if any, or dividend equivalents with respect to Restricted Share Units prior to settlement.
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(d) Termination of Employment or Service. Except as provided by the Committee in an RSU Agreement, Participant Agreement, or otherwise, in the event of a Participant’s Termination for any or no reason prior to the time that such Participant’s Restricted Share Units have been settled, (1) all vesting with respect to such Participant’s Restricted Share Units outstanding shall cease; (2) all of such Participant’s unvested Restricted Share Units outstanding shall be forfeited for no consideration as of the date of such Termination; and (3) any shares remaining undelivered with respect to vested Restricted Share Units then held by such Participant shall be delivered on the delivery date or dates specified in the RSU Agreement.
8. Share Appreciation Rights.
(a) General. Share Appreciation Rights may be granted to Eligible Persons in such form and having such terms and conditions as the Committee shall deem appropriate. The provisions of separate Share Appreciation Rights shall be set forth in separate SAR Agreements, which SAR Agreements need not be identical. No dividends or dividend equivalents shall be paid on Share Appreciation Rights.
(b) Term. The term of each Share Appreciation Right shall be set by the Committee at the time of grant; provided, however, that no Share Appreciation Right granted hereunder shall be exercisable after, and each Share Appreciation Right shall expire, ten years from the date it was granted.
(c) Base Price. The base price per Share for each Share Appreciation Right shall be set by the Committee at the time of grant and shall not be less than the Fair Market Value on the date of grant. Notwithstanding the foregoing, in the case of a Share Appreciation Right that is a Substitute Award, the base price per Share for such Share Appreciation Right may be less than the Fair Market Value on the date of grant; provided, that, such base price is determined in a manner consistent with the provisions of Section 409A of the Code.
(d) Vesting. Share Appreciation Rights shall vest and become exercisable in such manner, on such date or dates, or upon the achievement of performance or other conditions, in each case, as may be determined by the Committee and set forth in a SAR Agreement. Unless otherwise specifically determined by the Committee, the vesting of a Share Appreciation Right shall occur only while the Participant is employed by or rendering services to the Service Recipient, and all vesting shall cease upon a Participant’s Termination for any or no reason. To the extent permitted by applicable law and unless otherwise determined by the Committee, vesting shall be suspended during the period of any approved unpaid leave of absence by a Participant following which the Participant has a right to reinstatement and shall resume upon such Participant’s return to active employment. If a Share Appreciation Right is exercisable in installments, such installments, or portions thereof that become exercisable shall remain exercisable until the Share Appreciation Right expires, is canceled, or otherwise terminates.
(e) Payment upon Exercise. Payment upon exercise of a Share Appreciation Right may be made in cash, Shares, or property, as specified in the SAR Agreement or determined by the Committee, in each case, having a value in respect of each Share underlying the portion of the Share Appreciation Right so exercised, equal to the difference between the base price of such Share Appreciation Right and the Fair Market Value of one Share on the exercise date. For purposes of clarity, each Share to be issued in settlement of a Share Appreciation Right is deemed to have a value equal to the Fair Market Value of one Share on the exercise date. In no event shall fractional Shares be issuable upon the exercise of a Share Appreciation Right, and in the event that fractional Shares would otherwise be issuable, the number of shares issuable will be rounded down to the next lower whole number of Shares, and the Participant will be entitled to receive a cash payment equal to the value of such fractional Share.
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(f) Termination of Employment or Service. Except as provided by the Committee in a SAR Agreement, Participant Agreement, or otherwise:
(1) In the event of a Participant’s Termination prior to the applicable Expiration Date for any reason other than (i) by the Service Recipient for Cause, or (ii) by reason of the Participant’s death or Disability, (A) all vesting with respect to such Participant’s Share Appreciation Rights outstanding shall cease; (B) all of such Participant’s unvested Share Appreciation Rights outstanding shall terminate and be forfeited for no consideration as of the date of such Termination; and (C) all of such Participant’s vested Share Appreciation Rights outstanding shall terminate and be forfeited for no consideration on the earlier of (x) the applicable Expiration Date, and (y) the date that is 90 days after the date of such Termination.
(2) In the event of a Participant’s Termination prior to the applicable Expiration Date by reason of such Participant’s death or Disability, (i) all vesting with respect to such Participant’s Share Appreciation Rights outstanding shall cease; (ii) all of such Participant’s unvested Share Appreciation Rights outstanding shall terminate and be forfeited for no consideration as of the date of such Termination; and (iii) all of such Participant’s vested Share Appreciation Rights outstanding shall terminate and be forfeited for no consideration on the earlier of (x) the applicable Expiration Date, and (y) the date that is 12 months after the date of such Termination. In the event of a Participant’s death, such Participant’s Share Appreciation Rights shall remain exercisable by the Person or Persons to whom such Participant’s rights under the Share Appreciation Rights pass by will or by the applicable laws of descent and distribution until the applicable Expiration Date, but only to the extent that the Share Appreciation Rights were vested at the time of such Termination.
(3) In the event of a Participant’s Termination prior to the applicable Expiration Date by the Service Recipient for Cause, all of such Participant’s Share Appreciation Rights outstanding (whether or not vested) shall immediately terminate and be forfeited for no consideration as of the date of such Termination.
9. Other Share-Based and Cash-Based Awards.
The Committee is authorized, subject to limitations under applicable law, to grant to Participants such other Awards that may be denominated or payable in, valued in whole or in part by reference to, or otherwise based upon or related to Shares, as well as Awards payable in cash, in each case, as deemed by the Committee to be consistent with the purposes of the Plan. The Committee may also grant Shares as a bonus (whether or not subject to any vesting requirements or other restrictions on transfer), and may grant other Awards in lieu of obligations of the Company or an Affiliate to pay cash or deliver other property under the Plan or under other plans or compensatory arrangements, subject to such terms as shall be determined by the Committee. The terms and conditions applicable to such Awards shall be determined by the Committee and evidenced by Award Agreements, which agreements need not be identical.
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10. Adjustment for Recapitalization, Merger, etc.
(a) Capitalization Adjustments. The aggregate number of Shares that may be delivered in connection with Awards (as set forth in Section 4 hereof), the numerical Share limits in Section 4(a) hereof, the number of Shares covered by each outstanding Award, and the price per Share underlying each such Award shall be equitably and proportionally adjusted or substituted, as determined by the Committee, in its sole discretion, as to the number, price, or kind of a Share or other consideration subject to such Awards, (1) in the event of changes in the outstanding Shares or in the capital structure of the Company by reason of share dividends, extraordinary cash dividends, share splits, reverse share splits, recapitalizations, reorganizations, mergers, amalgamations, consolidations, combinations, exchanges, or other relevant changes in capitalization occurring after the date of grant of any such Award (including any Corporate Event); (2) in connection with any extraordinary dividend declared and paid in respect of Shares, whether payable in the form of cash, shares, or any other form of consideration; or (3) in the event of any change in applicable laws or circumstances that results in or could result in, in either case, as determined by the Committee in its sole discretion, any substantial dilution or enlargement of the rights intended to be granted to, or available for, Participants in the Plan. In lieu of or in addition to any adjustment pursuant to this Section 10, if deemed appropriate, the Committee may provide that an adjustment take the form of a cash payment to the holder of an outstanding Award with respect to all or part of an outstanding Award, which payment shall be subject to such terms and conditions (including timing of payment(s), vesting, and forfeiture conditions) as the Committee may determine in its sole discretion. The Committee will make such adjustments, substitutions, or payment, and its determination will be final, binding, and conclusive. The Committee need not take the same action or actions with respect to all Awards or portions thereof or with respect to all Participants. The Committee may take different actions with respect to the vested and unvested portions of an Award.
(b) Corporate Events. Notwithstanding the foregoing, except as provided by the Committee in an Award Agreement, Participant Agreement, or otherwise, in connection with (i) a merger, amalgamation, or consolidation involving the Company in which the Company is not the surviving corporation; (ii) a merger, amalgamation, or consolidation involving the Company in which the Company is the surviving corporation but the holders of Shares receive securities of another corporation or other property or cash; (iii) a Change in Control; or (iv) the reorganization, dissolution, or liquidation of the Company (each, a “Corporate Event”), the Committee may provide for any one or more of the following:
(1) The assumption or substitution of any or all Awards in connection with such Corporate Event, in which case the Awards shall be subject to the adjustment set forth in Section 10(a) hereof, and to the extent that such Awards vest subject to the achievement of performance criteria, such performance criteria shall be deemed earned at target level (or if no target is specified, the maximum level) and will be converted into solely service based vesting awards that will vest during the performance period, if any, during which the original performance criteria would have been measured;
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(2) The acceleration of vesting of any or all Awards not assumed or substituted in connection with such Corporate Event, subject to the consummation of such Corporate Event; provided that unless otherwise set forth in an Award Agreement, any Awards that vest subject to the achievement of performance criteria will be deemed earned at target level (or if no target is specified, the maximum level), provided, further, that a Participant has not experienced a Termination prior to such Corporate Event;
(3) The cancellation of any or all Awards not assumed or substituted in connection with such Corporate Event (whether vested or unvested) as of the consummation of such Corporate Event, together with the payment to the Participants holding vested Awards (including any Awards that would vest upon the Corporate Event but for such cancellation) so canceled of an amount in respect of cancellation equal to an amount based upon the per-share consideration being paid for the Shares in connection with such Corporate Event, less, in the case of Options, Share Appreciation Rights, and other Awards subject to exercise, the applicable exercise or base price; provided, however, that holders of Options, Share Appreciation Rights, and other Awards subject to exercise shall be entitled to consideration in respect of cancellation of such Awards only if the per-share consideration less the applicable exercise or base price is greater than zero dollars ($0), and to the extent that the per-share consideration is less than or equal to the applicable exercise or base price, such Awards shall be canceled for no consideration;
(4) The cancellation of any or all Options, Share Appreciation Rights, and other Awards subject to exercise not assumed or substituted in connection with such Corporate Event (whether vested or unvested) as of the consummation of such Corporate Event; provided, that, all Options, Share Appreciation Rights, and other Awards to be so canceled pursuant to this paragraph (4) shall first become exercisable for a period of at least ten days prior to such Corporate Event, with any exercise during such period of any unvested Options, Share Appreciation Rights, or other Awards to be (A) contingent upon and subject to the occurrence of the Corporate Event, and (B) effectuated by such means as are approved by the Committee; and
(5) The replacement of any or all Awards (other than Awards that are intended to qualify as “stock rights” that do not provide for a “deferral of compensation” within the meaning of Section 409A of the Code) with a cash incentive program that preserves the value of the Awards so replaced (determined as of the consummation of the Corporate Event), with subsequent payment of cash incentives subject to the same vesting conditions as applicable to the Awards so replaced and payment to be made within 30 days of the applicable vesting date.
Payments to holders pursuant to paragraph (3) above shall be made in cash or, in the sole discretion of the Committee, and to the extent applicable, in the form of such other consideration necessary for a Participant to receive property, cash, or securities (or a combination thereof) as such Participant would have been entitled to receive upon the occurrence of the transaction if the Participant had been, immediately prior to such transaction, the holder of the number of Shares covered by the Award at such time (less any applicable exercise or base price). In addition, in connection with any Corporate Event, prior to any payment or adjustment contemplated under this Section 10(b), the Committee may require a Participant to (A) represent and warrant as to the unencumbered title to his or her Awards; (B) bear such Participant’s pro-rata share of any post-closing indemnity obligations, and be subject to the same post-closing purchase price adjustments, escrow terms, offset rights, holdback terms, and similar conditions as the other holders of Shares; and (C) deliver customary transfer documentation as reasonably determined by the Committee. The Committee need not take the same action or actions with respect to all Awards or portions thereof or with respect to all Participants. The Committee may take different actions with respect to the vested and unvested portions of an Award.
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(c) Fractional Shares. Any adjustment provided under this Section 10 may, in the Committee’s discretion, provide for the elimination of any fractional Share that might otherwise become subject to an Award. No cash settlements shall be made with respect to fractional Shares so eliminated.
(d) Double-Trigger Vesting. Notwithstanding any other provisions of the Plan, an Award Agreement, or a Participant Agreement to the contrary, with respect to any Award that is assumed or substituted in connection with a Change in Control, the vesting, payment, purchase, or distribution of such Award may not be accelerated by reason of the Change in Control for any Participant, unless the Participant also experiences an involuntary Termination as a result of the Change in Control. Unless otherwise provided for in an Award Agreement or a Participant Agreement, all Awards held by a Participant who experiences an involuntary Termination as a result of a Change in Control shall immediately vest as of the date of such Termination. For purposes of this Section 10(d), a Participant will be deemed to experience an involuntary Termination as a result of a Change in Control if the Participant experiences a Termination by the Service Recipient other than for Cause, or otherwise experiences a Termination under circumstances which entitle the Participant to mandatory severance payment(s) pursuant to applicable law, or, in the case of a non-employee director of the Company, if the non-employee director’s service on the Board terminates in connection with or as a result of a Change in Control, in each case, at any time beginning on the date of the Change in Control up to and including the second anniversary of the Change in Control.
11. Use of Proceeds.
The proceeds received from the sale of Shares pursuant to the Plan shall be used for general corporate purposes.
12. Rights and Privileges as a Shareholder.
Except as otherwise specifically provided in the Plan, no Person shall be entitled to the rights and privileges of Share ownership in respect of Shares that are subject to Awards hereunder until such Shares have been issued to that Person.
13. Transferability of Awards.
Awards may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will or by the applicable laws of descent and distribution, and to the extent subject to exercise, Awards may not be exercised during the lifetime of the grantee other than by the grantee. Notwithstanding the foregoing, except with respect to Incentive Share Options, Awards and a Participant’s rights under the Plan shall be transferable for no value to the extent provided in an Award Agreement or otherwise determined at any time by the Committee.
