UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

 

 

FORM 8-K

 

 

CURRENT REPORT PURSUANT

TO SECTION 13 OR 15(D) OF THE

SECURITIES EXCHANGE ACT OF 1934

Date of report (Date of earliest event reported): June 30, 2009

 

 

FIFTH THIRD BANCORP

(Exact Name of Registrant as Specified in Its Charter)

OHIO

(State or Other Jurisdiction of Incorporation)

 

001-33653   31-0854434
(Commission File Number)   (IRS Employer Identification No.)
Fifth Third Center  
38 Fountain Square Plaza, Cincinnati, Ohio   45263
(Address of Principal Executive Offices)   (Zip Code)

(800) 972-3030

(Registrant’s Telephone Number, Including Area Code)

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

 

 

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

 

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

 

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

 

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

 

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

 

 

 


Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

(b) As part of the transaction described in Item 8.01 below, Charles Drucker resigned as the Executive Vice President of Fifth Third Bancorp (“Fifth Third”) on June 30, 2009 and assumed the role of President and Chief Executive Officer of Fifth Third Processing Solutions, LLC (“FTPS LLC”).

 

Item 7.01 Regulation FD Disclosure.

A copy of the press release announcing the matters discussed below in Item 8.01 is attached hereto as Exhibit 99.1 and is incorporated herein. The information in this Item 7.01 and Exhibit 99.1 attached hereto shall not be deemed filed for purposes of Section 18 of the Securities Act of 1934, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, except as shall be expressly set forth by specific reference.

 

Item 8.01 Other Events.

As previously announced, Fifth Third and Advent International (“Advent”) entered into a master investment agreement pursuant to which Advent would purchase a majority interest in Fifth Third’s processing business. On June 30, 2009, the parties amended the master investment agreement to finalize the closing terms (as amended, the “Investment Agreement”) and consummated the sale transaction.

As part of the transaction, Fifth Third’s Ohio bank contributed assets to FTPS LLC, a wholly owned subsidiary of a limited liability company (“Holdco”) in which a company owned by Advent (“Buyer”) purchased an approximate 51% interest for approximately $560 million (including a similar percentage interest in another subsidiary of Fifth Third that holds foreign assets of the business). Fifth Third retained the remaining approximate 49% interest in Holdco and also received warrants to purchase additional interests in Holdco of up to approximately 10% of the equity of the new company on a fully-diluted basis that are exercisable in certain circumstances. [Additionally, an approximate .1% interest in Holdco was acquired by the CEO of FTPS LLC. ]

FTPS LLC also entered into an Amendment and Restatement Agreement and Reaffirmation and assumed an amended Loan Agreement and several term notes, which are secured by the assets of FTPS LLC, and are payable to Fifth Third’s Michigan Bank and other subsidiaries of Fifth Third in an aggregate amount of $1.25 billion. Fifth Third’s Michigan bank is also providing FTPS LLC with a $125 million revolving credit facility.

Under the terms of the amended and restated limited liability company agreement of Holdco (the “Operating Agreement”), Advent will name 5 Holdco directors and Fifth Third will name 4 Holdco directors. Each party also has limited pre-emptive rights and is


restricted from selling its interests in certain circumstances. Also, under the Operating Agreement, Advent has the right to require Fifth Third to purchase its interests in Holdco upon the occurrence of certain events.

Holdco and its members also entered into a registration rights agreement (the “Registration Rights Agreement”) pursuant to which, among other things, Fifth Third has the right beginning three years from today to cause Holdco (or a successor entity formed for such purpose) to register its securities in a public offering.

The foregoing descriptions of the Investment Agreement, the Warrant Agreement, the Amendment and Restatement Agreement and Reaffirmation, the Loan Agreement, the Registration Rights Agreement and the Amended and Restated Limited Liability Company Agreement, are qualified in their entirety by reference to the full text of those documents, copies of which are filed as exhibits hereto and are fully incorporated herein by reference.

 

Item 9.01 Financial Statements and Exhibits.

 

(c) Exhibits:

 

  2.1 Master Investment Agreement (excluding exhibits and schedules) dated as of March 27, 2009 and amended as of June 30, 2009, among Fifth Third Bank, Fifth Third Financial Corporation, Advent-Kong Blocker Corp., FTPS Holding, LLC and Fifth Third Processing Solutions, LLC.

 

  10.1 Warrant dated June 30, 2009 issued by FTPS Holding, LLC to Fifth Third Bank.

 

  10.2 Amended & Restated Limited Liability Company Agreement (excluding certain exhibits) dated as of June 30, 2009 among Advent-Kong Blocker Corp., Fifth Third Bank, FTPS Partners, LLC, JPDN Enterprises, LLC and FTPS Holding, LLC.

 

  10.3 Amendment and Restatement Agreement and Reaffirmation (excluding certain schedules) dated as of June 30, 2009 among Fifth Third Processing Solutions, LLC, FTPS Holding, LLC, Card Management Company, LLC, Fifth Third Holdings, LLC and Fifth Third Bank.

 

  10.4 Registration Rights Agreement dated as of June 30, 2009 among Advent-Kong Blocker Corp., Fifth Third Bank, FTPS Partners, LLC, JPDN Enterprises, LLC and FTPS Holding, LLC

 

  99.1 Press release dated June 30, 2009

Fifth Third will furnish supplementally a copy of any omitted schedule to the Commission upon request

 


FORWARD-LOOKING STATEMENTS

This report contains statements that we believe are “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Rule 175 promulgated thereunder, and Section 21E of the Securities Exchange Act of 1934, as amended, and Rule 3b-6 promulgated thereunder. These statements relate to our financial condition, results of operations, plans, objectives, future performance or business. They usually can be identified by the use of forward-looking language such as “will likely result,” “may,” “are expected to,” “is anticipated,” “estimate,” “forecast,” “projected,” “intends to,” or may include other similar words or phrases such as “believes,” “plans,” “trend,” “objective,” “continue,” “remain,” or similar expressions, or future or conditional verbs such as “will,” “would,” “should,” “could,” “might,” “can,” or similar verbs. You should not place undue reliance on these statements, as they are subject to risks and uncertainties, including but not limited to the risk factors set forth in our most recent Annual Report on Form 10-K and our most recent quarterly report on Form 10-Q. When considering these forward-looking statements, you should keep in mind these risks and uncertainties, as well as any cautionary statements we may make. Moreover, you should treat these statements as speaking only as of the date they are made and based only on information then actually known to us.

There are a number of important factors that could cause future results to differ materially from historical performance and these forward-looking statements. Factors that might cause such a difference include, but are not limited to: (1) general economic conditions and weakening in the economy, specifically the real estate market, either nationally or in the states in which Fifth Third, one or more acquired entities and/or the combined company do business, are less favorable than expected; (2) deteriorating credit quality; (3) political developments, wars or other hostilities may disrupt or increase volatility in securities markets or other economic conditions; (4) changes in the interest rate environment reduce interest margins; (5) prepayment speeds, loan origination and sale volumes, charge-offs and loan loss provisions; (6) Fifth Third’s ability to maintain required capital levels and adequate sources of funding and liquidity; (7) maintaining capital requirements may limit Fifth Third’s operations and potential growth; (8) changes and trends in capital markets; (9) problems encountered by larger or similar financial institutions may adversely affect the banking industry and/or Fifth Third (10) competitive pressures among depository institutions increase significantly; (11) effects of critical accounting policies and judgments; (12) changes in accounting policies or procedures as may be required by the Financial Accounting Standards Board (FASB) or other regulatory agencies; (13) legislative or regulatory changes or actions, or significant litigation, adversely affect Fifth Third, one or more acquired entities and/or the combined company or the businesses in which Fifth Third, one or more acquired entities and/or the combined company are engaged; (14) ability to maintain favorable ratings from rating agencies; (15) fluctuation of Fifth Third’s stock price; (16) ability to attract and retain key personnel; (17) ability to receive dividends from its subsidiaries; (18) potentially dilutive effect of future acquisitions on current shareholders’ ownership of Fifth Third; (19) effects of accounting or financial results of one or more acquired entities; (20) difficulties in separating and streamlining the operations of the LLC;


(21) lower than expected gains related to any sale or potential sale of businesses; (22) other difficulties in separating the merchant acquiring and financial institutions businesses from Fifth Third; (23) loss of income from any sale or potential sale of businesses that could have an adverse effect on Fifth Third’s earnings and future growth; (24) ability to secure confidential information through the use of computer systems and telecommunications networks; and (25) the impact of reputational risk created by these developments on such matters as business generation and retention, funding and liquidity. You should refer to our periodic and current reports filed with the Securities and Exchange Commission, or “SEC,” for further information on other factors which could cause actual results to be significantly different from those expressed or implied by these forward-looking statements.

SIGNATURES

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

 

     

FIFTH THIRD BANCORP

(Registrant)

July 2, 2009       /s/ ROSS J. KARI
      Ross J. Kari
     

Executive Vice President and Chief

Financial Officer

Exhibit 2.1

 

 

 

MASTER INVESTMENT AGREEMENT

among

FIFTH THIRD BANK,

FIFTH THIRD FINANCIAL CORPORATION,

ADVENT-KONG BLOCKER CORP.,

FTPS HOLDING, LLC

and

FIFTH THIRD PROCESSING SOLUTIONS, LLC

Dated March 27, 2009

As amended June 30, 2009

 

 

 


TABLE OF CONTENTS

 

ARTICLE I
DEFINITIONS AND TERMS

Section 1.1

   Certain Definitions    4

Section 1.2

   Other Terms    21

Section 1.3

   Other Definitional and Interpretational Provisions    21
ARTICLE II
RECAPITALIZATION AND PURCHASE AND SALE OF LLC INTERESTS

Section 2.1

   Amendment and Recapitalization    22

Section 2.2

   Assumption of Liabilities; Excluded Liabilities    24

Section 2.3

   Purchase and Sale of LLC Interests and the Canadian Sub    25

Section 2.4

   Pre-Closing Adjustments    26

Section 2.5

   Post-Closing True-Up    27

Section 2.6

   Closing    28

Section 2.7

   Deliveries by Buyer    29

Section 2.8

   Deliveries by Seller and FTFC    29

Section 2.9

   Deliveries by Opco and Holdco    31

Section 2.10

   Nonassignability of Assets    31

Section 2.11

   Transferred Contracts Adjustment    32

Section 2.12

   Asset Identification Process    34
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER

Section 3.1

   Organization and Qualification; Capitalization    35

Section 3.2

   Authorization    38

Section 3.3

   Consents and Approvals    38

Section 3.4

   Non-Contravention    39

Section 3.5

   Binding Effect    39

Section 3.6

   Financial Statements    39

Section 3.7

   Litigation and Claims    40

Section 3.8

   Employees and Employee Benefits    41

Section 3.9

   Compliance with Laws    42


Table of Contents

(Continued)

 

Section 3.10

   Intellectual Property    42

Section 3.11

   Labor    46

Section 3.12

   Transferred Contracts    46

Section 3.13

   Absence of Changes    47

Section 3.14

   Sufficiency of Assets    48

Section 3.15

   Title to Property    48

Section 3.16

   Absence of Liabilities    48

Section 3.17

   Finders’ Fees    48

Section 3.18

   Taxes    48

Section 3.19

   Environmental Matters    50

Section 3.20

   Customers    51

Section 3.21

   Suppliers    52

Section 3.22

   Ownership and Operations of the Companies    52

Section 3.23

   Related Party Transactions    53

Section 3.24

   Regulatory Matters; Security Breaches; Outages    53

Section 3.25

   Master Lease Agreement    54

Section 3.26

   Transition Service Agreement    54

Section 3.27

   Master Services Agreement    54

Section 3.28

   Reserved    54

Section 3.29

   Referral Agreement    54

Section 3.30

   Sponsorship Agreement    54

Section 3.31

   Representations under the Ancillary Agreements    55

Section 3.32

   Insurance    55

Section 3.33

   Solvency    55

Section 3.34

   No Other Representations or Warranties    55
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER

Section 4.1

   Organization and Qualification    55

Section 4.2

   Authorization    56

Section 4.3

   Consents and Approvals    56

Section 4.4

   Non-Contravention    56


Table of Contents

(Continued)

 

Section 4.5

   Binding Effect    56

Section 4.6

   Finders’ Fees    57

Section 4.7

   Litigation and Claims    57

Section 4.8

   Equity Commitments    57

Section 4.9

   No Other Representations or Warranties    57
ARTICLE V
COVENANTS

Section 5.1

   Access and Information    57

Section 5.2

   Conduct of Business    58

Section 5.3

   Reasonable Best Efforts; Transition Plan; HSR    61

Section 5.4

   Tax Matters    62

Section 5.5

   Employee and Benefits Matters    65

Section 5.6

   Ancillary Agreements    69

Section 5.7

   Non-Solicitation; Non-Compete    69

Section 5.8

   Further Assurances    71

Section 5.9

   Licensed Intellectual Property    71

Section 5.10

   Confidentiality    71

Section 5.11

   Notification    71

Section 5.12

   Financial Statements    72

Section 5.13

   Applicable Contracts    73

Section 5.14

   Transition Service    73

Section 5.15

   Equity Commitments    73

Section 5.16

   Capital Leases    73

Section 5.17

   Canadian Sub    73

Section 5.18

   Certain Actions    74
ARTICLE VI
CONDITIONS TO CLOSING

Section 6.1

   Conditions to the Obligations of the Parties    74

Section 6.2

   Conditions to the Obligations of Buyer    75

Section 6.3

   Conditions to the Obligations of Seller, FTFC and the Companies    75


Table of Contents

(Continued)

 

ARTICLE VII
SURVIVAL; INDEMNIFICATION; CERTAIN REMEDIES

Section 7.1

   Survival    76

Section 7.2

   Indemnification by Seller    76

Section 7.3

   Indemnification by Buyer    78

Section 7.4

   Indemnification by the Companies    78

Section 7.5

   Third-Party Claim Indemnification Procedures    79

Section 7.6

   Direct Claims    80

Section 7.7

   Consequential Damages    80

Section 7.8

   Adjustments to Losses    81

Section 7.9

   Payments    81

Section 7.10

   Characterization of Indemnification Payments    82

Section 7.11

   Mitigation    82

Section 7.12

   Remedies    82
ARTICLE VIII
TERMINATION

Section 8.1

   Termination    82

Section 8.2

   Effect of Termination    83
ARTICLE IX
MISCELLANEOUS

Section 9.1

   Specific Performance    83

Section 9.2

   Notices    83

Section 9.3

   Amendment; Waiver    86

Section 9.4

   No Assignment or Benefit to Third Parties    86

Section 9.5

   Entire Agreement    87

Section 9.6

   Fulfillment of Obligations    87

Section 9.7

   Public Disclosure    87

Section 9.8

   Expenses    87

Section 9.9

   Personal Liability    87

Section 9.10

   Schedules    88


Table of Contents

(Continued)

 

Section 9.11

   Governing Law; Submission to Jurisdiction; Selection of Forum; Waiver of Trial by Jury    88

Section 9.12

   Counterparts    88

Section 9.13

   Headings    88

Section 9.14

   Severability    88


Table of Contents

(Continued)

EXHIBITS AND SCHEDULES

 

Exhibits      
Exhibit 1.1(a)(A)    -    Form of BIN/ICA Sponsorship Agreement
Exhibit 1.1(a)(B)    -    Form of LLC Agreement
Exhibit 1.1(a)(C)    -    Form of IP License Agreement
Exhibit 1.1(a)(D)    -    Form of Master Services Agreement
Exhibit 1.1(a)(E)    -    Form of Master Lease Agreement
Exhibit 1.1(a)(F)    -    Form of Master Sublease Agreement
Exhibit 1.1(a)(G)    -    Form of Loan Agreement
Exhibit 1.1(a)(H)    -    Form of Referral Agreement
Exhibit 1.1(a)(I)    -    Form of Registration Rights Agreement
Exhibit 1.1(a)(J)    -    Form of Trademark License Agreement
Exhibit 1.1(a)(K)    -    Form of Transition Service Agreement
Exhibit 1.1(a)(L)    -    Form of Warrant
Exhibit 1.1(a)(M)    -    Form of TransActive Shareholders’ Agreement
Exhibit 2.4(a)    -    Applicable Accounting Principles;
      Closing Working Capital Calculation
Exhibit 5.2(a)    -    Capital Expenditure Plan
Schedules      
Schedule A    -    Services Not Performed for Seller by FTPS Division or CMC
Schedule 1.1(a)    -    Assumed Liabilities
Schedule 1.1(b)    -    Base Working Capital
Schedule 1.1(c)    -    Excluded Assets
Schedule 1.1(d)    -    Excluded Services
Schedule 1.1(e)    -    Seller’s Knowledge
Schedule 1.1(f)    -    Transferred Copyrights
Schedule 1.1(g)    -    Transferred Patents
Schedule 1.1(h)    -    Transferred Software
Schedule 1.1(i)    -    Transferred Trademarks
Schedule 2.11    -    Certain Definitions
Schedule 2.12    -    Asset Identification Plan
Schedule 3.3(a)    -    Seller Required Approvals
Schedule 3.3(b)    -    Company Required Approvals
Schedule 3.3(c)    -    Other Consents and Approvals
Schedule 3.6(a)    -    Financial Statements
Schedule 3.6(b)    -    Two-Month Financials
Schedule 3.6(c)    -    Cost Allocation Methods
Schedule 3.6(d)    -    Off-Balance Sheet Transactions
Schedule 3.7    -    Litigation and Claims
Schedule 3.8(a)    -    Benefit Plans
Schedule 3.8(d)    -    Benefit Plans with Post-Employment Benefits
Schedule 3.8(e)    -    Benefit Plans Affected by Transactions
Schedule 3.9    -    Compliance with Laws


Table of Contents

(Continued)

 

Schedule 3.10(a)    -    Intellectual Property
Schedule 3.10(b)    -    Late or Delinquent Intellectual Property Filings
Schedule 3.10(e)    -    Agreements Limiting Transferability of Intellectual Property
Schedule 3.10(f)    -    Intellectual Property and Technology Affected by Transactions
Schedule 3.10(j)    -    Transferred Software
Schedule 3.10(l)    -    Security Breaches
Schedule 3.10(m)    -    Privacy Policies
Schedule 3.12    -    Transferred Contract Matters
Schedule 3.13    -    Absence of Changes
Schedule 3.14(a)    -    Sufficiency of Assets
Schedule 3.14(b)    -    Certain Transferred Assets
Schedule 3.16    -    Absence of Liabilities
Schedule 3.20(a)    -    Customers
Schedule 3.20(b)    -    Customer Termination Notices
Schedule 3.20(c)    -    Customer Acquisition/Renewal Costs
Schedule 3.21(a)    -    Suppliers
Schedule 3.21(b)    -    Supplier Termination Notices
Schedule 3.23    -    Related Party Transactions
Schedule 3.24(a)    -    Regulatory Matters
Schedule 3.24(b)    -    Security Breaches
Schedule 3.24(c)    -    Security Breaches Requiring Notification
Schedule 3.32    -    Loss Run for Certain Insurance Claims
Schedule 4.3    -    Buyer Required Approvals
Schedule 4.7    -    Buyer Litigation and Claims
Schedule 5.2(b)(ii)    -    Interim Period Acquisition or Disposition of Transferred Assets
Schedule 5.3(b)(i)    -    Transition Plan Term Sheet
Schedule 5.3(b)(ii)    -    Steering Committee Designees
Schedule 5.3(b)(iii)    -    Holdco Board of Directors Designees
Schedule 5.3(b)(iv)    -    Seller’s Replacement Designees
Schedule 5.5(a)    -    Applicable Employees
Schedule 5.16    -    Capital Leases
Schedule 7.2    -    Certain Liabilities


MASTER INVESTMENT AGREEMENT, dated March 27, 2009, as amended June 30, 2009, among (i) Fifth Third Bank, a bank chartered under the laws of the State of Ohio (“ Seller ”), (ii) Fifth Third Financial Corporation, a corporation organized under the laws of the State of Ohio (“ FTFC ”), (iii) Advent-Kong Blocker Corp., a corporation organized under the laws of the State of Delaware (“ Buyer ”), (iv) FTPS Holding, LLC (f/k/a Fifth Third Processing Solutions, LLC), a limited liability company formed under the laws of the State of Delaware (“ Holdco ”), and (v) Fifth Third Processing Solutions, LLC (f/k/a FTPS Opco, LLC), a limited liability company formed under the laws of the State of Delaware (“ Opco ”) (the “ Agreement ”). Holdco and Opco are referred to in this Agreement collectively as the “ Companies .” Other capitalized terms used in this Agreement are defined in Section 1.1 below.

W I T N E S S E T H:

WHEREAS, Seller is, directly and indirectly through its wholly owned subsidiary, Card Management Corporation, an Indiana corporation and wholly-owned subsidiary of Seller (“ CMC ”), engaged in the Fifth Third Processing Solutions division of Seller and CMC, including (i) merchant processing services (including payment authorization, clearing and settlement for credit, debit, check authorization and truncation), (ii) gift, private label, stored value and prepaid card processing, (iii) electronic funds transfer services to business customers (including debt and ATM card processing and driving services, PIN and signature debit transaction authorization, settlement and exception processing), (iv) payment and ATM network switching services (including the Jeanie network), (v) credit and debit card production, activation, replacement and related management services (including on an outsourced basis), (vi) certain payments-related reselling services, (vii) other value added services (including fraud detection, prevention and management services) relating to the foregoing, (viii) promotional messaging service relating to the foregoing, (ix) debit portfolio management services related to the foregoing, and (x) certain data processing services (collectively, the “ Processing Business ”) (the Processing Business together with the business conducted by FTFC indirectly through the Canadian Sub, and other than (i) underwriting and issuing credit cards branded by Seller and (ii) such services as are provided by Seller to itself and/or its customers and which are either (A) not performed for Seller by the Fifth Third Processing Solutions division of Seller or CMC as of the date of this Agreement and set forth on Schedule A or (B) not reflected as services provided by the Fifth Third Processing Solutions division of Seller in the Historical Financial Statements, is referred to in this Agreement collectively as the “ Business ”);

WHEREAS, prior to the original execution of this Agreement:

(i) Seller formed Holdco on December 11, 2008, Opco on March 25, 2009 and FTPS Partners, LLC, a limited liability company organized under the laws of the State of Delaware (“ FTPS Partners ”) on February 24, 2009;

(ii) On February 24, 2009, Seller contributed $9,800,000 of cash to Holdco in exchange for 98% of the limited liability company interests therein and CMC contributed $200,000 of cash to Holdco in exchange for 2% of the limited liability company interests therein, and each of Seller and CMC entered into a limited liability company agreement of Holdco (the “ Preclosing Holdco LLC Agreement ”);

 

1


(iii) On March 3, 2009, Seller contributed $100,000 of cash to FTPS Partners in exchange for 100% of the interests in FTPS Partners;

(iv) Seller, FTPS Partners and CMC entered into a contribution agreement pursuant to which Seller shall contribute 100% of the equity interest in CMC to FTPS Partners, thereafter CMC shall distribute its interest in Holdco to FTPS Partners and thereafter CMC shall be converted into an Indiana limited liability company (“ CMC LLC ”) (the “CMC Contribution Agreement”);

(v) Seller, FTPS Partners and Holdco entered into a contribution agreement (the “ Holdco Contribution Agreement ”) pursuant to which:

(A) Seller agreed to contribute all of the equity interests in Opco and cash in an aggregate amount equal to $89,175,000, taking into account all cash previously contributed by Seller and CMC to Holdco (the “ Cash Contribution ”), to Holdco including (A) $5,000,000, which Holdco will at Closing pay to Buyer as reimbursement for a portion of Buyer’s transaction expenses (the “ Transaction Expenses Contribution ”), and (B) $75,000,000 to be used for any costs associated with establishing Holdco as a stand-alone entity and any other matters covered by the Transition Plan, including costs related to separate facilities, systems and infrastructure, redundancy costs or costs associated with hiring new personnel, and any cash needs associated with daily working capital and cash settlement requirements (the “ Transition Infrastructure Contribution ”);

(B) FTPS Partners agreed to contribute 100% of the equity interests in CMC LLC to Holdco; and

(C) After Seller has contributed Opco to Holdco, Holdco agreed to contribute 100% of the equity interests in CMC LLC to Opco, along with all of the cash held by Holdco, other than the Transaction Expenses Contribution, with the Transition Infrastructure Contribution remaining in a segregated separate account to be used solely for any costs associated with establishing the Companies as stand-alone entities and any other matters covered by the Transition Plan until the end of the Transition Period, at which time, Holdco may use any amounts remaining in such account for its general corporate purposes;

(v) Seller contributed $100,000 in cash to Opco in exchange for membership interests therein, entered into the limited liability company agreement of Opco (the “ Preclosing Opco LLC Agreement ”); and

(vi) Seller entered into a contribution agreement pursuant to which it agreed to contribute Business-related assets to Opco (the “ Opco Contribution Agreement ,” and together with the Holdco Contribution Agreement and the CMC Contribution Agreement, the “ Contribution Agreements ”).

WHEREAS, after execution of this Agreement, but at least one day prior to Closing:

(i) Seller shall borrow $1.25 billion under the Notes;

 

2


(ii) Seller shall contribute its Business-related assets (which, for the sake of clarity, do not include assets of the Canadian Sub) to Opco and Opco shall assume Seller’s obligations under the Note;

(iii) Seller shall contribute 100% of its interests in Opco (collectively, the “ Opco LLC Interests ”) and the cash amount described above to Holdco;

(iv) Seller shall contribute 100% of the equity interests in CMC to FTPS Partners, and thereafter CMC shall distribute its interest in Holdco to FTPS Partners and thereafter CMC shall be converted into CMC LLC;

(v) FTPS Partners shall contribute 100% of the equity interests in CMC LLC to Holdco;

(vi) Holdco shall contribute the equity interests in CMC LLC it received from FTPS Partners and the cash it received from Seller (other than the Transaction Expenses Contribution) to Opco;

WHEREAS, as part of and at the Closing, inter alia :

(i) Seller and FTPS Partners shall cause the Preclosing Holdco LLC Agreement to be amended and restated in its entirety in the form of the Holdco LLC Agreement;

(ii) Holdco shall cause the Preclosing Opco LLC Agreement to be amended and restated in its entirety in the form of the Opco LLC Agreement;

(iii) Seller shall sell, transfer and convey to Buyer, and Buyer shall purchase from Seller, 50,930,455 Class A Units; and

(iv) FTFC shall sell, transfer and convey to Buyer, and Buyer shall purchase from FTFC, 50,930,455 shares of common stock of TransActive Ecommerce Solutions Inc., a corporation organized under the federal laws of Canada (the “ Canadian Sub ”);

WHEREAS, Holdco is classified as a partnership for U.S. federal income tax purposes and Opco is properly disregarded as an entity separate from Seller for U.S. federal income tax purposes; and

WHEREAS, Buyer desires to purchase from Seller, and Seller desires to sell to Buyer, a 50.93% interest in Holdco, as more particularly set forth in this Agreement.

NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants and undertakings contained in this Agreement, and for other good and valuable consideration, the parties agree as follows:

 

3


ARTICLE I

DEFINITIONS AND TERMS

Section 1.1 Certain Definitions . As used in this Agreement, the following terms have the meanings set forth below (including for purposes of the Recitals):

2008 Net Revenues ” means, with respect to a Transferred Contract, (i) the Net Revenue generated by a Customer that is the counterparty to such Transferred Contract during calendar year 2008, or (ii) with respect to any Customer that was a counterparty to such Transferred Contract that was not a Customer for the entirety of the 2008 calendar year, the annualized Net Revenue generated by such Customer during calendar year 2008.

A Note ” has the meaning set forth in the definition of “Notes.”

A Note Amount ” means $950,000,000 or such other amount as Seller determines prior to the consummation of the transactions described in Section 2.1(a).

Absent Employee ” has the meaning set forth in Section 5.5(a).

Acceptable Adjustments ” has the meaning set forth in Section 3.25.

Acceptable Increases ” has the meaning set forth in Section 3.25.

Adjustment Date ” has the meaning set forth in Section 2.11(a).

Affiliate ” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, such Person as of the date on which, or at any time during the period for which, the determination of affiliation is being made (it being understood and agreed that, for purposes of this Agreement, the Companies, CMC LLC and the Canadian Sub shall only be deemed to be Affiliates of Seller and FTFC with respect to the period occurring on or prior to the Closing and with respect to the period occurring thereafter shall be deemed to be Affiliates of Buyer). For purposes of this definition, the term “control” (including the correlative meanings of the terms “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such Person, whether through the ownership of voting securities or by contract or otherwise.

Aggregate Price Adjustment ” has the meaning set forth in Section 2.11(c).

Agreement ” means this Master Investment Agreement, as amended or supplemented from time to time in accordance with its terms.

Allocated Services and Assets ” means those services, occupancy, employees, capital charges and assets used by the Business and covered by the “Allocated Expense” line item in the Audited Financial Statements, other than such services, occupancy, employees, capital charges and assets that were excluded in Schedule 3.6(c).

 

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Ancillary Agreements ” means collectively those agreements, substantially in the form or consistent with the term sheet, as the case may be, attached hereto as Exhibits 1.1(a)(A) – (M), respectively, to be entered into at Closing.

Applicable Accounting Principles ” has the meaning set forth in Section 2.4(a).

Applicable Contract ” has the meaning set forth in Section 2.11(a).

Applicable Employees ” means the employees of the Business as identified by name, job title and job site location on Schedule 5.5(a), which schedule also sets forth the current base salary or annual wages, as applicable, annual cash bonus opportunity plans, as applicable, stock based incentive plans and years of credited service with Seller and its Affiliates for each such Applicable Employee; provided , that Seller shall furnish to Buyer an updated Schedule 5.5(a) not later than five Business Days prior to the Closing Date, which schedule shall indicate any newly hired employee of the Business and any employee of the Business whose employment has terminated following the date hereof.

Applicable Renegotiation Price Adjustment ” has the meaning set forth in Section 2.11(b)(iii).

Applicable Termination Price Adjustment ” has the meaning set forth in Section 2.11(a)(ii).

Approved Replacement ” has the meaning set forth in Section 5.3(b).

Asset Identification Process ” has the meaning set forth in Section 2.12.

Assumed Liabilities ” means (i) all current liabilities of Seller or any of its Affiliates included in the calculation of the Closing Working Capital to the extent of the amounts that are set forth on or reserved for on the face of the Closing Statement, other than any Liabilities for Taxes (except for Taxes for which the Companies are expressly responsible pursuant to Section 5.4), (ii) all Liabilities of the Business under the Transferred Contracts (excluding the Transferred Contracts of the Canadian Sub), other than those relating to or arising from any obligation under any such Transferred Contract by Seller or its Affiliates that arose prior to the Closing (regardless of whether such Liabilities are discovered and/or identified prior to or after the Closing), except to the extent such obligation has been reflected in the Historical Financial Statements or is included in the calculation of Closing Working Capital, (iii) any other Liabilities of the Business set forth on Schedule 1.1(a) and (iv) any other Liabilities of the Business that the Companies have expressly assumed or agreed to assume under this Agreement and the Ancillary Agreements, provided , however , that Assumed Liabilities shall not include any Canadian Liabilities.

Audited Financial Statements ” has the meaning set forth in Section 3.6.

B Note ” has the meaning set forth in the definition of “Notes.”

B Note Amount ” means $1,250,000,000, minus the A Note Amount.

 

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Base Working Capital Value ” means the applicable amount corresponding to the month in which the Closing occurs set forth on Schedule 1.1(b).

Benefit Plans ” means each “employee benefit plan” (as defined in Section 3(3) of ERISA) and each other material profit-sharing, bonus, stock option, stock purchase, restricted stock units/shares, stock ownership, pension, retirement, severance, deferred compensation, excess benefit, supplemental unemployment, post-retirement medical or life insurance, welfare, incentive, sick leave or other leave of absence, short- or long-term disability, salary continuation, medical, hospitalization, life insurance, other insurance plan, or other employee benefit plan, program or arrangement, including individual employment, severance, change of control or similar agreements, maintained, sponsored or contributed to (or for which a contribution obligation exists) by Seller or its Affiliates (including affiliates within the meaning of Code Sections 414(b), (c) and (m)).

BIN/ICA Sponsorship Agreement ” means that certain Clearing, Settlement and Sponsorship Services Agreement, substantially in the form attached hereto as Exhibit 1.1(a)(A).

Business ” has the meaning set forth in the Recitals.

Business Day ” means any day other than a Saturday, a Sunday or a day on which banks in Cincinnati, Ohio or New York, New York are authorized or obligated by Law or executive order to close.

Buyer ” has the meaning set forth in the Preamble.

Buyer Indemnified Parties ” has the meaning set forth in Section 7.2(a).

Buyer Required Approvals ” means all consents, approvals, waivers, authorizations, notices and filings from or with a Government Entity that are required to be and are listed on Schedule 4.3.

Canadian Financial Statements ” has the meaning set forth in Section 5.12(d).

Canadian Liabilities ” means Liabilities of the Canadian Sub.

Canadian Non-Indemnifiable Liabilities ” means (i) all Canadian Liabilities consisting of Liabilities under any agreements, contracts, leases and subleases, purchase orders, arrangements, commitments and licenses that are (A) primarily related to the Business as of the Closing or (B) related to any Intellectual Property or Technology primarily used, held for use or acquired or developed for use in the Business as currently conducted and proposed to be conducted by Seller and its Affiliates, other than those relating to or arising from any performance that occurred prior to the Closing, (ii) all Canadian Liabilities arising out of, relating to or otherwise in respect of the Canadian Sub’s business following the Closing, and (iii) all Liabilities for Taxes on the earnings of the Canadian Sub from April 1, 2009 through the Closing (provided such earnings were not distributed out to its shareholders during such period).

Canadian Sub ” has the meaning set forth in the Recitals.

 

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Canadian Sub Cash Purchase Price ” has the meaning set forth in Section 2.3(f) .

Cap ” has the meaning set forth in Section 7.2(b).

Capital Lease ” has the meaning set forth in Section 5.16.

Cash ” means the amount of cash and bank deposits as reflected in the bank statements, and certificates of deposit, less escrowed amounts or other restricted cash balances and less the amounts of any unpaid checks, drafts and wire transfers issued on or prior to the date of determination, in each case, calculated in accordance with the Applicable Accounting Principles.

Cash Contribution ” has the meaning set forth in the Recitals.

Cash Purchase Price ” has the meaning set forth in Section 2.3(f).

Catastrophic Data Breach ” means any actual breach of security of, or unauthorized access to or acquisition, use, loss, destruction, compromise or disclosure of any personal information, confidential or proprietary data or any other such information maintained or stored by, the Business (other than with respect to any such breaches occurring in systems maintained by customers of the Business or other third parties (other than vendors or contractors engaged or retained by the Business) for which the Business is not at fault) involving data of customers, suppliers, consumers or other similarly situated individuals that affects more than 1 million individuals or individual accounts.

Chosen Courts ” has the meaning set forth in Section 9.11.

Claim Notice ” has the meaning set forth in Section 7.5(a).

Class A Units ” has the meaning set forth in the Holdco LLC Agreement.

Class B Units ” has the meaning set forth in the Holdco LLC Agreement.

Closing ” means the closing of the Sale Transaction.

Closing Date ” means the date on which the Closing occurs.

Closing Statement ” has the meaning set forth in Section 2.5(a).

Closing Working Capital ” means the difference between (i) the current assets of the Business that constitute Transferred Assets, minus (ii) the current liabilities of the Business (for the avoidance of doubt, which do not include any liabilities for Taxes) other than the current liabilities of the Canadian Sub, in each case, as of the close of business on the Closing Date and calculated in accordance with the Applicable Accounting Principles, except with respect to vacation accruals, as set forth in Section 2.5(a).

CMC ” has the meaning set forth in the Recitals.

 

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CMC Business ” means, prior to the conversion of CMC into CMC LLC, CMC, and following such conversion, CMC LLC.

CMC Contribution Agreement ” has the meaning set forth in the Recitals.

CMC LLC ” has the meaning set forth in the Recitals.

CMC LLC Agreement ” means the Limited Liability Company of CMC LLC.

CMC LLC Interests ” means the limited liability company interests of CMC LLC.

COBRA Coverage ” means the health continuation coverage required by Section 4980B of the Code and Part 6 of Title I of ERISA and the relevant provisions of the American Recovery and Reinvestment Act of 2009.

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

Commitment ” has the meaning set forth in Section 4.8.

Companies ” have the meanings set forth in the Preamble.

Company Plans ” has the meaning set forth in Section 5.5(b).

Company Required Approvals ” means all consents, approvals, waivers, authorizations, notices and filings from or with a Government Entity that are required to be and are listed on Schedule 3.3(b).

Confidentiality Agreement ” means the Confidentiality Agreement between Seller and a certain Affiliate of Buyer, dated July 17, 2008.

Consent Payment ” has the meaning set forth in Section 2.11(e).

Consideration ” has the meaning set forth in Section 5.4(f).

Contribution ” has the meaning set forth in Section 2.1(b).

Contribution Agreements ” has the meaning set forth in the Recitals.

Copyrights ” has the meaning set forth in the “Intellectual Property” definition.

CPA Firm ” means an internationally recognized “Big Four” firm of independent certified public accountants designated jointly by Seller and Buyer.

Customer ” means a Person who is a customer of the Business.

Deductible ” has the meaning set forth in Section 7.2(b).

Direct Claim ” has the meaning set forth in Section 7.6.

 

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Disclosing Party ” has the meaning set forth in Section 5.10.

EFT Business ” has the meaning set forth in Section 3.6.

Encumbrance ” means any lien, pledge, charge, claim, encumbrance, security interest, option, mortgage, easement, lease, license, right of first refusal, proxy, voting trust, transfer restriction or other restriction of any kind.

Environmental Claim ” has the meaning set forth in Section 3.19(b).

Environmental Laws ” has the meaning set forth in Section 3.19(a).

Equipment Assets ” means any infrastructure asset (including all forms of hardware, information technology systems, mainframes, servers, PCs, computer systems, networking and telecommunications equipment, routers, switches, storage devices (SAN, NAS), tape and back-up devices, printers and other peripherals, mail-related equipment, power supplies, cabling, firewalls, security hardware and the like), other than any Intellectual Property.

Equity Commitments ” has the meaning set forth in Section 4.8.

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

Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.

Excluded Assets ” means (i) all furniture, furnishings, equipment, computers, tools and other tangible personal property listed on Schedule 1.1(c), (ii) all trade accounts and notes receivable and other miscellaneous receivables of the Business listed on Schedule 1.1(c), (iii) all agreements, contracts, leases and subleases, purchase orders, arrangements, commitments and licenses listed on Schedule 1.1(c), (iv) Seller’s and its Affiliates’ rights under this Agreement, the Ancillary Agreements and those agreements governing Seller Leased Property, (v) all Intellectual Property listed on Schedule 1.1(c), (vi) (A) all books, ledgers, files, reports, plans, records, manuals and other materials (in any form or medium) other than the Transferred Books and Records and (B) Seller’s corporate organizational records and documents, (vii) all of Seller’s and its Affiliates’ rights under insurance policies, (viii) all rights in connection with and assets of Benefit Plans, (ix) all assets specifically excluded from the definition of Transferred Assets by virtue of the explicit limitations contained therein and (x) any other items listed on Schedule 1.1(c); it being understood that any assets identified through the Asset Identification Process as not being those that remain Excluded Assets shall, at the time of transfer pursuant to this Agreement or the Transition Plan, cease to be Excluded Assets and shall thereafter become Transferred Assets under this Agreement for all purposes.

Excluded Liabilities ” has the meaning set forth in Section 2.2(b).

Excluded Services ” means the services and corporate allocations set forth on Schedule 1.1(d).

 

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Financial/EFT Contracts ” means those Transferred Contracts with Customers of the EFT Business that require the consent of such Customers to transfer such contract to the Companies in connection with the Transactions and that are set forth on Schedule 3.3(c).

Financial/EFT Percentage ” has the meaning set forth in Schedule 2.11.

FTFC ” has the meaning set forth in the Preamble.

FTFC’s Knowledge ” or any similar phrase means the actual knowledge of any of persons set forth on Schedule 1.1(e), after due inquiry of the employees primarily responsible for the subject matter in question.

Fundamental Representations ” has the meaning set forth in Section 7.1.

GAAP ” means United States generally accepted accounting principles.

Government Antitrust Entity ” means any Government Entity with jurisdiction over the enforcement of any Antitrust Law.

Government Entity ” means any federal, state, local or foreign government, governmental subdivision, administrative body or other governmental or quasi-governmental agency, tribunal, court or other entity with competent jurisdiction, including any Government Antitrust Entity.

Governmental Authorizations ” means all licenses, permits, certificates and other authorizations and approvals related to the Transferred Assets or the Business and issued by or obtained from a Government Entity or Self-Regulatory Organization.

Historical Financial Statements ” has the meaning set forth in Section 3.6.

Holdco ” has the meaning set forth in the Preamble.

Holdco Cash Purchase Price ” has the meaning set forth in Section 2.3(d).

Holdco Contribution ” has the meaning set forth in Section 2.1(a)(C).

Holdco Contribution Agreement ” has the meaning set forth in the Recitals.

Holdco LLC Agreement ” means the Amended and Restated Limited Liability Company Agreement of Holdco substantially consistent with the term sheet attached hereto as Exhibit 1.1(a)(B).

Holdco LLC Interests ” means, collectively, the Class A Units, the Class B Units and, upon issuance pursuant to the Warrant, the Class C Units.

HSR Act ” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

Indemnified Parties ” has the meaning set forth in Section 7.2(a).

 

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Indemnifying Party ” has the meaning set forth in Section 7.5(a).

Indemnity Amount ” has the meaning set forth in Section 7.9.

Intellectual Property ” means all intellectual property rights, whether protected, created or arising under the Laws of the United States or any other jurisdiction or under any international convention, including all: (i) trademarks, service marks, brand names, Internet domain names, logos, symbols, trade dress, trade names, all applications and registrations for the foregoing, including all renewals and extensions of same, and all goodwill associated therewith and symbolized thereby (collectively, “ Trademarks ”), (ii) patents and the issuances, registrations, invention disclosures and applications therefor, including divisions, continuations, continuations-in-part, provisionals, renewal applications, and renewals, extensions, reexaminations and reissues and any patents issuing on any of the foregoing (collectively, “ Patents ”), (iii) trade secrets, know how and similar confidential information protected by the Uniform Trade Secrets Act or similar legislation (collectively, “ Trade Secrets ”), (iv) works of authorship in any media and the copyrights therein and thereto (including Software and other compilations of information), the registrations and applications therefor, and renewals, extensions, restorations and reversions thereof (collectively, “ Copyrights ”), (v) all intellectual property rights arising from or in respect of Technology, and (vi) all income, royalties, proceeds and rights to damages and other payments now or hereafter due or payable or able to be asserted under and with respect to any of the foregoing, including all rights to sue and recover at law or in equity for any past, present and future infringement, misappropriation, dilution, violation or other impairment thereof.

IP/Software License Agreement ” means the IP/Software License Agreement substantially in the form attached hereto as Exhibit 1.1(a)(C).

Law ” means any law, statute, ordinance, rule, regulation, code, Order, judgment, injunction or decree enacted, issued, promulgated, enforced or entered by a Government Entity or Self-Regulatory Organization (including, for the sake of clarity, any policy statement or interpretation that has the force of law with respect to any of the foregoing, and including common law).

Legal Proceeding ” means any judicial, administrative or arbitral actions (whether civil, criminal, administrative or otherwise), suits, demands, mediations, arbitrations, hearings, investigations, inquiries, investigations, proceedings or claims (including counterclaims) by or before a Government Entity.

Liabilities ” means any and all debts, guarantees, claims, damages, costs, expenses, the obligation to make a payment based on future earnings in connection with an acquisition, fines, penalties, liabilities, commitments and obligations of any kind, whether direct or indirect, whether fixed, contingent or absolute, matured or unmatured, liquidated or unliquidated, accrued or not accrued, asserted or not asserted, known or unknown, determined, determinable or otherwise, whenever or however arising (including, whether arising out of any contract or tort based on negligence or strict liability) and whether or not the same would be required by GAAP to be reflected in financial statements or disclosed in the notes thereto.

 

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LLC Agreements ” means the Holdco LLC Agreement and the Opco LLC Agreement, collectively.

Losses ” has the meaning set forth in Section 7.2(a).

Master Lease Agreement ” means the lease agreement between Opco and Seller pursuant to which Opco shall lease real property from Seller, substantially in the form attached hereto as Exhibit 1.1(a)(E).

Master Services Agreement ” means the agreement (including all addenda and schedules thereto) between Seller, as customer, and Opco, as service provider, substantially in the form attached hereto as Exhibit 1.1(a)(D).

Master Sublease Agreement ” means the sublease agreement between Opco and Seller pursuant to which Opco shall sublease real property from Seller, substantially in the form attached hereto as Exhibit 1.1(a)(F).

Material Adverse Effect ” means (a) any effect that is, or is reasonably likely to be, materially adverse to the business, assets, financial condition or results of operations of the Business or the Companies, taken as a whole, (b) the execution of any definitive agreement to consummate, or the consummation of, any change of control of Seller, any of its parent corporations or any of its depository institution Affiliates or any significant discussions or negotiations relating thereto except to the extent that the successor party thereto agrees in writing to assume all of the obligations of Seller or Seller’s Affiliate that is party to such transaction or such obligations are assumed as a matter of law, (c)(i) the execution of any definitive agreement to consummate, or the consummation of, any one or more transactions that results in any Government Entity owning, directly or indirectly, in the aggregate more than 20% of the Seller, any of its parent corporations or any of its depository institution Affiliates, and (ii) a change in (A) two of the Seller’s four designees to Holdco’s Board of Directors or (B) two of the Seller’s three designees to the Steering Committee that, in each case of (A) and (B), unless (I) such change is due to the death or disability of such designee, (II) such change is due to a voluntary resignation that occurs more than 9 months from the event described in clause (c)(i), or (III) any of the two Approved Replacements is designated to the Holdco’s Board of Directors or the Steering Committee, as applicable, (d) the occurrence of a Catastrophic Data Breach or the discovery thereof, (e) any commencement of bankruptcy, insolvency or receivership proceedings (whether voluntary or involuntary) of Seller, any of its parent corporations or any of its depository institution Affiliates or (f) any effect that is, or is reasonably likely to be, materially adverse to Seller’s ability to provide in the aggregate the services contemplated by the Ancillary Agreements; provided , that none of the following (or the effects or results thereof) shall be included in determining whether there shall have occurred a Material Adverse Effect: (i) any change in Law or accounting standards or interpretations thereof applicable to the Business or the Companies that does not materially and disproportionately adversely affect the business, assets, financial condition or results of operations of the Business or the Companies, taken as a whole, compared to businesses or entities operating in the same industry in which the Business or the Companies operate; (ii) general changes in economic, business or political conditions that do not materially and disproportionately adversely affect the business, assets, financial condition or results of operations of the Business or the Companies, taken as a whole, compared to

 

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businesses or entities operating in the same industry in which the Business or the Companies operate; (iii) general changes in the securities, credit or financial markets or in the banking industry that do not disproportionately adversely affect the business, assets, financial condition or results of operations of the Business or the Companies, taken as a whole, compared to businesses or entities operating in the same industry in which the Business or the Companies operate; (iv) general changes in the electronic funds transfer, debit, credit and/or merchant transaction processing, ATM network operations and/or other data processing industries that do not disproportionately adversely affect the business, assets, financial condition or results of operations of the Business or the Companies, taken as a whole, compared to businesses or entities operating in the same industry in which the Business or the Companies operate; (v) the taking of any action required or permitted by this Agreement or consented to or requested, in each case, in writing, by Buyer; (vi) any acts of war, terrorism, insurrection or civil disobedience; (vii) any items disclosed as of the date hereof on any of Seller’s Disclosure Schedules to this Agreement, but only to the extent such effect is reasonably apparent from the reading of the specific disclosure set forth therein, and (viii) any adverse effect to the business, assets, financial condition or results of operations of the Business or the Companies as a result of the execution of this Agreement or the announcement of the Transactions contemplated hereby. For the sake of clarity, the foregoing proviso is not applicable to clauses (b) and (c) of this definition.

Merchant Contracts ” means those Transferred Contracts with Customers of the Merchant Processing Business that require the consent of such Customers to transfer such contract to the Companies in connection with the Transactions and that are set forth on Schedule 3.3(c).

Merchant Percentage ” has the meaning set forth in Schedule 2.11.

Merchant Processing Business ” has the meaning set forth in Section 3.6.

Necessary Employee ” has the meaning set forth in Section 5.5(a).

Net Revenue ” means, on an aggregate basis, net revenue (net of interchange) determined in accordance with GAAP consistently applied and consistent with Seller’s past practices and as reported in the Historical Financial Statements, and:

(i) with respect to Transferred Contracts with Customers of the EFT Business, revenues based on billing data from the FTPS (XAA) billing systems and includes the revenues defined on customer service invoices as FTPS generated “Processing” fees but excludes fees billed to customers through such billing system related to pass-through fees and PIN interchange, mark-ups on pass-through fees, revenues and reductions to revenues based on manual entries to the ledger, and the amortization of signing bonuses provided to customers as part of any conversion or renewal;

(ii) with respect to Transferred Contracts with Customers of the Merchant Business, revenues based on billing data from the FTPS (XAA) billing system and the bankcard settlement system and includes FTPS generated processing fees for signature, PIN and other products and services provided but excludes interchange and other network pass-through related

 

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fees and revenues not billed to specific customers through such billing systems, such as draft retrieval, association rebates, signing bonus amortization and other extraordinary items and excludes third party processing costs, debit network expense, gift card and plastics expense, equipment and supplies, marketing rebates, telecommunications and postage; and

(iii) with respect to Transferred Contracts with Customers of the CMC Business, the sum of (A) revenues based on billing data from the CMC Business billing system and includes CMC fees for services provided to support credit, debit, pre-paid, and private label card programs per the Services Agreements with the CMC Business’s clients and (B) administrative service fee revenue paid to the CMC Business by First Data Resources for client aggregation/administration (based on a percentage of aggregated processing volume) but, in either case, shall exclude pass-through related processing fees.

Network Rules ” has the meaning set forth in Section 3.24(a).

Non-Governmental Authorizations ” means all licenses, permits, certificates and other authorizations and approvals other than Governmental Authorizations that are either (i) (a) held by Seller or its Affiliates and (b) related to the Transferred Assets, or (ii) related to the business of the Canadian Sub.

Notes ” means, collectively, (i) a Secured Term Loan Agreement (including all exhibits, annexes and schedules thereto) substantially in the form attached as Exhibit 1.1(a)(G) with an original aggregate outstanding principal amount payable thereunder by Opco following the Opco Contribution equal to the A Note Amount (the “ A Note ”), and (ii) a Secured Term Loan Agreement (including all exhibits, annexes and schedules thereto) substantially in the form attached as Exhibit 1.1(a)(G) with an original aggregate outstanding principal amount payable thereunder by Opco following the Opco Contribution equal to the B Note Amount (the “ B Note ”).

Notes Amount ” means $1,250,000,000.

Notice Period ” has the meaning set forth in Section 7.5(a).

Opco 401(k) Plan ” has the meaning set forth in Section 5.5(e).

Opco Contribution ” has the meaning set forth in Section 2.1(a)(B).

Opco Contribution Agreement ” has the meaning set forth in the Recitals.

Opco ” has the meaning set forth in the Preamble.

Opco LLC Agreement ” means the Amended and Restated Limited Liability Company Agreement of Opco that will be agreed between Buyer and Seller prior to the Closing and will be substantially consistent with the Holdco LLC Agreement, except that Holdco shall be the only Member.

Opco LLC Interests ” means has the meaning set forth in the Recitals.

 

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Order ” means any order, injunction, judgment, decree, writ or other enforcement action of a Government Entity.

Ordinary Course ” means the ordinary and usual conduct of normal day-to-day operations of the Business and/or use of the Transferred Assets consistent with, and in accordance with, Seller’s, the Canadian Sub’s or the CMC Business’s, as applicable, historical customs, practices and procedures.

Party ” means any of Buyer, Seller, FTFC and the Companies, and “ Parties ” means, collectively, each of Buyer, Seller, FTFC and the Companies.

Patents ” has the meaning set forth in the “Intellectual Property” definition.

Permitted Encumbrances ” means (i) Encumbrances reflected or reserved against or otherwise disclosed in the Historical Financial Statements, (ii) mechanics’, materialmen’s, warehousemen’s, carriers’, workers’, or repairmen’s liens or other similar common law or statutory Encumbrances arising or incurred in the Ordinary Course and that are not material in amount or effect on the Business, (iii) liens for current Taxes, assessments and other governmental charges that are (a) not yet due and payable, (b) due but not delinquent or (c) being contested in good faith by appropriate Legal Proceedings, and that in each case have been sufficiently reflected or reserved against on the face of the balance sheets contained in the Historical Financial Statements or related to a period after such Historical Financial Statements; in each case, in an amount that would not be material, (iv) Encumbrances incurred in the Ordinary Course since the date of the Historical Financial Statements and that are not material in amount or effect on the Business, (v) Encumbrances that would not materially impair the conduct of the Business, or the use or value of the relevant Transferred Assets or any assets of the Canadian Sub that are material to the Business and (vi) Encumbrances under the Notes.

Person ” means an individual, a corporation, a partnership, an association, a limited liability company, a joint venture, a Government Entity, a trust or other entity or organization.

Preclosing Holdco LLC Agreement ” means Holdco’s initial limited liability company agreement effective as of the date hereof, a true and correct copy of which has been provided to Buyer on or before the date hereof.

Preclosing LLC Agreements ” means the Preclosing Holdco LLC Agreement and the Preclosing Opco LLC Agreement, collectively.

Preclosing Opco LLC Agreement ” means Opco’s initial limited liability company agreement effective as of the date hereof, a true and correct copy of which has been provided to Buyer on or before the date hereof.

Processing Business ” has the meaning set forth in the Recitals.

Purchase Consideration ” means the Cash Purchase Price.

Receiving Party ” has the meaning set forth in Section 5.10.

 

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Reference Date ” has the meaning set forth in Section 2.11(b).

Reference Statement ” has the meaning set forth in Section 2.4(a).

Reference Working Capital ” means the difference, as set forth on the Reference Statement, between (i) the estimated current assets of the Business that constitute Transferred Assets, minus (ii) the estimated current liabilities of the Business other than the current liabilities of the Canadian Sub, in each case, as of the close of business on the Closing Date and calculated in accordance with the Applicable Accounting Principles provided that such Reference Statement shall not include any vacation accrual.

Reference Working Capital Adjustment Amount ” has the meaning set forth in Section 2.4(b).

Referral Agreement ” means the agreement between Seller and Opco substantially in the form attached hereto as

Exhibit 1.1(a)(H).

Registration Rights Agreement ” means the Registration Rights Agreement substantially consistent with the term sheet attached hereto as Exhibit 1.1(a)(I).

Related Persons ” has the meaning set forth in Section 3.23.

Sale Transaction ” has the meaning set forth in Section 2.3(c).

Self-Regulatory Organization ” means the Financial Industry Regulatory Authority, the American Stock Exchange, the National Futures Association, the Chicago Board of Trade, the New York Stock Exchange, any national securities exchange (as defined in the Exchange Act), any other securities exchange, futures exchange, contract market, any other exchange or corporation or similar self-regulatory body or organization.

Seller ” has the meaning set forth in the Preamble.

Seller 401(k) Plan ” has the meaning set forth in Section 5.5(e).

Seller Indemnified Parties ” has the meaning set forth in Section 7.3(a).

Seller Leased Property ” means those assets or rights not included in the Transferred Assets that are to be leased, licensed or otherwise provided by Seller and/or any of its Affiliates to Opco pursuant to this Agreement or any Ancillary Agreement.

Seller Licensed Intellectual Property ” means the Intellectual Property and Technology to be licensed to Opco by Seller or any of its Affiliates pursuant to the IP/Software License Agreement.

Seller Required Approvals ” means all consents, approvals, waivers, authorizations, notices and filings that are required to be and are listed on Schedule 3.3(a).

 

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Seller Services ” means those rights, assets and services to be provided by Seller or its Affiliates to the Companies from and after the Closing pursuant to this Agreement or any Ancillary Agreement.

Seller’s Knowledge ” or any similar phrase means the actual knowledge of any of persons set forth on Schedule 1.1(e), after due inquiry of the employees primarily responsible for the subject matter in question.

Seller’s Objection ” has the meaning set forth in Section 2.5(b).

Skipjack Business ” means that portion of the Business related to electronic credit card authorization, electronic settlement, reporting and support services to merchant customers and originally purchased as part of an asset acquisition from Skipjack Financial Services, Inc. consummated as of April 1, 2009.

Steering Committee ” has the meaning set forth on Schedule 5.3(b)(ii).

Software ” means any and all (i) computer programs, including any and all software implementations of algorithms, models and methodologies, whether in source code or object code; (ii) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise; (iii) descriptions, flow-charts and other work product used to design, plan, organize and develop any of the foregoing, screens, user interfaces, report formats, firmware, development tools, templates, menus, buttons and icons; and (iv) all documentation, including user manuals and other training documentation related to any of the foregoing.

Sub Contribution ” has the meaning set forth in Section 2.1(a)(E).

Sub-Basket ” means an aggregate amount equal to the sum of (i) 2.5% of the Purchase Consideration and (ii) 2.5% of the Notes Amount.

Tax Returns ” means any report, return, declaration, estimate, claim for refund or information return or statement relating to, or required to be filed with respect to Taxes, including any schedule, form, attachment or amendment.

Taxes ” means any federal, state, local, territorial, provincial or foreign taxes of any kind whatsoever, including income, net income, gross receipts, windfall profits, value added, severance, real property, personal property, production, single business, unincorporated business, sales, use, stamp, duty, license, excise, franchise, payroll, employment, unemployment, occupation, premium, environmental (including taxes under Section 59A of the Code), customs duties, capital stock, franchise, profits, gains, withholding, social security (or similar), disability, workers compensation, ad valorem, replacement, transfer, registration, alternative or add-on minimum, estimated taxes, fees and charges together with any interest, additions, fines or penalties with respect thereto and any interest in respect of such additions or penalties, whether or not disputed and whether imposed by Law, contract or otherwise.

Technology ” means, collectively, all Software, formulae, algorithms, work product of research and development, technical data, technical or business specifications,

 

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business processes, inventions (whether patentable or unpatentable and whether or not reduced to practice), works of authorship and other similar materials, and all tangible embodiments of the foregoing, in any form whether or not specifically listed herein.

Termination Date ” has the meaning set forth in Section 8.1(b).

Third-Party Claim ” has the meaning set forth in Section 7.5(a).

Trade Secrets ” has the meaning set forth in the “Intellectual Property” definition.

Trademark License Agreement ” means that certain trademark license agreement, executed by Seller in favor of Opco as of the Closing Date, substantially in the form attached hereto as Exhibit 1.1(a)(J).

Trademarks ” has the meaning set forth in the “Intellectual Property” definition.

Transaction Expense Contribution ” has the meaning set forth in the Recitals.

Transactions ” means all of the transactions contemplated by this Agreement and any of the Closing documents to occur before, at or following the Closing.

Transfer Date ” has the meaning set forth in Section 5.5(a).

Transfer Taxes ” has the meaning set forth in Section 5.4(d).

Transferred Assets ” has the meaning set forth in Section 2.1(a)(E).

Transferred Books and Records ” means copies of all books, ledgers, files, reports, plans, records, manuals and other materials (in any form or medium) primarily related to, or maintained primarily in connection with, the Transferred Assets and/or the operation of the Business, including those relating to products, services, marketing, advertising, promotional materials, Transferred Intellectual Property, personnel files for Transferred Employees and all files, customer files and documents (including credit information), supplier lists, records, literature and correspondence, but excluding any such items to the extent (i) they are included in or primarily related to any Excluded Assets or Excluded Liabilities or (ii) any Law prohibits their transfer.

Transferred Canadian Sub Stock ” has the meaning set forth in Section 2.3(c).

Transferred Contracts ” means all agreements, contracts, leases and subleases, purchase orders, arrangements, commitments and licenses (other than this Agreement, the Ancillary Agreements, and those governing Seller Leased Property) that are (i) primarily related to the Business as of the Closing, or to which any of the Transferred Assets are subject or (ii) related to any Intellectual Property or Technology primarily used, held for use or acquired or developed for use in the Business as currently conducted and proposed to be conducted by Seller and its Affiliates, in each case, whether written or oral, except to the extent specifically included in Schedule 1.1(c) as Excluded Assets. For the sake of clarity, other than for purposes of Article

 

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II hereof and unless otherwise indicated, “Transferred Contracts” shall include all such equivalent agreements or contracts of the Canadian Sub.

Transferred Copyrights ” means all Copyrights primarily related to or primarily used, held for use or acquired or developed for use in connection with the Business as currently conducted and proposed to be conducted by Seller and its Affiliates, including the Copyrights listed on Schedule 1.1(f), except to the extent specifically included in Schedule 1.1(c) as Excluded Assets. For the sake of clarity, other than for purposes of Article II hereof and unless otherwise indicated, “Transferred Copyrights” shall include all such equivalent Copyrights of the Canadian Sub.

Transferred Employee ” has the meaning set forth in Section 5.5(a).

Transferred Equipment ” means all equipment, including Equipment Assets, and other tangible personal property primarily related to, or primarily used, held for use or acquired or developed for use in connection with, the Business.

Transferred Intellectual Property ” means all Intellectual Property owned by Seller or its Affiliates that is primarily related to or primarily used, held for use or acquired or developed for use in connection with the Business as currently conducted and proposed to be conducted by Seller and its Affiliates, including the Transferred Copyrights, Transferred Patents, Transferred Trade Secrets and Transferred Trademarks, except to the extent specifically included in Schedule 1.1(c) as Excluded Assets. For the sake of clarity, other than for purposes of Article II hereof and unless otherwise indicated, “Transferred Intellectual Property” shall include all such equivalent Intellectual Property of the Canadian Sub.

Transferred Interests ” has the meaning set forth in Section 2.3(c).

Transferred Inventory ” means all inventory and other tangible personal property primarily related to, or primarily used, held for use or acquired or developed for use in connection with, the Business.

Transferred Patents ” means all Patents primarily related to or primarily used, held for use or acquired or developed for use in connection with the Business as currently conducted and proposed to be conducted by Seller and its Affiliates, including the Patents set forth on Schedule 1.1(g), except to the extent specifically included in Schedule 1.1(c) as Excluded Assets. For the sake of clarity, other than for purposes of Article II hereof and unless otherwise indicated, “Transferred Patents” shall include all such equivalent Patents of the Canadian Sub.

Transferred Receivables ” means all accounts and notes receivable and other miscellaneous receivables of the Business as of the Closing arising out of the sale or other disposition of goods or services of the Business, except to the extent specifically included in Schedule 1.1(c) as Excluded Assets.

Transferred Software ” means all Software primarily related to or primarily used, held for use or acquired or developed for use in connection with the Business as currently conducted and proposed to be conducted by Seller and its Affiliates, including the Software

 

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listed on Schedule 1.1(h), except to the extent specifically included in Schedule 1.1(c) as Excluded Assets. For the sake of clarity, other than for purposes of Article II hereof and unless otherwise indicated, “Transferred Software” shall include all such equivalent Software of the Canadian Sub.

Transferred Technology ” means all Technology primarily related to or primarily used, held for use or acquired or developed for use in connection with the Business as currently conducted and proposed to be conducted by Seller and its Affiliates, except to the extent specifically included in Schedule 1.1(c) as Excluded Assets. For the sake of clarity, other than for purposes of Article II hereof and unless otherwise indicated, “Transferred Technology” shall include all such equivalent Technology of the Canadian Sub.

Transferred Trade Secrets ” means all Trade Secrets primarily related to or primarily used, held for use or acquired or developed for use in connection with the Business as currently conducted and proposed to be conducted by Seller and its Affiliates, except to the extent specifically included in Schedule 1.1(c) as Excluded Assets. For the sake of clarity, other than for purposes of Article II hereof and unless otherwise indicated, “Transferred Trade Secrets” shall include all such equivalent Trade Secrets of the Canadian Sub.

Transferred Trademarks ” means all Trademarks primarily related to or primarily used, held for use or acquired or developed for use in connection with the Business as currently conducted and proposed to be conducted by Seller and its Affiliates, including the Trademarks set forth on Schedule 1.1(i), together with the goodwill of the Business appurtenant thereto and/or symbolized thereby, except to the extent specifically included in Schedule 1.1(c) as Excluded Assets. For the sake of clarity, other than for purposes of Article II hereof and unless otherwise indicated, “Transferred Trademarks” shall include all such equivalent Trademarks of the Canadian Sub.

Transition Infrastructure Contribution ” has the meaning set forth in the Recitals.

Transition Plan ” has the meaning set forth in Section 5.3(b).

Transition Plan Term Sheet ” has the meaning set forth in Section 5.3(b).

Transition Plan Start Date ” means the first business day following the date on which the Transition Plan is completed.

Transition Service Agreement ” means the Transition Service Agreement substantially in the form attached hereto as Exhibit 1.1(a)(K), provided that the cumulative changes, if any, to the Transition Service Agreement (including each of the exhibits and schedules, including Exhibit A, thereto) in the form attached to this Agreement as of the date hereof shall not result in an increase in payments to be made by Opco under the execution version of the Transition Service Agreement exceeding $1,000,000 in the aggregate, excluding all pass-through costs.

Unaudited Canadian Financial Statements ” has the meaning set forth in Section 3.6.

 

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Unaudited Financial Statements ” has the meaning set forth in Section 3.6.

Unaudited US Financial Statements ” has the meaning set forth in Section 3.6.

U.S. Antitrust Laws ” means the Sherman Act, as amended, the Clayton Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and all other federal and state statutes, rules, regulations, Orders, decrees, administrative and judicial doctrines and other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade.

Warrant ” means the warrant in a form consistent with the term sheet attached hereto as Exhibits 1.1(a)(L).

Welfare Benefits ” has the meaning set forth in Section 5.5(c).

Working Capital True-Up Amount ” has the meaning set forth in Section 2.5(e).

Section 1.2 Other Terms . Other terms may be defined elsewhere in the text of this Agreement and, unless otherwise indicated, shall have such meaning throughout this Agreement.

Section 1.3 Other Definitional and Interpretational Provisions . Unless the express context otherwise requires (other than with respect to clause (g) below):

(a) the words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement;

(b) the terms defined in the singular have a comparable meaning when used in the plural, and vice versa;

(c) the terms “Dollars” and “$” mean United States Dollars;

(d) references herein to a specific Article, Section, Subsection or Schedule shall refer, respectively, to Articles, Sections, Subsections or Schedules of this Agreement;

(e) wherever the word “include”, “includes” or “including” is used in this Agreement, it shall be deemed to be followed by the words “without limitation”;

(f) references herein to any gender includes each other gender;

(g) it is the intention of the Parties that the Agreement not be construed more strictly with regard to one Party than with regard to any other Party; and

(h) references herein to “the date hereof” and “the date of this Agreement” shall be deemed to refer to March 27, 2009 with respect to the Business

 

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other than the Canadian Sub and shall be deemed to refer to April 1, 2009 with respect to the Canadian Sub.

ARTICLE II

RECAPITALIZATION AND PURCHASE AND SALE OF LLC INTERESTS

Section 2.1 Amendment and Recapitalization . (a) On the terms and subject to the conditions set forth herein and in the Preclosing LLC Agreements and the Contribution Agreements, as applicable, at least one day prior to the Closing:

(A) Seller shall borrow $1.25 billion under the Notes;

(B) Seller shall contribute, transfer and convey to Opco all of Seller’s right, title and interest, as of the time of such contribution, in and to the Transferred Assets free and clear of all Encumbrances, other than Permitted Encumbrances, and Opco shall assume Seller’s obligations under the Notes (collectively, the “ Opco Contribution ”);

(C) Seller shall contribute, transfer and convey 100% of the equity interest in CMC to FTPS Partners, and thereafter, CMC shall distribute its interest in Holdco to FTPS Partners and thereafter CMC shall be converted into CMC LLC;

(D)(i) Seller shall contribute, transfer and convey to Holdco all of Seller’s right, title and interest, as of the time of such contribution, in and to the Opco LLC Interests and the Cash Contribution, in each case, free and clear of all Encumbrances (in the case of the Cash Contribution, other than Permitted Encumbrances), and (ii) FTPS Partners shall contribute, transfer and convey 100% of the equity interest in CMC LLC to Holdco free and clear of all Encumbrances, other than Permitted Encumbrances (clauses (i) and (ii) collectively, the “ Holdco Contribution ”); and

(E) Holdco shall contribute, transfer and convey to Opco the equity interests in CMC LLC it received from FTPS Partners and the cash it received from Seller and CMC (other than the Transaction Expenses Contribution), in each case, free and clear of all Encumbrances, other than Permitted Encumbrances (collectively, the “ Sub Contribution ,” and together with the Opco Contribution and the Holdco Contribution, the “ Contribution ”). “ Transferred Assets ” shall mean all of the assets, rights, properties, claims, contracts, business and goodwill of Seller required for, primarily related to, or primarily used, held for use or acquired or developed for use in, the Business as currently conducted, wherever situated and of whatever kind and nature, real or personal, tangible or intangible, whether or not reflected on the books and records of Seller (other than the Excluded Assets), including each of the following assets (it being understood that Transferred Assets does not include any assets, rights, properties, claims, contracts, business or goodwill of the Canadian Sub):

(i) all Cash and Transferred Receivables;

(ii) Transferred Contracts;

(iii) Transferred Intellectual Property;

 

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(iv) Transferred Technology;

(v) Transferred Equipment;

(vi) Transferred Inventory;

(vii) Transferred Books and Records;

(viii) with respect to the Holdco Contribution, 100% of Opco LLC Interests (for the sake of clarity, all of Opco’s assets shall be deemed to be Transferred Assets under this Agreement);

(ix) all causes of action, lawsuits, judgments, claims and demands of any nature available to or being pursued by Seller or any of its Affiliates to the extent related to the Transferred Assets (unless such cause of action, lawsuit, judgment, claim or demand is a counterclaim with respect to an Excluded Liability), the Assumed Liabilities or the ownership, use, function or value of any Transferred Asset (unless such cause of action, lawsuit, judgment, claim or demand is a counterclaim with respect to an Excluded Liability), whether arising by way of counterclaim or otherwise;

(x) all credits, prepaid charges and expenses, deferred charges, advance payments, security and other deposits, prepaid items and duties to the extent related to a Transferred Asset;

(xi) all guaranties, warranties, indemnities and similar rights in favor of Seller or any of its Affiliates to the extent related to any Transferred Asset (unless the liability that is the subject of such guarantee, warranty, indemnity or similar right is an Excluded Liability) or Assumed Liability, including guarantees made by suppliers, manufacturers and contractors to the extent relating to products sold or services provided to Seller or any of its Affiliates;

(xii) to the extent assignable, all Governmental Authorizations, and all Non-Governmental Authorizations used by Seller in the Business and all rights, and incidents of interest therein;

(xiii) to the extent assignable, all rights of Seller under non-disclosure or confidentiality, non-compete or non-solicitation agreements with current and former employees, consultants and agents of Seller or with third parties, in each case, to the extent relating to the Business or the Transferred Assets (or any portion thereof) other than any such agreements relating to the sale of the Business;

(xiv) all third-party property and casualty insurance proceeds, and all rights to third-party property and casualty insurance proceeds, in each case to the extent received or receivable in respect of the Business (excluding the Canadian Sub) or the Transferred Assets and not related to an Excluded Liability; and

(xv) all goodwill and other intangible assets associated with the Business (excluding the Canadian Sub) or the Transferred Assets, including the goodwill

 

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associated with the Transferred Intellectual Property (other than the Transferred Intellectual Property of the Canadian Sub).

(b) Nothing herein contained shall be deemed to sell, transfer, assign or convey the Excluded Assets to the Companies, and Seller and its Affiliates shall retain all right, title and interest to, in and under the Excluded Assets.

(c) Any assets of the Seller transferred subsequent to the Closing pursuant to the Asset Identification Process shall be considered Transferred Assets as of March 27, 2009 and the Closing Date for purposes of the representations and warranties of the Seller set forth herein.

Section 2.2 Assumption of Liabilities; Excluded Liabilities . (a) On the terms and subject to the conditions set forth herein, at the time of the Contribution, Opco shall assume, effective as of the Closing, the Assumed Liabilities. For the avoidance of doubt, Canadian Liabilities shall remain Liabilities of the Canadian Sub.

(b) Neither of the Companies will assume or be liable for any Liabilities of Seller or any of its Affiliates that are not Assumed Liabilities (“ Excluded Liabilities ”). For the avoidance of doubt, Excluded Liabilities shall include, except to the extent included in Assumed Liabilities or Canadian Liabilities, the following Liabilities:

(i) all Liabilities of Seller or its Affiliates arising out of, relating to or otherwise in respect of the Business on or before the Closing (whether or not discovered before, on or after the Closing);

(ii) all Liabilities of Seller in respect of any services performed by, or on behalf of, Seller on or before the Closing;

(iii) except to the extent specifically provided in Section 5.5, all Liabilities of Seller arising out of, relating to or with respect to the employment or performance of services, or termination of employment or services by Seller or any of its Affiliates of any individual (including any Applicable Employee) on or before the Closing Date (including relating to Transferred Employees on or before the Transfer Date, irrespective of whether such claims are made prior to or after the Closing Date), (B) workers’ compensation claims against Seller or any of its Subsidiaries that relate to the period on or before the Closing Date, irrespective of whether such claims are made prior to or after the Closing, and (C) any Benefit Plan, (D) any bonuses or incentive compensation (payable in either in cash or equity) owed or owing to employees (including any Applicable Employees) by Seller or any of its Affiliates on or before the Closing Date; provided , however , it being understood by Buyer and Seller that any such liability incurred on or after the Closing Date but prior to the applicable Transfer Date, with respect to an Applicable Employee, shall be reimbursed by Opco to Seller to the extent provided in the Transition Service Agreement;

(iv) (A) all Liabilities of Seller arising out of, under or in connection with contracts of the Seller or its Affiliates that are not Transferred Contracts and, (B) with

 

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respect to Transferred Contracts, all Liabilities in respect of (1) performance by, or on behalf of, Seller under such Transferred Contracts with respect to any period prior to the Closing or (2) a breach by, or default of, Seller accruing under such contracts with respect to any period prior to the Closing;

(v) all Liabilities of Seller arising out of, under, or in connection with, any indebtedness of Seller (other than capital leases primarily related to the Business);

(vi) all Liabilities of Seller for Taxes (except for Taxes for which the Companies are expressly responsible pursuant to Section 5.4);

(vii) all Liabilities of Seller in respect of any pending or threatened Legal Proceeding (including, for the sake of clarity, all Liabilities arising from the matters set forth on Schedule 3.7, including any indemnification, contribution or other Liabilities in respect of, arising from, or otherwise relating to, such Legal Proceedings or the facts and circumstances pursuant to which such Legal Proceedings relate), or any claim, in each case arising out of, relating to or otherwise in respect of (A) the operation of the Business to the extent such Legal Proceeding or claim relates to such operation on or prior to the Closing Date, or (B) any Excluded Assets;

(viii) all Liabilities arising out of, relating to, or otherwise in respect of, any actual breach of security of, or unauthorized access to or acquisition, use, loss, destruction, compromise or disclosure of any personal information, confidential or proprietary data or any other such information maintained or stored by, the Business (other than such breaches occurring in systems maintained by customers of the Business for which the Business is not at fault) involving data of customers, suppliers, consumers or other similarly situated individuals, in any case, occurring before the Closing; and

(ix) all Liabilities of Seller (whether under Network Rules or otherwise) arising out of, relating to, or otherwise in respect of, any customers of the Business that have commenced any bankruptcy, insolvency or receivership proceedings (whether voluntary or involuntary) before the Closing.

For the avoidance of doubt, any Liabilities of the Business to the extent attributable to the operation or the ownership of the Transferred Assets or the Business, including the business of the Canadian Sub, from and after the Closing or the employment of the Transferred Employees after their respective Transfer Dates shall not constitute Excluded Liabilities.

Section 2.3 Purchase and Sale of LLC Interests and the Canadian Sub . On the terms and subject to the conditions set forth herein, at the Closing:

(a) Seller and FTPS Partners shall cause the Preclosing Holdco LLC Agreement to be amended and restated in its entirety in the form of the Holdco LLC Agreement;

(b) Holdco shall cause the Preclosing Opco LLC Agreement to be amended and restated in its entirety in the form of the Opco LLC Agreement;

 

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(c) (i) Seller shall sell, transfer and convey to Buyer, and Buyer shall purchase from Seller, 50,930,455 Class A Units (the “ Transferred Interests ”), free and clear of all Encumbrances, except as set forth in the Holdco LLC Agreement and (ii) FTFC shall sell, transfer and convey to Buyer, and Buyer shall purchase from FTFC, 50,930,455 shares of common stock of the Canadian Sub (the “ Transferred Canadian Sub Stock ”) (clauses (i) and (ii) collectively, the “ Sale Transaction ”);

(d) In consideration of the sale of the Transferred Interests, at the Closing (by wire transfer of immediately available funds to an account or accounts which have been designated by Seller at least two Business Days prior to the Closing Date), Buyer shall pay to Seller an amount in cash equal to $559,318,251.81 (the “ Holdco Cash Purchase Price ”), and Holdco shall issue the Warrant to Seller;

(e) Upon the payment by Buyer to Seller of the Holdco Cash Purchase Price, Holdco shall duly reflect in its books and records the admittance of Buyer as a member of Holdco and the transfer of the Transferred Interests from Seller to Buyer; and

(f) In consideration of the sale of the Transferred Canadian Sub Stock, at the Closing (by wire transfer of immediately available funds to an account or accounts which have been designated by FTFC at least two Business Days prior to the Closing Date), Buyer shall pay to FTFC an amount in cash equal to $916,748.19 (the “ Canadian Sub Cash Purchase Price ,” and together with the Holdco Cash Purchase Price, the “ Cash Purchase Price ”).

Section 2.4 Pre-Closing Adjustments . (a) Seller shall prepare, or cause to be prepared, and deliver to Buyer on or before the date that is three days before the anticipated Closing Date a statement (the “ Reference Statement ”) consisting of (A) an estimated consolidated balance sheet of the Business (other than the Canadian Sub) as of the close of business on the Closing Date, (B) a good faith estimation in reasonable detail of the Reference Working Capital (C) a good faith calculation of the amounts of any contribution or payments required under Section 2.4(b) and all other amounts specifically identified in this Agreement as being reflected on the face of the Reference Closing Statement. The Reference Statement shall be prepared in accordance with GAAP applied on a basis consistent with the accounting principles, methods, practices, policies and procedures (with consistent classifications, judgments and valuation and estimation methodologies) that were used to prepare the Historical Financial Statements, except as set forth in Exhibit 2.4(a) attached hereto and except for the exclusion of the Canadian Sub (with such exceptions, the “ Applicable Accounting Principles ”). For illustrative purposes, Exhibit 2.4(a) contains a pro forma calculation of the Reference Working Capital as of June 30, 2008 applying the Applicable Accounting Principles.

(b) The difference between (i) the Base Working Capital Value, minus (ii) the Reference Working Capital, expressed as a positive, if positive, or as a negative, if negative, is referred to in this Agreement as the “ Reference Working Capital Adjustment Amount .” In the event that the Reference Working Capital Adjustment Amount is a negative number, then Opco shall pay to the Seller Cash on

 

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or before the Closing Date (by wire transfer of immediately available funds) an amount in cash equal to the absolute value of the Reference Working Capital Adjustment Amount. In the event that the Reference Working Capital Adjustment Amount is a positive number, then Seller shall pay to Opco Cash on or before the Closing Date (by wire transfer of immediately available funds) an amount in cash equal to the value of the Reference Working Capital Adjustment Amount.

Section 2.5 Post-Closing True-Up . (a) As soon as practicable, but in no event more than 60 days following the Closing Date, Buyer shall prepare, or cause to be prepared, and deliver to Seller a statement (the “ Closing Statement ”) consisting of (i) an unaudited consolidated balance sheet of the Business (other than the Canadian Sub) as of the close of business on the Closing Date, (ii) a good faith calculation in reasonable detail of the Closing Working Capital derived from such balance sheet and (iii) a good faith calculation of the amount of any payment required under Section 2.5(e), 2.5(f) and all other amounts specifically identified in this Agreement as being reflected on the face of the Reference Closing Statement; provided that such Closing Statement shall not include any vacation accrual. The Closing Statement shall be prepared in accordance with the Applicable Accounting Principles, except that it shall not include any vacation accrual.

(b) Seller shall complete its review of the Closing Statement within 30 days after delivery thereof by Buyer. In the event that Seller determines that the Closing Statement has not been prepared on the basis set forth in Section 2.5(a), Seller shall, on or before the last day of such 30-day period, so inform Buyer in writing (the “ Seller’s Objection ”), setting forth a specific description of the basis of Seller’s determination and the adjustments to the Closing Statement and the corresponding adjustments to the Closing Working Capital that Seller believes should be made. If no Seller’s Objection is received by Buyer on or before the last day of such 30-day period, then the Closing Working Capital set forth on the Closing Statement delivered by Seller shall be final. Buyer shall have 30 days from its receipt of Seller’s Objection to review and respond to Seller’s Objection.