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14. Employment or Service Rights.
No individual shall have any claim or right to be granted an Award under the Plan or, having been selected for the grant of an Award, to be selected for the grant of any other Award. Neither the Plan nor any action taken hereunder shall be construed as giving any individual any right to be retained in the employ or service of the Company or an Affiliate of the Company.
15. Compliance with Laws.
The obligation of the Company to deliver Shares upon issuance, vesting, exercise, or settlement of any Award shall be subject to all applicable laws, rules, and regulations, and to such approvals by governmental agencies as may be required. Notwithstanding any terms or conditions of any Award to the contrary, the Company shall be under no obligation to offer to sell or to sell, and shall be prohibited from offering to sell or selling, any Shares pursuant to an Award, unless such Shares have been properly registered for sale with the U.S. Securities and Exchange Commission pursuant to the Securities Act (or with a similar non-U.S. regulatory agency pursuant to a similar law or regulation), or unless the Company has received an opinion of counsel, satisfactory to the Company, that such Shares may be offered or sold without such registration pursuant to an available exemption therefrom and the terms and conditions of such exemption have been fully complied with. The Company shall be under no obligation to register for sale or resale under the Securities Act any of the Shares to be offered or sold under the Plan or any Shares to be issued upon exercise or settlement of Awards. If the Shares offered for sale or sold under the Plan are offered or sold pursuant to an exemption from registration under the Securities Act, the Company may restrict the transfer of such Shares and may legend the Share certificates representing such Shares in such manner as it deems advisable to ensure the availability of any such exemption.
16. Withholding Obligations.
As a condition to the issuance, vesting, exercise, or settlement of any Award (or upon the making of an election under Section 83(b) of the Code), the Committee may require that a Participant satisfy, through deduction or withholding from any payment of any kind otherwise due to the Participant, or through such other arrangements as are satisfactory to the Committee, the amount of all federal, state, and local income and other taxes of any kind required or permitted to be withheld in connection with such issuance, vesting, exercise, or settlement (or election). The Committee, in its discretion, may permit Shares to be used to satisfy tax withholding requirements, and such Shares shall be valued at their Fair Market Value as of the issuance, vesting, exercise, or settlement date of the Award, as applicable. Depending on the withholding method, the Company may withhold by considering the applicable minimum statutorily required withholding rates or other applicable withholding rates in the applicable Participant’s jurisdiction, including maximum applicable rates that may be utilized without creating adverse accounting treatment under Financial Accounting Standards Board Accounting Standards Codification Topic 718 (or any successor pronouncement thereto) and is permitted under applicable withholding rules promulgated by the Internal Revenue Service or another applicable governmental entity.
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17. Amendment of the Plan or Awards.
(a) Amendment of Plan. The Board or the Committee may amend the Plan at any time and from time to time.
(b) Amendment of Awards. The Board or the Committee may amend the terms of any one or more Awards at any time and from time to time.
(c) Shareholder Approval; No Material Impairment. Notwithstanding anything herein to the contrary, no amendment to the Plan or any Award shall be effective without shareholder approval to the extent that such approval is required pursuant to applicable law or the applicable rules of each national securities exchange on which the Shares are listed. Additionally, no amendment to the Plan or any Award shall materially impair a Participant’s rights under any Award unless the Participant consents in writing (it being understood that no action taken by the Board or the Committee that is expressly permitted under the Plan, including, without limitation, any actions described in Section 10 hereof, shall constitute an amendment to the Plan or an Award for such purpose). Notwithstanding the foregoing, subject to the limitations of applicable law, if any, and without an affected Participant’s consent, the Board or the Committee may amend the terms of the Plan or any one or more Awards from time to time as necessary to bring such Awards into compliance with applicable law, including, without limitation, Section 409A of the Code.
(d) No Repricing of Awards Without Shareholder Approval. Notwithstanding Sections 17(a) or 17(b) above, or any other provision of the Plan, the repricing of Awards shall not be permitted without shareholder approval. For this purpose, a “repricing” means any of the following (or any other action that has the same effect as any of the following): (1) changing the terms of an Award to lower its exercise or base price (other than on account of capital adjustments resulting from share splits, etc., as described in Section 10(a) hereof); (2) any other action that is treated as a repricing under GAAP; and (3) repurchasing for cash or canceling an Award in exchange for another Award at a time when its exercise or base price is greater than the Fair Market Value of the underlying Shares, unless the cancellation and exchange occurs in connection with an event set forth in Section 10(b) hereof.
18. Termination or Suspension of the Plan.
The Board or the Committee may suspend or terminate the Plan at any time. Unless sooner terminated, the Plan shall terminate on the day before the tenth anniversary of the date the shareholders of the Company approve the Plan. No Awards may be granted under the Plan while the Plan is suspended or after it is terminated; provided, however, that following any suspension or termination of the Plan, the Plan shall remain in effect for the purpose of governing all Awards then outstanding hereunder until such time as all Awards under the Plan have been terminated, forfeited, or otherwise canceled, or earned, exercised, settled, or otherwise paid out, in accordance with their terms.
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19. Effective Date of the Plan.
The Plan is effective as of the Effective Date, subject to shareholder approval.
20. Miscellaneous.
(a) Treatment of Dividends and Dividend Equivalents on Unvested Awards. Notwithstanding any other provision of the Plan to the contrary, with respect to any Award that provides for or includes a right to dividends or dividend equivalents, if dividends are declared during the period that an equity Award is outstanding, such dividends (or dividend equivalents) shall either (i) not be paid or credited with respect to such Award, or (ii) be accumulated but remain subject to vesting requirement(s) to the same extent as the applicable Award and shall only be paid at the time or times such vesting requirement(s) are satisfied. Except as otherwise determined by the Committee, no interest will accrue or be paid on the amount of any cash dividends withheld. No dividends or dividend equivalents shall be paid on Options or Share Appreciation Rights.
(b) Certificates. Shares acquired pursuant to Awards granted under the Plan may be evidenced in such a manner as the Committee shall determine. If certificates representing Shares are registered in the name of the Participant, the Committee may require that (1) such certificates bear an appropriate legend referring to the terms, conditions, and restrictions applicable to such Shares; (2) the Company retain physical possession of the certificates; and (3) the Participant deliver a share power to the Company, endorsed in blank, relating to the Shares. Notwithstanding the foregoing, the Committee may determine, in its sole discretion, that the Shares shall be held in book-entry form rather than delivered to the Participant pending the release of any applicable restrictions.
(c) Other Benefits. No Award granted or paid out under the Plan shall be deemed compensation for purposes of computing benefits under any retirement plan of the Company or its Affiliates nor affect any benefits under any other benefit plan now or subsequently in effect under which the availability or amount of benefits is related to the level of compensation.
(d) Corporate Action Constituting Grant of Awards. Corporate action constituting a grant by the Company of an Award to any Participant will be deemed completed as of the date of such corporate action, unless otherwise determined by the Committee, regardless of when the instrument, certificate, or letter evidencing the Award is communicated to, or actually received or accepted by, the Participant. In the event that the corporate records (e.g., Committee consents, resolutions, or minutes) documenting the corporate action constituting the grant contain terms (e.g., exercise price, vesting schedule, or number of Shares) that are inconsistent with those in the Award Agreement as a result of a clerical error in connection with the preparation of the Award Agreement, the corporate records will control, and the Participant will have no legally binding right to the incorrect term in the Award Agreement.
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(e) Clawback/Recoupment Policy. Notwithstanding anything contained herein to the contrary, all Awards granted under the Plan shall be and remain subject to any incentive compensation clawback or recoupment policy currently in effect or as may be adopted by the Board (or a committee or subcommittee of the Board) and, in each case, as may be amended from time to time. No such policy adoption or amendment shall in any event require the prior consent of any Participant. No recovery of compensation under such a clawback policy will be an event giving rise to a right to resign for “good reason” or “constructive termination” (or similar term) under any agreement with the Company or any of its Affiliates. In the event that an Award is subject to more than one such policy, the policy with the most restrictive clawback or recoupment provisions shall govern such Award, subject to applicable law.
(f) Non-Exempt Employees. If an Option is granted to an employee of the Company or any of its Affiliates in the United States who is a non-exempt employee for purposes of the Fair Labor Standards Act of 1938, as amended, the Option will not be first exercisable for any Shares until at least six (6) months following the date of grant of the Option (although the Option may vest prior to such date). Consistent with the provisions of the Worker Economic Opportunity Act, (1) if such employee dies or suffers a Disability; (2) upon a Corporate Event in which such Option is not assumed, continued, or substituted; (3) upon a Change in Control; or (4) upon the Participant’s retirement (as such term may be defined in the applicable Award Agreement or a Participant Agreement or, if no such definition exists, in accordance with the Company’s then current employment policies and guidelines), the vested portion of any Options held by such employee may be exercised earlier than six months following the date of grant. The foregoing provision is intended to operate so that any income derived by a non-exempt employee in connection with the exercise or vesting of an Option will be exempt from his or her regular rate of pay. To the extent permitted and/or required for compliance with the Worker Economic Opportunity Act to ensure that any income derived by a non-exempt employee in connection with the exercise, vesting, or issuance of any Shares under any other Award will be exempt from such employee’s regular rate of pay, the provisions of this Section 20(f) will apply to all Awards.
(g) Data Privacy. As a condition of receipt of any Award, each Participant explicitly and unambiguously consents to the collection, use, and transfer, in electronic or other form, of personal data as described in this Section 20(g) by and among, as applicable, the Company and its Affiliates, for the exclusive purpose of implementing, administering, and managing the Plan and Awards and the Participant’s participation in the Plan. In furtherance of such implementation, administration, and management, the Company and its Affiliates may hold certain personal information about a Participant, including, but not limited to, the Participant’s name, home address, telephone number, date of birth, social security or insurance number or other identification number, salary, nationality, job title(s), information regarding any securities of the Company or any of its Affiliates, and details of all Awards (the “Data”). In addition to transferring the Data amongst themselves as necessary for the purpose of implementation, administration, and management of the Plan and Awards and the Participant’s participation in the Plan, the Company and its Affiliates may each transfer the Data to any third parties assisting the Company in the implementation, administration, and management of the Plan and Awards and the Participant’s participation in the Plan. Recipients of the Data may be located in the Participant’s country or elsewhere, and the Participant’s country and any given recipient’s country may have different data privacy laws and protections. By accepting an Award, each Participant authorizes such recipients to receive, possess, use, retain, and transfer the Data, in electronic or other form, for the purposes of assisting the Company in the implementation, administration, and management of the Plan and Awards and the Participant’s participation in the Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom the Company or the Participant may elect to deposit any Shares. The Data related to a Participant will be held only as long as is necessary to implement, administer, and manage the Plan and Awards and the Participant’s participation in the Plan. A Participant may, at any time, view the Data held by the Company with respect to such Participant, request additional information about the storage and processing of the Data with respect to such Participant, recommend any necessary corrections to the Data with respect to the Participant, or refuse or withdraw the consents herein in writing, in any case without cost, by contacting his or her local human resources representative. The Company may cancel the Participant’s eligibility to participate in the Plan, and in the Committee’s discretion, the Participant may forfeit any outstanding Awards if the Participant refuses or withdraws the consents described herein. For more information on the consequences of refusal to consent or withdrawal of consent, Participants may contact their local human resources representative.
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(h) Participants Outside of the United States. The Committee may modify the terms of any Award under the Plan made to or held by a Participant who is then a resident, or is primarily employed or providing services, outside of the United States in any manner deemed by the Committee to be necessary or appropriate in order that such Award shall conform to laws, regulations, and customs of the country in which the Participant is then a resident or primarily employed or providing services, or so that the value and other benefits of the Award to the Participant, as affected by non–U.S. tax laws and other restrictions applicable as a result of the Participant’s residence, employment, or providing services abroad, shall be comparable to the value of such Award to a Participant who is a resident, or is primarily employed or providing services, in the United States. An Award may be modified under this Section 20(h) in a manner that is inconsistent with the express terms of the Plan, so long as such modifications will not contravene any applicable law or regulation or result in actual liability under Section 16(b) of the Exchange Act for the Participant whose Award is modified. Additionally, the Committee may adopt such procedures and sub-plans as are necessary or appropriate to permit participation in the Plan by Eligible Persons who are non–U.S. nationals or are primarily employed or providing services outside the United States.
(i) Change in Time Commitment. In the event a Participant’s regular level of time commitment in the performance of his or her services for the Company or any of its Affiliates is reduced pursuant to such Participant’s request or consent (for example, and without limitation, if the Participant is an employee of the Company and the employee has a change in status from full-time employee to part-time employee or takes a leave of absence), and the reduction occurs after the date of grant of any Award to the Participant, the Committee has the right, as part of the agreement with the Participant, to (i) make a corresponding reduction in the number of Shares subject to any portion of such Award that is scheduled to vest or become payable after the date of such change in time commitment, and (ii) in lieu of or in combination with such a reduction, extend the vesting or payment schedule applicable to such Award. In the event of any such reduction, the Participant will have no right with respect to any portion of the Award that is so reduced or extended. This Section 20(i) shall be subject to any limitations imposed with respect to a Participant under applicable law.