(c) If Seller and Buyer are unable to resolve all of their disagreements with respect to the proposed adjustments set forth in Seller’s Objection within 30 days following the completion of Buyer’s review of Seller’s Objection, they shall refer any remaining disagreements with respect to matters set forth in Seller’s Objection to the CPA Firm which, acting as an expert and not as an arbitrator, shall determine, on the basis set forth in and in accordance with Section 2.5(a), and only with respect to the remaining differences so submitted, whether and to what extent, if any, the Closing Statement and the Closing Working Capital require adjustment. Buyer and Seller shall instruct the CPA Firm to deliver its written determination to Buyer and Seller no later than 30 days after the remaining differences underlying Seller’s Objection are referred to the CPA Firm. In making such determination, the CPA Firm shall not assign a value to any item greater than the greatest value for such item claimed by Buyer or Seller, or less than the smallest value for such item claimed by Buyer or Seller. The CPA Firm’s determination shall be conclusive and binding upon Buyer and Seller and their respective Affiliates. The fees and disbursements of the CPA Firm shall be borne

 

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by Seller if the CPA Firm rules against a majority (by dollar value) of the items set forth in Seller’s Objection that are submitted to the CPA Firm and by Buyer if the CPA Firm rules in favor of a majority (by dollar value) of the items set forth in Seller’s Objection that are submitted to the CPA Firm. Buyer and Seller shall make readily available to the CPA Firm all relevant books and records and any work papers (including those of their respective accountants, to the extent permitted by such accountants) relating to the Closing Statement and Seller’s Objection and all other items reasonably requested by the CPA Firm in connection therewith, and may submit such additional data and information to the CPA Firm as each deems appropriate.

(d) Buyer and the Companies shall provide to Seller and its accountants full access to the books and records of the Business and to any other information, including work papers of its accountants (to the extent permitted by such accountants), and to any employees during regular business hours and on reasonable advance notice, to the extent necessary for Seller to review the Closing Statement and prepare materials for the CPA Firm in connection with Section 2.5(c).

(e) An amount equal to (A) the Reference Closing Working Capital, minus (B) the Closing Working Capital (as adjusted pursuant to this Section 2.5, if applicable), expressed as a positive, if positive, or as a negative, if negative, is referred to in this Agreement as the “ Working Capital True-Up Amount .” Subject to Section 2.5(f), if the Working Capital True-Up Amount is a negative number, then Opco shall pay to Seller (by wire transfer of immediately available funds) an amount in cash equal to the absolute value of the Working Capital True-Up Amount, and if the Working Capital True-Up Amount is a positive number, then Seller shall pay to Opco (by wire transfer of immediately available funds) an amount in cash equal to the value of the Working Capital True-Up Amount.

(f) If the amount that would otherwise constitute a Reference Working Capital Adjustment Amount or a Working Capital True-Up Amount is equal to or less than $250,000, no payment shall be made, except that any such amounts in respect of any accrued interest under the Notes as of the Closing shall be payable regardless of the limitation set forth in this Section 2.5(f).

(g) Within a reasonable time following each Transfer Date, Seller shall provide Opco with a cash payment equal to the aggregate vacation accrual of the Transferred Employees who become employees of Opco as of such Transfer Date; it being understood that if as of the last to occur of such Transfer Dates, the aggregate cash payment in respect of such vacation accruals would not have been payable as a result of Section 2.5(f) if it had been included in the Working Capital True-Up Amount, such payment shall not be made.

Section 2.6 Closing . Subject to the terms and conditions of this Agreement, the Closing shall take place at the offices of Seller on June 30, 2009 immediately following the execution hereof but subject to the fulfillment or waiver of the conditions set forth in Section 6.1,

 

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Section 6.2 and Section 6.3 and shall be deemed effective as of the close of business (Eastern time) on June 30, 2009.

Section 2.7 Deliveries by Buyer . (a) At the Closing, Buyer shall deliver to Seller the following:

(i) the Holdco Cash Purchase Price in immediately available funds by wire transfer to an account or accounts which have been designated by Seller at least two Business Days prior to the Closing Date;

(ii) a duly executed counterpart of each of the Ancillary Agreements to which Buyer is a party and a duly executed counterpart to the Holdco LLC Agreement;

(iii) evidence of the obtaining of, or the filing with respect to, the Buyer Required Approvals;

(iv) the certificate to be delivered pursuant to Section 6.3(d);

(v) secretary’s certificates, evidence of corporate existence and good standing, evidence of corporate approvals and other similar documents, and such other customary instruments of transfer, assumptions, filings or documents, in form and substance reasonably satisfactory to Seller, as may be required to give effect to this Agreement.

(b) At the Closing, Buyer shall deliver to FTFC the following:

(i) the Canadian Sub Cash Purchase Price in immediately available funds by wire transfer to an account or accounts which have been designated by FTFC at least two Business Days prior to the Closing Date; and

(ii) secretary’s certificates, evidence of corporate existence and good standing, evidence of corporate approvals and other similar documents, and such other customary instruments of transfer, assumptions, filings or documents, in form and substance reasonably satisfactory to FTFC, as may be required to give effect to this Agreement.

Section 2.8 Deliveries by Seller and FTFC . (a) At the Closing, Seller shall deliver, or cause to be delivered, to Buyer the following:

(i) a duly executed counterpart of each of the Ancillary Agreements to which any of the Seller and Buyer are parties;

(ii) evidence of the obtaining of, or the filing with respect to, the Seller Required Approvals and the Company Required Approvals;

(iii) the certificate to be delivered pursuant to Section 6.2(d);

 

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(iv) delivery of the Reference Statement, as required pursuant to Section 2.4(a);

(v) a certificate of non-foreign status from Seller that complies with Section 1445 of the Code; and

(vi) secretary’s certificates, evidence of legal existence and good standing, evidence of corporate approvals and other similar documents, and such other customary instruments of transfer, assumptions, filings or documents, in form and substance reasonably satisfactory to Buyer, as may be required to give effect to this Agreement.

(b) At the time of the Opco Contribution, Seller shall deliver, or cause to be delivered, to Opco the following:

(i) bills of sale or other appropriate documents of transfer, in form and substance reasonably acceptable to Buyer, transferring the tangible personal property included in the Transferred Assets to Opco;

(ii) assignments, in form and substance reasonably acceptable to Buyer and, if applicable, as required by any Government Entity with which any of Seller’s or any of its Affiliates’ rights to any Transferred Intellectual Property (other than the Transferred Intellectual Property of the Canadian Sub) have been filed, assigning to Opco such Transferred Intellectual Property;

(iii) assignment and assumption agreements, in form and substance reasonably acceptable to Seller and Buyer, as may be necessary to effect the assignment to Opco of the Transferred Contracts (other than the Transferred Intellectual Property) or other Transferred Assets, other than tangible personal property included therein;

(iv) the Transferred Books and Records;

(v) a duly executed counterpart of each of the Ancillary Agreements to which Seller and Opco are parties; and

(vi) such other customary instruments of transfer, assumptions, filings or documents, in form and substance reasonably satisfactory to Seller and Buyer, as may be required to give effect to the Opco Contribution.

For the avoidance of doubt, the Transferred Intellectual Property, Transferred Contracts and Transferred Books and Records of the Canadian Sub will not be delivered, assigned or transferred to Opco.

(c) At the time of the Holdco Contribution, Seller shall deliver, or cause to be delivered, to Holdco the following:

(i) an assignment, in form and substance reasonably acceptable to Buyer, of all of FTPS Partners’ interests in CMC LLC; and

 

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(ii) an assignment, in form and substance reasonably acceptable to Buyer, of all of Seller’s interests in Opco.

(d) At the Closing, FTFC shall deliver, or cause to be delivered, to Buyer the following:

(i) a certificate or certificates issued in Buyer’s name, representing the Transferred Canadian Sub Stock, endorsed for transfer to, or accompanied by a duly executed stock power in favor of, Buyer, in a form reasonably acceptable to Buyer; and

(ii) secretary’s certificates, evidence of legal existence and good standing, evidence of corporate approvals and other similar documents, and such other customary instruments of transfer, assumptions, filings or documents, in form and substance reasonably satisfactory to Buyer, as may be required to give effect to this Agreement.

Section 2.9 Deliveries by Opco and Holdco . (a) At the Opco Contribution, Opco shall deliver to Seller the following:

(i) such instruments of assumption and other instruments or documents, in form and substance reasonably acceptable to Seller and Buyer, as may be necessary to effect Opco’s receipt and assumption of the Transferred Assets and Assumed Liabilities and the indebtedness under the Notes;

(ii) a duly executed counterpart of each of the Ancillary Agreements to which any of Opco and any of Seller is a party; and

(iii) such other customary instruments of transfer, assumptions, filings or documents, in form and substance reasonably satisfactory to Seller and Buyer, as may be required to give effect to the Opco Contribution.

(b) At the Closing, Holdco shall deliver to Seller the Warrant.

Section 2.10 Nonassignability of Assets . Notwithstanding anything to the contrary contained in this Agreement, to the extent that the sale, assignment, sublease, transfer, conveyance or delivery or attempted sale, sublease, assignment, transfer, conveyance or delivery to the Companies of any asset (other than an Applicable Contract) that would be a Transferred Asset or any claim or right or any benefit arising thereunder or resulting therefrom is prohibited by any applicable Law or would require any governmental or third-party authorizations, approvals, consents or waivers, and such authorizations, approvals, consents or waivers shall not have been obtained prior to the Closing, the Closing shall proceed without the sale, assignment, sublease, transfer, conveyance or delivery of such asset unless such failure causes a failure of any of the conditions to Closing set forth in Article VI, in which event the Closing shall proceed only if the failed condition is waived by the Party (or Parties, as applicable) entitled to the benefit thereof. In the event that the Closing proceeds without the transfer, sublease or assignment of any such asset (other than an Applicable Contract) that would be a Transferred Asset or any claim or right or any benefit arising thereunder or resulting therefrom, then following the Closing, the parties hereto shall use their commercially reasonable efforts, and cooperate with

 

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each other, to obtain promptly such authorizations, approvals, consents or waivers; provided , however , that none of the parties hereto or any of their Affiliates shall be required to pay any consideration therefor other than filing, recordation or similar fees, which shall be shared equally by Seller and Buyer. Pending such authorization, approval, consent or waiver, the parties hereto shall cooperate with each other in any mutually agreeable, reasonable and lawful arrangements designed to provide to the Companies the benefits of use of such asset and to Seller or its Affiliates the benefits, including any indemnities, that they would have obtained had the asset been conveyed to the Companies at the Closing. Once authorization, approval, consent or waiver for the sale, assignment, sublease, transfer, conveyance or delivery of any such asset not sold, assigned, subleased, transferred, conveyed or delivered at the Closing is obtained, Seller shall or shall cause its relevant Affiliates to, assign, transfer, convey and deliver such asset to the Companies at no additional cost. Subject to the Transition Plan and the Transition Service Agreement, to the extent that, within 90 days of the Closing Date, it is determined by Seller, with the consent of Buyer, such consent not to be unreasonably withheld or delayed, that any such asset cannot be transferred or the full benefits of use of any such asset cannot be provided to the Companies following the Closing pursuant to this Section 2.10, then Seller and the Companies shall enter into such arrangements (including subleasing, sublicensing or subcontracting) to provide to the parties hereto the economic (taking into account Tax costs and benefits) and operational equivalent, to the extent permitted, of obtaining such authorization, approval, consent or waiver and the performance by the Companies of the obligations thereunder, and upon the entering into of such arrangement by Seller and the Companies, such asset shall no longer be determined to be a Transferred Asset. Seller shall hold in trust for and pay to the Companies promptly upon receipt thereof, all income, proceeds and other monies received by Seller or any of its Affiliates in connection with its use of any asset (net of any Taxes and any other costs imposed upon Seller or any of its Affiliates) in connection with the arrangements under this Section 2.10.

Section 2.11 Transferred Contracts Adjustment .

(a) Subject to the Sub-Basket and the Cap, as applicable, if, prior to obtaining the consent of the applicable counterparty to a Merchant Contract or Financial/EFT Contract included in the Transferred Contracts (each, an “ Applicable Contract ”) to the transfer of such Applicable Contract to the Companies in connection with the Transactions, at any time between the date hereof through the first anniversary of the Closing Date (the “ Adjustment Date ”) (i) such Applicable Contract is terminated by the counterparty thereto for any reason, (ii) such counterparty thereto notifies Seller or the Companies that it will terminate such Applicable Contract for any reason or (iii) such counterparty thereto initiates a proposed renegotiation of such Applicable Contract prior to the expiration of its existing term and the counterparty to such Applicable Contract subsequently agrees no later than 18 months after the Closing Date upon an amendment or modification to such Applicable Contract that reduces its existing term, in the case of each of clauses (i) through (iii), where the effective date of such termination or expiration or proposed termination or expiration is prior to the original termination or expiration date of such Applicable Contract, then the Purchase Consideration shall be adjusted and the Notes shall be repaid in the proportion set forth in Section 2.11(c) for each such Applicable Contract by an aggregate amount equal to:

 

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(i) (1) 8.2, times (2) 2008 Net Revenues, times (3) (x) the Merchant Percentage (if such Applicable Contract is a Merchant Contract) or (y) the Financial/EFT Percentage (if such Applicable Contract is a Financial/EFT Contract), minus

(ii) Any liquidated damages or similar payments received by the Companies with respect to such termination or proposed termination of such Applicable Contract (such calculated amount, the “ Applicable Termination Price Adjustment ”).

(b) Subject to the Sub-Basket and the Cap, as applicable, if, prior to obtaining the consent of the applicable counterparty to an Applicable Contract to the transfer of such Applicable Contract to the Companies in connection with the Transactions, at any time between the date hereof through the Adjustment Date such counterparty initiates a proposed renegotiation of such Applicable Contract prior to the expiration of its existing term and the counterparty to such Applicable Contract subsequently agrees upon an amendment or modification to such Applicable Contract (other than an amendment or modification that reduces its term, in which case, Section 2.11(a) applies and this Section 2.11(b) does not apply) prior to the expiration of its term and no later than 18 months after the Closing Date (the “ Reference Date ”), then the Purchase Consideration shall be adjusted and the Notes shall be repaid in the proportion set forth in Section 2.11(c) for each such Applicable Contract by an aggregate amount equal to:

(i) 8.2, times

(ii) an amount equal to (1) the 2008 Net Revenues, minus (2) the product of (A) the 2008 Net Revenues, times a fraction of which the numerator shall be the per unit pricing as a result of such modification or amendment and the denominator shall be the average per unit price pursuant to such Applicable Contract for the calendar year 2008 (it being understood that the Applicable Renegotiation Price Adjustment shall be zero if such fraction is one or greater), times

(iii) a fraction of which the numerator shall be the remaining term of such Applicable Contract prior to such modification or amendment and the denominator shall be the term of such contract as a result of such modification or amendment (such calculated amount, the “ Applicable Renegotiation Price Adjustment ”).

(c) The aggregate Applicable Termination Price Adjustments and Applicable Renegotiation Adjustments (the “ Aggregate Price Adjustment ”) shall be effected (i) at the Closing with respect to any Aggregate Price Adjustments that, to the Seller’s Knowledge, can be determined at such time, (ii) on the Adjustment Date with respect to any additional Aggregate Price Adjustments that, to the Seller’s Knowledge, can be determined at such time and (iii) no later than 30 days after the Reference Date with respect to any remaining Aggregate Price Adjustments, in any such case, through (x) a payment from Seller to Opco of an amount in cash (by wire transfer of immediately available funds) equal to 45% of the Aggregate Price Adjustment and (y) a repayment by Seller on behalf of Opco of the B Note by an

 

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amount equal to 55% of the Aggregate Price Adjustment. Notwithstanding the foregoing, to the extent that the repayment to be made pursuant to clause (y) of the immediately preceding sentence exceeds the then-outstanding principal of the B Note (such excess, the “ Adjustment Shortfall ”), then Seller shall make a repayment on behalf of Opco of the A Note by an amount equal to the Adjustment Shortfall.

(d) Notwithstanding anything to the contrary set forth herein, there shall be no payment to Buyer or reduction in the principal of the A Note or the B Note, as applicable, with respect to the Aggregate Price Adjustment pursuant to Section 2.11(c) to the extent that the Aggregate Price Adjustment is less than $10 million.

(e) Subject to the Sub-Basket and the Cap, as applicable, if, prior to obtaining the consent of the applicable counterparty to an Applicable Contract to the Transaction, at any time between the date hereof through the Adjustment Date such counterparty requires as a condition to its consent the payment of a fee, then Seller shall pay such fee to such counterparty (any such payments, the “ Consent Payments ”); provided , however, that Seller shall not make, or agree to make, any Consent Payments to any third party in excess of the total amount reimbursable to Opco hereunder, unless such excess amount does not count against the Sub-Basket and/or decrease the Cap, as applicable.

(f) The aggregate amount of any Applicable Termination Price Adjustment, any Applicable Renegotiation Price Adjustment and any Consent Payments shall decrease the Sub-Basket on a dollar-for-dollar basis, and any such amounts in excess of the Sub-Basket shall reduce the Cap on a dollar-for-dollar basis. No Applicable Termination Price Adjustment or Applicable Renegotiation Price Adjustment shall be made in excess of the then-applicable Cap.

Section 2.12 Asset Identification Process . During the period between the date hereof and the Transition Plan Start Date, Seller and Buyer shall cooperate with each other in good faith and use reasonable best efforts to more specifically identify with respect to all of the assets other than the assets set forth on Schedule 2.12 (which reflects assets that definitively will be Transferred Assets) (i) those assets that are required for, primarily related to, or primarily used, held for use, or were acquired or developed for use, in the Business, as currently conducted and proposed to be conducted by Seller and its Affiliates and the manner in which such assets will be transferred to, or rights to use such assets will be obtained for, Opco, (ii) those assets (other than those that are the subject of clause (i) of this Section 2.12) that are related to, or used, held for use, or were acquired or developed for use, in the Business as currently conducted and proposed to be conducted by Seller and its Affiliates , which shall be obtained by Opco with the use of the Transition Infrastructure Contribution, (iii) those assets that should be included in clause (i) of this Section 2.12 but are to be temporarily retained by Seller to enable Seller to provide the services under the Transition Service Agreement and subsequently transferred to Opco at the conclusion of such services, and (iv) those assets that should be included in clause (i) of this Section 2.12 but will remain Excluded Assets, but as to which Seller, at its sole expense, will procure an asset comparable in all respects for Opco in accordance with the Transition Plan (the “ Asset Identification Process ”). Each Party shall, and shall cause its Affiliates to, promptly

 

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execute, acknowledge and deliver any assurances or documents or instruments of transfer reasonably requested by another Party in accordance with Asset Identification Process. The Parties agree that, in the event any dispute arises in connection with the Asset Identification Process, such dispute shall be resolved in accordance with the dispute resolution process described under the heading “Dispute Resolution” in Schedule 5.3(b), and such resolution shall be final and binding on the Parties.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF SELLER

Seller (and FTFC where indicated) represents and warrants to Buyer as follows:

Section 3.1 Organization and Qualification; Capitalization . (a) Seller is a bank duly organized, validly existing and in good standing under the laws of the State of Ohio and has all requisite corporate power and authority to own, lease and operate its assets, and, together with FTFC, to carry on the Business as currently conducted. FTFC is a corporation duly organized, validly existing and in good standing under the laws of the State of Ohio and has all requisite corporate power and authority to own, lease and operate its assets, and to carry on its business as currently conducted. Each of the Companies and FTPS Partners is, and upon its formation, CMC LLC will be, a limited liability company duly formed, validly existing and in good standing under the laws of its jurisdiction and has all requisite limited liability company power and authority to own, lease and operate its assets, and to carry on its business as currently conducted. As of the Closing, each of the Companies, FTPS Partners and CMC LLC will have all requisite limited liability company power and authority to own, lease and operate its assets, and, together with the Canadian Sub, to carry on the Business as currently conducted. Seller is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ownership or operation of the Transferred Assets or the conduct of the Business (other than the Canadian Sub) requires such qualification, except for failures to be so qualified or in good standing, as the case may be, that would not, individually or in the aggregate, impair or delay Seller’s or the Companies’ ability to perform their respective obligations hereunder.

(b) Upon the consummation of the Closing, the capital structure of Holdco will be as set forth in the Holdco LLC Agreement. As of the Closing, (i) all of the Holdco LLC Interests and CMC LLC Interests will have been duly authorized and validly issued and will be fully paid and nonassessable, (ii) 100% of the Holdco LLC Interests will be owned beneficially and of record by Seller and FTPS Partners (at least 1% of which Holdco LLC Interests will be owned by FTPS Partners), free and clear of all Encumbrances, and 100% of the CMC LLC Interests will be owned beneficially and of record by Opco, free and clear of all Encumbrances, (iii) there will be no preemptive or other outstanding rights, options, warrants, conversion rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller, FTPS Partners, CMC LLC or Holdco is or may become obligated to issue or sell, or giving any Person a right to subscribe for or acquire, or in any way dispose of, any membership interests or other equity interests, or any securities or obligations exercisable or exchangeable for or convertible into any membership interests or other equity

 

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interests of Holdco, and no securities or obligations evidencing such rights will be authorized, issued or outstanding, other than the Warrant and as set forth in the Holdco LLC Agreement, (iv) the Holdco LLC Interests will not be subject to any voting trust agreement or other contract, agreement or arrangement restricting or otherwise relating to the voting, dividend or similar rights or disposition of the Holdco LLC Interests other than as set forth in the Holdco LLC Agreement or as created by Buyer or its Affiliates and (v) there will be no phantom stock or similar rights providing economic benefits based, directly or indirectly, on the value or price of the Holdco LLC Interests or other equity interests of Holdco, except as created by Buyer or its Affiliates, other than as set forth in the Holdco LLC Agreement.

(c) Upon the consummation of the Closing, the capital structure of Opco will be as set forth in the Opco LLC Agreement. As of the Closing, (i) all of the Opco LLC Interests will have been duly authorized and validly issued and will be fully paid and nonassessable, (ii) 100% of the Opco LLC Interests will be owned beneficially and of record by Holdco, free and clear of all Encumbrances, (iii) there will be no preemptive or other outstanding rights, options, warrants, conversion rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Holdco or Opco is or may become obligated to issue or sell, or giving any Person a right to subscribe for or acquire, or in any way dispose of, any membership interests or other equity interests, or any securities or obligations exercisable or exchangeable for or convertible into any membership interests or other equity interests of Opco, and no securities or obligations evidencing such rights will be authorized, issued or outstanding, (iv) the Opco LLC Interests will not be subject to any voting trust agreement or other contract, agreement or arrangement restricting or otherwise relating to the voting, dividend or similar rights or disposition of the Opco LLC Interests other than as set forth in the Opco LLC Agreement and (v) there will be no phantom stock or similar rights providing economic benefits based, directly or indirectly, on the value or price of the Opco LLC Interests or other equity interests of Opco.

(d) Upon the consummation of the Closing, the capital structure of CMC LLC will be as set forth in the CMC LLC Agreement. As of the Closing, (i) all of the CMC LLC Interests will have been duly authorized and validly issued and will be fully paid and nonassessable, (ii) 100% of the CMC LLC Interests will be owned beneficially and of record by Opco, free and clear of all Encumbrances, (iii) there will be no preemptive or other outstanding rights, options, warrants, conversion rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Holdco or Opco is or may become obligated to issue or sell, or giving any Person a right to subscribe for or acquire, or in any way dispose of, any membership interests or other equity interests, or any securities or obligations exercisable or exchangeable for or convertible into any membership interests or other equity interests of Opco, and no securities or obligations evidencing such rights will be authorized, issued or outstanding, (iv) the CMC LLC Interests will not be subject to any voting trust agreement or other contract, agreement or arrangement restricting or otherwise relating to the voting, dividend or similar rights or disposition of the CMC LLC Interests other than as set

 

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forth in the CMC LLC Agreement and (v) there will be no phantom stock or similar rights providing economic benefits based, directly or indirectly, on the value or price of the CMC LLC Interests or other equity interests of CMC LLC.

(e) As of the date hereof, CMC is a corporation duly organized, validly existing and in good standing under the laws of the State of Indiana and has all requisite corporate power and authority to own, lease and operate its assets and to carry on its business as currently conducted, and is not subject to any insolvency, liquidation, receivership, conservatorship or other similar proceeding. As of the date hereof, CMC is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ownership or operation of its assets or the conduct of its business requires such qualification, except for failures to be so qualified or in good standing, as the case may be, that would not, individually or in the aggregate, be material to the Business or the consummation of the Transactions.

(f) As of the Closing, (i) all of issued and outstanding stock of the Canadian Sub will have been duly authorized and validly issued and will be fully paid and nonassessable, (ii) 100% of the issued and outstanding stock of the Canadian Sub will be owned beneficially and of record by FTFC, free and clear of all Encumbrances, (iii) there will be no preemptive or other outstanding rights, options, warrants, conversion rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which the Canadian Sub may become obligated to issue or sell, or giving any Person a right to subscribe for or acquire, or in any way dispose of, any stock, or any securities or obligations exercisable or exchangeable for or convertible into stock of the Canadian Sub, and no securities or obligations evidencing such rights will be authorized, issued or outstanding, other than as provided in this Agreement, (iv) the Transferred Canadian Sub Stock will not be subject to any voting trust agreement or other contract, agreement or arrangement restricting or otherwise relating to the voting, dividend or similar rights or disposition of the Transferred Canadian Sub Stock, other than as provided in this Agreement and (v) there will be no phantom stock or similar rights providing economic benefits based, directly or indirectly, on the value or price of the stock of the Canadian Sub.

(g) The Canadian Sub is a corporation duly organized, validly existing and in good standing under the federal laws of Canada and has all requisite corporate power and authority to own, lease and operate its assets and to carry on its business as currently conducted, and is not subject to any insolvency, liquidation, receivership, conservatorship or other similar proceeding. The Canadian Sub is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ownership or operation of its assets or the conduct of its business requires such qualification, except for failures to be so qualified or in good standing, as the case may be, that would not, individually or in the aggregate, be material to the Business or the consummation of the Transactions.

 

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Section 3.2 Authorization . Each of Seller and FTFC has full corporate power and authority and each of the Companies has full limited liability company power and authority to execute and deliver this Agreement, and Seller, FTFC and each of the Companies will have such power and authority at Closing to execute and deliver each of the Ancillary Agreements and other Closing documents referenced herein to which it is a party and to perform its obligations hereunder and thereunder. The execution, delivery and performance by Seller, FTFC and each of the Companies of this Agreement has been duly and validly authorized and of each of the Ancillary Agreements and other Closing documents referenced herein to which Seller, FTFC and the Companies is a party will be duly and validly authorized at Closing, and no additional corporate, shareholder or limited liability company authorization or consent is required in connection with the execution, delivery and performance by Seller, FTFC and the Companies of this Agreement or will be required in connection with the execution, delivery and performance by Seller, FTFC and the Companies at Closing of any of the Ancillary Agreements and other Closing documents referenced herein to which they are a party. Each Affiliate of Seller has or prior to the Closing will have full corporate power and authority to execute and deliver each Ancillary Agreement or other Closing document referenced herein to which it is a party and to perform its obligations thereunder. The execution, delivery and performance by each Affiliate of Seller of each Ancillary Agreement or other Closing document referenced herein to which it is a party has been or prior to the Closing will have been duly and validly authorized, and no additional corporate or shareholder authorization or consent is or will be required in connection with the execution, delivery and performance by any Affiliate of Seller of the Ancillary Agreements or other Closing documents referenced herein to which such Affiliate is a party or signatory.

Section 3.3 Consents and Approvals . Except as set forth on Schedule 3.3(a) or Schedule 3.3(b), no consent, approval, waiver, authorization, notice or filing in relation to the Transferred Assets, or the transfer of the Transferred Canadian Sub Stock to Buyer by FTFC, is required to be obtained by any of Seller, FTFC or the Companies from, or to be given by any of Seller, FTFC or the Companies to, or made by any of Seller, FTFC or the Companies with, any Government Entity or Self-Regulatory Organization, in connection with the execution, delivery and performance by any of Seller, FTFC or the Companies of this Agreement and the Ancillary Agreements or the other Closing documents referenced herein to which it is a party, other than those the failure of which to obtain, give or make would not, individually or in the aggregate, materially impact the value of the Transferred Assets and the assets of the Canadian Sub, taken as a whole, or materially impair or delay the ability of any of Seller, FTFC or the Companies to effect the Closing or to perform their respective obligations under this Agreement and the Ancillary Agreements and the other Closing documents referenced herein to which any of them is a party. Schedule 3.3(c) sets forth all consents, approvals, waivers, authorizations, notices or filings that are required to be obtained by any of Seller, FTFC or the Companies from, or to be given by any of Seller, FTFC or the Companies to, or made by any of Seller, FTFC or the Companies with, any Person which is not a Government Entity or Self-Regulatory Organization in connection with the sale or assignment of any Transferred Contracts, except that in the case of a Transferred Contract with a customer of the Business, Schedule 3.3(c) shall only be required to list Transferred Contracts pursuant to which the Business was entitled to receive $1,000,000 or more of 2008 Net Revenues.

 

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Section 3.4 Non-Contravention . The execution, delivery and performance by Seller, FTFC and each of the Companies of this Agreement and the Ancillary Agreements and other Closing documents referenced herein to which it is a party, and the consummation of the Transactions, do not, in the case of this Agreement, and will not as of the Closing, in the case of this Agreement, the Ancillary Agreements and other Closing documents referenced herein, (i) violate any provision of the Articles of Incorporation, Bylaws or other organizational documents of Seller, FTFC, the Canadian Sub or the Preclosing LLC Agreements, (ii) assuming the receipt of all consents, approvals, waivers and authorizations and the making of the notices and filings set forth on Schedule 3.3(c), conflict with, or result in the breach of, or constitute a default under, or result in the termination, cancellation, modification or acceleration (whether after the filing of notice or the lapse of time or both) of any right or obligation of Seller, any of its Affiliates or the Companies or the Canadian Sub, as the case may be, under, or result in a loss of any benefit to which Seller, any of its Affiliates, the Companies or the Canadian Sub, as the case may be, is entitled under, any Transferred Contract, or result in the creation of any Encumbrance upon any of the Transferred Assets or material assets of the Canadian Sub, or (iii) assuming the receipt of all consents, approvals, waivers and authorizations and the making of notices and filings set forth on Schedules 3.3(a) and 3.3(b), respectively, or required to be made or obtained by Buyer, to the Seller’s Knowledge and FTFC’s Knowledge (in the case of FTFC, only with respect to the Canadian Sub), violate or result in a breach of or constitute a default under any Law to which any of Seller, any of its Affiliates or the Companies is subject, or under any Governmental Authorization, other than, in the cases of clauses (ii) and (iii), conflicts, breaches, terminations, defaults, cancellations, accelerations, losses, violations or Encumbrances that would not, individually or in the aggregate, have a Material Adverse Effect or materially impair or delay the ability of any of Seller, FTFC or the Companies to perform its respective obligations hereunder.

Section 3.5 Binding Effect . This Agreement, when executed and delivered by Buyer, constitutes, and each of the Ancillary Agreements and other Closing documents referenced herein to which any of Seller, FTFC or the Companies is a party, when executed and delivered by Seller and the Companies, Buyer and the other parties thereto, as applicable, will constitute, a valid and legally binding obligation of Seller, FTFC and such Companies, as applicable, enforceable against Seller, FTFC and such Companies, as applicable, in accordance with its respective terms.

Section 3.6 Financial Statements . Set forth on Schedule 3.6(a) is (i) a copy of the audited balance sheets as of December 31, 2006 and 2007 and audited statements of income and cash flows for the years ended December 31, 2006 and 2007, of each of the Electronic Funds Transfer Business of Fifth Third Bancorp (the “ EFT Business ”) and the Merchant Transaction Processing Business of Fifth Third Bancorp, which for the sake of clarity includes the business of CMC (the “ Merchant Processing Business ”) (collectively, with the audited balance sheet as of December 31, 2007 and 2008 and audited statements of income and cash flows for the years ended December 31, 2006, 2007 and 2008 of the consolidated Business (excluding the Canadian Sub) to be delivered by Seller no later than March 31, 2009, the “ Audited Financial Statements ”), (ii) a copy of the unaudited balance sheet and statement of income and cash flows of each of the EFT Business and the Merchant Processing Business as of and for the six months ended June 30, 2007 and 2008, excluding the Canadian Sub (the “ Unaudited US Financial Statements ”), and (iii) a copy of the unaudited balance sheet as of May 31, 2009 and the

 

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unaudited income statement of the Canadian Sub for the two months ended May 31, 2009 (the “ Unaudited Canadian Financial Statements ”; and together with the Unaudited US Financial Statements, the “ Unaudited Financial Statements ” and, together with the Audited Financial Statements, the “ Historical Financial Statements ”). Except as described in the notes thereto and for the absence of statements of stockholders’ equity, the Historical Financial Statements have been (or, in the case of the 2008 Audited Financial Statements and the consolidated 2006 and 2007 Audited Financial Statements, when delivered will be) specially prepared for purposes of this Agreement in accordance with GAAP consistently applied consistent with Seller’s past practices, and fairly present, in all material respects, the financial condition and results of operations and cash flows of the Business (other than the Canadian Sub) as of the dates thereof or the periods then ended, subject in the case of the Unaudited Financial Statements to normal year-end adjustments that will not, individually or in the aggregate, be material in amount or effect and the absence of footnotes and similar presentation items therein. Except as described in the notes thereto and for the absence of statements of stockholders’ equity, the Unaudited Canadian Financial Statement have been prepared by Seller in good faith from the books and records of the Canadian Sub consistent with Seller’s past practices for internal reporting of the financial condition and results of operation of the Business and fairly present, in all material respects, the financial condition and results of operations of the Canadian Sub as of the date thereof or the period then ended, subject to normal year-end adjustments that will not, individually or in the aggregate, be material in amount or effect and the absence of footnotes and similar presentation items therein. Set forth on Schedule 3.6(b) is a copy of the unaudited statement of earnings before interest and taxes for the electronic payment processing business and the unaudited consolidated statement of current assets and current liabilities as of and for the two months ended February 28, 2009 (the “ Two Month Financials ”). The Two Month Financials have been prepared by Seller in good faith from the books and records of the Business consistent with Seller’s past practices for internal reporting of the financial condition and results of operation of the businesses. Schedule 3.6(c) represents Seller’s reasonable, good faith estimate, after due inquiry, of the Opco’s costs for Allocated Services and Assets during the transition period under the Transition Service Agreement, assuming Opco uses systems, benefits and incentive plans similar to those currently deployed by Seller. There are no off balance sheet transactions, arrangements, obligations or relationships attributable to the Business that may have a Material Adverse Effect, other than those summarized on Schedule 3.6(d). Seller and its Affiliates maintain adequate internal controls for the Business, except as would not have a Material Adverse Effect.

Section 3.7 Litigation and Claims . Except as set forth on Schedule 3.7:

(a) There is no Legal Proceeding pending, or to the Seller’s Knowledge or FTFC’s Knowledge (in the case of FTFC, only with respect to the Canadian Sub), threatened, against any of Seller or any of its Affiliates in connection with the Transferred Assets, the Business or the Transactions, other than those that, if adversely determined, do not and would not reasonably be expected to (i) involve a claim for damages to the Business in excess of $1,000,000, (ii) lead to the seeking of injunctive relief, or (iii) materially impair or delay the ability of any of Seller. FTFC or the Companies to effect the Closing.

 

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(b) None of Seller, its Affiliates, the Business or the Transferred Assets is subject to any Order affecting the Business, the Transferred Assets or the Transaction, other than those that, if adversely determined, do not and would not reasonably be expected to (i) involve a claim for damages to the Business in excess of $1,000,000, (ii) seek injunctive relief, or (iii) materially impair or delay the ability of any of Seller, the Companies or FTFC (with respect to the Canadian Sub only) to effect the Closing.

Section 3.8 Employees and Employee Benefits . (a) Schedule 3.8(a) set forth a correct and complete list of all Benefit Plans for Applicable Employees. Seller has made available to Buyer true and complete copies of the most recent plan document (including all amendments thereto) and the most recent summary plan description (or a written description of all non-written Benefit Plans) of Seller’s and its Affiliates’ Benefit Plans applicable to Applicable Employees.

(b) None of Seller, its Subsidiaries or any ERISA Affiliate has any liability under Title IV of ERISA that would reasonably be expected to become a Liability of the Companies. An ERISA Affiliate for purposes of this Section 3.8(b) shall mean any person or entity that would be considered, when combined with Seller or any of its Subsidiaries, a simple employer pursuant to Section 414(b), (c) and (m) of the Code.

(c) The Benefit Plans have been maintained in all material respects in accordance with their terms and with the Laws (including, as applicable, ERISA and the Code). There are no pending actions, claims or lawsuits (other than routine claims for benefits (or as disclosed in Schedule 3.7)) arising from or relating to the Benefit Plans. To the Seller’s Knowledge, neither the Companies nor any of their respective Subsidiaries have any direct or indirect liability with respect to any misclassification of any person as an independent contractor rather than as an employee or with respect to any employee leased from another employer.

(d) Except as provided in Schedule 3.8(d), none of the Benefit Plans provides for post-employment health or welfare benefit for any person beyond his or her retirement or other termination of service, except (i) as may be required under COBRA Coverage or similar state law, or (ii) disability benefits under a welfare plan that is fully provided for by insurance.

(e) Except as provided in Schedule 3.8(e), neither the execution and delivery of this Agreement nor the consummation of the Transactions will (i) result in any payment becoming due to any Applicable Employee under a Benefit Plan or other compensatory arrangement, (ii) increase any benefits otherwise payable under any Benefit Plan to any Applicable Employee, or (iii) result in the acceleration of the time of payment or vesting of any such benefits under any Benefit Plan to any Applicable Employee. The consummation of the Transactions contemplated by this Agreement will not cause any payments to be made by the Companies, Seller or any of their respective Affiliates that would be non-deductible (in whole or in part) under Section 280G of the Code.

 

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(f) Each Benefit Plan intended to be qualified under Section 401 of the Code has received a favorable determination letter from the Internal Revenue Service and Seller is not aware of any circumstances that have occurred with respect to the operation of such Benefit Plan that could reasonably be expected to cause the loss of such qualification or exemption or the imposition of any material liability, penalty or tax under ERISA or the Code.

Section 3.9 Compliance with Laws . Except as disclosed on Schedule 3.9, (i) the Business has been (exclusive of the Canadian Sub) for the period beginning January 1, 2006 and currently is being (inclusive of the Canadian Sub) conducted in compliance in all material respects with all applicable Laws, (ii) neither Seller nor any of its Affiliates has (A) received any notice alleging any violation under any applicable Law or (B) received or entered into any Order, and (iii) the Business has in full force and effect all Governmental Authorizations and Non-Governmental Authorizations necessary for the conduct of the Business as currently conducted other than those the absence of which is immaterial; it being understood that nothing in this representation is intended to address any compliance issue that is specifically addressed by any other representation or warranty set forth herein. Neither Seller nor the Canadian Sub maintains or conducts with respect to the Business, and since January 1, 2007 Seller has not maintained or conducted with respect to the Business, any business, investment, operation or other activity in or with: (a) any country or person targeted by any of the economic sanctions of the United States of America administered by the United States Treasury Department’s Office of Foreign Assets Control; (b) any person appearing on the list of Specially Designated Nationals and Blocked Persons issued by the United States Treasury Department’s Office of Foreign Assets Control; or (c) any country or person designated by the United States Secretary of the Treasury pursuant to the USA PATRIOT Act as being of “primary money laundering concern.”

Section 3.10 Intellectual Property . (a) Schedule 3.10(a) sets forth a complete and accurate list of all (i) material registrations and applications for registration of Intellectual Property owned by Seller or any of its Affiliates and (ii) material unregistered Trademarks owned by Seller or any of its Affiliates, in each of clauses (i) and (ii), that are used, held for use or acquired or developed for use in the Business as currently conducted and proposed to be conducted by Seller and its Affiliates. Schedule 3.10(a) lists (i) the jurisdictions in which each such item of Intellectual Property has been issued or registered, or in which any such application for such issuance and registration has been filed, (ii) the record owner or applicant and (iii) the registration or application date and number, as applicable. All of Seller’s or its Affiliates’ rights to the Intellectual Property set forth on Schedule 3.10(a) that is primarily used, held for use or acquired or developed for use in the Business is included in the Transferred Intellectual Property, except to the extent specifically included in Schedule 1.1(c) as Excluded Assets, and will be exclusively owned by Opco or, in the case of the Transferred Intellectual Property of the Canadian Sub, by the Canadian Sub, at the Closing.

(b) Except as set forth in Schedule 3.10(b), all of the Intellectual Property set forth in Schedule 3.10(a) owned by Seller or any of its Affiliates is subsisting, and all necessary registration, maintenance, renewal, and other relevant filing fees due through the date hereof in connection therewith have been timely paid and all necessary documents and certificates in connection therewith have been timely filed with the relevant patent, copyright, trademark, or other authorities in the

 

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United States or foreign jurisdictions, as the case may be, for the purposes of maintaining such registered Intellectual Property in full force and effect. Except as set forth in Schedule 3.10(b), there are no filings, payments or similar actions that must be taken by Opco or the Canadian Sub within 30 days following the Closing Date for the purposes of obtaining, maintaining, perfecting or renewing any such registrations and applications.

(c) Seller and its Affiliates exclusively own or have the right to use (pursuant to valid and enforceable agreements) all Intellectual Property currently used or proposed to be used in the Business by Seller and its Affiliates, except where the lack of such right would not, individually or in the aggregate, have a material adverse effect on the operation of the Business. The Transferred Intellectual Property, together with the Seller Licensed Intellectual Property, the Intellectual Property to be obtained from third parties pursuant to the Asset Identification Process and the Transition Plan, includes all of the Intellectual Property necessary and sufficient for the conduct of the Business in all material respects as currently conducted and proposed to be conducted by Seller and its Affiliates and, immediately after the Closing, necessary for Opco, together with the Canadian Sub, to continue to operate and conduct the Business in all material respects as currently conducted and proposed to be conducted by Seller and its Affiliates. No employee, former employee, consultant or independent contractor of Seller or any of its Affiliates has any right, title or interest, directly or indirectly, in whole or in part, in any material Transferred Intellectual Property or Transferred Technology owned by Seller or any of its Affiliates. To the Seller’s Knowledge and FTFC’s Knowledge (in the case of FTFC, only with respect to the Canadian Sub), no employee, former employee, consultant or independent contractor of Seller or any of its Affiliates engaged in the Business is, as a result of or in the course of such employee’s, former employee’s, consultant’s or independent contractor’s engagement, in default or breach of any material term of any employment agreement, non-disclosure agreement, assignment of invention agreement or similar agreement with a third party.

(d) All of the Transferred Intellectual Property and Seller Licensed Intellectual Property owned by Seller or any of its Affiliates is valid and enforceable. To the Seller’s Knowledge and FTFC’s Knowledge (in the case of FTFC, only with respect to the Canadian Sub), except as set forth in Schedule 3.7, neither the conduct of the Business nor any of the Transferred Intellectual Property, Transferred Technology or Seller Licensed Intellectual Property owned by Seller or any of its Affiliates or the products sold or services provided by Seller or any of its Affiliates in connection with the Business infringes upon, constitutes or results from a misappropriation of, or otherwise violates the Intellectual Property rights of any other Person. To the Seller’s Knowledge and FTFC’s Knowledge (in the case of FTFC, only with respect to the Canadian Sub), none of the Transferred Intellectual Property or Seller Licensed Intellectual Property owned by Seller or any of its Affiliates is being infringed upon, misappropriated or violated by any other Person.

 

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(e) Schedule 3.10(e) sets forth a complete and accurate list of all agreements, contracts or commitments to which Seller or any of its Affiliates is a party limiting or that would limit its ability to exploit fully any of the Transferred Intellectual Property in any manner that would be material to the Business as of the date hereof or upon Closing. Seller has made available to Buyer true, correct and complete copies of each agreement set forth in Schedule 3.10(e) together with all amendments, modifications or supplements thereto. The Seller and its Affiliates have all rights necessary to grant the licenses and other rights granted under the IP/Software License Agreement.

(f) Except as set forth in Schedule 3.10(f), neither the execution of this Agreement, the consummation of the transactions contemplated by this Agreement, nor the conduct of the business and operations of Seller or any of its Affiliates as currently conducted and proposed to be conducted will result in Opco, the Canadian Sub, Seller or any of its Affiliates granting to any third party any right to any Technology or Intellectual Property owned by, or licensed to, Seller and its Affiliates.

(g) Except as set forth in Schedule 3.7, there is no litigation, opposition, cancellation, Legal Proceeding, objection or claim pending, asserted in writing or, to the Seller’s Knowledge or FTFC’s Knowledge (in the case of FTFC, only with respect to the Canadian Sub), threatened by any third party against Seller or any of its Affiliates, before any court or tribunal (including the United States Patent and Trademark Office or equivalent authority anywhere in the world) concerning the exclusive ownership, validity, registerability, enforceability, infringement or use of any Transferred Intellectual Property, Transferred Technology or Seller Licensed Intellectual Property owned by Seller or any of its Affiliates, nor has any claim or demand been made in writing against Seller or any of its Affiliates by any third party that (i) challenges the validity, enforceability, use or exclusive ownership of any Transferred Intellectual Property, Transferred Technology or Seller Licensed Intellectual Property or (ii) alleges any infringement, misappropriation or violation of any Intellectual Property of any third party, or unfair competition or trade practices, by Seller or any of its Affiliates, nor is Seller or FTFC (in the case of FTFC, only with respect to the Canadian Sub) aware of any basis for any such claim or demand.

(h) Seller and its Affiliates (i) have taken reasonable measures, in their business judgment, to protect, maintain and preserve the (A) operation and security of their Software, firmware, middleware, servers, systems, networks, workstations, data communication lines and all other information technology equipment used, held for use or acquired or developed for use in the Business as currently conducted and proposed to be conducted by Seller and its Affiliates, (B) the secrecy and confidentiality of all Trade Secrets and confidential and proprietary information used, held for use or acquired or developed for use in the Business as currently conducted and proposed to be conducted by Seller and its Affiliates and (C) Intellectual Property material to the Business (including by having and enforcing a policy (including the Code of Business Conduct and Ethics policy, which has been

 

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in effect for at least five years and a true and correct copy of which has provided to Buyer) that employees and appropriate consultants and agents maintain the confidentiality of their confidential information and to the extent they contributed to the development of any material Intellectual Property for Seller, assign to Seller all of their rights in any such material Intellectual Property that do not vest initially in Seller by operation of Law), (ii) abide by all internal policies and applicable Laws regarding the collection, use and disclosure of personally identifiable and other confidential information, including customer and client information and (iii) are not subject to any pending or, to the Seller’s Knowledge and FTFC’s Knowledge (in the case of FTFC, only with respect to the Canadian Sub), threatened claim that alleges a breach of any of the foregoing with respect to the Business.

(i) The Transferred Software and the Software that is included in the Seller Licensed Intellectual Property, unless modified other than by or for Seller or any of its Affiliates, conform in all material respects to all written specifications for their use in the conduct of the Business as currently conducted and are free in all material respects of bugs, errors, viruses and other contaminants.

(j) Schedule 3.10(j) sets forth a complete and accurate list of (i) all Transferred Software owned exclusively by Seller and its Affiliates and that is material to the Business, (ii) all other material Software primarily used, held for use or acquired or developed for use in the Business as currently conducted and proposed to be conducted in the Business that is not exclusively owned by Seller and its Affiliates and (iii) all other material Software used, held for use or acquired or developed for use in the Business as currently conducted and proposed to be conducted in the Business that is not subject to the foregoing (i) or (ii), but in each case excluding “shrink wrap,” “click through,” “browse wrap,” commercial-off-the-shelf or other similar software available on reasonable terms for a license fee of no more than $500,000.

(k) No open source Software, freeware or other Software distributed under similar licensing or distribution models (including Software licensed or distributed under GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL), the Artistic License (e.g., PERL), the Mozilla Public License, the Netscape Public License, the Sun Community Source License (SCSL), the Sun Industry Standards License (SISL), the BSD License or the Apache License) has been incorporated into any Transferred Software owned by Seller or any of its Affiliates that would in any way obligate Seller or any of its Affiliates to disclose to any third party the source code for any such Transferred Software. None of the Sellers or any of their respective Affiliates has provided, or is obligated to provide, to any third party, the source code for any Software owned by any of the Sellers or their respective Affiliates that is included in Transferred Software.

(l) The information technology systems of Seller and its Affiliates are reasonably secure against intrusion. Except as set forth in Schedule 3.10(l), Seller and its Affiliates have not suffered any security breaches or any similar failures (other than with respect to any such breaches or failures occurring in

 

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systems maintained by customers of the Business for which the Business is not at fault) in the past five years, including any such breaches or failures that have resulted in a third party obtaining access to any confidential information of Seller, its Affiliates or any of their customers or suppliers, to the extent such breaches or failures have affected the Business in any material respect.

(m) Schedule 3.10(m) contains a copy of all privacy policies that have been used by or on behalf of Seller or any of its Affiliates in the Business with regard to the collection and use of information and the dates that each such policy was in place. Seller and its Affiliates are in compliance with all such privacy policies and all laws and regulations relating to data, the collection and use of data, personally identifiable information, and bulk commercial faxes and email (e.g., spam).

Section 3.11 Labor . (a) Neither Seller nor its Affiliates is or has ever been a party to or bound by any labor agreement, union contract or collective bargaining agreement with respect to the Business or any Applicable Employee.

(b) For the past three years there have been no and there are no pending, or to the Seller’s Knowledge or FTFC’s Knowledge (in the case of FTFC, only with respect to the Canadian Sub) threatened, strike, walkout or other work stoppage or any union organizing effort by or on behalf of any of the Applicable Employees.

(c) For the past three years there have been no and there are no unfair labor practice charges or complaints against any of Seller or any of its Affiliates in connection with the Business or any Applicable Employee pending, or to Seller’s Knowledge or FTFC’s Knowledge (in the case of FTFC, only with respect to the Canadian Sub) threatened, before the National Labor Relations Board or other Government Entity, nor, to Seller’s Knowledge or FTFC’s Knowledge (in the case of FTFC, only with respect to the Canadian Sub), is there any legal basis for such charge or complaint.

(d) Seller and its Affiliates operate, and for the past three years have operated, the Business in compliance in all material respects with all Laws relating to the employment of labor, including all such laws, regulations and orders relating to wages, hours, the Fair Labor Standards Act, the Worker Adjustment and Retraining Notification Act and any similar state or local “mass layoff” or “plant closing” Law (“ WARN ”), collective bargaining, discrimination, civil rights, safety and health, workers’ compensation and the collection and payment of withholding and/or social security Taxes and any similar Tax, and there has been no “mass layoff” or “plant closing” as defined by WARN with respect to Seller or any of its Affiliates within the six (6) months prior to Closing.

Section 3.12 Transferred Contracts . All Transferred Contracts are in full force and effect and to Seller’s Knowledge and FTFC’s Knowledge (in the case of FTFC, only with respect to the Transferred Contracts of the Canadian Sub) are enforceable against each party

 

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thereto in accordance with the express terms thereof, except as set forth in Schedule 3.12. There does not exist under any Transferred Contract any violation, breach or event of default, or alleged violation, breach or event of default, or event or condition that, after notice or lapse of time or both, would constitute a violation, breach or event of default thereunder on the part of any of Seller or its Affiliates or, to the Seller’s Knowledge or FTFC’s Knowledge (in the case of FTFC, only with respect to the Canadian Sub), any other party thereto, except as set forth in Schedule 3.12 and except for violations, breaches, events or conditions that, individually or in the aggregate, (i) would not have a Material Adverse Effect or (ii) have not and will not materially impair the ability of any of Seller or its Affiliates or Buyer to perform their respective obligations under this Agreement or any Ancillary Agreement or other Closing document referenced herein to which it is a party. There are no material disputes pending or threatened under any Transferred Contract that would have a Material Adverse Effect. Except as set forth in Schedule 3.12, the contracts included in the Transferred Assets and the Transferred Contracts of the Canadian Sub do not include any of the following: (a) leases of real or personal property, except leases of personal property that require payment during their remaining term of less than $1,000,000; (b) loan or credit agreements, indentures, mortgages, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guarantees; (c) fidelity or surety bonds or completion bonds; (d) agreements of indemnification or guaranty of another Person (other than customary indemnification provisions contained in Transferred Contracts with customers); (e) agreements, contracts or commitments containing any covenant limiting the freedom of Seller or the Canadian Sub in any material respect to engage in the Business; (f) any agreements, contracts or commitments relating to capital expenditures involving future payments of $1,000,000 or more ( it being understood that such expenditures shall not be deemed to include any potential penalties regarding a violation of a term related to the level of service under such agreement, contract or commitment); (g) agreements, contracts or commitments relating to the disposition of assets outside the Ordinary Course; (h) agreements, contracts or commitments with Affiliates of Seller; (i) contracts with any Government Entity; or (j) contracts (other than Transferred Contracts) primarily relating to the Business or the Transferred Assets to which any of Seller or its Affiliates is a party or by which any of the Transferred Assets are bound. True, correct and complete copies of the Transferred Contracts (or true, correct and complete summaries of any Transferred Contracts that are not in writing) have been made available to Buyer.

Section 3.13 Absence of Changes . Except as set forth in Schedule 3.13, since December 31, 2007 (other than respect to the Canadian Sub), and since May 31, 2009 with respect to the Canadian Sub, to FTFC’s Knowledge, (i) Seller and each its Affiliates (x) have conducted the Business only in the Ordinary Course, and (y) the Business has not experienced any event or condition, and to Seller’s Knowledge or FTFC’s Knowledge (in the case of FTFC, only with respect to the Canadian Sub), no event or condition is threatened, that would, individually or in the aggregate, have a Material Adverse Effect, (ii) none of the actions or events prohibited or circumscribed by Section 5.2 has been taken or has occurred, except as permitted by this Agreement, (iii) neither FTFC nor the Seller has transferred, leased or otherwise disposed of any of the assets or properties of the Business or acquired any assets or properties for the Business, other than in each case in the Ordinary Course or as permitted by this Agreement, (iv) there has not been any change by any of Seller or its Affiliates or FTFC in accounting or Tax reporting principles, methods or policies that would have the effect of increasing the Tax liability for the Companies, the Canadian Sub or CMC LLC for any period ending after the Closing Date

 

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or decreasing any Tax attribute existing on the Closing Date, and (v) neither Seller nor FTFC has made or rescinded any election relating to Taxes or settled or to Seller’s Knowledge or FTFC’s Knowledge (in the case of FTFC, only with respect to the Canadian Sub) compromised any claim, action, suit, litigation, Legal Proceeding, arbitration, investigation, audit or controversy relating to Taxes that would have the effect of increasing the Tax liability for the Companies, the Canadian Sub or CMC LLC for any period ending after the Closing Date or decreasing any Tax attribute existing on the Closing Date.

Section 3.14 Sufficiency of Assets . Except for the Excluded Assets, the Excluded Services and other items set forth on Schedule 3.14(a), the Transferred Assets and the assets of CMC and the Canadian Sub, when taken together with the Seller Services and the Seller Leased Property, constitute all the assets, properties, contracts, Governmental Authorizations, Non-Governmental Authorizations and rights, tangible and intangible (including Intellectual Property and Software), of Seller and its Affiliates necessary to conduct the Business in all material respects as currently conducted and, immediately after the Closing, necessary for Opco, together with the Canadian Sub, to continue to operate and conduct the Business in all material respects as currently conducted. The Transferred Assets transferred at the Closing will include the assets set forth on Schedule 3.14(b) on the basis set forth therein.

Section 3.15 Title to Property . Seller has, and at the Closing Seller will transfer to the Companies, good and valid title to the personal tangible property it owns or leases that is included in the Transferred Assets, in each case free and clear of all Encumbrances, except Permitted Encumbrances.

Section 3.16 Absence of Liabilities . Except as specifically reflected, reserved against or otherwise disclosed in the Historical Financial Statements or Canadian Financial Statements or reflected in Reference Working Capital or as set forth on Schedule 3.16, there are no Liabilities of the Business or related to the Transferred Assets, other than the Notes and Liabilities that were incurred in the Ordinary Course since the date of the Historical Financial Statements and are not, individually or in the aggregate, material to the Business or are Excluded Liabilities.

Section 3.17 Finders’ Fees . Except for Credit Suisse Securities (USA) LLC, whose fees will be paid by Seller, there is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of any of Seller or its Affiliates who might be entitled to any fee or commission from any of Seller or its Affiliates in connection with the Transactions.

Section 3.18 Taxes . (a) There is no lien for Taxes upon any of the Transferred Assets or assets of CMC or the Canadian Sub or upon any of the equity interests in the Companies, CMC or the Transferred Canadian Sub Stock nor, to the Seller’s or FTFC’s Knowledge (in the case of FTFC, only with respect to the Canadian Sub), is any taxing authority in the process of imposing any lien for Taxes on any of the Transferred Assets or of the assets of the Canadian Sub or upon any of the equity interests in the Companies, CMC or the Transferred Canadian Sub Stock, other than liens for Taxes that (i) are not yet due and payable or for Taxes the validity or amount of which is being contested by any of Seller or its Affiliates or FTFC in

 

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good faith by appropriate action and (ii) have been sufficiently reflected or reserved against on the face of the balance sheets contained in the Historical Financial Statements.

(b) Since the date of the most recent balance sheet contained in the Historical Financial Statements, Seller, the Companies and FTFC have not incurred any material Taxes with respect to the Business, other than Taxes incurred in the Ordinary Course consistent in type and amount with the past practices of Seller or FTFC.

(c) All material Tax Returns with respect to, in connection with, associated with, or related to, the Business required to be filed by or on behalf of Seller, the Companies or FTFC, and all material Tax Returns of the Canadian Sub, have been timely filed and, when filed, were true, correct and complete. All material Taxes owed and/or due and payable by Seller, the Companies or FTFC (whether or not shown on any Tax Return) with respect to the Business, and all material Taxes owed and/or due and payable by the Canadian Sub (whether or not shown on any Tax Return) have been or will be timely paid by Seller, the Companies, FTFC, or the Canadian Sub, as the case may be, other than Taxes that (i) the validity or amount of which is being contested by the Seller or one of its Affiliates in good faith by appropriate action and (ii) have been sufficiently reflected or reserved against on the face of the balance sheets contained in the Historical Financial Statements. Seller, the Companies, and the Canadian Sub have withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party, and all information returns related to such amounts have been properly completed and timely filed.

(d) Opco is and since its inception has been properly classified as a disregarded entity for U.S. federal income tax purposes separate from Seller. From its inception until February 24, 2009, Holdco was properly disregarded as an entity separate from Seller for U.S. federal income tax purposes. Since February 24, 2009, Holdco has been classified as a partnership for U.S. federal income tax purposes. Neither Holdco nor Opco has ever been classified as a “publicly traded partnership” within the meaning of Section 7704(b) of the Code, or as an association taxable as a corporation for U.S. federal income tax purposes. FTPS Partners is an association taxable as a corporation for U.S. federal income tax purposes, and FTPS Partners has no plan or intention to, and Seller has no plan or intention to cause FTPS Partners to, liquidate, dissolve, merge with or into Seller, or elect to be treated as a disregarded entity for U.S. federal income tax purposes.

(e) All deficiencies asserted or assessments made as a result of any examinations by any Government Entity of the Tax Returns relating to the Transferred Assets, the Business, the Companies or the Canadian Sub have been fully paid, and there are no other audits or investigations by any Government Entity in progress, nor has any of Seller or its Affiliates or the Canadian Sub received any notice from any Government Entity that it intends to conduct such an audit or investigation relating to the Transferred Assets, the Business or the Canadian Sub.

 

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(f) No claim has been made by a Government Entity in a jurisdiction in which any of Seller or its Affiliates or the Canadian Sub does not currently file a Tax Return such that any of Seller or its Affiliates or the Canadian Sub is or may be subject to taxation by that jurisdiction in respect of the Transferred Assets, the Business or the Canadian Sub.

(g) No agreement, waiver or other document or arrangement extending or having the effect of extending the period for assessment or collection of Taxes (including, but not limited to, any applicable statute of limitation) or the period for filing any Tax Return, in each case with respect to the Companies or the Canadian Sub has been executed or filed with any Government Entity by or on behalf of Seller, the Companies, FTFC, or the Canadian Sub. Neither Seller nor the Companies, nor FTFC, nor the Canadian Sub have requested any extension of time within which to file any Tax Return with respect to the Companies, the Business, the Canadian Sub or the Transferred Assets, which Tax Return has since not been filed.

(h) Seller is not a “foreign person” within the meaning of section 1445 of the Code.

(i) None of the Transferred Assets is an interest (other than indebtedness within the meaning of section 163 of the Code) in an entity taxable as a corporation, partnership, trust or real estate mortgage investment conduit for federal income tax purposes.

(j) No power of attorney with respect to any Tax matter is currently in force with respect to the Transferred Assets, the Business, the Companies or the Canadian Sub that would, in any manner, bind, obligate or restrict the Companies or the Canadian Sub.

(k) Neither Seller nor any of its Affiliates nor the Canadian Sub has executed or entered into any agreement with, or obtained any consents or clearances from, any Government Entity, or has been subject to any ruling guidance specific to any Seller or its Affiliates or the Canadian Sub, that would be binding on the Companies or the Canadian Sub for any taxable period (or portion thereof) ending after the Closing Date.

(l) The Companies and the Canadian Sub (i) are not a party to and are not bound by any Tax sharing, indemnification or allocation agreement or arrangement, (ii) have not been a member of an affiliated group filing a consolidated, combined or unitary Tax Return and (iii) have no liability for the Taxes of any other person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law).

Section 3.19 Environmental Matters . (a) With respect to the Business, to the Seller’s Knowledge and FTFC’s Knowledge (in the case of FTFC, only with respect to the Canadian Sub), Seller and the Canadian Sub are in material compliance with all Laws relating to

 

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environmental contamination, pollution or the protection of the environment, natural resources or human health and safety as it relates to exposure to any harmful substance (“ Environmental Laws ”).

(b) With respect to the Business, to the Seller’s Knowledge and FTFC’s Knowledge (in the case of FTFC, only with respect to the Canadian Sub), none of Seller, FTFC or the Canadian Sub has received any notice of any claim, demand, action, suit, Legal Proceeding, or other communication by any person alleging any violation of, or any actual or potential Liability under any Environmental Law (“ Environmental Claim ”), and, to the Seller’s Knowledge and FTFC’s Knowledge (in the case of FTFC, only with respect to the Canadian Sub), there is no Environmental Claim currently threatened with respect to the Business or the Transferred Assets.

(c) Notwithstanding any other representation or warranty in Article III, the representations and warranties in this Section 3.19 constitute the sole representations and warranties of Seller with respect to any Environmental Law or Environmental Claim.

Section 3.20 Customers .

(a) Schedule 3.20(a) contains (i) a list of the Customers of the Business that are parties to a Transferred Contract pursuant to which the Business received or was entitled to receive $750,000 or more in gross revenue (net of interchange) as such amount is included in the Historical Financial Statements during 2008, in each case, reflecting (1) the total dollar amount of gross revenue (net of interchange) to each such Customer for calendar years 2006, 2007 and 2008 and (2) whether the Transferred Contract to which each such Customer is a party requires a consent to any of the Transactions, and (ii) (A) a list of the top twenty five (25) customers (by 2008 gross revenue (net of interchange)) of the Merchant Processing Business, specifying for each such Customer the applicable volume (credit dollar volume and debit transactions) and an indication whether such customer will require a consent pursuant to Section 3.3 hereof, and (B) the aggregate volume (credit dollar volume and debit transactions), for the remaining customers of the Merchant Processing Business. The pricing and/or other material terms and conditions offered by the Business to the Customers described in Section 3.20(a)(i) are independent of any such customer relationship(s) with Seller and its Affiliates outside of the Business and, to the extent any such Customers have customer relationship(s) with Seller and its Affiliates outside of the Business, the pricing and/or other material terms and conditions offered by the Business to such Customers do not differ materially from the pricing and/or terms and conditions offered by the Business to Customers of similar size (by annual gross revenue (net of interchange)) that receive similar services but that do not have similar customer relationship(s) with Seller and its Affiliates outside of the Business.

(b) Except as set forth on Schedule 3.20(b), as of the date hereof, neither Seller nor FTFC has received any oral or written notice from any Customer

 

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listed on Schedule 3.20(a) that such Customer intends to terminate, cancel, not to renew, or to otherwise modify or amend, or to request a modification or amendment of, in any material respect (including any material reduction or change to pricing terms), any such Transferred Contract to which it is a party.

(c) Schedule 3.20(c) contains a list of the customer acquisition and/or renewal costs (including, but not limited to, signing bonuses and similar amounts paid to customers and, for customers of the merchant acquirer division of the Business, the cash equivalent of services rendered for such purposes) for each of the last three years for (i) each of the top twenty five (25) customers of the Merchant Processing Business (by 2008 Net Revenues), (ii) each of the top twenty five (25) customers of the EFT Business (by 2008 Net Revenues) and (iii) the remaining Customers of the Merchant Processing Business and the EFT Business combined, in each case, as reported in the Historical Financial Statements (other than the Unaudited Canadian Financial Statements).

Section 3.21 Suppliers . Schedule 3.21(a) contains a list of the suppliers to the Business that are parties to a Transferred Contract pursuant to which the Business paid or was obligated to pay $750,000 or more for goods and services during the 2008 calendar year, and showing the total dollar amount paid for such goods and services received for the most recent fiscal year, in each case, as reported in the Historical Financial Statements. Except as set forth on Schedule 3.21(b), as of the date hereof, Seller has not received any oral or written notice from any such supplier that such supplier intends to terminate, cancel, not to renew, or to otherwise modify or amend, or to request an amendment or modification of, in any material respect (including any material increase or change to the pricing terms), such Transferred Contract to which it is a party.

Section 3.22 Ownership and Operations of the Companies . As of the date of this Agreement, Seller owns, and at all times prior to the Closing will own, directly or indirectly, in the aggregate, 100% of the issued and outstanding membership interests of Holdco, free and clear of all Encumbrances. As of the date of this Agreement, Seller owns, and at all times prior to the Contribution will own, and following the Contribution Holdco will at all times prior to the Closing own, 100% of the issued and outstanding membership interests of Opco, free and clear of all Encumbrances. Prior to the Contribution, none of the Companies shall have any material assets or material Liabilities (other than assets of the Business or cash or otherwise as agreed herein) and will engage in no material operations or activities, other than as contemplated herein, in any Ancillary Agreement or in any other document, agreement or instrument contemplated thereby or as may be reasonably necessary in connection with its formation or any of the foregoing. Except for Opco, in which Holdco will hold 100% of the equity interest as, Holdco has no subsidiaries (other than CMC LLC), does not own, directly or indirectly, any capital stock, membership interest or other equity interests of any Person or have any direct or indirect equity or ownership interest in any business and is not a member of or participant in any partnership, joint venture or similar Person. Opco has no subsidiaries (other than the CMC Business), does not own, directly or indirectly, any capital stock, membership interest or other equity interests of any Person or have any direct or indirect equity or ownership interest in any business and is not a member of or participant in any partnership, joint venture or similar Person. As of the Closing, FTFC owns 100% of the issued and outstanding membership interests of

 

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Canadian Sub, free and clear of all Encumbrances. The Canadian Sub has no subsidiaries, does not own, directly or indirectly, any capital stock, membership interest or other equity interests of any Person or have any direct or indirect equity or ownership interest in any business and is not a member of or participant in any partnership, joint venture or similar Person.

Section 3.23 Related Party Transactions . Except as set forth on Schedule 3.23, there are no Transferred Contracts or other arrangements related to the Business to which any of Sellers or its Affiliates or any of their respective directors or officers (“ Related Persons ”) is a counterparty.

Section 3.24 Regulatory Matters; Security Breaches; Outages .

(a) There has been no failure by the Business to comply with the applicable by-laws, operating rules and identification standards manual of, and any other rules, regulations, manuals, policies and procedures promulgated by, Visa U.S.A., Inc. and its subsidiaries and Affiliates, MasterCard Incorporated and its subsidiaries and Affiliates or any other applicable bankcard associations or networks, gateway services or other networks or the payment card industry (including Payment Card Industry Data Security Standards, Visa’s Cardholder Information Security program, MasterCard’s Site Data Protection program and Discover Network’s Debit and Prepaid Operating Regulations), in each case, as may be in effect from time to time (collectively, “ Network Rules ”) that would adversely affect Opco’s membership or participation in the applicable network. Except as set forth on Schedule 3.24(a), the Business is not subject to any Liabilities arising out of any actual or alleged violation of Network Rules.

(b) The Business has implemented, and is in material compliance with, commercially reasonable technical measures to assure the integrity and security of transactions executed through its computer systems and of all confidential or proprietary data. Except as set forth in Schedule 3.24(b), since January 1, 2006, to Seller’s Knowledge and FTFC’s Knowledge (in the case of FTFC, only with respect to the Canadian Sub), there has been no actual or perceived breach of security, or unauthorized access to or acquisition, use, loss, destruction, compromise or disclosure of any personal information, confidential or proprietary data or any other such information maintained or stored by the Business involving data of customers, suppliers, consumers or other similarly situated individuals impacting more than 50 individuals in connection with any such particular breach.

(c) Except as set forth in Schedule 3.24(c), since January 1, 2006, to Seller’s Knowledge and FTFC’s Knowledge (in the case of FTFC, only with respect to the Canadian Sub), there have been no facts or circumstances that would require the Business to give notice to any customers, suppliers, consumers or other similarly situated individuals of any actual or perceived data security breaches pursuant to a Law requiring notice of such a breach (e.g., California Civil Code Section 1798.82 or any similar laws of any other jurisdiction).

 

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Section 3.25 Master Lease Agreement . The pricing, pass-through costs, other out-of-pocket costs and other material terms and conditions under the Master Lease Agreement in the aggregate are no less favorable to Opco than the transfer pricing, pass-through costs and other material terms and conditions applicable to the Business and its operation in the same properties during the year prior to the date hereof, subject to reasonable and customary price adjustments (“ Acceptable Adjustments ”) and pass-through increases imposed by third parties (“ Acceptable Increases ”).

Section 3.26 Transition Service Agreement . The pricing, pass-through costs, other out-of-pocket costs and other material terms and conditions under the Transition Service Agreement in the aggregate are no less favorable to Opco than the transfer pricing, pass-through costs, other out-of-pocket expenses and other material terms and conditions applicable to the Business and its receipt of similar services from Seller and its Affiliates during the year prior to the date hereof, subject to Acceptable Adjustments and Acceptable Increases.

Section 3.27 Master Services Agreement . The pricing, pass-through costs, other out-of-pocket costs, service-level requirements and other material terms and conditions under the Master Services Agreement in the aggregate are no less favorable to the Companies than the transfer pricing, pass-through costs, other out-of-pocket costs, service-level requirements and other material terms and conditions applicable to the Business and its provision of the same services to Seller and its Affiliates during the year prior to the date hereof, subject to Acceptable Adjustments and Acceptable Increases.

Section 3.28 Reserved .

Section 3.29 Referral Agreement . The pricing, pass-through costs, other out-of-pocket costs and other material terms and conditions under the Referral Agreement in the aggregate are no less favorable to the Companies than the transfer pricing, pass-through costs, other out-of-pocket costs and other material terms and conditions applicable to the Business and its provision of the same services to Seller and its Affiliates during the year prior to the date hereof.

Section 3.30 Sponsorship Agreement . The terms and conditions of the Sponsorship Agreement, the arrangement between Opco and Seller contemplated thereby, Opco’s membership, sponsorship into, or participation in, the Card Associations (as defined in the Sponsorship Agreement) contemplated thereby and the Clearing, Settlement and Sponsorship Services (as defined in the Sponsorship Agreement) to be performed by Seller and its Affiliates to Opco as contemplated thereby are permitted under all Network Rules of the Card Associations, and, to Seller’s Knowledge, none of the Card Associations has disclosed any intent to, or has prohibited or otherwise limited or imposed additional restrictions applicable to such arrangement. The Card Associations of which Opco will become a member, into which Opco will be sponsored, or in which Opco will participate pursuant to the Sponsorship Agreement represent all of the payment card networks of which the Business is a member, into which the Business is sponsored, or in which the Business participates, as of the date hereof and as of immediately before the Closing.

 

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Section 3.31 Representations under the Ancillary Agreements . At the Closing each of the representations and warranties made by the Companies under any of the Ancillary Agreements shall be true and correct in all respects, and immediately following the Closing the Companies will not be in breach of any of their covenants or obligations under any of the Ancillary Agreements.

Section 3.32 Insurance . Each of Seller and Canadian Sub, as applicable, has insurance policies in full force and effect (a) for such amounts as are sufficient for all requirements of Law and all Transferred Contracts, and (b) which are in such amounts, with such deductibles and against such risks and losses, as are reasonable for the Business and the Transferred Assets, and Schedule 3.32 sets forth with respect to the Business other than the Canadian Sub a loss run for claims in excess of $50,000 made with respect to the Business and/or the Transferred Assets under such policies within the last three years. Excluding insurance policies that have expired and been replaced in the Ordinary Course, no insurance policy with respect to the Business other than Canadian Sub has been cancelled within the last two years and, to the Seller’s Knowledge, no threat has been made to cancel any insurance policy of Seller during such period, and to FTFC’s Knowledge, no insurance policy with respect to Canadian Sub has been cancelled within the last two years. No event has occurred, including the failure by Seller or, to FTFC’s Knowledge, Canadian Sub to give any notice or information, or Seller or, to FTFC’s Knowledge, Canadian Sub giving any inaccurate or erroneous notice or information, which limits or impairs the rights of Seller or, to FTFC’s Knowledge, Canadian Sub under any such insurance policies.

Section 3.33 Solvency . Immediately after giving effect to the Closing and the Transactions, Seller and its Subsidiaries and FTFC (a) will be able to pay their respective debts as they become due and shall own property that has a fair saleable value greater than the amounts required to pay their respective debts (including a reasonable estimate of the amount of all contingent Liabilities) and (b) shall have adequate capital to carry on their respective businesses. No transfer of property is being made, and no obligation is being incurred, in connection with the Transactions with the intent to hinder, delay or defraud either present or future creditors of Seller or any of its Subsidiaries. Seller acknowledges that it is selling the Transferred Assets to the Companies in exchange for reasonably “equivalent value,” as such term or similar terms are used in any potentially applicable fraudulent conveyance Laws.

Section 3.34 No Other Representations or Warranties . Except for the representations and warranties contained in this Agreement, the Ancillary Agreements and the certificate delivered pursuant to Section 6.2(d), neither Seller nor any other Person makes any other express or implied representation or warranty on behalf of Seller.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer represents and warrants to Seller as follows:

Section 4.1 Organization and Qualification . Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Buyer

 

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has all requisite power and authority to own and operate its respective properties and assets and to carry on its respective business as currently conducted. Buyer is duly qualified to do business and is in good standing in each jurisdiction where the ownership or operation of its respective properties and assets or the conduct of its respective business requires such qualification, except for failures to be so qualified or in good standing that would not, individually or in the aggregate, impair or delay Buyer’s ability to perform its obligations hereunder.

Section 4.2 Authorization . Buyer has full power and authority to execute and deliver this Agreement and will have full power and authority at Closing to execute and deliver each of the Ancillary Agreements and other Closing documents referenced herein to which it is a party and to perform its obligations hereunder and thereunder. The execution, delivery and performance by Buyer of this Agreement has been duly and validly authorized and of each of the Ancillary Agreements and other Closing documents referenced herein to which it is a party will have been duly and validly authorized at Closing, and no additional corporate or shareholder authorization or consent is required in connection with the execution, delivery and performance by Buyer of this Agreement or will be required in connection with the execution, delivery and performance by Buyer of any of the Ancillary Agreements and other Closing documents referenced herein to which it is a party.

Section 4.3 Consents and Approvals . Except as set forth on Schedule 4.3, no consent, approval, waiver, authorization, notice or filing is required to be obtained by Buyer from, or to be given by Buyer to, or made by Buyer with, any Government Entity or Self-Regulatory Organization or other Person in connection with the execution, delivery and performance by Buyer of this Agreement and the Ancillary Agreements or the other Closing documents referenced herein to which it is a party, other than those the failure of which to obtain, give or make would not, individually or in the aggregate, materially impair or delay the ability of Buyer to effect the Closing or to perform its obligations under this Agreement and the Ancillary Agreements and the other Closing documents referenced herein to which it is a party.

Section 4.4 Non-Contravention . The execution, delivery and performance by Buyer of this Agreement and each of the Ancillary Agreements and the other Closing documents referenced herein to which it is a party, and the consummation of the Transactions, do not, in the case of this Agreement, and will not as of the Closing, in the case of this Agreement, the Ancillary Agreements and other Closing documents referenced herein, (i) violate any provision of the Articles of Incorporation, Bylaws or other organizational documents of Buyer and (ii) assuming the receipt of all consents, approvals, waivers and authorizations and the making of notices and filings set forth on Schedule 4.3 or required to be made or obtained by Seller, to the actual knowledge of Buyer, violate or result in a breach of or constitute a default under any Law to which Buyer is subject, other than, in the case of clause (ii), breaches, defaults or violations that would not, individually or in the aggregate, materially impair or delay Buyer’s ability to perform its obligations hereunder.

Section 4.5 Binding Effect . This Agreement, when executed and delivered by Seller, constitutes, and each of the Ancillary Agreements and other Closing documents referenced herein to which Buyer is a party, when executed and delivered by Buyer, Seller and

 

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the other parties thereto, will constitute, a valid and legally binding obligation of Buyer, enforceable against it in accordance with its terms.

Section 4.6 Finders’ Fees . Except for fees payable to Morgan Stanley, which will be paid by Buyer, there is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of Buyer or any Affiliate of Buyer who might be entitled to any fee or commission from Buyer in connection with the Transactions.

Section 4.7 Litigation and Claims . Except as set forth on Schedule 4.7, there is no Legal Proceeding pending or, to the actual knowledge of Buyer (after due inquiry of the employees primarily responsible for the subject matter in question), threatened against Buyer or any of its Affiliates that, individually or in the aggregate, would materially impair or delay the ability of Buyer to effect the Closing or affect the Business. Buyer is not subject to any Order that, individually or in the aggregate, would materially impair or delay the ability of Buyer to effect the Closing or materially affect the Business.

Section 4.8 Equity Commitments . Buyer has delivered to Seller true and complete copies of the equity commitment letters, dated as of the date hereof, between Buyer and each of the funds managed by Advent International Corporation named therein (collectively, the “ Equity Commitments ”), pursuant to which the equity investor parties thereto have committed, subject to the terms and conditions set forth therein, to invest the respective amounts set forth therein, and of which Seller is a third party beneficiary and entitled to specific performance of the terms thereof (collectively, the “ Commitment ”). None of the Equity Commitments has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in the Equity Commitments have not been withdrawn or rescinded in any respect. The Equity Commitments are in full force and effect and are the valid, binding and enforceable obligations of Buyer and the other parties thereto. There are no conditions precedent or other contingencies relating to the funding of the full amount of the Commitment, other than as set forth in or contemplated by the Equity Commitments. Subject to the terms and conditions of the Equity Commitments, and subject to the terms and conditions of this Agreement, the aggregate proceeds contemplated by the Equity Commitments will be sufficient to pay the amounts payable by Buyer pursuant to this Agreement.

Section 4.9 No Other Representations or Warranties . Except for the representations and warranties contained in this Agreement, the Ancillary Agreements and the certificate delivered pursuant to Section 6.3(d), neither Buyer nor any other Person makes any other express or implied representation or warranty on behalf of Buyer.

ARTICLE V

COVENANTS

Section 5.1 Access and Information . (a) From the date hereof until the Closing, subject to any applicable Laws, Seller and FTFC shall (i) afford Buyer and its representatives access, during regular business hours and upon reasonable advance notice, to the Applicable Employees and the assets, books and records of the Business (including payroll

 

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information and employee data), (ii) furnish, or cause to be furnished, to Buyer any financial and operating data and other information that is available with respect to the Business as Buyer from time to time reasonably requests in writing and (iii) instruct the Applicable Employees, and its counsel and financial advisors to cooperate with Buyer in its investigation of the Business, including instructing its accountants to give Buyer access to their work papers; provided , however , that in no event shall Buyer have access to any information that (x) based on advice of Seller’s counsel, could create any potential Liability under applicable Laws, including U.S. Antitrust Laws, or could destroy any legal privilege or (y) in the reasonable judgment of Seller, could (A) result in the disclosure of any trade secrets of third parties or (B) violate any obligation of Seller with respect to confidentiality so long as, with respect to confidentiality, Seller has made reasonable efforts to obtain a waiver regarding the possible disclosure from the third party to whom it owes an obligation of confidentiality. All requests for information made pursuant to this Section 5.1(a) shall be directed to an executive officer of Seller or such Person or Persons as may be designated by Seller. All information received pursuant to this Section 5.1(a) shall be governed by the terms of Section 5.10.

(b) Following the Closing, upon the request of another Party, each of Seller, FTFC, Buyer, the Companies and the Canadian Sub shall, to the extent permitted by Law and confidentiality obligations existing as of the Closing, grant to a requesting Party and its representatives during regular business hours, the right, at the expense of such requesting Party, to inspect and copy the books, records and other documents in the granting Party’s possession pertaining to the operation of the Business prior to the Closing (including books of account, records, files, invoices, correspondence and memoranda, customer and supplier lists, data, specifications, insurance policies, operating history information and inventory records) with respect to Seller and FTFC, for purposes of preparing the requesting Party’s Tax Returns and with respect to the Companies, for any purpose reasonably related to the Transaction; provided , however , that the requesting Party agrees such access will give due regard to minimizing interference with the operations, activities and Employees of the granting Party. In no event shall Seller, FTFC or Buyer have access to the consolidated federal, state or local Tax Returns of the other Parties.

Section 5.2 Conduct of Business .

(a) During the period from the date hereof to the Closing, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as Buyer otherwise agrees in advance, Seller and FTFC shall conduct, and shall cause their respective Affiliates to conduct, the Business in the Ordinary Course and use their commercially reasonable efforts, as applicable, to preserve intact the Business, the Transferred Assets and their relationships with the counterparties to the Transferred Contracts and the Applicable Employees. Without limiting the foregoing, during the period from the date hereof to the Closing, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as required by Law or as Buyer otherwise agrees in advance, Seller and FTFC, as applicable, shall:

 

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(i) maintain insurance upon the Transferred Assets and the material assets of the Canadian Sub in such amounts and of such kinds comparable to that in effect on the date hereof;

(ii) continue to collect accounts receivable and pay accounts payable utilizing normal procedures and without discounting or accelerating payment of such accounts;

(iii) comply with the IT capital expenditure plan of Seller and its Affiliates for fiscal year 2009 (including making such capital expenditures in the amounts set forth in such plan), which plan is set forth as Exhibit 5.2(a) attached hereto; and

(iv) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of any Transferred Intellectual Property owned by Seller or its Affiliates and subject to a pending application or registration.