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(j) No Liability of Committee Members. Neither any member of the Committee nor any of the Committee’s permitted delegates shall be liable personally by reason of any contract or other instrument executed by such member or on his or her behalf in his or her capacity as a member of the Committee or for any mistake of judgment made in good faith, and the Company shall indemnify and hold harmless each member of the Committee and each other employee, officer, or director of the Company to whom any duty or power relating to the administration or interpretation of the Plan may be allocated or delegated, against all costs and expenses (including counsel fees) and liabilities (including sums paid in settlement of a claim) arising out of any act or omission to act in connection with the Plan, unless arising out of such Person’s own fraud or willful misconduct; provided, however, that approval of the Board shall be required for the payment of any amount in settlement of a claim against any such Person. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such Persons may be entitled under the Company’s certificate or articles of incorporation or by-laws, each as may be amended from time to time, as a matter of law, or otherwise, or any power that the Company may have to indemnify them or hold them harmless.
(k) Payments Following Accidents or Illness. If the Committee shall find that any Person to whom any amount is payable under the Plan is unable to care for his or her affairs because of illness or accident, or is a minor, or has died, then any payment due to such Person or his or her estate (unless a prior claim therefor has been made by a duly appointed legal representative) may, if the Committee so directs the Company, be paid to his or her spouse, child, relative, an institution maintaining or having custody of such Person, or any other Person deemed by the Committee to be a proper recipient on behalf of such Person otherwise entitled to payment. Any such payment shall be a complete discharge of the liability of the Committee and the Company therefor.
(l) Governing Law. The Plan shall be governed by and construed in accordance with the laws of State of Delaware, without reference to the principles of conflicts of laws thereof.
(m) Electronic Delivery. Any reference herein to a “written” agreement or document or “writing” will include any agreement or document delivered electronically or posted on the Company’s intranet (or other shared electronic medium controlled or authorized by the Company to which the Participant has access) to the extent permitted by applicable law.
(n) Arbitration. Except as otherwise provided in an Award Agreement or required by applicable law, all disputes and claims of any nature that a Participant (or such Participant’s transferee or estate) may have against the Company arising out of or in any way related to the Plan or any Award Agreement shall be submitted to and resolved exclusively by binding arbitration conducted in the State of Delaware (or such other location as the parties thereto may agree) in accordance with the applicable rules of the American Arbitration Association then in effect, and the arbitration shall be heard and determined by a panel of three arbitrators in accordance with such rules (except that in the event of any inconsistency between such rules and this Section 20(n), the provisions of this Section 20(n) shall control). The arbitration panel may not modify the arbitration rules specified above without the prior written approval of all parties to the arbitration. Within ten business days after the receipt of a written demand, each party shall designate one arbitrator, each of whom shall have experience involving complex business or legal matters, but shall not have any prior, existing. or potential material business relationship with any party to the arbitration. The two arbitrators so designated shall select a third arbitrator, who shall preside over the arbitration, shall be similarly qualified as the two arbitrators, and shall have no prior, existing or potential material business relationship with any party to the arbitration; provided, that, if the two arbitrators are unable to agree upon the selection of such third arbitrator, such third arbitrator shall be designated in accordance with the arbitration rules referred to above. The arbitrators will decide the dispute by majority decision, and the decision shall be rendered in writing and shall bear the signatures of the arbitrators and the party or parties who shall be charged therewith, or the allocation of the expenses among the parties in the discretion of the panel. The arbitration decision shall be rendered as soon as possible, but in any event not later than 120 days after the constitution of the arbitration panel. The arbitration decision shall be final and binding upon all parties to the arbitration. The parties hereto agree that judgment upon any award rendered by the arbitration panel may be entered in the United States District Court for the District of Delaware or any Delaware state court sitting in the State of Delaware. To the maximum extent permitted by law, the parties hereby irrevocably waive any right of appeal from any judgment rendered upon any such arbitration award in any such court. Notwithstanding the foregoing, any party may seek injunctive relief in any such court.
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(o) Statute of Limitations. A Participant or any other person filing a claim for benefits under the Plan must file the claim within one year of the date the Participant or other person knew or should have known of the facts giving rise to the claim. This one-year statute of limitations will apply in any forum where a Participant or any other person may file a claim and, unless the Company waives the time limits set forth above in its sole discretion, any claim not brought within the time periods specified shall be waived and forever barred.
(p) Funding. No provision of the Plan shall require the Company, for the purpose of satisfying any obligations under the Plan, to purchase assets or place any assets in a trust or other entity to which contributions are made or otherwise to segregate any assets, nor shall the Company be required to maintain separate bank accounts, books, records, or other evidence of the existence of a segregated or separately maintained or administered fund for such purposes. Participants shall have no rights under the Plan other than as unsecured general creditors of the Company, except that insofar as they may have become entitled to payment of additional compensation by performance of services, they shall have the same rights as other employees and service providers under general law.
(q) Reliance on Reports. Each member of the Committee and each member of the Board shall be fully justified in relying, acting, or failing to act, and shall not be liable for having so relied, acted, or failed to act in good faith, upon any report made by the independent public accountant of the Company and its Affiliates and upon any other information furnished in connection with the Plan by any Person or Persons other than such member.
(r) Titles and Headings. The titles and headings of the sections in the Plan are for convenience of reference only, and in the event of any conflict, the text of the Plan, rather than such titles or headings, shall control.
* * *
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Adopted
by the Board of Directors: ________, 2021
Approved by the Shareholders: ________, 2021
Termination Date: ________, 2031
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Exhibit 10.11
DIVERSEY
HOLDINGS, LTD.
SHARE Option Grant Notice
(2021 omnibus INCENTIVE PLAN)
Diversey Holdings, Ltd. (the “Company”), pursuant to its 2021 Omnibus Incentive Plan (the “Plan”), hereby grants to Participant an option to purchase the number of Shares set forth below (the “Award”). The Award is subject to all of the terms and conditions as set forth in this Share Option Grant Notice (this “Grant Notice”) and the Option Agreement (attached hereto as Attachment I), the Plan, which has been made available to you, and the Vesting Schedule (attached hereto as Attachment II), all of which are incorporated herein in their entirety. Capitalized terms not otherwise defined herein but defined in the Plan or the Option Agreement will have the same meaning as in the Plan or the Option Agreement. If there is any conflict between the terms in this Grant Notice and the Plan, the terms of the Plan will control.
Name of Participant: | |
Date of Grant: | |
Number of Shares Subject to Option: | |
Exercise Price (Per Share): | |
Expiration Date: |
Type of Grant: | Nonqualified Share Option |
Exercise Schedule: | Same as Vesting Schedule |
Vesting Schedule: | Attached hereto as Attachment II |
Additional Terms/Acknowledgements: Participant acknowledges receipt of, and understands and agrees to, this Grant Notice, the Option Agreement and the Plan. Participant acknowledges and agrees that this Grant Notice and the Option Agreement may not be modified, amended or revised except as provided in the Plan. Participant further acknowledges that, as of the Date of Grant, this Grant Notice, the Option Agreement and the Plan set forth the entire agreement and understanding between Participant and the Company regarding this Award and supersede all prior oral and written agreements, promises and/or representations on that subject with the exception of (i) Awards previously granted and delivered to the Participant and (ii) any clawback or other compensation recovery policy that is adopted by the Company or is otherwise required by applicable law. By accepting this Award, Participant consents to receive such documents by electronic delivery and to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.
Diversey Holdings, Ltd. | Participant: | |||
By: | ||||
Signature | Signature | |||
Title: | Date: | |||
Date: |
Attachments: Option Agreement and Vesting Schedule
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Attachment I
DIVERSEY
HOLDINGS, LTD.
2021 omnibus INCENTIVE PLAN
Nonqualified Share Option Agreement
Pursuant to the Share Option Grant Notice (the “Grant Notice”) and this Option Agreement (this “Agreement”), Diversey Holdings, Ltd. (the “Company”) has granted you an Award under its 2021 Omnibus Incentive Plan (the “Plan”) to purchase the number of Shares indicated in your Grant Notice at the exercise price indicated in your Grant Notice. The Option is granted to you effective as of the date of grant set forth in the Grant Notice (the “Date of Grant”). Capitalized terms not explicitly defined in this Agreement or in the Grant Notice but defined in the Plan will have the same meaning as in the Plan.
If there is any conflict between the terms in this Agreement and the Plan, the terms of the Plan will control. The details of your option (this or your “Option”), in addition to those set forth in the Grant Notice and the Plan, are as follows:
1. Vesting. Subject to the limitations contained herein, your Option will vest as provided in your Grant Notice. Vesting will cease upon your Termination. Upon your Termination, the portion of the Option that is not vested on the date of such Termination will be forfeited at no cost to the Company, and you will have no further right, title or interest in or to such underlying Shares.
2. Number of Shares and Exercise Price. The number of Shares subject to your Option and the exercise price per share set forth in your Grant Notice will be adjusted from time to time for capitalization adjustments, as provided in the Plan. Any additional shares that become subject to the Option pursuant to this Section 2, if any, shall be subject, in a manner determined by the Committee, to the same forfeiture restrictions, restrictions on transferability and time and manner of delivery as applicable to the other shares covered by your Option. Notwithstanding the provisions of this Section 2, no fractional Shares or rights for fractional Shares shall be created pursuant to this Section 2. Any fraction of a Share will be rounded down to the nearest whole Share.
3. Method of Payment. You must pay the full amount of the exercise price for the shares you wish to acquire upon exercise of the Option. You may pay the exercise price in a manner approved by the Committee and in accordance with applicable law, which may include any of the following payment methods: (a) in immediately available funds in U.S. dollars, or by certified or bank cashier’s check, (b) by delivery of Shares having an aggregate Fair Market Value equal to the exercise price, (c) by a broker-assisted cashless exercise in accordance with procedures approved by the Committee, whereby payment of the Option exercise price or tax withholding obligations may be satisfied, in whole or in part, with Shares subject to the Option by delivery of an irrevocable direction to a securities broker (on a form prescribed by the Committee) to sell Shares and to deliver all or part of the sale proceeds to the Company in payment of the aggregate exercise price and, if applicable, the amount necessary to satisfy the Company’s withholding obligations, or (d) by any other means approved by the Committee. Notwithstanding anything herein to the contrary, if the Committee determines that any form of payment available hereunder would be in violation of Section 402 of the Sarbanes-Oxley Act of 2002, such form of payment shall not be available.
4. Whole Shares. You may exercise your Option only for whole Shares.
5. Securities Law Compliance. In no event may you exercise your Option unless the Shares issuable upon exercise are then registered under the Securities Act or, if not registered, the Company has determined that your exercise and the issuance of the shares would be exempt from the registration requirements of the Securities Act. The exercise of your Option also must comply with all other applicable laws and regulations governing your Option and the Company’s policies, and you may not exercise any portion of your Option if the Company determines that such exercise would not be in material compliance with such laws, regulations or Company policies, if applicable.
6. Term. You may not exercise your Option before the Date of Grant or after the expiration of the Option’s term. The term of your Option shall expire upon a Termination in accordance with Section 5(f) of the Plan, and such Section 5(f) of the Plan is incorporated herein by reference and made a part hereof.
7. Exercise.
(a) You may exercise the vested portion of your Option during its term by (i) completing such documents and/or procedures designated by the Company, or a third party designated by the Company, for exercise, and (ii) paying the exercise price and any applicable withholding taxes, together with such additional documents as the Company may then require.
(b) By exercising your Option, you agree that, as a condition to any exercise of your Option, the Company may require you to enter into an arrangement providing for the payment by you to the Company of any tax withholding obligation of the Company arising by reason of (i) the exercise of your Option or (ii) the disposition of Shares acquired upon such exercise.
8. Transferability of Options. Except as set forth in the following sentences, your Option is not transferable, except by will or by the laws of descent and distribution, and is exercisable during your life only by you. Upon receiving written permission from the Committee or its duly authorized designee, you may, by delivering written notice to the Company, in a form approved by the Company and any broker designated by the Company to handle option exercises, designate a third party who, on your death, will thereafter be entitled to exercise this Option and receive the Shares or other consideration resulting from such exercise. In the absence of such a designation, your executor or administrator of your estate will be entitled to exercise this Option and receive, on behalf of your estate, the Shares or other consideration resulting from such exercise
9. Dividends. You shall receive no benefit or adjustment to your Option with respect to any cash dividend, share dividend or other distribution that does not result from the adjustment provided in Section 10(a) of the Plan.
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10. Restrictive Legends. The Shares issued under your Option shall be endorsed with appropriate legends, if applicable, as determined by the Company.
11. Award Not A Service Contract. This Agreement is not an employment or service contract, and nothing in this Agreement will be deemed to create in any way whatsoever any obligation on your part to continue in the employ or service of the Company or an Affiliate, or of the Company or an Affiliate to continue your employment or service.
12. Withholding Obligations.
(a) At the time you exercise your Option, in whole or in part, and at any other time as reasonably requested by the Company in accordance with applicable tax laws, you hereby authorize any required withholding from the Shares issuable to you and/or otherwise agree to make adequate provision in cash for any sums required to satisfy the federal, state, local and foreign tax withholding obligations of the Company or any Affiliate that arise in connection with your exercise (the “Withholding Taxes”). Additionally, the Company or any Affiliate may, in its sole discretion, satisfy all or any portion of the Withholding Taxes obligation relating to your exercise by any of the following means or by a combination of such means: (i) withholding from any compensation otherwise payable to you by the Company; (ii) causing you to tender a cash payment; (iii) permitting or requiring you to enter into a “same day sale” commitment, whereby Withholding Taxes may be satisfied with a portion of the Shares to be delivered in connection with your exercise by delivery of an irrevocable direction to a securities broker (on a form prescribed by the Committee) to sell a portion of the Shares and to deliver all or part of the sale proceeds to the Company and/or its Affiliates in payment of the amount necessary to satisfy the Withholding Taxes obligation; (iv) withholding Shares from the Shares issued or otherwise issuable to you in connection with the Option with an aggregate Fair Market Value (measured as of the date of exercise) equal to the amount of such Withholding Taxes; provided, that to the extent necessary to qualify for an exemption from application of Section 16(b) of the Exchange Act, if applicable, such share withholding procedure will be subject to the express prior approval of the Committee; or (v) such other arrangements as are satisfactory to the Committee.
(b) You may not exercise your Option unless the tax withholding obligations of the Company and/or any Affiliate are satisfied. Accordingly, you may not be able to exercise your Option when desired even though your Option is vested, and the Company will have no obligation to issue a certificate for such Shares or release such Shares from any escrow provided for herein, if applicable, unless such obligations are satisfied.
(c) In the event the Company’s obligation to withhold arises prior to the delivery to you of Shares or it is determined after the delivery of Shares to you that the amount of the Company’s withholding obligations was greater than the amount withheld by the Company, you agree to indemnify and hold the Company harmless from any failure by the Company to withhold the proper amount.
13. Tax Consequences. You hereby agree that the Company does not have a duty to design or administer the Plan or its other compensation programs in a manner that minimizes your tax liabilities. You will not make any claim against the Company, or any of its officers, directors, employees or Affiliates, related to tax liabilities arising from your Option or your other compensation. In particular, you acknowledge that this Option is exempt from Section 409A of the Code only if the exercise price per share specified in the Grant Notice is at least equal to the “fair market value” per Share on the Date of Grant, and there is no other impermissible deferral of compensation associated with the Option.
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14. Notices. Any notices provided for in your Option or the Plan will be given in writing (including electronically) and will be deemed effectively given upon receipt or, in the case of notices delivered by mail by the Company to you, five (5) days after deposit in the United States mail, postage prepaid, addressed to you at the last address you provided to the Company. The Company may, in its sole discretion, decide to deliver any documents related to participation in the Plan and this Option by electronic means or to request your consent to participate in the Plan by electronic means. By accepting this Option, you consent to receive such documents by electronic delivery and to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.
15. Governing Plan Document. Your Option is subject to all the provisions of the Plan, the provisions of which are hereby made a part of your Option, and is further subject to all interpretations, amendments, rules and regulations which may from time to time be promulgated and adopted pursuant to the Plan. If there is any conflict between the provisions of your Option and those of the Plan, the provisions of the Plan will control. This Agreement shall be governed by and construed in accordance with the laws of the State of delaware. Any dispute, controversy or claim between YOU and the Company arising out of or related to this Agreement shall be resolved by arbitration in accordance with THE PROVISIONS RELATING TO ARBITRATION SET FORTH IN THe PLAN.
16. Clawback/Recoupment Policy. Your Option (and any compensation paid or Shares issued under your Option) is subject to recoupment in accordance with The Dodd Frank Wall Street Reform and Consumer Protection Act and any implementing regulations thereunder, any other clawback policy adopted by the Company and any compensation recovery policy otherwise required by applicable law.
17. Other Documents. You hereby acknowledge receipt of and the right to receive a document providing the information required by Rule 428(b)(1) promulgated under the Securities Act, which includes the Plan prospectus.
18. Effect On Other Employee Benefit Plans. The value of this Option will not be included as compensation, earnings, salaries or other similar terms used when calculating your benefits under any employee benefit plan sponsored by the Company or any Affiliate, except as such plan otherwise expressly provides. The Company expressly reserves its rights to amend, modify or terminate any of the Company’s or any Affiliate’s employee benefit plans.
19. Voting Rights. You will not have voting or any other rights as a shareholder of the Company with respect to the shares to be issued pursuant to this Option until such shares are issued to you. Upon such issuance, you will obtain full voting and other rights as a shareholder of the Company. Nothing contained in this Option, and no action taken pursuant to its provisions, will create or be construed to create a trust of any kind or a fiduciary relationship between you and the Company or any other person.
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20. Severability. If all or any part of this Agreement or the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity will not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid. Any Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid shall, if possible, be construed in a manner which will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful and valid.
21. Data Privacy. You explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of personal data as described in Section 20(g) of the Plan (such Section 20(g) of the Plan is incorporated herein by reference and made a part hereof) by and among, as applicable, the Company, its Affiliates, third-party administrator(s) and other possible recipients for the exclusive purpose of implementing, administering and managing the Plan and Awards and your participation in the Plan. You acknowledge, understand and agree that Data may be transferred to third parties, which will assist the Company with the implementation, administration and management of the Plan.
22. Miscellaneous.
(a) The rights and obligations of the Company under your Option will be transferable to any one or more persons or entities, and all covenants and agreements hereunder will inure to the benefit of, and be enforceable by the Company’s successors and assigns.
(b) You agree upon request to execute any further documents or instruments necessary or desirable in the sole determination of the Company to carry out the purposes or intent of your Option.
(c) You acknowledge and agree that you have reviewed your Option in its entirety, have had an opportunity to obtain the advice of counsel prior to executing and accepting your Option and fully understand all provisions of your Option.
(d) This Agreement will be subject to all applicable laws, rules and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required.
(e) All obligations of the Company under the Plan and this Agreement will be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation or other acquisition of all or substantially all of the business and/or assets of the Company.
* * *
This Agreement will be deemed to be signed by you upon the signing by you of the Share Option Grant Notice to which it is attached.
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Attachment II
Vesting Schedule
[To be inserted]
Exhibit 10.12
DIVERSEY HOLDINGS, LTD.
Restricted SHARE Unit Notice
(2021 omnibus INCENTIVE PLAN)
Diversey Holdings, Ltd. (the “Company”), pursuant to its 2021 Omnibus Incentive Plan (the “Plan”), hereby grants to Participant an Award of Restricted Share Units for the number of Shares set forth below (the “Award”). The Award is subject to all of the terms and conditions as set forth in this Restricted Share Unit Notice (this “Grant Notice”) and in the RSU Agreement (attached hereto as Attachment I) and the Plan, both of which are incorporated herein in their entirety. Capitalized terms not otherwise defined herein but defined in the Plan or the RSU Agreement will have the same meaning as in the Plan or the RSU Agreement. If there is any conflict between the terms in this Grant Notice and the Plan, the terms of the Plan will control.
Name of Participant: | |
Date of Grant: | |
Vesting Commencement Date: | |
[Performance Period:] | |
Number of Shares Subject to the Award: |
Vesting Schedule: | [Time or performance vesting criteria to be inserted]. |
Issuance Schedule: | Subject to any adjustment as provided in Section 10(a) of the Plan, one Share will be issued for each Restricted Share Unit that vests, with the time of issuance set forth in Section 6 of the RSU Agreement. |
Additional Terms/Acknowledgements: Participant acknowledges receipt of, and understands and agrees to, this Grant Notice, the RSU Agreement and the Plan. Participant acknowledges and agrees that this Grant Notice and the RSU Agreement may not be modified, amended or revised except as provided in the Plan. Participant further acknowledges that, as of the Date of Grant, this Grant Notice, the RSU Agreement and the Plan set forth the entire agreement and understanding between Participant and the Company regarding the acquisition of Shares pursuant to the Award specified above and supersede all prior oral and written agreements, promises and/or representations on that subject, with the exception of (i) Awards previously granted and delivered to the Participant, and (ii) any clawback or other compensation recovery policy that is adopted by the Company or is otherwise required by applicable law. By accepting this Award, Participant consents to receive such documents by electronic delivery and to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.
Diversey Holdings, Ltd. | Participant: | |||
By: | ||||
Signature | Signature | |||
Title: | Date: | |||
Date: |
Attachments: RSU Agreement
- 2 -
Attachment I
DIVERSEY HOLDINGS, LTD.
2021 omnibus INCENTIVE PLAN
RSU Agreement
Pursuant to the Restricted Share Unit Grant Notice (the “Grant Notice”) and this RSU Agreement (this “Agreement”), Diversey Holdings, Ltd. (the “Company”) has granted you an Award of Restricted Share Units under its 2021 Omnibus Incentive Plan (the “Plan”), with respect to the number of Shares indicated in the Grant Notice. Capitalized terms not explicitly defined in this Agreement or in the Grant Notice but defined in the Plan will have the same meaning as in the Plan.
If there is any conflict between the terms in this Agreement and the Plan, the terms of the Plan will control. The details of your Award of Restricted Share Units (this or your “Award”), in addition to those set forth in the Grant Notice and the Plan, are as follows:
1. Grant of the Award. This Award represents the right to be issued on a future date one (1) Share for each Restricted Share Unit that vests on the applicable vesting date(s) (subject to any adjustment under Section 3 below) as indicated in the Grant Notice. As of the Date of Grant, the Company will credit to a bookkeeping account maintained by or on behalf of the Company for your benefit (the “Account”) the number of Shares subject to the Award. This Award was granted in consideration of your services to the Company.
2. Vesting. Subject to the limitations contained herein, your Award will vest as provided in your Grant Notice. Vesting will cease upon your Termination. Upon your Termination, the Restricted Share Units credited to the Account that were not vested on the date of such Termination will be forfeited at no cost to the Company, and you will have no further right, title or interest in or to such underlying Shares.
3. Number of Shares. The number of Shares subject to your Award may be adjusted from time to time for capitalization adjustments, as provided in the Plan. Any additional Restricted Share Units, shares, cash or other property that becomes subject to the Award pursuant to this Section 3, if any, shall be subject, in a manner determined by the Committee, to the same forfeiture restrictions, restrictions on transferability and time and manner of delivery as applicable to the other Restricted Share Units covered by your Award. Notwithstanding the provisions of this Section 3, no fractional Shares or rights for fractional Shares shall be created pursuant to this Section 3. Any fraction of a Share will be rounded down to the nearest whole Share.
4. Securities Law Compliance. You may not be issued any Shares under your Award unless the Shares underlying the Restricted Share Units are then registered under the Securities Act or, if not registered, the Company has determined that such issuance of the Shares would be exempt from the registration requirements of the Securities Act. The issuance of Shares must also comply with all other applicable laws and regulations governing the Award and the Company’s policies, and you shall not receive such Shares if the Company determines that such receipt would not be in material compliance with such laws, regulations or Company policies, if applicable.
5. Transfer Restrictions. Prior to the time that Shares have been delivered to you, you may not transfer, pledge, sell or otherwise dispose of this Award or the Shares issuable in respect of your Award, except that, upon receiving written permission from the Committee or its duly authorized designee, you may, by delivering written notice to the Company, in a form approved by the Company, designate a third party who, on your death, will thereafter be entitled to receive the Shares issuable in respect of your Award, and in the absence of such a designation, your executor or administrator of your estate will be entitled to receive any Shares or other consideration that vested but was not issued before your death. For example, you may not use Shares that may be issued in respect of your Restricted Share Units as security for a loan. The restrictions on transfer set forth herein will lapse upon delivery to you of Shares in respect of your vested Restricted Share Units.
6. Date of Issuance.
a. The issuance of Shares in respect of the Restricted Share Units is intended to comply with Treasury Regulation Section 1.409A-1(b)(4) and will be construed and administered in such a manner. The Company shall issue to you one (1) Share for each Restricted Share Unit that vests, if any, as soon as practicable following the applicable vesting date(s) (subject to any adjustment under Section 3 above) and in any event within thirty (30) days following the vesting date.
b. The form of delivery (e.g., a share certificate or electronic entry evidencing such shares) shall be determined by the Company.
7. Dividends. [You shall receive no benefit or adjustment to your Award with respect to any cash dividend, share dividend or other distribution that does not result from the adjustment provided in Section 10(a) of the Plan.][Cash dividends on the number of Shares issuable hereunder shall be credited to a dividend book entry account on your behalf with respect to each Restricted Share Unit granted to you, provided that such cash dividends shall not be deemed to be reinvested in Shares and shall be held uninvested and without interest and paid in cash at the same time that the Shares underlying the Restricted Share Units are delivered to you in accordance with the provisions hereof. Share dividends on Shares shall be credited to a dividend book entry account on your behalf with respect to each Restricted Share Unit granted to you, provided that such share dividends shall be paid in Shares at the same time that the Shares underlying the Restricted Share Units are delivered to you in accordance with the provisions hereof. Except as otherwise provided herein, you shall have no rights as a shareholder with respect to any Shares covered by any Restricted Share Unit unless and until you have become the holder of record of such Shares.]
8. Restrictive Legends. The Shares issued under your Award shall be endorsed with appropriate legends, if applicable, as determined by the Company.
9. Award Not a Service Contract. This Agreement is not an employment or service contract, and nothing in this Agreement will be deemed to create in any way whatsoever any obligation on your part to continue in the employ or service of the Company or an Affiliate, or of the Company or an Affiliate to continue your employment or service.