(b) Without limiting the generality of the foregoing, during the period from the date hereof to the Closing and except as otherwise expressly provided by this Agreement or as required by Law or with the prior written consent of Buyer (such consent not to be unreasonably withheld), Seller and FTFC shall not, and shall not permit their respective Affiliates to, with respect to the Companies, the Business, the Transferred Assets or the Assumed Liabilities:

(i) incur, create or assume any Encumbrance on any Transferred Asset or material asset of the Canadian Sub other than a Permitted Encumbrance;

(ii) except in relation to the transactions set forth in Schedule 5.2(b)(ii) or as expressly provided for in this Agreement or the Ancillary Agreements, acquire any material properties or assets that would be Transferred Assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any assets that would be Transferred Assets or material assets of the Canadian Sub, other than in the Ordinary Course;

(iii) except in connection with the Contribution, transfer, issue, sell, pledge, encumber or dispose of any shares of capital stock or other securities of, or other ownership interests in, the Companies or the Canadian Sub;

(iv) terminate or materially extend or materially modify any Transferred Contract, except in the Ordinary Course and except for such amendments as may be reasonably necessary or advisable in order to obtain any required consent to assignment;

(v) settle any claims, actions, arbitrations, disputes or other Legal Proceedings (i) that would result in Seller or any of its Affiliates being enjoined in any respect material to the Transactions, or the Business or (ii) for an amount, in the aggregate, exceeding $5,000,000;

(vi) change any accounting method or practice of Seller that has a material impact on the Business, except in the Ordinary Course or except as required by Law or any Government Entity or Self-Regulatory Organization;

 

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(vii) amend the organizational documents of any of the Companies or the Canadian Sub, except as provided in this Agreement and except with respect to the Canadian Sub as necessary to make them consistent with this Agreement, the Holdco LLC Agreement and the related applicable agreements, or cause any of the Companies or the Canadian Sub to enter into or agree to enter into any merger or consolidation with any corporation or other entity;

(viii) except for transfers of cash pursuant to normal cash management practices and advances for business expenses in the Ordinary Course, make any investments in or loans to, or pay any fees or expenses to, or enter into or modify any agreement with any Related Persons;

(ix) enter into any contract, understanding or commitment that restrains, restricts, limits or impedes the ability of any of the Companies or the Business to compete with or conduct any business or line of business in any material way in any geographic area or solicit the employment of any persons;

(x) other than as required by Law (A) hire any executive officers of the Business, (B) increase the salary or other compensation of any director or employee of the Business except for normal increases in the Ordinary Course, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any employee or director of the Business, (D) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, employees, agents or representatives of the Business or otherwise modify or amend or terminate any such plan or arrangement or (E) enter into any employment, deferred compensation, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Business (or amend any such agreement) to which any of Seller or its Subsidiaries is a party;

(xi) except in the Ordinary Course (i) issue, create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any indebtedness other than the Notes; (ii) pay, repay, discharge, purchase, repurchase or satisfy any indebtedness; or (iii) modify the terms of any indebtedness;

(xii) make, change or revoke any material Tax election, settle or compromise any material Tax claim or liability, change (or make a request to any Government Entity to change) any method of accounting or accounting period for Tax purposes, surrender any material claim for a refund of Taxes, enter into any closing agreement relating to any Tax, consent to any waiver or extension of any period for the assessment or collection of any Tax, file any material amended Tax Return or take any similar action relating to the filing of any Tax Return or the payment of any Tax if such other action would have the effect of increasing the Tax liability for the Companies or CMC LLC for

 

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any period ending after the Closing Date or decreasing any Tax attribute existing on the Closing Date;

(xiii) terminate, amend or waive any material rights under any Transferred Intellectual Property or Seller Licensed Intellectual Property, other than in the Ordinary Course;

(xiv) intentionally do any other act which would cause any representation or warranty of Seller in this Agreement to be or become untrue or intentionally omit to take any action necessary to prevent any such representation or warranty from being untrue at such time; or

(xv) authorize or enter into any agreement or commitment prohibited by this Section 5.2 or that would be reasonably expected to have a Material Adverse Effect.

Section 5.3 Reasonable Best Efforts; Transition Plan; HSR . (a) Each of Seller, FTFC and Buyer shall cooperate and use their respective reasonable best efforts to fulfill or cause to be fulfilled as promptly as practicable the conditions precedent to the other’s obligations hereunder, including securing all consents, approvals, waivers and authorizations required in connection with the Transactions. Without limiting the generality of the foregoing, Buyer, FTFC and Seller shall make all appropriate filings and submissions required by the U.S. Antitrust Laws and any other Laws and promptly file any additional information requested as soon as practicable after receipt of such request therefor. As promptly as reasonably practicable after the date of this Agreement, Seller shall contact the counterparties to each of the Merchant Contracts and Financial/EFT Contracts in order to secure consents required to transfer such contract to the Companies.

(b) Seller, the Companies and Buyer shall use their reasonable best efforts, as soon as reasonably practicable after the date hereof but in no event later than 6 months after the date hereof, to develop a transition plan for the Business (the “ Transition Plan ”) that is consistent with the terms and conditions set forth in Schedule 5.3(b)(i) (the “ Transition Plan Term Sheet ”), including with respect to targeting a transition from the services specified in the Transition Plan as soon as practicable after Closing and within 24 months of the date on which the Transition Plan is completed. Prior to the Closing, the parties shall jointly develop a preliminary transition plan that is not inconsistent with the description thereof in the Transition Plan Term Sheet. Following completion of the Transition Plan, Seller, the Companies and Buyer shall implement the Transition Plan on the terms and conditions set forth therein. In addition, Seller, the Companies and Buyer hereby agree that they shall cooperate with each other in good faith in developing, negotiating, finalizing and implementing the Transition Plan, including the various elements and phases thereof, and shall develop, negotiate, finalize and implement the Transition Plan in a timely manner in accordance with the terms of this Section 5.3(b), the Transition Plan Term Sheet and the Transition Plan. Seller’s and Buyer’s initial designees to the Steering Committee are set forth on Schedule 5.3(b)(ii), Seller’s and Buyer’s initial designees to Holdco’s Board of Directors are set forth on Schedule 5.3(b)(iii) and Seller’s two designated

 

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replacement members for each of the Board and the Steering Committee are set forth on Schedule 5.3(b)(iv) (each person identified on Schedule 5.3(b)(iv) is referred to herein as an “ Approved Replacement ”).

(c) Seller and the Companies, on the one hand, and Buyer, on the other hand, shall cooperate with each of the other parties hereto and shall furnish to the other parties hereto all information necessary or desirable in connection with making any filing under the HSR Act and for any application or other filing to be made pursuant to any Antitrust Law, and in connection with resolving any investigation or other inquiry by any Government Entity under any U.S. Antitrust Laws with respect to the Transactions. Seller and each of the Companies, on the one hand, and Buyer, on the other hand, shall promptly inform the other parties hereto of any communication with, and any proposed understanding, undertaking or agreement with, any Government Entity regarding any such filings or any such Transactions. None of the parties hereto shall participate in any meeting with any Government Entity in respect of any such filings, investigation or other inquiry without giving the other parties hereto prior notice of the meeting. The Parties shall consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party in connection with all meetings, actions and Legal Proceedings under or relating to the HSR Act or other U.S. Antitrust Laws. The cooperation among the Parties shall include, with respect to making a particular filing, providing copies of all such documents to the non-filing Parties and their advisors prior to filing (subject to applicable Law and provided , that the Parties hereto shall not be required to provide to each other any documents or other materials related to a Party’s valuation of the Transactions) and, if requested, giving due consideration to all reasonable additions, deletions or changes suggested in connection therewith.

Section 5.4 Tax Matters . (a)  Seller’s Liability for Taxes . Seller shall be liable for (i) any Taxes, including any Transfer Taxes, imposed with respect to the Transferred Assets, the Opco Interests, the CMC Business, the CMC LLC Interests, the Transferred Canadian Sub Stock or any income or gain attributable to or derived with respect thereto for the taxable periods, or portions thereof, ended on or before the Closing Date, (ii) Losses directly or indirectly relating to or arising out of any liability for Taxes, including Transfer Taxes, imposed with respect to the Transferred Assets, the Opco Interests, the CMC Business, the CMC LLC Interests, the Transferred Canadian Sub Stock or any income or gain attributable to or derived with respect thereto for the taxable periods, or portions thereof, ended on or before the Closing Date, and (iii) any Liability of the Business, the Companies or CMC LLC for unpaid Taxes of any person under Treas. Reg. 1.1502-6 (or similar provision of state, local or foreign law), as a transferee or successor, by contract or otherwise, which Liability relates to membership in a consolidated, combined or unitary Tax group prior to the Closing or to an event or transaction occurring or contract entered into before the Closing.

(b) Holdco Liability for Taxes . Holdco shall be liable for (i) any Taxes imposed with respect to the Transferred Assets, the Opco Interests, the CMC Business, the CMC LLC Interests, or any income or gains attributable to or derived

 

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with respect thereto for any taxable period, or portion thereof, beginning after the Closing Date (but excluding any income Taxes imposed on any member of Holdco with respect to its distributive share of the income of Holdco and any Section 704(c) gains attributable to the built-in gains in the Transferred Assets as of the Closing), and (ii) Losses directly or indirectly relating to or arising out of any liability for Taxes imposed with respect to the Transferred Assets, the Opco Interests, the CMC Business, the CMC LLC Interests, or any income or gains attributable to or derived with respect thereto for any taxable period, or portion thereof, beginning after the Closing Date (but excluding any income Taxes imposed on any member of Holdco with respect to its distributive share of the income of Holdco and any Section 704(c) gains attributable to the built-in gains in the Transferred Assets as of the Closing Date).

(c) The Canadian Sub Liability for Taxes . The Canadian Sub shall be liable for (i) any Taxes imposed with respect to the Canadian Sub, or any income or gains attributable to or derived with respect thereto for any taxable period, or portion thereof, and (ii) Losses directly or indirectly relating to or arising out of any liability for Taxes imposed with respect to the Canadian Sub, or any income or gains attributable to or derived with respect thereto for any taxable period, or portion thereof.

(d) Proration of Property Taxes . Those annual property taxes and exemptions, allowances or deductions that are calculated on an annual basis shall be prorated on a time basis.

(e) Transfer Taxes . All federal, state, local or foreign or other excise, sales, use, value added, transfer (including real property transfer or gains), stamp, documentary, filing, recordation and other similar taxes and fees that may be imposed or assessed as a result of transfers of Transferred Assets, Opco Interests, the Transferred Canadian Sub Stock, CMC LLC Interests, and the membership interests of CMC LLC to Holdco or Opco, as the case may be, together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties (“ Transfer Taxes ”), shall be borne by Seller. Buyer, the Companies and the Canadian Sub shall cooperate to qualify for each occasional sale exemption that is available under the Laws of each applicable jurisdiction. Any similar taxes imposed on the sale of the Class A Units to the Buyer shall be borne by the Company. Any similar taxes imposed on the sale of the Transferred Canadian Sub Stock to the Buyer shall be borne 51% by the Buyer and 49% by the Seller.

(f) The Companies Claiming, Receiving or Using of Refunds and Overpayments . If, after the Closing, any of the Companies or their respective Affiliates or the Canadian Sub (i) receive any refund or (ii) utilize the benefit of any overpayment or prepayment of Taxes which, in either case, (x) relates to a Tax paid by Seller or any of its Affiliates that is not the subject of indemnification by the Companies hereunder, or (y) relates to a Tax that is the subject of indemnification by Seller hereunder, but in each case other than a refund (or other benefits of any overpayment) that (i) is reflected as a current asset on the Closing Statement or (ii)

 

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attributable to a carryback of losses or other Tax attributes from any taxable period, or portion thereof, beginning after the Closing Date, the Companies or the Canadian Sub shall, as promptly as reasonably practicable, transfer, or cause to be transferred, to Seller the entire amount of the refund or overpayment received or utilized by the Companies or their Affiliates or the Canadian Sub. The Companies and the Canadian Sub agree to notify Seller, as promptly as reasonably practicable, of both the discovery of a right to claim any such refund or overpayment and the receipt of any such refund or utilization of any such overpayment. The Companies and the Canadian Sub agree to furnish, as promptly as reasonably practicable, to Seller all information, records and assistance reasonably necessary to verify the amount of the refund or overpayment in a commercially reasonable manner.

(g) Determination and Allocation of Consideration . The parties hereto agree to determine the amount of and allocate the total consideration transferred to Seller pursuant to this Agreement (the “ Consideration ”) in accordance with the fair market value of the assets and liabilities of Holdco and shall prepare a schedule of Buyer’s adjustments under Section 743 of the Code. Seller shall provide Buyer and Holdco with one or more schedules allocating the Consideration and setting forth the Section 743 basis adjustment within 90 days after the Closing Date. If Buyer disagrees with any items reflected on the schedules so provided, Buyer shall notify Seller of such disagreement and its reasons for so disagreeing, in which case Seller and Buyer shall attempt to resolve the disagreement. To the extent Seller and Buyer cannot agree on a mutually acceptable determination and/or allocation of the Consideration and Section 743 adjustment, such determination and/or allocation shall be made by the CPA Firm, whose decision shall be final and binding and whose expenses shall be shared equally by Seller, on the one hand, and Buyer on the other hand. The determination and allocation of the Consideration and Section 743 adjustment derived pursuant to this Section 5.4(f) shall be binding on the parties hereto for all Tax reporting purposes.

(h) Maintenance of Opco’s Transferred Books and Records . Until the applicable statute of limitations (including periods of waiver) has run for any Tax Returns filed or required to be filed covering the periods up to and including the Closing Date, Opco shall retain all Transferred Books and Records with respect to the Business in existence on the Closing Date and after the Closing Date will provide Seller access to such Transferred Books and Records for inspection and copying by Seller, or its agents upon reasonable request and upon reasonable notice.

(i) Holdco 754 Election . Holdco shall make a timely and effective election under Section 754 of the Code (and any equivalent election for applicable state and local income Tax purposes), which Section 754 election (and equivalent election) shall be filed by Holdco with its U.S. federal income Tax Return (and applicable state and local income Tax Returns) for the taxable year of Holdco that includes the Closing Date and shall be effective for such year, together with any other forms necessary for the completion of a valid Section 754 election (and equivalent election) effective as of such taxable year, and Seller shall take any action necessary to give effect to such election, including without limitation providing any

 

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information and signing any document that may reasonably be requested by Buyer in connection therewith. Holdco shall provide to Buyer a copy of the draft entity Tax Returns proposed to be filed by Holdco for the taxable year of Holdco that includes the Closing Date at least 45 days prior to the applicable due date for each such filing, with opportunity for Buyer to comment thereon, and Holdco shall file such returns with the applicable Tax authorities only with the consent of Buyer, which shall not be unreasonably delayed or withheld.

Section 5.5 Employee and Benefits Matters . (a) Offers of Employment. Prior to the End Date (as defined in Exhibit A to the Transition Service Agreement), Opco shall make a written offer of employment to each Applicable Employee, effective upon the Transfer Date, (as defined below), which offer shall (i) be at salary or hourly wage rates (as the case may be) not less than the salary or wage rates received by the Applicable Employees immediately prior to the Transfer Date, (ii) provide an annual incentive compensation opportunity that is comparable to the Applicable Employee’s annual incentive compensation opportunity immediately prior to the Closing Date; provided that the performance metrics applicable to any such annual incentive compensation opportunity provided after the Closing Date may be adjusted by Opco in its sole discretion, and (iii) be for employment at the same work location (or within 30 miles of such location) and in the same or substantially similar positions and with similar duties to the positions held by, and the duties performed by, the Applicable Employees immediately prior to the Transfer Date. For purposes of this Agreement, each of the Applicable Employees who affirmatively accepts Opco’s offer of employment and commences working for Opco on or after the Closing Date shall become a “ Transferred Employee ” on the latest of (i) the Closing Date, (ii) the first Business Day following the End Date (subject to continued employment), or (iii) if such Applicable Employee is identified on Schedule 5.5(a)(ii) as on disability (long term or short term) or on leave of absence (each such Applicable Employee, an “ Absent Employee ”) and, as applicable, has not returned to active employment prior to the End Date, the date on which such individual returns to active employment (provided such individual must return to active employment within six months of the Closing Date, otherwise such individual’s offer of employment will automatically expire). Without limiting the foregoing, for purposes of this Agreement, the “ Transfer Date ” shall mean the date on which an Applicable Employee becomes a Transferred Employee in accordance with the immediately preceding sentence. Effective as of the first Business Day following the End Date, Opco agrees that the Applicable Employees identified on Schedule 5.5(a)(iii) as being necessary for Seller’s performance of their respective obligations under this Agreement or the Transition Service Agreement (each such Applicable Employee, a “ Necessary Employee ”), shall be made available to Seller at the sole expense of Opco until such time as such Necessary Employee is no longer necessary for Seller to satisfy such obligations under the Transition Service Agreement. All such offers of employment pursuant to this Section 5.5(a) will be for employment-at-will, and Opco may terminate any Transferred Employee at any time and for any reason following the applicable Transfer Date.

(b) Employee Benefits; Crediting of Service . On and after their applicable Transfer Dates and until the first anniversary of the Closing, Opco shall make available to Transferred Employees (and their eligible spouses, dependents and beneficiaries) defined contribution pension and welfare benefits that are substantially comparable, in the aggregate, to the defined contribution pension and

 

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welfare benefits provided to Transferred Employees (and, as applicable, their eligible spouses, dependents and beneficiaries) under Seller’s or its Affiliates’ Benefit Plans immediately prior to the Closing Date without limitations based upon pre-existing conditions (and the amount of year-to-date deductibles incurred by Transferred Employees prior to their applicable Transfer Dates under Seller’s or its Affiliates’ Benefit Plans shall be credited toward satisfaction of deductibles under the employee benefits and compensation plans, programs and arrangements sponsored or maintained by Opco (the “ Company Plans ”) for the year in which the Transfer Date occurs); provided , however , any Benefit Plan which is an equity-based plan, stock purchase plan, defined benefit pension plan, or retiree health and welfare plan shall be excluded for purposes of comparability. Opco shall ensure that the Company Plans grant full credit for all service or employment with, or recognized by, Seller and its Affiliates for purposes of eligibility, participation and vesting with respect to any Company Plan (but not benefit accrual) that is an “employee pension benefit plan,” as defined in Section 3(2) of ERISA, and, for purposes of eligibility, participation and determining the amount of any benefit with respect to any Company Plan that is a vacation or other program that is affected by seniority and any Company Plan that is an “employee welfare benefit plan,” as defined in Section 3(1) of ERISA, including any severance plan or sick plan; provided , that Opco’s vacation plan shall be able to offset, for the year in which the Transfer Date occurs, the vacation credited to the Transferred Employees pursuant to Section 5.5(d).

(c) Welfare Benefits Generally . (i) Seller shall be solely responsible for: (A) claims for the type of benefits described in Section 3(1) of ERISA (whether or not covered by ERISA) (“ Welfare Benefits ”) and for workers’ compensation, in each case that are incurred by or with respect to any Transferred Employee or his or her spouse, dependent or beneficiary before the applicable Transfer Date, regardless of whether such claims are made and/or identified prior to or after the Transfer Date; (B) claims for Welfare Benefits and for workers’ compensation, in each case that are incurred by or with respect to any Applicable Employee (or his or her spouse, dependent or beneficiary) who does not become a Transferred Employee, whether incurred before, on or after the Closing Date and (C) claims relating to COBRA Coverage attributable to “qualifying events” occurring before or on the Transfer Date, and all claims relating to COBRA Coverage attributable to “qualifying events” with respect to any Applicable Employee who does not become a Transferred Employee and his or her eligible beneficiaries and dependents occurring before, on, or after the Transfer Date; and (ii) the Companies shall be solely responsible for: (A) claims for Welfare Benefits and for workers compensation, in each case that are incurred by or with respect to any Transferred Employee on or after the applicable Transfer Date (except to the extent the Transferred Employee or any beneficiary or dependent thereof has elected COBRA Coverage under Seller’s Welfare Benefits plans) and (B) claims relating to COBRA Coverage attributable to “qualifying events” with respect to any Transferred Employee and his or her eligible beneficiaries and dependents that occur after the applicable Transfer Date; it being understood by both parties that any such liability incurred by Seller after the Closing Date with respect to an Applicable Employee

 

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shall be reimbursed by Opco to Seller to the extent provided in the Transition Service Agreement. For purposes of the foregoing, a medical/dental claim shall be considered incurred when the services are rendered, the supplies are provided or medication is prescribed, and not when the condition arose. A disability or workers’ compensation claim shall be considered incurred on or before the applicable Transfer Date if the injury or condition giving rise to the claim occurs on or before such date.

(d) Vacation . Opco shall ensure that its vacation policy grants full credit for purposes of eligibility, participation and determining the amount of any accrued vacation benefits to which any Transferred Employee is entitled pursuant to the vacation policy applicable to such Transferred Employee immediately prior to the Closing Date. Opco shall assume the liability for accrued vacation with respect to any Transferred Employee as of the Transfer Date of such Transferred Employee and allow such Transferred Employee to use such accrued vacation following the Transfer Date. Seller shall retain all liability with respect to any accrued vacation time to which any Applicable Employee who does not become a Transferred Employee is entitled pursuant to the applicable vacation policy applicable to such Applicable Employee.

(e) 401(k) Plan . Seller shall effectuate a trust-to-trust transfer of the account balances of Transferred Employees (whether vested or unvested) under any plan that is intended to be a tax-qualified defined contribution retirement plan (collectively, the “ Seller 401(k) Plan ”) to a plan established by Opco for the benefit of the Transferred Employees that is intended to be a tax-qualified defined contribution retirement plan (the “ Opco 401(k) Plan ”). As soon as practicable after the Closing Date (but no later than thirty (30) days after the End Date) Seller shall cause the trustee of the Seller 401(k) Plan to value the account of each Transferred Employee who participates in the Seller 401(k) Plan pursuant to the terms of such plan. As of such valuation date, Seller shall cause the trustee of the Seller 401(k) Plan to transfer assets equal in value to the amount credited to each such Transferred Employee’s account under the Seller 401(k) Plan to the trust maintained under the Opco 401(k) Plan. Such transferred assets shall be in cash or other property as determined by Seller with the consent of Opco (except the transferred assets shall also include any promissory notes evidencing outstanding loan balances of Transferred Employees and shall be subject to any qualified domestic relations order pursuant to Section 414(p) of the Code) and shall be transferred in accordance with Section 414(l) of the Code. Prior to, and as a condition of, any transfer of assets, Seller and Opco shall provide the other with satisfactory evidence that its plan is tax-qualified within the meaning of Section 401(a) of the Code. As of the transfer date, the Opco 401(k) Plan shall have sole liability for the payment of benefits accrued by Transferred Employees under the Seller 401(k) Plan and transferred in respect of such Transferred Employees and neither the Seller 401(k) Plan nor the Seller or its Affiliates shall have any obligation to Opco or with respect to employees of Opco with respect thereto (except to the extent Seller has made a mistake in the calculation and transfer of assets). If Seller determines in its sole discretion to make a profit sharing contribution to the Seller 401(k) Plan for the

 

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2009 plan year on behalf of employees of Seller, Seller will make a profit sharing contribution to the Seller 401(k) Plan for each Transferred Employee who (i) is employed by Seller as of the applicable Transfer Date, (ii) is eligible according to the terms of Seller 401(k) Plan, and (iii) remains continuously employed by Seller and Opco (and their respective Affiliates) through December 31, 2009, based on his or her eligible compensation earned from Seller for the period from January 1, 2009 through the applicable Transfer Date. As soon as practicable following the date of such contribution, Seller shall effectuate a trust-to-trust transfer of the account balances of Transferred Employees resulting from such profit sharing contribution from the Seller 401(k) Plan to the Opco 401(k) Plan. Seller and Opco shall cooperate with each other (and cause the trustees of the Seller 401(k) Plan and the Opco 401(k) Plan to cooperate with each other) to effectuate the transfers of assets to the Opco 401(k) Plan.

(f) Employee Withholding and Reporting Matters . With respect to Transferred Employees, from the time such transfer occurs, Opco shall, in accordance with and to the extent permitted pursuant to the “standard procedure” set forth in Revenue Procedure 2004-53, unless otherwise provided in the Ancillary Agreements, be responsible for preparing and filing Form W-2, Wage and Tax Statement, Form W- 3, Transmittal of Income and Tax Statements, Form 941, Employer’s Quarterly Federal Tax Return, Form W-4, Employee’s Withholding Allowance Certificate and Form W-5, Earned Income Credit Advance Payment Certificate for the portion of the calendar year beginning on the day after the applicable Transfer Date. Seller shall be responsible for such filings with respect to wages paid and taxes withheld by Seller for the portion of the calendar year beginning in January of the year in which the Closing occurs and ending on the applicable Transfer Date. The parties hereto agree to comply with the procedures described in Section 4 of the Revenue Procedure 2004-53.

(g) No Third Party Beneficiaries; Information . Nothing in this Section 5.5, express or implied, (i) is intended to confer on any person other than the parties hereto or their respective successors and assigns any rights, remedies, obligations or Liabilities under or by reason of this Agreement, (ii) shall limit the right of Opco to terminate any Transferred Employee after the applicable Transfer Date or to modify the terms or conditions of any Transferred Employee’s employment or (iii) shall limit the right of the Canadian Sub to terminate any Canadian Employee after the Closing Date or to modify the terms or conditions of any Canadian Employee’s employment. Seller shall provide Opco with such information and records ordinarily maintained by Seller that are necessary for Opco to comply with its obligations under this Section 5.5.

(h) Employee Transition . The parties hereto shall use their commercially reasonable efforts to (i) establish and have Opco adopt the Company Plans, and (ii) establish all human resource functions necessary to support the day-to-day operations of Opco and its employees no later than December 31, 2009.

 

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(i) Retiree Medical Benefits . Seller agrees to make available retiree medical coverage for the benefit of each Transferred Employee who (i) has satisfied the age and service eligibility requirements for such coverage under Seller’s medical plan as of the Transfer Date and (ii) is continuously covered by the Company’s group medical plan from the Transfer Date until retirement. Such retiree medical coverage shall be on the same terms and conditions as the coverage provided to eligible retirees of Seller from time to time and shall be at the sole expense of such Transferred Employee. This Agreement does not limit Seller’s ability to terminate or otherwise amend Seller’s retiree medical coverage following the Closing.

(j) Canadian Sub Employees . The provisions of this Section 5.5 (other than Section 5.5(g) and this Section 5.5(j)) shall not be applicable to employees of the Canadian Sub. The Canadian Sub shall (i) continue to employ each employee of the Canadian Sub on the Closing Date (the “ Canadian Employees ”) at the same work location and in the same positions and with the same duties as the positions held by, and the duties performed by, the Canadian Employees immediately prior to the Closing Date and (ii) pay or provide (x) salary or hourly wage rates (as the case may be) not less than the salary or wage rates received by the Canadian Employees immediately prior to the Closing Date, and (y) an annual incentive compensation opportunity that is comparable to the Canadian Employee’s annual incentive compensation opportunity immediately prior to the Closing Date; provided that the performance metrics applicable to any such annual incentive compensation opportunity provided after the Closing Date may be adjusted by the Canadian Sub in its sole discretion. For at least one year following the Closing Date, the Canadian Sub shall make available to the Canadian Employees (and their eligible spouses, dependents and beneficiaries) defined contribution pension and welfare benefits that are substantially comparable, in the aggregate, to the defined contribution pension and welfare benefits provided to the Canadian Employees (and, as applicable, their eligible spouses, dependents and beneficiaries) immediately prior to the Closing Date.

Section 5.6 Ancillary Agreements . At the Closing, Seller shall execute and deliver each Ancillary Agreement to which it is a party, each of the Companies shall execute and deliver each Ancillary Agreement to which it is a party and Buyer shall execute and deliver each of the Ancillary Agreements to which it is a party.

Section 5.7 Non-Solicitation; Non-Compete . (a) Seller agrees that, during the period commencing on the date hereof and ending on the earlier of the third anniversary of the Closing Date and the first date on which Seller (together with its Affiliates) hold Holdco LLC Interests representing less than 10% of the outstanding Holdco LLC Interests or common stock or other equity securities into which the Holdco LLC Interests may be converted in anticipation of an initial public offering of Holdco or otherwise, neither it nor any of its Affiliates will directly or indirectly, without obtaining the prior written permission of Buyer, except for purposes of implementing the Transition Plan (i) induce or encourage any Applicable Employee to reject Opco’s offer of employment or to accept any other position or employment, (ii) induce or encourage any employee of Opco to terminate his or her employment with Opco, (iii) solicit for employment or any similar arrangement any employee of Opco or (iv) hire or assist any other Person in hiring any employee of Opco; provided , however , that for purposes of this Section 5.7(a) “solicit for employment” and hiring shall not include (i) referrals for employment made by a placement agency or employment service so long as such placement agency or employment

 

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service has not targeted employees of Opco, and any hiring resulting therefrom, (ii) responses to any general advertisement not targeted at employees of Opco appearing in a newspaper, magazine, Internet sites or trade publication, and any hiring resulting therefrom, or (iii) solicitation or hiring of an employee of Opco who first contacts Seller on an unsolicited basis.

(b) Buyer and each of the Companies agree that for the period commencing on the Closing and ending on the second anniversary of the Closing Date, neither Buyer (including any of its Affiliates acting at the direction of Buyer or to whom information concerning the Companies or an Applicable Employee has been provided) nor any of the Companies (including any of their respective controlled Affiliates or any of their other respective Affiliates acting at the direction of the Companies or to whom information concerning the Companies or an Applicable Employee has been provided) will directly or indirectly, without obtaining the prior written permission of Seller, (i) solicit for employment or any similar arrangement any employee (other than, in the case of Opco, an Applicable Employee in a manner consistent with Section 5.5) of Seller or any of its Affiliates with whom Buyer or any of its Affiliates came into contact during the discussions relating to, negotiation of and execution of this Agreement or any Ancillary Agreement or who is then currently involved in providing services to Opco under any Ancillary Agreement, or (ii) hire or assist any other Person in hiring any employee of Sellers or any of its Affiliates with whom Buyer or any of its Affiliates came into contact during the discussions relating to, negotiation of and execution of this Agreement or any Ancillary Agreement or who is then currently involved in providing services to Opco under any Ancillary Agreement; provided , however , that for purposes of this Section 5.7(b) “solicit for employment” and hiring shall not include (i) referrals for employment made by a placement agency or employment service so long as such placement agency or employment service has not targeted employees of Seller or any of its Affiliates, and any hiring resulting therefrom, (ii) responses to any general advertisement not targeted at employees of Seller or any of its Affiliates appearing in a newspaper, magazine, Internet sites or trade publication, and any hiring resulting therefrom, or (iii) solicitation or hiring of an employee of Seller or any of its Affiliates who first contacts Buyer or any of its Affiliates on an unsolicited basis.

(c) (i) Seller and its Affiliates shall not until the last day of the 54 th month following the Closing Date, directly or indirectly, engage in or own or control a financial interest in a Person (other than Holdco or the Canadian Sub or their respective subsidiaries) that engages in the Business (other than as contemplated in Section 5.7(c)(ii) hereof); provided , however , that neither Seller nor any of its Affiliates shall be required to terminate Transferred Contracts that cannot be validly transferred to the Companies under their terms.

(ii) Notwithstanding Section 5.7(c)(i), neither Sellers nor any of its Affiliates shall be precluded from: (A) owning up to 10% of the voting equity of any publicly traded Person engaged in the Business; provided , that such investment is a non-controlling investment and for investment purposes; or (B) purchasing or acquiring (through merger, stock

 

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purchase or purchase of all or substantially all of the assets or otherwise) any Person engaged in the Business and continuing to operate such existing Business; provided , that (x) such existing Business shall not represent more than 15% of the consolidated revenues of the business or entity acquired and (y) Seller or its Affiliates, as applicable, divest, sell, dispose of or otherwise transfer, within 12 months of the purchase or acquisition thereof, sufficient assets or businesses of the Business to reduce the consolidated revenues that the Business represents of the business or entity acquired to 15% or less.

Section 5.8 Further Assurances . From time to time after the Closing Date, each Party shall, and shall cause its respective Affiliates to, promptly execute, acknowledge and deliver any other assurances or documents or instruments of transfer reasonably requested by another Party and necessary for the requesting Party to satisfy its obligations hereunder or to obtain the benefits of the Transactions. Seller shall use commercially reasonable efforts to obtain third party releases for the benefit of the Companies and their controlled Affiliates with respect to any Excluded Liabilities described in Section 2.2(b)(vii) with respect to which Seller or its Affiliates themselves obtain, or seek to obtain, such releases.

Section 5.9 Licensed Intellectual Property . Notwithstanding anything to the contrary contained herein or in any Ancillary Agreement, Seller has the sole and exclusive right to prosecute, defend, settle or otherwise control any Legal Proceeding, claim or action relating to the Seller Licensed Intellectual Property, except to the extent such claim is exclusively one between the parties hereto and their Affiliates.

Section 5.10 Confidentiality . Each Party (the “ Receiving Party ”) agrees that it will, and will cause its Affiliates and its and its Affiliates’ officers, directors, employees, accountants, consultants, advisors and agents to, hold all information concerning another Party (the “ Disclosing Party ”) or its Affiliates received by the Receiving Party from the Disclosing Party or its Affiliates (other than information which (i) becomes generally available to the public, (ii) was available to the Receiving Party on a non-confidential basis prior to its disclosure by the Disclosing Party or its Affiliates, as the case may be, (iii) becomes available to the Receiving Party or, prior to the Closing Date, the Business, on a non-confidential basis from a source other than the Disclosing Party or its Affiliates not reasonably known by the Receiving Party to be prohibited from disclosing such information to such persons by a contractual, legal or fiduciary obligation, (iv) is required or requested to be disclosed by Law or any Government Entity or Self-Regulatory Organization, (v) may be necessary or advisable to disclose in order to enforce any of the Receiving Party’s rights pursuant to this Agreement or any Ancillary Agreement, (vi) may be necessary or advisable to disclose in connection with any litigation, arbitration, mediation or other similar Legal Proceeding involving the Receiving Party or any of its Affiliates or (vii) may be necessary or advisable to disclose in order for the Receiving Party or its Affiliates, as applicable, to perform their respective obligations pursuant to this Agreement or the Ancillary Agreements) on a confidential basis and not voluntarily disclose (other than pursuant to legal process after an opportunity to restrict or otherwise limit disclosure) to any other Person such information without the prior written consent of the Disclosing Party for a period of three years after the Receiving Party receives the information from the Disclosing Party.

Section 5.11 Notification . Prior to the Closing, Seller shall, as soon as reasonably practicable, notify Buyer (after Seller has notice thereof), and Buyer shall promptly

 

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notify Seller (after Buyer has notice thereof), and keep such other Party advised, as to any litigation pending or, to Seller’s Knowledge or the actual knowledge of Buyer, as applicable, threatened against such Party, FTFC, the Canadian Sub or Opco that challenges such Party’s or FTFC’s ability to effect the Transactions.

Section 5.12 Financial Statements .

(a) Before Closing, Seller shall provide Buyer with the written certification from a qualified senior executive of Seller to the effect that Seller has, in its possession or access to, all information and resources required to comply with Section 5.12(b).

(b) Seller shall use its reasonable best efforts to prepare and deliver to Buyer, and to cause its auditors to assist in the preparation of:

(i) within a reasonable period of time following the Closing, the audited balance sheet and audited statements of income and cash flows of the Business (other than the Canadian Sub), together with the notes thereto, as of and for the years ended December 31, 2006, 2007 and 2008 prepared in accordance with GAAP consistently applied during the periods and at the dates involved and which comply in all material respects with all applicable accounting requirements and with the published rules and regulations of the SEC including Regulation S-X, in order to serve as “predecessor entity” financial statements in a registered public offering under the Securities Act;

(ii) within a reasonable period of time following the Closing, an audited combined balance sheet and audited statements of income and cash flows of the Business (other than the Canadian Sub) as of, and for the “stub period” running from January 1, 2009 through, the Closing Date to be prepared in accordance with GAAP consistently applied during the periods and at the dates involved and which will comply in all material respects with all applicable accounting requirements and with the published rules and regulations of the SEC including Regulation S-X in order to serve as “predecessor entity” financial statements in a registered public offering under the Securities Act; and

(iii) from time to time as requested by Buyer or the Companies, such other financial statements and financial data of the Business (other than the Canadian Sub) (as of any of the dates and for any of the periods referred to in this Section 5.12), as well as selected financial data for the Business (other than the Canadian Sub) as of and for the years ended December 31, 2004 and 2005 that is of the type required by Regulation S-X and Regulation S-K under the Securities Act and of the type and form customarily included in registered public offerings under the Securities Act.

(c) The Companies shall pay all reasonable expenses of Seller’s auditors for such auditors’ assistance to the Companies in the preparation and delivery of the financial statements described in this Section 5.12.

(d) Seller shall provide to Buyer on or prior to July 15, 2009, an unaudited balance sheet of the Canadian Sub as of the Closing Date and an

 

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unaudited income statement of the Canadian Sub for the three months ended June 30, 2009 (collectively, the “ Canadian Financial Statements ”).

Section 5.13 Applicable Contracts . Buyer shall cause Opco to use its commercially reasonable efforts to, (a) on and after the Closing Date and to the Reference Date, renegotiate any Applicable Contract for which Seller would otherwise be responsible to make an Applicable Termination Price Adjustment or Applicable Renegotiation Price Adjustment with the applicable counterparty thereto in order to minimize or eliminate such adjustment, (b) on and after the Closing Date, collect any liquidated damages or similar payments with respect to any Applicable Contracts terminated or proposed to be terminated on or prior to the Adjustment Date and (c) on or after the Closing Date, seek the consent of the counterparties to the Applicable Contracts to transfer such Applicable Contracts to Opco in connection with the Transactions. On the first Business Day following the Reference Date, Buyer shall cause the Company to assign to Seller all outstanding claims for liquidated damages or similar payment with respect to an Applicable Contract regarding which Applicable Termination Price Adjustment or Applicable Renegotiation Price Adjustment was or would be made. If, after the Reference Date, any of the Companies receives any liquidated damages or similar payment with respect to an Applicable Contract regarding which Applicable Termination Price Adjustment or Applicable Renegotiation Price Adjustment was is made, the Companies shall immediately forward such amount in full to Seller.

Section 5.14 Transition Service . Seller shall, or shall cause each of its Affiliates that provide an element of the transition service to Opco pursuant to the Transition Service Agreement to, use its reasonable commercial efforts to cooperate with Opco to facilitate the transfer of responsibility for such element to Opco (or its designees) and in all other matters relating to the provision of such transition service.

Section 5.15 Equity Commitments . Buyer shall not amend or modify the Equity Commitments in any way without the prior written approval of Seller.

Section 5.16 Capital Leases . Upon the transfer to Opco of an asset that is subject to a capital lease set forth on Schedule 5.16 (a “ Capital Lease ”), Seller, Buyer, Holdco and Opco shall use their commercially reasonable efforts to cause Seller to assign and Opco to assume the Capital Lease (or portion of such Capital Lease) that relates to such asset; provided that if Seller does not assign or Opco does not assume such Capital Lease (or portion of such Capital Lease), Seller and Opco shall cooperate with each other in any mutually agreeable, reasonable and lawful arrangements designed to transfer from Seller to Opco the Liabilities that Opco would have assumed had Opco assumed such Capital Lease (or portion of such Capital Lease). Any Capital Lease (or portion of such Capital Lease) that Opco assumes pursuant to this Section 5.16 shall be deemed to be a Transferred Contract upon such assumption and Schedule 3.12 shall be deemed to have been amended to include such Capital Lease (or portion of such Capital Lease).

Section 5.17 Canadian Sub . Subject to applicable Law, prior to the consummation of an IPO (as defined in the Holdco LLC Agreement), the Parties shall take such steps as necessary to cause the capitalization and ownership of the Canadian Sub to be identical to the capitalization and ownership of Holdco, including by transferring shares of common stock

 

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of the Canadian Sub concurrently with, and in like percentage as, a transfer of Units (as defined in the Holdco LLC Agreement) of Holdco; provided that the difference between common stock of the Canadian Sub and Units (as defined in the Holdco LLC Agreement) and the difference between FTFC and FTB and its Affiliates shall not be deemed to be a difference in capitalization or ownership for purposes of this Section 5.17. Subject to applicable Law, the Parties shall take such steps as necessary to cause the Canadian Sub to transfer all or substantially all of its assets concurrently with, and in like percentage as, a transfer of all or substantially all of the assets of the Companies and/or the Companies’ subsidiaries. Subject to applicable Law, beginning following the Closing but in any event prior to the consummation of an IPO (as defined in the Holdco LLC Agreement), Buyer, Seller and FTFC shall cooperate with each other to devise an alternative arrangement with respect to the inclusion of the Canadian Sub in the Business that is mutually agreeable, reasonable and lawful.

Section 5.18 Certain Actions . For so long as Seller or any of its Affiliates is a Member (as defined in the Holdco LLC Agreement) of Holdco, prior to moving employees of Holdco and/or its subsidiaries that are employed in Cincinnati, Ohio out of Cincinnati, Ohio, Buyer and Seller shall take into consideration the potential harm to Seller of such action as if such harm were to be suffered by Holdco, including the magnitude of such harm to Seller as compared to the magnitude of the benefits to be achieved by Holdco as a result of such move; it being understood that this Section 5.18 shall not create any liability on the part of Buyer, Seller or Holdco in the event such move is effected, unless the covenant in this Section 5.18 is breached; it being further understood that neither Buyer nor Seller and their respective directors shall have any fiduciary obligation to Holdco or to any other Member as a result of this Section 5.18.

ARTICLE VI

CONDITIONS TO CLOSING

Section 6.1 Conditions to the Obligations of the Parties . The obligations of Seller, FTFC, and the Companies, on the one hand, and Buyer, on the other hand, to effect the Closing are subject to the satisfaction (or waiver) prior to the Closing of the following conditions:

(a) U.S. Antitrust Laws . The waiting periods applicable to the consummation of the Transactions under any U.S. Antitrust Laws, including the HSR Act, shall have expired or been terminated.

(b) No Prohibition; Other Matters . No Government Entity shall have commenced any legal action or proceeding against Seller or Buyer or their respective Affiliates to enjoin or otherwise prohibit the consummation of the Transactions, which legal action or proceeding has a reasonable probability of succeeding on the merits. No Law shall be in effect enjoining or otherwise prohibiting the consummation of the Transactions.

 

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(c) Consents and Approvals . All Seller Required Approvals, all Company Required Approvals and all Buyer Required Approvals shall have been obtained.

Section 6.2 Conditions to the Obligations of Buyer . The obligation of Buyer to effect the Closing is subject to the satisfaction (or waiver) prior to the Closing of the following conditions:

(a) Representations and Warranties . Each of the representations and warranties of Seller (i) set forth in this Agreement (other than those in Sections 3.1, 3.2, 3.5, 3.13(i) and the last sentence of 3.14) shall be true and correct, without giving effect to any limitation as to materiality or Material Adverse Effect qualifiers set forth therein, as of the date hereof and as of the Closing Date as if made on and as of the Closing Date (except for such representations and warranties that are made as of a specific date which shall speak only as of such date); it being understood that any materiality limitations that describe the contents of a Schedule shall not be disregarded; provided , however , that notwithstanding anything herein to the contrary, the condition set forth in this Section 6.2(a)(i) shall be deemed to have been satisfied even if such representations and warranties of Seller are not so true and correct, unless the failure of such representations and warranties of Seller to be so true and correct, would not, individually or in the aggregate, have a Material Adverse Effect and (ii) set forth in Sections 3.1, 3.2, 3.5, 3.13(i) and the last sentence of 3.14 shall be true and correct in all respects as of the date hereof and as of the Closing Date as if made on and as of the Closing Date (except for such representations and warranties that are made as of a specific date which shall speak only as of such date).

(b) Covenants . Each of the covenants and agreements of Seller, FTFC or the Companies to be performed on or prior to the Closing shall have been duly performed in all material respects.

(c) Ancillary Agreements . Seller, FTFC and each of the Companies shall have executed and delivered the Ancillary Agreements and the other documents required by Section 2.7 or 2.8 to which it is a party or signatory.

(d) Certificate . Buyer shall have received a certificate, signed by a duly authorized officer of Seller and dated the Closing Date, to the effect that the conditions set forth in Sections 6.2(a) and 6.2(b) have been satisfied.

(e) Credit Facility . Opco shall have entered into a $125 million revolving credit facility on terms and conditions that are reasonably satisfactory to Buyer and Seller.

Section 6.3 Conditions to the Obligations of Seller, FTFC and the Companies . The obligation of Seller, FTFC and the Companies to effect the Closing is subject to the satisfaction (or waiver) prior to the Closing of the following conditions:

 

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(a) Representations and Warranties . Each of the representations and warranties of Buyer (i) contained in this Agreement that is qualified by a materiality qualifier shall be true and correct as of the date hereof and as of the Closing as if made on and as of the Closing, (ii) contained in this Agreement that is not qualified by a materiality or knowledge qualifier (other than those in Section 4.8) shall be true and correct in all material respects as of the date hereof and as of the Closing as if made on and as of the Closing and (iii) contained in Section 4.8 shall be true and correct in all respects as of the date hereof and as of the Closing as if made on and as of the Closing.

(b) Covenants . Each of the covenants and agreements of Buyer to be performed on or prior to the Closing shall have been duly performed in all material respects.

(c) Ancillary Agreements . Buyer shall have executed and delivered the Ancillary Agreements and the other documents required by Section 2.7 to which it is a party or signatory.

(d) Certificate . Seller and FTFC shall have each received a certificate, signed by a duly authorized officer of Buyer and dated the Closing Date, to the effect that the conditions set forth in Sections 6.3(a) and 6.3(b) have been satisfied.

ARTICLE VII

SURVIVAL; INDEMNIFICATION; CERTAIN REMEDIES

Section 7.1 Survival . The representations and warranties of Seller and Buyer contained in this Agreement shall survive the Closing for the period set forth in this Section 7.1. All representations and warranties set forth in this Agreement and all claims with respect thereto shall terminate upon the expiration of 12 months after the Closing Date, except that (i) the representations and warranties contained in Sections 3.1, 3.2, 3.4(i), 3.5, 4.1, 4.2, 4.4(i) and 4.5 (the “ Fundamental Representations ”) shall survive forever, (ii) the representations and warranties contained in Section 3.18 (other than in Section 3.18(d)) shall expire upon the Closing, (iii) the representations and warranties contained in Section 3.18(d) shall survive the Closing until 90 days following the expiration of the applicable statute of limitations (after giving effect to any extensions or waivers), and (iv) any representation or warranty, and any Liability with respect thereto, that would otherwise terminate in accordance with this Section 7.1 shall continue to survive if a notice of a claim for a breach or inaccuracy of such representation or warranty shall have been timely given under this Article VII on or prior to such termination until such claim has been satisfied or otherwise resolved as provided in this Article VII, but only with respect to such claim.

Section 7.2 Indemnification by Seller . (a) Seller hereby agrees that from and after the Closing it shall indemnify, defend and hold harmless Buyer and its Affiliates and their respective directors, officers, shareholders, partners, members (other than Seller or any of its Affiliates in the case of the Companies on and after the Closing) and employees (other than

 

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the Transferred Employees) and their heirs, successors and permitted assigns, each in their capacity as such (the “ Buyer Indemnified Parties ” and collectively with the Seller Indemnified Parties, the “ Indemnified Parties ”) from, against and in respect of any damages, losses, charges, Liabilities, claims, demands, actions, suits, proceedings, payments, judgments, settlements, assessments, deficiencies, Taxes, interest, penalties, and costs and expenses, including fines and penalties (including expenses of investigation and reasonable attorney’s fees and expenses) (collectively, “ Losses ”) imposed on, sustained, incurred or suffered by, or asserted against, any of the Buyer Indemnified Parties, whether in respect of third-party claims, claims between the parties hereto, or otherwise, directly or indirectly relating to or arising out of (i) subject to Section 7.2(b), any breach or inaccuracy of any representation or warranty made by Seller contained in this Agreement for the period such representation or warranty survives, (ii) any breach of any material covenant or agreement of Seller or FTFC contained in this Agreement, (iii) any breach of any material covenant of any of the Companies occurring on or prior to the Closing, (iv) solely with respect to the Companies and their respective directors and officers, any of the Excluded Liabilities, including (A) any and all Liabilities relating to the Applicable Employees to the extent not expressly assumed by the Companies in this Agreement or not an obligation of the Companies pursuant to any Ancillary Agreement, (B) any Taxes for which Seller is responsible in accordance with Section 5.4, (C) any and all Liabilities arising out of the matters set forth on Schedule 3.7 (including, for the sake of clarity, all indemnification, contribution or other Liabilities in respect of, arising from, or otherwise relating to, such matters or the facts and circumstances pursuant to which such matters relate), and (D) any and all Liabilities set forth on Schedule 7.2, except, in the case of this clauses (A) or (C), to the extent any such Liability is expressly set forth on Schedule 1.1(a) as an Assumed Liability or is reflected in the calculation of Closing Working Capital and (v) the Canadian Liabilities other than the Canadian Non-Indemnifiable Liabilities. Notwithstanding anything else to the contrary in this Article VII, any indemnification by Seller of the Buyer Indemnified Parties shall be without duplication as between Buyer and the Companies (and their respective directors, shareholders, partners, members (other than Seller or any of its Affiliates in the case of any of the Companies on and after the Closing) and employees), including, for illustrative purposes, that Seller shall not be required to also indemnify Buyer with respect to Losses incurred with respect to a diminution in value of its Holdco LLC Interests on or after the Closing in the event that the Companies have been indemnified by Seller with respect to the facts giving rise to a claim of indemnification hereunder and vice versa .

(b) Except with respect to good faith claims for fraud, Seller shall not be liable to the Buyer Indemnified Parties for any Losses with respect to the matters contained in Section 7.2(a)(i) with respect to any individual claim or related claims unless such claim or claims, as applicable, involve Losses in excess of $250,000 nor shall such item or related items involving Losses equal to or less than $250,000 be applied or consolidated for calculating the Deductible or the Cap), and unless the Losses therefrom exceed an aggregate amount equal to the sum of (i) 1% of the Purchase Consideration and (ii) 1% of the Note Amount (collectively, the “ Deductible ”) and then only for Losses in excess of that amount and up to an aggregate amount equal to the sum of (x) 10% of the Purchase Consideration and (y) 10% of the Notes Amount (collectively, the “ Cap ”). Notwithstanding the foregoing, this Section 7.2(b) does not apply to indemnification obligations directly or indirectly relating to or arising out of any breach of inaccuracy of any

 

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representation and warranty under Section 3.18(d), Section 3.31 and any of the Fundamental Representations.

(c) The aggregate amount of any Applicable Termination Price Adjustment, any Applicable Renegotiation Price Adjustment and any Consent Payments in excess of the Sub-Basket shall decrease the Cap on a dollar-for-dollar basis.

Section 7.3 Indemnification by Buyer . (a) Buyer and each of the Companies hereby agrees that from and after the Closing they shall, jointly and severally, indemnify, defend and hold harmless Seller, its Affiliates and their respective directors, officers, shareholders, partners, members and employees and their heirs, successors and permitted assigns, each in their capacity as such (the “ Seller Indemnified Parties ”) from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of the Seller Indemnified Parties, whether in respect of third-party claims, claims between the parties hereto, or otherwise, directly or indirectly relating to, arising out of or resulting from, (i) subject to Section 7.3(b), any breach or inaccuracy of any representation or warranty made by Buyer contained in this Agreement for the period such representation or warranty survives, (ii) any breach of a material covenant or agreement of Buyer contained in this Agreement, (iii) any breach of any material covenant of the Companies occurring after the Closing, (iv) the Assumed Liabilities, including any and all Taxes for which Buyer is responsible in accordance with Section 5.4 and (v) the Transferred Assets, the Business or the Transferred Employees to the extent attributable to the operation or ownership of the Transferred Assets or the Business or the employment of the Transferred Employees following the Closing and not otherwise (x) specifically included within any exclusion in the definition of Assumed Liabilities or (y) an Excluded Liability.

(b) Except with respect to good faith claims for fraud, Buyer and the Companies shall not be liable to the Seller Indemnified Parties for any Losses with respect to the matters contained in Section 7.3(a)(i), with respect to any individual claim or related claims unless such claim or claims, as applicable, involve Losses in excess of $250,000 nor shall such item or related items involving Losses equal to or less than $250,000 be applied or consolidated for calculating the Deductible or the Cap), and unless the Losses therefrom exceed the Deductible and then only for Losses in excess of that amount and up to the Cap. Notwithstanding the foregoing, this Section 7.3(b) does not apply to indemnification obligations directly or indirectly relating to arising out of any breach of inaccuracy of any of the Fundamental Representations.

Section 7.4 Indemnification by the Companies . The Companies hereby agree that from and after the Closing they shall, jointly and severally, indemnify, defend and hold harmless the Seller Indemnified Parties from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of the Seller Indemnified Parties, whether in respect of Third-Party Claims, claims between the parties hereto, or otherwise, directly or indirectly relating to, arising out of or resulting from (i) any breach of any covenant of the Companies set forth in Sections 5.1, 5.4, 5.5, 5.6, 5.7 and 5.10 occurring after the Closing, (ii) the Assumed Liabilities and (iii) the Transferred Assets, the Business or the Transferred

 

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Employees to the extent attributable to the operation or ownership of the Transferred Assets or the Business or the employment of the Transferred Employees, in each case, following the Closing.

Section 7.5 Third-Party Claim Indemnification Procedures . (a) In the event that any written claim or demand for which an indemnifying party (an “ Indemnifying Party ”) may have liability to any Indemnified Party hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a “ Third-Party Claim ”), such Indemnified Party shall promptly, but in no event more than thirty days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “ Claim Notice ”); provided , however , that the failure to give a timely Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have 30 days (or such less number of days set forth in the Claim Notice as may be required by Legal Proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “ Notice Period ”) to notify the Indemnified Party that it desires to defend the Indemnified Party against such Third-Party Claim.

(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate Legal Proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnifying Party shall defend such Third-Party Claim and the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party may participate in any such defense at its expense; provided , however , that such Indemnified Party shall be entitled to participate in any such defense with separate counsel at the reasonable expense of the Indemnifying Party if (i) the Indemnified Party shall have reasonably concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, or (ii) the Indemnified Party assumes the defense of a Third-Party Claim after the Indemnifying Party has failed to diligently pursue a Third-Party Claim it has assumed, as provided in the first sentence of Section 7.5(c). The Indemnifying Party shall not, without the prior written consent of the Indemnified Party (such consent not to be unreasonably withheld or delayed), settle, compromise or offer to settle or compromise any Third-Party Claim on a basis that would result in (i) the imposition of a consent Order, injunction or decree that would materially restrict the future activity or conduct of the Indemnified Party or any of its Affiliates, (ii) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates, (iii) a finding or admission that would have a Material Adverse Effect on other claims made or threatened against the Indemnified Party or any of its

 

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Affiliates or (iv) any monetary liability of the Indemnified Party that will not be promptly paid or reimbursed by the Indemnifying Party, and, in connection with any of the foregoing, the Indemnified Party alone shall be entitled to contest, defend, compromise and settle such Third-Party Claim in the first instance.

(c) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, (ii) is not entitled to defend the Third-Party Claim as a result of the Indemnified Party’s election to defend the Third-Party Claim as provided in Section 7.5(b) or (iii) after assuming the defense of a Third-Party Claim, fails to take reasonable steps necessary to defend diligently such Third-Party Claim within ten days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed.

(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees; it being understood that the costs and expenses of the Indemnified Party relating thereto shall be Losses.

(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.

Section 7.6 Direct Claims . If an Indemnified Party wishes to make a claim for indemnification hereunder for a Loss that does not result from a Third-Party Claim (a “ Direct Claim ”), the Indemnified Party shall notify the Indemnifying Party in writing of such Direct Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Direct Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto. The Indemnifying Party shall have a period of 30 days within which to respond to such Direct Claim. If the Indemnifying Party rejects all or any part of the Direct Claim, the Indemnified Person shall be free to seek enforcement of its rights to indemnification under this Agreement with respect to such Direct Claim.

Section 7.7 Consequential Damages . Notwithstanding anything to the contrary contained in this Agreement, no Person shall be liable under this Article VII for (i) any

 

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Losses that are not direct, actual damages or (ii) any punitive, special or speculative damages, in each case, unless such Losses are paid pursuant to a third party claim.

Section 7.8 Adjustments to Losses . (a)  Insurance . In calculating the amount of any Loss, the proceeds actually received by the Indemnified Party or any of its Affiliates under any insurance policy or pursuant to any claim, recovery, settlement or payment by or against any other Person in each case relating to the Third-Party Claim or the Direct Claim, net of any actual costs, expenses or premiums (including any increase in premiums exclusively and demonstrably attributable to insurance claims relating to such Loss) incurred in connection with securing or obtaining such proceeds, shall be deducted, except to the extent that the adjustment itself would excuse, exclude or limit the coverage of all or part of such Loss. Each Indemnified Party shall use commercially reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Losses to the same extent that such Indemnified Party would if such Loss were not subject to indemnification hereunder.

(b) Taxes . In calculating the amount of any Loss, there shall be deducted an amount equal to any net Tax benefit actually realized through a reduction in cash Taxes otherwise due (including the utilization of a Tax loss or Tax credit carried forward) as a result of such Loss by the party claiming such Loss, and there shall be added an amount equal to any Tax imposed on the receipt of any indemnity payment with respect thereto.

(c) Reimbursement . If an Indemnified Party recovers an amount from a third party in respect of a Loss that is the subject of indemnification hereunder after all or a portion of such Loss has been paid by an Indemnifying Party pursuant to this Article VII, the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (i) the amount paid by the Indemnifying Party in respect of such Loss, plus the amount received from the third party in respect thereof, less (ii) the full amount of Loss.

(d) Qualifiers . For purposes of determining the failure of any representations and warranties (other than representations and warranties in Sections 3.12 and 3.14) to be true and correct, the breach of any covenants or agreements and calculating Losses hereunder, any materiality or Material Adverse Effect qualifications in the representations, warranties, covenants and agreements shall be disregarded.

Section 7.9 Payments . The Indemnifying Party shall pay all amounts payable pursuant to this Article VII (the “ Indemnity Amount ”), by wire transfer of immediately available funds, within a reasonable period of time following receipt from an Indemnified Party of a bill, together with reasonably detailed back-up documentation, for a Loss that is the subject of indemnification hereunder, unless the Indemnifying Party in good faith disputes the Loss, in which event it shall so notify the Indemnified Party. In any event, the Indemnifying Party shall pay to the Indemnified Party an amount in cash equal to the Indemnity Amount by wire transfer of immediately available funds no later than five Business Days following any final determination of the Indemnity Amount and the Indemnifying Party’s liability therefor. A

 

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“final determination” shall exist when (i) the parties to the dispute have reached an agreement in writing, (ii) a court of competent jurisdiction shall have entered a final and non-appealable Order or judgment or (iii) an arbitration or like panel shall have rendered a final non-appealable determination with respect to disputes the parties have agreed to submit thereto. Notwithstanding anything to the contrary contained herein, if an indemnity payment is to be made to Buyer hereunder for a Loss incurred by the Companies, then the amount to be paid to Buyer for such Loss will be reduced to take into account Seller’s ownership of Holdco.

Section 7.10 Characterization of Indemnification Payments . All payments made by an Indemnifying Party to an Indemnified Party in respect of any claim pursuant to Section 7.2 or 7.3 shall be treated as adjustments to the Purchase Consideration, or, if applicable, as a member contribution of such amount by Seller to the Companies, for Tax purposes.

Section 7.11 Mitigation . Each Indemnified Party shall use its commercially reasonable efforts to mitigate any indemnifiable Loss. In the event an Indemnified Party fails to so mitigate an indemnifiable Loss, the Indemnifying Party shall have no liability for any portion of such Loss that reasonably could have been avoided had the Indemnified Person made such efforts.

Section 7.12 Remedies . Following the Closing, except (a) with respect to a claim to enforce this Article VII, (b) with respect to a good faith claim for fraud or (c) as may be otherwise contemplated by Sections 2.4, 2.5, 2.11, 5.4(f) or 9.1 or by the Confidentiality Agreement, the rights and remedies of Seller, the Companies and Buyer under this Article VII are exclusive and in lieu of any and all other rights and remedies which Seller, the Companies and Buyer may have under this Agreement or otherwise against each other with respect to the Transactions; provided , however , that for the avoidance of doubt, nothing in this Section 7.12 is intended to limit any rights the parties have under the Ancillary Agreements. The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or agreement, shall foreclose the right to indemnification or other remedy based on such representations, warranties, covenants or agreements.

ARTICLE VIII

TERMINATION

Section 8.1 Termination . This Agreement may be terminated at any time prior to the Closing:

(a) by written agreement of Buyer and Seller;

(b) by either Buyer or Seller, by giving written notice of such termination to the other parties hereto, if the Closing shall not have occurred on or before August 31, 2009 (the “ Termination Date ”) so long as the terminating party is not in material breach of its obligations under this Agreement;

(c) by Buyer or Seller if any state or federal court of competent jurisdiction or other state or federal Government Entity of competent jurisdiction shall have issued an Order or taken any other action permanently enjoining or

 

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otherwise prohibiting the consummation of the Transactions and such Order or other action shall have become final and non-appealable;

(d) by Seller, by giving written notice of such termination to Buyer, if there has been a breach of the representations, warranties, covenants or agreements of Buyer contained in this Agreement which (i) would result in the failure of the condition set forth in Section 6.3(a) or Section 6.3(b) and (ii) cannot be cured prior to the Termination Date; or

(e) by Buyer, by giving written notice of such termination to Seller, if there has been a breach of the representations, warranties, covenants or agreements of Seller contained in this Agreement which (i) would result in the failure of the condition set forth in Section 6.2(a) or Section 6.2(b) and (ii) cannot be cured prior to the Termination Date.

Section 8.2 Effect of Termination . In the event of the termination of this Agreement in accordance with Section 8.1, this Agreement shall thereafter become void and have no effect, and no Party shall have any liability to any other Party or their respective Affiliates, or their respective directors, officers or employees, except for the obligations of the parties hereto contained in this Section 8.2 and in Sections 9.2, 9.5, 9.7, 9.8, 9.9, 9.10, 9.11 and 9.13 (and any related definitional provisions set forth in Article I), as applicable, and except that nothing in this Section 8.2 shall relieve any Party from liability for any breach of this Agreement that arose prior to such termination, for which liability the provisions of Article VII shall remain in effect in accordance with the provisions and limitations of such Article.

ARTICLE IX

MISCELLANEOUS

Section 9.1 Specific Performance . The Parties agree that irreparable damage would occur in the event that any of the covenants or agreements (including Buyer’s obligation to effect the Closing) contained in this Agreement are not performed in accordance with their specific terms or are otherwise breached. It is accordingly agreed that the Parties shall be entitled to an injunction or injunctions to prevent breaches of any covenants or agreements contained in this Agreement and to enforce specifically any terms and provisions of this Agreement in the Chosen Courts, this being in addition to any other remedy to which such Party is entitled at law or in equity.

Section 9.2 Notices . All notices and communications hereunder shall be deemed to have been duly given and made if in writing and if served by personal delivery upon the Party for whom it is intended or delivered by registered or certified mail, return receipt requested, or if sent by telecopier or email; provided , that the telecopy or email is promptly confirmed by telephone confirmation thereof, to the Person at the address set forth below, or such other address as may be designated in writing hereafter, in the same manner, by such Person:

 

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To Buyer:

c/o Advent International Corp.

75 State Street

Boston, Massachusetts 02109

Telephone:

   (617) 951-9400

Email:

   cpike@adventinternational.com

Attention:

   Chris Pike

with copies to:

Weil, Gotshal and Manges, LLP

100 Federal Street, 34 th Floor

Boston, Massachusetts 02110

Telephone:

   (617) 772-8300

Telecopy:

   (617) 772-8333

Email:

   james.westra@weil.com
   marilyn.french@weil.com

Attention:

   James R. Westra
   Marilyn French

To Seller:

Fifth Third Bank

38 Fountain Square Plaza

Cincinnati, OH 45263

Telephone:

   (513) 579-4300

Telecopy:

   (513) 534-6757

Email:

   paul.reynolds@53.com

Attention:

   Paul Reynolds

with copies to:

Sullivan & Cromwell LLP

125 Broad Street

New York, New York 10004

Telephone:

   (212) 558-4000

Telecopy:

   (212) 291-9085
   (212) 291-9065

Email:

   korrya@sullcrom.com
   gladina@sullcrom.com

Attention:

   Alexandra D. Korry
   Andrew R. Gladin

 

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To any of the Companies:

c/o Fifth Third Bank

38 Fountain Square Plaza

Cincinnati, OH 45263

Telephone:

   (513) 579-4300

Telecopy:

   (513) 534-6757

Email:

   paul.reynolds@53.com

Attention:

   Paul Reynolds

with copies to:

Advent International Corp.

75 State Street

Boston, Massachusetts 02109

Telephone:

   (617) 951-9400

Email:

   cpike@adventinternational.com

Attention:

   Chris Pike

Weil, Gotshal and Manges, LLP

100 Federal Street, 34 th Floor

Boston, Massachusetts 02110

Telephone:

   (617) 772-8300

Telecopy:

   (617) 772-8333

Email:

   james.westra@weil.com
   marilyn.french@weil.com

Attention:

   James R. Westra
   Marilyn French

and:

Fifth Third Bank

38 Fountain Square Plaza

Cincinnati, OH 45263

Telephone:

   (513) 579-4300

Telecopy:

   (513) 534-6757

Email:

   paul.reynolds@53.com

Attention:

   Paul Reynolds

 

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Sullivan & Cromwell LLP

125 Broad Street

New York, New York 10004

Telephone:

   (212) 558-4000

Telecopy:

   (212) 291-9085
   (212) 291-9065

Email:

   korrya@sullcrom.com
   gladina@sullcrom.com

Attention:

   Alexandra D. Korry
   Andrew R. Gladin

To FTFC:

Fifth Third Financial Corporation

38 Fountain Square Plaza

Cincinnati, OH 45263

Telephone:

   (513) 579-4300

Telecopy:

   (513) 534-6757

Email:

   paul.reynolds@53.com

Attention:

   Paul Reynolds

with copies to:

Sullivan & Cromwell LLP

125 Broad Street

New York, New York 10004

Telephone:

   (212) 558-4000

Telecopy:

   (212) 291-9085
   (212) 291-9065

Email:

   korrya@sullcrom.com
   gladina@sullcrom.com

Attention:

   Alexandra D. Korry
   Andrew R. Gladin

Section 9.3 Amendment; Waiver . Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by Buyer and Seller, or in the case of a waiver, by the Party against whom the waiver is to be effective. No failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law except as otherwise specifically provided in Article VII.

Section 9.4 No Assignment or Benefit to Third Parties . This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, legal representatives and permitted assigns. Subject to the provisions of Section 2.10, no Party

 

86


may assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of each other Party, except as provided in Section 9.6 and except that Buyer may assign any and all of its rights and delegate any of its obligations under this Agreement or any Ancillary Agreement to any Person that acquires Units from the Buyer in accordance with the terms and conditions of the LLC Agreement (but no such assignment or delegation shall relieve Buyer of any of its obligations hereunder). Nothing in this Agreement, express or implied, is intended to confer upon any Person other than Buyer, Seller, FTFC, the Companies, the Indemnified Parties and their respective successors, legal representatives and permitted assigns, any rights or remedies under or by reason of this Agreement.

Section 9.5 Entire Agreement . This Agreement (including all Schedules and Exhibits hereto) and the Ancillary Agreements contain the entire understanding between the parties hereto with respect to the subject matter hereof and thereof and supersedes all prior agreements and understandings, oral or written, with respect to such matters, except for the Confidentiality Agreement.

Section 9.6 Fulfillment of Obligations . Any obligation of any Party to any other Party under this Agreement, or any of the Ancillary Agreements, which obligation is performed, satisfied or fulfilled completely by an Affiliate of such Party, shall be deemed to have been performed, satisfied or fulfilled by such Party.

Section 9.7 Public Disclosure . Notwithstanding anything to the contrary contained herein, from and after the date hereof, no press release or similar public announcement or communication shall be made or caused to be made relating to this Agreement or the Transactions unless specifically approved in advance by Seller and Buyer, except as may be required to comply with the requirements of any applicable Law and the rules and regulations of any stock exchange upon which the securities of one of the parties is listed (in which case a copy of such press release, announcement or communication shall be provided to the other parties hereto in advance, to the extent reasonably practicable).

Section 9.8 Expenses . Except as otherwise expressly provided in this Agreement or any Ancillary Agreement, whether or not the Transactions are consummated, all costs and expenses incurred in connection with this Agreement and the Transactions shall be borne by the Party incurring such costs and expenses; provided , however , that Buyer, on the one hand, and Seller, on the other hand, shall each be responsible for 50% of the filing fees payable in connection with any filings required by any Party under the HSR Act or other U.S. Antitrust Laws; provided further , that Seller shall be responsible for all such costs and expenses incurred by the Companies on or prior to the Closing Date. In connection with the Transactions, at the Closing, Seller shall contribute $5 million in cash to Holdco by wire transfer of immediately available funds. In connection with the reimbursement of Buyer of any expenses in connection with the Transactions, at the Closing, Holdco shall reimburse Buyer for all such expenses up to $5 million by wire transfer of immediately available funds.

Section 9.9 Personal Liability . This Agreement shall not create or be deemed to create or permit any personal liability or obligation on the part of any stockholder, director, officer, employee, authorized representative or agent of the Buyer.

 

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Section 9.10 Schedules . The disclosure of any matter in any Schedule to ARTICLE III or ARTICLE IV, as applicable, shall be deemed to be a disclosure on all other Schedules to ARTICLE III or ARTICLE IV, respectively, to which such matter may reasonably apply so long as such disclosure is in sufficient detail to enable a reasonable person to identify the other Sections thereof to which such information is responsive.

Section 9.11 Governing Law; Submission to Jurisdiction; Selection of Forum; Waiver of Trial by Jury . This Agreement shall be governed and construed in accordance with the laws of the State of Ohio without regard to principles of conflicts of law thereof. Each Party agrees that it shall bring any action or Legal Proceeding in respect of any claim arising out of or related to this Agreement or the Transactions, exclusively in the United States District Court for the Southern District of Ohio or any Ohio State court, in each case, sitting in Cincinnati, Ohio (the “ Chosen Courts ”), and solely in connection with claims arising under this Agreement or the Transactions (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such action or Legal Proceeding in the Chosen Courts, (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any Party and (iv) agrees that service of process upon such Party in any such action or Legal Proceeding shall be effective if notice is given in accordance with Section 9.2. Each Party irrevocably waives any and all right to trial by jury in any Legal Proceeding arising out of or relating to this Agreement or the Transactions.

Section 9.12 Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same Agreement.

Section 9.13 Headings . The heading references herein and the table of contents hereof are for convenience purposes only, and shall not be deemed to limit or affect any of the provisions hereof.

Section 9.14 Severability . The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any Person or any circumstance, is invalid or unenforceable, (i) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (ii) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.

[remainder of page intentionally left blank]

 

88


IN WITNESS WHEREOF, the parties have executed or caused this Agreement to be executed as of the second date written above.

 

FIFTH THIRD BANK
By:   / S / R OSS J. K ARI
  Name:   Ross J. Kari
  Title:   Executive Vice President
By:   / S / P AUL L. R EYNOLDS
  Name:   Paul L. Reynolds
  Title:   Executive Vice President
FIFTH THIRD FINANCIAL CORPORATION
By:   / S / P AUL L. R EYNOLDS
  Name:   Paul L. Reynolds
  Title:   Executive Vice President
FIFTH THIRD PROCESSING SOLUTIONS, LLC
By:   / S / C HARLES D. D RUCKER
  Name:   Charles D. Drucker
  Title:   President
FTPS HOLDING, LLC
By:   / S / C HARLES D. D RUCKER
  Name:   Charles D. Drucker
  Title:   President

[Signatures continue on the following page.]

[Signature page to the Master Investment Agreement]


ADVENT-KONG BLOCKER CORP.
By:   / S / C HRISTOPHER P IKE
  Name:   Christopher Pike
  Title:   Authorized Signatory

[Signature page to the Master Investment Agreement]

Exhibit 10.1

WARRANT

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED AT ANY TIME WITHOUT EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR AN EXEMPTION THEREFROM.

THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER SPECIFIED HEREIN, AND THE COMPANY RESERVES THE RIGHT TO REFUSE THE TRANSFER OF SUCH UNITS UNTIL SUCH TRANSFER IS IN COMPLIANCE HEREWITH.

 

Warrant No. 1   

Issue Date: June 30, 2009

(the “ Issue Date ”)

This certifies that, for value received, F IFTH T HIRD B ANK , a bank chartered under the laws of the State of Ohio (the “ Holder ”), is entitled to purchase up to 11,594,203 fully paid and nonassessable Underlying Units, subject to adjustment pursuant to Section 3 (as adjusted pursuant to the terms hereof, the “ Warrant Units ”) of FTPS H OLDING , LLC (formerly known as Fifth Third Processing Solutions, LLC), a Delaware limited liability company (the “ Company ”), at the Exercise Price and pursuant to the terms, and subject to the conditions, set forth in this warrant (this “ Warrant ”).

All capitalized terms used, but not otherwise defined, in this Warrant are defined in Section 10 .

1. Exercisability of Warrant . This Warrant shall be exercisable, in whole or in part, and from time to time, but not during a Restricted Period, during the period beginning on the Issue Date and terminating at the Expiration Time (such period, the “ Warrant Exercise Period ”); provided , however , that notwithstanding the existence of a Restricted Period, this Warrant shall be exercisable at any time that there are issued and in effect any Treasury regulations or other guidance on the basis of which counsel to the Holder delivers an opinion to the Company concluding that the exercise of this Warrant will not cause an immediate taxable event to the other Members (provided such legal counsel is of national reputation and specializes in the legal matters involved in such determination). The “ Exercise Price ” shall initially be $28.088235 per Warrant Unit and shall be subject to adjustment as set forth in Section 3 . The Company has reserved and will keep available, out of the authorized and unissued Units, the full number of Underlying Units sufficient to provide for the exercise of the rights of purchase represented by this Warrant. The Company shall promptly take such corporate action as may be necessary from time to time to increase its authorized but unissued Underlying Units to such number as is sufficient for the exercise of this Warrant in its entirety. Upon issuance and delivery (either against payment or following any net exercise pursuant to the terms of this Warrant), all Warrant


Units will be duly authorized and validly issued, free from all preemptive rights of any holder of Underlying Units, and free from all taxes, liens and charges with respect to the issue thereof (other than transfer taxes) and, if the Underlying Units are then listed on any national securities exchange or quoted on NASDAQ, will be duly listed or quoted thereon, as the case may be, at the Company’s expense. This Warrant shall automatically expire and terminate at, and shall no longer be exercisable after, the Expiration Time.

2. Method of Exercise .

(a) Exercise for Cash . This Warrant may be exercised by the Holder, in whole or in part, at any time, or from time to time, during the Warrant Exercise Period by (i) the surrender of this Warrant, properly endorsed, at the principal office of the Company, (ii) the payment of the Exercise Price in respect of the Warrant Units being purchased, and (iii) delivery to the Company of the Form of Subscription attached hereto (or a reasonable facsimile thereof) completed and duly executed by the Holder. The Exercise Price may be paid in cash, by wire transfer to an account specified in advance by the Company or by certified or bank cashier’s check.

(b) Net Exercise . This Warrant may also be exercised by the Holder, in whole or in part, during the Warrant Exercise Period by (i) the surrender of this Warrant, properly endorsed, at the principal office of the Company and (ii) delivery to the Company of the Form of Subscription attached hereto (or a reasonable facsimile thereof) completed and duly executed by the Holder and indicating that this Warrant is being net exercised, in which case the Company shall issue to the Holder such number of Warrant Units as is computed using the following formula:

 

  X =     Y * (A – B)   
    A   

 

where:

  X =    the number of Warrant Units to be issued to the Holder pursuant to this Section 2(b) ;
  Y =   the number of Warrant Units covered by this Warrant in respect of which the net issue election is made pursuant to this Section 2(b) ;
  A =   the Fair Market Value of one Warrant Unit; and
  B =   the Exercise Price in effect under this Warrant at the time such net exercise is made pursuant to this Section 2(b) .

(c) Effective Time of Exercise . Each exercise of this Warrant shall be deemed to have been effected, and the Person entitled to receive the Warrant Units for which this Warrant is exercised shall be treated for all purposes as the holder of record of such Warrant Units, immediately prior to the close of business on the Business Day on which (i) this Warrant was surrendered to the Company, (ii) if such exercise is made for

 

2


cash pursuant to Section 2(a) , the Company received payment of the Exercise Price in respect of the Warrant Units being purchased and (iii) the Company received the Form of Subscription attached hereto (or a reasonable facsimile thereof), all as provided in this Section 2 .

(d) Delivery of Warrant Units and Remainder of Unexercised Warrant . In the event of any exercise of this Warrant, certificates for the Warrant Units for which this Warrant is exercised will be delivered at the Company’s expense to the Holder within five (5) Business Days after this Warrant is exercised, and unless this Warrant has expired, a new warrant containing identical terms and conditions as contained in this Warrant representing the number of Warrant Units, if any, with respect to which this Warrant was not exercised shall also be issued to the Holder at such time.

(e) Fractional Units. No fractional Warrant Units will be issued in connection with any exercise hereunder, but in lieu of such fractional Warrant Units, the Company shall make a cash payment to the Holder in an amount equal to the Fair Market Value of such fractional Warrant Units.

3. Structural Anti-Dilution Adjustments . The Exercise Price and the number of Warrant Units as to which this Warrant may be exercised are subject to adjustment from time to time, as provided in this Section 3 .

(a) Adjustment Events . If the Company (i) fixes a record date for any distribution on its Units other than a Quarterly Distribution (as defined in the LLC Agreement), (ii) forward splits or subdivides its outstanding Units into a greater number of Units, (iii) reverse splits or combines its outstanding Units into a smaller number of Units, (iv) issues new Units below Fair Market Value, (v) effects a Pro Rata Repurchase or (vi) reclassifies or otherwise changes the Units into the same or a different number of securities of any other class or classes of securities of the Company (each of the events described in (i)-(vi), an “ Adjustment Event ”) then (x) this Warrant will become exercisable for the aggregate number and kind of Warrant Units that the Holder would have owned immediately following such record date (in the case of a distribution) or action if this Warrant had been exercised immediately prior to such record date (in the case of a distribution) or action, and the number of Warrant Units as to which this Warrant may be exercised immediately prior to such record date (in the case of a distribution) or action shall be proportionately adjusted on an equitable basis and (y) the Exercise Price in effect immediately prior to such record date (in the case of a distribution) or action shall be proportionately adjusted on an equitable basis, assuming for purposes of determining the adjustment to the Warrant Units under this Section 3(a) that the aggregate number of Warrant Units for which this Warrant and all warrants issued pursuant to this Warrant are exercisable should equal that number necessary to maintain that percentage of the Units on a fully-diluted basis that the Warrant Units under this Warrant and all warrants issued pursuant to this Warrant represented immediately prior to the Adjustment Event. Adjustments shall be made successively whenever any event listed above shall occur.

 

3


(b) Effective Time of Adjustment . An adjustment made pursuant to Section 3(a) shall become effective at the close of business on the record date (in the case of a distribution) or on the effective date of another action referred to in Section 3(a) ; provided that, in the event that such distribution is not made, the number of Warrant Units or other property for which this Warrant may be exercised and the Exercise Price shall be readjusted, effective as of the date when the Board determines in Good Faith not to make such distribution, to reverse the effect of the applicable adjustment made pursuant to Section 3(a).

(c) When De Minimis Adjustments May Be Deferred . No adjustment in the number of Warrant Units as to which this Warrant may be exercised or the Exercise Price need be made until cumulative adjustments would require an increase or decrease of at least 0.5% in the number of Warrant Units as to which this Warrant may be exercised or the Exercise Price then in effect. Any adjustments that are not made shall be carried forward and taken into account in any subsequent adjustment.

(d) Rounding . All calculations under this Section 3 shall be made to the nearest 1/10,000th of a cent or to the nearest 1/100th of a Unit, as the case may be.

(e) No Impairment . The Company shall not, by amendment of its certificate of incorporation, bylaws or other organizational documents, or through a reorganization, transfer of assets, consolidation, merger, dissolution, issue, or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed under this Warrant by the Company, but shall at all times in good faith assist in carrying out all of the provisions of this Section 3 and in taking all such action as may be necessary or appropriate to protect the Holder’s rights under this Section 3 against impairment.

4. Change of Control . In the event of any Change of Control, the Holder shall be entitled and obligated to Transfer this Warrant to the acquirer or surviving entity (which, for the sake of clarity, may be the Company) in such Change of Control (the “ Acquirer ”), and the Acquirer, as a condition to the consummation of such Change of Control transaction, shall be obligated to purchase this Warrant from the Holder, in each case, at an aggregate purchase price equal to the product of (a) the number of Units for which this Warrant is exercisable immediately before such Change of Control, multiplied by (b) the difference, if positive, between (i) the price paid per Unit to the holders of Units in such Change of Control (as determined based upon the Fair Market Value of the consideration paid, directly or indirectly) plus the price paid per share of common stock or other equity interest of TransActive Ecommerce Solutions Inc. in connection with such Change of Control, minus (ii) the Exercise Price; it being understood that the Holder shall receive the foregoing payment in the same form of consideration (and in the same proportion) as the consideration received by the holders of the Units in such Change of Control; it being further understood that if the holders of the Units have the option to receive all or any of their portion of their consideration in cash or other property, the Holder shall have the same option. In the event that in any Change of Control the difference between the price paid per Unit in such Change of Control minus the Exercise Price is less than or equal to zero, this Warrant shall automatically expire and terminate, and shall no longer be exercisable, immediately after the consummation of such Change of Control. The Acquirer shall be entitled

 

4


to assign its rights to purchase this Warrant so long as such assignment does not adversely affect the Holder; provided that Acquirer shall not be relieved of its obligations hereunder by virtue of such assignment; and provided further that if the stock of Acquirer represents a portion of the purchase price then the Holder shall still receive stock of the Acquirer as provided above despite such assignment.