10. Withholding Obligations.
a. On or before the time you receive a distribution of the Shares underlying your Award, and at any other time as reasonably requested by the Company in accordance with applicable tax laws, you hereby authorize any required withholding from the Shares issuable to you and/or otherwise agree to make adequate provision in cash for any sums required to satisfy the federal, state, local and foreign tax withholding obligations of the Company or any Affiliate that arise in connection with your Award (the “Withholding Taxes”). Additionally, the Company or any Affiliate may, in its sole discretion, satisfy all or any portion of the Withholding Taxes obligation relating to your Award by any of the following means or by a combination of such means: (i) withholding from any compensation otherwise payable to you by the Company; (ii) causing you to tender a cash payment; (iii) permitting or requiring you to enter into a “same day sale” commitment, whereby Withholding Taxes may be satisfied with a portion of the Shares to be delivered in connection with your Restricted Share Units by delivery of an irrevocable direction to a securities broker (on a form prescribed by the Committee) to sell a portion of the Shares and to deliver all or part of the sale proceeds to the Company and/or its Affiliates in payment of the amount necessary to satisfy the Withholding Taxes obligation; (iv) withholding Shares from the Shares issued or otherwise issuable to you in connection with the Award with an aggregate Fair Market Value (measured as of the date Shares are issued to pursuant to Section 6) equal to the amount of such Withholding Taxes; provided, that to the extent necessary to qualify for an exemption from application of Section 16(b) of the Exchange Act, if applicable, such share withholding procedure will be subject to the express prior approval of the Committee; or (v) such other arrangements as are satisfactory to the Committee.
b. Unless the tax withholding obligations of the Company and/or any Affiliate are satisfied, the Company shall have no obligation to deliver to you any Shares.
c. In the event the Company’s obligation to withhold arises prior to the delivery to you of Shares or it is determined after the delivery of Shares to you that the amount of the Company’s withholding obligations was greater than the amount withheld by the Company, you agree to indemnify and hold the Company harmless from any failure by the Company to withhold the proper amount.
11. Tax Consequences. You hereby agree that the Company does not have a duty to design or administer the Plan or its other compensation programs in a manner that minimizes your tax liabilities. You will not make any claim against the Company, or any of its officers, directors, employees or Affiliates, related to tax liabilities arising from your Award or your other compensation.
12. Notices. Any notices provided for in your Award or the Plan will be given in writing (including electronically) and will be deemed effectively given upon receipt or, in the case of notices delivered by mail by the Company to you, five (5) days after deposit in the United States mail, postage prepaid, addressed to you at the last address you provided to the Company. The Company may, in its sole discretion, decide to deliver any documents related to participation in the Plan and this Award by electronic means or to request your consent to participate in the Plan by electronic means. By accepting this Award, you consent to receive such documents by electronic delivery and to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.
13. Unsecured Obligation. Your Award is unfunded, and as a holder of a vested Award, you shall be considered a general, unsecured creditor of the Company with respect to the Company’s obligation, if any, to issue shares or other property pursuant to this Agreement.
14. Governing Plan Document. Your Award is subject to all the provisions of the Plan, the provisions of which are hereby made a part of your Award, and is further subject to all interpretations, amendments, rules and regulations which may from time to time be promulgated and adopted pursuant to the Plan. If there is any conflict between the provisions of your Award and those of the Plan, the provisions of the Plan will control. This Agreement shall be governed by and construed in accordance with the laws of the State of delaware. Any dispute, controversy or claim between YOU and the Company arising out of or related to this Agreement shall be resolved by arbitration in accordance with THE PROVISIONS RELATING TO ARBITRATION SET FORTH IN THe PLAN.
15. Clawback/Recoupment Policy. Your Award (and any compensation paid or Shares issued under your Award) is subject to recoupment in accordance with The Dodd-Frank Wall Street Reform and Consumer Protection Act and any implementing regulations thereunder, any other clawback policy adopted by the Company and any compensation recovery policy otherwise required by applicable law.
16. Other Documents. You hereby acknowledge receipt of and the right to receive a document providing the information required by Rule 428(b)(1) promulgated under the Securities Act, which includes the Plan prospectus.
17. Effect on Other Employee Benefit Plans. The value of this Award will not be included as compensation, earnings, salaries or other similar terms used when calculating your benefits under any employee benefit plan sponsored by the Company or any Affiliate, except as such plan otherwise expressly provides. The Company expressly reserves its rights to amend, modify or terminate any of the Company’s or any Affiliate’s employee benefit plans.
18. Voting Rights. You will not have voting or any other rights as a shareholder of the Company with respect to the Shares to be issued pursuant to this Award until such shares are issued to you. Upon such issuance, you will obtain full voting and other rights as a shareholder of the Company. Nothing contained in this Award, and no action taken pursuant to its provisions, will create or be construed to create a trust of any kind or a fiduciary relationship between you and the Company or any other person.
19. Severability. If all or any part of this Agreement or the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity will not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid. Any Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid shall, if possible, be construed in a manner which will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful and valid.
20. Data Privacy. You explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of personal data as described in Section 20(g) of the Plan (such Section 20(g) of the Plan is incorporated herein by reference and made a part hereof) by and among, as applicable, the Company, its Affiliates, third-party administrator(s) and other possible recipients for the exclusive purpose of implementing, administering and managing the Plan and Awards and your participation in the Plan. You acknowledge, understand and agree that Data may be transferred to third parties, which will assist the Company with the implementation, administration and management of the Plan.
21. Miscellaneous.
a. The rights and obligations of the Company under your Award will be transferable to any one or more persons or entities, and all covenants and agreements hereunder will inure to the benefit of, and be enforceable by, the Company’s successors and assigns.
b. You agree upon request to execute any further documents or instruments necessary or desirable in the sole determination of the Company to carry out the purposes or intent of your Award.
c. You acknowledge and agree that you have reviewed your Award in its entirety, have had an opportunity to obtain the advice of counsel prior to executing and accepting your Award and fully understand all provisions of your Award.
d. This Agreement will be subject to all applicable laws, rules and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required.
e. All obligations of the Company under the Plan and this Agreement will be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation or other acquisition of all or substantially all of the business and/or assets of the Company.
* * *
This RSU Agreement will be deemed to be signed by you upon the signing by you of the Restricted Share Unit Grant Notice to which it is attached.
Exhibit 10.13
DIVERSEY HOLDINGS, LTD.
Restricted SHARE Notice
(2021 Omnibus Incentive PLAN)
Diversey Holdings, Ltd. (the “Company”), pursuant to its 2021 Omnibus Incentive Plan (the “Plan”), hereby grants to Participant an Award of the number of Restricted Shares set forth below (the “Restricted Shares” or “Award”). The Award is subject to all of the terms and conditions as set forth in this Restricted Share Notice (this “Grant Notice”) and in the Restricted Share Agreement (attached hereto as Attachment I) and the Plan, both of which are incorporated herein in their entirety. Capitalized terms not otherwise defined herein but defined in the Plan or the Restricted Share Agreement will have the same meaning as in the Plan or the Restricted Share Agreement. If there is any conflict between the terms in this Grant Notice and the Plan, the terms of the Plan will control.
Name of Participant: | |
Date of Grant: | |
Vesting Commencement Date: | |
Number of Restricted Shares Subject to the Award: |
Vesting Schedule: | [Time or performance vesting criteria to be inserted]. |
Additional Terms/Acknowledgements: Participant acknowledges receipt of, and understands and agrees to, this Grant Notice, the Restricted Share Agreement and the Plan. Participant acknowledges and agrees that this Grant Notice and the Restricted Share Agreement may not be modified, amended or revised except as provided in the Plan. Participant further acknowledges that, as of the Date of Grant, this Grant Notice, the Restricted Share Agreement and the Plan set forth the entire agreement and understanding between Participant and the Company regarding the Restricted Shares granted pursuant to the Award specified above and supersede all prior oral and written agreements, promises and/or representations on that subject, with the exception of (i) Awards previously granted and delivered to the Participant, and (ii) any clawback or other compensation recovery policy that is adopted by the Company or is otherwise required by applicable law. By accepting this Award, Participant consents to receive such documents by electronic delivery and to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.
DIVERSEY HOLDINGS, LTD. | PARTICIPANT: | |||
By: | ||||
Signature | Signature | |||
Title: | Date: | |||
Date: |
Attachments: Restricted Share Agreement
2
Attachment I
Diversey
holdings, ltd.
2021 omnibus incentive PLAN
RESTRICTED SHARE Agreement
Pursuant to the Restricted Share Grant Notice (the “Grant Notice”) and this Restricted Share Agreement (this “Agreement”), Diversey Holdings, Ltd. (the “Company”) has granted you an Award of Restricted Shares, under its 2021 Omnibus Incentive Plan (the “Plan”), for the number of Restricted Shares indicated in the Grant Notice. Capitalized terms not explicitly defined in this Agreement or in the Grant Notice but defined in the Plan will have the same meaning as in the Plan.
If there is any conflict between the terms in this Agreement and the Plan, the terms of the Plan will control. The details of your Award of Restricted Shares (this or your “Award”), in addition to those set forth in the Grant Notice and the Plan, are as follows:
1. Grant of the Award. This Award was granted in consideration of your services to the Company.
2. Vesting. Subject to the limitations contained herein, your Award will vest as provided in your Grant Notice. Vesting will cease upon your Termination. Upon your Termination, the Restricted Shares that were not vested on the date of such Termination will be subject to Section 6(c) of the Plan.
3. Number of Shares. The number of Restricted Shares comprising your Award may be adjusted from time to time for capitalization adjustments, as provided in the Plan. Any additional Restricted Shares, cash or other property that become subject to the Award pursuant to this Section 3, if any, shall be subject, in a manner determined by the Committee, to the same forfeiture restrictions, restrictions on transferability and time and manner of delivery as applicable to the other Restricted Shares comprising your Award. Notwithstanding the provisions of this Section 3, no fractional Shares or rights for fractional Shares shall be created pursuant to this Section 3. Any fraction of a Share will be rounded down to the nearest whole Share.
4. Securities Law Compliance. The issuance of the Restricted Shares must comply with all applicable laws and regulations governing the Award and the Company’s policies, and you shall not receive such Restricted Shares if the Company determines that such receipt would not be in material compliance with such laws, regulations or Company policies, if applicable.
5. Transfer Restrictions. Prior to the time that the Restricted Shares vest, you may not transfer, pledge, sell or otherwise dispose of this Award. For example, you may not use Restricted Shares as security for a loan.
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6. Lock-Up. During the period commencing on the date of the consummation of the Company’s initial public offering (the “Closing”) and continuing until the calendar date that is the second anniversary of the Closing (the “Restricted Period”), you shall not (a) offer, sell, contract to sell, pledge, transfer, assign or otherwise dispose of (whether with or without consideration and whether voluntarily, involuntarily or by operation of law) (any of the foregoing, a “Transfer”) any Shares (including the Restricted Shares issued pursuant to this Agreement, even after such Restricted Shares have vested) held by you (or any securities convertible into or exchangeable or exercisable for such Shares), whether now owned or hereinafter acquired (collectively, the “Restricted Securities”), (b) enter into a transaction which would have the same effect as any action described in the foregoing clause (a), or (c) enter into any swap, hedge or other arrangement that Transfers, in whole or in part, any of the economic consequences or ownership of any Restricted Securities, in each case, unless consented to in writing by the Board (provided, that, if any member of the Board at such time has been nominated by Bain Capital Fund XI, L.P. (“Bain Capital”), pursuant to that certain Investor Rights Agreement, by and among the Company, Bain Capital and the other parties thereto, such consent must include the affirmative vote of at least one such nominee). Notwithstanding the foregoing, in the event that Bain Capital or any of its Affiliates sells Shares during the Restricted Period, you shall have the right (but not the obligation) to participate in such sale transaction and Transfer up to such number of Restricted Securities as would result in you having sold a percentage of the Shares held by you that is equal to the percentage of the Shares that is sold by Bain Capital and its Affiliates (collectively) following the Closing (determined by reference to the number of Shares held by you and Bain Capital (including its Affiliates), respectively, as of immediately following the Closing); provided, that, to the extent it is not reasonably possible for you to Transfer your Shares in the same transaction as Bain Capital or its Affiliates, you will be automatically released from the lock-up under this Section 6 solely with respect to the number of Shares that you were not permitted to Transfer in such transaction (and such Shares shall cease to be Restricted Securities), with such release effective as of immediately following the closing of such transaction.
7. Dividends. [You shall receive no benefit or adjustment to your Award with respect to any cash dividend, share dividend or other distribution that does not result from the adjustment provided in Section 10(a) of the Plan.][Cash dividends on the number of Restricted Shares issued hereunder shall be credited to a dividend book entry account on your behalf with respect to each Restricted Share granted to you, provided that such cash dividends shall not be deemed to be reinvested in Shares and shall be held uninvested and without interest and paid in cash at the same time that the unrestricted Shares subject to this Award are released to you in accordance with the provisions hereof. Share dividends on Shares shall be credited to a dividend book entry account on your behalf with respect to each Restricted Share granted to you, provided that such share dividends shall be paid in Shares at the same time that the unrestricted Shares subject to this Award are delivered to you in accordance with the provisions hereof.]
8. Restrictive Legends. The Restricted Shares issued under your Award shall be endorsed with appropriate legends, if applicable, as determined by the Company, including, without limitation, with respect to the lock-up provision set forth in Section 6.
9. Award Not a Service Contract. This Agreement is not an employment or service contract, and nothing in this Agreement will be deemed to create in any way whatsoever any obligation on your part to continue in the employ or service of the Company or an Affiliate, or of the Company or an Affiliate to continue your employment or service.
2
10. Withholding Obligations.
(a) On or before the time the Restricted Shares comprising your Award vest, and at any other time as reasonably requested by the Company in accordance with applicable tax laws, you hereby authorize any required withholding from the unrestricted Shares to be released to you and/or otherwise agree to make adequate provision in cash for any sums required to satisfy the federal, state, local and foreign tax withholding obligations of the Company or any Affiliate that arise in connection with your Award (the “Withholding Taxes”). Additionally, the Company or any Affiliate may, in its sole discretion, satisfy all or any portion of the Withholding Taxes obligation relating to your Award by any of the following means or by a combination of such means: (i) withholding from any compensation otherwise payable to you by the Company; (ii) causing you to tender a cash payment; (iii) permitting or requiring you to enter into a “same day sale” commitment, whereby Withholding Taxes may be satisfied with a portion of the unrestricted Shares to be released, by delivery of an irrevocable direction to a securities broker (on a form prescribed by the Committee) to sell a portion of the unrestricted Shares and to deliver all or part of the sale proceeds to the Company and/or its Affiliates in payment of the amount necessary to satisfy the Withholding Taxes obligation; (iv) withholding unrestricted Shares otherwise to be released to you in connection with the Award with an aggregate Fair Market Value (measured as of the date of vesting) equal to the amount of such Withholding Taxes; provided, that to the extent necessary to qualify for an exemption from application of Section 16(b) of the Exchange Act, if applicable, such share withholding procedure will be subject to the express prior approval of the Committee; or (v) such other arrangements as are satisfactory to the Committee.