5. Notice of Adjustments and Certain Actions . If (a) (i) the Company proposes to take any action that would require an adjustment pursuant to Section 3 to the Exercise Price and/or the number of Warrant Units as to which this Warrant may be exercised or (ii) an event has occurred that would require the Exercise Price and/or the number of Warrant Units as to which this Warrant may be exercised to be adjusted pursuant to Section 3 , (b) there is a proposal for any liquidation or dissolution of the Company, Opco or a significant Subsidiary or (c) the Company proposes to enter into a Change of Control, then, in any such case, the Company shall (x) promptly deliver to the Holder a notice in accordance with Section 12 stating the proposed record date for, or the date of the occurrence of, such event and, in the case of clause (a) , the proposed adjustment to the Exercise Price and/or the number of Warrant Units as to which this Warrant may be exercised, showing in reasonable detail the facts upon which such adjustment is based, and (y) file such notice at the principal office of the Company. In addition, promptly upon request of the Holder following any adjustment pursuant to Section 3 to the number of Warrant Units as to which this Warrant may be exercised and/or the Exercise Price, the Company shall deliver to the Holder a new warrant evidencing such adjustments in substitution and replacement for this Warrant and otherwise containing identical terms and conditions as those contained in this Warrant. In connection with a Change of Control, the Company shall deliver a notice in accordance with Section 12 within the earlier of five (5) days following the execution of the agreement with respect to such Change of Control and ten (10) days before the proposed date upon which the contemplated Change of Control is to be effected, indicating in such notice the date of execution of such agreement or such proposed effective date, as applicable, the amount and types of consideration to be paid for Units in the Change of Control, any election with respect to types of consideration that a holder of Units shall be entitled to make in connection with the Change of Control and the percentage of total Class B Units to be transferred to the Acquirer in the Change of Control. In addition, promptly upon request of the Holder following any Transfer or termination of the Warrant in part but not in whole pursuant to Sections 4(a) and (b), the Company shall deliver to the Holder a new warrant evidencing the remaining portion of the Warrant that was neither Transferred nor terminated, in substitution and replacement for this Warrant and otherwise containing identical terms and conditions as those contained in this Warrant, subject to any adjustment to the provisions of the Warrant made pursuant to Section 4(c).

6. Transferability of Warrant .

(a) Mechanics of Transfers . The Company shall maintain a registry showing the name and address of the Holder as the registered holder of this Warrant. Subject to satisfaction of the conditions set forth in this Section 6 , this Warrant and all rights hereunder are transferable, in whole or in part, on the books of the Company to be maintained for such purpose, upon (i) the surrender of this Warrant, properly endorsed, at the principal office of the Company and (ii) delivery to the Company of the Form of Assignment attached hereto (or a reasonable facsimile thereof) completed and duly

 

5


executed by the Holder. Upon such surrender and delivery, the Company shall promptly (i) make, execute and deliver a new warrant or warrants containing identical terms and conditions as contained in this Warrant other than the name(s) of any assignee(s) and the number of Warrant Units represented thereby in the name(s) of the assignee(s) and in the denominations specified in such instrument of assignment, and (ii) make, execute and deliver to the Holder a new warrant representing the number of Warrant Units that were not Transferred and otherwise containing identical terms and conditions as those contained in this Warrant. Upon such deliveries by the Company, this Warrant shall be canceled.

(b) Transfer Restrictions . Before an IPO, the Holder may Transfer all or any part of this Warrant, in each case, upon five (5) days’ prior written notice to the Company, only to:

(i) a transferee that concurrently acquires a pro rata portion of Class B Units (based on the Class B Units being Transferred by such Holder and its Permitted Affiliates (as defined below) to such transferee in relation to all Class B Units held by the Holder and its Affiliates as of the Closing Date) in accordance with the LLC Agreement; or

(ii) any of the following Persons: (A) (I) any Person who is a direct or indirect wholly-owned subsidiary of the Holder, (II) any Person who owns, directly or indirectly, one hundred percent (100%) of the equity interests of the Holder prior to such Transfer or (III) any Person that is directly or indirectly wholly owned by a Person who owns, directly or indirectly, one hundred percent (100%) of the equity interests of the Holder prior to such Transfer (any such Person in clauses (I) , (II) or (III) , a “ Permitted Affiliate ”); provided that, if at any time such transferee ceases to be a Permitted Affiliate of the Holder, such transferee shall immediately (and, in any event, no later than three (3) Business Days thereafter) Transfer the portion of this Warrant that it holds (in whole but not in part) to a Person that is a Permitted Affiliate of the Holder or to the Holder itself; or (B) any Person, in the event that, as a result of any change in applicable law or the scope of business activities in which the Company and the Subsidiaries are engaged, ownership by the Holder of this Warrant is no longer legally permissible, as determined reasonably and in good faith by the Holder’s legal counsel (provided such legal counsel is of national reputation and specializes in the legal matters involved in such determination); provided that to the extent the Holder is given a time period during which to divest this Warrant pursuant to this clause (B), the Holder shall use its commercially reasonable efforts to transfer this Warrant to an acquirer, if any at such time, of Class B Units as provided under Section 6(b)(i) ;

except , in the case of each of clauses (i)  and (ii) , to the extent any such action would, or would be reasonably likely to, result in a violation of applicable law (as determined by the Company’s outside legal counsel, provided such legal counsel is of national reputation and specializes in the legal matters involved in such determination) or the imposition of material and adverse obligations, limitations or conditions on the Company

 

6


and the Subsidiaries. Following an IPO, the Holder may Transfer all or any part of this Warrant without restriction except as set forth in this Section 6 .

(c) Tax Matters . Notwithstanding any provision herein to the contrary, no direct or indirect Transfer of this Warrant shall be permitted during the Restricted Period if, giving effect to such Transfer, the Company would have more than one hundred (100) partners (within the meaning of Treasury Regulation Section 1.7704-1(h), including without limitation, Section 1.7704-1(h)(3)), treating (solely for this purpose) each holder of this Warrant or any new warrant(s) issued pursuant to this Warrant as a partner, and any such Transfer will be void ab initio , unless legal counsel to the Holder (provided such legal counsel is of national reputation and specializes in the legal matters involved in such determination) renders an opinion to the Company that such Transfer will not cause the Company to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code.

(d) Transfer Expenses . If the Holder proposes to Transfer all or any part of this Warrant in accordance with the terms and conditions hereof, then the Holder shall be responsible for all expenses incurred by such Holder in connection with such Transfer and the Company shall be responsible for all expenses incurred by the Company in connection with such Transfer.

(e) Invalid Transfers . Any purported Transfer of this Warrant other than in accordance with the terms of this Warrant shall be null and void ab initio , and the Company shall refuse to recognize any such Transfer for any purpose and shall not reflect in its records any change in record ownership pursuant to any such Transfer.

(f) LLC Agreement . Notwithstanding Section 8.4 of the LLC Agreement, in connection with a proposed Transfer of this Warrant, the Holder may, and the Company shall upon written request and upon receipt of a written confirmation by a proposed transferee to keep the same confidential, provide to such proposed transferee of this Warrant an electronic copy of the LLC Agreement.

7. Registration Rights . Upon issuance of any Warrant Units upon the exercise of this Warrant, a holder (including any subsequent holders) of such Warrant Units shall have the right to include all or any portion of such Warrant Units in any Registration Statement (as such term is defined in the Registration Rights Agreement) pursuant to the terms, and subject to the conditions, of the Registration Rights Agreement.

8. No Member Rights . This Warrant shall not entitle the Holder to any voting rights or other rights as a Member of the Company prior to the exercise of this Warrant.

9. Securities Act .

(a) The Holder of this Warrant, by acceptance hereof, acknowledges that neither this Warrant nor the Warrant Units issuable upon exercise of this Warrant have been registered under the Securities Act or any applicable state securities laws. The Holder, by acceptance of this Warrant, represents that it is fully informed as to the

 

7


applicable limitations upon any distribution or resale of any portion of this Warrant and the Warrant Units under the Securities Act and any applicable state securities laws and agrees not to distribute or resell any portion of this Warrant or any Warrant Units if such distribution or resale would constitute a violation of the Securities Act or any applicable state securities laws or would cause the issuance of this Warrant or the Warrant Units to be in violation of the Securities Act or any applicable state securities laws. Any exercise of this Warrant by the Holder shall constitute a representation by the Holder that the Warrant Units are not being acquired with the view to, or for resale in connection with, any distribution or public offering of such Warrant Units in violation of the Securities Act or any applicable state securities laws.

(b) At all times after the Company has filed a registration statement with the SEC under the Securities Act, the Company covenants that it will use its reasonable best efforts to timely file all reports and other documents required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations promulgated by the SEC thereunder to enable such holder to, if permitted by the terms of this Warrant, sell this Warrant without registration under the Securities Act within the limitation of the exemptions provided by (i) Rule 144 or Regulation S under the Securities Act, as such rules may be amended from time to time, or (ii) any successor rule or regulation hereafter adopted by the SEC. Upon the written request of the Holder or any holder of a warrant issued pursuant to this Warrant, the Company will deliver to such holder a written statement that it has complied with such requirements.

(c) Subject to the provision of documentation as the Company may reasonably request after the end of the Restricted Period, the Company will replace any legended certificates representing Warrant Units with unlegended certificates promptly upon the request by any holder of Warrant Units in order to facilitate a lawful transfer of such Warrant Units or at any time after such Warrant Units are exempt from registration under the Securities Act.

10. Definitions . The following terms shall have the meanings given to them below.

Acquirer ” has the meaning set forth in Section 4 .

Adjustment Event ” has the meaning set forth in Section 3(a) .

Advent Blocker ” means Advent-Kong Blocker Corp., a corporation organized under laws of the State of Delaware.

Board ” means the Board of Directors of the Company.

Business Day ” means any day of the year other than a Saturday, a Sunday or any other day on which national or state banking institutions in Ohio are required or authorized by law to close.

Change of Control ” means any (i) merger, consolidation or other business combination of the Company (or any Subsidiary or Subsidiaries that alone or together represent all or substantially all of the Company’s consolidated business at that time) or any successor or

 

8


other entity owning or holding substantially all the assets of the Company and its Subsidiaries that results in the Members immediately before the consummation of such transaction, or a series of related transactions, holding, directly or indirectly, less than fifty percent (50%) of the voting power of the Company (or such Subsidiary or Subsidiaries) or any successor or other entity owning or holding substantially all the assets of the Company and its Subsidiaries or the surviving entity thereof, as applicable, immediately following the consummation of such transaction or series of related transactions, (ii) Transfer, in one or a series of related transactions, of Units representing fifty percent (50%) or more of the voting power of the Company (or such Subsidiary or Subsidiaries) or any successor or other entity owning or holding substantially all the assets of the Company and its Subsidiaries to a Person or group of related Persons (other than Advent Blocker and FTB and their respective Affiliates), (iii) transaction in which a majority of the Board following such transaction is comprised of Persons who are not designees of Advent Blocker, FTB or their respective Affiliates or (iv) sale or other disposition in one or a series of related transactions of all or substantially all of the assets of the Company and the Subsidiaries. For the avoidance of doubt, an IPO shall not be deemed to be a Change of Control.

Chosen Courts ” has the meaning set forth in Section 13 .

Class A Units ” means the Class A Units of the Company.

Class B Units ” means the Class B Units of the Company or any successor thereto.

Class C Non-Voting Units ” means the Class C Non-Voting Units of the Company.

Closing Date ” means June 30, 2009.

Code ” means the Internal Revenue Code of 1986, as amended, or any successor statute.

Commission ” means the Securities and Exchange Commission and any successor thereto.

Company ” has the meaning set forth in the Preamble.

Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder, as amended, or any successor federal statute, and the rules and regulations of the Commission thereunder, all as the same shall be in effect from time to time.

Exercise Price ” has the meaning set forth in Section 1 .

Expiration Time ” means the earlier of (a) immediately after the consummation of a Change of Control in the event the price paid per Unit in such Change of Control minus the Exercise Price is less than or equal to zero, (b) 5:00 p.m., Cincinnati, Ohio time, on the twentieth (20th) anniversary of the Issue Date and (c) 5:00 p.m., Cincinnati, Ohio time, on the sixtieth (60th) day (subject to extension for an additional sixty (60) days in the event of an extended

 

9


regulatory review) following the date on which the Put Rights (as defined in the LLC Agreement) are exercised if (i) the closing of the transactions contemplated by Section 6.3(f) of the LLC Agreement are not consummated or (ii) the payment contemplated by Section 6.3(f) is not made, in either case, within sixty (60) days (subject to extension for an additional sixty (60) days in the event of an extended regulatory review) following the date on which the Put Rights are exercised; provided that, if the right to exercise the Put Right is disputed in good faith pursuant to Section 6.3(f) of the LLC Agreement, then in such case the Expiration Time shall occur only when and if the dispute is settled in a manner such that the holders of voting capital stock of Advent Blocker did have the right to exercise the Put Rights.

Fair Market Value ” means, with respect to any asset or security, the fair market value of such asset or security, as between a willing buyer and a willing seller not under a compulsion to buy or sell in an arms’-length transaction occurring on the date of the valuation, taking into account the relevant factors, as reasonably determined in Good Faith by the Board at the time of issuance or the entry into the transaction; it being understood that, (i) with respect to a security that is listed on a national securities exchange or quoted on NASDAQ, Fair Market Value shall mean the average of the closing prices of such security over the thirty (30) day period ending one (1) Business Day prior to the date of measurement, and (ii) with respect to a security that is traded over-the-counter, Fair Market Value shall mean the average of the closing bid prices over the thirty (30) day period ending one (1) Business Day prior to the date of measurement.

FTB ” means Fifth Third Bank, a bank chartered under the laws of the State of Ohio.

Good Faith ” means a Person having acted honestly and fairly and in a manner such Person reasonably believed to be in or not opposed to the best interests of the Company (as opposed to the interests of a particular Member), and, with respect to a criminal proceeding, having had no reasonable cause to believe such Person’s conduct was unlawful.

Holder ” has the meaning set forth in the Preamble.

IPO ” means the first registered, public offering of Units for cash pursuant to an effective registration statement under the Securities Act, registered on Form S-1 (or any successor form) in which such Units are sold to one or more underwriters on a firm-commitment basis for reoffering to the public.

Issue Date ” means the date set forth in the Preamble.

LLC Agreement ” means the Amended and Restated Limited Liability Company Agreement of the Company, dated as of the date hereof, as amended from time to time in accordance with its terms.

Member ” means Advent Blocker, FTB, FTPS Partners, LLC and the Persons listed on Schedule I of the LLC Agreement, and each other Person who is hereafter admitted as a Member in accordance with the terms of the LLC Agreement, but only to the extent such Person has not ceased to be a Member pursuant to Section 6.1 of the LLC Agreement.

 

10


Opco ” means Fifth Third Processing Solutions, LLC (formerly known as FTPS Opco, LLC), a Delaware limited liability company and the Company’s wholly-owned Subsidiary, and any successor thereto.

Original Holder ” means any of Advent Blocker, FTB and FTPS Partners, LLC.

Permitted Affiliate ” has the meaning set forth in Section 6(b)(ii) .

Pro Rata Repurchases ” means any purchase of Units by the Company or any Affiliate thereof pursuant to (A) any tender offer or exchange offer subject to Section 13(e) or 14(e) of the Exchange Act or Regulation 14E promulgated thereunder or (B) any other offer available to substantially all holders of Units, in the case of both (A) or (B), whether for cash, Units or other securities of the Company, evidences of indebtedness of the Company or any other Person or any other property, or any combination thereof, effected while this Warrant is outstanding. The “effective date” of a Pro Rata Repurchase shall mean the date of acceptance of shares for purchase or exchange by the Company under any tender or exchange offer that is a Pro Rata Repurchase or the date of purchase with respect to any Pro Rata Purchase that is not a tender or exchange offer.

Registration Rights Agreement ” means the Registration Rights Agreement by and among the Company, FTB, FTPS Partners, LLC, Advent Blocker and JPDN Enterprises, LLC, dated as of the date hereof, as amended from time to time in accordance with its terms.

Restricted Period ” means any period with respect to which the Company (or any successor thereto) is treated as a partnership for U.S. federal income tax purposes; provided that the Restricted Period shall terminate upon the earlier of (i) a Change of Control, (ii) an IPO or conversion of the Company or like transaction (or any Subsidiary or Subsidiaries that alone or together represent all or substantially all of the Company’s consolidated business at that time) in anticipation of an IPO.

Securities Act ” means the Securities Act of 1933, as amended, or any successor federal statute, and the rules and regulations of the Commission thereunder, all as the same shall be in effect from time to time.

Subsidiary ” means any Person of which (i) a majority of the outstanding share capital, voting securities or other equity interests are owned, directly or indirectly, by the Company and/or any other Subsidiary or (ii) the Company and/or any other Subsidiary is entitled, directly or indirectly, to appoint a majority of the board of directors or comparable body of such Person.

Transfer ” means, with respect to this Warrant or any Units, (a) when used as a verb, to sell, assign, dispose of, exchange, pledge, encumber, hypothecate or otherwise transfer such Warrant or Units or any participation or interest therein, whether directly or indirectly, or to agree or commit to do any of the foregoing, and (b) when used as a noun, a direct or indirect sale, assignment, disposition, exchange, pledge, encumbrance, hypothecation or other transfer of such Warrant or Units or any participation or interest therein, or any agreement or commitment to do any of the foregoing, including in each case through the Transfer of any Person directly

 

11


holding such Warrant or Units or any direct interest in such Person; it being understood that a Transfer of a controlling interest in any Person holding such Warrant or Units shall be deemed to be a Transfer of such Warrant and all of the Units held by such Person. Notwithstanding anything to the contrary in this Warrant, no Transfer of an interest in any Person which is a public company or which is a limited partner in any investment entity that holds a direct or indirect interest in an Original Holder shall be deemed to constitute a Transfer of this Warrant or any Units held by such Original Holder unless such Original Holder and such Person are acting in concert with respect to such Transfer or such Original Holder, alone or together with its Affiliates or other Persons with whom it is acting in concert, controls such Person.

Underlying Unit ” means, as applicable, (a) prior to, and except in connection with, an IPO in which the Class B Units (or their equivalent as provided in the following clauses (i)-(v) ) are offered, a Class C Non-Voting Unit, or (b) upon and after the consummation of an IPO or in connection with an IPO, in each case, in which the Class B Units (or their equivalent as provided in the following clauses (i)-(v) ) are offered, (i) a Class B Unit, (ii) the common stock or other equity securities for which a Class B Unit has been converted or exchanged of a successor corporation or other entity into which the Company is converted or merged, (iii) the common stock or other equity securities of a corporation or other entity otherwise formed by the Company or the Members for the purpose of offering securities to the public that are issued or issuable for a Class B Unit, or the rights to receive, or the securities that are convertible into, or exchangeable or exercisable for, common stock or other equity securities of a corporation or other entity otherwise formed by the Company or the Members for the purpose of offering securities to the public that are issued or issuable for a Class B Unit, (iv) the common stock or other equity securities of a Person that has control of the Company, a Subsidiary or other entity to which assets of the Company and/or the Subsidiaries have been transferred, in each case, whose securities the Company has determined to offer to the public and that are issued or issuable for a Class B Unit, or (v) the Units for which a Class B Unit is exchangeable.

Unit ” means, a Class A Unit, a Class B Unit, a Class C Non-Voting Unit or any other Underlying Unit, as applicable, and “ Units ” means the Class A Units, the Class B Units and the Class C Non-Voting Units, collectively or separately.

Warrant ” has the meaning set forth in the Preamble.

Warrant Exercise Period ” has the meaning set forth in Section 1 .

Warrant Unit ” has the meaning set forth in the Preamble.

11. Amendment and Waiver . This Warrant and any provision hereof may be amended only by an instrument in writing signed by the Holder and the Company; provided that if the Company has consented to an amendment of any warrant issued pursuant to this Warrant that is more favorable to the Holder thereof, the Company promptly shall so inform the Holder and such amendment shall apply to this Warrant without further action by the Holder. This Warrant and any provision hereof may only be waived by a writing signed by the party against whom the waiver is to be effective; provided that if the Company has waived any provision of any warrant issued pursuant to this Warrant, the Company promptly shall so inform the Holder and upon request of the Holder shall execute an instrument in writing consenting to a like waiver

 

12


of such provision with respect to the Holder. Notwithstanding anything to the contrary in this Warrant, in the event that all or any part of this Warrant is Transferred to more than one holder of record in accordance with Section 6 , the consent of Fifth Third Bank (for so long as Fifth Third Bank is the Holder or the holder of any warrant issued pursuant to this Warrant) and the holders of record of a majority of Units then underlying all outstanding warrants derived from this Warrant shall be required to amend any provisions of such warrants, and any such amendment or waiver shall be binding on, and enforceable against, all such holders of record. The failure of any party to enforce any of the provisions of this Warrant shall in no way be construed as a waiver of such provisions and shall not affect the right of such party thereafter to enforce each and every provision of this Warrant in accordance with its terms.

12. Notices . Any notice, request or other document required or permitted to be given or delivered to the Holder or the Company shall be given at the address or email address set forth on the signature pages to this Warrant. Each proper notice shall be effective upon any of the following: (a) personal delivery to the recipient, (b) when telecopied or emailed to the recipient if the telecopy is promptly confirmed by automated or telephone confirmation thereof or if the email is promptly confirmed by email or telephone confirmation thereof, or (c) one (1) Business Day after being sent to the recipient by reputable overnight courier service (charges prepaid).

13. Descriptive Headings; Governing Law; Selection of Forum; Waiver of Trial by Jury . The descriptive headings of the several paragraphs of this Warrant are inserted for convenience only and do not constitute a part of this Warrant. This Warrant shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the laws of the State of New York, without reference to the conflicts of laws thereof to the extent such reference would direct a matter to another jurisdiction. Each of the Holder and the Company agrees that it shall bring any action, suit, demand or proceeding (including counterclaims) in respect of any claim arising out of or related to this Warrant, exclusively in the United States District Court for the Southern District of New York or any New York State court, in each case, sitting in New York County (the “ Chosen Courts ”), and solely in connection with claims arising under this Warrant (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such action, suit, demand or proceeding in the Chosen Courts, (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over such party and (iv) agrees that service of process upon such party in any such action, suit, demand or proceeding shall be effective if notice is given in accordance with Section 12 . Each of the Holder and the Company irrevocably waives any and all right to trial by jury in any action, suit, demand or proceeding (including counterclaims) arising out of or related to this Warrant.

14. Lost Warrant . Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction, or mutilation of this Warrant (which evidence may include an affidavit of loss), and (a) in the case of any such loss, theft or destruction, the posting of a bond in an amount reasonably satisfactory to the Company or execution and delivery of an indemnity agreement in a form reasonably satisfactory to the Company and, (b) in the case of any such mutilation, upon surrender and cancellation of such Warrant, the Company will make, execute and deliver a new Warrant in lieu of the lost, stolen, destroyed or mutilated Warrant.

 

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15. HSR Filings . In the event that as a condition to or in connection with the exercise of this Warrant, the Company is required to make any filing pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as in effect from time to time, and the regulations promulgated thereunder, or any similar law, rule or regulation, the Holder shall reimburse the Company for all filing fees and actual and reasonable attorneys fees and other out of pocket expenses incurred in connection with such filing, and the Company’s obligations hereunder with respect to issuing Warrant Units shall not be effective until any applicable waiting period has expired or consent has been obtained.

[ The remainder of this page is left blank intentionally. ]

 

14


IN WITNESS WHEREOF, the Company has executed this Warrant as of the Issue Date.

 

FTPS HOLDING, LLC

( formerly known as Fifth Third Processing Solutions, LLC )

  By:   / S / C HARLES D. D RUCKER
  Name: Charles D. Drucker
  Title: President
  Address for notice purposes :
 

38 Fountain Square Plaza

Cincinnati, OH 45263

  With a copy to :
 

Advent International Corporation

75 State Street

Boston, MA 02109

email: cpike@adventinternational.com

 

Acknowledged and agreed as of the Issue Date:
HOLDER:
FIFTH THIRD BANK
By.   / S / R OSS J. K ARI
Name: Ross J. Kari
Title: Executive Vice President
By.   / S / P AUL L. R EYNOLDS
Name: Paul L. Reynolds
Title: Executive Vice President
Address for notice purposes :

38 Fountain Square Plaza

Cincinnati, OH 45263

email: paul.reynolds@53.com


Form of Subscription

To the Company:

The undersigned holder of the attached Warrant (the “ Holder ”) hereby ( check all that apply ):

 

  ¨ irrevocably elects to purchase for cash                      Warrant Units for an aggregate Exercise Price of $              , the payment of which amount the Holder is concurrently making to the Company ( check all that apply ) in cash   ¨ , by wire transfer   ¨ , by certified check   ¨ or by any combination of the foregoing   ¨ ; and/or

 

  ¨ irrevocably surrenders the right to purchase                      Warrant Units, and a proportionate part of the Warrant and the rights evidenced thereby, in exchange for that number of Warrant Units computed in accordance with the provisions of Section 2(b) of the Warrant; and

requests that such Warrant Units be held (and the related capital contribution be made) in the name of                      whose address is              .

The Holder hereby represents (i) that it has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its investment in the Warrant Units; (ii) that it can bear the economic risk of its investment in the Warrant Units and can afford to lose its entire investment in the Warrant Units; (iii) that it has been furnished the materials relating to its investment in the Warrant Units which it has reasonably requested in connection with its investment; (iv) that it is acquiring the Warrant Units for investment and not with a view toward, or for sale in connection with, any distribution thereof in violation of the Securities Act of 1933, as amended (the “ Securities Act ”) or any applicable state securities laws. The Holder agrees that the Warrant Units may not be sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed of without registration under the Securities Act, except pursuant to an exemption from the Securities Act and any applicable state securities laws.

If the number of Warrant Units purchased is less than all of the Warrant Units evidenced by the Warrant, then the Holder requests that a new warrant representing the remaining Warrant Units subject to the Warrant be issued and delivered to the Holder.

All capitalized terms used but not defined herein shall have the meanings ascribed to those terms in the Warrant.

 

Dated:                             
    (Signature)
       
       
    (Address)


Form of Assignment

FOR VALUE RECEIVED, the undersigned holder of the attached Warrant (the “ Holder ”) hereby sells, assigns and transfers all of the rights of the Holder under that portion of the attached Warrant specified below unto the assignee(s) specified below:

 

Name of Assignee

  

Address

   No. of Warrant Units Underlying
the Warrant Subject to Transfer
     
     
     

 

Dated:                             
    (Signature)
       
       
    (Address)

Exhibit 10.2

 

 

 

 

 

FTPS HOLDING, LLC

A Delaware Limited Liability Company

 

 

AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT

Dated as of June 30, 2009

THE UNITS REPRESENTED BY THIS LIMITED LIABILITY COMPANY AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS. SUCH UNITS MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED AT ANY TIME WITHOUT EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR AN EXEMPTION THEREFROM.

THE UNITS REPRESENTED BY THIS LIMITED LIABILITY COMPANY AGREEMENT ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER SPECIFIED HEREIN, AND THE COMPANY RESERVES THE RIGHT TO REFUSE THE TRANSFER OF SUCH UNITS UNTIL SUCH TRANSFER IS IN COMPLIANCE HEREWITH.

 

 

 


ARTICLE I -

 

DEFINITIONS

   2

SECTION 1.1

  Definitions    2

SECTION 1.2

  Terms Generally    19

ARTICLE II -

 

GENERAL PROVISIONS

   20

SECTION 2.1

  Formation    20

SECTION 2.2

  Name    20

SECTION 2.3

  Term    20

SECTION 2.4

  Purpose; Powers    20

SECTION 2.5

  Foreign Qualification    21

SECTION 2.6

  Registered Office; Registered Agent; Principal Office; Other Offices    21

SECTION 2.7

  No State-Law Partnership    22

ARTICLE III -

 

UNITS

   22

SECTION 3.1

  Authorized Units    22

SECTION 3.2

  General    23

SECTION 3.3

  Voting    23

SECTION 3.4

  Preemptive Rights    23

ARTICLE IV -

 

MANAGEMENT

   24

SECTION 4.1

  Board of Directors    24

SECTION 4.2

  Meetings of the Members    33

SECTION 4.3

  Chairperson    35

SECTION 4.4

  Officers    36

SECTION 4.5

  Management Matters    38

SECTION 4.6

  Liability of Members    38

SECTION 4.7

  Exculpation; Indemnification by the Company    38

SECTION 4.8

  Renunciation of Corporate Opportunities; No Expansion of Duties    40

ARTICLE V -

 

CAPITAL CONTRIBUTIONS; ALLOCATIONS; DISTRIBUTIONS

   43

SECTION 5.1

  Capital Account Creation    43

SECTION 5.2

  Capital Account Negative Balance    43

SECTION 5.3

  Allocations of Net Income and Net Loss    43

SECTION 5.4

  Distributions    48

 

i


ARTICLE VI -

  WITHDRAWAL; DISSOLUTION; TRANSFER OF MEMBERSHIP INTERESTS; ADMISSION OF NEW MEMBERS    49

SECTION 6.1

  Member Withdrawal    49

SECTION 6.2

  Dissolution    49

SECTION 6.3

  Transfer by Members    51

SECTION 6.4

  Transfers and Other Actions in Connection with Public Offering or Recapitalization    59

SECTION 6.5

  Admission or Substitution of New Members    60

ARTICLE VII -

 

REPORTS TO MEMBERS; TAX MATTERS

   60

SECTION 7.1

  Books of Account    60

SECTION 7.2

  Reports    61

SECTION 7.3

  Fiscal Year    62

SECTION 7.4

  Independent Auditor    62

SECTION 7.5

  Certain Tax Matters    62

ARTICLE VIII -

 

MISCELLANEOUS

   65

SECTION 8.1

  Exhibits    65

SECTION 8.2

  Governing Law; Severability; Selection of Forum; Waiver of Trial by Jury    65

SECTION 8.3

  Successors and Assigns; No Third-Person Beneficiaries    66

SECTION 8.4

  Confidentiality    66

SECTION 8.5

  Amendments    66

SECTION 8.6

  Notices    66

SECTION 8.7

  Counterparts    67

SECTION 8.8

  Power of Attorney    67

SECTION 8.9

  Entire Agreement    67

Exhibits and Schedules

 

Schedule I    Members
Exhibit A    Notice Addresses of Current Directors and the CEO
Exhibit B    Approved Acquisitions
Exhibit C    Approved Affiliate Transactions
Exhibit D    Tax Representations
Exhibit E    Management Phantom Equity Plan
Exhibit F    Seller Business Plan

 

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FTPS HOLDING, LLC

A Delaware Limited Liability Company

 

 

AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT

Dated as of June 30, 2009

This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time in accordance with its terms, this “ Agreement ”) of FTPS HOLDING, LLC (formerly known as Fifth Third Processing Solutions, LLC), a Delaware limited liability company (the “ Company ”), is made effective as of the date first written above (the “ Effective Date ”) by and among:

 

  (i) Advent-Kong Blocker Corp., a Delaware corporation (“ Advent Blocker ”);

 

  (ii) Fifth Third Bank, a bank chartered under the Laws of the State of Ohio (“ FTB ”);

 

  (iii) FTPS Partners, LLC, a Delaware limited liability company (“ FTPSP ”);

 

  (iv) JPDN Enterprises, LLC, a Delaware limited liability company (“ JPDN ”);

 

  (iv) the Company; and

 

  (v) each other Person who at any time after the Effective Date becomes a Member in accordance with the terms of this Agreement and the Act.

Any reference in this Agreement to Advent Blocker, FTB, FTPSP or any other Member shall be deemed to include such Member’s Successors in Interest to the extent such Successors in Interest have become Substitute Members in accordance with the provisions of this Agreement.

All capitalized terms used in this Agreement are defined in Article I .

R E C I T A L S

WHEREAS , (i) the Company was formed as a limited liability company under the Delaware Limited Liability Company Act, Title 6, Sections 18-101 et seq. (as amended from time to time, the “ Act ”), by the filing of a Certificate of Formation with the Secretary of State of the State of Delaware on December 11, 2008 (the “ Filing Date ”);

 

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WHEREAS , the then-Members of the Company set forth certain agreements governing the relations among the members in a Limited Liability Company Agreement dated as of February 24, 2009 (as amended to date, the “ Original Agreement ”);

WHEREAS , in connection with (i) Advent Blocker’s purchase of 50,930,455 Class A Units, representing 50.93% of the Units, from FTB pursuant to the terms, and subject to the conditions of, that certain Master Investment Agreement, dated as of March 27, 2009, as amended June 30, 2009, by and among Advent Blocker, FTB, the Company, Fifth Third Financial Corporation, an Ohio corporation, and Fifth Third Processing Solutions, LLC (formerly known as FTPS Opco, LLC), a Delaware limited liability company (“ Opco ”) (as amended from time to time in accordance with its terms, the “ Master Investment Agreement ”), concurrently with the Closing (as defined in the Master Investment Agreement), and (ii) JPDN’s purchase of 69,545 Class A Units and 66,818 Class B Units from FTB concurrently with the Closing, the Members wish to amend and restate the Original Agreement by entering into this Agreement; and

WHEREAS , as of the Effective Date, the Company is operating the Business indirectly through Opco and, simultaneously herewith, the Company and Opco are entering into an Amended and Restated Limited Liability Company Agreement (as amended and restated, the “ Opco LLC Agreement ”) pursuant to which the Company will be the sole member of Opco and will govern Opco as a member pursuant to the provisions of this Agreement.

NOW THEREFORE , in consideration of the mutual covenants and agreements contained in this Agreement, the sufficiency of which is hereby acknowledged, the parties agree that the Original Agreement is hereby amended and restated in its entirety as follows:

ARTICLE I - DEFINITIONS

SECTION 1.1 Definitions .

The following terms shall have the following meanings for purposes of this Agreement:

Act ” has the meaning set forth in the recitals above.

Additional Member ” means any Person that has been admitted to the Company as a Member pursuant to Section 6.5 by virtue of having received its Membership Interest from the Company and not from any other Member or Assignee.

Adjusted Capital Account Deficit ” means, with respect to any Member, the deficit balance, if any, in such Member’s Capital Account as of the end of the relevant fiscal year, after giving effect to the following adjustments:

(i) Credit to such Capital Account any amounts which such Member is obligated to restore pursuant to any provision of this Agreement or is deemed obligated to restore pursuant to the penultimate sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5); and

 

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(ii) Debit to such Capital Account the items described in Regulations Sections 1.704-1(b)(2)(ii)( d )( 4 ), 1.704-1(b)(2)(ii)( d ) (5 ), and 1.704-1(b)(2)(ii)( d )( 6 ).

The foregoing definition of “ Adjusted Capital Account Deficit ” is intended to comply with the provisions of Section 1.704-1(b)(2)(ii)( d ) of the Regulations and shall be interpreted and applied by the Board of Directors consistently therewith.

Advent Blocker ” has the meaning set forth in the preamble above.

Advent Blocker Affiliate ” has the meaning set forth in Section 6.3(b)(ii) .

Advent Blocker Stock ” means the voting capital stock of Advent Blocker.

Advent Blocker Stockholder(s) ” means the holders of Advent Blocker Stock.

Advent Group ” has the meaning set forth in Section 4.8(a) .

Advent Group Member ” has the meaning set forth in Section 4.8(a) .

Affiliate ” means, with respect to any Person, any other Person, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with, such Person.

Agreement ” has the meaning set forth in the preamble above.

Approved Replacement ” means, (a) with respect to the Board of Directors, each of Ross Kari and Mary Tuuk, and, (b) with respect to the Steering Committee, each of Greg Carmichael and Vince Destefano.

Assignee ” means any transferee to which a Member or another Assignee has transferred its Economic Interest in the Company in accordance with the terms of this Agreement, but who is not a Member.

Bankruptcy ” means, with respect to any Person, the occurrence of any of the following events: (i) the filing of an application by such Person for, or a consent to, the appointment of a trustee or custodian of its assets; (ii) the filing by such Person of a voluntary petition in bankruptcy or the seeking of relief under Title 11 of the United States Code, as now constituted or hereafter amended, or the filing of a pleading in any court of record admitting in writing its inability to pay its debts as they become due; (iii) the making by such Person of a general assignment for the benefit of creditors; (iv) the filing by such Person of an answer admitting the material allegations of, or its consenting to, or defaulting in answering, a bankruptcy petition filed against it in any bankruptcy proceeding or petition seeking relief under Title 11 of the United States Code, as now constituted or as hereafter amended; or (v) the entry of an order, judgment or decree by any court of competent jurisdiction adjudicating such Person a bankrupt or insolvent or for relief in respect of such Person or appointing a trustee or custodian of its assets and the continuance of such order, judgment or decree unstayed and in effect for a period of ninety (90) consecutive days.

 

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Board of Directors ” has the meaning set forth in Section 4.1(a) .

Board Supermajority ” has the meaning set forth in Section 4.1(h) .

Book Item ” has the meaning set forth in Section 5.3(d)(i)(A) .

Business ” has the meaning set forth in the Master Investment Agreement.

Business Day ” means any day of the year other than a Saturday, a Sunday or any other day on which national or state banking institutions in Ohio are required or authorized by Law to close.

Business Plan ” means initially the strategic direction of the Business as of the Effective Date until such time as a business plan is approved by the Board of Directors in accordance with Section 4.1(i) and thereafter a business plan approved by the Board of Directors in accordance with Section 4.1(i) and, subject to Section 4.1(h)(vi) , by which the business affairs of the Company and the Subsidiaries shall be conducted and which, for any year, shall include, among other things, (a) the Company’s and the Subsidiaries’ business strategy and organizational structure, (b) basic goals, (c) parameters of the Company’s and the Subsidiaries’ business purpose, (d) projected revenues, expenses (including compensation packages for any executive officers), financing plans and limitations on the incurrence of indebtedness, cash flows, the number and aggregate amount of grants for that year to executive officers under the Management Phantom Equity Plan, (e) appointment of agents or advisers, (f) strategic alliances of the Company and the Subsidiaries, (g) an annual operating budget (including operating projections of the Company and the Subsidiaries covering not less than the next three succeeding fiscal years) and (h) an annual capital budget (including the projected capital expenditures of the Company covering not less than the next fiscal year).

Capital Account ” means, with respect to any Member, the Capital Account maintained for such Member in accordance with the following provisions:

(a) To each Member’s Capital Account there shall be credited such Member’s Capital Contribution, such Member’s distributive share of Net Income and any item in the nature of income or gain which is specially allocated to such Member pursuant to Section 5.3(c) , and the amount of any Company liabilities assumed by such Member or which are secured by any property distributed to such Member;

(b) To each Member’s Capital Account there shall be debited the amount of cash and the Gross Asset Value of any property distributed to such Member pursuant to any provision of this Agreement, such Member’s distributive share of Net Loss and any item in the nature of expense or loss which is specially allocated to such Member pursuant to Section 5.3(c) , and the amount of any liabilities of such Member assumed by the Company or which are secured by any property contributed by such Member to the Company;

(c) In the event all or a portion of an interest in the Company is Transferred in accordance with the terms of this Agreement, the transferee shall succeed to the Capital Account of the transferor to the extent that it relates to the transferred interest; and

 

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(d) In determining the amount of any liability for purposes of subparagraphs (a) and (b) in this definition and Section 5.3(b) , there shall be taken into account Code Section 752(c) and any other applicable provisions of the Code and Regulations.

The foregoing definition and other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Code Section 704(b) and the Regulations promulgated thereunder and shall be interpreted and applied by the Board of Directors and the Company in a manner consistent with such Regulations.

Capital Contribution ” means, with respect to any Person, the amount of cash and the initial Gross Asset Value of any property (other than money) contributed to the Company or any Subsidiary by such Person (or its predecessors in interest) in respect of a Membership Interest. If any Member (A) is required to make an indemnity payment to the Company pursuant to Article VII of the Master Investment Agreement or (B) pays any amount which gives rise to a tax deduction of the Company, such payment shall be treated as a Capital Contribution by the Member.

Cause ” means any of the following with respect to the CEO: (a) such officer’s continued and willful failure to perform substantially his or her responsibilities to the Company or any Subsidiary, after demand for substantial performance has been given by the Board of Directors (or such officer’s direct supervisor) that specifically identifies how such officer has not substantially performed his or her responsibilities; (b) such officer’s willful engagement in illegal conduct or in gross misconduct in connection with the business of the Company or any Subsidiary; (c) such officer’s conviction of, or plea of guilty or nolo contendere to, a felony; (d) such officer’s willful and material breach of any written code of conduct and business ethics or other written policy, procedure or guideline relating to personal conduct adopted by the Company or any Subsidiary and in effect from time to time; (e) such officer’s willful attempt to obstruct or willful failure to cooperate with any investigation authorized by the Board of Directors or any Governmental Entity or self-regulatory authority; (f) such officer’s disqualification or bar by any Governmental Entity or self-regulatory authority from engaging in the business of banking or in activities related to the securities industry or otherwise serving in the capacity contemplated by this Agreement or other employment arrangements entered into between the Company or any Subsidiary and such officer, or such officer’s loss of any license issued by a Governmental Entity or self-regulatory authority that is reasonably necessary for such officer to perform his or her responsibilities to the Company or any Subsidiary; or (g) the material underperformance by the Company and the Subsidiaries (which for purposes of this definition will mean performance at or below eighty-five percent (85%) of Projected EBITDA for the relevant period unless there has occurred a force majeure or other event generally affecting the industry in which the Business operates and in which the Company or the Subsidiaries has not been disproportionately affected).

CEO ” has the meaning set forth in Section 4.4(d) .

Certificate ” has the meaning set forth in Section 2.1 .

Chairperson ” has the meaning set forth in Section 4.3 .

 

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Change of Control ” means any (i) merger, consolidation or other business combination of the Company (or any Subsidiary or Subsidiaries that alone or together represent all or substantially all of the Company’s consolidated business at that time) or any successor or other entity owning or holding substantially all the assets of the Company and its Subsidiaries that results in the Members immediately before the consummation of such transaction, or a series of related transactions, holding, directly or indirectly, less than fifty percent (50%) of the voting power of the Company (or such Subsidiary or Subsidiaries) or any successor or other entity owning or holding substantially all the assets of the Company and its Subsidiaries or the surviving entity thereof, as applicable, immediately following the consummation of such transaction or series of related transactions, (ii) Transfer, in one or a series of related transactions, of Units representing fifty percent (50%) or more of the voting power of the Company (or such Subsidiary or Subsidiaries) or any successor or other entity owning or holding substantially all the assets of the Company and its Subsidiaries to a Person or group of related Persons (other than Advent Blocker and FTB and their respective Affiliates), (iii) transaction in which a majority of the Board of Directors following such transaction is comprised of Persons who are not designees of Advent Blocker, FTB or their respective Affiliates or (iv) sale or other disposition in one or a series of related transactions of all or substantially all of the assets of the Company and the Subsidiaries.

Chief Financial Officer ” has the meaning set forth in Section 4.4(f) .

Chosen Courts ” has the meaning set forth in Section 8.2 .

Class A Director ” has the meaning set forth in Section 4.1(d)(i)(A) .

Class B Director ” has the meaning set forth in Section 4.1(d)(i)(B) .

Class A Units ” has the meaning set forth in Section 3.1 .

Class B Units ” has the meaning set forth in Section 3.1 .

Class C Non-Voting Unit ” has the meaning set forth in Section 3.1 .

Code ” means the Internal Revenue Code of 1986, as amended, or any successor statute.

Commission ” means the Securities and Exchange Commission and any successor thereto.

Company ” has the meaning set forth in the preamble above.

Company Minimum Gain ” has the same meaning as “partnership minimum gain” set forth in Regulations Sections 1.704-2(b)(2) and 1.704-2(d).

Competitor ” means any of JPMorgan & Chase Co., Bank of America Corporation, US Bancorp. or Wells Fargo & Co. or any successors to their respective processing businesses.

 

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Competitor COC ” has the meaning set forth in the definition of Trigger Event.

Control ” means, with respect to any Person, the beneficial ownership of more than fifty percent (50%) of the voting equity of such entity or the right, directly or indirectly, by contract or otherwise, to appoint at least a majority of the board of directors (or comparable governing body) of such Person.

Covered Claim ” has the meaning set forth in Section 4.7(a) .

Covered Person ” has the meaning set forth in Section 4.7(a) .

Covered Proceeding ” has the meaning set forth in Section 4.7(b)

Credit Facility ” means the Loan Agreement by and among Opco, as borrower, and the lenders named therein, dated as of May 29, 2009, as amended from time to time in accordance with its terms.

Depreciation ” means, for each fiscal year or other period, an amount equal to the depreciation, amortization or other cost recovery deduction allowable with respect to an asset for such fiscal year or other period, except that (i) if the Gross Asset Value of an asset acquired from any Person other than FTB or FTPSP differs from its adjusted basis for federal income tax purposes at the beginning of such fiscal year or other period, and which difference is being eliminated by use of the “remedial allocation method” defined by Regulations Section 1.704-3(d), Depreciation for such fiscal year or other period shall be the amount of book basis recovered for such fiscal year or other period under the rules prescribed by Regulations Section 1.704-3(d)(2), and (ii) with respect to any other asset whose Gross Asset Value differs from its adjusted basis for federal income tax purposes at the beginning of such fiscal year or other period, Depreciation shall be an amount which bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation, amortization or other cost recovery deduction for such year or other period bears to such beginning adjusted tax basis; provided , however , that, in the case of clause (ii) above, if the federal income tax depreciation, amortization or other cost recovery deduction for such year is zero, Depreciation shall be calculated with reference to such beginning Gross Asset Value using any reasonable method selected by the Board of Directors.

Depreciation Recapture ” has the meaning set forth in Section 5.3(d)(i)(B)(II) .

Director ” has the meaning set forth in Section 4.1(a) .

Distributions ” has the meaning set forth in Section 5.4(c) .

EBITDA ” means, for any measurement period, the Company’s Consolidated EBITDA, as such term is defined in the Notes, without giving effect to clauses (a)(v)-(x), (b) and (c) of such definition, during such measurement period.

Economic Interest ” means a Member’s or Assignee’s share of the Company’s Net Income, Net Loss and distributions pursuant to this Agreement, but shall not include any right to participate in the management or affairs of the Company, including the right to vote in

 

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the election of Directors, vote on, consent to, or otherwise participate in, any decision of the Members or Directors, or any right to receive information concerning the business and affairs of the Company, in each case, except as expressly otherwise provided in this Agreement.

Effective Date ” has the meaning set forth in the preamble above.

EFT Business ” means the EFT Business, as defined in the Master Investment Agreement.

Equity Value ” means (i) the equity value of the Company as a whole, based on the pre-tax aggregate net proceeds (including cash, the Fair Market Value of other property and the present value of any deferred consideration) received or to be received by the Members, any Assignees, any holders of the Warrant, and any holders of phantom equity in such Change of Control, plus (ii) the aggregate amount of any Distributions (other than Quarterly Distributions) made to holders of Units to and until the date of such Change of Control.

Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder, as amended, or any successor federal statute, and the rules and regulations of the Commission thereunder, all as the same shall be in effect from time to time.

Exempt Securities ” means (a) New Securities issued as a pro rata Distribution to Members or upon any split, subdivision or combination of Units; (b) New Securities issuable upon exercise of the Warrant; (c) New Securities issued in connection with a strategic acquisition (or similar transaction) of another business or Person by the Company and/or any Subsidiary that is either (i) approved, or (ii) is not required to be approved, in each case pursuant to Section 4.1(h)(iii) and (xiv) , but only to the extent that (A) such New Securities are issued at a price equal to or greater than Fair Market Value and (B) the aggregate number of all New Securities issued under clause (c)(ii) , together with all other issuances of New Securities under clause (c)(ii) , does not exceed twenty percent (20%) of the total number of Units held by all Members as of the date of issuance of such New Securities; (d) New Securities issued for reasons other than those described in clauses (a) through (c) , but only to the extent that (i) such New Securities are issued at an amount equal to or greater than Fair Market Value, (ii) the number of all New Securities issued under this clause (d) , together with all other issuances of New Securities under clause (d) , does not exceed ten percent (10%) of the total number of Units held by all Members as of the date of issuance of such New Securities, (iii) the Preemptive Rights of all Members with respect to such issuance are waived by the Board of Directors (which, prior to a Trigger Event, shall include approval by a majority of the Class B Directors) and (iv) no Members participate in such issuances; and (e) New Securities incident to the exercise, conversion or exchange of any Exempt Securities or any New Securities for which Preemptive Rights have been provided pursuant to Section 3.4 .

Expenses ” has the meaning set forth in Section 4.7(a) .

Fair Market Value ” means, with respect to any asset or security, the fair market value of such asset or security, as between a willing buyer and a willing seller not under a compulsion to buy or sell in an arms’-length transaction occurring on the date of the valuation, taking into account all relevant factors, as reasonably determined in Good Faith by the Board of

 

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Directors as of the time of issuance or the entry into the transaction; it being understood that, (i) with respect to a security that is listed on a national securities exchange or quoted on NASDAQ, Fair Market Value shall mean the average of the closing prices of such security over the thirty (30) -day period ending one (1) Business Day prior to the date of measurement, and (ii) with respect to a security that is traded over-the-counter, Fair Market Value shall mean the average of the closing bid prices over the thirty (30) -day period ending one (1) Business Day prior to the date of measurement.

Filing Date ” has the meaning set forth in the recitals above.

FTB ” has the meaning set forth in the preamble above.

FTB Bankruptcy Event ” has the meaning set forth in the definition of Trigger Event.

FTB Group Member ” has the meaning set forth in Section 4.8(f) .

FTB Ownership Event ” has the meaning set forth in Section 4.1(d) .

FTPSP ” has the meaning set forth in the preamble above.

GAAP ” has the meaning set forth in Section 7.1 .

Good Faith ” means a Person having acted honestly and fairly and in a manner such Person reasonably believed to be in or not opposed to the best interests of the Company (as opposed to the interests of a particular Member), and, with respect to a criminal proceeding, having had no reasonable cause to believe such Person’s conduct was unlawful.

Government Entity ” means any federal, state, local or foreign government, governmental subdivision, administrative body or other governmental or quasi-governmental agency, tribunal, court or other entity with competent jurisdiction.

Government Investment ” has the meaning set forth in the definition of Trigger Event.

Gross Asset Value ” means, with respect to any asset, the asset’s adjusted basis for federal income tax purposes, except as follows:

(a) The initial Gross Asset Value of any asset contributed by a Member to the Company shall be the gross fair market value of such asset on the date of the contribution, as reasonably determined by the Board of Directors.

(b) The Gross Asset Values of all Company assets shall be adjusted to equal their respective gross fair market values, as reasonably determined by the Board of Directors, as of the following times:

(i) the acquisition of an additional Membership Interest in the Company after the date of this Agreement by an existing Member or Additional Member

 

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in exchange for more than a de minimis Capital Contribution, if the Board of Directors reasonably determines that such adjustment is necessary or appropriate to reflect the relative economic interests of the Members in the Company;

(ii) the distribution by the Company to a Member of more than a de minimis amount of Company property as consideration for a Membership Interest in the Company, if the Board of Directors reasonably determines that such adjustment is necessary or appropriate to reflect the relative economic interests of the Members in the Company;

(iii) the liquidation of the Company within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g);

(iv) the grant of an interest in the Company (other than a de minimis interest) as consideration for the provision of services to or for the benefit of the Company by an existing Member acting in a Member capacity, or by an Additional Member acting in a Member capacity or in anticipation of being a Member if the Board of Directors reasonably determines that such adjustment is necessary or appropriate to reflect the relative economic interests of the Members in the Company; and

(v) such other times as the Board of Directors shall reasonably determine necessary or advisable in order to comply with Regulations Sections 1.704-1(b) and 1.704-2.

(c) The Gross Asset Value of any Company asset distributed to a Member shall be the gross fair market value of such asset on the date of distribution, as reasonably determined by the Board of Directors.

(d) The Gross Asset Values of Company assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Regulations Section 1.704-1(b)(2)(iv)(m); provided , however , that Gross Asset Values shall not be adjusted pursuant to this subparagraph (d)  to the extent that the Board of Directors reasonably determines that an adjustment pursuant to subparagraph (b)  of this definition of Gross Asset Value is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this subparagraph (d) .

(e) The Gross Asset Value of a Company asset shall be adjusted by the Depreciation, if any, taken into account by the Company with respect to computing Net Income or Net Loss.

Initiating Member ” has the meaning set forth in Section 6.3(e)(i) .

IPO ” means the first registered, public offering of (i) Units, (ii) the common stock or other equity securities for which the Units have been converted or exchanged of a successor corporation or other entity into which the Company is converted or merged, (iii) the common stock or other equity securities of a corporation or other entity otherwise formed by the

 

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Company or the holders of Units for the purpose of offering securities to the public that are issued or issuable for the Units, or the rights to receive, or the securities that are convertible into, or exchangeable or exercisable for, the common stock or other equity securities of a corporation or other entity otherwise formed by the Company or the holders of Units for the purpose of offering securities to the public that are issued or issuable for the Units, (iv) the common stock or other equity securities of a Parent, a Subsidiary or other entity to which the assets of the Company and/or the Subsidiaries have been transferred, in each case, whose securities the Company has determined to offer to the public and that are issued or issuable for the Units, or (v) the Units for which such Units are exchangeable, in each case of clauses (i)  through (v) , for cash pursuant to an effective registration statement under the Securities Act, registered on Form S-1 (or any successor form), in which such Units or securities are sold to one or more underwriters on a firm-commitment basis for reoffering to the public.

IPO Corp. ” has the meaning set forth in Section 6.4 .

IRS ” means the United States Internal Revenue Service.

JPDN ” has the meaning set forth in the preamble above.

Law ” means any law, statute, ordinance, rule, regulation, code, Order, judgment, injunction or decree enacted, issued, promulgated, enforced or entered by a Government Entity or Self-Regulatory Organization (including, for the sake of clarity, any policy statement or interpretation that has the force of law with respect to any of the foregoing, and including common law).

LTM EBITDA ” means, as of any measurement date, EBITDA for the twelve (12) months ended as of the last day of the month immediately preceding such measurement date.

Management Phantom Equity Plan ” means the Company’s 2009 Management Phantom Equity Plan in substantially the form attached as Exhibit E hereto, as amended, from time to time in accordance with Section 4.1(h)(viii) .

Master Investment Agreement ” has the meaning set forth in the recitals above.

Member ” means Advent Blocker, FTB, FTPSP and JPDN, and each other Person who is hereafter admitted as a Member in accordance with the terms of this Agreement, including an Additional Member and a Substitute Member, but only to the extent such Person has not ceased to be a Member pursuant to Section 6.1 . The Members shall comprise the “members” (as that term is defined and used in the Act) of the Company.

Member Nonrecourse Debt ” has the same meaning as the term “partner nonrecourse debt” set forth in Regulations Section 1.704-2(b)(4).

Member Nonrecourse Debt Minimum Gain ” means an amount, with respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if the Member Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with Regulations Section 1.704-2(i)(3).

 

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Member Nonrecourse Deductions ” has the same meaning as the term “partner nonrecourse deductions” set forth in Regulations Sections 1.704-2(i)(1) and 1.704-2(i)(2).

Membership Interest ” means a Member’s ownership interest in the Company at the relevant time, including its Economic Interest and rights as a Member.

Net Income ” and “ Net Loss” means, for each fiscal year or other period, an amount equal to the Company’s taxable income or loss for such fiscal year or period, determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss) with the following adjustments:

(a) Any income of the Company that is exempt from federal income tax and to the extent not otherwise taken into account in computing Net Income or Net Loss pursuant to this definition of Net Income or Net Loss, shall be added to such income or loss;

(b) Any expenditures of the Company described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to Regulations Section 1.704-1(b)(2)(iv)( i ), and to the extent not otherwise taken into account in computing Net Income or Net Loss pursuant to this definition of Net Income or Net Loss, shall be subtracted from such taxable income or loss;

(c) In the event the Gross Asset Value of any Company asset is adjusted pursuant to subparagraphs (b)  or (c)  of the definition of Gross Asset Value in this Agreement, the amount of such adjustment shall be taken into account as gain (if the adjustment increases the Gross Asset Value of the asset) or loss (if the adjustment decreases the Gross Asset Value of the asset) from the disposition of such asset for purposes of computing Net Income or Net Loss;

(d) Gain or loss resulting from any disposition of Company property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Gross Asset Value of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Gross Asset Value;

(e) In lieu of depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such fiscal year;

(f) To the extent an adjustment to the adjusted tax basis of any Company asset pursuant to Code Section 734(b) or 743(b) is required pursuant to Regulations Section 1.704-1(b)(2)(iv)(m) to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of a Member’s interest in the Company, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases the basis of the asset) from the disposition of the asset and shall be taken into account for purposes of computing Net Income or Net Loss; and

(g) Any items which are specially allocated pursuant to the provisions of Section 5.3(c) shall not be taken into account in computing Net Income or Net Loss.

 

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New Activity ” has the meaning set forth in Section 2.4(b)(i) .

New Activity Notice ” has the meaning set forth in Section 2.4(b)(i) .

New Securities ” means (a) any Units, whether or not currently authorized, or (b) any rights, options or warrants to purchase Units (or non-equity securities that are convertible into or exchangeable for Units), and non-equity securities of any type whatsoever that are, or may become convertible into, or exchangeable for, Units, in any case, whether issued on or after the Effective Date; it being understood that the only equity interest in the Company shall be in the form of Units.

Nonrecourse Deductions ” has the meaning set forth in Regulations Section 1.704-2(b)(1) and 1.704-2(c).

Nonrecourse Liability ” has the meaning set forth in Regulations Section 1.752-1(a)(2).

Non-Competitor COC ” has the meaning set forth in the definition of Trigger Event.

Non-Qualified IPO ” means an IPO generating pre-tax aggregate proceeds (including, for purposes of calculating the amount of such proceeds, the aggregate amount of any Distributions (other than Quarterly Distributions) made to the holders of Units to and until the date of the IPO), before deducting underwriting commissions, that implies an equity value of the Company as a whole equal to or less than $1.8 billion or that involves less than $300 million of pre-tax aggregate proceeds, before deducting underwriting commissions.

Notes ” means, collectively, the promissory notes (and all indebtedness thereunder) issued pursuant to the Credit Facility, as amended from time to time in accordance with their terms.

Offered Units ” has the meaning set forth in Section 6.3(c)(i) .

Officer ” means each Person designated as an officer of the Company or of any Subsidiary pursuant to and in accordance with the provisions of Section 4.4 , subject to the terms of any resolution of the Board of Directors appointing such Person as an officer or relating to such appointment.

Opco ” has the meaning set forth in the recitals above.

Opco LLC Agreement ” has the meaning set forth in the recitals above.

Order ” means any order, injunction, judgment, decree, writ or other enforcement action of a Government Entity.

Original Agreement ” has the meaning set forth in the recitals above.

Original Holder ” means any of Advent Blocker, FTB, FTPSP and JPDN.

 

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Other Investments ” has the meaning set forth in Section 4.8(a) .

Parent ” means, with respect to any Person, a Person that has control of such Person.

Participating ROFO Offeree ” has the meaning set forth in Section 6.3(c)(iii) .

Participating Tag-Along Offeree ” has the meaning set forth in Section 6.3(d)(iii) .

Permitted Affiliate ” has the meaning set forth in Section 6.3(b)(i) .

Permitted ROFO Transfer ” has the meaning set forth in Section 6.3(c)(iv) .

Permitted Transfer ” has the meaning set forth in Section 6.3(b) .

Person ” means an individual, a corporation, a partnership, an association, a limited liability company, a joint venture, a Government Entity, a trust or other entity or organization.

Preemptive Rights ” has the meaning set forth in Section 3.4(a) .

Preemptive Rights Notice ” has the meaning set forth in Section 3.4(b) .

President ” has the meaning set forth in Section 4.4(e) .

Pro Rata Portion ” (a) of a Member for purposes of determining such Member’s relative Preemptive Rights shall mean a fraction, the numerator of which is the number of Units held by such Member, and the denominator of which is the total number of Units held by all Members; (b) of a ROFO Offeree for purposes of determining such ROFO Offeree’s relative ROFO Rights shall mean a fraction, the numerator of which is the number of Units owned by such ROFO Offeree, and the denominator of which is the total number of Units then held by all Members (other than the Offered Units and Units held by the Transferring Member or any Member holding less than five percent (5%) of the Units then held by all Members); (c) of a Tag-Along Offeree for purposes of determining such Tag-Along Offeree’s relative Tag-Along Rights shall mean a fraction, the numerator of which is the total number of Tag-Along Units, and the denominator of which is the total number of Units owned by the Transferring Member; provided that, in the event that the Tag-Along Purchaser is unwilling or unable, pursuant to Sections 6.3(d)(iii) or 6.3(d)(vi) , to acquire all Units proposed to be included in a Tag-Along Sale, then the “ Pro Rata Portion ” of the Transferring Member or any Participating Tag-Along Offeree for purposes of determining the Transferring Member’s or such Participating Tag-Along Offeree’s relative Tag-Along Rights shall mean a fraction, the numerator of which is the total number of Units held by the Transferring Member or such Participating Tag-Along Offeree, as applicable, and the denominator of which is the aggregate number of Units owned by the Transferring Member and all Participating Tag-Along Offerees; and (d) of a Take Along Member for purposes of determining such Take Along Member’s relative obligations upon any exercise of the Take Along Rights shall mean a fraction, the numerator of which is the number of Units being Transferred by the Initiating Member in the proposed Take Along Sale, and the denominator of which is the total number of Units owned by the Initiating Member; it being

 

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understood that, in the case of each of clauses (a)  through (d) , the time of determination of Units held shall be as of immediately before the proposed issuance or Transfer to which such rights or obligations relate.

Proceeding ” has the meaning set forth in Section 4.7(b) .

Projected EBITDA ” means, as of any measurement date, EBITDA (as reflected in the business plan prepared by FTB attached as Exhibit F hereto) for the twelve (12) months ended as of the last day of the month preceding such measurement date, or if less than twelve (12) months have elapsed since the Effective Date, for such number of months that have elapsed since the Effective Date.

Proposed Offer ” has the meaning set forth in Section 6.3(c)(ii) .

Purchaser ” has the meaning set forth in Section 3.4(d) .

Put Event ” means any of the following:

(i) during the first twelve (12) months following the Effective Date, (A) either (x) a Government Investment or (y) a Non-Competitor COC occurs and (B) there is a change in two (2) of FTB’s three designees on the Steering Committee unless (1) such change is due to the death or disability of such designee, (2) such change is due to a voluntary resignation that occurs more than nine (9) months from the Government Investment or Non-Competitor COC, or (3) any of the two (2) Approved Replacements is designated to the Steering Committee as replacements for such designees; or

(ii) during the period from the Effective Date until the earlier of (x) the last day of the fifty-fourth month following the Effective Date, and (y) the date on which Advent Blocker has Transferred (in one or more transactions) more than fifty percent (50%) of Units held by it (or its Affiliates) as of the Effective Date, a Competitor COC occurs; or

(iii) during the first two (2) years following Effective Date, a FTB Bankruptcy Event occurs.

Put Right ” has the meaning set forth in Section 6.3(f)(i) .

Put Units ” has the meaning set forth in Section 6.3(f)(i) .

Quarterly Distributions ” has the meaning set forth in Section 5.4 .

Quarterly Estimated Tax Liability with respect to the Company’s Income ” has the meaning set forth in Section 5.4(a) .

Registration Rights Agreement ” means the Registration Rights Agreement by and among the Company, FTB, FTPSP, Advent Blocker and JPDN, dated as of the Effective Date, as amended from time to time in accordance with its terms.

 

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Regulations ” means the Income Tax Regulations, including temporary Regulations, promulgated under the Code, as such Regulations may be amended from time to time (including corresponding provisions of succeeding regulations).

Regulatory Allocations ” has the meaning set forth in Section 5.3(c)(i)(F) .

Regulatory Approval ” has the meaning set forth in Section 2.4(b)(i) .

Rescheduled Board of Directors Meeting ” has the meaning set forth in Section 4.1(f)(vi)(2) .

Rescheduled Committee Meeting ” has the meaning set forth in Section 4.1(k)(ii)(3) .

Rescheduled Member Meeting ” has the meaning set forth in Section 4.2(b)(iii) .

Rights of First Offer ” has the meaning set forth in Section 6.3(c) .

ROFO Acceptance ” has the meaning set forth in Section 6.3(c)(iii) .

ROFO Acceptance Period ” has the meaning set forth in Section 6.3(c)(iii) .

ROFO Offeree ” has the meaning set forth in Section 6.3(c)(i) .

ROFO Offer Period ” has the meaning set forth in Section 6.3(c)(ii) .

ROFO Notice ” has the meaning set forth in Section 6.3(c)(i) .

ROFO Rights ” has the meaning set forth in the definition of Pro Rata Portion.

Secretary ” has the meaning set forth in Section 4.4(h)(i) .

Securities Act ” means the Securities Act of 1933, as amended, or any successor federal statute, and the rules and regulations of the Commission thereunder, all as the same shall be in effect from time to time.

Self-Regulatory Organization ” means the Financial Industry Regulatory Authority, the American Stock Exchange, the National Futures Association, the Chicago Board of Directors of Trade, the New York Stock Exchange, any national securities exchange (as defined in the Exchange Act), any other securities exchange, futures exchange, contract market, any other exchange or corporation or similar self-regulatory body or organization.

Specified Liabilities ” means any liabilities, debts, commitments or obligations of any kind whatsoever, whether fixed, contingent or absolute, matured or unmatured, liquidated or unliquidated, accrued or not accrued, asserted or not asserted, known or unknown, determined, determinable or otherwise, whenever or however arising (including, whether arising out of any contract or tort based on negligence or strict liability), in each case, other than liabilities, debts, commitments or obligations (i) under this Agreement and the Registration Rights Agreement, (ii) that relate to corporate upkeep and maintenance and filing obligations, including state

 

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franchise tax obligations, for the period following a transfer of the Advent Blocker Stock to a third party in accordance with the provisions of Section 6.3(e)(v) or Section 6.3(f) (a “ Blocker Transfer ”), or (iii) under any agreement between Advent Blocker and the Advent Blocker Stockholders that is being terminated in connection with a Blocker Transfer so long as such liabilities are limited to non-monetary obligations that would not affect the price being offered by the third party in a Change of Control, or (iv) (a) arising out of any actual or threatened legal proceedings or claims to which the Company and/or any of the Subsidiaries is also subject and (b) consisting of any immaterial liabilities paid in full prior to the Blocker Transfer, but, in each case, only to the extent of such claims, and only to the extent that Advent Blocker and its Parent have agreed to indemnify the transferee holders of Advent Blocker Stock from and against any liability therefor to the same extent that such holders would have been indemnified if they were holders of Units.

Steering Committee ” has the meaning set forth in the Master Investment Agreement.

Subsidiary ” means any Person of which (i) a majority of the outstanding share capital, voting securities or other equity interests are owned, directly or indirectly, by the Company and/or any other Subsidiary or (ii) the Company and/or any other Subsidiary is entitled, directly or indirectly, to appoint a majority of the board of directors or comparable body of such Person.

Substitute Member ” means any Person that has been admitted to the Company as a Member pursuant to Section 6.5 by virtue of such Person receiving all or a portion of a Membership Interest from a Member or an Assignee and not from the Company.

Successor in Interest ” means any (i) trustee, custodian, receiver or other Person acting in any Bankruptcy or reorganization proceeding with respect to, (ii) assignee for the benefit of the creditors of, (iii) trustee or receiver, or current or former officer, director, manager or partner, or other fiduciary acting for, or with respect to, the dissolution, liquidation or termination of, or (iv) other executor, administrator, committee, legal representative or other successor or assign of, any Member, whether by operation of Law or otherwise.

Tag-Along Notice ” has the meaning set forth in Section 6.3(d)(i) .

Tag-Along Offeree ” has the meaning set forth in Section 6.3(d)(i) .

Tag-Along Purchaser ” has the meaning set forth in Section 6.3(d)(i) .

Tag-Along Rights ” has the meaning set forth in Section 6.3(d)(ii) .

Tag-Along Sale ” has the meaning set forth in the definition of Pro Rata Portion.

Tag-Along Units ” has the meaning set forth in Section 6.3(d)(i) .

Take Along Member ” has the meaning set forth in Section 6.3(e)(i) .

Take Along Notice ” has the meaning set forth in Section 6.3(e)(i) .

 

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Take Along Rights ” has the meaning set forth in Section 6.3(e)(i) .

Take Along Sale ” has the meaning set forth in Section 6.3(e)(i) .

Tax-Free Basis ” has the meaning set forth in Section 6.4 .

Tax Matters Member ” has the meaning set forth in Section 7.5(c) .

Transfer ” means, with respect to any Units, (i) when used as a verb, to sell, assign, dispose of, exchange, pledge, encumber, hypothecate or otherwise transfer such Units or any participation or interest therein, whether directly or indirectly, or to agree or commit to do any of the foregoing, and (ii) when used as a noun, a direct or indirect sale, assignment, disposition, exchange, pledge, encumbrance, hypothecation or other transfer of such Units or any participation or interest therein, or any agreement or commitment to do any of the foregoing, including in each case through the Transfer of any Person holding such Units or any interest in such Person; it being understood that a Transfer of a controlling interest in any Person holding such Units shall be deemed to be a Transfer of all of the Units held by such Person. For the avoidance of doubt, the transfer of the Warrant shall not be deemed to be a Transfer. Notwithstanding anything to the contrary in this Agreement, no Transfer of an interest in any Person which is a public company or which is a limited partner in any investment entity that holds a direct or indirect interest in an Original Holder shall be deemed to constitute a Transfer of any Units held by such Original Holder unless such Original Holder and such Person are acting in concert with respect to such Transfer, or such Original Holder, alone or together with its Affiliates or other Persons with whom it is acting in concert, controls such Person.

Transferring Member ” has the meaning set forth in Section 6.3(c)(i) .

Trigger Event ” means the earlier to occur of any of the following: (i) FTB (together with its Affiliates) shall have Transferred (other than pursuant to obligations upon the exercise by another Member of any Take Along Rights or pursuant to any Transfer by FTB or any of its Affiliates to a Permitted Affiliate) Units constituting at least fifty percent (50%) of the Units that FTB and FTPSP own as of the Effective Date; or (ii) any Competitor acquires Control of FTB or any of its direct or indirect Parent companies (a “ Competitor COC ”); or (iii) (A) any Government Entity acquires more than a twenty percent (20%) interest (which interest either votes generally in the election of all directors and all other matters brought before the stockholders or otherwise carries with it any material negative consent or approval rights) in FTB or any of its direct or indirect Parent companies (a “ Government Investment ”), or (B) any Person other than a Competitor acquires Control of FTB or any of its direct or indirect Parent companies (a “ Non-Competitor COC ”) and , in the case of either a Government Investment or Non-Competitor COC, any change in two of FTB’s four designees on the Board of Directors occurs unless (I) such change is due to the death or disability of such designee, (II) such change is due to a voluntary resignation that occurs more than nine months following such Government Investment or Non-Competitor COC, or (III) any of the two Approved Replacements is designated to the Board of Directors to replace such designee; or (iv) FTB or any of its direct or indirect Parent companies goes into Bankruptcy, receivership or conservatorship or any similar event (each, a “ FTB Bankruptcy Event ”).

 

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Units ” has the meaning set forth in Section 3.1 .

Warrant ” means the warrant executed on the Effective Date and any warrants issuable for all or any part of such warrant.

SECTION 1.2 Terms Generally .

(a) Numbers . The definitions in Section 1.1 shall apply equally to both the singular and plural forms of the terms defined.

(b) Gender . Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.

(c) Including . The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”

(d) Calculation of Time Period . When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded. If the last day of such period is a non-Business Day, the period in question shall end on the next succeeding Business Day.

(e) Dollars . Any reference in this Agreement to “dollars” or “$” shall mean the lawful currency of the United States of America.

(f) Holdings . For purposes of calculating ownership percentages and determining whether certain ownership thresholds are met under Sections 6.3(c)(i) , 6.3(d)(i) and 6.3(e)(i) , the total number of Units owned by any Member shall be aggregated with the number of Units owned by such Member’s Affiliates, without duplication.

(g) Headings . The provision of a Table of Contents, the division of this Agreement into Articles, Sections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement. All references to “Sections” and “Articles” shall refer to Sections and Articles of this Agreement unless otherwise specified.

(h) Exhibits . The exhibits to this Agreement are hereby incorporated and made a part of this Agreement and are an integral part of this Agreement. All exhibits annexed hereto or referred to in this Agreement are hereby incorporated in and made a part of this Agreement as if set forth in full in this Agreement. Any capitalized terms used in any exhibit but not otherwise defined therein shall be defined as set forth in this Agreement.

(i) Negotiation . The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

 

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ARTICLE II - GENERAL PROVISIONS

SECTION 2.1 Formation . The Company was organized as a Delaware limited liability company by the execution and filing of a Certificate of Formation on the Filing Date with the Secretary of State of the State of Delaware (as amended from time to time, the “ Certificate ”), under and pursuant to the Act. The rights, powers, duties, obligations and liabilities of the Members shall be determined pursuant to the Act and this Agreement. To the extent that the rights, powers, duties, obligations and liabilities of any Member are different by reason of any provision of this Agreement than they would be in the absence of such provision, this Agreement shall, to the extent permitted by the Act, control.

SECTION 2.2 Name . The name of the Company is “FTPS Holding, LLC,” and all Company business shall be conducted in that name or in such other names that comply with applicable Law as the Board of Directors may select from time to time.

SECTION 2.3 Term . The term of the Company commenced on the Filing Date and shall continue in existence perpetually until termination or dissolution in accordance with the provisions of Section 6.2 .

SECTION 2.4 Purpose; Powers .

(a) General Powers . The nature of the business or purposes to be conducted or promoted by the Company is to continue the Business and, subject to the terms of this Agreement and the Business Plan, to engage in any act or activity which may be lawfully conducted by a limited liability company under the Act and the Laws of any other jurisdictions in which the Company engages in such activities. The Company may engage in any and all activities necessary, desirable or incidental to the accomplishment of the foregoing. Notwithstanding anything in this Agreement to the contrary, nothing set forth in this Agreement shall be construed as authorizing the Company to possess any purpose or power, or to do any act or thing, forbidden by Law to a limited liability company organized under the Laws of the State of Delaware.

(b) Certain Regulatory Restrictions .

(i) Notwithstanding anything to the contrary in this Agreement, the Company and the Members acknowledge that FTB and its Affiliates are subject to regulatory oversight by bank regulatory authorities in various jurisdictions (including the Board of Governors of the Federal Reserve System and other Government Entities, including the State of Ohio’s Division of Financial Institutions) with jurisdiction over FTB or its Affiliates and that FTB or its Affiliates may be required to obtain regulatory approvals from, or provide notice to, such authorities, prior to, or provide notice to such authorities following, the Company’s engagement in certain activities or consummation of certain investments (“ Regulatory Approval ”). Notwithstanding anything to the contrary in this Agreement, neither the Company nor any Subsidiary shall engage in any business that may reasonably require FTB or an Affiliate of FTB to seek Regulatory Approval, whether under the Bank Holding Company Act, Ohio Law or other applicable Law (a “ New Activity ”), whether by acquisition, investment or organic growth, without

 

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first sending written notice to FTB (the “ New Activity Notice ”). Within thirty (30) days after receipt of the New Activity Notice, FTB must notify the Board of Directors in writing (i) whether, based on the advice of legal counsel, such New Activity would be permissible for FTB and/or its Affiliates to make or engage in directly under all applicable banking Laws and (ii) that either (A) no Regulatory Approval with respect to FTB and/or its Affiliates is required for such New Activity, or (B) any required Regulatory Approval with respect to such New Activity has been or will within a reasonable amount of time be obtained by FTB and/or its Affiliates. Neither the Company nor any Subsidiary shall engage in such New Activity if FTB notifies it that such activity is impermissible or until required Regulatory Approvals are obtained; it being understood that a Regulatory Approval shall not be deemed obtained until the expiration of any applicable waiting periods or the receipt of any necessary approval, as applicable.

(ii) The Company shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable, as promptly as possible, to assist FTB or its Affiliates in obtaining any Regulatory Approval necessary for FTB or its Affiliates to qualify or continue its ownership interest in the Company as a permissible investment, including by (i) making appropriate filings and submissions to any Government Entity required by Law applicable to the Company or the Subsidiaries or FTB or its Affiliates and (ii) providing any information to FTB as may be reasonably requested by FTB or its Affiliates in connection therewith and (iii) executing and delivering additional documents necessary to consummate the transactions contemplated by this Agreement in connection therewith. FTB shall use its reasonable best efforts to obtain any Regulatory Approval as promptly as possible; provided that FTB will exercise reasonable best efforts to minimize disclosure of any confidential or proprietary information relating to the Company and to seek confidential treatment for any such information, in each case, to the maximum extent allowed under applicable Law.

(c) Company Action . Subject to the provisions of this Agreement, except as prohibited by applicable Law, (i) the Company may, with the approval of the Board of Directors, enter into and perform any and all documents, agreements and instruments contemplated by such approval, all without any further act, vote or approval of any Member and (ii) the Board of Directors may authorize any Person (including any Member or Officer) to enter into and perform any document on behalf of the Company.

SECTION 2.5 Foreign Qualification . Prior to the Company’s or any Subsidiary’s conducting business in any jurisdiction other than Delaware, the Board of Directors shall cause the Company or such Subsidiary to comply, to the extent procedures are available and those matters are reasonably within the control of the Officers, with all requirements necessary to qualify the Company or any Subsidiary as a foreign limited liability company conducting business in that jurisdiction.

SECTION 2.6 Registered Office; Registered Agent; Principal Office; Other Offices . The registered office of the Company required by the Act to be maintained in the State of Delaware shall be the office of the initial registered agent named in the Certificate or such other office

 

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(which need not be a place of business of the Company) as the Board of Directors may designate from time to time in the manner provided by Law. The registered agent of the Company in the State of Delaware shall be the initial registered agent named in the Certificate or such other Person or Persons as the Board of Directors may designate from time to time in the manner provided by Law. The principal office of the Company shall be at such place as the Board of Directors may designate from time to time, which need not be in the State of Delaware, and the Company shall maintain records at such place. The Company may have such other offices as the Board of Directors may designate from time to time.

SECTION 2.7 No State-Law Partnership . The Members intend that the Company shall not be a partnership (including a limited partnership) or joint venture, and that no Member, Director or Officer shall be a partner or joint venturer of any other Member, Director or Officer by virtue of this Agreement, for any purposes other than as set forth in the last sentence of this Section 2.7 , and this Agreement shall not be construed to the contrary. The Members intend that the Company shall be treated as a partnership for federal, state or local income tax purposes, and each Member and the Company shall file all tax returns and shall otherwise take all tax and financial reporting positions in a manner consistent with such treatment.

ARTICLE III - UNITS

SECTION 3.1 Authorized Units . The only beneficial interests in the Company shall be units (“ Units ”). The total number of Units that the Company initially shall have authority to issue is 111,594,203 Units, of which (a) 51,000,000 shall be designated as Class A Units having the rights, preferences, privileges and restrictions set forth in this Agreement (each, a “ Class A Unit ,” and collectively, the “ Class A Units ”), (b) 49,000,000 shall be designated as Class B Units having the rights, preferences, privileges and restrictions set forth in this Agreement (each, a “ Class B Unit ,” and collectively, the “ Class B Units ”) and (c) 11,594,203 shall be designated as Class C Non-Voting Units having the rights, preferences, privileges and restrictions set forth in this Agreement and the Warrant (each, a “ Class C Non-Voting Unit ,” and collectively, the “ Class C Non-Voting Units ”); provided , however , that, subject to Sections 4.1(h)(viii) , 4.1(h)(xiv) and 4.2(e)(iii) , and except as required by the terms of the Warrant (x) the Board of Directors may from time to time authorize the issuance of additional Class A Units, Class B Units and Class C Units and such other Units with such rights, preferences, privileges and restrictions as the Board of Directors shall designate so long as none of such rights, preferences or privileges are inconsistent with the terms of this Agreement or would deprive any Member of the rights it has as a Member (for the avoidance of doubt, dilution of Economic Interests and voting rights (other than rights set forth in Section 4.1(h) ) shall not be deemed to deprive any Member of the rights it has as a Member), and (y) this Agreement shall be amended in order to document such new classes of Units and their rights, preferences, privileges and restrictions and/or such authorized number of Units of existing classes of Units, in each case, with no further action required by the Members. Notwithstanding anything to the contrary herein, the Board shall authorize the issuance of additional Units as required by the terms of the Warrant. The issuance of any Units after the Effective Date shall be subject to the Members’ Preemptive Rights, as applicable, shall be issued at a price equal to or greater than Fair Market Value and shall be paid for in cash or, in connection with an acquisition by the Company or any Subsidiary or the contribution by a Member of assets to the Company or any Subsidiary related to the Business or its strategic direction as outlined in the Business Plan, cash or other property, the

 

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Fair Market Value of which shall be determined in Good Faith by the Board of Directors. The Class C Non-Voting Units shall be issued only upon the valid exercise of the Warrant. The initial holdings of Units shall be as set forth on Schedule I .

SECTION 3.2 General . Except as otherwise expressly provided in this Agreement, all Units shall have identical rights and privileges in every respect.

SECTION 3.3 Voting . Each Member shall be entitled to one vote per Class A Unit and one vote per Class B Unit that it holds with respect to any matter as to which the Members holding such Units are entitled to vote; provided that any Class A Units or Class B Units held by any Assignee shall be non-voting, and any Class C Non-Voting Units held by any Person shall be non-voting, in each case, except as otherwise provided in this Agreement.

SECTION 3.4 Preemptive Rights .