(b) Unless the tax withholding obligations of the Company and/or any Affiliate are satisfied, the Company shall have no obligation to release to you any unrestricted Shares.
(c) In the event the Company’s obligation to withhold arises prior to the release of unrestricted Shares to you or it is determined after the delivery of unrestricted Shares to you that the amount of the Company’s withholding obligations was greater than the amount withheld by the Company, you agree to indemnify and hold the Company harmless from any failure by the Company to withhold the proper amount.
11. Tax Consequences. You hereby agree that the Company does not have a duty to design or administer the Plan or its other compensation programs in a manner that minimizes your tax liabilities. You will not make any claim against the Company, or any of its officers, directors, employees or Affiliates, related to tax liabilities arising from your Award or your other compensation.
12. Notices. Any notices provided for in your Award or the Plan will be given in writing (including electronically) and will be deemed effectively given upon receipt or, in the case of notices delivered by mail by the Company to you, five (5) days after deposit in the United States mail, postage prepaid, addressed to you at the last address you provided to the Company. The Company may, in its sole discretion, decide to deliver any documents related to participation in the Plan and this Award by electronic means or to request your consent to participate in the Plan by electronic means. By accepting this Award, you consent to receive such documents by electronic delivery and to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.
3
13. Governing Plan Document. Your Award is subject to all the provisions of the Plan, the provisions of which are hereby made a part of your Award, and is further subject to all interpretations, amendments, rules and regulations which may from time to time be promulgated and adopted pursuant to the Plan. If there is any conflict between the provisions of your Award and those of the Plan, the provisions of the Plan will control. This Agreement shall be governed by and construed in accordance with the laws of the State of delaware. Any dispute, controversy or claim between YOU and the Company arising out of or related to this Agreement shall be resolved by arbitration in accordance with THE PROVISIONS RELATING TO ARBITRATION SET FORTH IN THe PLAN.
14. Clawback/Recoupment Policy. Your Award is subject to recoupment in accordance with The Dodd-Frank Wall Street Reform and Consumer Protection Act and any implementing regulations thereunder, any other clawback policy adopted by the Company and any compensation recovery policy otherwise required by applicable law.
15. Other Documents. You hereby acknowledge receipt of and the right to receive a document providing the information required by Rule 428(b)(1) promulgated under the Securities Act, which includes the Plan prospectus.
16. Effect on Other Employee Benefit Plans. The value of this Award will not be included as compensation, earnings, salaries or other similar terms used when calculating your benefits under any employee benefit plan sponsored by the Company or any Affiliate, except as such plan otherwise expressly provides. The Company expressly reserves its rights to amend, modify or terminate any of the Company’s or any Affiliate’s employee benefit plans.
17. Severability. If all or any part of this Agreement or the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity will not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid. Any Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid shall, if possible, be construed in a manner which will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful and valid.
18. Data Privacy. You explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of personal data as described in Section 20(g) of the Plan (such Section 20(g) of the Plan is incorporated herein by reference and made a part hereof) by and among, as applicable, the Company, its Affiliates, third-party administrator(s) and other possible recipients for the exclusive purpose of implementing, administering and managing the Plan and Awards and your participation in the Plan. You acknowledge, understand and agree that Data may be transferred to third parties, which will assist the Company with the implementation, administration and management of the Plan.
19. Miscellaneous.
(a) The rights and obligations of the Company under your Award will be transferable to any one or more persons or entities, and all covenants and agreements hereunder will inure to the benefit of, and be enforceable by, the Company’s successors and assigns.
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(b) You agree upon request to execute any further documents or instruments necessary or desirable in the sole determination of the Company to carry out the purposes or intent of your Award.
(c) You acknowledge and agree that you have reviewed your Award in its entirety, have had an opportunity to obtain the advice of counsel prior to executing and accepting your Award and fully understand all provisions of your Award.
(d) This Agreement will be subject to all applicable laws, rules and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required.
(e) All obligations of the Company under the Plan and this Agreement will be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation or other acquisition, of all or substantially all of the business and/or assets of the Company.
* * *
This Restricted Share Agreement will be deemed to be signed by you upon the signing by you of the Restricted Share Grant Notice to which it is attached.
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Exhibit 10.14
EXECUTION VERSION
PRIVILEGED & CONFIDENTIAL
Management Agreement
This Management Agreement (this "Agreement") is entered into as of 6 September 2017 between, on the one hand, BCPE Diamond US Holdco Inc. and Diamond (BC) Netherlands Holding B.V. (together, the "Companies") and, on the other hand, Bain Capital Private Equity, LP, a Delaware limited partnership (the "Manager").
RECITALS
WHEREAS, pursuant to the purchase agreement dated as of 25 March 2017 (the "Purchase Agreement"), by and among Diamond (BC) B.V. ("the Purchaser"), pursuant to which the Purchaser and its subsidiaries (including the Companies) are acquiring the Diversey Business (as defined in the Purchase Agreement) (the "Initial Transaction") on the terms and subject to the conditions set forth in the Purchase Agreement;
WHEREAS, in connection with the Initial Transaction and related transactions, the Manager has provided advice, analysis and assistance, and structuring and support services including with respect to due diligence investigations and the structuring and negotiation of debt facilities and other matters (the "Initial Transaction Services"); and
WHEREAS, the Companies desire to retain the Manager to provide the services described herein to the Companies and Group Companies from time to time, and the Manager is willing to provide such services on the terms set forth below.
WHEREAS, the Manager has entered into certain advisory, financing and consultancy agreements with third party advisers in relation to rendering the Initial Transaction Services ("Initial Transaction External Advice").
Agreement
NOW THEREFORE, in consideration of the mutual agreements contained herein, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
1. | Services. During the Term, the Manager shall provide for the benefit of the Companies and the other Group Companies such services, which may include advice and support in connection with the following, as mutually agreed by the Manager and the Group Companies from time to time: |
(a) general business consulting services and strategic development;
(b) financial performance, including preparation of projections, budgets and capital expenditure plans and monitoring thereof,
(c) managerial and operational advice in connection with day-to-day operations, including advice with respect to the development and implementation of strategies for improving the operations and the monitoring thereof;
(d) assessing marketing, business development and other plans and strategies for any relevant entity, including monitoring of ongoing marketing plans and strategies;
(e) executive recruitment services and other human resources-related services;
(f) identification, analysis and evaluation of the Initial Transaction or any Subsequent Transaction (each a "Transaction") opportunity;
(g) active negotiation with relevant seller(s) or buyer(s) of the terms and conditions of any Transaction;
(h) active negotiation and advice in connection with the negotiation and consummation of agreements, contracts, documents and instruments necessary to provide the Group Companies with financing on terms and conditions satisfactory to the applicable Group Companies;
(i) advising on bids in any auction process;
(j) recommending, selecting, retaining, supervising and negotiating terms with suitable legal counsel, independent auditors, consultants, investment bankers and other professional advisors on behalf of any of the Group Companies;
(k) other transaction specific services for the Group Companies upon which the board of directors of the Companies and the Manager agrees from time to time, such as:
(a) | identification, analysis and evaluation of future financing or refinancing, recapitalization, reorganization, restructuring, offering of debt or equity securities, acquisition, disposition, merger, joint venture or other business combination, capital transaction (including dividends or distributions and equity repurchases) transactions involving any of the Group Companies or any of their direct or indirect subsidiaries (however structured); |
(b) | active negotiation with the relevant seller(s) or buyer(s) of the terms and conditions and the closing of any such transactions; |
(c) | active negotiation of agreements, contracts, documents and instruments necessary to provide the Group Companies with financing on terms and conditions satisfactory to the applicable Group Companies; and |
(d) | advice and assistance in the preparation of financial projections relation to items (a) to (c) above. |
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For the avoidance of doubt, the Manager shall not be responsible for providing legal services and/or legal advice under this Agreement.
The Manager shall devote to the performance of the services contemplated hereby such time and effort of its partners, members, managers, employees and agents as the Manager reasonably deems sufficient to provide the services hereunder; provided, however, that no particular personnel and no specified number of hours will be required to be devoted by the Manager on a weekly, monthly, annual or other basis. The fees and other compensation specified in this Agreement shall be payable by the Group Companies regardless of the extent of services requested by the Group Companies and regardless of whether the Group Companies request the Manager to provide any services. Each Group Company acknowledges that the Manager's services are not exclusive to the Group Companies (or any of them) and that the Manager may render similar services to other Persons. The Group Companies and the Manager understand that any of the Group Companies may, at times, engage one or more investment bankers, financial advisers or other Persons to provide services in addition to, but not in lieu of, services provided by the Manager under this Agreement. In providing services to the Group Companies, the Manager will act as an independent contractor, and it is expressly understood and agreed that this Agreement is not intended to create, and does not create, any partnership, agency, joint venture or similar relationship, and that no party hereto has the right or ability to contract for or on behalf of any other party hereto or to effect any transaction for the account of any other party hereto.
The services provided by the Manager hereunder may include advice and recommendations regarding potential future events and there can be no guarantee that such future events will occur as anticipated or at all. The Group Companies will be responsible for determining the manner in which such advice and recommendations will be used. The Manager will not have any responsibility for implementing any advice or recommendations provided under this Agreement and will not perform any management functions or make management decisions with respect to any such advice or recommendations. Without limiting the generality of the foregoing, if the Manager is requested by any Group Company or any of its representatives to represent the interests of any Group Company in discussions and other interactions with third parties, the Manager shall be acting at the instruction of and on behalf of such Group Company and will not be deemed to be acting in the Manager's personal capacity.
2. | Payment of Fees. |
(a) For the avoidance of doubt, there shall be no transaction fee payable by any Group Company to the Manager in relation to the Initial Transaction Services but any Reimbursable Expenses incurred by the Manager in relation to the Transaction shall be reimbursable pursuant to Section 4(a).
(b) During the Term, the Companies shall pay upon receipt of an invoice to the Manager (or such affiliate(s) of the Manager as the Manager may designate from time to time) an aggregate, non-refundable annual retainer fee (the "Periodic Fee") of $7,500,000 for ongoing services provided by the Manager under this Agreement, which fee shall be paid by the Companies in quarterly installments in advance on or before the start of each calendar quarter; provided, however, that, for the period from the date hereof through the calendar quarter ending 30 September 2017, the Companies shall pay the installment of the Periodic Fee due for that calendar quarter on the date of this Agreement in an amount that is pro-rated based on the number of days in that period relative to the total number of days in the quarter.
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(c) If any Group Company acquires, directly or indirectly, greater than 50% of a corporation, partnership, limited liability company, business trust, division or other business (or the assets of a business) in any transaction or series of related transactions (whether such transaction(s) are structured as a merger, purchase or sale of stock or other equity interest, purchase or sale or other disposition of assets, recapitalization, refinancing, exchange, reorganization, consolidation, tender offer, public or private offering or otherwise) during the Term (each, an "Add-On Acquisition") and the Group's Consolidated EBITDA after giving effect to such Add-On Acquisition exceeds the Baseline EBITDA, then the aggregate Periodic Fee shall automatically be adjusted upon the consummation of such Add-On Acquisition to equal (i) the Group's Consolidated EBITDA after giving effect to such Add-On Acquisition, multiplied by (ii) the Payment Percentage.
(d) Notwithstanding the provisions of Section 2(b) or 2(c), if any Group Company's board of directors determines in good faith that making a payment of any portion of the Periodic Fee would jeopardize any Group Company's ability to continue as a going concern (including by virtue of any legal, contractual or other similar restrictions prohibiting such payment), then the non-payment of such portion shall not constitute a default under this Agreement and such portion instead shall be paid to the Manager at the earliest such time that such Group Company's board of directors determines in good faith that making such payment no longer jeopardizes such Group Company's ability to continue as a going concern (including by virtue of such payment being no longer prohibited); provided, that each Group Company agrees to use reasonable best efforts to satisfy all conditions necessary to (i) prevent any such payment restrictions from arising and (ii) eliminate as promptly as practicable any such payment restrictions that do arise, with the understanding that no Group Company shall be required to take any action, or omit to take any action, that such Group Company's board of directors determines in good faith would jeopardize its ability to continue as a going concern.
(e) During the Term, the Manager may advise Group Companies in connection with Subsequent Transactions. The Companies will pay to the Manager (or such affiliate(s) of the Manager as the Manager may designate from time to time) an aggregate fee (each a "Subsequent Transaction Fee") in connection with each Subsequent Transaction in an amount equal to one percent (1%) of the gross transaction value of such Subsequent Transaction. In the case of Subsequent Transactions involving debt financing, the Subsequent Transaction Fees will be determined based on the gross amount of financing committed or otherwise available to the Group Companies as of the closing of such Subsequent Transaction (prior to any reduction for original issue discount, fees, expenses, restrictions on amounts to be drawn at closing, mandatory pre-payments or other similar reductions), regardless of whether or not such financing is actually drawn or funded at or following such closing. With respect to the advice and related services provided by the Manager that give rise to a Subsequent Transaction Fee, the Group Companies will, in consultation with the Manager, use their reasonable best efforts to allocate Subsequent Transaction Fees between the Pre-LOI Period and the Post-LOI Period pro rata based on the number of hours spent advising the Group Companies during each of the Pre-LOI Period and Post-LOI Period with respect to the relevant Subsequent Transaction. The Subsequent Transaction Fee for any Subsequent Transaction will be due and payable at the closing of the relevant transaction.
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(f) In the case of an Initial Public Offering, the Companies shall pay to the Manager (or such affiliate(s) of the Manager as the Manager may designate) upon the closing of such Initial Public Offering, in addition to the fees payable above, a lump sum amount equal to the product of (i) the aggregate annual Periodic Fee in the amount then applicable multiplied by (ii) five.
(g) The Manager acknowledges that the Companies may assign to or be reimbursed by any other Group Company (or cause such other Group Company to pay to the Manager) such proportion of the fee as relates to the benefit provided to such Group Company by the provision of services during the applicable period.
(h) Each payment made pursuant to this Section 2 will be paid by wire transfer of immediately available federal funds to the account specified on Schedule 1 hereto, or to such other account(s) as the Manager may specify to the Companies in writing prior to such payment. In addition, prior to the payment of any Subsequent Transaction Fee pursuant to Section 2(e) hereof, the Manager shall invoice or otherwise inform the Companies (including by e-mail) of the amount due and, if requested and where applicable, the applicable services performed. The Manager may, in its sole discretion, elect to waive payment of all or any portion of any fees or other amounts due under this Section 2. No waiver of any payment on any one occasion will extend to, effect, or be construed as, a waiver of any future payment. The Manager's right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments.
3. | Term. |
(a) The term of this Agreement will commence on the date of this Agreement and continue in full force and effect until the earliest to occur of (i) written notification by the Manager to the Companies of the Manager's decision to terminate this Agreement, (ii) the closing of an Initial Public Offering, (iii) the occurrence of a Change of Control, and (iv) the delivery of written notice of termination of this Agreement by any non-breaching party if the Manager or any Group Company is in material breach of this Agreement and such material breach is not cured within 30 days after such written notice is given (the period commencing on the date of this Agreement and ending on any such event of termination being referred to herein as the "Term").
(b) Upon any termination of this Agreement, (i) this Section 3(b) and each of Sections 4 through 14 inclusive (whether relating to services rendered during or after the Term) will survive such termination to the maximum extent permitted under applicable law; (ii) any and all unpaid obligations of the Group Companies under this Agreement shall be paid not later than five business days following such termination; and (iii) all obligations of the Manager under this Agreement will terminate and any subsequent services rendered by the Manager to the Group Companies will be separately compensated.
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4. | Expenses; Indemnification. |
(a) Expenses. The Companies shall pay upon presentment of an invoice all Reimbursable Expenses to the Manager (or such affiliate(s) of the Manager as the Manager may designate from time to time). As used herein, "Reimbursable Expenses" means all (i) expenses incurred or accrued by the Manager or its affiliates in connection with this Agreement, the Purchase Agreement, the Initial Transaction or any related transactions, including, any costs in respect of the Initial Transaction External Advice, the out-of-pocket expenses and the fees and charges of any consultants or advisors, appraisal or valuation firms, information or exchange agents, or other Persons retained by the Manager or any of its affiliates in connection with such transactions, (ii) reasonable out-of-pocket expenses incurred from and after the Closing Date relating to any of the Bain Capital Funds' investment in, the operations of, or the services provided by the Manager to, the Group Companies from time to time, (iii) reasonable out-of-pocket legal expenses incurred by the Manager, any of its affiliates or any of the Bain Capital Funds from and after the date of this Agreement in connection with the enforcement of rights or taking of actions under this Agreement, under the certificate of incorporation and bylaws (or equivalent documentation) of any of the Group Companies, or under any subscription agreements, stockholders or investor rights agreements, registration rights agreements, voting agreements or other agreements entered into with any of the Group Companies in connection with direct or indirect investments by the Bain Capital Funds or their affiliates in, or financing by any of them of, any of the Group Companies (subject to any applicable limitations on expense reimbursement rights expressly set forth in such agreements), and (iv) reasonable expenses incurred from and after the Closing Date by the Manager or its affiliates that the Manager, in its sole discretion, deems properly allocable to the Group Companies.
(b) Indemnification. The Group Companies hereby jointly and severally indemnify and agree to exonerate and hold the Manager, each Bain Capital Fund and each of their respective Related Persons (the Manager, each Bain Capital Fund and each such Related Person, an "Indemnitee") free and harmless on a net after-tax basis from and against any and all actions, causes of action, suits, claims, counterclaims, judgments, awards, settlements, penalties, liabilities, damages, losses, costs and expenses (including reasonable attorneys' fees and expenses) incurred by any Indemnitee before, on or after the date of this Agreement (collectively, the "Indemnified Liabilities"), as a result of, arising out of, or in any way relating to, (i) this Agreement, the Purchase Agreement, the Initial Transaction, any transaction to which any of the Group Companies or any of their respective affiliates is a party, or any other circumstances with respect to any of the Group Companies or any of their respective affiliates or (ii) operations of, or services provided by the Manager to, any of the Group Companies or any of their respective direct or indirect subsidiaries from time to time (including any indemnification obligations assumed or incurred by any Indemnitee to or on behalf of any of the Group Companies, or any of their accountants or other representatives, agents or affiliates). If and to the extent that the foregoing undertaking is found by a court of competent jurisdiction to be illegal, unenforceable or otherwise unavailable for any reason, the Group Companies shall, jointly and severally, contribute to the payment and satisfaction of any and all Indemnified Liabilities to the maximum extent permissible under applicable law. The rights of any Indemnitee to indemnification hereunder will be in addition to any other rights any such Indemnitee has under any other agreement or instrument to which such Indemnitee is or becomes a party or of which such Indemnitee is or otherwise becomes a beneficiary (whether by operation of law, by contract or otherwise). Notwithstanding the foregoing or any other provisions hereof, the rights of the Indemnitees (other than the Manager) hereunder may be exercised and enforced on their behalf exclusively by the Manager and not by such other Indemnitees.
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(c) Indemnification Priority. Each Group Company hereby acknowledges that the rights to indemnification, advancement of expenses and/or insurance provided pursuant to this Section 4 may also be provided to certain Indemnitees by the Manager, certain of the Bain Capital Funds and/or certain of their respective affiliates (other than the Group Companies) (the Manager and such other Persons, "Affiliate Indemnitors") and/or by insurers providing insurance coverage to the Affiliated Indemnitors. Each Group Company hereby agrees that, as between the Group Companies, on the one hand, and the Affiliate Indemnitors and their insurers, on the other, (i) the Group Companies are the indemnitors of first resort with respect to all indemnifiable claims against such Indemnitees, whether arising under this Agreement or otherwise (i.e., the Group Companies' obligations to such Indemnitees are primary and any obligation of any of the Affiliate Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by such Indemnitees are secondary), (ii) the Group Companies shall be required to advance the full amount of expenses incurred by such Indemnitees and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement (or any other agreement between any of the Group Companies and such Indemnitee), without regard to any rights such Indemnitee may have against any of the Affiliate Indemnitors or any of their insurers and (iii) each Group Company hereby knowingly, intentionally and irrevocably waives, relinquishes and forever releases the Affiliate Indemnitors from any and all, and covenants not to sue any of the Affiliate Indemnitors in respect of any, claims for contribution, subrogation or any other right or theory, recovery of any kind against the Affiliate Indemnitors in respect thereof. The Group Companies, jointly and severally, shall indemnify the Affiliate Indemnitors directly against any and all amounts that the Affiliate Indemnitors pay as indemnification or advancement on behalf of any such Indemnitee and for which such Indemnitee may be entitled to indemnification from any of the Group Companies in connection with serving as a director, manager, member, partner or officer (or equivalent positions, including in non-U.S. jurisdictions) of any of the Group Companies. Each Group Company further agrees that no advancement or payment by any of the Affiliate Indemnitors on behalf of any such Indemnitee with respect to any claim for which such Indemnitee has sought indemnification from any of the Group Companies shall affect the foregoing rights and obligations, and the Affiliate Indemnitors shall be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Indemnitee against any of the Group Companies, and the Group Companies shall cooperate with any Indemnitee pursuing such rights.
5. | Disclaimer and Limitation of Liability; Opportunities. |
(a) Disclaimer. The Manager does not make any representations or warranties, express or implied, in respect of any services provided by the Manager hereunder, including the Initial Transaction Services, other than as required by applicable law.
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(b) Limitation of Liability. With respect to this Agreement and any services provided hereunder including the Initial Transaction Services, the Manager will have no duty or obligation (legal, contractual or otherwise) to any Person except to the extent of its express contractual obligations to the Group Companies in this Agreement, and, with respect to those obligations, in no event will the Manager be liable to any of the Group Companies for (i) any act or alleged act, or any omission or alleged omission, that does not constitute willful misconduct by the Manager, as determined in a final, non-appealable judgment by a court of competent jurisdiction, (ii) any indirect, special, punitive, incidental, exemplary, expectancy or consequential damages, including lost profits, lost revenues, loss of opportunity or business interruption, whether or not such damages are foreseeable, or (iii) any third party claims (whether based in statute, contract, tort or otherwise). Additionally, in no event shall the aggregate liability of the Manager with respect to this Agreement and any services provided hereunder including the Initial Transaction Services exceed the fees received by the Manager pursuant to Section 2 of this Agreement. Aside from the Manager (whose liability, for the avoidance of doubt, will be subject to and governed by the preceding provisions of this Section 5(b)), no Indemnitee will have any liability whatsoever to any of the Group Companies for any actions, causes of action, suits, claims, counterclaims, judgments, awards, settlements, penalties, liabilities, damages, losses, costs or expenses of any kind whatsoever in any way arising out of or relating to this Agreement or any services provided hereunder including the Initial Transaction Services .
(c) Freedom to Pursue Opportunities, Etc. In recognition that the Manager and other Indemnitees have (and will continue to have) access to information about the Group Companies that will enhance such Indemnitees' knowledge and understanding of the business of the Group Companies and the industries in which they operate, and have (and in the future will have or will consider) investments in numerous companies with respect to which the Manager or other Indemnitees may serve as an advisor, a director, manager, member, partner or in some other capacity (including in non-U.S. jurisdictions), and in recognition that the Manager and the other Indemnitees have myriad duties to various investors, partners and other Persons (which duties may change from time to time), and in anticipation that the Group Companies, on the one hand, and the Manager, the other Indemnitees and their respective affiliates, associated investment funds, portfolio companies and clients, on the other hand, may engage in the same or similar activities or lines of business or industries or markets and have an interest in the same or similar corporate opportunities, and in recognition of the benefits to be derived by the Group Companies hereunder and the difficulties that may confront any advisor who desires and endeavors to fully satisfy such advisor's duties in determining the full scope of such duties in any particular situation, the provisions of this Section 5(c) are set forth to regulate, define and guide the conduct of certain affairs relating to or affecting the Group Companies as they may involve the Manager as a knowing, intentional and voluntarily entered into arrangement to appropriately and reasonably address such difficulties in order to procure for the Group Companies the Manager's services hereunder. Accordingly, except as the Manager may otherwise agree in writing after the date of this Agreement, each of the Group Companies hereby agrees that:
(i) the Manager and the other Indemnitees will have the right: (A) to directly or indirectly engage in any business (including any business activities or lines of business that are the same as or similar to those pursued by, or competitive with or ancillary or related to, the Group Companies) or invest, own or deal in securities of, or finance, control or advise any other Person so engaged in any business, (B) to directly or indirectly do business with any client, supplier, counterparty, advisor, consultant, customer or other business relation of any of the Group Companies, (C) to disclose the terms of this Agreement or information about the Group Companies to any Bain Capital Fund or any affiliate, partner, investor, co-investor, officer, director, manager, member, employee or advisor of any Bain Capital Fund, and (D) to take any action that the Manager or any of the other Indemnitees believes in good faith is necessary to or desirable to fulfill their duties and obligations, as referenced in the first sentence of this Section 5(c), and (E) not to present potential transactions, investments, matters or business opportunities to the Group Companies or any of their respective affiliates, and to pursue, directly or indirectly, any such opportunity exclusively for their own account, or to direct any such opportunity to any other Person;
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(ii) the Manager and the other Indemnitees will have no duty (legal, contractual or otherwise) to communicate or present any corporate opportunities to the Group Companies or any of their respective affiliates or to refrain from any actions specified in Section 5(c)(i) hereof, and each of the Group Companies, on their own behalf and on behalf of their respective current and future affiliates, hereby renounces and waives any right to require the Manager or any of the other Indemnitees to act in a manner inconsistent with the provisions of this Section 5(c);
(iii) the Manager and the other Indemnitees will not be liable to any of the Group Companies or any of their respective affiliates for breach of any duty (legal, contractual or otherwise) by reason of any activities or omissions of the types referred to in this Section 5(c) or of any such Indemnitee's participation therein; and
(iv) there is no restriction on any Indemnitee's using such knowledge and understanding in making investment, financing, voting, monitoring, control, governance, commercial or other decisions in relation to other Persons, transactions, opportunities and/or securities.