(a) General . At any time before the consummation of the IPO, the Company shall not be authorized to issue any New Securities (other than Exempt Securities) unless each Member is granted the opportunity to purchase for cash up to its Pro Rata Portion of such New Securities (other than Exempt Securities) (“ Preemptive Rights ”); provided that, for the avoidance of doubt, (i) the Board of Directors may waive the Preemptive Rights of all Members with respect to any issuance of New Securities that otherwise meets the requirements specified in clause (d) of the definition of Exempt Securities and (ii) no Member shall have Preemptive Rights with respect to the IPO.

(b) Offer Period . Promptly following the Board’s determination to issue New Securities (other than Exempt Securities), the Company shall provide each Member with a written notice describing in reasonable detail the New Securities being offered, the purchase price thereof, the basis for the determination of the purchase price thereof, the payment terms, such Member’s Pro Rata Portion of the New Securities and all other facts that would be material to any determination by a Member as to whether to purchase such New Securities (the “ Preemptive Rights Notice ”). In order to exercise its Preemptive Rights, each Member must deliver a written notice to the Company describing its election to exercise its Preemptive Rights within thirty (30) days after receipt of the Preemptive Rights Notice.

(c) Expiration of Offer Period . For one hundred twenty (120) days following the expiration of the offering period described in Section 3.4(b) , the Company shall be entitled to sell such New Securities that the Members have not elected to purchase on terms and conditions no more favorable to the purchasers thereof than those offered to the Members. Any New Securities to be sold by the Company to any Person after such one hundred twenty (120)-day period must be reoffered to the Members pursuant to the terms of this Section 3.4 .

(d) Distressed Purchase . Nothing in this Section 3.4 shall be deemed to prevent any Member or any of its Affiliates from purchasing for cash any New Securities without first complying with the provisions of Section 3.4 ; provided , that in connection with such purchase, (i) the Board of Directors has determined in Good Faith (A) that the Company needs an immediate cash investment, (B) that no alternative financing on terms no less favorable to the Company in the aggregate than such purchase is available that is of a type that could be

 

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obtained without having to comply with this Section 3.4 and (C) that the delay caused by compliance with the provisions of this Section 3.4 in connection with such investment would be reasonably likely to cause material and immediate harm to the Company, (ii) the Company gives prompt notice to the other Members of such investment, which notice shall describe in reasonable detail the New Securities being purchased by the Person making such purchase (for purposes of this Section 3.4 , the “ Purchaser ”) and the purchase price thereof and (iii) the Purchaser and the Company take all steps necessary to enable the other Members to exercise effectively their respective rights under this Section 3.4 with respect to their purchase of a Pro Rata Portion of the New Securities issued to the Purchaser and all Members exercising their Preemptive Rights after such purchase by the Purchaser on the terms specified in Section 3.4; it being understood that in such event the Pro Rata Portion shall be determined assuming the emergency issuance to which such Preemptive Right applies has been offered but not issued.

ARTICLE IV - MANAGEMENT

SECTION 4.1 Board of Directors .

(a) Management by the Board of Directors . Subject to the Business Plan and the terms of this Agreement, the business and affairs of the Company shall be managed and controlled by, or under the direction of, a Board of Directors (the “ Board of Directors ,” and each director on the Board of Directors is referred to individually as a “ Director ” and collectively as the “ Directors ”), which may exercise all such powers of the Company and do all such lawful acts and things as are not, by Law or by this Agreement, directed or required to be exercised or done by a Member or the Members.

(b) Waiver of Fiduciary Duties . Each of the Members and the Company acknowledges and agrees that (i) each Director is the designee of the Member(s) that appointed such Director, is acting as a proxy for such Member(s) with respect to the management of the Company and does not have any duties (including fiduciary duties) to the Company, any Subsidiary or any other Member, nor shall any Member have any such duty and (ii) each Member hereby acknowledges and agrees that each Director, in determining whether or not to vote in support of or against any particular decision for which the Board of Directors’ consent is required, may act in and consider the best interest of the Member who designated such Director and shall not be required to act in or consider the best interests of the Company or the other Members or parties hereto, except to the extent expressly set forth in this Agreement. Each of the Members and the Company agree that any duties, whether express or implied (including fiduciary duties), of a Director to the Company or to any other Member that would otherwise apply at law or in equity are hereby eliminated to the fullest extent permitted under the Act (including Section 18-1101(c) of the Act) and any other applicable Law, and each Member hereby waives all rights to, and releases each Director from, any such duties, except to the extent expressly set forth in this Agreement. Notwithstanding anything to the contrary contained in this Agreement, (i) the foregoing shall not eliminate or limit the obligation of the Members or any Director to act in compliance with the express terms of this Agreement (other than the foregoing), including the obligation to make determinations in Good Faith, and (ii) the foregoing shall not be deemed to eliminate the implied contractual covenant of good faith and fair dealing of the Members. Except as otherwise expressly provided in this Agreement, nothing contained in this Agreement shall be deemed to constitute any Director or Member an agent or legal

 

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representative of any other Member or to create any fiduciary relationship for any purpose whatsoever, apart from such obligations between the members of a limited liability company as may be created by the Act. A Member shall not have any authority to act for, or to assume any obligation or responsibility on behalf of, any other Member, the Company or any Subsidiary.

(c) No Individual Authority . No Director has the authority or power to act for, or on behalf of, the Company, to do any act that would be binding on the Company or any Subsidiary, to make any expenditures or incur any obligations on behalf of the Company or any Subsidiary or to authorize any of the foregoing, other than acts that are expressly authorized by the Board of Directors.

(d) Designation of the Directors .

(i) Number and Designation . The Board of Directors shall consist of nine (9) Directors as of the Effective Date. The number of Directors constituting the entire Board of Directors may be changed only with the written approval of the Members holding a majority of the Class A Units held by all Members and the Members holding a majority of the Class B Units held by all Members, voting separately; provided that for so long as FTB and its Affiliates collectively hold twenty percent (20%) or more of the Class B Units, FTB’s (and only FTB’s) written approval in respect of the Class B Units is required. The Directors shall be determined by the Members as provided in this Section 4.1(d)(i) . Directors need not be Members or officers of Members. At any time at which Members shall have the right to, or shall, vote for Directors of the Company, the Members shall vote all Units as to which they are then entitled to vote generally in the election of Directors so as to fix the number of Directors at nine (9) (or such other number as is approved pursuant to this Section 4.1(d)(i) ) and for the election of a Board of Directors in the manner set forth below or in such other manner as is approved pursuant to any change in the number of Directors approved pursuant to this Section 4.1(d)(i) :

(A) Five (5) Directors designated by the Members holding a majority of the Class A Units then held by all Members (each, a “ Class A Director ” and, collectively, the “ Class A Directors ”); and

(B) Four (4) Directors designated by the Members holding a majority of the Class B Units then held by all Members (each, a “ Class B Director ” and, collectively, the “ Class B Directors ”); provided that for so long as FTB and its Affiliates collectively hold twenty percent (20%) or more of the Class B Units, FTB shall designate at least three (3) of such four (4) Directors.

The Board of Directors as of the Effective Date shall be comprised of the individuals set forth on Exhibit A . Notwithstanding anything to the contrary in this Agreement, if at any time FTB and its Affiliates collectively hold more than fifty percent (50%) of the Units without regard to the Class C Non-Voting Units (an “ FTB Ownership Event ”), then, unless waived by the Members holding a majority of the Class B Units held by all Members, (i) the composition of the Board of Directors shall be appropriately adjusted to reflect the relative proportionate holdings of Units as between FTB and its Affiliates, on the one hand, and Advent Blocker and its Affiliates, on the

 

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other hand and, (ii) following any such adjustment, in the event that Advent Blocker and its Affiliates hold less than fifty percent (50%) of the Units without regard to the Class C Non-Voting Units and shall have Transferred Units constituting at least fifty percent (50%) of the Units that Advent Blocker and its Affiliates owned as of the Effective Date to Persons other than its Affiliates, then only the affirmative vote of a majority of the Directors present at a meeting shall be required with respect to the actions described in Sections 4.1(h)(i) , (iii) , (vii) , (ix)  and (xiv) .

(ii) Term . Each Director shall hold office until the earlier of (i) the appointment or election and qualification of the Director’s successor and (ii) the Director’s death, resignation or removal. There is no limit to the number of terms a Director may serve.

(iii) Removal; Election of Successors . If the Company receives a written notice that either the Members holding a majority of the Class A Units then held by all Members or the Members holding a majority of the Class B Units then held by all Members desire to remove a Director designated by the applicable Members, the Company and each of the Members agrees to take such action as is necessary to call a special meeting of the Members of the Company (or effect a written consent in lieu thereof) for the purpose of effecting any such removal, and at such meeting (or in effecting such consent for any reason) each of the Members shall vote to accomplish said result; provided that for so long as FTB and its Affiliates collectively hold twenty percent (20%) or more of the Class B Units, only FTB may deliver such written notice in respect of the removal of any Director designated by FTB. In the event that any Director is removed or shall have resigned or become unable to serve, the Members that had the power to designate such Director pursuant to Section 4.1(d)(i) shall have the power to designate a person to fill such vacancy, and shall nominate an individual to fill such vacancy within thirty (30) days of any removal or resignation, whereupon the Company and each of the Members agrees to take such action as is necessary to elect such person to fill such vacancy promptly (including, if necessary, calling a special meeting of the Members of the Company (or effecting a written consent in lieu thereof) and voting all Units owned by such Members to accomplish such result). Other than as provided in this Section 4.1(d)(iii) , no Member shall vote in favor of the removal of any Director who shall have been designated or nominated pursuant to Section 4.1(d)(i) . Any Director designated by a majority of the Board of Directors pursuant to Section 4.1(e) to fill a newly created Director position may be removed by a vote of the majority of the Board of Directors.

(e) Vacancies; Resignation . Vacancies shall be filled in accordance with Section 4.1(d)(i) , other than vacancies of newly created Director positions resulting from any increase in the number of Directors pursuant to Section 4.1(d)(i) , which vacancies shall be filled in the manner dictated at the time of the creation of the newly created Director position. Newly-created Director positions resulting from any increase in the number of Directors, unless filled in another manner approved in connection with the approval of such newly-created Director position, may be filled by a vote of the majority of the Board of Directors, and each Director so chosen shall hold office until his or her successor is elected and qualified or until his or her

 

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earlier death, resignation or removal by the Board of Directors. A Director may resign at any time by giving written notice to the Board of Directors.

(f) Meetings .

(i) Regular Meetings . Regular meetings of the Board of Directors shall be held within sixty (60) days of the end of each fiscal year and at least once every fiscal quarter, in each case, at such times and places as shall be designated from time to time by resolution of the Board of Directors. Written notice of each regular meeting of the Board of Directors shall be given to each Director at least five (5) Business Days before the date of the meeting.

(ii) Special Meetings . Special meetings of the Board of Directors may be called on at least five (5) Business Days’ notice to each Director and may be called by any Director.

(iii) Notice; Waiver . Notice of any regular or special meeting of the Board of Directors or any committee of the Board of Directors may be given personally or by email, facsimile or courier, and if given other than by email, shall also be sent by email, and shall be deemed given upon any of the following: (A) when personally delivered to the Director; (B) when emailed to the Director; (C) when faxed to the Director (provided such fax is confirmed); or (D) one (1) Business Day after being sent to the Director by reputable national overnight courier service (charges prepaid), at the mailing address, email address or fax number, as applicable, of the Director as listed on the books and records of the Company. The name, address, email address, facsimile and telephone number of each of the current Directors are as set forth on Exhibit A . Attendance of a Director at a meeting shall constitute a waiver of notice of such meeting, except where a Director attends a meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.

(iv) Place of Meetings . All meetings of the Board of Directors may be held either within or without the State of Delaware at such place or places as shall be determined from time to time by resolution of the Board of Directors.

(v) Attendance by Telephone . Members of the Board of Directors may participate in any meeting of the Board of Directors by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at a meeting.

(vi) Quorum; Actions at a Meeting .

(1) Provided that notice is given to or waived by all Directors pursuant to Section 4.1(f)(iii) , a majority of the total number of Directors (which majority shall include at least two (2) Class A Directors and at least two (2) Class B Directors) shall constitute a quorum for the transaction of business of the Board of Directors and, subject to Section 4.1(h) ,

 

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the acts of a majority of the Directors present at a meeting of the Board of Directors at which a quorum is present shall be the acts of the Board of Directors.

(2) Notwithstanding Section  4.1(f)(vi)(1) , if it is determined after the calling of any Board of Directors meeting pursuant to the provisions of this Agreement that the number of Directors able to attend such meeting will not constitute a quorum (as set forth in Section 4.1(f)(vi)(1) ), then such meeting shall be rescheduled by the Board of Directors for a date within five (5) Business Days after the date on which such meeting was initially proposed to be held (the “ Rescheduled Board of Directors Meeting ”). If it is determined that the number of Directors able to attend such Rescheduled Board of Directors Meeting will not constitute a quorum, then for purposes of such Rescheduled Board of Directors Meeting only, a quorum shall be considered present when a majority of the Directors are in attendance (and no particular number of Class A Directors or Class B Directors shall be required); provided that no matter may be considered at the Rescheduled Board of Directors Meeting that was not the subject of the notice of meeting delivered pursuant to Section 4.1(f)(iii) with respect to such meeting.

(3) Notwithstanding Section  4.1(f)(vi)(1) , following a Trigger Event, a quorum shall exist when a majority of the Directors are in attendance; provided , that notice is given to or waived by all Directors pursuant to Section 4.1(f)(iii) .

(4) A Director who is present at a meeting of the Board of Directors at which action on any matter is taken shall be presumed to have assented to the action unless his or her dissent shall be entered in the minutes of the meeting or unless he or she shall file his or her written dissent to such action with the person acting as secretary of the meeting before the adjournment thereof or shall deliver such dissent to the Company immediately after the adjournment of the meeting. Such right to dissent shall not apply to a Director who voted in favor of such action.

(g) Action without Meeting . Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if all of the members of the Board of Directors consent thereto in writing and the writing or writings are filed with the minutes of proceedings of the Board of Directors.

(h) Supermajority Voting . Notwithstanding anything to the contrary contained herein but subject to the last sentence of this Section 4.1(h) , the following matters relating to the business and operations of the Company and/or the Subsidiaries shall be presented to the Board of Directors and shall require the affirmative vote of at least seven (7) out of the nine (9) Directors, or in the event that the Board of Directors is expanded pursuant to Section 4.1(d)(i) , a number of Directors that includes at least two (2) Class B Directors, or in the event of and for so long as there exists an FTB Ownership Event , at least two (2) Class A Directors (a “ Board Supermajority ”):

(i) any Change of Control (A) during the first three (3) years following the Effective Date, (B) during the fourth year following the Effective Date that implies an Equity Value of the Company and the Subsidiaries of less than $2.3 billion, (C) during the fifth year following the Effective Date that implies an Equity Value of the

 

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Company and the Subsidiaries of less than $2.5 billion; provided , however , that no such Board Supermajority consent shall be necessary (x) at any time if the Company and/or the Subsidiaries is in a payment default or financial covenant default under the Notes, unless the Notes have been amended consistent with a waiver of such payment default or financial covenant default, or (y) at any time after June 30, 2012 if the Company’s LTM EBITDA is less than $335,000,000;

(ii) any sale, transfer or disposition, in one or a series of related transactions, of any assets or other property of the Company and/or any Subsidiary having a value in excess of $100,000,000 in the aggregate (other than pursuant to a Change of Control); provided that no such Board Supermajority consent shall be required for any sale of the EFT Business at an aggregate purchase price greater than $1.0 billion;

(iii) any acquisition of assets or securities or investment in any other Person by the Company and/or any Subsidiary, in one or a series of related acquisitions, investments or contributions, other than with respect to any Person set forth on Exhibit B attached hereto, for a value exceeding $175,000,000 in the aggregate;

(iv) the retention, termination or replacement of the independent auditor of the Company and the Subsidiaries;

(v) other than (A) the arrangements set forth on Exhibit C , (B) issuances of New Securities permitted by this Agreement, (C) distributions provided to such Person in its capacity as a Member of the Company, (D) arm’s-length commercial transactions between the Company or its Subsidiaries, on the one hand, and a portfolio company of Advent International Corporation, on the other hand, in the ordinary course of business, the engagement by the Company or any Subsidiary, either directly or indirectly, in a transaction or series of related transactions with Advent Blocker or any Advent Blocker Affiliate or portfolio company of Advent International Corporation or any executive management employee of the Company or any Subsidiary, including ownership by Advent Blocker or an executive management employee or a member of any such individual’s family group of any supplier, contractor, subcontractor, customer or other entity with which the Company or any Subsidiary does business or seeks to do business (other than as a shareholder of less than two percent (2%) of a publicly traded class of securities), where either (A) such transaction or transactions are not on arm’s-length terms or (B) such transaction or transactions would require the Company or any Subsidiary to pay or incur obligations of more than $1,000,000;

(vi) a material change to the strategic direction of the Company and/or the Subsidiaries as compared to, (A) with respect to the period before the adoption of the Company’s initial Business Plan, the strategic direction of the Business as of the Effective Date and, (B) with respect to the period thereafter, the then-effective Business Plan or the last Business Plan approved by a Board Supermajority pursuant to this Section 4.1(h)(vi) to the extent that any changes since such time would, individually or in the aggregate when taken together with any elements of any Business Plan approved by the Board of Directors since such time, constitute a material change to the strategic direction of the Company and/or the Subsidiaries; provided that any material changes to

 

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the strategic direction of the Company and the Subsidiaries reflected in any Business Plan are approved by a Board Supermajority pursuant to this Section 4.1(h)(vi) , in any case, including through the entry into, commencement of, expansion into, or engagement in, any business (through acquisition, investment or otherwise), or the cessation of any existing business (through divestiture or otherwise);

(vii) any loan or series of related loans by the Company or any Subsidiary (except in the ordinary course of business) in an amount exceeding $200,000,000;

(viii) the modification of the material terms and conditions, and any amendment, of the Management Phantom Equity Plan;

(ix) the effectuation of any Non-Qualified IPO before the third anniversary of the Effective Date;

(x) the modification of any of the terms and conditions of the Credit Facility;

(xi) the entry into, or amendment of, any contracts of the Company and/or any Subsidiary providing for capital expenditures expected to exceed $25,000,000 in the aggregate, other than immaterial amendments to the non-economic terms of such contracts;

(xii) the declaration, setting aside for payment of, or payment of, any Distribution by the Company to the Members other than Quarterly Distributions;

(xiii) any request for any additional capital contribution from FTB or FTPSP in its capacity as a Member;

(xiv) the issuance of New Securities constituting more than twenty percent (20%) of the total Units then held by all Members (excluding issuances under the Warrant and the Management Phantom Equity Plan); provided , however , that no Board Supermajority consent shall be necessary (x) at any time if the Company and/or the Subsidiaries is in a payment default or financial covenant default under the Credit Facility or the Notes, unless the Credit Facility or the Notes, as applicable, have been amended consistent with a waiver of such payment default or financial covenant default, or (y) at any time after June 30, 2012 if the Company’s LTM EBITDA is less than $335,000,000;

(xv) approval and submission to any applicable tax authority of any material tax returns and tax elections (other than a Section 754 election or an election to make Section 704(c) or “reverse Section 704(c)” allocations in the manner specified in this Agreement or an election to treat any new direct or indirect Subsidiaries acquired by the Company or any Subsidiary or organized by the Company or any Subsidiary as a partnership or disregarded entity for U.S. federal tax purposes), including any permitted determinations related to any Adjusted Capital Account Deficit or Gross Asset value, or matters in Sections 5.3(d)(iv) , 5.3(f) , 7.2(e) and 7.3 ; provided that the following review

 

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and deadlock resolution procedure shall apply with respect to the matters subject to this Section 4.1(h)(xv) : The Class A Directors shall provide draft copies of any such material tax returns or material tax elections to the Class B Directors at least 30 days before the filing deadline and shall provide the Class B Directors with any information requested by the Class B Directors to review such tax returns or tax elections. The Class B Directors will notify the Class A Directors within 15 days of receipt of such draft tax return or tax election of their approval or disapproval of the draft tax return or tax election. If a Board Supermajority cannot agree on whether to make any such tax election, then the election shall not be made. If a Board Supermajority cannot agree on any other tax position in a material tax return or a material tax election where an election must be made, then, at the Company’s expense, any Big Four accounting firm agreed by a Board Supermajority shall determine whether the tax position proposed by the Class A Directors or the tax position proposed by the Class B Directors is more likely to prevail or, if such positions are equally likely to prevail, whether the tax election proposed by the Class A Directors or the tax election proposed by the Class B Directors is more neutral to the Members, and in each case such determination shall be binding for purposes of this Section 4.1(h)(xv) ;

(xvi) any change to the capitalization or organization of any Subsidiary or any change at any Subsidiary or any governance provisions of any Subsidiary that, in any case, would in any way have the effect of circumventing the provisions, including the protections afforded the Members in Section 4.1(h) , of this Agreement, or materially and adversely affecting any Member that, together with its Affiliates, collectively holds fifteen percent (15%) or more of the Units in a manner differently or disproportionately than the other Members, including the amendment of the Opco LLC Agreement; it being understood that it is intended that no action may be effected at a Subsidiary that could not be effected at the Company under this Agreement;

(xvii) in each case, within the first year following the Effective Date, the appointment or removal of the CEO other than for Cause; and

(xviii) the exercise by Opco of the termination right set forth in Section 1.2(c) of the Master Lease Agreement, dated June 30, 2009, between FTB and Opco, or in Section 1.2(e) of the Master Sublease Agreement, dated June 30, 2009, between FTB and Opco (for the avoidance of doubt, this Section 4.1(h)(xviii) shall not apply with respect to Section 17.1 of each the Master Lease Agreement and Master Sublease Agreement), or any successor provisions thereof.

Notwithstanding the foregoing, following a Trigger Event, only the affirmative vote of a majority of the Directors present at a meeting shall be required with respect to the actions described in Sections 4.1(h)(i) , (iii) , (vii) , (ix)  and (xiv) ; provided that, for the sake of clarity, no New Securities shall be issued at a price below Fair Market Value at any time.

(i) Approval of Business Plan . The Company shall conduct its business affairs at all times in accordance with the Business Plan in effect from time to time. Not less frequently than once a year, the Board of Directors shall review, amend and update the Business Plan to account for any acquisitions, dispositions or other Board of Directors-approved actions that were not contemplated by the Business Plan at the time of its adoption, and, subject to

 

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Section 4.1(h)(vi) , the adoption of each Business Plan shall require the approval of a majority of the Board of Directors.

(j) Compensation . The Company will reimburse all Directors for reasonable out-of-pocket expenses (including travel expenses) actually incurred in connection with their service on the Board of Directors or any committee thereof, promptly upon written request. In the discretion of the Board of Directors, each Director (other than an employee of the Company or any Subsidiary, FTB, Advent Blocker or any of their respective Affiliates) may be paid such fees for such Director’s services as Director or as a member of any committee as the Board of Directors may determine from time to time.

(k) Committees .

(i) Authorization; Composition; Powers . The Board of Directors shall, by resolution adopted by a majority of the Directors then in office, designate such committees as the Board of Directors from time to time may determine, and each such committee shall consist of at least one (1) Class A Director and at least one (1) Class B Director as members (which Class A Director and Class B Director shall be designated by the Members holding a majority of the Class A Units then held by all Members and the Members holding a majority of the Class B Units then held by all Members, respectively, voting as a separate class; provided that for so long as FTB and its Affiliates collectively hold twenty percent (20%) or more of the Class B Units, FTB shall designate such Class B Director). Except as expressly limited by applicable Law, any such committee shall have and may exercise such powers and authority as the Board of Directors may determine and specify in the resolution designating such committee or any amendment thereto, but subject to the limitations in this Agreement, including Section 4.1(h) , applicable to the Board of Directors.

(ii) Quorum; Actions at a Meeting .

(1) Provided that notice is given pursuant to Section 4.1(f)(iii) to or waived by all Directors who are members of the committee, the presence of at least one (1) Class A Director and at least one (1) Class B Director shall be required for any committee to have a quorum, except as otherwise provided in Sections 4.1(k)(ii)(3) and (4) .

(2) The affirmative vote of a majority of the committee members present at a meeting shall be sufficient for effective committee action when a quorum is present.

(3) Notwithstanding Sections 4.1(k)(ii)(1) and (2) , if it is determined after the calling of any committee meeting pursuant to the provisions of this Agreement that the Directors able to attend such meeting will not constitute a quorum (as set forth in Section 4.1(k)(ii)(1) ), then such meeting shall be rescheduled for a date within ten (10) Business Days after the date on which such meeting was initially proposed to be held (the “ Rescheduled Committee Meeting ”). If it is determined that the number of Directors able to attend such Rescheduled Committee Meeting will not constitute a quorum, for purposes of such Rescheduled Committee Meeting only, a quorum shall be considered present when a majority of

 

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the Directors that are members of such committee are in attendance; provided that no business may be considered at the Rescheduled Member Meeting that was not the subject of the notice of meeting delivered pursuant to Section 4.1(f)(iii) with respect to such meeting.

(4) Notwithstanding Sections 4.1(k)(ii)(1) , following a Trigger Event, a quorum shall exist when a majority of the Directors that are members of such committee are in attendance; provided , that notice is given to or waived by all Directors pursuant to Section 4.1(f)(iii) .

(iii) Attendance by Telephone . Members of a committee of the Board of Directors may participate in any meeting of such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at a meeting.

(iv) Action without Meeting . Any action required or permitted to be taken at any meeting of any committee of the Board of Directors may be taken without a meeting if all of the members of such committee consent thereto in writing and the writing or writings are filed with the minutes of proceedings of such committee.

SECTION 4.2 Meetings of the Members .

(a) Meetings .

(i) Regular Meetings . The Company may hold annual meetings to transact such business as the Members may determine; provided , that no action may be taken at any regular meeting of Members that would in any way have the effect of circumventing the provisions of this Agreement, including the protections afforded the Members in Section 4.1(h) . The date of the annual meeting, if held, shall be determined by the Board of Directors.

(ii) Special Meetings . Special meetings may be called by a majority of the Board of Directors upon at least two (2) Business Days’ notice to the Members or by any Member upon at least five (5) Business Days’ notice given in accordance with Section 8.6 to the other Members; provided , that no action may be taken at any special meeting of Members that would in any way have the effect of circumventing the provisions of this Agreement, including the protections afforded the Members in Section 4.1(h) .

(iii) Notice; Waiver . Written notice of each regular meeting of the Members setting the place, date and time of the meeting shall be given in accordance with Section 8.6 , not less than ten (10) nor more than sixty (60) days before the date of the meeting, to each Member. Attendance of a Member at a meeting shall constitute a waiver of notice of such meeting, except where a Member attends a meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.

 

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(iv) Place of Meetings . All meetings of the Members shall be held at such time and place, within or without the State of Delaware as shall be designated by the Board of Directors or, if called by a Member, at the principal place of the Company and the Subsidiaries. In the absence of any such designation by the Board of Directors, each such meeting shall be held at the principal place of business of the Company and the Subsidiaries.

(v) Attendance by Telephone . Members may participate in any meeting of Members by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at a meeting.

(b) Quorum; Actions at a Meeting .

(i) Provided that notice is given pursuant to Section 4.2(a)(ii) or Section 4.2(a)(iii) , as applicable, to or waived by all Members, a quorum shall be considered present when Members holding two-thirds (2/3) of the Units then held by all Members are in attendance, except as otherwise provided in Sections 4.2(b)(iii) and (iv) .

(ii) Approval for any matter submitted to the Members for a vote shall require the affirmative vote or consent of the Members holding a majority of the Units then held by all Members, voting together as a single class, present at a meeting in which a quorum is present, except as otherwise expressly provided by this Agreement.

(iii) Notwithstanding Sections 4.2(b)(i) and (ii) , if it is determined after the calling of any meeting of Members pursuant to the provisions of this Agreement that the number of Members able to attend such meeting will not constitute a quorum (as set forth in Section 4.2(b)(i) ), then such meeting shall be rescheduled for a date within ten (10) Business Days after the date on which such meeting was initially proposed to be held (the “ Rescheduled Member Meeting ”). If it is determined that the number of Members able to attend such Rescheduled Member Meeting will not constitute a quorum, for purposes of such Rescheduled Meeting only, a quorum shall be considered present when Members holding a majority of the Units then held by all Members are in attendance; provided that no business may be considered at the Rescheduled Member Meeting that was not the subject of the notice of meeting delivered pursuant to Section 4.2(a) with respect to such meeting; and, provided , further , that no action may be taken at any Rescheduled Member Meeting that would in any way have the effect of circumventing the provisions of this Agreement, including the protections afforded the Members in Section 4.1(h) .

(iv) Notwithstanding Section 4.2(b)(i) , following the occurrence of a Trigger Event, a quorum shall be considered present when Members holding a majority of the Units then held by all Members are in attendance.

(c) Informal Action by Members . Any action required to be taken at a meeting of the Members, or any other action which may be taken at a meeting of the Members, may be taken without a meeting, without prior notice and without a vote, if a consent in writing,

 

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setting forth the action so taken, shall be signed by those Members that would be necessary to approve such action at a meeting of the Members at which a quorum was present. Notice of any such action shall be delivered to all Members as promptly as practicable.

(d) Approval or Ratification of Acts or Contracts . Any act or contract that shall be approved or be ratified by the Board of Directors in accordance with this Agreement shall be valid and binding upon the Company and upon all the Members (in their capacity as Members).

(e) Actions Requiring Member Approval . The prior written consent of the Members holding a majority of the Class A Units then held by all Members and the Members holding a majority of the Class B Units then held by all Members, each voting separately as a single class, shall be required for the following; provided that for so long as FTB and its Affiliates collectively hold twenty percent (20%) or more of the Class B Units, FTB’s (and only FTB’s) written consent in respect of the Class B Units will be required:

(i) any amendment to the Certificate;

(ii) any amendments to this Agreement; and

(iii) any increase in the number of Units issued or reserved for issuance under the Management Phantom Equity Plan in excess of eight percent (8%) of the fully-diluted Units held by all Members on the Effective Date (subject to equitable adjustments for Unit splits, dividend and combinations);

provided that, following the occurrence of a Trigger Event, any amendments to the Certificate or this Agreement shall only require the prior consent of the Members holding a majority of the Units, voting together as a single class. Notwithstanding anything to the contrary contained herein, if an amendment to the Certificate or this Agreement would materially and adversely affect any Member, then the consent of a majority of each group of Members affected in the same manner shall be required; provided that if the affected Members are Class B Members (as a Class) for so long as FTB and its Affiliates collectively hold twenty percent (20%) or more of the Class B Units, then FTB’s (and only FTB’s) written consent in respect of the Class B Units will be required; provided , further , that any Members that are Affiliates of any Member who has proposed an amendment to the Certificate or this Agreement shall be deemed to be affected in the same manner by such amendment as the Affiliated Member proposing it (and not of any other group affected differently than the Member proposing the amendment); it being understood that the authorization and issuance of new junior interests or interests pari passu to the Class A Units and Class B Units at a price equal to or greater than Fair Market Value shall not, in and of itself, be considered material or adverse to any Member; it being further understood that any amendment to Section 4.1(h) shall be considered material and adverse.

SECTION 4.3 Chairperson . A majority of the Board of Directors shall designate a Director to serve as Chairperson of the Board of Directors (the “ Chairperson ”). For the avoidance of doubt, a Director serving as the Chairperson shall be entitled to vote with the Board of Directors on all matters, including the designation of a Chairperson. The Chairperson shall preside at all meetings of the Board of Directors. If the Chairperson is absent at any meeting of

 

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the Board of Directors, a majority of the Directors present shall designate another Directors to serve as interim Chairperson for that meeting. The Chairperson shall have no authority or power to act for or on behalf of the Company, to do any act that would be binding on the Company or to make any expenditure or incur any obligations on behalf of the Company or authorize any of the foregoing. The initial Chairperson is noted on Exhibit A .

SECTION 4.4 Officers .

(a) Designation and Appointment . The Board of Directors may, from time to time, employ and retain Persons as may be necessary or appropriate for the conduct of the Company’s and the Subsidiaries’ business (subject to the supervision and control of the Board of Directors), including employees, agents and other Persons (any of whom may be a Member or Director) who may be designated as Officers of the Company or of one or more Subsidiaries, with titles as and to the extent authorized by the Board of Directors. Any number of offices may be held by the same Person. In its discretion, the Board of Directors may choose not to fill any office for any period as it may deem advisable. Officers need not be residents of the State of Delaware or Members. Any Officers so designated shall have such authority and perform such duties as the Board of Directors may, from time to time, delegate to them. The Board of Directors may assign titles to particular Officers. Each Officer shall hold office until his successor shall be duly designated and shall qualify or until his death or until he shall resign or shall have been removed in the manner provided in this Agreement.

(b) Resignation/Removal . Any Officer may resign his or her office at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time is specified, at the time of its receipt by the Board of Directors. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation. Any Officer may be removed as such, either with or without cause at any time by the Board of Directors; provided that the vote of the Members holding a majority of the Class B Units, voting as a separate class, shall be required to remove the CEO other than for Cause at any time before the first anniversary of the Effective Date; provided , further , that for so long as FTB and its Affiliates collectively hold twenty percent (20%) or more of the Class B Units, only FTB may vote in respect of the Class B Units. Designation of an Officer shall not of itself create any contractual or employment rights.

(c) Duties of Officers Generally . The Officers, in the performance of their duties as such, shall owe to the Company duties of loyalty and due care of the type owed by the officers of a corporation to such corporation and its stockholders under the Laws of the State of Delaware.

(d) Chief Executive Officer . The Board of Directors shall appoint a Chief Executive Officer of the Company and the Subsidiaries (the “ CEO ”). The CEO as of the Effective Date shall be as set forth on Exhibit A . The CEO (i) shall be in general and active charge of the entire business and affairs of the Company, and shall be its chief policy making officer and (ii) shall, subject to the powers of the Board of Directors and the limitations set forth in Section 4.1 , have the power and authority to cause the Company to enter into and perform contracts and agreements in the ordinary course of business without action of the Board of

 

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Directors. In the event that the CEO resigns or is removed for any reason, the Board of Directors will consult with FTB in good faith regarding the successor CEO.

(e) President . If at any time a president of the Company (the “ President ”) is appointed, the President shall, subject to the powers of the Board of Directors and the limitations set forth in Section 4.1 and, in the event that the President and the CEO are not the same person, the CEO, have responsibility for the general and active management of the business of the Company, and shall see that all orders and resolutions of the Board of Directors are carried into effect. The President shall have such other powers and perform such other duties as may be prescribed by the Board of Directors and, in the event that the President and the CEO are not the same person, the CEO, subject to the limitations set forth in Section 4.1 .

(f) Chief Financial Officer . The chief financial officer of the Company (the “ Chief Financial Officer ”) shall keep and maintain, or cause to be kept and maintained, adequate and correct books and records of accounts of the properties and business transactions of the Company, including accounts of its assets, liabilities, receipts, disbursements, gains, losses and capital. The Chief Financial Officer shall have the custody of the funds and securities of the Company, and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company, and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board of Directors. The Chief Financial Officer shall have such other powers and perform such other duties as may from time to time be prescribed by the CEO or the Board of Directors, subject to the limitations set forth in Section 4.1 . For the sake of clarity, no separate vote of the Members holding Class B Units or the Class B Directors shall be required to hire the initial or any successor Chief Financial Officer.

(g) Vice President(s) . The vice president(s) of the Company shall perform such duties and have such other powers as the Board of Directors may from time to time prescribe.

(h) Secretary .

(i) The secretary of the Company (the “ Secretary ”) shall attend all meetings of the Board of Directors, and shall record all the proceedings of the meetings in a book to be kept for that purpose, and shall perform like duties for the standing committees of the Board of Directors when required.

(ii) The Secretary shall keep all documents described in Article VII and such other documents as may be required under the Act. The Secretary shall perform such other duties and have such other authority as may be prescribed elsewhere in this Agreement or from time to time by the CEO or the Board of Directors. The Secretary shall have the general duties, powers and responsibilities of a secretary of a corporation.

(iii) If the Board of Directors chooses to appoint an assistant secretary or assistant secretaries, the assistant secretaries, in the order of their seniority, in the absence, disability or inability to act of the Secretary, shall perform the duties and

 

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exercise the powers of the Secretary, and shall perform such other duties as the CEO or the Board of Directors may from time to time prescribe.

SECTION 4.5 Management Matters . The Board of Directors shall take all action which may be necessary or appropriate (i) for the continuation of the Company’s valid existence as a limited liability company under the Laws of the State of Delaware (and of each other jurisdiction in which such existence is necessary to enable the Company to conduct the business in which it is engaged) and (ii) for the maintenance, preservation and operation of the business of the Company and the Subsidiaries in accordance with the provisions of this Agreement and applicable Laws and regulations. The Board of Directors shall file or cause to be filed for recordation in the office of the appropriate authorities of the State of Delaware, and in the proper office or offices in each other jurisdiction in which the Company or any Subsidiary is formed or qualified, such certificates (including certificates of limited liability companies and fictitious name certificates) and other documents as are required by the applicable Laws of any such jurisdiction or as are required to reflect the identity of the Members and the amounts of their respective Capital Accounts.

SECTION 4.6 Liability of Members .

(a) No Personal Liability . Except as otherwise required by applicable Law or as expressly set forth in this Agreement, no Member shall have any personal liability whatsoever in such Person’s capacity as a Member, whether to the Company, to any of the other Members, to the creditors of the Company or any Subsidiary or to any other third party, for the debts, liabilities, commitments or any other obligations of the Company or any Subsidiary or for any losses of the Company or any Subsidiary.

(b) Limited Liability of the Member . The liability of each Member, in its capacity as such, cannot exceed (i) the amount of its Capital Contributions, if any, (ii) its share of any assets and undistributed profits of the Company and (iii) the amount of any distributions wrongfully distributed to it to the extent set forth in the Act, except to the extent such Member (including through its nominated Directors) has breached this Agreement.

(c) Return of Distributions . In accordance with the Act and the Laws of the State of Delaware, a member of a limited liability company may, under certain circumstances, be required to return amounts previously distributed to such member. It is the intent of the Members that no distribution to any Member pursuant to Article V of this Agreement shall be deemed a return of money or other property paid or distributed in violation of the Act. The payment of any such money or distribution of any such property to a Member shall be deemed to be a compromise within the meaning of the Act, and the Member receiving any such money or property shall not be required to return to any Person any such money or property, except to the extent such Member has breached this Agreement. However, if any court of competent jurisdiction holds that, notwithstanding the provisions of this Agreement, any Member is obligated to make any such payment, such obligation shall be the obligation of such Member and not of any Director or other Member.

SECTION 4.7 Exculpation; Indemnification by the Company .

 

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(a) Exculpation . To the fullest extent permitted by Law, no past, present or future Member or Affiliate of any of the foregoing, or Tax Matters Member or Director or any of their respective employees (each, in their capacity as such, a “ Covered Person ”), shall be liable to the Company or the Subsidiaries or any other Person who is bound by this Agreement for any or all losses, damages, claims, judgments, penalties (including excise and similar taxes and punitive damages), fines, settlements and reasonable expenses (including reasonable attorneys’ fees and expenses) (collectively, “ Expenses ”) actually incurred by reason of any act or omission performed or omitted by such Covered Person in Good Faith on behalf of the Company or the Subsidiaries and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person in accordance with this Agreement, except to the extent such Expenses are due to the gross negligence or willful misconduct of, or breach of this Agreement by, such Covered Person (each, a “ Covered Claim ”). The provisions of this Agreement, to the extent that they restrict, limit or eliminate the duties and liabilities of a Covered Person to the Company or any Subsidiary or the Members otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities at law or in equity of such Covered Person, and each Member to the fullest extent permitted by applicable Law, hereby waives any right to make any claim, bring any action or seek any recovery based on such other duties or liabilities for breach thereof.

(b) Indemnification . Subject to the limitations and conditions provided in this Section 4.7 , each Covered Person who was or is made a party or is threatened to be made a party to, or is involved in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or arbitrative, with respect to a Covered Claim (a “ Proceeding ”), or any appeal in such a Proceeding or any inquiry or investigation that could lead to such a Proceeding (a “ Covered Proceeding ”), by reason of the fact that he, she or it, or a Person of which he, she or it is or was a Covered Person shall be indemnified by the Company or to the extent applicable a Subsidiary to the fullest extent permitted by applicable Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such Law permitted the Company to provide prior to such amendment) against all Expenses actually incurred by such Person in connection with such Covered Proceeding, and indemnification under this Section 4.7 shall continue as to a Covered Person who has ceased to serve in the capacity which initially entitled such Covered Person to indemnity under this Agreement. The indemnification provided in this Section 4.7 is recoverable only out of the assets of the Company and/or the Subsidiaries, and no Member, Director, Officer or employee of the Company or any Subsidiary has any personal liability, or obligation to make a capital contribution, on account thereof.

(c) Reliance . A Covered Person shall be fully protected in relying in good faith upon the records of the Company and the Subsidiaries and upon such information, opinions, reports or statements presented to the Company or the Subsidiaries by any person as to matters the Covered Person reasonably believes are within such other person’s professional or expert competence, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, Net Profits or Net Losses of the Company and the Subsidiaries, or the value and amount of assets or reserves or contracts, agreements or other undertakings that would be sufficient to pay claims and obligations of the Company and the Subsidiaries or to make reasonable provision to pay such claims and obligations, or any other facts pertinent to the

 

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existence and amount of assets from which distributions to the Members or creditors of the Company and the Subsidiaries might properly be paid.

(d) Advancement of Expenses . The Company shall advance reasonable expenses (including reasonable attorneys’ fees) incurred by or on behalf of a Covered Person who is a Director, Officer or member of the Steering Committee in connection with a Covered Proceeding (ignoring for purposes of this clause (d)  the exception contained therein relating to gross negligence or willful misconduct of, or breach of this Agreement) within twenty (20) days after receipt by the Company from such Covered Person of a statement requesting such advances from to time; provided such statement provides reasonable documentary evidence of such expenses and provides a written undertaking by the Covered Person to repay any and all advanced expenses in the event such Covered Person is ultimately determined not to be entitled hereunder to indemnification by the Company.

(e) Indemnification Agreements and D&O Insurance . The Company may enter into agreements with Directors to provide for indemnification consistent with the terms and conditions set forth in this Section 4.7 . The Company and the Subsidiaries will purchase and maintain director and officer liability insurance at appropriate levels of coverage as determined by the Board of Directors.

(f) Nature of Rights . The rights granted pursuant to this Section 4.7 shall be deemed contract rights, and no amendment, modification or repeal of this Section 4.7 shall have the effect of limiting or denying any such rights with respect to actions taken or Covered Proceedings arising prior to any amendment, modification or repeal.

(g) Third-Party Beneficiaries . Notwithstanding anything to the contrary in this Agreement, each of the Members and the Company acknowledges and agrees that the Covered Persons have relied on this Section 4.7 and are express third-party beneficiaries of Section 4.7 with the express right and ability to enforce the Company’s obligations under Section 4.7 directly against the Company to the full extent of such obligations. The Company and each Member shall not in any way hinder, compromise or delay the rights and ability of the Covered Persons to enforce any of the Company’s obligations under this Section 4.7 directly against the Company to the full extent of such obligations. Notwithstanding anything to the contrary in this Agreement, (a) this Section 4.7 may not be amended, modified, supplemented or waived in any manner, and (b) the other provisions of this Agreement may not be amended, modified, supplemented or waived in any manner that adversely affects any Covered Person’s rights to enforce any of the Company’s obligations under this Section 4.7 directly against the Company without the prior written consent of each of the Members, which consent may be withheld, conditioned or delayed for any reason in their sole discretion.

(h) Survival . This Section 4.7 shall survive any termination of this Agreement. It is expressly acknowledged that the indemnification provided in this Section 4.7 could involve indemnification for negligence or under theories of strict liability.

SECTION 4.8 Renunciation of Corporate Opportunities; No Expansion of Duties . The Company (on behalf of itself and each of the Subsidiaries), FTB and each of other Members hereby acknowledge and agree that:

 

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(a) Advent Blocker, the Advent Blocker Stockholders and each of their respective Affiliates (other than any Person that is an Affiliate of such Member solely by virtue of such Member’s relationship with the Company), associated investment funds and portfolio companies (other than the Company) (each, an “ Advent Group Member ,” and collectively, the “ Advent Group ”) are in the business of making investments in, and have investments in, other Persons (“ Other Investments ”), including other businesses similar to, and that may compete with, the Company’s and the Subsidiaries’ businesses and, in connection with such Other Investments, may have interests in, participate with, aid, advise, and/or maintain seats on the board of directors (or comparable governing bodies) of, such Other Investments.

(b) In recognition that each Advent Group Member may have myriad duties to various investors and partners, and in anticipation that the Company and the Subsidiaries, on the one hand, and such Advent Group Member (whether through its Other Investments or otherwise), on the other hand, may engage in the same or similar activities or lines of business and have an interest in the same areas of corporate opportunities, and in recognition of the difficulties that may confront any Advent Group Member that desires and endeavors to satisfy fully the duties of such Advent Group Member, in determining the full scope of such duties in any particular situation, the provisions of this Section 4.8 are set forth to regulate, define and guide the conduct of certain affairs of the Company as they may involve any Advent Group Member.

(c) Each Advent Group Member shall have the right (whether through its Other Investments or otherwise), independent of such Advent Group Member’s investment in the Company or role as a Member or Director: (i) to engage or invest, directly or indirectly, in any business (including any business activities, relationships or lines of business that are the same as or similar to those pursued by, or competitive with, the Company and the Subsidiaries, including any competitor); (ii) to do business, directly or indirectly, with any customer or supplier of the Company and the Subsidiaries; (iii) to take any other action that such Advent Group Member believes in good faith is necessary to or appropriate to fulfill its obligations as described in Section 4.8(b) ; (iv) develop opportunities for such Advent Group Member or such Other Investments or encounter business opportunities that the Company and the Subsidiaries may desire to pursue; (v) not to present potential transactions, matters or business opportunities to the Company or any of the Subsidiaries; (vi) to pursue, directly or indirectly, any opportunity for itself; and (vii) to direct any opportunity to another Person, except in any case, to the extent any such action (x) would breach any other provision of this Agreement or (y) would, or would be reasonably likely to, result in (as determined by the Company’s outside legal counsel, provided such legal counsel is of national reputation and specializes in the legal matters involved in such determination) a violation of applicable Law or (z) would, or would be reasonably likely to, result in the imposition of material and adverse obligations, limitations or conditions on the Company and/or the Subsidiaries.

(d) Each Advent Group Member shall have no duty (contractual or otherwise) to communicate or present any corporate opportunities to the Company or any of its Affiliates and the Company (on behalf of itself and each of its Affiliates and Members) hereby renounces and waives any interest or expectancy of the Company, any Affiliate and any Member in, or in being offered an opportunity to participate in, any and all business opportunities that are made

 

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available to such Advent Group Member and any right to require such Advent Group Member to act in a manner inconsistent with the provisions of this Section 4.8 .

(e) No Advent Group Member shall be liable to the Company or any of its Affiliates or Members for breach of any duty (contractual or otherwise) by reason of any activities or omissions of the types referred to in this Section 4.8 or such Advent Group Member’s participation therein, except to the extent such actions or omissions are in breach of this Agreement.

(f) Subject to the non-compete set forth in Section 5.7(c) of the Master Investment Agreement and any agreement between FTB and/or any of its Affiliates and the Company and/or any Subsidiary (including such agreements entered into in connection with the Master Investment Agreement), each of FTB and its Affiliates (other than any Person that is an Affiliate of FTB solely by virtue of FTB’s relationship with the Company) (each, an “ FTB Group Member ”) shall have the right, independent of such FTB Group Member’s investment in the Company or role as a Member or Director: (i) to engage or invest, directly or indirectly, in any business (including any business activities, relationships or lines of business that are the same as or similar to those pursued by, or competitive with, the Company and the Subsidiaries, including any competitor); (ii) to do business, directly or indirectly, with any customer or supplier of the Company and the Subsidiaries; (iii) to take any other action that such FTB Group Member believes in good faith is necessary to or appropriate to fulfill its obligations and duties to its investors; (iv) to develop opportunities for such FTB Group Member or encounter business opportunities that the Company and the Subsidiaries may desire to pursue; (v) not to present potential transactions, matters or business opportunities to the Company or any of the Subsidiaries; (vi) to pursue, directly or indirectly, any opportunity for itself; and (vii) to direct any opportunity to another Person, except in any case, to the extent any such action (x) would breach any other provision of this Agreement or (y) would, or would be reasonably likely to, result in (as determined by the Company’s outside legal counsel, provided such legal counsel is of national reputation and specializes in the legal matters involved in such determination) a violation of applicable Law or (z) would, or would be reasonably likely to, result in the imposition of material and adverse obligations, limitations or conditions on the Company and the Subsidiaries.

(g) Subject to any agreement between FTB or any of its Affiliates and the Company and the Subsidiaries entered into in connection with the Master Investment Agreement, each FTB Group Member shall have no duty (contractual or otherwise) to communicate or present any corporate opportunities to the Company or any of its Affiliates and the Company (on behalf of itself and each of its Affiliates and Members) hereby renounces and waives any interest or expectancy of the Company, any Affiliate and any Member in, or in being offered an opportunity to participate in, any and all business opportunities that are made available to such FTB Group Member and any right to require such FTB Group Member to act in a manner inconsistent with the provisions of this Section 4.8 .

(h) No FTB Group Member shall be liable to the Company or any of its Affiliates or Members for breach of any duty (contractual or otherwise) by reason of any activities or omissions of the types referred to in this Section 4.8 or such FTB Group Member’s participation therein, except to the extent such actions or omissions are in breach of this

 

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Agreement or any agreement between FTB or any of its Affiliates and the Company and the Subsidiaries entered into in connection with the Master Investment Agreement.

ARTICLE V - CAPITAL CONTRIBUTIONS; ALLOCATIONS; DISTRIBUTIONS

SECTION 5.1 Capital Account Creation . There shall be established for each Member on the books of the Company a Capital Account, which shall be increased or decreased in the manner set forth in this Agreement. The Members Capital Accounts as of the Effective Date are as set forth on Schedule I .

SECTION 5.2 Capital Account Negative Balance . A Member shall not have any obligation to the Company or to any other Member to restore any negative balance in the Capital Account of such Member.

SECTION 5.3 Allocations of Net Income and Net Loss .

(a) Timing and Amount of Allocations of Net Income and Net Loss . The rules set forth below in this Sections 5.3(b) and 5.3(c) shall apply for the purpose of determining each Member’s allocable share of the items of income, gain, loss and expense of the Company comprising Net Income or Net Loss of the Company for each fiscal year (or as of the end of such other period or periods as circumstances otherwise require or allow), determining special allocations of other items of income, gain, loss and expense, and adjusting the balance of each Member’s Capital Account to reflect the aforementioned general and special allocations. For each fiscal year, the Regulatory Allocations in Section 5.3(c) shall be made immediately prior to the general allocations of Section 5.3(b) .

(b) General Allocations .

(i) Hypothetical Liquidation . The items of income, gain, loss and expense of the Company comprising Net Income or Net Loss for a fiscal year shall be allocated among the Persons who were Members during such fiscal year in a manner that will, as nearly as possible, cause the Capital Account balance of each Member at the end of such fiscal year to equal the excess (which may be negative) of:

(A) the amount of the hypothetical distribution (if any) that such Member would receive if, on the last day of the fiscal year, (x) all Company assets, including cash, were sold for cash in an amount equal to their Gross Asset Values, taking into account any adjustments thereto for such fiscal year, (y) all Company liabilities were satisfied in cash according to their terms (limited, with respect to each Nonrecourse Liability or Member Nonrecourse Debt in respect of such Member, to the Gross Asset Values of the assets securing such liability), and (z) the net proceeds thereof (after satisfaction of such liabilities) were distributed in full pursuant to Section 6.2(c)(ii) , over

(B) the sum of (x) the amount, if any, without duplication, that such Member would be obligated to contribute to the capital of the Company, (y) such Member’s share of Company Minimum Gain determined pursuant to Regulations Section 1.704-2(g) and (z) such Member’s share of Member

 

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Nonrecourse Debt Minimum Gain determined pursuant to Regulations Section 1.704 2(i)(5), all computed as of the hypothetical sale described in Section 5.3(b)(i)(A) above.

For purposes of the foregoing hypothetical sale described in Section 5.3(b)(i)(A) , all assets and liabilities of any entity that is wholly-owned by the Company and disregarded as an entity separate from the Company for federal income tax purposes shall be treated as assets and liabilities of the Company.

(ii) Loss Limitation . Notwithstanding anything to the contrary in this Section 5.3(b) , the amount of items of Company expense and loss allocated pursuant to this Section 5.3(b) to any Member shall not exceed the maximum amount of such items that can be so allocated without causing such Member to have an Adjusted Capital Account Deficit at the end of any fiscal year, unless each Member would have an Adjusted Capital Account Deficit. All such items in excess of the limitation set forth in this Section 5.3(b)(ii) shall be allocated first, to Members who would not have an Adjusted Capital Account Deficit, pro rata, in proportion to their Capital Account balances, adjusted as provided in clauses (i) and (ii) of the definition of Adjusted Capital Account Deficit, until no Member would be entitled to any further allocation, and thereafter, to all Members, pro rata, in proportion to their ownership of Units.

(c) Additional Allocation Provisions . (i) Notwithstanding Section 5.3(b) :

(A) In the event that there is a net decrease during a fiscal year in either Company Minimum Gain or Member Nonrecourse Debt Minimum Gain, then notwithstanding any other provision of this Article V , each Member shall receive such special allocations of items of Company income and gain as are required in order to conform to Regulations Section 1.704-2. It is intended that this Section 5.3(c)(i)(A) qualify and be construed as a “minimum gain chargeback” and a “chargeback of partner nonrecourse debt minimum gain” within the meaning of such Regulations, which shall be controlling in the event of a conflict between such Regulations and this Section 5.3(c)(i)(A) .

(B) If any Member unexpectedly receives an adjustment, allocation or distribution described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Company income and gain shall be allocated, in accordance with Regulations Section 1.704-1(b)(2)(ii)(d), to the Member in an amount and manner sufficient to eliminate, to the extent required by such Regulations, the Adjusted Capital Account Deficit of the Member as quickly as possible. It is intended that this Section 5.3(c)(i)(B) qualify and be construed as a “qualified income offset” within the meaning of Regulations 1.704-1(b)(2)(ii)(d), which shall be controlling in the event of a conflict between such Regulations and this Section 5.3(c)(i)(B) .

(C) In the event that a Member has an Adjusted Capital Account Deficit, such Member shall be specially allocated items of Company income and gain (consisting of a pro rata portion of each item of income and gain

 

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of the Company for such fiscal year in accordance with Regulations Section 1.704-1(b)(2)(ii) (d)) in the amount of such excess as quickly as possible; provided , however , that any allocation under this Section 5.3(c)(i)(C) shall be made only if and to the extent that a Member would have a deficit Capital Account balance in excess of such sum after all allocations provided for in this Article V have been tentatively made as if this Section 5.3(c)(i)(C) were not in this Agreement.

(D) Any Nonrecourse Deductions for any fiscal year shall be specially allocated to the Members pro rata in accordance with their Units. Any Member Nonrecourse Deductions for any fiscal year shall be specially allocated to the Member(s) that bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable, in accordance with Regulations Section 1.704-2(i).

(E) To the extent that an adjustment to the adjusted tax basis of any Company assets pursuant to Code Section 734(b) or Code Section 743(b) is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)( m )( 2 ) or Regulations Section 1.704-l(b)(2)(iv)( m )( 4 ), to be taken into account in determining Capital Accounts as the result of a distribution to a Member in complete liquidation of its Units, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis), and such gain or loss shall be specially allocated to the Members in accordance with their interests in the Company in the event that Regulations Section 1.704-l(b)(2)(iv)( m )( 2 ) applies, or to the Members to whom such distribution was made in the event that Regulations Section 1.704-1(b)(2)(iv)( m )( 4 ) applies.

(F) The allocations set forth in Sections 5.3(c)(i)(A) , (B) , (C) (D)  and (E)  (the “ Regulatory Allocations ”) are intended to comply with certain regulatory requirements, including the requirements of Regulations Sections 1.704-1(b) and 1.704-2. Notwithstanding the provisions of Section 5.3(b) , the Regulatory Allocations shall be taken into account in allocating other items of income, gain, loss and deduction among the Members so that, to the extent possible, the net amount of such allocations of other items and the Regulatory Allocations to each Member shall be equal to the net amount that would have been allocated to each such Member if the Regulatory Allocations had not occurred.

(G) If any Member (I) is required to make an indemnity payment to the Company pursuant to Article VII of the Master Investment Agreement or (II) pays any amount which gives rise to an item of in the nature of expense or loss of the Company, the loss giving rise to the indemnity payment or the item attributable to the payment shall be allocated to such Member.

(ii) For any fiscal year during which a Member’s interest in the Company is assigned by such Member, the portion of the Net Income and Net Loss of the

 

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Company that is allocable in respect of such Member’s interest shall be apportioned between the assignor and the assignee of such Member’s interest using any permissible method under Code Section 706 and the Regulations thereunder, as determined by the Board of Directors.

(d) Required Tax Allocations .

(i) Section 704(b) Allocations.

(A) Each item of income, gain, loss, or deduction for federal income tax purposes that corresponds to an item of income, gain, loss or expense that is either taken into account in computing Net Income or Net Loss or is specially allocated pursuant to Section 5.3(c) (a “ Book Item ”) shall be allocated among the Members in the same proportion as the corresponding Book Item is allocated among them pursuant to Section 5.3(b) or Section 5.3(c) of this Agreement; provided , however , that such tax allocations shall be made, and, for purposes of such tax allocation, all references to fiscal years shall be construed, in accordance with the requirements of Section 706 of the Code.

(B) (I) If the Company recognizes Depreciation Recapture (as defined below) in respect of the sale of any Company asset,

(a) the portion of the gain on such sale which is allocated to a Member pursuant to Section 5.3(b) or Section 5.3(c) shall be treated as consisting of a portion of the Company’s Depreciation Recapture on the sale and a portion of the Company’s remaining gain on such sale under principles consistent with Regulations Section 1.1245-1; and

(b) if, for federal income tax purposes, the Company recognizes both “unrecaptured Section 1250 gain” (as defined in Section 1(h) of the Code) and gain treated as ordinary income under Section 1250(a) of the Code in respect of such sale, the amount treated as Depreciation Recapture under Section 5.3(d)(i)(B)(I)(a) shall be comprised of a proportionate share of both such types of gain.

(II) For purposes of this Section 5.3(d)(i)(B)(II) Depreciation Recapture ” means the portion of any gain from the disposition of an asset of the Company which, for federal income tax purposes (a) is treated as ordinary income under Section 1245 of the Code; (b) is treated as ordinary income under Section 1250 of the Code; or (c) is “unrecaptured Section 1250 gain” as such term is defined in Section 1(h) of the Code.

(ii) Section 704(c) Allocations . In the event any property of the Company is credited to the Capital Account of a Member at a value other than its tax basis (whether as a result of a contribution of such property or a revaluation of such property pursuant to subparagraph (b)  of the definition of “ Gross Asset Value ”), then allocations of taxable income, gain, loss and deductions with respect to such property

 

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shall be made in accordance with the “traditional” allocation method described in Regulation § 1.704-3(b).

(iii) Tax Items Allocable to Particular Members . If the Company is required to recognize items of income, gain, deduction or loss for tax purposes that is attributable to a particular Member, such items shall be allocated to such Member.

(iv) Credits . All tax credits shall be allocated among the Members as determined by the Board of Directors in its sole and absolute discretion, consistent with applicable Law.

The tax allocations made pursuant to this Section 5.3(d) shall be solely for tax purposes and shall not affect any Member’s Capital Account or share of non-tax allocations or distributions under this Agreement.

(e) Withholding . Each Member hereby authorizes the Company to withhold and to pay over any taxes payable by the Company or any of its Affiliates as a result of the participation by such Member (or any Assignee of, or Successor in Interest to, such Member) in the Company. If and to the extent that the Company shall be required to withhold any taxes, such Member shall be deemed for all purposes of this Agreement to have received a distribution from the Company as of the time such withholding is required to be paid, including for purposes of Section 5.4(a) , Section 5.4(c) or Section 6.2 . To the extent that the aggregate of such deemed distributions to a Member for any period exceeds the distributions to which such Member is entitled for such period, the amount of such excess shall be considered a demand loan from the Company to such Member, with interest at an interest rate of 5% compounded annually, which interest shall be treated as an item of Company income until discharged by such Member by repayment. The Company may, in the sole discretion of the Board of Directors, elect to satisfy such demand loan out of distributions to which such Member would otherwise be subsequently entitled. The withholdings referred to in this Section 5.3(e) shall be made at the maximum applicable statutory rate under applicable tax Law unless the Board of Directors receives documentation, satisfactory to the Board of Directors, to the effect that a lower rate is applicable, or that no withholding is applicable.

(f) Other Tax Matters .

(i) In the event that the Code or any Regulations require allocations of items of income, gain, loss, deduction or credit different from those set forth in this Section 5.3 , the Board of Directors is hereby authorized to make new allocations in reliance on the Code and such Regulations, provided that if any such new allocation shall be proposed to be made in a manner that disproportionately adversely impacts any Member, such Member shall have the right to consent to such allocation (such consent not to be unreasonably withheld, conditioned or delayed). No such new allocation shall give rise to any claim or cause of action by any Member.

(ii) All decisions and other matters concerning the computation and allocation of items of income, gain, loss, deduction and credits among the Members, and accounting procedures not specifically and expressly provided for by the terms of this

 

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Agreement shall be determined by the Board of Directors in its sole and absolute discretion. Any determination made pursuant to this Section 5.3(f)(ii) by the Board of Directors shall be conclusive and binding on all Members.

(g) Allocation of Excess Nonrecourse Liabilities . For purposes of determining each Member’s share of excess nonrecourse liabilities, if any, of the Company in accordance with Regulations Section 1.752-3(a)(3), the Members’ interests in Company profits shall be in proportion to their Units.

SECTION 5.4 Distributions . Subject to any restrictions in any indebtedness of the Company or the Subsidiaries, the Board of Directors shall cause the Company to distribute to the Members, pro rata according to the number of Units held by such Member, cash distributions equal to the amount necessary to satisfy the “Quarterly Estimated Tax Liability with respect to the Company’s Income” (the “ Quarterly Distributions ”).

(a) Amount of Distribution . The “ Quarterly Estimated Tax Liability with respect to the Company’s Income ” shall mean the quarterly estimated tax liability calculated using the annualized income installment method of Code § 6655(e)(2)(A) (installment calculations based on income annualized on a 3/3/6/9/ method, with a true-up of annual estimated taxes by March 15th of the following year based on income from a full fiscal year, and with any excess distributions previously made to the Members to be applied against the next distribution owed under this Section 5.4(a) ) assuming that (i) the Company has a single Member, (ii) the items of income, gain, deduction, loss and credit (all as determined for federal income tax purposes and in accordance with Code Section 704(b), but without regard to any Code Section 704(c) gains or adjustments pursuant to any Code Section 754 election) in respect of the Company were the only such items entering into the computation of tax liability of such Member for the fiscal year in respect of which the Quarterly Distribution was made, and (iii) the taxable income of the Member determined in accordance with clause (ii)  was subject to tax at the highest marginal effective rate of federal, state and local income tax applicable to a corporation resident and doing all of its business in New York City, taking account of any difference in rates applicable to particular items of income, and any allowable deductions in respect of such state and local taxes in computing such Member’s liability for federal income taxes. No account shall be taken of any items of deduction or credit attributable to an interest in the Company that may be carried back or carried forward from any other taxable year. The amount of hypothetical tax liability determined under clause (iii)  in excess of Quarterly Distributions made previously with respect to such taxable year shall be distributed to the Members pro rata according to the number of Units held by each Member.

(b) Time for Making Quarterly Distributions . Quarterly Distributions shall be made on or before three (3) days before the end of the quarter to which the Quarterly Distribution relates (i.e., no later than April 12, June 12, September 12 and December 12), with an additional Distribution made if necessary, on or before March 1 each year to true-up estimated taxes based on the actual twelve (12) months of income for the preceding fiscal year.

(c) Other Distributions . The Board of Directors may cause the Company to make distributions other than the Quarterly Distributions at any time, in cash or in kind, as shall be determined by a Board Supermajority to the extent that such distributions are permissible

 

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under the Act, the Credit Facility, the Notes and/or any other indebtedness of the Company or the Subsidiaries (such distributions, together with the Quarterly Distributions, “ Distributions ”). All Distributions shall be made pro rata to each Member according to the number of Units held by each Member.

(d) Successors . For purposes of determining the amount of Distributions under this Section 5.4 , each Member shall be treated as having received amounts received by its predecessors in respect of any of such Member’s Units.

ARTICLE VI -

WITHDRAWAL; DISSOLUTION; TRANSFER OF MEMBERSHIP INTERESTS;

ADMISSION OF NEW MEMBERS

SECTION 6.1 Member Withdrawal . No Member shall have the power or right to withdraw, otherwise resign, or require the repayment of its Capital Contribution (if any) or the redemption of its Units, prior to the dissolution and winding up of the Company, except pursuant to a Transfer of Units permitted under this Agreement as provided in Section 6.3 or upon FTB’s failure to perform its obligations upon the exercise of the Put Right as provided in Section 6.3(f) , as applicable. Notwithstanding anything to the contrary contained in the Act, in no event shall any Member be deemed to have withdrawn from the Company or ceased to be a Member upon the occurrence of any event, unless such Member, after the occurrence of any such event, indicates in a written instrument that such Member has so withdrawn; provided that no such written instrument shall be required in the event that FTB fails to perform its payment obligations pursuant to Section 6.3(f) upon exercise by the Advent Blocker Stockholders of the Put Right (for the sake of clarity, no withdrawal shall be deemed to be effective if FTB in good faith is disputing the right of Advent Blocker or the Advent Blocker Stockholders, as applicable, to exercise the Put Right in accordance with Section 6.3(f) ).

SECTION 6.2 Dissolution .

(a) Events . The Company shall be dissolved and its affairs shall be wound up on the first to occur of the following:

(i) the written consent of the Members collectively holding seventy-five percent (75%) of the Units then held by all Members;

(ii) the termination of the legal existence or the membership in the Company of the last remaining Member (unless within ninety (90) days, (x) such Member’s personal representative or nominee agrees in writing to continue the Company and to be admitted as a Member, or (y) a Member is otherwise admitted in accordance with this Agreement, in each case, effective as of the occurrence of the event that terminated the continued membership of such Member);

(iii) any event that makes it unlawful for the entire or any material part of the business of the Company and its Subsidiaries to continue;

 

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(iv) the consent of the Members collectively holding a majority of the Units then held by all Members following a sale of all or more than ninety percent (90%) (by value) of the assets of the Company and the Subsidiaries or, to the extent the non-consenting Members are not materially and adversely affected, a sale of substantially all the assets of the Company and the Subsidiaries; and

(v) the entry of a decree of judicial dissolution of the Company under Section 18-802 of the Act.

Except as provided in this Agreement, the death, retirement, resignation, expulsion, incapacity, bankruptcy or dissolution of a Member, or the occurrence of any other event that terminates the continued membership of a Member in the Company, shall not cause a dissolution of the Company, and the Company shall continue in existence subject to the terms and conditions of this Agreement.

(b) Actions Upon Dissolution . When the Company is dissolved, the business and property of the Company and the Subsidiaries shall be wound up and liquidated by the Board of Directors or, in the event of the unavailability of the Board of Directors, such Member or other liquidating trustee as shall be named by the Board of Directors. In such event, the Board of Directors (or such Member or liquidating trustee, as applicable) shall have the full right and discretion to manage such process, including the power to prosecute and defend suits, collect debts, dispose of property, settle and close the business of the Company and the Subsidiaries, discharge the liabilities of the Company and the Subsidiaries, pay reasonable costs and expenses incurred in the winding up, distribute remaining assets to Members in accordance with this Agreement and execute and file a certificate of cancellation under the Act.

(c) Priority . Within one hundred twenty (120) calendar days after the effective date of dissolution of the Company, whether by expiration of its full term or otherwise, the assets of the Company shall be distributed in the following manner and order:

(i) first, to the satisfaction (whether by payment or the reasonable provision for payment) of the liabilities of the Company to creditors, in the order of priority established by the instruments creating or governing such obligations and to the extent otherwise permitted by Law, including to the establishment of reserves which the Board of Directors or other liquidating trustee as may be selected considers necessary for the reasonable provision for payment for (A) any known contingent, conditional or unmatured contractual claims against the Company, (B) any claim against the Company that is the subject of a pending action, suit or proceeding to which the Company is a party and (C) any claim that is not known to the Company or has not arising but that, based on the facts known to the Company, are likely to arise or to become known to the Company within ten (10) years after the date of dissolution, which reserves shall be held by the Board of Directors (or other liquidating trustee if applicable) for the purpose of disbursing such reserves in payment in respect of any of the aforementioned claims. At the expiration of such period as the Board of Directors (or other liquidating trustee, if applicable) shall deem advisable, any balance of any such reserves not required to discharge such liabilities or obligations shall be distributed as provided in Section 6.2(c)(ii) ; and

 

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(ii) second, to the Members pro rata according to the number of Units held by each Member as of the effective date of such dissolution.

(d) No Recourse . Each Member shall look solely to the assets of the Company for all distributions with respect to the Company and shall have no recourse therefor, upon dissolution or otherwise, against any Director or Member, except to the extent otherwise provided in the Act or in this Agreement. No Member shall have any right to demand or receive property other than cash upon dissolution of the Company; provided that, for the sake of clarity, the Board of Directors shall have the right to cause the Company to make distributions of property other than cash upon dissolution of the Company.

(e) Cancellation of Certificate . On completion of the distribution of the Company assets as provided in this Agreement, the Company shall file a certificate of cancellation with the Secretary of State of the State of Delaware and take such other actions as may be necessary to terminate the Company, and the Company shall at such time be terminated.

SECTION 6.3 Transfer by Members .

(a) Transfers Generally .

(i) No Member may Transfer any Units (or any part of its Membership Interest), except as provided in this Section 6.3 . No Member may Transfer any part of a Membership Interest that is not an Economic Interest other than pursuant to a Transfer of a Unit. No Member may Transfer any Units (or any part of its Membership Interest) before the earlier to occur of the third anniversary of the Effective Date and the consummation of the IPO without the prior written consent of the holders of a majority of each Class of Units, except in connection with a Change of Control approved by the Board of Directors or a Permitted Transfer; provided that for so long as FTB and its Affiliates collectively holds twenty percent (20%) or more of the Class B Units, FTB’s (and only FTB’s) prior written consent in respect of the Class B Units shall be required. Thereafter, any Member may Transfer any Units (or any part of its Membership Interest) so long as such Transfer is in compliance with this Section 6.3 .

(ii) Any Member who Transfers any Units in accordance with this Section 6.3 shall cease to be a Member with respect to such Units and shall no longer have any rights or privileges of a Member with respect to such Units; provided that no Member shall cease to be a Member upon the collateral assignment of, or the pledging or granting of a security interest in, its Units until the foreclosure of such pledge or security interest.

(iii) Any Person who acquires any Units in accordance with this Section 6.3 shall agree in writing to assume the responsibility of the transferring Member. In the event that such Person fails to do so entirely or fails to do so in a timely manner, such Person shall be deemed by its acceptance of the benefits of the acquisition of such Units to have agreed to be subject to, and bound by, all of the terms and conditions of this Agreement to which the predecessor in such Units was subject, and by which such predecessor was bound, and for all purposes shall be deemed to be a Member.

 

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(iv) No Transfer shall be given effect unless the transferee delivers to the Company the representations set forth in Exhibit D , and no Member may Transfer any of such Member’s Units (including any Economic Interest therein) unless (A) the Board of Directors determines, in its reasonable discretion, that such Transfer or attempted Transfer would not cause the Company to be treated as a “publicly traded partnership” within the meaning of Code Section 7704; it being understood that such determination shall be made promptly and in Good Faith or (B) the transferring Member delivers an opinion of counsel with a determination that such Transfer or attempted Transfer would not cause the Company to be treated as a “publicly traded partnership” within the meaning of Code Section 7704 (provided such legal counsel is of national reputation and specializes in such matters of determination);

(v) Notwithstanding any provision of this Agreement to the contrary, no Transfer of Units may be made except in compliance with all federal, state and other applicable Laws, including federal and state securities Laws.

(vi) Any attempted Transfer of Units by any Member not in accordance with this Section 6.3 shall be ineffective, null and void ab initio .

(b) Permitted Transfers . A Transfer of Units by a Member to any of the following Persons shall constitute a “ Permitted Transfer ” and shall not be subject to the Rights of First Offer or the Tag-Along Rights or give rise to Take Along Rights (except as otherwise provided below):

(i) (A) any Person who is a direct or indirect wholly-owned subsidiary of such Member, (B) any Person who owns, directly or indirectly, one hundred percent (100%) of the equity interests of such Member prior to such Transfer and (C) any Person that is directly or indirectly wholly owned by a Person who owns, directly or indirectly, one hundred percent (100%) of the equity interests of such Member prior to such Transfer (any such Person in clauses (A) , (B)  or (C) , a “ Permitted Affiliate ”), in each case, upon thirty (30) days’ prior written notice to the other Members; provided that, if at any time such transferee ceases to be a Permitted Affiliate of such Member, such transferee shall immediately (and, in any event, no later than three Business Days thereafter) Transfer its Units (in whole but not in part) to a Person that is a Permitted Affiliate of such Member or to such Member itself; except in any case, to the extent any such action (x) would breach any other provision of this Agreement or (y) would, or would be reasonably likely to, result in (as determined by the Company’s outside legal counsel, provided such legal counsel is of national reputation and specializes in the legal matters involved in such determination) a violation of applicable Law or (z) would, or would be reasonably likely to, result in the imposition of material and adverse obligations, limitations or conditions on the Company and/or the Subsidiaries, in which event, in any such case, a Transfer shall be deemed to have occurred with respect to the portion that cannot be Transferred, as to which Tag Along Rights shall then apply;

(ii) with respect to Advent Blocker, any Advent Blocker Stockholder, any Person that is a partner or member of any investment fund managed by Advent International Corporation and any Person controlling, controlled by, or under common

 

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control with, Advent Blocker (other than portfolio companies of Advent International Corporation) (each, an “ Advent Blocker Affiliate ”), except in any case, to the extent any such action (x) would breach any other provision of this Agreement or (y) would, or would be reasonably likely to, result in (as determined by the Company’s outside legal counsel, provided such legal counsel is of national reputation and specializes in the legal matters involved in such determination) a violation of applicable Law or (z) would, or would be reasonably likely to, result in the imposition of material and adverse obligations, limitations or conditions on the Company and/or the Subsidiaries; provided , however , that any such Transfers shall not be subject to the Rights of First Offer or the Tag-Along Rights (excluding Transfers to one of the Advent Blocker Stockholders on the Effective Date) only to the extent that such Transfers, when taken together with all previous Transfers under this Section 6.3(b)(ii) , do not in the aggregate exceed twenty-five percent (25%) of the number of Units held by Advent Blocker as of the Effective Date; and provided , further , that if at any time such transferee ceases to be an Advent Blocker Affiliate, such transferee shall immediately (and, in any event, no later than three Business Days thereafter) Transfer its Units (in whole but not in part) to a Person that is an Advent Blocker Affiliate or to Advent Blocker;

(iii) any Person, in the event that, as a result of any change in applicable Law or the scope of business activities in which the Company and the Subsidiaries are engaged, ownership by such Member of such Member’s Units is no longer legally permissible, as determined reasonably and in good faith by such Member’s legal counsel (provided such legal counsel is of national reputation and specializes in the legal matters involved in such determination); provided , however , (A) that to the extent such Member is given a time period during which to divest its Units, such Member shall use its reasonable best efforts to comply with the Rights of First Offer and the Members shall agree to shorter time periods for notice and response thereunder, as reasonably necessary, and (B) such Member uses its reasonable efforts to have the purchaser of its Units in a divestiture also purchase the Units of the other Members that would otherwise be entitled to participate in the Tag-Along Rights;

(iv) any Affiliate (other than a portfolio company of Advent International Corporation or any of its Affiliates) acquiring only an Economic Interest pursuant to a pledge, for so long as such transferee is an Affiliate;

(v) IPO Corp. pursuant to a transaction effected pursuant to Section 6.4 ; or

(vi) With respect to JPDN, (A) any trust, partnership, limited liability company or similar vehicle established and maintained solely for the benefit of (or the sole members or partners of which are) Charles Drucker, his spouse, descendants (whether adopted or natural), parents or siblings, or (B) Charles Drucker, his spouse, descendants, (whether adopted or natural), parents or siblings.

(c) Rights of First Offer .

 

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(i) If, at any time before the consummation of the IPO, any Member (a “ Transferring Member ”) desires to Transfer all or any part of its Units (the “ Offered Units ”), then such Transferring Member shall submit and deliver a written notice, which notice shall disclose the number of Offered Units proposed to be Transferred (the “ ROFO Notice ”), to all Members that hold five percent (5%) or more of the Units then held by all Members other than the Transferring Member and any of its Affiliates (the “ ROFO Offerees ”); it being understood that such Transferring Member shall include in the ROFO Notice the material terms of any offer that it has received or is contemplating with respect to the Offered Units.

(ii) Each ROFO Offeree shall have the right to provide to the Transferring Member, within twenty (20) days of the date of the ROFO Notice (the “ ROFO Offer Period ”), an irrevocable offer to acquire such ROFO Offeree’s Pro Rata Portion (but not less than all of its Pro Rata Portion) of the Offered Units and such additional Units as such ROFO Offeree may offer to purchase in the event that other ROFO Offerees do not make an irrevocable offer to acquire such other ROFO Offeree’s Pro Rata Portion of the Offered Units, upon the price, terms and conditions on which such ROFO Offeree is willing to purchase such Offered Units (each, a “ Proposed Offer ”); provided that, in the event the Transferring Member is Transferring the Units indirectly, the ROFO Offeree shall have the right to offer to purchase the Offered Units and not any equity interest in any other entity (other than Advent Blocker, which shall have the right to Transfer Advent Blocker Stock so long as Advent Blocker has no Specified Liabilities at the time of the closing of such transaction), and so long as in connection with such Transfer, the governance of Advent Blocker or the Company is restructured so that the ROFO Offeree has all such rights, taking into account its ownership interest in the Company, as it would have had, had it received the Offered Units directly in such Transfer).

(iii) If the Transferring Member, in its sole discretion, elects to accept any Proposed Offer, then the Transferring Member shall communicate in writing its irrevocable acceptance, conditional on Section 6.3(c)(iv) (a “ ROFO Acceptance ”), to the Company and the ROFO Offeree that submitted such Proposed Offer (the “ Participating ROFO Offeree ”), indicating the number of Units in excess of such ROFO Offeree’s Pro Roto Portion that is part of the ROFO Acceptance, which Acceptance shall be delivered within ten (10) days of the date of the ROFO Notice (the “ ROFO Acceptance Period ”).

(iv) Subject to the Tag-Along Rights, after termination of the ROFO Acceptance Period, the Transferring Member may, during a period of one hundred twenty (120) days following the ROFO Acceptance Period, Transfer the Offered Units, at and upon the price and other terms and conditions that are at least as favorable to the Transferring Member as those set forth in the Proposed Offer which the Transferring Member conditionally accepted or, if no Proposed Offers were accepted, the most favorable Proposed Offer that the Transferring Member rejected (such Transfer, a “ Permitted ROFO Transfer ”). In the event that the Transferring Member has not consummated a Permitted ROFO Transfer, or has not entered into a definitive agreement regarding a Permitted ROFO Transfer, within such one hundred twenty (120) day period, the Transferring Member shall not thereafter Transfer any Units (including such Offered

 

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Units), whether pursuant to a Proposed Offer or otherwise, without first providing a new ROFO Notice to the ROFO Offerees in the manner provided above, and such proposed Transfer shall again be subject to the requirements of this Section 6.3(c) .

(v) Notwithstanding anything to the contrary in this Agreement, this Section 6.3(c) shall not apply to a Permitted Transfer.

(d) Tag-Along Rights .

(i) Tag-Along Notice . Prior to the consummation of the IPO, if the Transferring Member proposes to Transfer to a third party or parties (including, for the sake of clarity, any Participating ROFO Offeree) (collectively, the “ Tag-Along Purchasers ”) by a transaction or a series of related transactions, Units representing ten percent (10%) or more of the Units then held by all Members, then such Transferring Member shall provide to all Members that hold five percent (5%) or more of the Units then held by all Members other than the Transferring Member and any of its Affiliates (each, a “ Tag-Along Offeree ”) a notice disclosing the identity of the Tag-Along Purchasers, the number of Units proposed to be Transferred (the “ Tag-Along Units ”), the total number of Units owned by the Transferring Member, the price and other terms and conditions of such proposed Transfer (a “ Tag-Along Notice ”) within the earlier of five (5) days following the execution of the agreement with respect to the proposed Transfer and fifteen (15) days prior to consummation of the proposed Transfer.

(ii) Each Tag-Along Offeree shall have the right to elect to exercise its tag-along rights pursuant to this Section 6.3(d) (the “ Tag-Along Rights ”) by providing written notice to such Transferring Member no later than ten (10) days after the date of the Tag-Along Notice.

(iii) If any Tag-Along Offeree exercises its Tag-Along Right (a “ Participating Tag-Along Offeree ”), such Tag-Along Offeree shall have the right to Transfer to the Tag-Along Purchasers, as a condition to such proposed Transfer by the Transferring Member, a Pro Rata Portion of such Tag-Along Offeree’s Units, upon the same price, terms and conditions as those of the proposed Transfer; provided that if such Transfer would be impermissible under applicable Law or adversely affect the Company’s and the Subsidiaries’ business in the Good Faith determination of the Board of Directors, then the Transferring Member shall allocate to the Transferring Member and the Participating Tag-Along Members their respective Pro Rata Portions of the maximum number of Units that would be permitted to be Transferred under applicable Law and would not adversely affect the Company’s and the Subsidiaries’ business in the Good Faith determination of the Board of Directors.

(iv) The Transferring Member and each Participating Tag-Along Offeree shall sell to the Tag-Along Purchasers all, or at the option of the Tag-Along Purchasers as provided in Section 6.3(d)(vi) , any part of the Units proposed to be sold by the Participating Tag-Along Offerees at not less than the price and upon other terms and conditions, if any, not more favorable to the Tag-Along Purchasers than those in the Tag-Along Notice.

 

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(v) If no Member elects to exercise its Tag-Along Rights, the Transferring Member may Transfer the Units to the Tag-Along Purchaser within ninety (90) days. Any remaining Units not sold within such ninety (90) day period shall again be subject to the requirements of this Section 6.3(d) .

(vi) The Transferring Member shall use all reasonable efforts to cause the Tag-Along Purchaser to agree to acquire all Units identified by the Participating Tag-Along Offerees upon the same terms and conditions as applicable to the Transferring Member, as provided in this Agreement. If the Tag-Along Purchaser is unwilling or unable to acquire all Units proposed to be included in such sale upon such terms, then the Transferring Member may elect either to: (i) cancel such proposed sale or (ii) allocate to the Transferring Member and the Participating Tag-Along Members their respective Pro Rata Portions of the maximum number of Units that the Tag-Along Purchaser is willing to purchase.

(vii) Notwithstanding anything to the contrary in this Agreement, this Section 6.3(d) shall not apply to a Permitted Transfer.

(e) Take Along Rights .

(i) If, at any time before the consummation of the IPO, any Member holding a majority of the Units then held by all Members (the “ Initiating Member ”) desires to effect a Transfer to a Person that is not a Permitted Affiliate of such Initiating Member (and, in the case of Advent Blocker, is not an Advent Group Member) constituting a Change of Control (the “ Take Along Sale ”), then the Initiating Member may elect to exercise its take along rights pursuant to this Section 6.3(e) (the “ Take Along Rights ”) by providing written notice to all Members other than the Initiating Member (each, a “ Take Along Member ,” and collectively, the “ Take Along Members ”). In order to exercise the Take Along Rights, the Initiating Member must give written notice to the Take Along Members disclosing the identity of the proposed transferee(s), the Person or Persons, if any, that control the proposed transferee(s), the number and classes of Units proposed to be Transferred and the terms and conditions, including price, of the proposed Transfer (the “ Take Along Notice ”) within the earlier of five (5) days following the execution of the agreement with respect to the proposed Transfer and ten (10) days prior to the proposed date upon which the contemplated Change of Control is to be effected.

(ii) If the Initiating Member exercises its Take Along Right, except to the extent contrary to applicable Law, each Take Along Member shall, consent and raise no objections to such Change of Control and shall take all actions reasonably necessary or desirable to consummate such Change of Control, including by (A) Transferring to the proposed transferee(s) its Pro Rata Portion of its Units, (B) delivering such Units at the closing, free and clear of all claims, liens and encumbrances, (C) if Member approval of the transaction is required, voting its Units in favor thereof, (D) approving, executing and delivering any and all documents, certificates and instruments, necessary to the Transfer of such Take Along Member’s Units pursuant to this Section 6.3(e) , (E) and, if required by the Initiating Member, make the same representations, warranties, covenants and

 

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indemnities and agreements as the Initiating Member made in connection with such Change of Control; provided that , (1) any indemnity is several and not joint and a Take Along Member’s indemnity exposure with respect to any representations subject to a cap on indemnity shall not exceed 25% of such Take Along Member’s pro rata share of the proceeds from the Take Along Sale; and (2) the Initiating Member shall consult with any Member owning more than 25% of the outstanding Units of the Company regarding the representations being given to the acquirer in a Take-Along Sale, (F) waive any and all dissenters’ rights, appraisal rights or similar rights in connection with the related transaction that such Member might otherwise have, and (G) permit any escrow of proceeds of any such Change of Control to be withheld on a pro rata basis among all Members participating in such Change of Control. Each Member hereby grants to each of the Directors, each acting singly, an irrevocable proxy, coupled with an interest, to vote all Units owned by such Member or over which such Member has voting control, and to take such other actions to the extent necessary to carry out the provisions of this Section 6.3(e) , in the event of any breach by such Member of its obligations under this Section 6.3(e) .

(iii) The Transfer of Units by the Take Along Members pursuant to this Section 6.3(e) shall be at the same price and on the same terms and conditions as the Initiating Member shall be Transferring its Units in such transaction or series of related transactions, except that the Take Along Members shall each bear their ratable share (based on the number of Units sold) of the liabilities and expenses incurred in connection with such Change of Control, but only to the extent that such liabilities and expenses are incurred for the benefit of the Initiating Member and all Take-Along Members and are not otherwise paid by the Company or by an entity acquiring the Company or its assets, and liabilities and expenses incurred by any Members on its own behalf, including indemnities, shall not be considered liabilities and expenses incurred in connection with such Change of Control; it being understood that the price per Unit shall take into account all benefits (other than the benefits derived pursuant to Section 6.3(e)(v) ) being obtained by Advent Blocker or any of its Affiliates or other Advent Group Member in connection with, or as a consequence of, such Change of Control.

(iv) The Take Along Right shall not apply to any Change of Control that would require Board Supermajority consent, unless such consent has been obtained. For the sake of clarity, the Right of First Offer and the Tag-Along Rights shall not apply with respect to any Transfer made in connection with the exercise of the Take Along Right, but the Right of First Offer shall apply in connection with any Transfer prior to any Member exercising its Take Along Right.

(v) In any Change of Control, the Advent Blocker Stockholders shall have the right to sell their indirect stake in the Company by selling the Advent Blocker Stock at the same price as the Units, without discount; provided that such right shall be exercisable only if Advent Blocker’s only assets are the Units and the rights under this Agreement and the Registration Rights Agreement and if Advent Blocker has no Specified Liabilities at the time such Change of Control is consummated.

 

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(vi) If upon the date ninety (90) days following the date of a particular Take Along Notice (subject to extension for an additional sixty (60) days in the event of an extended regulatory review), the Initiating Member has not consummated the Take Along Sale, then each of the Take Along Members shall be released from their obligations under such Take Along Notice, such Take Along Notice shall be null and void, and it shall be necessary for another Take Along Notice to be furnished, and the terms and provisions of this Section 6.3(e) to be complied with, in order to consummate a Take Along Sale pursuant to this Section 6.3(e) .

(f) Advent Blocker Put Rights .

(i) Put Rights . If a Put Event occurs at any time prior to the IPO, then within thirty (30) days of such Put Event, Advent Blocker (or the Advent Blocker Stockholders, at Advent’s Blocker’s sole option) will have the right, exercisable by written notice to FTB, to put, and FTB will have the obligation to purchase, all but not less than all of the Class A Units held by Advent Blocker (or, in the case of an exercise by the Advent Blocker Stockholders, Advent Blocker Stock) (the “ Put Units ”) within sixty (60) days thereafter (subject to extension for an additional sixty (60) days in the event of an extended regulatory review) at the greater of (A) (I) the number of Put Units, multiplied by (II) an amount per Class A Unit that reflects a twenty-five percent (25%) internal rate of return on Advent Blocker’s original per Unit purchase price for its Class A Units, measured as of immediately following the Put Event, taking into account the net present value of all Distributions with respect to the Put Units (other than the net present value of all Quarterly Distributions, computed as if such Quarterly Distributions took into account (with respect to Advent Blocker) Advent Blocker’s deductions and/or reduced gains attributable to Code Section 743 adjustments) made prior to the consummation of the Transfer pursuant to the Put Right and the timing of such Distributions, and (B) (x) (I) the number of Put Units, multiplied by (II) 1.5x of Advent Blocker’s original per Unit purchase price for its Class A Units (less any Distributions with respect to the Put Units, other than Quarterly Distributions, computed as if such Quarterly Distributions took into account (with respect to Advent Blocker) Advent Blocker’s deductions and/or reduced gains attributable to Code Section 743 adjustments, made prior to the consummation of the Transfer pursuant to the Put Right), plus (y) $30,000,000(the “ Put Right ”). Advent Blocker (or, in the case of an exercise of the Put Rights by the Advent Blocker Stockholders, the Advent Blocker Stockholders) shall be wholly responsible for any taxes associated with the exercise of the Put Right. In the event the Put Right is exercised by Advent Blocker (or the Advent Blocker Stockholders) but payment is not made by FTB within sixty (60) days following the date on which the Put Right is exercised (subject to extension for an additional sixty (60) days in the event of an extended regulatory review), then, in addition to all other remedies available to Advent Blocker (or the Advent Blocker Stockholders) at law or equity, all of FTB’s and FTPSP’s Class B Units shall be forfeited without the payment of any consideration therefor, and each of FTB and FTPSP shall automatically be withdrawn from the Company and shall cease to be a Member (without the requirement of any notice of any of the foregoing), unless, in any case, FTB in good faith is disputing the right of Advent Blocker (or the Advent Blocker Stockholders, as applicable) to exercise the Put Right, in which event no such forfeiture and withdrawal shall become effective if the dispute is settled in a manner such that Advent Blocker (or

 

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the Advent Blocker Stockholders, as applicable) did not have the right to exercise its Put Rights, and the forfeiture and withdrawal shall become effective if the dispute is settled in a manner such that Advent Blocker (or the Advent Blocker Stockholders, as applicable) did have the right to exercise its Put Rights.

(ii) The Put Right shall only be exercisable by the Advent Blocker Stockholders if Advent Blocker’s only assets are Units and the rights under this Agreement and the Registration Rights Agreement and if Advent Blocker has no Specified Liabilities at the time of the consummation of the Transfer pursuant to the Put Right.

SECTION 6.4 Transfers and Other Actions in Connection with Public Offering or Recapitalization . If the Board of Directors has approved the IPO and deems it necessary or advisable in connection with such IPO to (i) convert the Company to, or merge the Company into, a corporation, (ii) transfer the operating business of the Company and/or its Subsidiaries that alone or together represent all or substantially all of the Company’s consolidated business at that time to a corporation (the “ IPO Corp. ”), (iii) cause the outstanding equity securities of the Company and/or its Subsidiaries that alone or together represent all or substantially all of the Company’s consolidated business at that time to be transferred to the IPO Corp. or (iv) effect a transaction having a similar effect as any of clauses (i), (ii) or (iii), then in any such case, all Members shall take any and all reasonable actions requested by the Board of Directors (including causing the outstanding equity securities of the Company to be exchanged or contributed (through merger or otherwise) to such IPO Corp. and/or causing the Company to contribute the operating business to such IPO Corp.) as may be necessary or advisable to give effect to such transaction; provided , that immediately prior to such transaction, the IPO Corp. shall have no liabilities, debts, commitments or obligations of any kind whatsoever, whether fixed, contingent or absolute, matured or unmatured, liquidated or unliquidated, accrued or not accrued, asserted or not asserted, known or unknown, determined, determinable or otherwise, whenever or however arising (including, whether arising out of any contract or tort based on negligence or strict liability); provided , further , that none of the foregoing actions shall be taken if such resulting structure would adversely affect any Member, it being acknowledged and agreed that the following will not be considered to “adversely affect” a Member for purposes hereof: (x) any “adverse” tax effects inherent in using a corporate form as opposed to partnership form (for tax purposes), and (y) the fact that such exchange may not be on a Tax-Free Basis to a Member (provided, in such case, Advent Blocker takes the commercially reasonable efforts described below). In connection with the foregoing, at the request of any Member, reasonable efforts shall be made to allow such Member to convert its Company interests into an interest in IPO Corp. on a tax-free basis (excepting any tax attributable to any deemed distribution to the Seller pursuant to Section 752) (“ Tax-Free Basis ”), and if the IPO restructuring is not effected on a Tax-Free Basis with respect to any Member, then unless such actions will adversely affect the IPO price or terms, Advent Blocker shall use its commercially reasonable efforts to have IPO Corp. enter into a “tax receivable agreement” or otherwise compensate the Company or the Members for tax attributes or benefits provided to IPO Corp. (other than tax attributes or benefits attributable to any deemed distribution to FTB pursuant to Section 752) (e.g., tax benefits received by IPO Corp. upon the taxable exchange of Company interests by such Members for IPO Corp. shares), and any such agreements or compensation shall be issued to the Members who provided such tax attributes or benefits in accordance with the amount of tax attributes or benefits provided by each

 

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such Member. Upon the consummation of such transaction, the Members shall enter into a securityholders, registration rights or similar agreement with such IPO Corp. in form and substance determined in good faith by the Board of Directors to provide the Members the relative rights and restrictions set forth in this Agreement, to the extent not provided in the Registration Rights Agreement, as applicable. For the avoidance of doubt, the consummation of the transactions contemplated in this Section 6.4 will not constitute a Change of Control. The securities of IPO Corp. (or any other securities in connection with an IPO) received by each Member under this Section 6.4 or otherwise shall be of like kind and have a Fair Market Value at least equal to the Fair Market Value of the Units replaced thereby, calculated as if the Company were being liquidated in a hypothetical liquidation.

SECTION 6.5 Admission or Substitution of New Members .

(a) Admission . The Board of Directors shall have the right, subject to the provisions of Section 6.3 , to admit as a Substitute Member or an Additional Member, any Person who acquires Units from a Member or from the Company, respectively; it being understood that no approval of the Board of Directors shall be required to admit a Person as a Substitute Member if such Person acquires Units in compliance with all of the provisions of this Agreement. Concurrently with the admission of a Substitute Member or an Additional Member, the Board of Directors shall forthwith cause any necessary papers to be filed and recorded and notice to be given wherever and to the extent required showing the substitution of a transferee as a Substitute Member in place of the Transferring Member, or the admission of an Additional Member, all at the expense, including payment of any professional and filing fees incurred, of the Substitute Member or the Additional Member.

(b) Conditions . Subject to Section 6.3(a)(iii) , the admission of any Person as a Substitute Member or Additional Member shall be conditioned upon such Person’s written acceptance and adoption of all the terms and provisions of this Agreement, by execution and delivery of a counterpart signature page to this Agreement.

(c) Assignees . Any Assignee that does not become admitted as a Member shall have no rights (other than those rights pertaining solely to such Assignee’s Economic Interest), but all of the obligations (other than those pertaining to voting), of a Member under this Agreement.

ARTICLE VII -

REPORTS TO MEMBERS; TAX MATTERS

SECTION 7.1 Books of Account . Appropriate books of account shall be kept by the Company and the Subsidiaries, in accordance with the generally accepted accounting principles of the United States (“ GAAP ”), at the principal place of business of the Company, and each Member shall have access to all books, records and accounts of the Company and the Subsidiaries and the right to make copies thereof for any purpose reasonably related to the Member’s interest as a member of the Company, in each case, under such conditions and restrictions as the Board of Directors may reasonably prescribe.

 

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SECTION 7.2 Reports . All reference to Members in this Section 7.2 refer to only those Members holding at least one percent (1%) of the Units then held by all Members.

(a) Monthly Financial Reports . As promptly as practicable, but in no event later than thirty (30) days after the end of each month, the Board of Directors shall cause to be prepared and delivered to each Member unaudited monthly consolidated financial statements of the Company and the Subsidiaries for the immediately preceding month.

(b) Quarterly Financial Reports . As promptly as practicable, but in no event later than forty-five (45) days after the end of the first three (3) fiscal quarters and sixty (60) days after the end of the fourth fiscal quarter, as the case may be, of each fiscal year, the Board of Directors shall cause to be prepared and delivered to each Member unaudited quarterly consolidated financial statements of the Company and the Subsidiaries for the immediately preceding quarter, prepared in accordance with GAAP (provided, however, that for the first year following the Effective Date, such statements will not be required to be prepared in accordance with GAAP).

(c) Quarterly Tax Reports . As promptly as possible, but in no event later than three (3) days prior to the estimated tax due date of each fiscal quarter (i.e. no later than April 12, June 12, September 12 and December 12) the Board of Directors shall cause to be prepared and delivered to each Member a statement of the Quarterly Estimated Tax Liability with respect to the Company’s Income calculated pursuant to Section 5.4(a) .

(d) Annual Financial Reports . As promptly as practicable after the close of each fiscal year of the Company, but in no event later than ninety (90) days after the end of each fiscal year, the Board of Directors shall cause an examination of the financial statements of the Company and the Subsidiaries as of the end of each such fiscal year to be made in accordance with GAAP, as in effect on the date thereof, by a firm of certified public accountants selected by the Board of Directors in accordance with Sections 7.4 and 4.1(h)(iv) . Within ninety (90) days after the close of each fiscal year, a copy of the financial statements of the Company and the Subsidiaries, including the report of such certified public accountants, shall be furnished to each Member and shall include, as of the end of such fiscal year:

(i) a statement prepared by the Company setting forth the balance of each Member’s Capital Account and the amount of that Member’s allocable share of the Company’s items of Net Income or Net Loss and deduction, capital gain and loss or credit for such year; and

(ii) a balance sheet, a statement of income and expense and a statement of changes in cash flows of the Company and the Subsidiaries for that fiscal year.

(e) Schedules K-1 . Within sixty (60) days after the close of each taxable year, the Board of Directors shall cause to be provided to each Member an estimate of taxable income for such taxable year. Within one hundred twenty (120) days after the close of each taxable year, the Board of Directors shall cause to be provided any completed IRS Schedule K-1 and such other financial, tax or other information as reasonably requested by a Member at such times as may be required to comply with any applicable public disclosure, external financial reporting,

 

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federal, state or local tax filings or any other legal requirements to which such Member is subject.

(f) Members’ Tax Filings . To the extent permitted by the Code, each Member agrees to file all tax returns consistently with the treatment of the Company as a partnership with respect to the determination of the taxable income of the Company.

(g) Determinations . All determinations, valuations and other matters of judgment required to be made for non-tax accounting purposes under this Agreement shall be made in Good Faith by the Board of Directors.

SECTION 7.3 Fiscal Year . The fiscal year of the Company shall end on December 31 of each calendar year unless otherwise determined by the Board of Directors in accordance with Section 706 of the Code.

SECTION 7.4 Independent Auditor . Subject to Section 4.1(h)(iv) , the initial independent auditor of the Company shall be Deloitte & Touche LLP.

SECTION 7.5 Certain Tax Matters .

(a) Certain Tax Elections .

(1) Partnership Treatment . The Company shall not file any election pursuant to Regulations Section 301.7701-3(c) to be treated as an entity other than a partnership. The Company shall not elect, pursuant to Section 761(a) of the Code, to be excluded from the provisions of subchapter K of the Code. If requested by the Board of Directors, each Member agrees to provide the Company with such assistance as would be required (including signing any election forms) to cause any new direct or indirect Subsidiaries acquired by the Company or any Subsidiary or organized by the Company or any Subsidiary to elect to be treated as a partnership or disregarded entity for U.S. federal tax purposes, such election to be effective on or before the date such new Subsidiary is acquired or organized.

(2) Elections by the Company . Except as provided in Section 7.5(a)(1) , relating to the tax classification of the Company, and Section 7.5(a)(5) relating to Section 754 elections, the Board of Directors may make, but shall not be obligated to make, any tax election provided under the Code, or any provision of state, local or foreign tax Law. All decisions and other matters concerning the computation and allocation of items of income, gain, loss, deduction and credit among the Members, and accounting procedures not specifically and expressly provided for by the terms of this Agreement, shall be determined by the Board of Directors. Any determination made pursuant to this Section 7.5(a)(2) by the Board of Directors shall be conclusive and binding on all Members.

(3) Elections by Members . Without the consent of the Board of Directors, no Member shall make the election provided by Section 732(d) of the Code, relating to the basis of property distributed by a Company to certain Members. In the event any Member makes any tax election that requires the Company to furnish

 

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information to such Member to enable such Member to compute its own tax liability, or requires the Company to file any tax return or report with any tax authority, or adjust the basis of Company property, in any case that would not be required in the absence of such election made by such Member, the Board of Directors may, as a condition to furnishing such information, or filing such return or report, or making such basis adjustment, require such member to pay to the Company any incremental expenses incurred in connection therewith.

(4) Member Obligations . Promptly upon request, each Member shall provide the Board of Directors with any information related to such Member necessary to allow the Company to comply with any tax reporting, tax withholding or tax payment obligations of the Company.

(5) Section 754 Elections . Advent Blocker shall have the right and authority, in its sole discretion, to cause the Company to make a Section 754 election for any taxable year or years of the Company in which, or commencing immediately after the date, the Closing occurs. If Advent Blocker causes the Company to elect under Section 754 of the Code to adjust the basis of Company property under Section 734(b) and Section 743(b) of the Code, then:

(I) the Board of Directors shall make such adjustments to the definition of Gross Asset Value and Net Income and Net Loss, and to the Regulatory Allocations required by Section 5.3(c) as are necessary to carry out the provisions of Regulations Section 1.704-1(b)(2)(iv)(m)(2) and 1.704-1(b)(2)(iv)(m)(4); and

(II) a Member who acquires any Units shall furnish to the Board of Directors such information as the Board of Directors shall reasonably require to enable it to compute the adjustments required by Section 755 of the Code and the Regulations thereunder.

(b) Preparation of Returns . The Board of Directors shall cause to be prepared all federal, state and local tax returns of the Company for each year for which such returns are required to be filed and shall cause such returns to be timely filed. Except to the extent otherwise expressly provided in this Agreement, the Board of Directors shall determine the appropriate treatment of each item of income, gain, loss, deduction and credit of the Company and the accounting methods and conventions under the tax Laws of the United States, the several states and other relevant jurisdictions as to the treatment of any such item or any other method or procedure related to the preparation of such tax returns.

(c) Tax Matters Member .

(1) Designation and Powers . Advent Blocker is hereby designated as the tax matters partner within the meaning of Section 6231(a)(7) of the Code (“ Tax Matters Member ”) until such time as Advent Blocker or its Affiliates are no longer the sole Class A Member, after which time the Members shall determine the Tax Matters Member pursuant to the voting provisions in Section 4.2 . The Tax Matters Member shall

 

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have all of the rights, authority and power, and shall be subject to all of the obligations, of a tax matters partner to the extent provided in the Code and the Regulations. The Tax Matters Member shall take such action as may be reasonably necessary to cause each other eligible Member to become a “notice partner” within the meaning of Code Section 6231(a)(8). To the extent and in the manner provided by applicable Code sections and Regulations thereunder, the Tax Matters Member (i) shall furnish the name, address, profits interest and taxpayer identification number of each Member to the IRS and (ii) shall keep the Members informed of all administrative and judicial proceedings for the adjustment of Company items required to be taken into account by a Member for income tax purposes. Notwithstanding anything in this Agreement to the contrary, the Tax Matters Member, in its capacity as such, shall not, without the prior approval of the Members holding a majority of the Class B Units ( provided that for so long as FTB and its Affiliates collectively hold twenty percent (20%) or more of the Class B Units, FTB’s (and only FTB’s) prior approval is required), such approval not to be unreasonably withheld, conditioned or delayed, (i) extend the statute of limitations for the assessment of any Tax, (ii) file a petition for judicial review of a “final partnership administrative adjustment” within the meaning of Section 6226(a) of the Code, (iii) file a tax claim, on behalf of the Company, in any court, (iv) submit any request for administrative adjustment on behalf of the Company, or (v) bind the Members to any tax settlement. The Tax Matters Member shall notify the other Members within twenty (20) Business Days after it receives notice from the IRS (or any state and local tax authority), of any administrative proceeding with respect to an examination of, or proposed adjustment to, any Company tax items.

(2) State and Local Tax Law . If any state or local tax Law provides for a tax matters partner or person having similar rights, powers, authority or obligations, the Tax Matters Member shall also serve in such capacity. In all other cases, the Tax Matters Member shall represent the Company in all tax matters to the extent allowed by Law.

(3) Expenses of the Tax Matters Member . All reasonable out-of-pocket expenses incurred by the Tax Matters Member in its capacity as such shall be borne by the Company as an ordinary expense of its business. Such expenses shall include fees of attorneys and other tax professionals, accountants, appraisers and experts, filing fees and reasonable out-of-pocket costs.

(4) Inconsistent Return Positions . No Member shall file a notice with the IRS under Section 6222(b) of the Code in connection with such Member’s intention to treat an item on such Member’s federal income tax return in a manner that is inconsistent with the treatment of such item on the Company’s federal income tax return, unless such Member has, not less than thirty (30) days prior to the filing of such notice, provided the Board of Directors with a copy of the notice and thereafter in a timely manner provides such other information related thereto as the Board of Directors shall reasonably request.

(5) Election into TEFRA . In the event that the Company is not subject to the consolidated audit rules of Sections 6221 through 6234 of the Code during any

 

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fiscal year, each Person who was a Member at any time during such fiscal year hereby agrees to sign an election pursuant to Section 6231(a)(1)(B)(ii) of the Code and Regulations Section 301.6231(a)(1) 1(b)(2) to be filed with the Company’s federal income tax return for such fiscal year to have such consolidated audit rules apply to the Company.

ARTICLE VIII -

MISCELLANEOUS

SECTION 8.1 Exhibits . Without in any way limiting the provisions of Section 7.2 , a Director may from time to time execute on behalf of the Company and deliver to the Members exhibits which set forth the then-current Capital Account balances of each Member and any other matters deemed appropriate by the Board of Directors or required by applicable Law. Such exhibits shall be for information purposes only and shall not be deemed to be part of this Agreement for any purpose whatsoever.

SECTION 8.2 Governing Law; Severability; Selection of Forum; Waiver of Trial by Jury . THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, EXCLUDING ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION. In the event of a direct conflict between the provisions of this Agreement and any provision of the Certificate, this Agreement shall control; in the event of a direct conflict between the provisions of this Agreement and any mandatory provision of the Act, the applicable provision of the Act shall control. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any Person or circumstance, is invalid or unenforceable to any extent, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, and such invalidity or unenforceability shall not affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction. Each party agrees that it shall bring any action, suit, demand or proceeding (including counterclaims) in respect of any claim arising out of or related to this Agreement or the transactions contemplated hereby, exclusively in the United States District Court for the District of Delaware or any Delaware State court, in each case, sitting in the City of Wilmington, Delaware (the “ Chosen Courts ”), and solely in connection with claims arising under this Agreement or the transactions contemplated hereby (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such action, suit, demand or proceeding in the Chosen Courts, (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any Party and (iv) agrees that service of process upon such party in any such action, suit, demand or proceeding shall be effective if notice is given in accordance with Section 8.6 . Each party irrevocably waives any and all right to trial by jury in any action, suit, demand or proceeding (including counterclaims) arising out of or related to this Agreement or the transactions contemplated hereby.

 

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SECTION 8.3 Successors and Assigns; No Third-Person Beneficiaries . This Agreement is binding upon the parties to this Agreement and their respective permitted successors and assigns. This Agreement shall not be construed so as to confer any right or benefit upon any Person other than the parties to this Agreement and each of their respective permitted successors and assigns and other than (i) the Covered Persons with respect to Section 4.7 and (ii) the Advent Blocker Stockholders with respect to Section 6.3(e)(v) (Transfer of Advent Blocker Stock in a Change of Control) and Section 6.3(f) (Put Rights), in each case with the right to enforce the Company’s obligations thereunder directly against the Company and, only in the case of Section 6.3(e)(v) and Section 6.3(f) , against a Member to the full extent of such obligations.

SECTION 8.4 Confidentiality . The Company shall use reasonable best efforts to preserve the confidentiality of the confidential information of the Company and the Subsidiaries. By executing this Agreement, for the period during which a Member is a party to this Agreement and for three (3) years thereafter, each Member expressly agrees to maintain the confidentiality of, and not to disclose to any Person other than the Company or any Subsidiary, another Member or any of their respective financial advisors, accountants, attorneys or other advisors, without the consent of a majority of the Board of Directors but subject to the first sentence of this Section 8.4 , any information relating to the business, financial structure, financial position or financial results, customers, suppliers or affairs of the Company and the Subsidiaries that shall not be generally known to the public, except (i) as otherwise required by Law or by any Government Entity or Self-Regulatory Organization having jurisdiction over such Members; provided that the disclosing Member will exercise reasonable best efforts to minimize disclosure of such information that is confidential or proprietary and to seek confidential treatment for any such information to the maximum extent permissible, or (ii) the delivery by a Member of financial statements of the Company and the Subsidiaries to its direct or indirect partners, stockholders or members, provided that such parties are bound by appropriate confidentiality provisions, including in their ability to use such information. This provision shall survive any termination of this Agreement either generally or in regard to any Member. Each Member agrees that monetary damages may not be an adequate remedy for a breach of this Section 8.4 , and that, in addition to any other remedies, each Member shall be entitled to seek injunctive relief to restrain any such breach, whether threatened or actual, without the necessity of proving the inadequacy of monetary damages as a remedy.

SECTION 8.5 Amendments . Except as otherwise provided in this Agreement, no amendment of any provision of this Agreement shall be effective against the Company or the Members unless such amendment is approved in accordance with Section 4.2(e) . This Agreement and any provision hereof may only be waived by a writing signed by the party against whom the waiver is to be effective. The failure of any party to enforce any of the provisions of this Agreement shall in no way be construed as a waiver of such provisions and shall not affect the right of such party thereafter to enforce each and every provision of this Agreement in accordance with its terms.

SECTION 8.6 Notices . Whenever notice is required or permitted by this Agreement to be given, such notice shall be in writing and shall be given to any Member at its address, telecopy number or email address shown in the Company’s books and records, or, if given to the Company, at the addresses listed on Schedule I or such other address as may be designated from time to time. Each proper notice shall be effective upon any of the following: (i) personal

 

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delivery to the recipient, (ii) when telecopied or emailed to the recipient if the telecopy is promptly confirmed by automated or telephone confirmation thereof or if the email is promptly confirmed by email or telephone confirmation thereof, or (iii) one (1) Business Day after being sent to the recipient by reputable overnight courier service (charges prepaid).

SECTION 8.7 Counterparts . This Agreement may be executed in any number of counterparts (including by means of telecopied signature pages), each of which shall be deemed an original, and all of which together shall constitute one and the same agreement.

SECTION 8.8 Power of Attorney . Each Member hereby irrevocably appoints each Director as such Member’s true and lawful representative and attorney-in-fact, each acting alone, in such Member’s name, place and stead, (i) to make, execute, sign and file all instruments, documents and certificates which, from time to time, may be required to set forth any otherwise approved amendments to this Agreement or which may be required by this Agreement or by the Laws of the United States of America, the State of Delaware or any other state in which the Company and/or the Subsidiaries shall determine to do business, or any political subdivision or agency thereof and (ii) to execute, implement and continue the valid and subsisting existence of the Company and/or the Subsidiaries or to qualify and continue the Company and/or the Subsidiaries as a foreign limited liability company in all jurisdictions in which the Company may conduct business. The CEO, as representative and attorney-in-fact, however, shall not have any rights, powers or authority to amend this Agreement when acting in such capacity, except as expressly provided in this Agreement. Such power of attorney is coupled with an interest and shall survive and continue in full force and effect notwithstanding the subsequent withdrawal from the Company of any Member for any reason and shall survive and shall not be affected by the disability or incapacity of such Member.

SECTION 8.9 Entire Agreement . This Agreement, including the Exhibits and Schedules to this Agreement, embodies the entire agreement and understanding of the parties hereto in respect of the subject matter contained in this Agreement. This Agreement and the Warrant and the Registration Rights Agreement supersede all prior agreements and understandings between the parties with respect to the subject matter hereof and thereof.

[T HE REMAINDER OF THIS PAGE LEFT BLANK INTENTIONALLY – S IGNATURE PAGES FOLLOW ]

 

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IN WITNESS WHEREOF, the parties have executed this Amended and Restated Limited Liability Company Agreement as of the day and year first above written.

 

THE COMPANY :
FTPS HOLDING, LLC
(formerly known as Fifth Third Processing Solutions, LLC)
By:   / S / C HARLES D. D RUCKER
Name: Charles D. Drucker
Title: President

S IGNATURE P AGE TO THE

A MENDED AND R ESTATED L IMITED L IABILITY C OMPANY A GREEMENT OF FTPS H OLDING , LLC


THE MEMBERS :
ADVENT-KONG BLOCKER CORP.
By:   / S / C HRISTOPHER P IKE
Name: Christopher Pike
Title: Authorized Signatory

S IGNATURE P AGE TO THE

A MENDED AND R ESTATED L IMITED L IABILITY C OMPANY A GREEMENT OF FTPS H OLDING , LLC


FIFTH THIRD BANK
By:   / S / R OSS J. K ARI
Name: Ross J. Kari
Title: Executive Vice President
By:   / S / P AUL L. R EYNOLDS
Name: Paul L. Reynolds
Title: Executive Vice President
FTPS PARTNERS, LLC
By:   / S / P AUL L. R EYNOLDS
Name: Paul L. Reynolds
Title: Manager

S IGNATURE P AGE TO THE

A MENDED AND R ESTATED L IMITED L IABILITY C OMPANY A GREEMENT OF FTPS H OLDING , LLC


JPDN ENTERPRISES, LLC
By:   / S / C HARLES D. D RUCKER
Name: Charles D. Drucker
Title: Manager

S IGNATURE P AGE TO THE

A MENDED AND R ESTATED L IMITED L IABILITY C OMPANY A GREEMENT OF FTPS H OLDING , LLC


S CHEDULE  I

Members

 

Members

  

Notice Address

   No. of
Class A Units Held
   No. of
Class B Units Held
   No. of
Units Held
   Initial Capital
Accounts

Advent-Kong Blocker Corp.

   75 State Street Boston, MA 02109    50,930,455    0    50,930,455   

Fifth Third Bank

   38 Fountain Square Plaza, Cincinnati, OH 45263    0    44,515,182    44,515,182   

FTPS Partners, LLC

   38 Fountain Square Plaza, Cincinnati, OH 45263    0    4,418,000    4,418,000   

JPDN Enterprises, LLC

   4626 151 St. Urbandale, Iowa 50323    69,545    66,818    136,363   

Total

   N/A    51,000,000    49,000,000    100,000,000   

Exhibit 10.3

A MENDMENT AND R ESTATEMENT A GREEMENT AND R EAFFIRMATION

This Amendment and Restatement Agreement and Reaffirmation (herein, this “Agreement” ) is entered into as of June 30, 2009, among Fifth Third Processing Solutions, LLC, a Delaware limited liability company ( “FTPS LLC” ), as Borrower (in such capacity, the “Borrower” ), FTPS Holding, LLC, a Delaware limited liability company ( “Holdco” ), Card Management Company, LLC, an Indiana limited liability company ( “CMC” ), Fifth Third Holdings, LLC, a Delaware limited liability company ( “Fifth Third Holdings” ), as a Lender, and Fifth Third Bank, a Michigan banking corporation ( “Fifth Third Michigan” ), in its individual capacity as a Lender (together, Fifth Third Holdings and Fifth Third Michigan are the “Lenders” ), as L/C Issuer (the “L/C Issuer” ) and as the Administrative Agent for the Lenders (the “Administrative Agent” ).

P RELIMINARY S TATEMENTS

A. The Borrower, the Lenders and the Administrative Agent are party to a Loan Agreement dated as of May 29, 2009, and among Fifth Third Ohio, as the Assignor, FTPS LLC, as the Assignee, Fifth Third Holdings, as a Lender, Fifth Third Michigan, as a Lender and as Administrative Agent, as amended and restated by that Assignment, Assumption, Amendment and Restatement Agreement dated as of June 1, 2009 (the “Existing Loan Agreement” ). As security for its Obligations under the Existing Loan Agreement, the Borrower granted to the Administrative Agent a security interest in and lien on all of its personal property and fixtures pursuant to the terms and conditions set forth in an Amended and Restated Security Agreement dated as of June 1, 2009 (the “Security Agreement” ). All capitalized terms used herein without definition shall have the same meanings herein as such terms have in the Existing Loan Agreement.

B. Pursuant to the terms of a Master Investment Agreement dated March 27, 2009 among Fifth Third Bank, an Ohio banking corporation ( “Fifth Third Ohio” ), as seller (the “Seller” ), Advent-Kong Blocker Corp., a Delaware corporation, as buyer (the “Buyer” ), Holdco and FTPS LLC (the “MIA” ), (i) Fifth Third Ohio has contributed to Holdco, among other things, all of Fifth Third Ohio’s equity interests in FTPS LLC, (ii) Fifth Third Ohio’s wholly owned subsidiary, FTPS Partners, LLC, a Delaware limited liability company ( “Partners” ), has contributed to Holdco, among other things, all of Partners’ equity interests in CMC and (iii), immediately after such contribution to Holdco, Holdco has contributed to FTPS LLC, among other things, all of Holdco’s equity interest in CMC, in each case on the terms and conditions set forth in the MIA (collectively the events described in the foregoing clauses (i), (ii) and (ii) are referred to as the “Contribution” ).

C. Immediately after the effectiveness of the Contribution, Holdco, the direct parent company of the Borrower, and CMC, a direct subsidiary of the Borrower, each executed and delivered (i) a Guaranty Agreement dated June 1, 2009 in favor of the Administrative Agent whereby each guaranteed the Obligations, Hedging Liability and Funds Transfer Liability, Deposit Account Liability and Data Processing Obligations of the Borrower under the Existing Loan Agreement and (ii) an Assumption and Supplemental Security Agreement whereby each joined the Security Agreement and granted to the Administrative Agent a security interest in and


lien on all of its personal property and fixtures pursuant to the terms and conditions set forth in the Security Agreement.

D. Pursuant further to the MIA, the Buyer has agreed to purchase all of the issued and outstanding Class A Units of Holdco in exchange for the Cash Purchase Price (as defined in the MIA) (the “Investment” ).

E. In connection with the Investment and simultaneously therewith, the Borrower, the Administrative Agent and the Lenders desire to amend and restate the Existing Loan Agreement and the Administrative Agent and the Lenders are willing to amend and restate the Existing Loan Agreement on the terms and conditions set forth herein, including, without limitation, that Holdco, the Borrower and CMC each ratify and reaffirm its payment and performance obligations under each of the existing Loan Documents to which it is a party listed on Exhibit A attached hereto (the “Existing Loan Documents” ).

N OW , T HEREFORE , for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

S ECTION  1. A MENDED AND R ESTATED L OAN A GREEMENT .

On the Effective Date, the Existing Loan Agreement shall be amended and restated so that it shall be read and construed for all purposes as set out in Exhibit B attached hereto (such amended and restated loan agreement being referred to herein as the “Amended and Restated Loan Agreement” ). The Amended and Restated Loan Agreement, by way of this Agreement, amends and restates the Existing Loan Agreement and is not intended to be or operate as a novation or an accord and satisfaction of the Existing Loan Agreement or the Obligations of the Borrower evidenced or provided for thereunder. The “Effective Date” shall be that date on which each of the conditions precedent set forth in Section 3 of this Agreement is satisfied.

S ECTION  2. R EAFFIRMATION AND M ODIFICATION OF L OAN D OCUMENTS .

2.1. In connection with the amendment and restatement of the Existing Loan Agreement pursuant to Section 1 of this Agreement, as of the Effective Date, the Borrower, as borrower and as debtor, grantor, pledgor or in any other similar capacity in which the Borrower granted liens or security interests in its properties under the Existing Loan Documents and Holdco and CMC, each as a guarantor, a debtor, grantor, pledgor or in any other similar capacity in which it granted liens or security interest in its properties under the Existing Loan Documents each (a) ratifies and reaffirms each of the Existing Loan Documents to which it is a party and all of its payment and performance obligations, contingent or otherwise, under each of the Existing Loan Documents to which it is a party, (b) confirms that each Existing Loan Document to which it is a party remains in full force and effect and (c) to the extent it or its predecessors in interest granted liens on or security interests in any properties pursuant to any such Existing Loan Documents, ratifies and reaffirms such grant of security and confirms that such liens and security interests continue to secure the Obligations under and as defined in the Amended and Restated Loan Agreement. Holdco, the Borrower and CMC each acknowledges that the Administrative Agent and the

 

-2-


Lenders are relying on the assurances provided herein in entering into the Amended and Restated Loan Agreement.

2.2. Holdco, the Borrower and CMC each further agrees that all references to the Existing Loan Agreement in each of the Existing Loan Documents shall hereinafter mean and refer to the Existing Loan Agreement as amended and restated by the Amended and Restated Loan Agreement.

S ECTION  3. C ONDITIONS P RECEDENT .

This Agreement shall become effective upon such date that all of the following conditions precedent are satisfied:

3.1. The Borrower, Holdco, CMC, the Lenders, the L/C Issuer and the Administrative Agent shall have executed and delivered this Agreement.

3.2. The Borrower shall have executed and delivered Term A Notes to Fifth Third Holdings and Fifth Third Michigan in the amount of their respective Term A Loans on the date hereof.

3.3. Each condition precedent expressed in Section 3.2 of the Amended and Restated Loan Agreement shall have been satisfied by the Borrower or waived by the Initial Lenders.

3.4. Each of the events described in Section 2.3 of the MIA shall have occurred, including, that the “Sale Transaction” (as defined therein) shall have been consummated and Buyer shall have paid to Seller the “Cash Purchase Price” (as defined therein) to Seller.

S ECTION  4. M ISCELLANEOUS .

4.1. In order to induce the Administrative Agent and the Lenders to execute and deliver this Agreement, the Borrower hereby represents to the Administrative Agent and the Lenders that as of the date hereof the representations and warranties set forth in Section 5 of the Amended and Restated Loan Agreement are true and correct in all material respects (except to the extent the same expressly relate to an earlier date) and no Default or Event of Default has occurred and is continuing under the Amended and Restated Loan Agreement or shall result after giving effect to this Amendment. Holdco, the Borrower and CMC each hereby represent and warrant that each of the representations and warranties set forth in the Security Agreement are true and correct in all material respects, except to the extent the same expressly relate to an earlier date.

4.2. Holdco, the Borrower and CMC each shall, at the request of the Administrative Agent and at its own expense, do all such acts and things reasonably required to give effect to the amendments effected or to be effected by this Agreement.

4.3. Each of the parties to this Agreement agrees and acknowledges that this Agreement has been negotiated in good faith, at arm’s length, and not by any means forbidden by law.

 

-3-


4.4. This Agreement may be executed in any number of counterparts, and by the different parties on different counterpart signature pages, all of which taken together shall constitute one and the same agreement. Any of the parties hereto may execute this Agreement by signing any such counterpart and each of such counterparts shall for all purposes be deemed to be an original. Delivery of an executed signature page of this Agreement in a portable document format ( “PDF” ) or by facsimile shall be effective as delivery of a manually executed counterpart hereof.

4.5. T HIS A GREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY , AND CONSTRUED BY AND INTERPRETED IN ACCORDANCE WITH , THE LAW OF THE S TATE OF N EW Y ORK , INCLUDING S ECTION  5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE S TATE OF N EW Y ORK , BUT EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW . Each of the parties hereto hereby submits to the nonexclusive jurisdiction of the United States District Court for the Southern District of New York and of any New York State court sitting in New York City in the borough of Manhattan for purposes of all legal proceedings arising out of or relating to this Agreement or the transactions contemplated hereby or hereby. Each of the parties hereto irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. E ACH OF H OLDCO , THE B ORROWER , CMC, THE A DMINISTRATIVE A GENT AND THE L ENDERS HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS A GREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY .

[S IGNATURE P AGE TO F OLLOW ]

 

-4-


Exhibit 10.3

This Amendment and Restatement Agreement and Reaffirmation is entered into as of the date and year first above written.

 

F IFTH T HIRD P ROCESSING S OLUTIONS , LLC, a Delaware limited liability company, as Borrower

By   / S / C HARLES D RUCKER
  Name: Charles Drucker
  Title: Chief Executive Officer

FTPS H OLDING , LLC, a Delaware limited liability company

By   / S / C HARLES D RUCKER
  Name: Charles Drucker
  Title: Chief Executive Officer

C ARD M ANAGEMENT C OMPANY , LLC, an Indiana limited liability company

By   / S / C HARLES D RUCKER
  Name: Charles Drucker
  Title: Chief Executive Officer

[S IGNATURE P AGE TO A GREEMENT AND R EAFFIRMATION ]


F IFTH T HIRD B ANK , a Michigan banking corporation, individually as a Lender, and as L/C Issuer and as Administrative Agent

By   / S / M ICHAEL S CHALTZ
  Name   Michael Schaltz
  Title   Vice President

F IFTH T HIRD H OLDINGS , LLC a Delaware limited liability company, as a Lender

By   / S / M ICHAEL B ROST
  Name   Michael Brost
  Title   Manager

[S IGNATURE P AGE TO A GREEMENT AND R EAFFIRMATION ]


Exhibit 10.3

E XHIBIT A

E XISTING L OAN D OCUMENTS

 

(a) $250 Million Term B Note dated as of June 1, 2009 made by Borrower to Fifth Third Michigan, as Term B Lender

 

(b) $125 Million Revolving Note dated as of June 1, 2009 made by Borrower in favor of Fifth Third Michigan, as Revolving Lender

 

(c) $125 Million Swing Note dated as of June 1, 2009 made by Borrower in favor of Fifth Third Michigan

 

(d) Amended and Restated Security Agreement dated as of June 1, 2009 made by Borrower, as Debtor, pledging all assets, in favor of Fifth Third Michigan, as Administrative Agent

 

(e) Assumption and Supplemental Security Agreement dated as of June 1, 2009 made by Holdco, as Debtor, pledging all assets, in favor of Fifth Third Michigan, as Administrative Agent

 

(f) Assumption and Supplemental Security Agreement dated as of June 1, 2009 made by CMC, as Debtor, pledging all assets, in favor of Fifth Third Michigan, as Administrative Agent

 

(g) Copyright Collateral Agreement dated as of June 1, 2009 made by Borrower in favor of Fifth Third Michigan, as Administrative Agent

 

(h) Patent Collateral Agreement dated as of June 1, 2009 made by Borrower in favor of Fifth Third Michigan, as Administrative Agent

 

(i) Trademark Collateral Agreement dated as of June 1, 2009 made by Borrower in favor of Fifth Third Michigan, as Administrative Agent

 

(j) Guaranty made by Holdco and CMC in favor of Fifth Third Michigan, as Administrative Agent

 

(k) Deposit Account Control Agreement dated as of June 1, 2009 among CMC, as debtor, Fifth Third Ohio, as depository institution and Fifth Third Michigan, as Administrative Agent

 

(l) Deposit Account Control Agreement dated as of June 1, 2009 among Borrower, as debtor, Fifth Third Ohio, as depository institution and Fifth Third Michigan, as Administrative Agent

 

(m) Acknowledgment of Pledged Equity Interests dated as of June 1, 2009 made by Holdco in favor of Fifth Third Michigan, as Administrative Agent with respect to the equity interest of Borrower

 

(n) Acknowledgment of Pledged Equity Interests dated as of June 1, 2009 made by Borrower in favor of Fifth Third Michigan, as Administrative Agent with respect to the equity interest of CMC


Exhibit 10.3

E XHIBIT B

A MENDED AND R ESTATED L OAN A GREEMENT

[S EE ATTACHED ]


Exhibit 10.3

 

 

 

L OAN A GREEMENT

AMONG

F IFTH T HIRD P ROCESSING S OLUTIONS , LLC,

a Delaware limited liability company, as Borrower

V ARIOUS LENDERS

F ROM T IME TO T IME P ARTY H ERETO

AND

F IFTH T HIRD B ANK , a Michigan banking corporation,

as Administrative Agent and L/C Issuer

O RIGINALLY D ATED AS OF M AY  29, 2009

 

 

 

F IFTH T HIRD B ANK , as Lead Arranger and Sole Book Runner

 

 

 

LOAN AGREEMENT AS AMENDED AND RESTATED BY AN ASSIGNMENT,

ASSUMPTION, AMENDMENT AND RESTATEMENT AGREEMENT DATED AS OF

JUNE 1, 2009 AND AS FURTHER AMENDED AND RESTATED BY AN AMENDMENT

AND RESTATEMENT AGREEMENT AND REAFFIRMATION

DATED AS OF JUNE 30, 2009


Exhibit 10.3

T ABLE OF C ONTENTS

 

S ECTION

  

H EADING

   P AGE

S ECTION  1.

   D EFINITIONS ; I NTERPRETATION    1

Section 1.1.

  

Definitions

   1

Section 1.2.

  

Interpretation

   28

Section 1.3.

  

Change in Accounting Principles

   28

S ECTION  2.

   T HE L OAN F ACILITIES    29

Section 2.1.

  

The Term Loans

   29

Section 2.2.

  

Revolving Credit Commitments

   29

Section 2.3.

  

Letters of Credit

   29

Section 2.4.

  

Applicable Interest Rates

   32

Section 2.5.

  

Manner of Borrowing Revolving Loans and Designating Applicable Interest Rates

   34

Section 2.6.

  

Minimum Borrowing Amounts; Maximum Eurodollar Loans

   36

Section 2.7.

  

Maturity of Loans

   36

Section 2.8.

  

Prepayments

   38

Section 2.9.

  

Place and Application of Payments

   41

Section 2.10.

  

Commitment Terminations

   43

Section 2.11.

  

Swing Loans

   43

Section 2.12.

  

Evidence of Indebtedness

   45

Section 2.13.

  

Fees

   46

S ECTION  3.

   C ONDITIONS P RECEDENT    47

Section 3.1.

  

All Credit Events

   47

Section 3.2.

  

Initial Credit Event

   47

S ECTION  4.

   T HE C OLLATERAL , THE G UARANTY AND THE L IMITED G UARANTY    48

Section 4.1.

  

Collateral

   48

Section 4.2.

  

Liens on Real Property

   48

Section 4.3.

  

Limited Guaranty

   49

Section 4.4.

  

Guaranty

   49

Section 4.5.

  

Further Assurances

   49

Section 4.6.

  

Limitation on Collateral

   49

S ECTION  5.

   R EPRESENTATIONS AND W ARRANTIES    50

Section 5.1.

  

Organization and Qualification

   50

Section 5.2.

  

Authority and Enforceability

   50

Section 5.3.

  

No Material Adverse Change

   51

Section 5.4.

  

Litigation and Other Controversies

   51

 

-i-


Section 5.5.

  

True and Complete Disclosure

   51

Section 5.6.

  

Use of Proceeds; Margin Stock

   51

Section 5.7.

  

Taxes

   51

Section 5.8.

  

ERISA

   52

Section 5.9.

  

Subsidiaries

   52

Section 5.10.

  

Compliance with Laws

   52

Section 5.11.

  

Environmental Matters

   52

Section 5.12.

  

Investment Company

   53

Section 5.13.

  

Intellectual Property

   53

Section 5.14.

  

Good Title

   53

Section 5.15.

  

Labor Relations

   53

Section 5.16.

  

Capitalization

   53

Section 5.17.

  

Other Agreements

   53

Section 5.18.

  

Governmental Authority and Licensing

   53

Section 5.19.

  

Approvals

   54

Section 5.20.

  

Solvency

   54

Section 5.21.

  

Foreign Assets Control Regulations and Anti-Money Laundering

   54

S ECTION  6.

  

C OVENANTS

   54

Section 6.1.

  

Information Covenants

   54

Section 6.2.

  

Inspections

   57

Section 6.3.

  

Maintenance of Property, Insurance, Environmental Matters, etc.

   58

Section 6.4.

  

Preservation of Existence

   58

Section 6.5.

  

Compliance with Laws

   58

Section 6.6.

  

ERISA

   59

Section 6.7.

  

Payment of Taxes

   59

Section 6.8.

  

Contracts with Affiliates

   59

Section 6.9.

  

No Changes in Fiscal Year

   60

Section 6.10.

  

Change in the Nature of Business

   61

Section 6.11.

  

Indebtedness

   61

Section 6.12.

  

Liens

   64

Section 6.13.

  

Consolidation, Merger, Sale of Assets, etc.

   67

Section 6.14.

  

Advances, Investments and Loans

   69

Section 6.15.

  

Restricted Payments

   70

Section 6.16.

  

Limitation on Restrictions

   72

Section 6.17.

  

OFAC

   73

Section 6.18.

  

Operating Accounts

   73

Section 6.19.

  

Financial Covenants

   73

Section 6.20.

  

Post-Closing Rating

   74

Section 6.21.

  

Limitation on Non-Material Subsidiaries

   74

S ECTION  7.

  

E VENTS OF D EFAULT AND R EMEDIES

   75

Section 7.1.

  

Events of Default

   75

 

-ii-


Section 7.2.

  

Non Bankruptcy Defaults

   76

Section 7.3.

  

Bankruptcy Defaults

   77

Section 7.4.

  

Collateral for Undrawn Letters of Credit

   77

Section 7.5.

  

Notice of Default

   78

Section 7.6.

  

Equity Cure

   78

S ECTION  8.

   C HANGE IN C IRCUMSTANCES AND C ONTINGENCIES    78

Section 8.1.

  

Funding Indemnity

   78

Section 8.2.

  

Illegality

   79

Section 8.3.

  

Reserved

   79

Section 8.4.

  

Yield Protection

   79

Section 8.5.

  

Substitution of Lenders

   81

Section 8.6.

  

Lending Offices

   81

S ECTION  9.

   T HE A DMINISTRATIVE A GENT    81

Section 9.1.

  

Appointment and Authorization of Administrative Agent

   81

Section 9.2.

  

Administrative Agent and its Affiliates

   82

Section 9.3.

  

Action by Administrative Agent

   82

Section 9.4.

  

Consultation with Experts

   82

Section 9.5.

  

Liability of Administrative Agent; Credit Decision

   82

Section 9.6.

  

Indemnity

   83

Section 9.7.

  

Resignation of Administrative Agent and Successor Administrative Agent

   84

Section 9.8.

  

L/C Issuer

   84

Section 9.9.

  

Hedging Liability and Funds Transfer Liability, Deposit Account Liability and Data Processing Obligation Arrangements

   84

Section 9.10.

  

Designation of Additional Administrative Agents

   85

Section 9.11.

  

Authorization to Enter into, and Enforcement of, the Collateral Documents

   85

Section 9.12.

  

Authorization to Release Liens and Limit Amount of Certain Claims

   85

S ECTION  10.

   M ISCELLANEOUS    86

Section 10.1.

  

Withholding Taxes

   86

Section 10.2.

  

No Waiver, Cumulative Remedies

   88

Section 10.3.

  

Non-Business Days

   88

Section 10.4.

  

Documentary Taxes

   89

Section 10.5.

  

Survival of Representations

   89

Section 10.6.

  

Survival of Indemnities

   89

Section 10.7.

  

Sharing of Set-Off

   89

Section 10.8.

  

Notices

   89

Section 10.9.

  

Counterparts

   90

Section 10.10.

  

Successors and Assigns; Assignments and Participations

   91

 

-iii-


Section 10.11.

  

Amendments

   94

Section 10.12.

  

Heading

   96

Section 10.13.

  

Costs and Expenses; Indemnification

   96

Section 10.14.

  

Set-off

   96

Section 10.15.

  

Entire Agreement

   97

Section 10.16.

  

Governing Law

   97

Section 10.17.

  

Severability of Provisions

   97

Section 10.18.

  

Excess Interest

   97

Section 10.19.

  

Construction

   98

Section 10.20.

  

Lender’s Obligations Several

   98

Section 10.21.

  

USA Patriot Act

   98

Section 10.22.

  

Submission to Jurisdiction; Waiver of Jury Trial

   98

Section 10.23.

  

Treatment of Certain Information; Confidentiality

   98

S ECTION  11.

   A GREEMENT R EGARDING L IMITED G UARANTY    99

Section 11.1.

  

No Limitation Intended

   99

Section 11.2.

  

Interests in the Limited Guaranty

   99

Section 11.3.

  

Turn-Over

   99

 

E XHIBIT  A

      Notice of Payment Request

E XHIBIT  B

      Notice of Borrowing

E XHIBIT  C

      Notice of Continuation/Conversion

E XHIBIT  D-1

      Term A Note

E XHIBIT  D-2

      Term B Note

E XHIBIT  D-3

      Revolving Note

E XHIBIT  D-4

      Swing Note

E XHIBIT  E

      Compliance Certificate

E XHIBIT  F

      Assignment and Assumption

S CHEDULE  1

      Term A Loans, Term B Loans and Revolving Credit Commitments as of the Closing Date

S CHEDULE  5.9

      Subsidiaries

S CHEDULE  5.16

      Capitalization

S CHEDULE  6.8

      Contracts with Affiliates

S CHEDULE  6.11

      Indebtedness

S CHEDULE  6.12

      Liens

S CHEDULE  6.13

      Existing Dispositions

S CHEDULE  6.14

      Investments

 

-iv-


Exhibit 10.3

L OAN A GREEMENT

This Loan Agreement is entered into as of May 29, 2009, by and among F IFTH T HIRD P ROCESSING S OLUTIONS , LLC, a Delaware limited liability company (the “Borrower” ), the various institutions from time to time party to this Agreement, as Lenders, and F IFTH T HIRD B ANK , a Michigan banking corporation, as Administrative Agent and L/C Issuer.

The Borrower has requested, and the Lenders have agreed to extend, certain credit facilities on the terms and conditions of this Agreement. In consideration of the mutual agreements set forth in this Agreement, the parties to this Agreement agree as follows:

S ECTION  1. D EFINITIONS ; I NTERPRETATION .

Section 1.1. Definitions . The following terms when used herein shall have the following meanings:

“Acquisition” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of a Person, or of any business or division of a Person, (b) the acquisition of in excess of 50% of the capital stock, partnership interests, membership interests or equity of any Person (other than a Person that is a Subsidiary), or otherwise causing any Person to become a Subsidiary (other than in connection with the formation or creation of a Subsidiary), or (c) a merger or consolidation or any other combination with another Person (other than a Person that is already a Subsidiary), provided that the Borrower or a Subsidiary is the surviving entity.

“Adjusted LIBOR” means, for any Borrowing of Eurodollar Loans, a rate per annum equal to the greater of: (a) 3.0% and (b) the quotient of (i) LIBOR, divided by (ii) one minus the Reserve Percentage.

“Administrative Agent” means Fifth Third Bank, a Michigan banking corporation, as contractual representative for itself and the other Lenders and any successor pursuant to Section 9.7 hereof.

“Administrative Agent’s Quoted Rate” is defined in Section 2.11(c) hereof.

“Administrative Questionnaire” means, with respect to each Lender, an Administrative Questionnaire in a form supplied by the Administrative Agent and duly completed by such Lender.

“Advent” means Advent International Corp.

“Affected Lender” is defined in Section 8.5 hereof.

“Affiliate” means any Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, another Person. A Person shall be deemed

 

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to control another Person for the purposes of this definition if such Person possesses, directly or indirectly, the power to direct, or cause the direction of, the management and policies of the other Person, whether through the ownership of voting securities, by contract or otherwise; provided that, notwithstanding the foregoing, Fifth Third Bancorp, an Ohio corporation, Fifth Third Ohio, Fifth Third Holdings, Fifth Third Bank, N.A., and Fifth Third Michigan, in their capacities as Lenders, Administrative Agent (or other named agent) or L/C Issuer, are not “Affiliates” of the Borrower.

“Agreement” means this Loan Agreement, as the same may be amended, modified, restated, amended and restated or supplemented from time to time pursuant to the terms hereof.

“Applicable Laws” means, as to any Person, any law (including common law), statute, regulation, ordinance, rule, order, decree, judgment, consent decree, writ, injunction, settlement agreement or governmental requirement enacted, promulgated or imposed or entered into or agreed by any Governmental Authority, in each case applicable to or binding on such Person or any of its property or assets or to which such Person or any of its property or assets is subject.

“Applicable Margin” means with respect to (a) Base Rate Loans, 4.50%, (b) Eurodollar Loans and Letter of Credit, 5.50% and (c) the Commitment Fee, .50%.

“Application” is defined in Section 2.3(b) hereof.

“Approved Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.10), and accepted by the Administrative Agent, in substantially the form of Exhibit F or any other form approved by the Administrative Agent and the Borrower.

“Assumed Capital Leases” means Capital Leases which are assumed by the Borrower in connection with the Transactions, including, without limitation, those Capital Leases which are assumed pursuant to the Asset Identification Process described in Section 2.12 of the Master Investment Agreement.

“Authorized Representative” means those persons shown on the list of officers provided by the Borrower pursuant to Section 3.2 hereof or on any update of any such list provided by the Borrower to the Administrative Agent, or any further or different officers of the Borrower so named by any Authorized Representative of the Borrower in a written notice to the Administrative Agent.

 

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“Available Amount” means, at any time, an amount equal to, without duplication, (a) the sum of:

(i) the amount of any capital contributions or other equity issuances received as cash equity by the Borrower or any of its Subsidiaries, plus the fair market value, as determined in good faith by the Borrower, of marketable securities or other property received by the Borrower or its Subsidiaries as a capital contribution or in return for issuances of equity, in each case, during the period from and including the Business Day immediately following the Closing Date through and including such time; and

(ii) the amount of cash and the fair market value, as determined in good faith by the Borrower, of marketable securities or other property received by the Borrower or a Subsidiary by means of the sale or other disposition (other than to the Borrower or a Subsidiary) of investments made by the Borrower or its Subsidiaries pursuant to Sections 6.14(f), (l) or (q) following the Closing Date and including such time; minus

(b) the sum, without duplication, of:

(i) the aggregate amount of any investments made by the Borrower or any Subsidiary pursuant to Sections 6.14(f), (l) or (q) after the Closing Date and prior to such time; and

(ii) the aggregate amount of any Distributions made by the Borrower pursuant to Section 6.15(f) after the Closing Date and prior to such time.

“Base Rate” means for any day the greatest of: (i) the rate of interest announced by the Administrative Agent from time to time as its “prime rate” as in effect on such day, with any change in the Base Rate resulting from a change in said prime rate to be effective as of the date of the relevant change in said prime rate (it being acknowledged that such rate may not be the Administrative Agent’s best or lowest rate), (ii) the sum of (x) the Federal Funds Rate, plus (y) 1/2 of 1% and (iii) the sum of (x) the Adjusted LIBOR that would be applicable to a Eurodollar Loan with a 1 month Interest Period advanced on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus (y) 1.00%.

“Base Rate Loan” means a Revolving Loan bearing interest at a rate specified in Section 2.4(b) hereof.

“Borrower” is defined in the introductory paragraph of this Agreement.

“Borrowing” means the total of Revolving Loans of a single type advanced, continued for an additional Interest Period, or converted from a different type into such type by the Lenders under the Revolving Credit on a single date and, in the case of Eurodollar Loans, for a single Interest Period. Borrowings of Revolving Loans are made

 

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and maintained ratably from each of the Lenders under the Revolving Credit according to their Percentages of such Revolving Credit. A Borrowing of Revolving Loans is “advanced” on the day Lenders advance funds comprising such Borrowing to the Borrower, is “continued” on the date a new Interest Period for the same type of Loans commences for such Borrowing, and is “converted” when such Borrowing is changed from one type of Loans to the other, all as requested by the Borrower pursuant to Section 2.5(a) hereof. Base Rate Loans and Eurodollar Loans are each a “type” of Revolving Loans. Borrowings of Swing Loans are made by the Administrative Agent in accordance with the procedures set forth in Section 2.11 hereof.

“Business” means “Business” as defined in the Master Investment Agreement.

“Business Day” means any day (other than a Saturday or Sunday) on which banks are not authorized or required to close in Cincinnati, Ohio.

“Capital Lease” means any lease of Property which in accordance with GAAP is required to be capitalized on the balance sheet of the lessee.

“Capitalized Lease Obligation” means, for any Person, the amount of the liability shown on the balance sheet of such Person in respect of a Capital Lease determined in accordance with GAAP.

“Cash Equivalents” means, as to any Person: (a) investments in direct obligations of the United States of America or of any agency or instrumentality thereof whose obligations constitute full faith and credit obligations of the United States of America, provided that any such obligations shall mature within one year of the date of issuance thereof; (b) investments in commercial paper rated at least P-1 by Moody’s or at least A-1 by S&P (or, if at any time neither Moody’s or S&P shall be rating such obligations, an equivalent rating from another nationally recognized rating service) maturing within 90 days from the date of issuance thereof; (c) investments in certificates of deposit or bankers’ acceptances issued by any Lender or by any United States commercial bank having capital and surplus of not less than $250,000,000 which have a maturity of one year or less; (d) investments in repurchase obligations with a term of not more than 7 days for underlying securities of the types described in clause (a) above entered into with any bank meeting the qualifications specified in clause (c) above, provided that, all such agreements require physical delivery of the securities securing such repurchase agreement, except those delivered through the Federal Reserve Book Entry System; (e) marketable short-term money market or similar securities having a rating of at least P-1 by Moody’s or A-1 by S&P (or, if at any time neither Moody’s or S&P shall be rating such obligations, an equivalent rating from another nationally recognized rating service) and (f) investments in money market funds that invest solely, and which are restricted by their respective charters to invest solely, in investments of the type described in the immediately preceding subsections (a), (b), (c), and (d) above.

“Cash Flow” means, with reference to any period, the difference (if any) of (a) Net Income for such period plus the sum of all amounts deducted in arriving at such

 

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Consolidated Net Income amount in respect of all charges for (i) depreciation of fixed assets and amortization of intangible assets for such period and (ii) all other non-cash charges or expenses deducted in computing Consolidated Net Income for such period minus (plus) (b) additions (reductions) to non-cash working capital of the Borrower and its Subsidiaries for such period (i.e., the increase or decrease in consolidated non-cash current assets of the Borrower and its Subsidiaries minus the consolidated current liabilities (excluding the current maturities of long-term debt) of the Borrower and its Subsidiaries from the beginning to the end of such period) minus (c) all non-cash gains or benefits added in computing Net Income for such period.

“Cash Management Services” means treasury, depository, overdraft, credit or debit card, including noncard payables services, purchase card, electronic funds transfer, automated clearing house fund transfer services, other cash management services and all services performed by any of the Lenders or their Affiliates under the Clearing Agreement.

“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§9601 et seq. , and any future amendments.

A “Change of Control” shall be deemed to have occurred if the Permitted Investors cease to have the power, directly or indirectly, to vote or direct the voting of the Voting Stock of the Borrower; provided that the occurrence of the foregoing event shall not be deemed a Change of Control if, (a) any time prior to the consummation of a Qualified Public Offering, and for any reason whatsoever, (A) the Permitted Investors otherwise have the right, directly or indirectly, to designate (and do so designate) a majority of the board of directors of the Borrower or (B) the Permitted Investors own, directly or indirectly, of record and beneficially an amount of Voting Stock of the Borrower that is equal to or more than 50% of the amount of Voting Stock of the Borrower owned, directly or indirectly, by the Permitted Investors of record and beneficially as of the Closing Date (determined by taking into account any stock splits, stock dividends or other events subsequent to the Closing Date that changed the amount of Voting Stock, but not the percentage of Voting Stock, held by the Permitted Investors) and such ownership by the Permitted Investors represents the largest single block of Voting Stock of the Borrower held by any person or related group for purposes of Section 13(d) of the Securities Exchange Act of 1934, or

(b) at any time after the consummation of a Qualified Public Offering, and for any reason whatsoever, (A) no “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 as in effect on the date hereof, but excluding any employee benefit plan of such Person and its subsidiaries, and any Person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), excluding the Permitted Investors, shall become the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under such Act), directly or indirectly, of more than the greater of (x) 35% of outstanding Voting Stock of the Borrower and (y) the percentage of the then outstanding Voting Stock of the Borrower

 

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owned, directly or indirectly, beneficially and of record by the Permitted Investors, and (B) during each period of 12 consecutive months, a majority of natural persons who are members of the board of directors (or similar governing body) of the Borrower shall consist of the same persons who are members of the board of directors (or similar governing body) of the Borrower on the Closing Date (together with any new or replacement directors (or similar persons) whose initial nomination for election was approved or recommended by either the Permitted Investors or by a majority of the directors (or similar persons) who were either directors (or similar persons) on the Closing Date or previously so approved or recommended).

“Clearing Agreement” means Clearing, Settlement and Sponsorship Services Agreement by and between the Borrower and Fifth Third Ohio dated as of June 30, 2009, as the same may be amended, modified, supplemented, restated or amended and restated from time to time.

“Closing Date” means the “Effective Date” as defined in the Amendment and Restatement Agreement and Reaffirmation dated as of June 30, 2009 among Borrower, Holdco, Fifth Third Holdings and Fifth Third Michigan.

“CMC” means Card Management Company, LLC, an Indiana limited liability company.

“Code” means the Internal Revenue Code of 1986, as amended, and any successor statute thereto.

“Collateral” means all properties, rights, interests, and privileges from time to time subject to the Liens granted to the Administrative Agent, or any security trustee therefor, by the Collateral Documents.

“Collateral Account” is defined in Section 7.4 hereof.

“Collateral Documents” means the Security Agreement and all other mortgages, deeds of trust, security agreements, pledge agreements, account control agreements, assignments, financing statements and other documents pursuant to which Liens are granted to the Administrative Agent or such Liens are perfected, and as shall from time to time secure the Obligations, the Hedging Liability, and the Funds Transfer Liability, Deposit Account Liability and Data Processing Obligations, or any part thereof.

“Commitment Fee” is defined in Section 2.13(a) hereof.

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

(a) without duplication and to the extent already deducted (and not added back) in arriving at such Consolidated Net Income, the sum of the following amounts for such period:

 

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(i) interest expense and, to the extent not reflected in such interest expense, unused line fees and letter of credit fees payable hereunder,

(ii) provision for taxes based on income, profits or capital, including federal, foreign, state, franchise, excise and similar taxes paid or accrued during such period (including in respect of repatriated funds), including Distributions made to Holdco to permit it to make Quarterly Distributions,

(iii) depreciation and amortization, including amortization of intangible assets established through purchase accounting and amortization of deferred financing fees or costs,

(iv) any expenses or charges (other than depreciation or amortization expense) related to any equity offering, investment, acquisition, disposition, recapitalization or the incurrence or repayment of Indebtedness (including a refinancing or amendment, waiver or other modification thereof), in each case, permitted under this Agreement (whether or not successful),

(v) Non-Cash Charges,

(vi) extraordinary losses in accordance with GAAP,

(vii)(a) all Stand Alone Costs (including those funded by Fifth Third Ohio) incurred during the first three years following the Closing Date and all other Transaction Expenses and (b) all amounts invoiced by Fifth Third Ohio to the Borrower pursuant to the Transition Services Agreement (as defined in the Master Investment Agreement); provided that, amounts under clause (b) hereof shall not exceed $25,000,000 for such period,

(viii) operating expenses attributable to the implementation of cost savings initiatives, severance, relocation costs, integration and facilities’ opening costs, signing costs, retention or completion bonuses, transition costs and costs related to closure/consolidation/separation of facilities and systems and in an aggregate amount not to exceed $25,000,000 for such period,

(ix) 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, and

(x) the amount of management, monitoring, consulting, transaction and advisory fees and related expenses paid in such period to

 

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the Existing Shareholders to the extent otherwise permitted under Section 6.8(a); less

(b) without duplication and to the extent included in arriving at such Consolidated Net Income, the sum of the following amounts for such period:

(i) extraordinary gains and unusual or non-recurring gains, and

(ii) non-cash gains (excluding any non-cash gain to the extent it represents the reversal of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period); provided, in each case, that if any non-cash gain represents an accrual or asset for future cash items in any future period, the cash payment in respect thereof shall in such future period be added to Consolidated EBITDA for such period to the extent excluded from Consolidated EBITDA in any prior period,

(c) increased or decreased by (without duplication):

(i) any net gain or loss resulting in such period from Hedging Obligations and the application of Statement of Financial Accounting Standards No. 133 and International Accounting Standards No. 39 and their respective related pronouncements and interpretations; plus or minus, as applicable, and

(ii) any net gain or loss resulting in such period from currency translation gains or losses related to currency remeasurements of indebtedness (including any net loss or gain resulting from hedge agreements for currency exchange risk),

in each case, as determined on a consolidated basis for the Borrower and its Subsidiaries in accordance with GAAP.

“Consolidated Net Income” means, for any period, the net income (loss) of the Borrower and its Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, excluding, without duplication, (a) the cumulative effect of a change in accounting principles during such period to the extent included in net income (loss), (b) accruals and reserves that are established or adjusted as a result of the transactions contemplated herein in accordance with GAAP or changes as a result of the adoption or modification of accounting policies during such period and (c) non-cash, equity-based award compensation expenses (including with respect to any interest relating to membership interests in any partnership or limited liability company).

“Contingent Obligation” means as to any Person, any obligation of such Person guaranteeing or intended to guarantee any 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,

 

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(i) to purchase any such primary obligation or any Property constituting direct or indirect security therefor, (ii) to advance or supply funds (x) for the purchase or payment of any such primary obligation or (y) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided, however, that the term Contingent Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent 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.

“Controlled Group” means all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with the Borrower, are treated as a single employer under Section 414 of the Code.

“Credit” means any of the Revolving Credit, the Term A Credit and the Term B Credit.

“Credit Event” means the advancing of any Loan or the issuance of, or increase in the amount of, any Letter of Credit.

“Cure Amount” is defined in Section 7.6 hereof.

“Cure Right” is defined in Section 7.6 hereof.

“Damages” means all damages including, without limitation, punitive damages, liabilities, costs, expenses, losses, judgments, diminutions in value, fines, penalties, demands, claims, cost recovery actions, lawsuits, administrative proceedings, orders, response action, removal and remedial costs, compliance costs, investigation expenses, consultant fees, attorneys’ and paralegals’ fees and litigation expenses.

“Default” means any event or condition the occurrence of which would, with the passage of time or the giving of notice, or both, constitute an Event of Default.

“Defaulting Lender” means any Lender that (a) has failed to fund any portion of the Loans, participations in Reimbursement Obligations or participations in Swing Loans required to be funded by it hereunder within one Business Day of the date required to be funded by it hereunder unless such failure has been cured, (b) has otherwise failed to pay over to the Administrative Agent 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

 

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a good faith dispute or unless such failure has been cured, or (c) has been deemed insolvent or become the subject of a receivership, bankruptcy or insolvency proceeding.

“Departing Administrative Agent” is defined in Section 9.7 hereof.

“Disposition” means the sale, lease, conveyance or other disposition of Property pursuant to Section 6.13(g).

“Distribution” has the meaning provided in Section 6.15 hereof.

“Dollars” and “$” each means the lawful currency of the United States of America.

“Domestic Holding Company” means any Domestic Subsidiary of Borrower that is treated as a disregarded entity for U.S. federal income tax purposes and all of its assets (other than immaterial assets) consist of the equity interests of one or more Foreign Subsidiaries that are controlled foreign corporations within the meaning of Section 957 of the Code.

“Domestic Subsidiary” means each Subsidiary of the Borrower that is organized under the Applicable Laws of the United States, any state or territory thereof, or the District of Columbia.

“EFT Business” means “EFT Business” as defined in the Master Investment Agreement.

“Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) Advent and any of its Affiliates, (d) an Approved Fund, and (e) any other Person (other than a natural person) approved by (i) the Administrative Agent, (ii) in the case of any assignment of a Revolving Credit Commitment, the L/C Issuer, and (iii) unless an Event of Default has occurred and is continuing under Section 7.1(a), (j) or (k) hereof, the Borrower (each such approval not to be unreasonably withheld or delayed); provided that, notwithstanding the foregoing, “Eligible Assignee” shall not include the Borrower, any of the Borrower’s Subsidiaries, or any of the Prohibited Lenders; provided further that, notwithstanding the foregoing, “Eligible Assignee” shall include the Borrower solely to the extent that no cash consideration is paid by the Borrower in connection with such assignment.

“Environmental Claim” means any investigation, written notice, violation, written demand, written allegation, action, suit, injunction, judgment, order, consent decree, penalty, fine, lien, proceeding or claim (whether administrative, judicial or private in nature) arising (a) pursuant to, or in connection with an actual or alleged violation of, any Environmental Law, (b) from any actual or threatened abatement, removal, remedial, corrective or response action in connection with the Release of Hazardous Material, Environmental Law or order of a Governmental Authority under Environmental Law or

 

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(c) from any actual or alleged damage, injury, threat or harm to human health or safety as it relates to exposure to Hazardous Materials, natural resources or the environment.

“Environmental Law” means any current or future Applicable Law pertaining to (a) the protection of the environment, or health and safety as it relates to exposure to Hazardous Materials, (b) the protection of natural resources and wildlife, (c) the protection of surface water or groundwater quality, (d) the management, manufacture, possession, presence, use, generation, transportation, treatment, storage, disposal, Release, threatened Release, abatement, removal, remediation or handling of, or exposure to, any Hazardous Material or (e) any Release of Hazardous Materials to air, land, surface water or groundwater, and any amendment, rule, regulation, order or directive issued thereunder.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or any successor statute thereto.

“Eurodollar Loan” means a Revolving Loan bearing interest at the rate specified in Section 2.4(c) hereof.

“Event of Default” means any event or condition identified as such in Section 7.1 hereof.

“Event of Loss” means, with respect to any Property, any of the following: (a) any loss, destruction or damage of such Property or (b) any condemnation, seizure, or taking, by exercise of the power of eminent domain or otherwise, of such Property, or confiscation of such Property.

“Excess Cash Flow” means, with respect to any period, the amount (if any) by which (a) Cash Flow during such period exceeds (b) the sum of (i) the aggregate amount of payments required to be made or otherwise paid by the Borrower and its Subsidiaries during such period in respect of all principal on all Indebtedness (whether at maturity, as a result of mandatory prepayment, acceleration or otherwise, but excluding voluntary prepayments of the Loans and prepayments of the Loans made out of Excess Cash Flow), plus, to the extent each of the following is not deducted in computing Consolidated Net Income,

(A) without duplication of amounts deducted pursuant to clause (D) below in a prior period, capital expenditures of the Borrower and its Subsidiaries made in cash,

(B) without duplication of amounts deducted pursuant to clause (D) below in a prior period, the amount of investments made by the Borrower and its Subsidiaries pursuant to Section 6.14 (other than as permitted under clauses (b), (d) and (e) thereof),

 

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(C) cash losses from any sale or disposition outside the ordinary course of business,

(D) without duplication of amounts deducted from Excess Cash Flow in a prior period, the aggregate consideration required to be paid in cash by the Borrower and its Subsidiaries pursuant to binding contracts (the “Contract Consideration” ) entered into prior to or during such period relating to Permitted Acquisitions or capital expenditures to be consummated or made during the period of four consecutive fiscal quarters of the Borrower following the end of such period, and

(E) the sum of all Distributions made to Holdco for the sole purpose of permitting Holdco to make Quarterly Distributions required to be made by it during such period.

“Excess Interest” is defined in Section 10.18 hereof.

“Excluded Equity Interests” means (a) any capital stock or other equity interests of any Person with respect to which, in the reasonable judgment of the Administrative Agent, the cost or other consequences (including any adverse tax consequences) of pledging such equity interests shall be excessive in view of the benefits to be obtained by the Lenders therefrom, (b) solely in the case of any pledge of equity interests of any First-Tier Foreign Subsidiary or Domestic Holding Company to secure the Obligations, any equity interests in excess of 65% of the outstanding equity interests of such First-Tier Foreign Subsidiary or Domestic Holding Company, and (c) any equity interests to the extent the pledge thereof would be prohibited by any applicable law or contractual obligation (only to the extent such prohibition is applicable and not rendered ineffective).

“Excluded Property” means (a) any Excluded Equity Interests, (b) any property to the extent that the grant of a Lien thereon is prohibited by applicable law or contractual obligation or requires a consent not obtained of any governmental authority pursuant to such applicable law or any third party pursuant to any contract between the Borrower or any Subsidiary and such third party, (c) United States intent-to-use trademark applications to the extent that, and solely during the period in which, the grant of a Lien thereon would impair the validity or enforceability of such intent-to-use trademark applications under applicable United States federal law, (d) local petty cash deposit accounts maintained by the Borrower and its Subsidiaries in proximity to their operations; provided that the total amount on deposit at any one time shall not exceed $10,000,000.00 in the aggregate, (e) payroll accounts maintained by the Borrower and its Subsidiaries; provided that the total amount on deposit at any time does not exceed the current amount of the Borrower or any Subsidiary’s payroll obligation, as applicable, (f) all vehicles and other assets subject to certificates of title, (g) Property that is subject to a Lien securing a purchase money obligation or Capitalized Lease Obligation permitted to be incurred pursuant to this Agreement, if the contract or other agreement in which such Lien is granted (or the documentation providing for such purchase money obligation or Capitalized Lease Obligation) validly prohibits the creation of any other Lien on such Property, (h) any

 

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interest in joint ventures and non-Wholly owned Subsidiaries which cannot be pledged without the consent of one or more third parties, (i) any leasehold real property, (j) the Settlement Account and the Reserve Account, as such terms are defined in the Clearing Agreement, and similar accounts pursuant to similar sponsorship, clearinghouse and/or settlement arrangements and all cash in such accounts, and (k) any direct proceeds, substitutions or replacements of any of the foregoing, but only to the extent such proceeds, substitutions or replacements would otherwise constitute Excluded Property.

“Excluded Subsidiary” means (a) any Subsidiary that is prohibited by any applicable law or contractual obligation from guaranteeing or providing collateral for the Obligations (only to the extent such prohibition is applicable and not rendered ineffective), (b) any Domestic Holding Company, solely to the extent that adverse tax consequences to Borrower and its Subsidiaries would result from such Domestic Holding Company providing Collateral hereunder or guaranteeing the Obligations, (c) any Foreign Subsidiary, (d) any Subsidiary that is not a Material Subsidiary and (e) any other Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent, the cost or other consequences (including any adverse tax consequences) of providing Collateral or guaranteeing the Obligations shall be excessive in view of the benefits to be obtained by the Lenders therefrom.

“Existing Shareholders” means Advent and its Affiliates and Fifth Third Ohio and its Affiliates.

“Federal Funds Rate” means, for any day, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the rate determined by the Administrative Agent to be the average (rounded upward, if necessary, to the next higher 1/100 of 1%) of the rates per annum quoted to the Administrative Agent at approximately 10:00 a.m. (Cincinnati time) (or as soon thereafter as is practicable) on such day (or, if such day is not a Business Day, on the immediately preceding Business Day) by two or more Federal funds brokers selected by the Administrative Agent for sale to the Administrative Agent at face value of Federal funds in the secondary market in an amount equal or comparable to the principal amount owed to the Administrative Agent for which such rate is being determined.