6. | Assignment, etc. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns; provided, however, that, except as provided in the next sentence, no party hereto has the right to assign any of its rights or obligations under this Agreement without the prior written consent of each of the other parties. Notwithstanding the foregoing, (a) the Manager may assign all or part of its rights and obligations hereunder to any affiliate of the Manager that provides services similar to those called for by this Agreement, in which event the Manager will be released of all of its liabilities and obligations hereunder; and (b) in the event of a merger, reorganization, sale of substantially all the assets, Change of Control or similar transaction affecting any Group Company, the parties to such transaction shall make proper provisions such that the successor to such Group Company succeeds to all of the liabilities and obligations of such Group Company hereunder. |
7. | Amendments and Waivers. No amendment or waiver of any term, provision or condition of this Agreement will be effective, unless in writing and signed, in the case of an amendment, by the Manager and the Company or, in the case of a waiver, by the party against whom such waiver is intended to be effective. No waiver on any one occasion will extend to, effect, or be construed as, a waiver of any right or remedy on any future occasion. No course of dealing of any Person nor any delay or omission in exercising any right or remedy will constitute an amendment of this Agreement or a waiver of any right or remedy of any party hereto. |
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8. | Governing Law; Jurisdiction. |
(a) Choice of Law. This Agreement and any controversy arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any choice or conflict of laws provision or rule that would require the application of the laws of any other jurisdiction.
(b) Consent to Jurisdiction. Each of the parties hereto agrees that all actions, suits or proceedings arising out of, based upon or relating to this Agreement or the subject matter hereof will be brought and maintained exclusively in the federal and state courts of the State of New York, City of New York, County of New York. Each of the parties hereto by execution hereof (i) hereby irrevocably submits to the jurisdiction of the federal and state courts in the State of New York, City of New York, County of New York for the purpose of any action, suit or proceeding arising out of or based upon this Agreement or the subject matter hereof, (ii) hereby waives to the extent not prohibited by applicable law, and agrees not to assert, by way of motion, as a defense or otherwise, in any such action, suit or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that it is immune from extraterritorial injunctive relief or other injunctive relief, that its property is exempt or immune from attachment or execution, that any such action, suit or proceeding may not be brought or maintained in one of the above-named courts, that any such action, suit or proceeding brought or maintained in one of the above-named courts should be dismissed on grounds of forum non conveniens, should be transferred to any court other than one of the above-named courts, should be stayed by virtue of the pendency of any other action, suit or proceeding in any court other than one of the above-named courts, or that this Agreement or the subject matter hereof may not be enforced in or by any of the above-named courts and (iii) hereby agrees not to commence or maintain any action, claim, cause of action or suit (in contract, tort or otherwise), inquiry, proceeding or investigation arising out of or based upon this Agreement or relating to the subject matter hereof other than before one of the above-named courts. Notwithstanding the foregoing, to the extent that any party hereto is or becomes a party in any litigation in connection with which it may assert indemnification rights set forth in this Agreement, the court in which such litigation is being heard will be deemed to be included in clause (i) above. Each of the parties hereto hereby consents to service of process in any such suit, action or proceeding in any manner permitted by the laws of the State of New York, agrees that service of process by registered or certified mail, return receipt requested, at the address specified in or pursuant to Section 11 hereof is reasonably calculated to give actual notice and waives and agrees not to assert by way of motion, as a defense or otherwise, in any such action, suit or proceeding any claim that service of process made in accordance with Section 11 hereof does not constitute good and sufficient service of process. The provisions of this Section 8 will not restrict the ability of any party to enforce in any court any judgment obtained in a court included (or desired to be included) in clause (i) above.
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(c) Waiver of Jury Trial. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, EACH OF THE PARTIES HERETO HEREBY WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT, OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, CAUSE OF ACTION, ACTION, SUIT OR PROCEEDING ARISING OUT OF, BASED UPON OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER IN CONTRACT OR TORT OR OTHERWISE. EACH OF THE PARTIES HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY EACH OTHER PARTY THAT THE PROVISIONS OF THIS SECTION 8(C) CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH SUCH PARTY IS RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY. ANY OF THE PARTIES HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH OF THE PARTIES HERETO TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
9. | No Third Party Beneficiaries. The terms and provisions of this Agreement are intended solely for the benefit of each party hereto and its respective successors and permitted assigns, and it is not the intention of the parties to confer, and, except for Indemnitees and Affiliate Indemnitors and their respective successors (but subject to the exclusive right of the Manager to exercise and enforce the rights of the same), no provision hereof shall confer, third party beneficiary rights upon any other Person. |
10. | Entire Agreement. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes any prior communication or agreement with respect thereto. |
11. | Notice. All notices, demands, and communications required or permitted under this Agreement will be in writing and will be effective if served upon such other party as specified below to the address set forth for it below (or to such other address as such party will have specified by notice in accordance with this Section 11 to each other party) if (i) delivered personally, (ii) sent by certified or registered mail or by Federal Express, DHL, UPS or any other comparably reputable overnight courier service, postage prepaid, or (iii) sent by email (ii), in each case, to the appropriate address specified below. |
If to any of the Group Companies:
C/o
Diversey, Inc.
2415 Cascade Pointe Boulevard
Charlotte, North Carolina
28208, USA,
Attention: Chief Financial Officer
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If to the Manager:
Bain Capital Private Equity, LP
200 Clarendon Street
Boston, MA 02116
Attention: | Jay Corrigan, Chief Financial Officer | |
Email: | jcorrigan@baincapital.com |
with a copy to:
Kirkland & Ellis LLP
200 Clarendon Street
20th Floor
Boston, MA 02116
Attention: | Neal Reenan | |
Email: | neal.reenan@kirkland.com |
Unless otherwise specified herein, such notices or other communications will be deemed effective, (a) on the date received, if personally delivered or sent by email between 9 am and 5 pm in the place of receipt, (b) on the business day after being received if sent by email other than between 9 am and 5 pm in the place of receipt, (c) one business day after being sent by Federal Express, DHL or UPS or other comparably reputable overnight delivery service or (d) five business days after being sent by registered or certified mail. Each of the parties hereto shall be entitled to specify a different address by giving notice as aforesaid to each of the other parties hereto.
12. | Severability. In the event that any provision of this Agreement or the application thereof becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other Persons or circumstances will be interpreted reasonably to effect the intent of the parties hereto. The parties further agree to replace such illegal, void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the greatest extent possible, the purpose(s) of such illegal, void or unenforceable provision. |
13. | Joint and Several Liability, Etc. Each agreement and other obligation of any Group Company hereunder shall be a joint and several obligation of all the Group Companies (including any future Group Company), regardless of whether such agreement or other obligation expressly provides for such joint and several liability. The Company shall cause any Group Company not already party to this Agreement and any Person that becomes a Group Company in the future to sign a counterpart signature page to this Agreement in furtherance of such joint and severally liability. Any payment obligation of the Company under this Agreement will be deemed satisfied by payment of the requisite amount(s) by any other Group Companies. |
14. | Withholding. All amounts payable hereunder shall be paid free and clear of any withholding or deduction, except to the extent required by law in which event the relevant payor shall pay such additional amount as shall be required to ensure that the net amount received and retained by the Manager or the relevant Bain Capital Fund or affiliate (as applicable) will equal the full amount which would have been received and retained had no such deduction or withholding been required. |
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15. | Miscellaneous |
(a) Counterparts. This Agreement may be executed in any number of counterparts (including by means of telecopied signature pages or signature pages in ".pdf", ".tif" or similar format sent as an attachment to an electronic mail message) and/or by each of the parties hereto in separate counterparts, each of which when so executed will be deemed to be an original and all of which together will constitute one and the same agreement.
(b) Interpretation. The headings contained in this Agreement are for convenience of reference only and will not in any way affect the meaning or interpretation hereof. As used herein the word "including" shall be deemed to mean "including without limitation". This Agreement reflects the mutual intent of the parties and no rule of construction against the drafting party shall apply.
(c) Definitions. As used in this Agreement, the following terms will have the meanings given below:
"Bain Capital Fund" means the Investing Funds and any other investment fund or investment vehicle that directly or indirectly controls, is controlled by or is under common control with any Investing Fund or that has the same general partner or primary investment advisor as any Investing Fund (or a general partner or primary investment advisor that controls, is controlled by or is under common control with the general partner or primary investment advisor of any Investing Fund).
"Baseline EBITDA" means $369,000,000 (the "Initial Baseline EBITDA"); provided, however, that in the event any Add-On Acquisition results in an adjustment to the Periodic Fee pursuant to Section 2(b), the Baseline EBITDA after the consummation of such Add-On Acquisition shall be adjusted to equal the Group Company's Consolidated EBITDA immediately after giving effect to such Add-On Acquisition.
"business day" means any day other than a Saturday or a Sunday or a weekday on which banks in New York City are authorized or required to be closed.
"Change of Control" means (i) any transaction or series of related transactions in which the Bain Capital Funds, the Manager and their respective affiliates dispose of or sell (whether by merger, sale of securities, recapitalization or reorganization) more than 50% of the total voting power or economic interest in the Company to one or more independent third parties; provided that such transaction shall constitute a Change of Control only if it results in the Bain Capital Funds, the Manager and their respective affiliates ceasing to have the power (whether by ownership of voting securities, contractual right or otherwise) collectively to elect a majority of the board of directors of the Company, or (ii) a sale or disposition of all or substantially all of the assets of the Group Companies on a consolidated basis other than to an entity with respect to which, following such sale or other disposition, at least 50% of the combined voting power of the then outstanding voting securities of such entity is then beneficially owned, directly or indirectly, by the Bain Capital Funds, the Manager and their respective affiliates.
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"Closing Date" means the effective date of the Initial Transaction.
"Consolidated EBITDA" shall have the meaning set forth in that certain credit agreement dated on or about the date hereof between, amongst others, Diamond (BC) B.V. (as borrower) and Credit Suisse AG, Cayman Islands Branch (as the administrative agent, the collateral agent, a letter of credit issuer and a lender), or if no such agreement is in effect, "Consolidated EBITDA" shall be reasonably determined by the board of directors of the Company.
"Group Company" means Constellation (BC) S.à.r.l., a société à responsabilité limitée incorporated and existing under the laws of the Grand Duchy of Luxembourg (and the indirect parent of the Companies), together with any of its direct or indirect subsidiaries and any Person that becomes one of its direct or indirect subsidiaries from time to time.
"Initial Public Offering" means the initial public offering and sale of common stock of any Group Company or any direct or indirect subsidiary thereof for cash pursuant to an effective registration statement under the Securities Act of 1933, as in effect from time to time, registered on Form S-1 (or any successor form under the Securities Act of 1933, as in effect from time to time).
"Investing Fund" means each of Bain Capital Fund XI, L.P. and Bain Capital Europe Fund IV, L.P.
"Payment Percentage" means a percentage equal to (i) the Periodic Fee Amount divided by (ii) the Initial Baseline EBITDA.
"Person" means any individual or corporation, association, partnership, limited liability company, joint venture, joint stock or other company, business trust, trust, organization, or other entity of any kind.
"Pre-LOI Period" means, in relation to a particular transaction giving rise to the payment of a Subsequent Transaction Fee, the period of time ending the day prior to the earlier of (i) the date that a letter of intent or similar document is signed with respect to the transaction and (ii) the date that the board of directors (or similar governing body) of the relevant Group Company approves the Subsequent Transaction.
"Post-LOI Period" means the period of time commencing the day after the Pre-LOI Period ends.
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"Related Person" means, with respect to the Manager or any Bain Capital Fund, any former, current or future (direct or indirect) director, officer, employee, agent, advisor, general or limited partner, manager, management company, member, stockholder, affiliate, associated investment fund, fiduciary, controlling person, representative or assignee of such Person or any former, current or future (direct or indirect) director, officer, employee, agent, advisor, general or limited partner, manager, management company, member, stockholder, affiliate, associated investment fund, fiduciary, controlling person, representative or assignee of any of the foregoing, excluding in each case (i) the Group Companies and their respective direct and indirect subsidiaries and (ii) any Person that would otherwise qualify as a Related Person solely by reason of its affiliation or service relationship with any of the Group Companies or any of their respective direct or indirect subsidiaries.
"Subsequent Transaction" means any financing or refinancing, recapitalization, reorganization, restructuring, offering of debt or equity securities, acquisition, disposition, merger, joint venture or other business combination or Change of Control transaction involving any of the Group Companies (including any Add-On Acquisition).
[The remainder of this page is intentionally left blank. Signatures immediately follow.]
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed on its behalf as an instrument under seal as of the date first written above by its duly authorized officer or representative.
DIAMOND (BC) NETHERLANDS HOLDING B.V | ||
/s/ Terry Coelho | ||
Name: | Terry Coelho | |
Title: | Authorised Signatory | |
BCPE DIAMOND US HOLDCO INC | ||
/s/ Terry Coelho | ||
Name: | Terry Coelho | |
Title: | Authorised Signatory |
Signature Page to Management Agreement
BAIN CAPITAL PRIVATE EQUITY, LP | ||
By: | /s/ Peter Saldarriaga | |
Name: | Peter Saldarriaga | |
Title: | Authorised Signatory |
Signature Page to Management Agreement
Schedule 1 to
Management Agreement
Wire Transfer Instructions for
Bain Capital Private Equity, LP
On file with the Companies.
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption "Experts" and to the use of our report dated March 1, 2021, with respect to the consolidated financial statements and schedule of Constellation 2 (BC) S.á r.l. included in the Registration Statement (Form S-1 No. 333-XXXXX) and related Prospectus of Diversey Holdings, Ltd. dated March 1, 2021.
/s/ Ernst & Young LLP
Charlotte, North Carolina
March 1, 2021
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption "Experts" and to the use of our report dated March 1, 2021, with respect to the financial statement of Diversey Holdings, Ltd. included in the Registration Statement (Form S-1 No. 333-XXXXX) and related Prospectus of Diversey Holdings, Ltd. dated March 1, 2021.
/s/ Ernst & Young LLP
Charlotte, North Carolina
March 1, 2021