“Fifth Third Ohio” means Fifth Third Bank, an Ohio banking corporation.

“Fifth Third Holdings” means Fifth Third Holdings, LLC, a Delaware limited liability company.

“Fifth Third Michigan” means Fifth Third Bank, a Michigan banking corporation.

 

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“First-Tier Foreign Subsidiary” means a Foreign Subsidiary, the equity interests of which are directly owned by the Borrower or a Domestic Subsidiary that is not a Subsidiary of a Foreign Subsidiary.

“Fixed Rate” means nine and one-half of one percent (9.5%) per annum.

“Foreign Subsidiary” means each Subsidiary of the Borrower that is not a Domestic Subsidiary.

“Funds Transfer Liability, Deposit Account Liability and Data Processing Obligations” means the liability of the Borrower or any of its Subsidiaries owing to any of the Lenders, or any Affiliates of such Lenders, arising out of (a) the execution or processing of electronic transfers of funds by automatic clearing house transfer, wire transfer or otherwise to or from the deposit accounts of the Borrower and/or any Subsidiary now or hereafter maintained with any of the Lenders or their Affiliates, (b) the acceptance for deposit or the honoring for payment of any check, draft or other item with respect to any such deposit accounts, (c) any other deposit, disbursement, and Cash Management Services afforded to the Borrower or any such Subsidiary by any of such Lenders or their Affiliates, and (d) the Master Data Processing Agreement between the Borrower and Fifth Third Bancorp, an Ohio corporation, dated June 30, 2009, as amended, modified, supplemented or restated from time to time.

“GAAP” means generally accepted accounting principles in the United States of America, as in effect from time to time.

“Governmental Authority” means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to the United States government.

“Guarantor” is defined in Section 4.4 hereof.

“Guaranty” is defined in Section 4.4 hereof.

“Hazardous Material” means any (a) asbestos, polychlorinated biphenyls and petroleum (including crude oil or any fraction thereof) and (b) any substance, waste or material classified or regulated as “hazardous,” “toxic,” “contaminant” or “pollutant” or words of like import pursuant to an applicable Environmental Law.

“Hedge Agreement” means any interest rate, currency or commodity swap agreements, cap agreements, collar agreements, floor agreements, exchange agreements, forward contracts, option contracts or similar interest rate or currency or commodity hedging arrangements.

 

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“Hedging Liability” means Hedging Obligations owing to any of the Lenders, or any Affiliates of such Lenders.

“Hedging Obligations” means, with respect to any Person, the obligations of such Person under Hedge Agreements.

“Holdco” means FTPA Holding, LLC, a Delaware limited liability company.

“Holdco LLC Agreement” means the Limited Liability Company Agreement of Holdco, dated as of February 24, 2009, created by Fifth Third Ohio, as amended and restated pursuant to that certain Amended and Restated Limited Liability Company Agreement by and among Advent - Kong Blocker Corp., a Delaware corporation, Fifth Third Ohio, FTPA Partners, LLC, a Delaware limited liability company, Holdco and each other member of Holdco pursuant to the terms of such agreement, dated as of June 30, 2009.

“Hostile Acquisition” means the acquisition of the capital stock or other equity interests of a Person through a tender offer or similar solicitation of the owners of such capital stock or other equity interests which has not been approved (prior to such acquisition) by resolutions of the Board of Directors of such Person or by similar action if such Person is not a corporation, and, if such acquisition has been so approved, as to which such approval has been withdrawn.

“Indebtedness” means for any Person (without duplication):

(a) all indebtedness of such Person for borrowed money, whether current or funded, or secured or unsecured,

(b) all indebtedness for the deferred purchase price of Property,

(c) all indebtedness secured by a purchase money mortgage or other Lien to secure all or part of the purchase price of Property subject to such mortgage or Lien,

(d) all obligations under leases which shall have been or must be, in accordance with GAAP, recorded as Capital Leases in respect of which such Person is liable as lessee, other than such obligations related to Assumed Capital Leases,

(e) any liability in respect of banker’s acceptances or letters of credit,

(f) any indebtedness, whether or not assumed, of the types described in clauses (a) through (c) above or clauses (g) and (h) below, secured by Liens on Property acquired by such Person at the time of acquisition thereof,

 

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(g) all obligations under any so-called “synthetic lease” transaction entered into by such Person, and

(h) all Contingent Obligations in respect of indebtedness of the types described in clauses (a) through (g) hereof,

provided, that the term “Indebtedness” shall not include (i) trade payables arising in the ordinary course of business, (ii) any earn-out obligation until such obligations become a liability on the balance sheet of such Person in accordance with GAAP, (iii) prepaid or deferred revenue arising in the ordinary course of business, and (iv) 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.

“Information” has the meaning provided in Section 10.23.

“Initial Lenders” means Fifth Third Holdings and Fifth Third Michigan.

“Initial Term A Loan Amount” means $1,000,000,000.00.

“Initial Term B Loan Amount” means $250,000,000.00.

“Interest Expense” means, with reference to any period, (a) the sum of all interest charges (including imputed interest charges with respect to Capitalized Lease Obligations (other than imputed interest charges to the extent related to Assumed Capital Leases) and all amortization of debt discount and expense) of the Borrower and its Subsidiaries payable in cash for such period determined on a consolidated basis in accordance with GAAP but excluding (i) any non-cash interest expense attributable to the movement in the mark to market valuation of Hedging Obligations or other derivative instruments pursuant to GAAP, amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses, and (ii) any expensing of bridge, commitment and other financing fees minus (b) interest income of the Borrower and its Subsidiaries for such period determined on a consolidated basis in accordance with GAAP.

“Interest Period” means, with respect to Eurodollar Loans and Swing Loans under the Revolving Credit, the period commencing on the date a Borrowing of Eurodollar Loans or Swing Loans is advanced, continued or created by conversion and ending: (a) in the case of a Eurodollar Loan, 1, 2 or 3 months thereafter, and (b) in the case of a Swing Loan, on the last day of the calendar month in which such Swing Loan was advanced; provided, however, that:

(i) no Interest Period with respect to any Swing Loan shall extend beyond the Revolving Credit Termination Date;

(ii) whenever the last day of any Interest Period would otherwise be a day that is not a Business Day, the last day of such Interest Period shall be

 

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extended to the next succeeding Business Day, provided that, if such extension would cause the last day of an Interest Period for a Borrowing of Eurodollar Loans to occur in the following calendar month, the last day of such Interest Period shall be the immediately preceding Business Day; and

(iii) for purposes of determining an Interest Period for a Borrowing of Eurodollar Loans, a month means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month; provided, however, that if there is no numerically corresponding day in the month in which such an Interest Period is to end or if such an Interest Period begins on the last Business Day of a calendar month, then such Interest Period shall end on the last Business Day of the calendar month in which such Interest Period is to end.

“L/C Backstop” means, in respect of any Letter of Credit, (a) a letter of credit delivered to the L/C Issuer which may be drawn by the L/C Issuer to satisfy any obligations of the Borrower in respect of such Letter of Credit or (b) cash or Cash Equivalents deposited with the L/C Issuer to satisfy any obligation of the Borrower in respect of such Letter of Credit, in each case, in an amount not to exceed 100% of the undrawn face amount and any unpaid Reimbursement Obligations with respect to such Letter of Credit and on terms and pursuant to arrangements (including, if applicable, any appropriate reimbursement agreement) reasonably satisfactory to the respective L/C Issuer.

“L/C Issuer” means Fifth Third Michigan.

“L/C Obligations” means the aggregate undrawn face amounts of all outstanding Letters of Credit and all unpaid Reimbursement Obligations.

“L/C Sublimit” means $25,000,000.00, as reduced pursuant to the terms hereof.

“Lenders” means and includes the Initial Lenders and the other banks, financial institutions and other lenders from time to time party to this Agreement, including each assignee Lender pursuant to Section 10.10 hereof.

“Lending Office” is defined in Section 8.6 hereof.

“Letter of Credit” is defined in Section 2.3(a) hereof.

“Leverage Ratio” means, as of the date of determination thereof, the ratio of Total Funded Debt of the Borrower and its Subsidiaries as of such date to Consolidated EBITDA for the period of four fiscal quarters then ended.

“LIBOR” means, for an Interest Period for any Borrowing of Eurodollar Loans, (a) the LIBOR Index Rate for such Interest Period, if such rate is available, and (b) if the LIBOR Index Rate cannot be determined, the arithmetic average of the rates of interest

 

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per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) at which deposits in Dollars in immediately available funds are offered to the Administrative Agent at 11:00 a.m. (London, England time) 2 Business Days before the beginning of such Interest Period by 3 or more major banks in the interbank eurodollar market selected by the Administrative Agent for delivery on the first day of and for a period equal to such Interest Period and in an amount equal or comparable to the principal amount of the Eurodollar Loan scheduled to be made by the Administrative Agent as part of such Borrowing.

“LIBOR Index Rate” means, for an Interest Period for any Borrowing of Eurodollar Loans, the rate per annum (rounded upwards, if necessary, to the next higher one hundred-thousandth of a percentage point) for deposits in Dollars for a period equal to such Interest Period, which appears on the Reuters Screen LIBOR01 Page as of 11:00 a.m. (London, England time) on the day 2 Business Days before the commencement of such Interest Period.

“Lien” means any deed of trust, mortgage, lien, security interest, pledge, charge or encumbrance in the nature of security in respect of any Property, including the interests of a vendor or lessor under any conditional sale, Capital Lease or other title retention arrangement.

“Limited Guarantor” means Fifth Third Bank, an Ohio banking corporation.

“Limited Guaranty” is defined in Section 4.3 hereof.

“Loan” means any Revolving Loan, Term A Loan, Term B Loan or Swing Loan.

“Loan Documents” means this Agreement, the Notes (if any), the Guaranty, the Limited Guaranty and the Collateral Documents.

“Loan Parties” means the Borrower and each Guarantor but not including the Limited Guarantor.

“Master Investment Agreement” means the Master Investment Agreement dated March 27, 2009, among Fifth Third Ohio, the Borrower, Holdco and Advent-Kong Blocker Corp., a Delaware corporation.

“Material Adverse Effect” means (a) a material adverse change in, or material adverse effect upon, the operations, business, Property, or financial condition of the Borrower and its Subsidiaries taken as a whole, or (b) a material adverse effect upon (i) the legality, validity, binding effect or enforceability against the Borrower or any Subsidiary of any Loan Document or the rights and remedies of the Administrative Agent and the Lenders thereunder or (ii) the perfection or priority of any Lien granted under a Collateral Document; provided that the occurrence of the foregoing change or effect shall not be deemed a Material Adverse Effect if such change or effect (x) occurs in connection

 

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with any Regulatory Event at any Lender or (y) is a change or effect that is authorized under the Clearing Agreement (or results from conduct authorized under such agreement).

“Material Plan” is defined in Section 7.1(h) hereof.

“Material Subsidiary” shall mean and include (i) each Subsidiary that is a Domestic Subsidiary, except any Subsidiary that is a Domestic Subsidiary and does not have (together with its Subsidiaries) (a) at any time, consolidated total assets that constitute more than 5% of the consolidated total assets of the Borrower and its Subsidiaries at such time and (b) net income in accordance with GAAP for any four consecutive fiscal quarters of the Borrower ending on or after December 31, 2009, that constitute more than 5% of the consolidated net income in accordance with GAAP of the Borrower and its Subsidiaries during such period and (ii) each Domestic Subsidiary that the Borrower has designated to the Administrative Agent in writing as a Material Subsidiary.

“Maximum Rate” is defined in Section 10.18 hereof.

“Moody’s” means Moody’s Investors Service, Inc.

“Net Cash Proceeds” means, with respect to any mandatory prepayment event pursuant to Section 2.8(d), (a) the gross cash and cash equivalent proceeds (including payments from time to time in respect of installment obligations, if applicable) received by or on behalf of the Borrower or any of its Subsidiaries in respect of such prepayment event or issuance, as the case may be, less (b) the sum of:

(i) the Borrower’s good faith estimate of taxes paid or payable in connection with any such prepayment event,

(ii) the amount of any reasonable reserve established in accordance with GAAP against any liabilities (other than any taxes deducted pursuant to clause (i) above) (x) associated with the assets that are the subject of such prepayment event and (y) retained by the Borrower (or any of its members or direct or indirect parents) or any of the Subsidiaries, including, with respect to Net Cash Proceeds from a Disposition, liabilities under any indemnification obligations or purchase price adjustment associated with such Disposition and other liabilities associated with the asset disposed of and retained by the Borrower or any of its Subsidiaries after such Disposition, including pension and other post-employment benefit liabilities and liabilities related to environmental matters 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,

 

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(iii) the amount of any Indebtedness secured by a Lien permitted hereunder on the assets that are the subject of such prepayment repaid upon consummation of such prepayment event, and

(iv) reasonable and customary costs and fees payable in connection therewith.

“Non-Cash Charges” means (a) any impairment charge or asset write-off or write-down related to intangible assets (including goodwill), long-lived assets, and investments in debt and equity securities pursuant to GAAP, (b) all non-cash losses from investments recorded using the equity method, (c) all Non-Cash Compensation Expenses, (d) the non-cash impact of purchase accounting, and (e) all other non-cash charges ( provided, in each case, that if any non-cash charges represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period).

“Non-Cash Compensation Expense” means any non-cash expenses and costs that result from the issuance of stock-based awards, limited liability company or partnership interest-based awards and similar incentive-based compensation awards or arrangements.

“Non-Consenting Lender” as defined in Section 10.11(b).

“Note” and “Notes” means and includes the Revolving Notes, the Term A Notes, the Term B Notes and the Swing Note.

“Notice of Intent to Cure” is defined in Section 7.6 hereof.

“Obligations” means all obligations of the Borrower to pay principal and interest on the Loans, all Reimbursement Obligations owing under the Applications, all fees and charges payable hereunder, and all other payment obligations of the Borrower or any of its Subsidiaries arising under or in relation to any Loan Document, in each case whether now existing or hereafter arising, due or to become due, direct or indirect, absolute or contingent, and howsoever evidenced, held or acquired.

“Participant” is defined in Section 10.10(d) hereof.

“Participating Interest” is defined in Section 2.3(d) hereof.

“Participating Lender” is defined in Section 2.3(d) hereof.

“Patriot Act” is defined in Section 5.21(b) hereof.

“PBGC” means the Pension Benefit Guaranty Corporation or any Person succeeding to any or all of its functions under ERISA.

 

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“Percentage” means for any Lender its Revolver Percentage, Term A Loan Percentage or Term B Loan Percentage, as applicable; and where the term “Percentage” is applied on an aggregate basis, such aggregate percentage shall be calculated by aggregating the separate components of the Revolver Percentage, Term A Loan Percentage and Term B Loan Percentage, and expressing such components on a single percentage basis.

“Permitted Acquisition” means any Acquisition with respect to which all of the following conditions shall have been satisfied:

(a) after giving effect to the Acquisition, the Borrower is in compliance with Section 6.10 hereof;

(b) the Acquisition is not a Hostile Acquisition;

(c) the Total Consideration for any acquired business that does not become a Domestic Subsidiary (or the assets of which are not acquired by the Borrower or a Domestic Subsidiary), when taken together with the Total Consideration for all such acquired businesses acquired after the Closing Date, does not exceed (i) $75,000,000 plus (ii) the Available Amount at such time;

(d) if a new Subsidiary (other than an Excluded Subsidiary) is formed or acquired as a result of or in connection with the Acquisition, the Borrower shall have complied with the requirements of Section 4 hereof in connection therewith; and

(e) after giving effect to the Acquisition, no Event of Default shall exist, including, with respect to Acquisitions occurring on or after June 30, 2010, with respect to the financial covenants contained in Section 6.19 after giving Pro Forma Effect for such Acquisition, and, with respect to Acquisitions occurring on or after June 30, 2010, the Leverage Ratio on a Pro Forma Basis shall not exceed the greater of (i) 4.5 to 1.0 or (ii) the then-applicable ratio under Section 6.19(a) less .25x.

“Permitted Investors” shall mean (a) the Existing Shareholders, their respective limited partners and any Person making an investment in any direct or indirect parent of Borrower or its Subsidiaries concurrently with the Existing Shareholders and (b) the members of management of any direct or indirect parent of Borrower and its Subsidiaries who are investors, directly or indirectly, in the Borrower (collectively, the “Management Investors” ).

“Permitted Lien” is defined in Section 6.12 hereof.

“Person” means any natural person, partnership, corporation, limited liability company, association, trust, unincorporated organization or any other entity or organization, including a government or agency or political subdivision thereof.

 

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“Plan” means any employee pension benefit plan covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code that either (a) is maintained by a member of the Controlled Group for employees of a member of the Controlled Group or (b) is maintained pursuant to a collective bargaining agreement or any other arrangement under which more than one employer makes contributions and to which a member of the Controlled Group is then making or accruing an obligation to make contributions or has within the preceding five plan years made contributions.

“Post-Acquisition Period” means, with respect to any Specified Transaction, the period beginning on the date such Specified Transaction is consummated and ending on the last day of the fourth full consecutive fiscal quarter immediately following the date on which such Specified Transaction is consummated.

“Pro Forma Adjustment” means, for any period that includes all or any part of a fiscal quarter included in any Post-Acquisition Period, the pro forma increase or decrease in Consolidated EBITDA pursuant to a Pro Forma Adjustment Certificate of the Borrower, which pro forma increase or decrease shall be based on the Borrower’s good faith projections and reasonable assumptions as a result of (a) actions taken, prior to or during such Post-Acquisition Period, for the purposes of realizing reasonably identifiable and factually supportable cost savings, or (b) any additional costs incurred prior to or during such Post-Acquisition Period in connection with the operations of the Borrower and its Subsidiaries; provided that (A) so long as such actions are taken prior to or during such Post-Acquisition Period or such costs are incurred prior to or during such Post-Acquisition Period it may be assumed, for purposes of projecting such pro forma increase or decrease to Consolidated EBITDA, that such cost savings will be realizable during the entirety of such period, or such additional costs will be incurred during the entirety of such period, and (B) any such pro forma increase or decrease to Consolidated EBITDA shall be without duplication for cost savings or additional costs already included in Consolidated EBITDA for such period.

“Pro Forma Adjustment Certificate” means any certificate by the chief financial officer of the Borrower or any other officer of the Borrower reasonably acceptable to the Administrative Agent delivered pursuant to Section 6.1(f).

“Pro Forma Basis,” “Pro Forma Compliance” and “Pro Forma Effect” means, with respect to compliance with any test or covenant hereunder, that (A) to the extent applicable, the Pro Forma Adjustment shall have been made and (B) all Specified Transactions and the following transactions in connection therewith shall be deemed to have occurred as of the first day of the applicable period of measurement in such test or covenant: (a) income statement items (whether positive or negative) attributable to the property or Person subject to such Specified Transaction, (i) in the case of a sale, transfer or other disposition of all or substantially all capital stock in any Subsidiary of the Borrower or any division or product line of the Borrower or any of its Subsidiaries, shall be excluded, and (ii) in the case of a Permitted Acquisition or investment described in the definition of the term “Specified Transaction”, shall be included, (b) any retirement or repayment of Indebtedness and (c) any Indebtedness incurred by the Borrower or any of

 

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its Subsidiaries in connection therewith and if such indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate that is or would be in effect with respect to such Indebtedness at the relevant date of determination; provided that, without limiting the application of the Pro Forma Adjustment pursuant to (A) above (but without duplication thereof), the foregoing pro forma adjustments may be applied to any such test or covenant solely to the extent that such adjustments are consistent with the definition of Consolidated EBITDA and give effect to events (including operating expense reductions) that are (i) (x) directly attributable to such transaction, (y) expected to have a continuing impact on the Borrower and its Subsidiaries and (z) factually supportable or (ii) otherwise consistent with the definition of the term “Pro Forma Adjustment”.

“Prohibited Lenders” means and includes each of the following Persons and their Affiliates and their respective successors-in-interest via merger or acquisition: JPMorgan Chase Bank, N.A., Bank of America, N.A., Wells Fargo Bank, National Association, The Royal Bank of Scotland, PLC and U.S. Bancorp.

“Property” means, as to any Person, all types of real, personal, tangible, intangible or mixed property owned by such Person whether or not included in the most recent balance sheet of such Person and its Subsidiaries under GAAP.

“Qualified Public Offering” shall mean the issuance by the Borrower or any direct or indirect parent of the Borrower 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 U.S. Securities and Exchange Commission in accordance with the Securities Act of 1933, as amended.

“Quarterly Distributions” has the meaning assigned to such term in the Holdco LLC Agreement.

“RCRA” means the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §§6901 et seq. , and any future amendments.

“Refinancing Indebtedness” shall have the meaning assigned to such term under Section 6.11(t) hereof.

“Register” is defined in Section 10.10(c) hereof.

“Regulatory Event” means, with respect to any Lender, that (i) the Federal Deposit Insurance Corporation or any other Governmental Authority is appointed as conservator or Receiver for such Lender; (ii) such Lender is considered in “troubled condition” for the purposes of 12 U.S.C. § 1831i or any regulation promulgated thereunder; (iii) such Lender qualifies as “Undercapitalized,” “Significantly Undercapitalized,” or “Critically Undercapitalized” as those terms are defined in 12 C.F.R. § 208.43; or (iv) such Lender becomes subject to any formal or informal

 

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regulatory action requiring the Lender to materially improve its capital, liquidity or safety and soundness.

“Reimbursement Obligations” is defined in Section 2.3(c) hereof.

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees and agents of such Person and of such Person’s Affiliates.

“Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing or migration into the environment.

“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the thirty day notice period is waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Regulation Section 4043.

“Required Lenders” means, as of the date of determination thereof, Lenders whose outstanding Loans and interests in Letters of Credit and Unused Revolving Credit Commitments constitute more than 50% of the sum of the total outstanding Loans, interests in Letters of Credit and Unused Revolving Credit Commitments; provided that, the Revolving Credit Commitment of, and the portion of the outstanding Loans, interests in Letters of Credit and Unused Revolving Credit Commitments held or deemed held by, any Defaulting Lender shall, so long as such Lender is a Defaulting Lender, be excluded for purposes of making a determination of Required Lenders.

“Reserve Percentage” means, for any Borrowing of Eurodollar Loans, the daily average for the applicable Interest Period of the maximum rate, expressed as a decimal, at which reserves (including, without limitation, any supplemental, marginal, and emergency reserves) are imposed during such Interest Period by the Board of Governors of the Federal Reserve System (or any successor) on “eurocurrency liabilities,” as defined in such Board’s Regulation D (or in respect of any other category of liabilities that includes deposits by reference to which the interest rate on Eurodollar Loans is determined or any category of extensions of credit or other assets that include loans by non-United States offices of any Lender to United States residents), subject to any amendments of such reserve requirement by such Board or its successor, taking into account any transitional adjustments thereto. For purposes of this definition, the Eurodollar Loans shall be deemed to be “eurocurrency liabilities” as defined in Regulation D without benefit or credit for any prorations, exemptions or offsets under Regulation D.

“Reuters Screen LIBOR01 Page” means the display designated as the “LIBOR01 Page” on the Reuters Service (or such other page as may replace the LIBOR01 Page on that service or such other service as may be nominated by the British Bankers’ Association as the information vendor for the purpose of displaying British Bankers’ Association Interest Settlement Rates for U.S. Dollar deposits ( “BBA LIBOR” ) or such

 

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other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time).

“Revolver Percentage” means, for each Lender, the percentage of the aggregate Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment or, if the Revolving Credit Commitments have been terminated, the percentage held by such Lender (including through participation interests in Reimbursement Obligations) of the aggregate principal amount of all Revolving Loans and L/C Obligations then outstanding.

“Revolving Credit” means the credit facility for making Revolving Loans and Swing Loans and issuing Letters of Credit described in Sections 2.2, 2.3 and 2.11 hereof.

“Revolving Credit Commitment” means, as to any Lender, the obligation of such Lender to make Revolving Loans and to participate in Swing Loans and Letters of Credit issued for the account of the Borrower hereunder in an aggregate principal or face amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 1 attached hereto and made a part hereof, as the same may be reduced, increased or otherwise modified at any time or from time to time pursuant to the terms hereof. The Borrower and the Lenders acknowledge and agree that the Revolving Credit Commitments of the Lenders aggregate $125,000,000 on the date hereof.

“Revolving Credit Termination Date” means May 29, 2014 or such earlier date on which the Revolving Credit Commitments are terminated in whole pursuant to Section 2.10, 7.2 or 7.3 hereof.

“Revolving Loan” is defined in Section 2.2 hereof and, as so defined, includes a Base Rate Loan or a Eurodollar Loan, each of which is a “type” of Revolving Loan hereunder.

“Revolving Note” is defined in Section 2.12(d) hereof.

“S&P” means Standard & Poor’s Ratings Services Group, a division of The McGraw-Hill Companies, Inc.

“Security Agreement” means that certain Security Agreement dated the date of this Agreement by and between the Borrower and the Administrative Agent, as the same may be amended, modified, supplemented, restated or amended and restated from time to time.

“Specified Transaction” means, with respect to any period, (a) the Transactions, (b) any incurrence or repayment of Indebtedness, (c) any Permitted Acquisition or the making of other investment pursuant to which all or substantially all of the assets or stock of a Person (or any line of business or division thereof) are acquired, (d) the disposition of all or substantially all of the assets or stock of a Subsidiary (or any line of business or division thereof) or (e) other event that by the terms of the Loan Documents requires Pro

 

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Forma Compliance with a test or covenant hereunder or requires such test or covenant to be calculated on a Pro Forma Basis.

“Stand Alone Costs” means all costs and expenses incurred by the Borrower or any of its Subsidiaries related to the transition of the Business to a stand alone company, including the cost of establishing separate systems and infrastructure and other carve-out related costs financed with the Transition Cost Contribution (as defined in the Holdco LLC Agreement).

“Subsidiary” means, as to any particular parent corporation or organization, any other corporation or organization more than 50% of the outstanding Voting Stock of which is at the time directly or indirectly owned by such parent corporation or organization or by any one or more other entities which are themselves subsidiaries of such parent corporation or organization. Unless otherwise expressly noted herein, the term “Subsidiary” means a Subsidiary of the Borrower or of any of its direct or indirect Subsidiaries.

“Swing Line” means the credit facility for making one or more Swing Loans described in Section 2.11 hereof.

“Swing Line Sublimit” means $125,000,000, as reduced pursuant to the terms hereof.

“Swing Loan” and “Swing Loans” each is defined in Section 2.11(a) hereof.

“Swing Note” is defined in Section 2.12(d) hereof.

“Term A Credit” means the credit facility for the Term A Loans described in Section 2.1(a) hereof.

“Term A Lender” means any Lender holding all or a portion of the Term A Credit.

“Term A Loan” is defined in Section 2.1(a) hereof.

“Term A Loan Percentage” means, for any Lender, the percentage held by such Lender of the aggregate principal amount of all Term A Loans then outstanding.

“Term A Note” is defined in Section 2.12(d) hereof.

“Term B Credit” means the credit facility for the Term B Loans described in Section 2.1(b) hereof.

“Term B Lender” means any Lender holding all or a portion of the Term B Credit.

 

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“Term B Loan” is defined in Section 2.1(b) hereof.

“Term B Loan Percentage” means, for any Lender, the percentage held by such Lender of the aggregate principal amount of all Term B Loans then outstanding.

“Term B Note” is defined in Section 2.12(d) hereof.

“Total Consideration” means the total amount (but without duplication) of (a) cash paid in connection with any Acquisition, plus (b) Indebtedness for borrowed money payable to the seller in connection with such Acquisition, plus (c) the fair market value of any equity securities, including any warrants or options therefor, delivered to the seller in connection with any Acquisition, plus (d) the amount of Indebtedness assumed in connection with any Acquisition.

“Total Funded Debt” means, at any time the same is to be determined, the aggregate of all Indebtedness under clauses (a), (c) and (d) of such definition of the Borrower and its Subsidiaries as determined on a consolidated basis in accordance with GAAP, minus the amount of unrestricted cash and Cash Equivalents held by the Borrower and its Subsidiaries and cash and Cash Equivalents restricted in favor of the Administrative Agent; provided that in making a calculation of Total Funded Debt, the amount of Revolving Loans and/or Swing Loans included therein shall be deemed to be the sum of the outstanding balance of Revolving Loans and Swing Loans outstanding on each day of the period ending on the date of determination divided by the number of days in such period.

“Transaction Documents” means the Master Investment Agreement and the Ancillary Agreements (as defined in the Master Investment Agreement).

“Transaction Expenses” means any fees or expenses incurred or paid by the Borrower or any of its Subsidiaries in connection with the Transactions.

“Transactions” means, collectively, the transactions contemplated by this Agreement, the other Loan Documents and the Transaction Documents.

“UCC” means the Uniform Commercial Code as in effect from time to time (except as otherwise specified) in any applicable state or jurisdiction.

“Unfunded Vested Liabilities” means, for any Plan at any time, the amount (if any) by which the present value of all vested nonforfeitable accrued benefits under such Plan exceeds the fair market value of all Plan assets allocable to such benefits, all determined as of the then most recent valuation date for such Plan, but only to the extent that such excess represents a potential liability of a member of the Controlled Group to the PBGC or the Plan under Title IV of ERISA.

“Unused Revolving Credit Commitments” means, at any time, the difference between the Revolving Credit Commitments then in effect and the aggregate outstanding

 

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principal amount of Revolving Loans and L/C Obligations; provided that Swing Loans outstanding from time to time shall be deemed to reduce the Unused Revolving Credit Commitment of the Administrative Agent for purposes of computing the commitment fee under Section 2.13(a) hereof.

“Voting Stock” of any Person means capital stock or other equity interests of any class or classes (however designated) having ordinary power for the election of directors or other similar governing body of such Person (including, without limitation, general partners of a partnership), other than stock or other equity interests having such power only by reason of the happening of a contingency.

“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the quotient obtained by dividing:

(a) the sum of the products of the number of years from the date of determination to the date of each successive scheduled principal payment of such Indebtedness multiplied by the amount of such payment; by

(b) the sum of all such payments.

“Welfare Plan” means a “welfare plan” as defined in Section 3(1) of ERISA.

“Wholly-owned Subsidiary” means, at any time, any Subsidiary of which all of the issued and outstanding shares of capital stock (other than directors’ qualifying shares and shares held by a resident of the jurisdiction, in each case, as required by law) or other equity interests are owned by any one or more of the Borrower and the Borrower’s other Wholly-owned Subsidiaries at such time.

Section 1.2. Interpretation . The foregoing definitions are equally applicable to both the singular and plural forms of the terms defined. The words “hereof,” “herein,” and “hereunder” and words of like import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. All references to time of day herein are references to Cincinnati, Ohio, time unless otherwise specifically provided. Where the character or amount of any asset or liability or item of income or expense is required to be determined or any consolidation or other accounting computation is required to be made for the purposes of this Agreement, it shall be done in accordance with GAAP. All terms that are used in this Agreement which are defined in the UCC of the State of New York shall have the same meanings herein as such terms are defined in the New York UCC, unless this Agreement shall otherwise specifically provide.

Section 1.3. Change in Accounting Principles . If, after the date of this Agreement, there shall occur any change in GAAP from those used in the preparation of the financial statements referred to in Section 6.1 hereof and such change shall result in a change in the method of calculation of any financial covenant, standard or term found in this Agreement, either the Borrower or the Required Lenders may by notice to the Lenders and the Borrower, respectively, require that the Lenders and the Borrower negotiate in good faith to amend such covenants,

 

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standards, and term so as equitably to reflect such change in accounting principles, with the desired result being that the criteria for evaluating the financial condition of the Borrower and its Subsidiaries shall be the same as if such change had not been made. No delay by the Borrower or the Required Lenders in requiring such negotiation shall limit their right to so require such a negotiation at any time after such a change in accounting principles. Until any such covenant, standard, or term is amended in accordance with this Section 1.3, financial covenants (and all related defined terms) shall be computed and determined in accordance with GAAP in effect prior to such change in accounting principles. Without limiting the generality of the foregoing, the Borrower shall neither be deemed to be in compliance with any covenant hereunder nor out of compliance with any covenant hereunder if such state of compliance or noncompliance, as the case may be, would not exist but for the occurrence of a change in accounting principles after the date hereof.

S ECTION  2. T HE L OAN F ACILITIES .

Section 2.1. The Term Loans .

(a) Term A Loans . The parties hereto agree that each Term A Lender severally and not jointly made a loan (each individually a “Term A Loan” and, collectively, the “Term A Loans” ) in Dollars to the Borrower in the Initial Term A Loan Amount, which Term A Loans were advanced on May 29, 2009, and the aggregate principal amount of Term A Loans owed to each Term A Lender on the Closing Date are expressed on Schedule 1 attached hereto.

(b) Term B Loans. The parties hereto agree that each Term B Lender severally and not jointly made a loan (each individually a “Term B Loan” and, collectively, the “Term B Loans” ) in Dollars to the Borrower in the Initial Term B Loan Amount, which Term B Loans were advanced on May 29, 2009, and the aggregate principal amount of Term B Loans owed to each Term B Lender on the Closing Date are expressed on Schedule 1 attached hereto.

Section 2.2. Revolving Credit Commitments . Prior to the Revolving Credit Termination Date, each Lender severally and not jointly agrees, subject to the terms and conditions hereof, to make revolving loans (each individually a “Revolving Loan” and, collectively, the “Revolving Loans” ) in Dollars to the Borrower from time to time up to the amount of such Lender’s Revolving Credit Commitment in effect at such time; provided, however, the sum of the aggregate principal amount of Revolving Loans, Swing Loans and L/C Obligations at any time outstanding shall not exceed the sum of the total Revolving Credit Commitments in effect at such time. Each Borrowing of Revolving Loans shall be made ratably by the Lenders in proportion to their respective Revolver Percentages. As provided in Section 2.5(a), and subject to the terms hereof, the Borrower may elect that each Borrowing of Revolving Loans be either Base Rate Loans or Eurodollar Loans. Revolving Loans may be repaid and reborrowed before the Revolving Credit Termination Date, subject to the terms and conditions hereof.

Section 2.3. Letters of Credit .

(a) General Terms . Subject to the terms and conditions hereof, as part of the Revolving Credit, the L/C Issuer shall issue standby letters of credit (each a “Letter of Credit” ) for the

 

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Borrower’s and its Subsidiaries’ account in an aggregate undrawn face amount up to the L/C Sublimit; provided, however, the sum of the Revolving Loans, Swing Loans and L/C Obligations at any time outstanding shall not exceed the sum of all Revolving Credit Commitments in effect at such time. Each Lender shall be obligated to reimburse the L/C Issuer for such Lender’s Revolver Percentage of the amount of each drawing under a Letter of Credit and, accordingly, each Letter of Credit shall constitute usage of the Revolving Credit Commitment of each Lender pro rata in an amount equal to its Revolver Percentage of the L/C Obligations then outstanding.

(b) Applications . At any time before the Revolving Credit Termination Date, the L/C Issuer shall, at the request of the Borrower, issue one or more Letters of Credit in Dollars, in form and substance acceptable to the L/C Issuer, with expiration dates no later than the earlier of 12 months from the date of issuance (or which are cancelable not later than 12 months from the date of issuance and each renewal) or 5 days prior to the Revolving Credit Termination Date, in an aggregate face amount as requested by the Borrower subject to the limitations set forth in clause (a) of this Section 2.3, upon the receipt of a duly executed application for the relevant Letter of Credit in the form then customarily prescribed by the L/C Issuer for the Letter of Credit requested (each an “Application” ). Notwithstanding anything contained in any Application to the contrary: (i) the Borrower shall pay fees in connection with each Letter of Credit as set forth in Section 2.13(b) hereof, and (ii) if the L/C Issuer is not timely reimbursed for the amount of any drawing under a Letter of Credit as required pursuant to clause (c) of this Section 2.3, the Borrower’s obligation to reimburse the L/C Issuer for the amount of such drawing shall bear interest (which the Borrower hereby promises to pay) from and after the date such drawing is paid to but excluding the date of reimbursement by the Borrower at a rate per annum equal to the sum of 2.0% plus the Applicable Margin plus the Base Rate from time to time in effect (computed on the basis of a year of 365 or 366 days, as the case may be, and the actual number of days elapsed). Without limiting the foregoing, the L/C Issuer’s obligation to issue a Letter of Credit or increase the amount of a Letter of Credit is subject to the terms or conditions of this Agreement (including the conditions set forth in Section 3.1 and the other terms of this Section 2.3).

(c) The Reimbursement Obligations . Subject to Section 2.3(b) hereof, the obligation of the Borrower to reimburse the L/C Issuer for all drawings under a Letter of Credit (a “Reimbursement Obligation” ) shall be governed by the Application related to such Letter of Credit and this Agreement, except that reimbursement shall be paid by no later than 2:00 p.m. (Cincinnati time) on the date which each drawing is to be paid if the Borrower has been informed of such drawing by the L/C Issuer on or before 11:30 a.m. (Cincinnati time) on the date when such drawing is to be paid or, if notice of such drawing is given to the Borrower after 11:30 a.m. (Cincinnati time) reimbursement shall be made on the next Business Day following the date when such drawing is to be paid, by the end of such day, in all instances in immediately available funds at the Administrative Agent’s principal office in Cincinnati, Ohio or such other office as the Administrative Agent may designate in writing to the Borrower, and the Administrative Agent shall thereafter cause to be distributed to the L/C Issuer such amount(s) in like funds. If the Borrower does not make any such reimbursement payment on the date due and the Participating Lenders fund their participations in the manner set forth in Section 2.3(d) below, then all payments thereafter received by the Administrative Agent in discharge of any of the

 

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relevant Reimbursement Obligations shall be distributed in accordance with Section 2.3(d) below. In addition, for the benefit of the Administrative Agent, the L/C Issuer and each Lender, the Borrower agrees that, notwithstanding any provision of any Application, its obligations under this Section 2.3(c) and each Application shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement and the Applications, under all circumstances whatsoever, and irrespective of any claim or defense that the Borrower may otherwise have against the Administrative Agent, the L/C Issuer or any Lender, including without limitation (i) any lack of validity or enforceability of any Loan Document; (ii) any amendment or waiver of or any consent to departure from all or any of the provisions of any Loan Document; (iii) the existence of any claim of set-off the Borrower may have at any time against a beneficiary of a Letter of Credit (or any Person for whom a beneficiary may be acting), the Administrative Agent, the L/C Issuer, any Lender or any other Person, whether in connection with this Agreement, another Loan Document, the transaction related to the Loan Document or any unrelated transaction; (iv) any statement or any other document presented under a Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (v) payment by the Administrative Agent or a L/C Issuer under a Letter of Credit against presentation to the Administrative Agent or a L/C Issuer of a draft or certificate that does not comply with the terms of the Letter of Credit, provided that the Administrative Agent’s or L/C Issuer’s determination that documents presented under the Letter of Credit complied with the terms thereof did not constitute gross negligence, bad faith or willful misconduct of the Administrative Agent or L/C Issuer; or (vi) any other act or omission to act or delay of any kind by the Administrative Agent or a L/C Issuer, any Lender or any other Person or any other event or circumstance whatsoever that might, but for the provisions of this Section 2.3(c), constitute a legal or equitable discharge of the Borrower’s obligations hereunder or under an Application.

(d) The Participating Interests . Each Lender (other than the Lender acting as L/C Issuer) severally and not jointly agrees to purchase from the L/C Issuer, and the L/C Issuer hereby agrees to sell to each such Lender (a “Participating Lender” ), an undivided participating interest (a “Participating Interest” ) to the extent of its Revolver Percentage in each Letter of Credit issued by, and each Reimbursement Obligation owed to, the L/C Issuer. Upon Borrower’s failure to pay any Reimbursement Obligation on the date and at the time required, or if the L/C Issuer is required at any time to return to the Borrower or to a trustee, receiver, liquidator, custodian or other Person any portion of any payment of any Reimbursement Obligation, each Participating Lender shall, not later than the Business Day it receives a certificate in the form of Exhibit A hereto from the L/C Issuer (with a copy to the Administrative Agent) to such effect, if such certificate is received before 1:00 p.m. (Cincinnati time), or not later than 1:00 p.m. (Cincinnati time) the following Business Day, if such certificate is received after such time, pay to the Administrative Agent for the account of the L/C Issuer an amount equal to such Participating Lender’s Revolver Percentage of such unpaid Reimbursement Obligation together with interest on such amount accrued from the date the L/C Issuer made the related payment to the date of such payment by such Participating Lender at a rate per annum equal to: (i) from the date the L/C Issuer made the related payment to the date 2 Business Days after payment by such Participating Lender is due hereunder, the Federal Funds Rate for each such day and (ii) from the date 2 Business Days after the date such payment is due from such Participating Lender to the date such payment is made by such Participating Lender, the Base Rate in effect for each such

 

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day. Each such Participating Lender shall, after making its appropriate payment, be entitled to receive its Revolver Percentage of each payment received in respect of the relevant Reimbursement Obligation and of interest paid thereon, with the L/C Issuer retaining its Revolver Percentage thereof as a Lender hereunder.

The several obligations of the Participating Lenders to the L/C Issuer under this Section 2.3 shall be absolute, irrevocable and unconditional under any and all circumstances and shall not be subject to any set-off, counterclaim or defense to payment which any Participating Lender may have or has had against the Borrower, the L/C Issuer, the Administrative Agent, any Lender or any other Person. Without limiting the generality of the foregoing, such obligations shall not be affected by any Default or Event of Default or by any reduction or termination of the Revolving Credit Commitment of any Lender, and each payment by a Participating Lender under this Section 2.3 shall be made without any offset, abatement, withholding or reduction whatsoever.

(e) Indemnification . The Participating Lenders shall, to the extent of their respective Revolver Percentages, indemnify the L/C Issuer (to the extent not reimbursed by the Borrower) against any cost, expense (including reasonable counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the L/C Issuer’s gross negligence or willful misconduct) that the L/C Issuer may suffer or incur in connection with any Letter of Credit issued by it. The obligations of the Participating Lenders under this Section 2.3(e) and all other parts of this Section 2.3 shall survive termination of this Agreement and of all Applications, Letters of Credit, and all drafts and other documents presented in connection with drawings thereunder.

(f) Manner of Requesting a Letter of Credit . The Borrower shall provide at least three (3) Business Days’ advance written notice to the Administrative Agent (or such lesser notice as the Administrative Agent and the L/C Issuer may agree in their sole discretion) of each request for the issuance of a Letter of Credit, each such notice to be accompanied by a properly completed and executed Application for the requested Letter of Credit and, in the case of an extension or amendment or an increase in the amount of a Letter of Credit, a written request therefor, in a form acceptable to the Administrative Agent and the L/C Issuer, in each case, together with the fees called for by this Agreement. The Administrative Agent shall promptly notify the L/C Issuer of the Administrative Agent’s receipt of each such notice and the L/C Issuer shall promptly notify the Administrative Agent and the Lenders of the issuance of a Letter of Credit.

(g) Conflict with Application . In the event of any conflict or inconsistency between this Agreement and the terms of any Application, the terms of the Agreement shall control.

Section 2.4. Applicable Interest Rates .

(a) Fixed Rate Term Loans . Each Term A Loan or Term B Loan made or maintained by a Lender shall bear interest (computed on the basis of a year of 365 or 366 days, as the case may be, and the actual days elapsed) on the unpaid principal amount thereof from the date such Loan is advanced until, but excluding, the date of repayment thereof at a rate per annum equal to

 

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the Fixed Rate, payable in arrears on the last Business Day of each March, June, September and December and at maturity (whether by acceleration or otherwise).

(b) Revolving Base Rate Loans . Each Revolving Loan that is a Base Rate Loan made or maintained by a Lender shall bear interest (computed on the basis of a year of 365 or 366 days, as the case may be, and the actual days elapsed) on the unpaid principal amount thereof from the date such Loan is advanced or created by conversion from a Eurodollar Loan until, but excluding, the date of repayment thereof at a rate per annum equal to the sum of the Applicable Margin plus the Base Rate from time to time in effect, payable in arrears on the last Business Day of each month and at maturity (whether by acceleration or otherwise).

(c) Revolving Eurodollar Loans . Each Revolving Loan that is a Eurodollar Loan made or maintained by a Lender shall bear interest during each Interest Period it is outstanding (computed on the basis of a year of 360 days and actual days elapsed) on the unpaid principal amount thereof from the date such Loan is advanced, continued or created by conversion from a Base Rate Loan until, but excluding, the date of repayment thereof at a rate per annum equal to the sum of the Applicable Margin plus the Adjusted LIBOR applicable for such Interest Period, payable in arrears on the last day of the Interest Period and at maturity (whether by acceleration or otherwise), and, if the applicable Interest Period is longer than three months, on each day occurring every three months after the commencement of such Interest Period.

(d) Default Rate . While any Event of Default exists or after acceleration, the Borrower shall pay interest (after as well as before entry of judgment thereon to the extent permitted by law) on the principal amount of all Loans owing by it at a rate per annum equal to:

(i) for any Term A Loan and any Term B Loan, the sum of 2.0% per annum plus the Fixed Rate;

(ii) for any Base Rate Loan and any Swing Loan bearing interest at the Base Rate, the sum of 2.0% per annum plus the Applicable Margin plus the Base Rate from time to time in effect; and

(iii) for any Eurodollar Loan and any Swing Loan bearing interest at the Administrative Agent’s Quoted Rate, the sum of 2.0% per annum plus the rate of interest in effect thereon at the time of such default until the end of the Interest Period applicable thereto and, thereafter, at a rate per annum equal to the sum of 2.0% plus the Applicable Margin for Base Rate Loans plus the Base Rate from time to time in effect;

provided, however, that in the absence of acceleration, any increase in interest rates pursuant to this Section shall be made at the election of the Administrative Agent, acting at the request or with the consent of the Required Lenders, with written notice to the Borrower. While any Event of Default exists or after acceleration, interest shall be paid on demand of the Administrative Agent at the request or with the consent of the Required Lenders.

 

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(e) Rate Determinations . The Administrative Agent shall determine each interest rate applicable to the Revolving Loans and the Reimbursement Obligations hereunder, and its determination thereof shall be conclusive and binding except in the case of manifest error.

Section 2.5. Manner of Borrowing Revolving Loans and Designating Applicable Interest Rates .

(a) Notice to the Administrative Agent . The Borrower shall give notice to the Administrative Agent by no later than noon (Cincinnati time): (i) at least 3 Business Days before the date on which the Borrower requests the Lenders to advance a Borrowing of Revolving Loans that are Eurodollar Loans and (ii) on the date the Borrower requests the Lenders to advance a Borrowing of Revolving Loans that are Base Rate Loans. The Loans included in each Borrowing of Revolving Loans shall bear interest initially at the type of rate specified in such notice. Thereafter, the Borrower may from time to time elect to change or continue the type of interest rate borne by each Borrowing of Revolving Loans or, subject to Section 2.6 hereof, a portion thereof, as follows: (i) if such Borrowing of Revolving Loans is of Eurodollar Loans, on the last day of the Interest Period applicable thereto, the Borrower may continue part or all of such Borrowing as Eurodollar Loans or convert part or all of such Borrowing into Base Rate Loans or (ii) if such Borrowing of Revolving Loans is of Base Rate Loans, on any Business Day, the Borrower may convert all or part of such Borrowing into Eurodollar Loans for an Interest Period or Interest Periods specified by the Borrower. The Borrower shall give all such notices requesting the advance, continuation or conversion of a Borrowing of Revolving Loans to the Administrative Agent by telephone or telecopy (which notice shall be irrevocable once given and, if by telephone, shall be promptly confirmed in writing), substantially in the form attached hereto as Exhibit B (Notice of Borrowing) or Exhibit C (Notice of Continuation/Conversion), as applicable, or in such other form acceptable to the Administrative Agent. Notice of the continuation of a Borrowing of Revolving Loans that are Eurodollar Loans for an additional Interest Period or of the conversion of part or all of a Borrowing of Revolving Loans that are Base Rate Loans into Eurodollar Loans must be given by no later than noon (Cincinnati time) at least 3 Business Days before the date of the requested continuation or conversion. All notices concerning the advance, continuation or conversion of a Borrowing of Revolving Loans shall specify the date of the requested advance, continuation or conversion of a Borrowing of Revolving Loans (which shall be a Business Day), the amount of the requested Borrowing to be advanced, continued or converted, the type of Loans (Base Rate Loans or Eurodollar Loans) to comprise such new, continued or converted Borrowing and, if such Borrowing is to be comprised of Eurodollar Loans, the Interest Period applicable thereto. The Borrower agrees that the Administrative Agent may rely on any such telephonic or telecopy notice given by any person the Administrative Agent in good faith believes is an Authorized Representative without the necessity of independent investigation (the Borrower hereby indemnifies the Administrative Agent from any liability or loss ensuing from such reliance) and, in the event any such notice by telephone conflicts with any written confirmation, such telephonic notice shall govern if the Administrative Agent has acted in reliance thereon.

(b) Notice to the Lenders . The Administrative Agent shall give prompt telephonic or telecopy notice to each Lender of any notice from the Borrower received pursuant to Section 2.5(a) above and, if such notice requests the Lenders to make Eurodollar Loans, the

 

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Administrative Agent shall give notice to the Borrower and each Lender of the interest rate applicable thereto promptly after the Administrative Agent has made such determination.

(c) Borrower’s Failure to Notify; Automatic Continuations and Conversions . If the Borrower fails to give proper notice of the continuation or conversion of any outstanding Borrowing of Revolving Loans that are Eurodollar Loans before the last day of its then current Interest Period within the period required by Section 2.5(a) and such Borrowing is not prepaid in accordance with Section 2.8(c), such Borrowing shall automatically be continued as a Borrowing of Eurodollar Loans with an Interest Period of one month’s duration. In the event the Borrower fails to give notice pursuant to Section 2.5(a) of a Borrowing of Revolving Loans equal to the amount of a Reimbursement Obligation and has not notified the Administrative Agent by 1:00 p.m. (Cincinnati time) on the day such Reimbursement Obligation becomes due that it intends to repay such Reimbursement Obligation through funds not borrowed under this Agreement, the Borrower shall be deemed to have requested a Borrowing of Revolving Loans that are Base Rate Loans (or, at the option of the Administrative Agent, under the Swing Line) on such day in the amount of the Reimbursement Obligation then due, which Borrowing, if otherwise available hereunder, shall be applied to pay the Reimbursement Obligation then due.

(d) Disbursement of Loans . Not later than 2:00 p.m. (Cincinnati time) on the date of any requested advance of a new Borrowing of Revolving Loans, subject to Section 3 hereof, each Lender shall make available its Revolving Loan comprising part of such Borrowing in funds immediately available at the principal office of the Administrative Agent in Cincinnati, Ohio. The Administrative Agent shall promptly wire transfer the proceeds of each new Borrowing of Revolving Loans to an account designated by the Borrower in the applicable notice of borrowing.

(e) Administrative Agent Reliance on Lender Funding . Unless the Administrative Agent shall have been notified by a Lender prior to (or, in the case of a Borrowing of Base Rate Loans, by 1:00 p.m. (Cincinnati time) on such date) the date on which such Lender is scheduled to make payment to the Administrative Agent of the proceeds of a Revolving Loan (which notice shall be effective upon receipt) that such Lender does not intend to make such payment, the Administrative Agent may assume that such Lender has made such payment when due and the Administrative Agent, in reliance upon such assumption may (but shall not be required to) make available to the Borrower the proceeds of the Revolving Loan to be made by such Lender and, if any Lender has not in fact made such payment to the Administrative Agent, such Lender shall, on demand, pay to the Administrative Agent the amount made available to the Borrower attributable to such Lender together with interest thereon in respect of each day during the period commencing on the date such amount was made available to the Borrower and ending on (but excluding) the date such Lender pays such amount to the Administrative Agent at a rate per annum equal to: (i) from the date the related advance was made by the Administrative Agent to the date 2 Business Days after payment by such Lender is due hereunder, the greater of, for each such day, (x) the Federal Funds Rate and (y) an overnight rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any standard administrative or processing fees charged by the Administrative Agent in connection with such Lender’s non-payment and (ii) from the date 2 Business Days after the date such payment is due from such Lender to the date such payment is made by such Lender, the Base Rate in effect for each such day. If such amount is not received from such Lender by the Administrative Agent

 

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immediately upon demand, the Borrower will, on demand, repay to the Administrative Agent the proceeds of the Revolving Loan attributable to such Lender with interest thereon at a rate per annum equal to the interest rate applicable to the relevant Revolving Loan, but without such payment being considered a payment or prepayment of a Revolving Loan under Section 8.1 hereof so that the Borrower will have no liability under such Section with respect to such payment.

Section 2.6. Minimum Borrowing Amounts; Maximum Eurodollar Loans . Each Borrowing of Base Rate Loans advanced under the Revolving Credit shall be in an amount not less than $500,000 or such greater amount that is an integral multiple of $50,000. Each Borrowing of Eurodollar Loans advanced, continued or converted under the Revolving Credit shall be in an amount equal to $1,000,000 or such greater amount that is an integral multiple of $100,000. Without the Administrative Agent’s consent, there shall not be more than five Borrowings of Eurodollar Loans outstanding at any one time.

Section 2.7. Maturity of Loans .

(a) Scheduled Payments of Term A Loans . The Borrower shall make principal payments on the Term A Loans in installments on the last Business Day of each March, June, September and December in each year, commencing with the calendar quarter ending September 30, 2009, with the amount of each such principal installment to equal the amount set forth in Column B below shown opposite of the relevant due date as set forth in Column A below:

 

C OLUMN  A
P AYMENT D ATE

  

C OLUMN  B
S CHEDULED P RINCIPAL P AYMENT ON L OANS

09/30/09

   0.5% of the Initial Term A Loan Amount

12/31/09

   0.5% of the Initial Term A Loan Amount

03/31/10

   0.375% of the Initial Term A Loan Amount

06/30/10

   0.375% of the Initial Term A Loan Amount

09/30/10

   0.375% of the Initial Term A Loan Amount

12/31/10

   0.375% of the Initial Term A Loan Amount

03/31/11

   1.25% of the Initial Term A Loan Amount

06/30/11

   1.25% of the Initial Term A Loan Amount

09/30/11

   1.25% of the Initial Term A Loan Amount

12/31/11

   1.25% of the Initial Term A Loan Amount

03/31/12

   1.25% of the Initial Term A Loan Amount

06/30/12

   1.25% of the Initial Term A Loan Amount

09/30/12

   1.25% of the Initial Term A Loan Amount

12/31/12

   1.25% of the Initial Term A Loan Amount

03/31/13

   1.25% of the Initial Term A Loan Amount

06/30/13

   1.25% of the Initial Term A Loan Amount

09/30/13

   1.25% of the Initial Term A Loan Amount

12/31/13

   1.25% of the Initial Term A Loan Amount

03/31/14

   1.25% of the Initial Term A Loan Amount

 

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C OLUMN  A
P AYMENT D ATE

  

C OLUMN  B
S CHEDULED P RINCIPAL P AYMENT ON L OANS

06/30/14

   1.25% of the Initial Term A Loan Amount

09/30/14

   1.25% of the Initial Term A Loan Amount

12/31/14

   1.25% of the Initial Term A Loan Amount

03/31/15

   1.25% of the Initial Term A Loan Amount

06/30/15

   1.25% of the Initial Term A Loan Amount

09/30/15

   1.25% of the Initial Term A Loan Amount

12/31/15

   1.25% of the Initial Term A Loan Amount

3/31/16

   1.25% of the Initial Term A Loan Amount

; it being further agreed that a final payment comprised of all principal and interest not sooner paid on the Loans, shall be due and payable on May 29, 2016, the final maturity thereof.

(b) Scheduled Payments of Term B Loans . The Borrower shall make principal payments on the Term B Loans in installments on the last Business Day of each March, June, September and December in each year, commencing with the calendar quarter ending September 30, 2009, with the amount of each such principal installment to equal the amount set forth in Column B below shown opposite of the relevant due date as set forth in Column A below:

 

C OLUMN  A
P AYMENT D ATE

  

C OLUMN  B
S CHEDULED P RINCIPAL P AYMENT ON L OANS

09/30/09

   0.5% of the Initial Term B Loan Amount

12/31/09

   0.5% of the Initial Term B Loan Amount

03/31/10

   0.375% of the Initial Term B Loan Amount

06/30/10

   0.375% of the Initial Term B Loan Amount

09/30/10

   0.375% of the Initial Term B Loan Amount

12/31/10

   0.375% of the Initial Term B Loan Amount

03/31/11

   1.25% of the Initial Term B Loan Amount

06/30/11

   1.25% of the Initial Term B Loan Amount

09/30/11

   1.25% of the Initial Term B Loan Amount

12/31/11

   1.25% of the Initial Term B Loan Amount

03/31/12

   1.25% of the Initial Term B Loan Amount

06/30/12

   1.25% of the Initial Term B Loan Amount

09/30/12

   1.25% of the Initial Term B Loan Amount

12/31/12

   1.25% of the Initial Term B Loan Amount

03/31/13

   1.25% of the Initial Term B Loan Amount

06/30/13

   1.25% of the Initial Term B Loan Amount

09/30/13

   1.25% of the Initial Term B Loan Amount

12/31/13

   1.25% of the Initial Term B Loan Amount

03/31/14

   1.25% of the Initial Term B Loan Amount

 

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C OLUMN  A
P AYMENT D ATE

  

C OLUMN  B
S CHEDULED P RINCIPAL P AYMENT ON L OANS

06/30/14

   1.25% of the Initial Term B Loan Amount

09/30/14

   1.25% of the Initial Term B Loan Amount

12/31/14

   1.25% of the Initial Term B Loan Amount

03/31/15

   1.25% of the Initial Term B Loan Amount

06/30/15

   1.25% of the Initial Term B Loan Amount

09/30/15

   1.25% of the Initial Term B Loan Amount

12/31/15

   1.25% of the Initial Term B Loan Amount

3/31/16

   1.25% of the Initial Term B Loan Amount

; it being further agreed that a final payment comprised of all principal and interest not sooner paid on the Loans, shall be due and payable on May 29, 2016, the final maturity thereof.

(c) Revolving Loans . Each Revolving Loan, both for principal and interest, shall mature and become due and payable by the Borrower on the Revolving Credit Termination Date.

Section 2.8. Prepayments .

(a) Voluntary Prepayments of Term A Loans . The Borrower may, at its option, upon notice as herein provided, prepay without premium or penalty at any time all, or from time to time any part of, the Term A Loans, in a multiple of $500,000 and an aggregate amount of not less than $1,000,000; provided that, the Borrower may not make any voluntary prepayment of the Term A Loans until the Term B Loans have been paid in full. The Borrower will give the Administrative Agent written notice (or telephone notice promptly confirmed by written notice) of each optional prepayment under this Section 2.8(a) prior to 2:00 p.m. (Cincinnati, Ohio time) at least one Business Date prior to the date fixed for such prepayment (which notice may be revoked at the Borrower’s option). Each such notice shall specify the date of such prepayment (which shall be a Business Day), the principal amount of the Term A Loans to be prepaid and the interest to be paid on the prepayment date with respect to such principal amount being repaid. Any prepayments made pursuant to this Section 2.8(a) shall be applied against the remaining scheduled installments of principal due in respect of such Term A Loans in direct order of maturity.

(b) Voluntary Prepayments of Term B Loans . The Borrower may, at its option, upon notice as herein provided, prepay without premium or penalty at any time all, or from time to time any part of, the Term B Loans, in a multiple of $500,000 and an aggregate amount of not less than $1,000,000. The Borrower will give the Administrative Agent written notice (or telephone notice promptly confirmed by written notice) of each optional prepayment under this Section 2.8(b) prior to 2:00 p.m. (Cincinnati, Ohio time) at least one Business Date prior to the date fixed for such prepayment (which notice may be revoked at the Borrower’s option). Each such notice shall specify the date of such prepayment (which shall be a Business Day), the principal amount of the Term B Loans to be prepaid and the interest to be paid on the prepayment

 

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date with respect to such principal amount being repaid. Any prepayments made pursuant to this Section 2.8(b) shall be applied against the remaining scheduled installments of principal due in respect of such Term B Loans in direct order of maturity.

(c) Voluntary Prepayments of Revolving Loans and Swing Loans . The Borrower may prepay without premium or penalty (except as set forth in Section 8.1 below) and in whole or in part any Borrowing of (i) Revolving Loans that are Eurodollar Loans at any time upon at least 3 Business Days prior notice by the Borrower to the Administrative Agent, (ii) in the case of a Borrowing of Revolving Loans that are Base Rate Loans, notice delivered by the Borrower to the Administrative Agent no later than 10:00 a.m. (Cincinnati time) on the date of prepayment or (iii) Swing Loans at any time without prior notice, in each case, such prepayment to be made by the payment of the principal amount to be prepaid and, in the case of any Eurodollar Loans or Swing Loans, accrued interest thereon to the date fixed for prepayment plus any amounts due the Lenders under Section 8.1; provided, however, the Borrower may not partially repay a Borrowing (other than a Borrowing of Swing Loans) (i) if such Borrowing is of Base Rate Loans, in a principal amount less than $500,000, (ii) if such Borrowing is of Eurodollar Loans, in a principal amount less than $1,000,000, and (iii) in each case, unless it is in an amount such that the minimum amount required for a Borrowing pursuant to Section 2.6 remains outstanding.

(d) Mandatory . (i) If the Borrower or any Subsidiary shall at any time or from time to time make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in excess of $5,000,000.00 individually, then (x) the Borrower shall promptly notify the Administrative Agent of such Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds in excess of the amount specified above; provided that in the case of each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss, the Net Cash Proceeds thereof in assets used or useful in the business of the Borrower or its Subsidiaries, then so long as no Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this Section in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested, or the Borrower or a Subsidiary has entered into a binding contract to so invest or reinvest such Net Cash Proceeds during such 180-day period. Promptly after the end of such 180-day period, to the extent such Net Cash Proceeds have not been so invested or reinvested or such a binding contract entered into, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds in excess of the amount specified above not so invested or reinvested or subject to such binding contract. The amount of each such prepayment shall be applied first to the outstanding Term A Loans until paid in full and then to the outstanding Term B Loans until paid in full and then to the Revolving Loans until paid in full and then to the Swing Loans. If the Administrative Agent or the Required Lenders so request, all proceeds of such Disposition or Event of Loss that the Borrower or its Subsidiary intends to invest or reinvest shall be maintained in operating accounts at the Administrative Agent or its Affiliates until invested, reinvested or applied to the Obligations pursuant to this Section 2.8(d).

 

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(ii) On or before April 30th of each year, beginning in 2010, the Borrower shall prepay the then-outstanding Loans by an amount equal to 75% of Excess Cash Flow of Borrower and its Subsidiaries for the most recently completed fiscal year of the Borrower. The amount of each such prepayment shall be applied first to the outstanding Term B Loans until paid in full and then to the outstanding Term A Loans until paid in full and then to the Revolving Loans until paid in full and then to the Swing Loans. Any voluntary prepayments of principal of the Term A Loans and Term B Loans made during any fiscal year and on or prior to April 30th of the following year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(d)(ii) for such year; provided that, the amount required to be paid under this Section 2.8(d)(ii) shall not in any event be reduced to less than zero, and no such voluntary prepayments shall reduce payments required to be made under this Section 2.8(d)(ii) in more than one year (i.e., any payments made between the end of a fiscal year and the payment required under this Section 2.8(d)(ii) in respect thereof shall not be double counted).

(iii) The Borrower shall, on each date the Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Revolving Loans and Swing Loans and, if necessary after such Revolving Loans and Swing Loans have been repaid in full, replace or cause to be canceled (or provide an L/C Backstop or make other arrangements reasonably satisfactory to the L/C Issuer) outstanding Letters of Credit by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans, Swing Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitments have been so reduced.

(iv) Unless the Borrower otherwise directs, prepayments of Revolving Loans under this Section 2.8(d) shall be applied first to Borrowing Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Eurodollar Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(d) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term A Loans, Term B Loans, Swing Loans or Eurodollar Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 8.1. Each prefunding of L/C Obligations that the Borrower chooses to make to the Administrative Agent as a result of the application of Section 2.8(d)(iii) above by the deposit of cash or Cash Equivalents with the Administrative Agent shall be made in accordance with Section 7.4.

(e) Defaulting Lenders . Until such time as the Default Excess (as defined below) with respect to any Defaulting Lender has been reduced to zero, (i) any voluntary prepayment of the Revolving Loans pursuant to Section 2.8(c) shall, if the Borrower so directs at the time of making such voluntary prepayment, be applied to the Revolving Loans of other Lenders as if such Defaulting Lender had no loans outstanding and the Revolving Credit Commitments of such Defaulting Lender were zero and (ii) any mandatory prepayment of the Loans pursuant to Section 2.8(d) shall, if the Borrower so directs at the time of making such mandatory prepayment, be applied to the Loans of other Lenders (but not to the Loans of such Defaulting Lender) as if such Defaulting Lender has funded all defaulted Loans of such Defaulting Lender, it being understood and agreed that the Borrower shall be entitled to retain any portion of any mandatory prepayment of the Loans that is not paid to such Defaulting Lender solely as a result of the operation of the provisions of this clause (e). “Default Excess” means, with respect to any Defaulting Lender, the excess, if any, of such Defaulting Lender’s Percentage of the aggregate

 

-40-


outstanding principal amount of the applicable Loans of all the applicable Lenders (calculated as if all Defaulting Lenders (including such Defaulting Lender) had funded all of their respective defaulted Loans) over the aggregate outstanding principal amount of the applicable Loans of such Defaulting Lender.

(f) The Administrative Agent will promptly advise each Lender of any notice of prepayment it receives from the Borrower, and (i) in the case of any partial prepayment under Sections 2.8(a) or 2.8(b) hereof, such prepayment shall be applied to the remaining amortization payments on the relevant Loans in the direct order of maturity and (ii) in the case of any partial prepayment under Section 2.8(d) hereof, such payment shall be applied ratably to the remaining amortization payments on the relevant Loans.

Section 2.9. Place and Application of Payments . All payments of principal of and interest on the Loans and the Reimbursement Obligations, and of all other Obligations payable by the Borrower under this Agreement and the other Loan Documents, shall be made by the Borrower to the Administrative Agent by no later than 2:00 p.m. (Cincinnati time) on the due date thereof at the office of the Administrative Agent in Cincinnati, Ohio (or such other location as the Administrative Agent may designate to the Borrower in writing) for the benefit of the Lender or Lenders entitled thereto. Any payments received after such time shall be deemed to have been received by the Administrative Agent on the next Business Day. All such payments shall be made in Dollars, in immediately available funds at the place of payment, in each case without set-off or counterclaim, except as provided in Section 10.1. The Administrative Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal or interest on Loans and on Reimbursement Obligations in which the Lenders have purchased Participating Interests ratably to the Lenders and like funds relating to the payment of any other amount payable to any Lender to such Lender, in each case to be applied in accordance with the terms of this Agreement.

Anything contained herein to the contrary notwithstanding, (x) pursuant to the exercise of remedies under Sections 7.2 and 7.3 hereof or (y) after written instruction by the Required Lenders after the occurrence and during the continuation of an Event of Default, all payments and collections received in respect of the Obligations and all proceeds of the Collateral received, in each instance, by the Administrative Agent or any of the Lenders, other than payments and collection received pursuant to the Limited Guaranty, shall be remitted to the Administrative Agent and distributed as follows:

(a) first, to the payment of any outstanding costs and expenses incurred by the Administrative Agent, and any security trustee therefor, in monitoring, verifying, protecting, preserving or enforcing the Liens on the Collateral, in protecting, preserving or enforcing rights under the Loan Documents, and in any event all costs and expenses of a character which the Borrower has agreed to pay the Administrative Agent under Section 10.13 hereof (such funds to be retained by the Administrative Agent for its own account unless it has previously been reimbursed for such costs and expenses by the Lenders, in which event such amounts shall be remitted to the Lenders to reimburse them for payments theretofore made to the Administrative Agent);

 

-41-


(b) second, to the payment of principal and interest on the Swing Loans until paid in full;

(c) third, to the payment of any outstanding interest and fees due under the Loan Documents to be allocated pro rata in accordance with the aggregate unpaid amounts owing to each holder thereof;

(d) fourth, to the payment of principal on the Term B Loans, Revolving Loans, unpaid Reimbursement Obligations, together with amounts to be held by the Administrative Agent as collateral security for any outstanding L/C Obligations pursuant to Section 7.4 hereof (until the Administrative Agent is holding an amount of cash equal to the then outstanding amount of all Letters of Credit, to the extent the same have not been replaced or cancelled or otherwise provided for to the reasonable satisfaction of the L/C Issuer), and Hedging Liability, the aggregate amount paid to, or held as collateral security for, the Lenders and, in the case of Hedging Liability, their Affiliates to be allocated pro rata in accordance with the aggregate unpaid amounts owing to each holder thereof;

(e) fifth, to the payment of principal on the Term A Loans to be allocated pro rata in accordance with the aggregate unpaid amounts owing to each holder thereof until paid in full;

(f) sixth, to the payment of all other unpaid Obligations and all other indebtedness, obligations, and liabilities of the Borrower and its Subsidiaries secured by the Collateral Documents (including, without limitation, Funds Transfer Liability, Deposit Account Liability and Data Processing Obligations) to be allocated pro rata in accordance with the aggregate unpaid amounts owing to each holder thereof; and

(g) seventh, to the Borrower or whoever else may be lawfully entitled thereto.

Anything contained herein to the contrary notwithstanding, all payments and collections received in respect of the Obligations pursuant to the Limited Guaranty, in each instance, by the Administrative Agent, the L/C Issuer or any of the Lenders shall be remitted to the Administrative Agent and distributed as follows:

(a) first, to the payment of any outstanding costs and expenses incurred by the Administrative Agent, protecting, preserving or enforcing the Limited Guaranty, and in any event all costs and expenses of a character which the Borrower has agreed to pay the Administrative Agent under Section 10.13 hereof in respect of the Limited Guaranty (such funds to be retained by the Administrative Agent for its own account unless it has previously been reimbursed for such costs and expenses by the Lenders, in which event such amounts shall be remitted to the Lenders to reimburse them for payments theretofore made to the Administrative Agent);

 

-42-


(b) second, to the payment of any outstanding interest due to the Term A Lenders under the Loan Documents to be allocated pro rata in accordance with the aggregate unpaid amounts owing to the Term A Lenders;

(c) third, to the payment of principal on the Term A Loans to be allocated pro rata in accordance with the aggregate unpaid amounts owing to each holder thereof; and

(d) fourth, to the Borrower or whoever else may be lawfully entitled thereto.

Section 2.10. Commitment Terminations .

(a) Voluntary . The Borrower shall have the right at any time and from time to time, upon 3 Business Days prior written notice to the Administrative Agent, to terminate the Revolving Credit Commitments in whole or in part, any partial termination to be (i) in an amount not less than $1,000,000 or any greater amount that is an integral multiple of $100,000 and (ii) allocated ratably among the Lenders in proportion to their respective Revolver Percentages, provided that the Revolving Credit Commitments may not be reduced to an amount less than the sum of the aggregate principal amount of Revolving Loans, Swing Loans and of L/C Obligations then outstanding. Any termination of the Revolving Credit Commitments below the L/C Sublimit then in effect shall reduce the L/C Sublimit by a like amount. Any termination of the Revolving Credit Commitments below the Swing Line Sublimit then in effect shall reduce the Swing Line Sublimit by a like amount. The Administrative Agent shall give prompt notice to each Lender of any such termination of the Revolving Credit Commitments. Any termination of the Revolving Credit Commitments pursuant to this Section 2.10 may not be reinstated.

Section 2.11. Swing Loans .

(a) Generally . Subject to the terms and conditions hereof, as part of the Revolving Credit, the Administrative Agent agrees to make loans in Dollars to the Borrower under the Swing Line (individually a “Swing Loan” and collectively the “Swing Loans” ) which shall not in the aggregate at any time outstanding exceed the Swing Line Sublimit; provided, however, the sum of the Revolving Loans, Swing Loans and L/C Obligations at any time outstanding shall not exceed the sum of all Revolving Credit Commitments in effect at such time. The Swing Loans may be availed of by the Borrower from time to time and borrowings thereunder may be repaid and used again during the period ending on the Revolving Credit Termination Date and each Swing Loan not sooner repaid shall mature and be due and payable by the Borrower on such date. Except as provided in clause (c) below, each Swing Loan shall be in a minimum amount of $250,000 or such greater amount which is an integral multiple of $100,000.

(b) Interest on Swing Loans . Each Swing Loan shall bear interest until repaid (whether by acceleration or otherwise) at a rate per annum equal to, at the option of the Borrower, (x) the sum of the Base Rate plus the Applicable Margin for Base Rate Loans under the Revolving Credit as from time to time in effect (computed on the basis of a year of 365 or 366 days, as the case may be, for the actual number of days elapsed) or (y) the Administrative Agent’s Quoted Rate (computed on the basis of a year of 360 days for the actual number of days elapsed); provided that, notwithstanding the foregoing, any deemed borrowing of a Swing Loan pursuant

 

-43-


to clause (c)(ii) below shall bear interest as described in clause (i)(x) above. Interest on each Swing Loan shall be due and payable on the last day of each Interest Period applicable thereto.

(c) Requests for Swing Loans . (i) Except as provided in clause (ii) below, the Borrower shall give the Administrative Agent prior notice (which may be written or oral), no later than 12:00 noon (Cincinnati time) on the date upon which the Borrower requests that any Swing Loan be made or such later time as may be acceptable to the Administrative Agent, in its reasonable discretion, of the amount and date of such Swing Loan, and the Interest Period requested therefor. Within 30 minutes after receiving such notice, the Administrative Agent shall in its discretion quote an interest rate to the Borrower at which the Administrative Agent would be willing to make such Swing Loan available to the Borrower for the Interest Period so requested (the rate so quoted for a given Interest Period being herein referred to as “Administrative Agent’s Quoted Rate” ). The Borrower acknowledges and agrees that the interest rate quote is given for immediate and irrevocable acceptance. If the Borrower does not so immediately accept the Administrative Agent’s Quoted Rate for the full amount requested by the Borrower for such Swing Loan, the Administrative Agent’s Quoted Rate shall be deemed immediately withdrawn and such Swing Loan shall bear interest at the rate per annum determined by adding the Applicable Margin for Base Rate Loans under the Revolving Credit to the Base Rate as from time to time in effect. Subject to the terms and conditions hereof, the proceeds of such Swing Loan shall be made available to the Borrower by wire transfer to an account designated by the Borrower.

(ii) Notwithstanding clause (i) above, in the event that there is a negative balance at the end of any Business Day in the Borrower’s “concentration” account that it maintains with the Administrative Agent, the Borrower shall be deemed to have requested (without the necessity of any formal or written notice), and, subject to the first sentence of Section 2.11(a) hereof, the Administrative Agent shall make, a Swing Loan in the amount of such negative balance. Anything contained in this Section 2.11(c) to the contrary notwithstanding, (x) the obligation of the Administrative Agent to make Swing Loans shall be subject to all of the terms and conditions of this Agreement and (y) the Administrative Agent shall not be obligated to make more than one Swing Loan during any one day.

(d) Refunding of Swing Loans . In its sole and absolute discretion, the Administrative Agent may at any time, on behalf of the Borrower (which the Borrower hereby irrevocably authorizes the Administrative Agent to act on its behalf for such purpose) and with notice to the Borrower, request each Lender to make a Revolving Loan in the form of a Base Rate Loan in an amount equal to such Lender’s Revolver Percentage of the amount of the Swing Loans outstanding on the date such notice is given. Unless an Event of Default described in Section 7.1(j) or 7.1(k) exists with respect to the Borrower, regardless of the existence of any other Event of Default, each Lender shall make the proceeds of its requested Revolving Loan available to the Administrative Agent, in immediately available funds, at the Administrative Agent’s principal office in Cincinnati, Ohio, before 12:00 Noon (Cincinnati time) on the Business Day following the day such notice is given. The proceeds of such Borrowing of Revolving Loans shall be immediately applied to repay the outstanding Swing Loans.

 

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(e) Participations . If any Lender refuses or otherwise fails to make a Revolving Loan when requested by the Administrative Agent pursuant to Section 2.11(d) above (because an Event of Default described in Section 7.1(j) or 7.1(k) exists with respect to the Borrower or otherwise), such Lender will, by the time and in the manner such Revolving Loan was to have been funded to the Administrative Agent, purchase from the Administrative Agent an undivided participating interest in the outstanding Swing Loans in an amount equal to its Revolver Percentage of the aggregate principal amount of Swing Loans that were to have been repaid with such Revolving Loans; provided that the foregoing purchases shall be deemed made hereunder without any further action by such Lender or the Administrative Agent. Each Lender that so purchases a participation in a Swing Loan shall thereafter be entitled to receive its Revolver Percentage of each payment of principal received on the Swing Loan and of interest received thereon accruing from the date such Lender funded to the Administrative Agent its participation in such Loan. The several obligations of the Lenders under this Section shall be absolute, irrevocable and unconditional under any and all circumstances whatsoever and shall not be subject to any set-off, counterclaim or defense to payment which any Lender may have or have had against the Borrower, any other Lender or any other Person whatever. Without limiting the generality of the foregoing, such obligations shall not be affected by any Default or Event of Default or by any reduction or termination of the Revolving Credit Commitments of any Lender, and each payment made by a Lender under this Section shall be made without any offset, abatement, withholding or reduction whatsoever.

Section 2.12. Evidence of Indebtedness . (a) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

(b) The Administrative Agent shall also maintain accounts in which it will record (i) the amount of each Loan made hereunder, with respect to Revolving Loans, the type thereof and, with respect to Eurodollar Loans and Swing Loans, the Interest Period with respect 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.

(c) The entries maintained in the accounts maintained pursuant to paragraphs (a) and (b) above shall be prima facie evidence of the existence and amounts of the Obligations therein recorded; provided, however, that the failure of the Administrative Agent or any Lender to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Obligations in accordance with their terms.

(d) Any Lender may request that its Loans be evidenced by a promissory note or notes in the forms of Exhibit D-1 (in the case of its Term A Loan and referred to herein as a “Term A Note” ), D-2 (in the case of its Term B Loan and referred to herein as a “Term B Note” ), D-3 (in the case of its Revolving Loans and referred to herein as a “Revolving Note” ) or D-4 (in the case of its Swing Loans and referred to herein as a “Swing Note” ), as applicable (the Term A Notes, Term B Notes, Revolving Notes and Swing Note being hereinafter referred to collectively as the “Notes” and individually as a “Note” ). In such event, the Borrower shall prepare, execute and

 

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deliver to such Lender a Note payable to the order of such Lender in the amount of the Term A Loan, Term B Loan, Revolving Credit Commitment, or Swing Line Sublimit, as applicable. Thereafter, the Loans evidenced by such Note or Notes and interest thereon shall at all times (including after any assignment pursuant to Section 10.10) be represented by one or more Notes payable to the order of the payee named therein or any assignee pursuant to Section 10.10, except to the extent that any such Lender or assignee subsequently returns any such Note for cancellation and requests that such Loans once again be evidenced as described in subsections (a) and (b) above.

Section 2.13. Fees .

(a) Revolving Credit Commitment Fee . The Borrower shall pay to the Administrative Agent for the ratable account of the Lenders according to their Revolver Percentages a commitment fee at the rate per annum equal to the Applicable Margin (computed on the basis of a year of 360 days and the actual number of days elapsed) on the average daily Unused Revolving Credit Commitments (the “Commitment Fee” ); provided, however, that no commitment fee shall accrue to the Unused Revolving Credit Commitment of a Defaulting Lender, or be payable for the benefit of such Lender, so long as such Lender shall be a Defaulting Lender. Such commitment fee shall be payable quarterly in arrears on the last day of each March, June, September, and December in each year (commencing on the first such date occurring after the date hereof) and on the Revolving Credit Termination Date, unless the Revolving Credit Commitments are terminated in whole on an earlier date, in which event the commitment fee for the period to the date of such termination in whole shall be paid on the date of such termination.

(b) Letter of Credit Fees . On the date of issuance or extension, or increase in the amount, of any Letter of Credit pursuant to Section 2.3 hereof, the Borrower shall pay to the L/C Issuer for its own account a fronting fee equal to 0.125% of the face amount of (or of the increase in the face amount of) such Letter of Credit. Quarterly in arrears, on the last day of each March, June, September, and December, commencing on the first such date occurring after the date hereof, the Borrower shall pay to the Administrative Agent, for the ratable benefit of the Lenders according to their Revolver Percentages, a letter of credit fee at a rate per annum equal to the Applicable Margin (computed on the basis of a year of 360 days and the actual number of days elapsed) in effect during each day of such quarter applied to the daily average face amount of Letters of Credit outstanding during such quarter; provided that, any portion of the Letter of Credit fee paid to Fifth Third Michigan on any of its Affiliates shall be reduced by the amount of any fronting fee paid with respect to such Letters of Credit as provided above until the Borrower receives full credit for such fronting fee; provided further that, while any Event of Default exists or after acceleration, such rate shall increase by 2% over the rate otherwise payable and such fee shall be paid on demand of the Administrative Agent at the request or with the consent of the Required Lenders; provided, however, that in the absence of acceleration, any rate increase pursuant to the foregoing proviso shall be made at the direction of the Administrative Agent, acting at the request or with the consent of the Required Lenders; provided further that, no letter of credit fee shall accrue to the Revolver Percentage of a Defaulting Lender, or be payable for the benefit of such Lender, so long as such Lender shall be a Defaulting Lender. In addition, the Borrower shall pay to the L/C Issuer for its own account the L/C Issuer’s standard drawing,

 

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negotiation, amendment, transfer and other administrative fees for each Letter of Credit. Such standard fees referred to in the preceding sentence may be established by the L/C Issuer from time to time.

S ECTION  3. C ONDITIONS P RECEDENT .

Section 3.1. All Credit Events . At the time of each Credit Event under the Revolving Credit hereunder:

(a) each of the representations and warranties set forth herein and in the other Loan Documents shall be and remain true and correct in all material respects as of said time, except to the extent the same expressly relate to an earlier date;

(b) no Default or Event of Default shall have occurred and be continuing or would occur as a result of such Credit Event;

(c) after giving effect to any requested extension of credit, the aggregate principal amount of all Revolving Loans, Swing Loans and L/C Obligations under this Agreement shall not exceed the aggregate Revolving Credit Commitments;

(d) in the case of a Borrowing, the Administrative Agent shall have received the notice required by Section 2.5 hereof, in the case of the issuance of any Letter of Credit the L/C Issuer shall have received a duly completed Application together with any fees called for by Section 2.13 hereof, and, in the case of an extension or increase in the amount of a Letter of Credit, a written request therefor in a form reasonably acceptable to the L/C Issuer together with fees called for by Section 2.13 hereof; and

(e) such Credit Event shall not violate any Applicable Law with respect to the Administrative Agent or any Lender (including, without limitation, Regulation U of the Board of Governors of the Federal Reserve System) as then in effect; provided that, any such Applicable Law shall not entitle any Lender that is not affected thereby to not honor its obligation hereunder to advance, continue or convert any Loan or, in the case of the L/C Issuer, to extend the expiration date of or increase the amount of any Letter of Credit hereunder.

Each request for a Borrowing hereunder and each request for the issuance of, increase in the amount of, or extension of the expiration date of, a Letter of Credit shall be deemed to be a representation and warranty by the Borrower on the date of such Credit Event as to the facts specified in subsections (a) through (d), both inclusive, of this Section.

Section 3.2. Initial Credit Event . Before or concurrently with the initial Credit Event:

(a) the Administrative Agent shall have received copies of the certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (or comparable organizational documents) of Holdco, the Borrower and CMC and any amendments thereto, certified in each instance by its Secretary,

 

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Assistant Secretary or Chief Financial Officer and, with respect to organizational documents filed with a Governmental Authority, by the applicable Governmental Authority or a certified statement from the Secretary, Assistant Secretary or Chief Financial Officer of Holdco, the Borrower and CMC, respectively, certifying that the organizational documents previously delivered to the Administrative Agent have not been amended, supplemented, amended and restated or otherwise modified since the date of their original delivery;

(b) the Administrative Agent shall have received copies of resolutions of the board of directors (or similar governing body) of the Borrower authorizing the execution, delivery and performance of the Amendment and Restatement Agreement and Reaffirmation, dated as of June 30, 2009, whereby this Agreement is amended and restated in the form hereof and the Borrower’s obligations under this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby are reaffirmed, together with specimen signatures of the persons authorized to execute such documents on the Borrower’s behalf, all certified in each instance by its Secretary, Assistant Secretary or Chief Financial Officer;

(c) the Administrative Agent shall have received copies of the certificates of good standing (if available) for each of Holdco, the Borrower and of CMC from the office of the secretary of state or other appropriate governmental department or agency of the state of its formation, incorporation or organization, as applicable;

(d) the Administrative Agent shall have received a list of the Borrower’s Authorized Representatives; and

(e) the Administrative Agent shall have received a favorable written opinion of counsel to Holdco, the Borrower and CMC, in form and substance reasonably satisfactory to the Administrative Agent.

S ECTION  4. T HE C OLLATERAL , THE G UARANTY AND THE L IMITED G UARANTY .

Section 4.1. Collateral . The Obligations, Hedging Liability, and Funds Transfer Liability, Deposit Account Liability and Data Processing Obligations shall be secured by (a) valid, perfected, and enforceable Liens on all right, title, and interest of Holdco, the Borrower and each Subsidiary (other than an Excluded Subsidiary) in all capital stock and other equity interests (other than Excluded Equity Interests) held by such Person in each of its Subsidiaries, whether now owned or hereafter formed or acquired, and all proceeds thereof, and (b) valid, perfected, and enforceable Liens on all right, title, and interest of Holdco, the Borrower and each Subsidiary (other than an Excluded Subsidiary) in all personal property and fixtures, whether now owned or hereafter acquired or arising, and all proceeds thereof (other than Excluded Property).

Section 4.2. Liens on Real Property . In the event that the Borrower or any Subsidiary (other than an Excluded Subsidiary) owns or hereafter acquires real property having a fair market value in excess of $5,000,000.00 in the aggregate (other than any Excluded Property), within 90

 

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days of the Closing Date or the acquisition thereof (or such longer period as to which the Administrative Agent may consent), the Borrower shall, or shall cause such Subsidiary to, execute and deliver to the Administrative Agent (or a security trustee therefor) a mortgage or deed of trust reasonably acceptable in form and substance to the Administrative Agent for the purpose of granting to the Administrative Agent a Lien on such real property to secure the Obligations, Hedging Liability, and Funds Transfer Liability, Deposit Account Liability and Data Processing Obligations, shall pay all taxes and reasonable costs and expenses incurred by the Administrative Agent in recording such mortgage or deed of trust.

Section 4.3. Limited Guaranty . The collection of the Obligations arising in connection with the Term A Loans shall at all times be guaranteed by the Limited Guarantor pursuant to a collection guaranty agreement in favor of the Administrative Agent, for the benefit of the Term A Lenders, as the same may be amended, restated, amended and restated, modified or supplemented from time to time (the “Limited Guaranty” ).

Section 4.4. Guaranty . The payment and performance of the Obligations, Hedging Liability, and Funds Transfer, Deposit Account Liability and Data Processing Obligations shall at all times be guaranteed by Holdco and each Subsidiary (other than an Excluded Subsidiary) (each, a “Guarantor” and, collectively, the “Guarantors” ) pursuant to a guaranty agreement in form and substance acceptable to the Administrative Agent, as the same may be amended, restated, amended and restated, modified or supplemented from time to time (the “Guaranty” ).

Section 4.5. Further Assurances . The Borrower agrees that it shall, and shall cause each Subsidiary (other than any Excluded Subsidiary) to, from time to time at the request of the Administrative Agent or the Required Lenders, execute and deliver such documents and do such acts and things as the Administrative Agent or the Required Lenders may reasonably request in order to provide for or perfect or protect such Liens on the Collateral. In the event the Borrower or any Subsidiary forms or acquires any other Subsidiary (other than an Excluded Subsidiary) after the date hereof, on or prior to the later to occur of (a) 30 days following the date of such acquisition or formation and (ii) the date of the required delivery of the certificate required by Section 6.1(c) following the date of such acquisition or formation (or such longer period as to which the Administrative Agent may consent), the Borrower shall cause such newly formed or acquired Subsidiary to execute such Collateral Documents (or supplements, assumptions or amendments to existing Collateral Documents) as the Administrative Agent may then require, and the Borrower shall also deliver to the Administrative Agent, or cause such Subsidiary to deliver to the Administrative Agent, at the Borrower’s cost and expense, such other instruments, documents, certificates, and opinions reasonably required by the Administrative Agent in connection therewith.

Section 4.6. Limitation on Collateral . Notwithstanding anything to the contrary in Sections 4.1 through 4.5 or any other Collateral Document (a) the Administrative Agent shall not require the taking of a Lien on, or require the perfection of any Lien granted in, those assets as to which the cost of obtaining or perfecting such Lien (including any mortgage, stamp, intangibles or other tax or expenses relating to such Lien) is excessive in relation to the benefit to the Lenders of the security afforded thereby as reasonably determined by the Borrower and the Administrative Agent and (b) Liens required to be granted pursuant to Section 4.5 shall be

 

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subject to exceptions and limitations consistent with those set forth in the Collateral Documents as in effect on the Closing Date (to the extent appropriate in the applicable jurisdiction).

S ECTION  5. R EPRESENTATIONS AND W ARRANTIES .

The Borrower represents and warrants to each Lender and the Administrative Agent that:

Section 5.1. Organization and Qualification . The Borrower and each of its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (ii) has the power and authority to own its property and to transact the business in which it is engaged and proposes to engage, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect, and (iii) is duly qualified and in good standing in each jurisdiction where the ownership, leasing or operation of property or the conduct of its business requires such qualification, except, in each case, where the same could not be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.

Section 5.2. Authority and Enforceability . The Borrower has the power and authority to enter into this Agreement and the other Loan Documents executed by it, to make the borrowings herein provided for, to issue its Notes (if any), to grant to the Administrative Agent the Liens described in the Collateral Documents executed by the Borrower, and to perform all of its obligations hereunder and under the other Loan Documents executed by it. Each other Loan Party has the power and authority to enter into the Loan Documents executed by it, to grant to the Administrative Agent the Liens described in the Collateral Documents executed by such Person, and to perform all of its obligations under the Loan Documents executed by it. The Loan Documents delivered by the Loan Parties have been duly authorized by proper corporate and/or other organizational proceedings, executed, and delivered by such Person and constitute valid and binding obligations of such Person enforceable against it in accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally and general principles of equity (regardless of whether the application of such principles is considered in a proceeding in equity or at law); and this Agreement and the other Loan Documents do not, nor does the performance or observance by any Loan Party, if any, of any of the matters and things herein or therein provided for, (a) violate any provision of law or any judgment, injunction, order or decree binding upon any Loan Party, (b) contravene or constitute a default under any provision of the organizational documents (e.g., charter, articles of incorporation, by-laws, articles of association, operating agreement, partnership agreement or other similar document) of any Loan Party, (c) contravene or constitute a default under any covenant, indenture or agreement of or affecting any Loan Party or any of its Property, or (d) result in the creation or imposition of any Lien on any Property of any Loan Party other than the Liens granted in favor of the Administrative Agent pursuant to the Collateral Documents and Permitted Liens, except with respect to clauses (a), (c) or (d), to the extent, individually or in the aggregate, that such violation, contravention, breach, conflict, default or creation or imposition of any Lien could not reasonably be expected to result in a Material Adverse Effect.

 

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Section 5.3. No Material Adverse Change . Since the Closing Date, there has been no event or circumstance which individually or in the aggregate could reasonably be expected to have a Material Adverse Effect.

Section 5.4. Litigation and Other Controversies . There is no litigation, arbitration or governmental proceeding pending or, to the knowledge of the Borrower and its Subsidiaries, threatened against the Borrower or any of its Subsidiaries that could reasonably be expected to have a Material Adverse Effect.

Section 5.5. True and Complete Disclosure . As of the Closing Date, all information (other than projections or any other forward-looking information and any information of a general economic or industry-specific nature) furnished by or on behalf of the Borrower or any of its Subsidiaries in writing to the Administrative Agent, the L/C Issuer or any Lender for purposes of or in connection with this Agreement, or any transaction contemplated herein, is true and accurate in all material respects and not incomplete by omitting to state any fact necessary to make such information (taken as a whole) not misleading in light of the circumstances under which such information was provided; provided that, with respect to projected financial information furnished by or on behalf of the Borrower or any of its Subsidiaries, the Borrower only represents and warrants that such information is prepared in good faith based upon assumptions believed to be reasonable at the time (it being understood that such projections are subject to uncertainties and contingencies, many of which are beyond the control of the Borrower, that actual results may vary from projected results and such variances may be material and that the Borrower makes no representation as to the attainability of such projections or as to whether such projections will be achieved or will materialize).

Section 5.6. Use of Proceeds; Margin Stock . All proceeds of the Revolving Loans and Swing Loans shall be used by the Borrower to pay fees and expenses incurred in connection with this Agreement and the transaction contemplated hereby and for working capital and other general corporate purposes. No part of the proceeds of any Loan or other extension of credit hereunder will be used by the Borrower or any Subsidiary thereof to purchase or carry any margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System, “Margin Stock” ) or to extend credit to others for the purpose of purchasing or carrying any margin stock. Neither the making of any Loan or other extension of credit hereunder nor the use of the proceeds thereof will violate or be inconsistent with the provisions of Regulations T, U or X of the Board of Governors of the Federal Reserve System and any successor to all or any portion of such regulations. Margin Stock constitutes less than 25% of the value of those assets of the Borrower and its Subsidiaries that are subject to any limitation on sale, pledge or other restriction hereunder.

Section 5.7. Taxes . The Borrower and each of its Subsidiaries has filed or caused to be filed all tax returns required to be filed by the Borrower and/or any of its Subsidiaries, except where failure to so file could not be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect. The Borrower and each of its Subsidiaries has paid all taxes, assessments and other governmental charges payable by them (other than taxes, assessments and other governmental charges which are not delinquent), except those (a) not overdue by more than thirty (30) days, (b) that are being contested in good faith and by proper

 

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legal proceedings and as to which appropriate reserves have been provided for in accordance with GAAP or (c) the non-payment of which could not be reasonably expected to result in a Material Adverse Effect.

Section 5.8. ERISA . The Borrower and each other member of its Controlled Group has fulfilled its obligations under the minimum funding standards of, and is in compliance in all material respects with, ERISA and the Code to the extent applicable to it and, other than a liability for premiums under Section 4007 of ERISA, has not incurred any liability to the PBGC or a Plan under Title IV of ERISA, except where the failure, noncompliance or incurrence of such could not be reasonably expected to have a Material Adverse Effect. The Borrower and its Subsidiaries have no contingent liabilities with respect to any post-retirement benefits under a Welfare Plan, as defined in Section 3(1) of ERISA, other than liability for continuation coverage described in article 6 of Title 1 of ERISA, and except as could not be reasonably expected to have a Material Adverse Effect.

Section 5.9. Subsidiaries . Schedule 5.9 correctly sets forth, as of the Closing Date, each Subsidiary of the Borrower, its respective jurisdiction of organization and the percentage ownership (whether directly or indirectly) of the Borrower in each class of capital stock or other equity interests of each of its Subsidiaries and also identifies the direct owner thereof.

Section 5.10. Compliance with Laws . The Borrower and each of its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authority in respect of the conduct of their businesses and the ownership of their property, except such noncompliances as could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

Section 5.11. Environmental Matters . The Borrower and each of its Subsidiaries is in compliance with all applicable Environmental Laws and the requirements of any permits issued under such Environmental Laws, except to the extent that the aggregate effect of all noncompliances could not reasonably be expected to have a Material Adverse Effect. There are no pending or, to the knowledge of the Borrower and its Subsidiaries, threatened Environmental Claims, including any such claims (regardless of materiality) for liabilities under CERCLA relating to the disposal of Hazardous Materials, against the Borrower or any of its Subsidiaries or any real property, including leaseholds, owned or operated by the Borrower or any of its Subsidiaries, except such claims as could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. Except as could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect, there are no facts, circumstances, conditions or occurrences on any real property, including leaseholds, owned or operated by the Borrower or any of its Subsidiaries that, to the knowledge of the Borrower and its Subsidiaries, could reasonably be expected (i) to form the basis of an Environmental Claim against the Borrower or any of its Subsidiaries or any such real property, or (ii) to cause any such real property to be subject to any restrictions on the ownership, occupancy, use or transferability of such real property by the Borrower or any of its Subsidiaries under any applicable Environmental Law. To the knowledge of the Borrower, Hazardous Materials have not been Released on or from any real property, including leaseholds, owned or operated by the Borrower

 

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or any of its Subsidiaries where such Release, individually, or when combined with other Releases, in the aggregate, may reasonably be expected to have a Material Adverse Effect.

Section 5.12. Investment Company . Neither the Borrower nor any Subsidiary is an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

Section 5.13. Intellectual Property . The Borrower and each of its Subsidiaries owns all the patents, trademarks, service marks, trade names and copyrights or rights with respect to the foregoing, or each has obtained licenses of all other rights of whatever nature necessary for the present conduct of its businesses, in each case without any known conflict with the rights of others which, or the failure to obtain which, as the case may be, could reasonably be expected to result in a Material Adverse Effect.

Section 5.14. Good Title . The Borrower and its Subsidiaries have good and indefeasible title, or valid leasehold interests, to their material properties and assets as reflected on the Borrower’s most recent consolidated balance sheet provided to the Administrative Agent (except for sales of assets in the ordinary course of business, and such defects in title that could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect) and is subject to no Liens, other than Permitted Liens.

Section 5.15. Labor Relations . Neither the Borrower nor any of its Subsidiaries is engaged in any unfair labor practice that could reasonably be expected to have a Material Adverse Effect. There is (i) no strike, labor dispute, slowdown or stoppage pending against the Borrower or any of its Subsidiaries or, to the knowledge of the Borrower and its Subsidiaries, threatened against the Borrower or any of its Subsidiaries and (ii) to the knowledge of the Borrower and its Subsidiaries, no union representation proceeding is pending with respect to the employees of the Borrower or any of its Subsidiaries and no union organizing activities are taking place, except (with respect to any matter specified in clause (i) or (ii) above, either individually or in the aggregate) such as could not reasonably be expected to have a Material Adverse Effect.

Section 5.16. Capitalization . Except as set forth on Schedule 5.16, all outstanding equity interests of the Borrower and the Subsidiaries have been duly authorized and validly issued, and, to the extent applicable, are fully paid and nonassessable, and as of the Closing Date there are no outstanding commitments or other obligations of any Subsidiary to issue, and no rights of any Person to acquire, any equity interests in any Subsidiary.

Section 5.17. Other Agreements . Neither the Borrower nor any Subsidiary is in default under the terms of any covenant, indenture or agreement of or affecting the Borrower, any Subsidiary or any of their Property, which default could reasonably be expected to have a Material Adverse Effect.

Section 5.18. Governmental Authority and Licensing . The Borrower and its Subsidiaries have received all licenses, permits, and approvals of each Governmental Authority necessary to conduct their businesses, in each case where the failure to obtain or maintain the same could

 

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reasonably be expected to have a Material Adverse Effect. No investigation or proceeding that, if adversely determined, could reasonably be expected to result in revocation or denial of any license, permit or approval is pending or, to the knowledge of the Borrower, threatened, except where such revocation or denial could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

Section 5.19. Approvals . No authorization, consent, license or exemption from, or filing or registration with, any Governmental Authority, nor any approval or consent of any other Person, is or will be necessary to the valid execution, delivery or performance by the Borrower or any other Loan Party of any Loan Document, except (a) for such approvals which have been obtained prior to the date of this Agreement and remain in full force and effect, (b) filings necessary to perfect Liens created by the Loan Documents and (c) consents, approvals, registrations, filings, permits or actions the failure to obtain or perform which could not be reasonably expected to have a Material Adverse Effect.

Section 5.20. Solvency . The Borrower and its Subsidiaries are collectively solvent, able to pay their debts as they become due, and have sufficient capital to carry on their business as currently conducted and all businesses in which they are about to engage.

Section 5.21. Foreign Assets Control Regulations and Anti-Money Laundering .

(a) OFAC . Neither Borrower nor any of its Subsidiaries is (i) a person whose property or interest in property is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Party and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) a person who engages in any dealings or transactions prohibited by Section 2 of such executive order, or is otherwise associated with any such person in any manner violative of Section 2, or (iii) a person on the list of Specially Designated Nationals and Blocked Persons or subject to the limitations or prohibitions under any other U.S. Department of Treasury’s Office of Foreign Assets Control regulation or executive order.

(b) Patriot Act . The Borrower and its Subsidiaries are in compliance, in all material respects, with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act” ). No part of the proceeds of the Loans will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended.

S ECTION  6. C OVENANTS .

The Borrower covenants and agrees that, so long as any Loan or other Obligation hereunder shall remain unpaid or unsatisfied (other than any contingent indemnity obligations):

Section 6.1. Information Covenants . The Borrower will furnish to the Administrative Agent (for delivery to the Lenders):

 

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(a) Quarterly Reports . Within 60 days after the end of each fiscal quarter of the Borrower not corresponding with the fiscal year end, commencing with the first full fiscal quarter of the Borrower ending after the Closing Date, the Borrower’s consolidated balance sheet as at the end of such fiscal quarter and the related consolidated statements of income and retained earnings and of cash flows for such fiscal quarter and for the elapsed portion of the fiscal year-to-date period then ended, each in reasonable detail, prepared by the Borrower in accordance with GAAP, and starting with the first full fiscal quarter after the first anniversary of the Closing Date setting forth comparative figures for the corresponding fiscal quarter in the prior fiscal year, all of which shall be certified by the chief financial officer or other financial or accounting officer of the Borrower that they fairly present in all material respects in accordance with GAAP the financial condition of the Borrower and its Subsidiaries as of the dates indicated and the results of their operations and changes in their cash flows for the periods indicated, subject to normal year-end audit adjustments and the absence of footnotes; provided that, the failure to deliver financial statements pursuant to this paragraph shall not constitute a Default or an Event of Default hereunder at any time, if such failure is caused by acts or omissions of Fifth Third Ohio or its Affiliates.

(b) Annual Statements . Within 120 days after the close of each fiscal year of the Borrower (commencing with the fiscal year ending December 31, 2009), a copy of the Borrower’s consolidated balance sheet as of the last day of the fiscal year then ended and the Borrower’s consolidated statements of income, retained earnings, and cash flows for the fiscal year then ended, and accompanying notes thereto, each in reasonable detail and starting with the first full fiscal year after the first anniversary of the Closing Date showing in comparative form the figures for the previous fiscal year, accompanied by an unqualified opinion of a firm of independent public accountants of recognized national standing, selected by the Borrower, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards; provided that, the failure to deliver financial statements pursuant to this paragraph shall not constitute a Default or an Event of Default hereunder at any time, if such failure is caused by acts or omissions of Fifth Third Ohio or its Affiliates. Notwithstanding the foregoing, for the fiscal year ending December 31, 2009, the financial statements delivered under this clause (b) need only cover the period from and after the Closing Date through and including December 31, 2009.

(c) Compliance Certificate . At the time of the delivery of the financial statements provided for in Sections 6.1(a) and (b), a certificate of the chief financial officer or other financial or accounting officer of the Borrower in the form of Exhibit E (x) stating no Default or Event of Default has occurred and is then continuing or, if a Default or Event of Default exists, a detailed description of the Default or Event of Default and all actions the Borrower is taking with respect to such Default or Event of

 

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Default, and (y) showing the Borrower’s compliance with the covenants set forth in Section 6.19.

(d) Notice of Default or Litigation . Promptly after any senior executive officer of the Borrower obtains knowledge thereof, notice of (i) the occurrence of any event which constitutes a Default or 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) the commencement of, or threat in writing of, or any significant development in, any litigation, labor controversy, arbitration or governmental proceeding pending against the Borrower or any of its Subsidiaries which would reasonably be expected to result in a Material Adverse Effect.

(e) Other Reports and Filings . To the extent not required by any other clause in this Section 6.1, promptly, copies of all financial information, proxy materials and other material information, certificates, reports, statements and completed forms, if any, which the Borrower or any of its Subsidiaries has delivered to holders of, or to any agent or trustee with respect to, Indebtedness of the Borrower or any of its Subsidiaries in their capacity as such a holder, agent or trustee to the extent that the aggregate principal amount of such Indebtedness exceeds (or upon the utilization of any unused commitments may exceed) $15,000,000.00.

(f) Pro Forma Adjustment Certificate . On or before the date on which a Pro Forma Adjustment is made, a certificate of an officer of the Borrower in form reasonably acceptable to the Administrative Agent setting forth the amount of such Pro Forma Adjustment and, in reasonable detail, the calculations and basis therefor.

(g) Environmental Matters . Promptly after any senior executive officer of the Borrower obtains knowledge thereof, notice of one or more of the following environmental matters which individually, or in the aggregate, may reasonably be expected to have a Material Adverse Effect: (i) any notice of an Environmental Claim against the Borrower or any of its Subsidiaries or any real property owned or operated by the Borrower or any of its Subsidiaries; (ii) any condition or occurrence on or arising from any real property owned or operated by the Borrower or any of its Subsidiaries that (a) results in noncompliance by the Borrower or any of its Subsidiaries with any applicable Environmental Law or (b) could reasonably be expected to form the basis of an Environmental Claim against the Borrower or any of its Subsidiaries or any such real property; (iii) any condition or occurrence on any real property owned or operated by the Borrower or any of its Subsidiaries that could reasonably be expected to cause such real property to be subject to any restrictions on the ownership, occupancy, use or transferability by the Borrower or any of its Subsidiaries of such real property under any Environmental Law; and (iv) any removal or remedial actions to be taken in response to the actual or alleged presence of any Hazardous Material on any real property owned or operated by the Borrower or any of its Subsidiaries as required by any Environmental Law or any Governmental Authority. All such notices shall describe in reasonable detail the nature of the claim, investigation, condition, occurrence or removal or remedial action and the Borrower’s or such Subsidiary’s response thereto. In addition, the Borrower

 

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agrees to provide the Lenders with copies of all material non-privileged written communications by the Borrower or any of its Subsidiaries with any Person or Governmental Authority relating to any of the matters set forth in clauses (i)-(iv) above, and such detailed reports relating to any of the matters set forth in clauses (i)-(iv) above as may reasonably be requested by the Administrative Agent or the Required Lenders.

(h) Other Information . From time to time, such other information or documents (financial or otherwise) as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request; provided that, the Administrative Agent and any Lender (through the Administrative Agent) may request such information in their respective capacities as Administrative Agent and Lender only and may not use such information for any purpose other than a purpose reasonably related to its capacity as Administrative Agent or Lender, as applicable.

Information and documents required to be delivered pursuant to Sections 6.1 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address provided to the Administrative Agent or on an Intralinks or similar site to which the Lenders have been granted access; or (ii) on which such documents are transmitted by electronic mail to the Administrative Agent.

Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 6.1 may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any direct or indirect parent of the Borrower or (B) the Borrower’s (or any direct or indirect parent thereof), as applicable, Form 10-K or 10-Q, as applicable, filed with the Securities and Exchange Commission.

Section 6.2. Inspections . The Borrower will, and will cause each Subsidiary to, permit officers, designated representatives and agents of the Administrative Agent (or any Lender solely if accompanying the Administrative Agent), to visit and inspect any Property of the Borrower or such Subsidiary, and to examine the books of account of the Borrower or such Subsidiary and discuss the affairs, finances and accounts of the Borrower or such Subsidiary with its and their officers and independent accountants, all at such reasonable times as the Administrative Agent may request; provided that, (i) prior written notice of any such visit, inspection or examination shall be provided to the Borrower and such visit, inspection or examination shall be performed at reasonable times to be agreed to by the Borrower, which agreement will not be unreasonably withheld, (ii) excluding any such visits and inspections during the continuation of an Event of Default, the Administrative Agent shall not exercise its rights under this Section 6.2 more often than one time during any such fiscal year, the Borrower is not obligated to compensate the Administrative Agent for more than one inspection and examination by the Administrative Agent during any calendar year and any such compensation shall be subject to the limitations of Section 10.13, and (iii) the Administrative Agent may conduct inspections pursuant to this Section 6.2 in its respective capacity as Administrative Agent only and may not conduct inspections or utilize information from such inspections for any purpose other than a purpose reasonably related to its capacity as Administrative Agent. The Administrative Agent shall give

 

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the Borrower a reasonable opportunity to participate in any discussions with the Borrower’s independent public accountants.

Section 6.3. Maintenance of Property, Insurance, Environmental Matters, etc .

(a) The Borrower will, and will cause each of its Subsidiaries to, (i) keep its property, plant and equipment in good repair, working order and condition, except (A) normal wear and tear and casualty and condemnation and (B) to the extent that failure to do so would not reasonably be expected to result in a Material Adverse Effect, and (ii) maintain in full force and effect with financially sound and reputable insurance companies insurance against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business of the Borrower and shall furnish to the Administrative Agent upon its reasonable request (but not more than twice per fiscal year in the absence of an Event of Default) reasonably detailed information as to the insurance so carried.

(b) Without limiting the generality of Section 6.3(a), the Borrower and its Subsidiaries: (i) shall comply with, and maintain all real property in compliance with, any applicable Environmental Laws; (ii) shall obtain and maintain in full force and effect all governmental approvals required for its operations at or on its properties by any applicable Environmental Laws; (iii) shall cure as soon as reasonably practicable any violation of applicable Environmental Laws with respect to any of its properties which individually or in the aggregate may reasonably be expected to have a Material Adverse Effect; (iv) shall not, and shall not permit any other Person to, own or operate on any of its properties any landfill or dump or hazardous waste treatment, storage or disposal facility as defined pursuant to the RCRA, or any comparable state law; and (v) shall not use, generate, treat, store, release or dispose of Hazardous Materials at or on any of the real property except in the ordinary course of its business and in compliance with all Environmental Laws; except, with respect to clauses (i), (ii), (iv) and (v), to the extent, either individually or in the aggregate, all of the same could not be reasonably expected to have a Material Adverse Effect. With respect to any Release of Hazardous Materials, the Borrower and its Subsidiaries shall conduct any necessary or required investigation, study, sampling and testing, and undertake any cleanup, removal, remedial or other response action necessary to remove, cleanup or abate any material quantity of Hazardous Materials released at or on any of its properties as required by any applicable Environmental Law.

Section 6.4. Preservation of Existence . The Borrower will, and will cause each of its Subsidiaries to, do or cause to be done, all things necessary to preserve and keep in full force and effect its existence under the laws of its jurisdiction of organization and its franchises, authority to do business, licenses, patents, trademarks, copyrights and other proprietary rights, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect; provided, however, that nothing in this Section 6.4 shall prevent the Borrower or any Subsidiary from consummating any transaction permitted by Section 6.13.

Section 6.5. Compliance with Laws . The Borrower shall, and shall cause each Subsidiary to, comply in all respects with the requirements of all laws, rules, regulations, ordinances and orders applicable to its property or business operations of any Governmental Authority, where any such non-compliance, individually or in the aggregate, would reasonably be

 

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expected to have a Material Adverse Effect or result in a Lien upon any of its Property (other than a Permitted Lien).

Section 6.6. ERISA . The Borrower shall, and shall cause each Subsidiary to, promptly pay and discharge all obligations and liabilities arising under ERISA of a character which if unpaid or unperformed would reasonably be expected to have a Material Adverse Effect. The Borrower shall, and shall cause each Subsidiary to, promptly notify the Administrative Agent of: (a) the occurrence of any Reportable Event with respect to a Plan, (b) receipt of any notice from the PBGC of its intention to seek termination of any Plan or appointment of a trustee therefor and (c) its intention to terminate or withdraw from any Plan, in each case, except as could not reasonably be expected to have a Material Adverse Effect.

Section 6.7. Payment of Taxes . The Borrower will, and will cause each of its Subsidiaries to, pay and discharge, all material taxes, assessments, fees and other material governmental charges imposed upon it or any of its Property, before becoming delinquent and before any material penalties accrue thereon, unless and to the extent that (a) the same are being contested in good faith and by proper proceedings and as to which appropriate reserves are provided therefor, unless and until any material Lien resulting therefrom attaches to any of its Property or (b) the failure to pay the same could not be reasonably expected to have a Material Adverse Effect.

Section 6.8. Contracts with Affiliates . The Borrower shall not, nor shall it permit any Subsidiary to, enter into any contract, agreement or business arrangement with any of its Affiliates (other than its Subsidiaries) except on terms that are not materially less favorable to the Borrower or such Subsidiary as would have been obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate; provided that the foregoing restrictions shall not apply to:

(a) the payment of customary fees to the Existing Shareholders for management, consulting and financial services rendered to the Borrower and the Subsidiaries and customary investment banking fees paid to the Existing Shareholders for services rendered to the Borrower and the Subsidiaries in connection with divestitures, acquisitions, financings and other transactions in an amount not to exceed $2 million per fiscal year,

(b) transactions permitted by Section 6.15,

(c) the Transactions and the payment of the Transaction Expenses,

(d) the issuance of capital stock or other equity interests of the Borrower or other payment to the management of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries in connection with the Transactions, pursuant to arrangements described in the following clause (e), or otherwise to the extent permitted under this Section 6,

 

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(e) employment and severance arrangements and health, disability and similar insurance or benefit plans between the Borrower (or any direct or indirect parent thereof) and the Subsidiaries and their respective directors, officers, employees (including management and employee benefit plans or agreements, subscription agreements or similar agreements pertaining to the repurchase of capital stock pursuant to put/call rights or similar rights with current or former employees, officers or directors and stock option or incentive plans and other compensation arrangements) in the ordinary course of business or as otherwise approved by the board of directors (or similar governing body) of the Borrower,

(f) the payment of customary fees and reasonable out of pocket costs to, and indemnities provided on behalf of, directors, managers, consultants, officers and employees of the Borrower and the Subsidiaries (or any direct or indirect parent of the Borrower) in the ordinary course of business (in the case of any direct or indirect parent of the Borrower, to the extent attributable to the operations of the Borrower or its Subsidiaries),

(g) transactions with joint ventures for the purchase and sale of goods, equipment or services entered into in the ordinary course of business,

(h) transactions pursuant to permitted agreements in existence on the Closing Date and set forth on Schedule 6.8 or any amendment thereto to the extent such an amendment is not adverse, taken as a whole, to the Lenders in any material respect,

(i) payments by the Borrower and its Subsidiaries to each other pursuant to tax sharing agreements or arrangements among any direct or indirect parent of Borrower and such parent’s Subsidiaries on customary terms,

(j) loans and other transactions among the Borrower and its Subsidiaries (and any direct and indirect parent company of the Borrower) to the extent permitted under this Section 6; provided that any Indebtedness of any Loan Party owed to a Subsidiary that is not a Loan Party shall be subordinated in right of payment to the Obligations, and

(k) payments or loans (or cancellation of loans) to directors, officers, employees, members of management or consultants of the Borrower, any of its direct or indirect parent companies or any of its Subsidiaries which are approved by a majority of the board of directors of the Borrower in good faith.

Section 6.9. No Changes in Fiscal Year . The Borrower shall not, nor shall it permit any Subsidiary to, change its fiscal year for financial reporting purposes from its present basis; provided, however, that the Borrower may, upon written notice to, and consent by, the Administrative Agent, 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.

 

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Section 6.10. Change in the Nature of Business . The Borrower and its Subsidiaries, taken as a whole, will not fundamentally and substantively alter the character of their business, taken as a whole, from the Business conducted by the Borrower on the Closing Date and other business activities incidental or related to any of the foregoing unless such change occurs as a result of any Regulatory Event at any Lender.

Section 6.11. Indebtedness . The Borrower will not, and will not permit any of its Subsidiaries to, contract, create, incur, assume or suffer to exist any Indebtedness, except;

(a) the Obligations, Hedging Liability, and Funds Transfer Liability, Deposit Account Liability and Data Processing Obligations of the Borrower and its Subsidiaries;

(b) Indebtedness owed pursuant to Hedge Agreements entered into in the ordinary course of business and not for speculative purposes with Persons other than Lenders (or their Affiliates);

(c) intercompany Indebtedness among the Borrower and its Subsidiaries to the extent permitted by Section 6.14;

(d) Indebtedness (including Capitalized Lease Obligations and other Indebtedness arising under Capital Leases) the proceeds of which are used to finance the acquisition, lease, construction, repair, replacement, expansion or improvement of fixed or capital assets or otherwise incurred in respect of capital expenditures, whether through the direct purchase of assets or the purchase of capital stock of any Person owning such assets; provided that the aggregate principal amount of Indebtedness outstanding under this paragraph (d) shall not exceed $10,000,000.00 at any time;

(e) Indebtedness of the Borrower and its Subsidiaries not otherwise permitted by this Section in an amount not to exceed $100,000,000.00 in the aggregate at any one time outstanding;

(f) Contingent Obligations incurred by (i) any Subsidiary in respect of Indebtedness of the Borrower or any other Subsidiary that is permitted to be incurred under this Agreement and (ii) the Borrower in respect of Indebtedness of any Subsidiary that is permitted to be incurred under this Agreement;

(g) Contingent Obligations incurred in the ordinary course of business in respect of obligations to suppliers, customers, franchisees, lessors, licensees or distribution partners;

(h) (i) unsecured Indebtedness in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements and (ii) unsecured Indebtedness in respect of intercompany

 

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obligations of the Borrower or any Subsidiary in respect of accounts payable incurred in connection with goods sold or services rendered in the ordinary course of business and not in connection with the borrowing of money;

(i) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, entered into in connection with the disposition of any business, assets or capital stock permitted hereunder, other than Contingent Obligations incurred by any Person acquiring all or any portion of such business, assets or capital stock for the purpose of financing such acquisition;

(j) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, entered into in connection with Permitted Acquisitions or other investments permitted under Section 6.14;

(k) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations incurred in the ordinary course of business and not in connection with the borrowing of money or Hedge Agreements;

(l) Indebtedness of the Borrower or any Subsidiary consisting of (i) obligations to pay insurance premiums or (ii) take or pay obligations contained in supply agreements, in each case arising in the ordinary course of business and not in connection with the borrowing of money or Hedge Agreements;

(m) Indebtedness representing deferred compensation or similar arrangements to employees, consultants or independent contractors of the Borrower (or its direct or indirect parent) and its Subsidiaries incurred in the ordinary course of business or otherwise incurred in connection with the Transactions or any Permitted Acquisition or other investment permitted under Section 6.14;

(n) Indebtedness consisting of promissory notes issued to current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the purchase or redemption of capital stock of the Borrower permitted by Section 6.15;

(o) Indebtedness in respect of Cash Management Services, netting services, automatic clearing house arrangements, employees’ credit or purchase cards, overdraft protections and similar arrangements in each case incurred in the ordinary course of business;

(p) Capitalized Lease Obligations and other Indebtedness arising under Capital Leases to the extent permitted to be incurred pursuant to the Transition Services Agreement (as defined in the Master Investment Agreement),

 

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(q) Indebtedness of the Borrower and its Subsidiaries in existence on the Closing Date and set forth in all material respects on Schedule 6.11;

(r) Indebtedness incurred by the Borrower or any Subsidiary constituting reimbursement obligations with respect to bankers’ acceptances and letters of credit issued in the ordinary course of business, including letters of credit in respect of workers’ compensation laws, unemployment insurance laws or similar legislation, or other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation laws, unemployment insurance laws or similar legislation; provided, however, that upon the drawing of such bankers’ acceptances and letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence;

(s) Indebtedness of the Borrower or any Subsidiary incurred to finance any Acquisition or investment permitted under Section 6.14 in an aggregate principal amount or liquidation preference equal to 100% of the net cash proceeds received by the Borrower and its Subsidiaries 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 proceeds of sales of equity interests to, or contributions received from, the Borrower or any of its Subsidiaries and other than the Cure Amount);

(t) the incurrence by the Borrower or any Subsidiary of Indebtedness which serves to refund or refinance any Indebtedness permitted under clauses (d), (p), (q), (s) and (u) of this Section 6.11 or any Indebtedness issued to so refund, replace or refinance such Indebtedness, including, in each case, additional Indebtedness incurred to pay premiums (including tender premiums), defeasance costs and fees and expenses in connection therewith (collectively, the “Refinancing Indebtedness” ) prior to its respective maturity; provided, however, that such Refinancing Indebtedness:

(A) 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 being refunded or refinanced;

(B) to the extent such Refinancing Indebtedness refinances Indebtedness subordinated or pari passu to the Obligations, such Refinancing Indebtedness is subordinated or pari passu to the Obligations at least to the same extent as the Indebtedness being refinanced or refunded; and

(C) shall not include Indebtedness of a non-Loan Party that refinances Indebtedness of a Loan Party;

(u) Indebtedness of (x) the Borrower or a Subsidiary incurred to finance an acquisition or (y) Persons that are acquired by the Borrower or any Subsidiary or merged into the Borrower or a Subsidiary in accordance with the terms of this Agreement or that

 

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is assumed by the Borrower or any Subsidiary in connection with such acquisition so long as:

(A) no Default exists or shall result therefrom;

(B) any Indebtedness incurred in reliance on clause (x) of this Section 6.11(u) shall not be secured by a Lien and shall not mature or require any payment of principal, in each case, prior to the date which is 91 days after the maturity date of the Term A and B Loans as set forth in Sections 2.7(a) and (b); and

(C) any Indebtedness incurred in reliance on clause (y) of this Section 6.11(u) and either (1) the aggregate principal amount of such Indebtedness that is secured by any Lien, together with all Refinancing Indebtedness in respect thereof, shall not exceed $100,000,000.00 or (2) after giving Pro Forma Effect to such acquisition or merger, the Leverage Ratio is less than or equal to the Leverage Ratio immediately prior to such acquisition or merger;

(v) Indebtedness of the Borrower or any of its Subsidiaries supported by a Letter of Credit in a principal amount not to exceed the face amount of such Letter of Credit;

(w) all customary premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in each of Sections 6.11(a) through 6.11(v) above.

Section 6.12. Liens . The Borrower will not, and will not permit any of its Subsidiaries to, create, incur or suffer to exist any Lien on any of its Property; provided that the foregoing shall not prevent the following (the Liens described below, the “Permitted Liens” ):

(a) inchoate Liens for the payment of taxes which are not yet due and payable or the payment of which is not required by Section 6.7;

(b) Liens (i) arising by statute in connection with worker’s compensation, unemployment insurance, old age benefits, social security obligations, taxes, assessments, statutory obligations or other similar charges, (ii) in connection with bids, tenders, contracts or leases to which the Borrower or any Subsidiary is a party or (iii) to secure public or statutory obligations of such Person or deposits of cash or Cash Equivalents to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or for the payment of rent, in each case, incurred in the ordinary course of business;

(c) mechanics’, workmen’s, materialmen’s, landlords’, carriers’ or other similar Liens arising in the ordinary course of business with respect to obligations which are not overdue by a period of more than 30 days or which, to the extent the failure to do

 

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so could reasonably be expected to have a Material Adverse Effect, are being contested in good faith by appropriate proceedings;

(d) Liens created by or pursuant to this Agreement and the Collateral Documents;

(e) Liens on property of the Borrower or any Subsidiary created solely for the purpose of securing indebtedness permitted by Section 6.11(d) hereof, provided that no such Lien shall extend to or cover other Property of the Borrower or such Subsidiary other than the respective Property so acquired or similar Property acquired from the same lender or its Affiliates, and the principal amount of indebtedness secured by any such Lien shall at no time exceed the purchase price of all such Property;

(f) Liens incurred in connection with Permitted Acquisitions;

(g) easements, rights-of-way, restrictions, and other similar encumbrances as to the use of real property of the Borrower or any Subsidiary incurred in the ordinary course of business which do not impair their use in the operation of the business of such Person;

(h) Liens in favor of (i) Fifth Third Ohio created pursuant to the Clearing Agreement, (ii) one or more financial institutions pursuant to similar sponsorship, clearinghouse and/or settlement arrangements, provided that no Liens permitted under this clause (ii) will extend to cover Property of the Borrower or any Subsidiary other than that held by the other party to such agreement and the amount of such Lien shall not exceed the amount owed by the Borrower or any Subsidiary under such agreement;

(i) ground leases or subleases, licenses or sublicenses in respect of real property on which facilities owned or leased by the Borrower or any of its Subsidiaries are located;

(j) Liens arising from judgments or decrees for the payment of money in circumstances not constituting an Event of Default under Section 7.1;

(k) any interest or title of a lessor, sublessor, licensor or sublicensor or secured by a lessor’s, sublessor’s, licensor’s or sublicensor’s interest under any lease not prohibited by this Agreement;

(l) licenses and sublicenses of intellectual property granted in the ordinary course of business;

(m) any zoning or similar law or right reserved to, or vested in, any Governmental Authority to control or regulate the use of any real property that does not materially interfere with the ordinary course of conduct of the business of the Borrower and its Subsidiaries, taken as a whole;

 

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(n) Liens (i) of a collection bank arising under Section 4-210 of the UCC on items in the course of collection, (ii) attaching to commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business and (iii) in favor of a banking institution arising as a matter of law encumbering deposits (including the right to set off), which are within the general parameters customary in the banking industry;

(o) Liens (i) on cash advances in favor of the seller of any property to be acquired in an investment permitted pursuant to Section 6.14 to be applied against the purchase price for such investment or (ii) consisting of an agreement to sell, transfer, lease or otherwise dispose of any property in a transaction permitted under Section 6.13;

(p) Liens on securities that are the subject of repurchase agreements constituting Cash Equivalents;

(q) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks not given in connection with the issuance of indebtedness, (ii) relating to pooled deposit, automatic clearing house or sweep accounts of the Borrower or any Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower and its Subsidiaries or (iii) relating to purchase orders and other agreements entered into with customers of the Borrower or any Subsidiary in the ordinary course of business;

(r) Liens solely on any cash earnest money deposits or escrow arrangements made by the Borrower or any of its Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder;

(s) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;

(t) Liens incurred to secure any Indebtedness permitted to be incurred under Section 6.11; provided that the aggregate principal amount of all Indebtedness secured by such Liens, together with all Refinancing Indebtedness in respect thereof, shall not exceed $10,000,000.00;

(u) Liens in favor of the issuer of customs, stay, performance, bid, appeal or surety bonds or completion guarantees and other obligations of a like nature or letters of credit issued pursuant to the request of and for the account of such Person in the ordinary course of its business;

(v) Liens existing on the Closing Date and described on Schedule 6.12;

(w) Liens on property or shares of stock of a Person at the time such Person becomes a Subsidiary; provided, however, such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary or concurrently therewith; provided, further, that such Liens may not extend to any other

 

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property owned by the Borrower or any of its Subsidiaries; provided, further, that such Liens secure Indebtedness permitted to be incurred under clause (y) of Section 6.11(u);

(x) Liens on property at the time the Borrower or a Subsidiary acquired the property or concurrently therewith, including any acquisition by means of a merger or consolidation with or into the Borrower or any of its Subsidiaries; provided, however, that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, that the Liens may not extend to any other property owned by the Borrower or any of its Subsidiaries; provided, further, that such Liens secure Indebtedness permitted to be incurred under clause (y) of Section 6.11(u);

(y) Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods, and pledges or deposits in the ordinary course of business securing inventory purchases from vendors; and

(z) 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 permitted by Section 6.11 and secured by any Lien referred to in the foregoing clauses (e), (v), (w) and (x); provided, however, that (i) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus improvements on such property), and (ii) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (A) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (e), (v), (w) and (x) at the time the original Lien became a Permitted Lien hereunder, and (B) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement.

Section 6.13. Consolidation, Merger, Sale of Assets, etc . The Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or merge or consolidate, or convey, sell, lease or otherwise dispose of all or any part of its property, including any disposition as part of any sale-leaseback transactions except that this Section shall not prevent:

(a) the sale and lease of inventory in the ordinary course of business;

(b) the sale, transfer or other disposition of any property that, in the reasonable judgment of the Borrower or its Subsidiaries, has become uneconomic, obsolete or worn out or is no longer useful in its business;

(c) the sale, transfer, lease, or other disposition of Property of the Borrower and its Subsidiaries to one another;

 

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(d) the merger of any Subsidiary with and into the Borrower or any other Subsidiary, provided that, in the case of any merger involving the Borrower, the Borrower is the legal entity surviving the merger;

(e) the disposition or sale of Cash Equivalents;

(f) any Subsidiary may dissolve if the Borrower determines in good faith that such dissolution is in the best interests of the Borrower, such dissolution is not disadvantageous to the Lenders and the Borrower or any Subsidiary receives any assets of such dissolved Subsidiary;

(g) the sale, transfer, lease, or other disposition of Property of the Borrower or any Subsidiary (including any disposition of Property as part of a sale and leaseback transaction) aggregating for the Borrower and its Subsidiaries not more than $25,000,000.00 during any fiscal year of the Borrower;

(h) the lease, sublease, license (or cross-license) or sublicense (or cross-sublicense) of real or personal property in the ordinary course of business;

(i) the sale, transfer or other disposal of property (including like-kind exchanges) to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement property;

(j) the sale, transfer or other disposal of investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements or similar binding arrangements;

(k) any transaction permitted by Section 6.14;

(l) the dispositions listed on Schedule 6.13;

(m) the unwinding of any Hedge Agreement;

(n) the disposition of any asset between or among the Borrower and/or its Subsidiaries as a substantially concurrent interim disposition in connection with a disposition otherwise permitted pursuant to clauses (a) through (m) above; and

(o) the sale of the EFT Business for cash consideration; provided that 100% of the net cash proceeds therefrom are applied toward the repayment of the Obligations in the manner set forth in Section 2.8(d)(i) and Section 2.8(f)(ii).

To the extent any Collateral is disposed of as expressly permitted by this Section 6.13 to any Person other than a Loan Party, such Collateral shall automatically be sold free and clear of the

 

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Liens created by the Loan Documents, and the Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.

Section 6.14. Advances, Investments and Loans . The Borrower will not, and will not permit any of its Subsidiaries to make loans or advances to or make, retain or have outstanding any investments (whether through purchase of equity interests or debt obligations) in, any Person or enter into any partnerships or joint ventures, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract (all of the foregoing, collectively, “investments” ), except that this Section shall not prevent:

(a) investments constituting receivables created in the ordinary course of business;

(b) investments in Cash Equivalents;

(c) investments (including debt obligations) received in connection with the bankruptcy or reorganization of a Person and in settlement of delinquent obligations of, and other disputes with, a Person arising in the ordinary course of business;

(d) (i) the Borrower’s equity investments from time to time in its Subsidiaries, and (ii) investments made from time to time by a Subsidiary in the Borrower or one or more of its Subsidiaries; provided that any such investments made by the Borrower or any Subsidiary in any Subsidiary which is not a Loan Party plus any intercompany advances permitted by Section 6.14(e) hereof shall not exceed $100,000,000.00 in the aggregate at any one time outstanding;

(e) intercompany advances made from time to time from (i) the Borrower to any one or more Subsidiaries, (ii) from one or more Subsidiaries to the Borrower and (iii) from one or more Subsidiaries to one or more Subsidiaries; provided that any such advances made by a Loan Party to a Subsidiary that is not a Loan Party plus any equity investments permitted by Section 6.14(d) hereof shall not exceed $100,000,000.00 in the aggregate at any one time outstanding;

(f) other investments (including investments in joint ventures or similar entities that do not constitute Subsidiaries), in each case, as valued at the fair market value of such investment at the time each such investment is made, in an amount that, at the time such investment is made, would not exceed the sum of (i) $25,000,000.00 plus (ii) the amount of any returns of capital, dividends or other distributions received in connection with such investment;

(g) loans and advances to officers, directors, employees and consultants of the Borrower (or its direct or indirect parent company) or any of its Subsidiaries for reasonable and customary business related travel expenses, entertainment expenses, moving expenses and similar expenses, in each case incurred in the ordinary course of business and advances of payroll payments to employees, consultants or independent

 

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contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of business; provided that, the aggregate amount of such loan in advance outstanding at any time shall not exceed $5,000,000.00;

(h) investments in Hedge Agreements permitted by Section 6.11(b);

(i) investments received upon the foreclosure with respect to any secured investment or other transfer of title with respect to any secured investment;

(j) Investments in the ordinary course of business consisting of Article 3 endorsements for collection or deposit and Article 4 customary trade arrangements with customers consistent with past practices;

(k) guarantees by the Borrower or any Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute indebtedness for borrowed money, in each case entered into in the ordinary course of business;

(l) Permitted Acquisitions;

(m) investments in Subsidiaries for the purpose of consummating transactions permitted under Sections 6.13(n) or any Permitted Acquisition;

(n) investments permitted under Sections 6.11, 6.12, 6.13 and 6.15;

(o) other investments, loans and advances in addition to those otherwise permitted by this Section in an amount not to exceed $25,000,000.00 in the aggregate at any one time outstanding;

(p) investments consisting of consideration received in connection with any disposition or other transfer made in compliance with Section 6.13;

(q) investments in an amount not to exceed the Available Amount at the time such investment is made;

(r) other investments, loans and advances existing as of the Closing Date and set forth on Schedule 6.14 (as the same may be renewed, refinanced or extended from time to time); and

(s) investments the sole consideration for which is equity interests of the Borrower (or any direct or indirect parent of the Borrower).

Section 6.15. Restricted Payments . The Borrower shall not, nor shall it permit any of its Subsidiaries to, (i) declare or pay any dividends on or make any other distributions in respect of any class or series of its equity interests or (ii) directly or indirectly purchase, redeem, or

 

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otherwise acquire or retire any of its equity interests or any warrants, options, or similar instruments to acquire the same (all the foregoing, “Distributions” ); provided, however :

(a) any Subsidiary of the Borrower may make Distributions to its parent corporation (and, in the case of any non-Wholly-owned Subsidiary, pro rata to its parent companies based on their relative ownership interests);

(b) so long as no Event of Default has occurred, is continuing or would result therefrom, the Borrower may redeem, acquire, retire or repurchase (and the Borrower may declare and pay Distributions, the proceeds of which are used to so redeem, acquire, retire or repurchase and to pay withholding or similar tax payments are expected to be payable in connection therewith) its equity interests (or any options or warrants or stock appreciation rights issued with respect to any of such equity interests) (or to allow any of the Borrower’s direct or indirect parent companies to so redeem, retire, acquire or repurchase their equity) held by current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) of Borrower (or any direct or indirect parent thereof) and its Subsidiaries, with the proceeds of Distributions from, seriatim, the Borrower, upon the death, disability, retirement or termination of employment of any such Person or otherwise in accordance with any stock option or stock appreciation rights plan, any management, director and/or employee stock ownership or incentive plan, stock subscription plan, employment termination agreement or any other employment agreements or equity holders’ agreement; provided that, the aggregate amount of Distributions made pursuant to this Section shall not exceed $5,000,000.00;

(c) the Borrower may repurchase equity interests (or pay Distributions to permit any direct or indirect parent to repurchase equity interests) upon exercise of options or warrants if such equity interest represents all or a portion of the exercise price of such options or warrants;

(d) the Borrower may pay Distributions, the proceeds of which shall be used to allow any direct or indirect parent of Borrower to pay its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in an aggregate amount not to exceed $1,000,000 in any fiscal year of the Borrower plus any reasonable and customary indemnification claims made by directors or officers of the Borrower (or any parent thereof) attributable to the ownership or operations of the Borrower and its Subsidiaries;

(e) the Borrower may make Distributions in an aggregate amount equal to all Quarterly Distributions as of the time such Distribution is made;

(f) the Borrower may make Distributions in an aggregate amount not to exceed the Available Amount at the time such Distribution is made;

 

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(g) the Borrower may make Distributions to (i) redeem, repurchase, retire or otherwise acquire any (A) equity interests ( “Treasury Capital Stock” ) of the Borrower or any Subsidiary or (B) equity interests of any direct or indirect parent company of the Borrower, in the case of each of clause (A) and (B), in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Subsidiary) of, equity interests of the Borrower, or any direct or indirect parent company of the Borrower to the extent contributed to the capital of the Borrower or any Subsidiary ( “Refunding Capital Stock” ) and (ii) declare and pay dividends on the Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Subsidiary) of the Refunding Capital Stock;

(h) Distributions the proceeds of which will be used to make cash payments in lieu of issuing fractional equity interests in connection with the exercise of warrants, options or other securities convertible or exchangeable for equity interests of the Borrower (or its direct or indirect parent) in an amount not to exceed $100,000 in any fiscal year;

(i) to the extent constituting a Distribution, transactions permitted by Section 6.8 and 6.13; and

(j) following any Qualified Public Offering, Distributions by the Borrower (or to any direct or indirect parent to fund a Distribution) of up to 6% of the net cash proceeds received by (or contributed to the capital of) the Borrower in or from any such Qualified Public Offering.

Section 6.16. Limitation on Restrictions . The Borrower will not, and it will not permit any of its Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual restriction on the ability of any such Subsidiary to (a) pay dividends or make any other distributions on its capital stock or other equity interests owned by the Borrower or any other Subsidiary, (b) pay or repay any Indebtedness owed to the Borrower or any other Subsidiary, (c) make loans or advances to the Borrower or any other Subsidiary, (d) transfer any of its Property to the Borrower or any other Subsidiary, (e) encumber or pledge any of its assets to or for the benefit of the Administrative Agent or (f) guaranty the Obligations, Hedging Liability and Funds Transfer Liability, Deposit Account Liability and Data Processing Obligations, except for, in each case:

(i) restrictions and conditions imposed by any Loan Document or which (x) exist on the date hereof and (y) to the extent contractual obligations permitted by clause (x) are set forth in an agreement evidencing Indebtedness, are set forth in any agreement evidencing any permitted renewal, extension or refinancing of such Indebtedness so long as such renewal, extension or refinancing does not expand the scope of such contractual obligation;

(ii) customary restrictions and conditions contained in agreements relating to any sale of assets pending such sale, provided such restrictions and conditions apply only to the Person or property that is to be sold;

 

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(iii) restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the Person obligated under such Indebtedness and its subsidiaries or the property or assets intended to secure such Indebtedness;

(iv) contractual obligations binding on a Subsidiary at the time such Subsidiary first becomes a Subsidiary, so long as such contractual obligations were not entered into solely in contemplation of such Person becoming a Subsidiary;

(v) customary provisions in joint venture agreements and other similar agreements applicable to joint ventures permitted under Section 6.13 and applicable solely to such joint venture entered into in the ordinary course of business;

(vi) restrictions on cash, other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business and customary provisions in leases, subleases, licenses, sublicenses and other contracts restricting the assignment thereof, in each case entered into in the ordinary course of business;

(vii) secured Indebtedness otherwise permitted to be incurred under Sections 6.11 and 6.12 that limit the right of the obligor to dispose of the assets securing such Indebtedness; and

(viii) any encumbrances or restrictions of the types referred to in clauses (a) through (f) 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 (vii) above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Borrower, no more restrictive with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.

Section 6.17. OFAC . The Borrower will not, and will not permit any of its Subsidiaries to, (i) become a person whose property or interests in property are blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Party and Prohibiting Transactions With Persons Who Commit, Threaten to Commit or Support Terrorism (66 Fed. Reg. 49079(2001)), (ii) engage in any dealings or transactions prohibited by Section 2 of such executive order, or be otherwise associated with any such person in any manner violative of Section 2, and (iii) become a person on the list of Specially Designated Nationals and Blocked Persons or subject to the limitations or prohibitions under any other U.S. Department of Treasury’s Office of Foreign Assets Control regulation or executive order.

Section 6.18. Operating Accounts . Each of the primary operating accounts of the Borrower and its Subsidiaries shall be at all times maintained with the Administrative Agent.

Section 6.19. Financial Covenants .

 

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(a) Leverage Ratio . The Borrower shall not, as of the last day of each fiscal quarter of the Borrower ending during each of the periods specified below, permit the Leverage Ratio to be greater than:

 

F ROM AND I NCLUDING

  

T O AND I NCLUDING

   T HE  L EVERAGE  R ATIO  S HALL
N OT B E G REATER T HAN :
JUNE 30, 2010    DECEMBER 31, 2010    5.7 to 1.0
JANUARY 1, 2011    DECEMBER 31, 2011    5.5 to 1.0
JANUARY 1, 2012    DECEMBER 31, 2012    5.0 to 1.0
JANUARY 1, 2013    DECEMBER 31, 2013    3.7 to 1.0
JANUARY 1, 2014    DECEMBER 31, 2014    3.35 to 1.0
JANUARY 1, 2015    ALL TIMES THEREAFTER    3.0 to 1.0

(b) Interest Coverage Ratio . The Borrower shall not, as of the last day of each fiscal quarter of the Borrower ending during each of the periods specified below, permit the ratio of Consolidated EBITDA for the four fiscal quarters of the Borrower then ended ( provided if Consolidated EBITDA for such period is less than $1, then for purposes of this covenant Consolidated EBITDA shall be deemed to be $1) to Interest Expense for the same four fiscal quarters then ended to be less than:

 

F ROM AND I NCLUDING

  

T O AND I NCLUDING

   T HE  I NTEREST  C OVERAGE
R ATIO  S HALL  N OT  B E   L ESS
T HAN :
JUNE 30, 2010    DECEMBER 31, 2010    1.75 to 1.0
JANUARY 1, 2011    DECEMBER 31, 2011    2.00 to 1.0
JANUARY 1, 2012    DECEMBER 31, 2012    2.25 to 1.0
JANUARY 1, 2013    DECEMBER 31, 2013    2.6 to 1.0
JANUARY 1, 2014    DECEMBER 31, 2014    3.20 to 1.0
JANUARY 1, 2015    ALL TIMES THEREAFTER    3.55 to 1.00

(c) Pro Forma Compliance . Compliance with the financial covenants set forth in clauses (a) and (b) above shall always be calculated on a Pro Forma Basis.

Section 6.20. Post-Closing Rating . If requested by the Administrative Agent in connection with the Lenders’ syndication of the Loans, the Borrower shall use its commercially reasonable efforts to obtain a long-term credit rating of the Borrower by S&P.

Section 6.21. Limitation on Non-Material Subsidiaries . The Borrower shall not permit (i), at any time, the aggregate book value of the assets of all Subsidiaries that are not Material Subsidiaries to exceed 5% of the book value of the consolidated assets of the Borrower and its Subsidiaries or (ii), as of the last day of each fiscal quarter of the Borrower, the aggregate net income computed in accordance with GAAP of all Subsidiaries that are not Material Subsidiaries during the four fiscal quarters of the Borrower then ending, not to exceed 5% of the consolidated

 

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net income computed in accordance with GAAP of the Borrower and its Subsidiaries during such period.

S ECTION  7. E VENTS OF D EFAULT AND R EMEDIES .

Section 7.1. Events of Default . Any one or more of the following shall constitute an “Event of Default” hereunder:

(a) default (i) in the payment when due (whether at the stated maturity thereof or at any other time provided for in this Agreement) of all or any part of the principal of any Loan or (ii) in the payment when due of interest on any Loan or any other Obligation payable hereunder or under any other Loan Document and such default shall continue unremedied for a period of 5 Business Days;

(b) default in the observance or performance of any covenant set forth in Sections 6.1(d), 6.4 (with respect to the Borrower), 6.11, 6.12, 6.13, 6.14, 6.15 or 6.19 hereof;

(c) default in the observance or performance of any other provision hereof or of any other Loan Document which is not remedied within 30 days after written notice of such default is given to the Borrower by the Administrative Agent;

(d) any representation or warranty made herein or in any other Loan Document or in any certificate delivered to the Administrative Agent or the Lenders pursuant hereto or thereto proves untrue in any material respect as of the date of the issuance or making thereof;

(e) any of the Loan Documents shall for any reason not be or shall cease to be in full force and effect or is declared to be null and void (other than pursuant to the terms thereof or as a result of the gross negligence, bad faith or willful misconduct of the Administrative Agent), or any of the Collateral Documents shall for any reason fail to create a valid and perfected Lien in favor of the Administrative Agent in any Collateral purported to be covered thereby except as expressly permitted by the terms hereof or thereof (other than as a result of the gross negligence, bad faith or willful misconduct of the Administrative Agent), or any Subsidiary terminates, repudiates in writing or rescinds any Loan Document executed by it or any of its obligations thereunder;

(f) default shall occur under any Indebtedness of the Borrower or any of its Subsidiaries aggregating in excess of $25,000,000.00, or under any indenture, agreement or other instrument under which the same may be issued, and such default shall continue for a period of time sufficient to permit the acceleration of the maturity of any such Indebtedness (and such maturity is in fact accelerated), or the principal or interest under any such Indebtedness shall not be paid when due (whether by demand, lapse of time, acceleration or otherwise) after giving effect to applicable grace or cure periods, if any;

 

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(g) any final judgment or judgments, writ or writs or warrant or warrants of attachment, or any similar process or processes, shall be entered or filed against the Borrower or any of its Subsidiaries, or against any of its Property, in an aggregate amount in excess of $25,000,000.00 (except to the extent paid or covered by insurance (other than the applicable deductible) and the insurer has not denied coverage therefor in writing), and which remains undischarged, unvacated, unbonded or unstayed for a period of 60 days from the entry thereof;

(h) the Borrower or any of its Subsidiaries, or any member of its Controlled Group, shall fail to pay when due an amount or amounts aggregating in excess of $25,000,000.00 which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a Plan or Plans having aggregate Unfunded Vested Liabilities in excess of $25,000,000.00 (collectively, a “Material Plan” ) shall be filed under Title IV of ERISA by the Borrower or any of its Subsidiaries, or any other member of its Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan or a proceeding shall be instituted by a fiduciary of any Material Plan against the Borrower or any of its Subsidiaries, or any member of its Controlled Group, to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have been dismissed within 30 days thereafter; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated;

(i) any Change of Control shall occur;

(j) the Borrower or any of its Subsidiaries shall (i) have entered involuntarily against it an order for relief under the United States Bankruptcy Code, as amended, (ii) admit in writing its inability to pay its debts generally as they become due, (iii) make a general assignment for the benefit of creditors, (iv) apply for, seek, consent to or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial part of its Property, or (v) institute any proceeding seeking to have entered against it an order for relief under the United States Bankruptcy Code, as amended, to adjudicate it insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors; or

(k) a custodian, receiver, trustee, examiner, liquidator or similar official shall be appointed for the Borrower or any of its Subsidiaries, or any substantial part of any of its Property, or a proceeding described in Section 7.1(j)(v) shall be instituted against the Borrower or any Subsidiary, and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 days.

Section 7.2. Non Bankruptcy Defaults . When any Event of Default other than those described in subsection (j) or (k) of Section 7.1 hereof has occurred and is continuing, the Administrative Agent shall, by written notice to the Borrower: (a) if so directed by the Required Lenders, terminate the remaining Revolving Credit Commitments and all other obligations of the

 

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Lenders hereunder on the date stated in such notice (which may be the date thereof); (b) if so directed by the Required Lenders, declare the principal of and the accrued interest on all outstanding Loans to be forthwith due and payable and thereupon all outstanding Loans, including both principal and interest thereon, shall be and become immediately due and payable together with all other amounts payable under the Loan Documents without further demand, presentment, protest or notice of any kind; and (c) if so directed by the Required Lenders, demand that the Borrower immediately pay to the Administrative Agent, as cash collateral, the full amount then available for drawing under each or any Letter of Credit, whether or not any drawings or other demands for payment have been made under any Letter of Credit. The Administrative Agent, after giving notice to the Borrower pursuant to Section 7.1(c) or this Section 7.2, shall also promptly send a copy of such notice to the other Lenders, but the failure to do so shall not impair or annul the effect of such notice.

Section 7.3. Bankruptcy Defaults . When any Event of Default described in subsections (j) or (k) of Section 7.1 hereof has occurred and is continuing, then all outstanding Loans shall immediately become due and payable together with all other amounts payable under the Loan Documents without presentment, demand, protest or notice of any kind, the Revolving Credit Commitments and any and all other obligations of the Lenders to extend further credit pursuant to any of the terms hereof shall immediately terminate and the Borrower shall immediately pay to the Administrative Agent, as cash collateral, the full amount then available for drawing under all outstanding Letters of Credit, whether or not any draws or other demands for payment have been made under any of the Letters of Credit.

Section 7.4. Collateral for Undrawn Letters of Credit . (a) If the prepayment of the amount available for drawing under any or all outstanding Letters of Credit is required under Section 2.8(c) or under Section 7.2 or 7.3 above, the Borrower shall forthwith pay the amount required to be so prepaid, to be held by the Administrative Agent as provided in subsection (b) below.

(b) All amounts prepaid pursuant to subsection (a) above shall be held by the Administrative Agent in one or more separate collateral accounts (each such account, and the credit balances, properties, and any investments from time to time held therein, and any substitutions for such account, any certificate of deposit or other instrument evidencing any of the foregoing and all proceeds of and earnings on any of the foregoing being collectively called the “Collateral Account” ) as security for, and for application by the Administrative Agent (to the extent available) to, the reimbursement of any payment under any Letter of Credit then or thereafter made by the L/C Issuer, and to the payment of the unpaid balance of any other Obligations in respect of any Letter of Credit. The Collateral Account shall be held in the name of and subject to the exclusive dominion and control of the Administrative Agent for the benefit of the Administrative Agent, the Lenders, and the L/C Issuer. If and when requested by the Borrower, the Administrative Agent shall invest funds held in the Collateral Account from time to time in direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America with a remaining maturity of one year or less, provided that the Administrative Agent is irrevocably authorized to sell investments held in the Collateral Account when and as required to make payments out of the Collateral Account for application to amounts due and owing from the Borrower to the L/C Issuer, the

 

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Administrative Agent or the Lenders in respect of any Letter of Credit; provided, however, that if (i) the Borrower shall have made payment of all such obligations referred to in subsection (a) above and (ii) no Letters of Credit remain outstanding hereunder, then the Administrative Agent shall release to the Borrower any remaining amounts held in the Collateral Account.

Section 7.5. Notice of Default . The Administrative Agent shall give notice to the Borrower under Section 7.1(c) hereof promptly upon being requested to do so by the Required Lenders and shall at such time also notify all the Lenders thereof.

Section 7.6. Equity Cure . Notwithstanding anything to the contrary contained in this Section 7, in the event that the Borrower fails to comply with the requirements of Section 6.19 as of the end of any relevant fiscal quarter, the Borrower shall have the right (the “Cure Right” ) (at any time during such fiscal quarter or thereafter until the date that is 20 days after the date the compliance certificate is required to be delivered pursuant to Section 6.1(c)) to issue equity interests for cash or otherwise receive cash contributions to its common equity (the “Cure Amount” ), and thereupon the Borrower’s compliance with Section 6.19 shall be recalculated giving effect to the following pro forma adjustment: 100% of the Cure Amount shall be applied to the repayment of the Obligations in the manner set forth in Section 2.8(f)(ii) and the penultimate sentence of Section 2.8(d)(i). If, after giving effect to the foregoing recalculations (but not, for the avoidance of doubt, taking into account any immediate repayment of Indebtedness in connection therewith other than as described in this Section 7.6), the requirements of Section 6.19 shall be satisfied, then the requirements of Section 6.19 shall be deemed satisfied as of the end of the relevant fiscal quarter with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of Section 6.19 that had occurred shall be deemed cured for the purposes of this Agreement.

Notwithstanding anything herein to the contrary, (w) the Cure Right shall only be applicable during the first three years following the Closing Date, (x) in each four fiscal quarter period there shall be a period of at least three fiscal quarters in which the Cure Right is not exercised, (y) the Cure Amount shall be no greater than the amount required for purposes of complying with Section 6.19 and (z) upon the Administrative Agent’s receipt of a notice from the Borrower that it intends to exercise the Cure Right (a “Notice of Intent to Cure” ), until the 20th day following date of delivery of the compliance certificate under Section 6.1(c) to which such Notice of Intent to Cure relates, none of the Administrative Agent nor any Lender shall exercise the right to accelerate the Loans or terminate the Revolving Credit Commitments and neither the Administrative Agent nor any other Lender or secured party shall exercise any right to foreclose on or take possession of the Collateral solely on the basis of an Event of Default having occurred and being continuing under Section 6.19.

S ECTION  8. C HANGE IN C IRCUMSTANCES AND C ONTINGENCIES .

Section 8.1. Funding Indemnity . If any Lender shall incur any loss, cost or expense (including, without limitation, any loss, cost or expense incurred by reason of the liquidation or re employment of deposits or other funds acquired by such Lender to fund or maintain any Revolving Loan that is a Eurodollar Loan, but excluding any loss of margin as a result of:

 

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(a) any payment, prepayment or conversion of a Revolving Loan that is a Eurodollar Loan or Swing Loan on a date other than the last day of its Interest Period,

(b) any failure (because of a failure to meet the conditions of Section 3 or otherwise) by the Borrower to borrow or continue a Revolving Loan that is a Eurodollar Loan or Swing Loan, or to convert a Revolving Loan that is a Base Rate Loan into a Eurodollar Loan or Swing Loan, on the date specified in a notice given pursuant to Section 2.5(a) hereof,

(c) any failure by the Borrower to make any payment of principal on any Revolving Loan that is a Eurodollar Loan or Swing Loan when due (whether by acceleration or otherwise), or

(d) any acceleration of the maturity of a Revolving Loan that is a Eurodollar Loan or Swing Loan as a result of the occurrence of any Event of Default hereunder,

then, within 10 days after the demand of such Lender, the Borrower shall pay to such Lender such amount as will reimburse such Lender for such loss, cost or expense. If any Lender makes such a claim for compensation, it shall provide to the Borrower, with a copy to the Administrative Agent, a certificate setting forth the amount of such loss, cost or expense in reasonable detail (including an explanation of the basis for and the computation of such loss, cost or expense) and the amounts shown on such certificate shall be conclusive absent manifest error.

Section 8.2. Illegality . Notwithstanding any other provisions of this Agreement or any other Loan Document, if at any time any change in applicable law, rule or regulation or in the interpretation thereof makes it unlawful for any Lender to make or continue to maintain any Revolving Loans that are Eurodollar Loans or to perform its obligations as contemplated hereby with respect to such Eurodollar Loans, such Lender shall promptly give notice thereof to the Borrower and the Administrative Agent and such Lender’s obligations to make or maintain Revolving Loans that are Eurodollar Loans under this Agreement shall be suspended until it is no longer unlawful for such Lender to make or maintain Eurodollar Loans. Such Lender may require that such affected Eurodollar Loans be converted to Base Rate Loans from such Lender automatically on the effective date of the notice provided above, and such Base Rate Loans shall not be made ratably by the Lenders but only from such affected Lender. Such Lender shall withdraw such notice promptly following any date on which it becomes lawful for such Lender to make and maintain Eurodollar Loans or give effect to its obligations as contemplated hereby with respect to any Eurodollar Loan.

Section 8.3. Reserved .

Section 8.4. Yield Protection . (a) If, on or after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender (or its Lending Office) with any request or directive (whether or not having the force of law) of any such Governmental Authority:

 

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(i) shall subject any Lender (or its Lending Office) to any tax, duty or other charge (other than net income tax (including branch profits tax), franchise taxes and other similar taxes) with respect to its Eurodollar Loans, its Revolving Notes, its Letter(s) of Credit, or its participation in any thereof, any Reimbursement Obligations owed to it or its obligation to make Eurodollar Loans, issue a Letter of Credit, or to participate therein (other than taxes subject to Section 10.1 hereof); or

(ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve System, but excluding with respect to any Eurodollar Loans any such requirement included in an applicable Reserve Percentage) against assets of, deposits with or for the account of, or credit extended by, any Lender (or its Lending Office) or shall impose on any Lender (or its Lending Office) or on the interbank market any other condition affecting its Eurodollar Loans, its Revolving Notes, its Letter(s) of Credit, or its participation in any thereof, any Reimbursement Obligation owed to it, or its obligation to make Eurodollar Loans, or to issue a Letter of Credit, or to participate therein;

and the result of any of the foregoing is to increase the cost to such Lender (or its Lending Office) of making or maintaining any Eurodollar Loan, issuing or maintaining a Letter of Credit, or participating therein, or to reduce the amount of any sum received or receivable by such Lender (or its Lending Office) under this Agreement or under any other Loan Document with respect thereto, by an amount deemed by such Lender to be material, then, within 30 days after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall be obligated to pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction.

(b) If, after the date hereof, any Lender or the Administrative Agent shall have determined that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender (or its Lending Office) or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority has had the effect of reducing the rate of return on such Lender’s or such corporation’s capital as a consequence of its obligations hereunder to a level below that which such Lender or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s or such corporation’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, then from time to time, within 30 days after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such reduction.

(c) A certificate of a Lender claiming compensation under this Section 8.4 and setting forth the additional amount or amounts to be paid to it hereunder shall be delivered to Borrower at the time of such demand and shall be conclusive absent manifest error. In determining such amount, such Lender may use any reasonable averaging and attribution methods.

 

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Section 8.5. Substitution of Lenders . Upon the receipt by the Borrower of (a) a claim from any Lender for compensation under Section 8.4 or 10.1 hereof, (b) notice by any Lender to the Borrower of any illegality pursuant to Section 8.2 hereof, (c) in the event any Lender is a Defaulting Lender or (d) in the event any Lender fails to consent to any amendment, waiver, supplement or other modification pursuant to Section 10.11 requiring its consent and as to which the Required Lenders have otherwise consented (any such Lender referred to in clause (a), (b), (c) or (d) above being hereinafter referred to as an “Affected Lender” ), the Borrower may, in addition to any other rights the Borrower may have hereunder or under applicable law, require, at its expense, any such Affected Lender to assign, at par plus accrued interest and fees, without recourse, all of its interest, rights, and obligations hereunder (including all of its Revolving Credit Commitments and the Revolving Loans and participation interests in Letters of Credit and other amounts at any time owing to it hereunder and the other Loan Documents) to an Eligible Assignee specified by the Borrower, provided that (i) such assignment shall not conflict with or violate any law, rule or regulation or order of any Governmental Authority, (ii) if the assignment to a Person other than a Lender, the Borrower shall have received the written consent of the Administrative Agent and, in the case of any Revolving Credit Commitment, the L/C Issuer, which consents shall not be unreasonably withheld or delayed, to such assignment, (iii) the Borrower shall have paid to the Affected Lender all monies (together with amounts due such Affected Lender under Section 8.1 hereof as if the Revolving Loans owing to it were prepaid rather than assigned) other than principal owing to it hereunder, and (iv) the assignment is entered into in accordance with the other requirements of Section 10.10 hereof.

Section 8.6. Lending Offices . Each Lender may, at its option, elect to make its Loans hereunder at the branch, office or affiliate specified on the appropriate signature page hereof (each a “Lending Office” ) for each type of Loan available hereunder or at such other of its branches, offices or affiliates as it may from time to time elect and designate in a written notice to the Borrower and the Administrative Agent. To the extent reasonably possible, a Lender shall designate an alternative branch or funding office with respect to its Eurodollar Loans to reduce any liability of the Borrower to such Lender under Section 8.4 hereof or to avoid the unavailability of Eurodollar Loans under Section 8.2 hereof, so long as such designation is not disadvantageous to the Lender.

S ECTION  9. T HE A DMINISTRATIVE A GENT .

Section 9.1. Appointment and Authorization of Administrative Agent . Each Lender hereby appoints Fifth Third Bank, a Michigan banking corporation, as the Administrative Agent under the Loan Documents and hereby authorizes the Administrative Agent to take such action as Administrative Agent on its behalf and to exercise such powers under the Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto. Notwithstanding the use of the word “Administrative Agent” as a defined term, the Lenders expressly agree that the Administrative Agent is not acting as a fiduciary of any Lender in respect of the Loan Documents, the Borrower or otherwise, and nothing herein or in any of the other Loan Documents shall result in any duties or obligations on the Administrative Agent or any of the Lenders except as expressly set forth herein.

 

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Section 9.2. Administrative Agent and its Affiliates . The Administrative Agent shall have the same rights and powers under this Agreement and the other Loan Documents as any other Lender and may exercise or refrain from exercising such rights and power as though it were not the Administrative Agent, and the Administrative Agent and its affiliates may accept deposits from, lend money to, and generally engage in any kind of business with the Borrower or any Affiliate of the Borrower as if it were not the Administrative Agent under the Loan Documents. The term “Lender” as used herein and in all other Loan Documents, unless the context otherwise clearly requires, includes the Administrative Agent in its individual capacity as a Lender. References in Section 2 hereof to the amount owing to the Administrative Agent for which an interest rate is being determined, refer to the Administrative Agent in its individual capacity as a Lender.

Section 9.3. Action by Administrative Agent . If the Administrative Agent receives from the Borrower a written notice of an Event of Default pursuant to Section 6.1 hereof, the Administrative Agent shall promptly give each of the Lenders written notice thereof. Without limiting the generality of the foregoing, the Administrative Agent shall not be required to take any action hereunder with respect to any Default or Event of Default, except as expressly provided in the Loan Documents. Upon the occurrence of an Event of Default, the Administrative Agent shall take such action to enforce its Lien on the Collateral and to preserve and protect the Collateral as may be directed by the Required Lenders. Unless and until the Required Lenders give such direction, the Administrative Agent may (but shall not be obligated to) take or refrain from taking such actions as it deems appropriate and in the best interest of all the Lenders. In no event, however, shall the Administrative Agent be required to take any action in violation of Applicable Law or of any provision of any Loan Document, and the Administrative Agent shall in all cases be fully justified in failing or refusing to act hereunder or under any other Loan Document unless it first receives any further assurances of its indemnification from the Lenders that it may require, including prepayment of any related expenses and any other protection it requires against any and all costs, expense, and liability which may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall be entitled to assume that no Default or Event of Default exists unless notified in writing to the contrary by a Lender or the Borrower. In all cases in which the Loan Documents do not require the Administrative Agent to take specific action, the Administrative Agent shall be fully justified in using its discretion in failing to take or in taking any action thereunder. Any instructions of the Required Lenders, or of any other group of Lenders called for under the specific provisions of the Loan Documents, shall be binding upon all the Lenders and the holders of the Obligations.

Section 9.4. Consultation with Experts . The Administrative Agent may consult with legal counsel, independent public accountants, and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.

Section 9.5. Liability of Administrative Agent; Credit Decision . Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with the Loan Documents: (i) with the consent or at the request of the Required Lenders or (ii) in the absence of its own bad faith, gross negligence or

 

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willful misconduct, in each case, unless such action or inaction violates the terms of this Agreement or the other Loan Documents. Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify: (i) any statement, warranty or representation made in connection with this Agreement, any other Loan Document or any Credit Event; (ii) the performance or observance of any of the covenants or agreements of the Borrower or any Subsidiary contained herein or in any other Loan Document or any Credit Event; (iii) the satisfaction of any condition specified in Section 3 hereof, except receipt of items required to be delivered to the Administrative Agent; or (iv) the validity, effectiveness, genuineness, enforceability, perfection, value, worth or collectibility hereof or of any other Loan Document or of any other documents or writing furnished in connection with any Loan Document or of any Collateral; and the Administrative Agent makes no representation of any kind or character with respect to any such matter mentioned in this sentence. The Administrative Agent may execute any of its duties under any of the Loan Documents by or through employees, agents, and attorneys-in-fact and shall not be answerable to the Lenders, the Borrower, or any other Person for the default or misconduct of any such agents or attorneys-in-fact selected with reasonable care. The Administrative Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, other document or statement (whether written or oral) believed by it in good faith to be genuine or to be sent by the proper party or parties. In particular and without limiting any of the foregoing, the Administrative Agent shall have no responsibility for confirming the accuracy of any compliance certificate or other document or instrument received by it under the Loan Documents. The Administrative Agent may treat the payee of any Note as the holder thereof until written notice of transfer shall have been filed with the Administrative Agent signed by such payee in form satisfactory to the Administrative Agent. Each Lender acknowledges that it has independently and without reliance on the Administrative Agent or any other Lender, and based upon such information, investigations and inquiries as it deems appropriate, made its own credit analysis and decision to extend credit to the Borrower in the manner set forth in the Loan Documents. It shall be the responsibility of each Lender to keep itself informed as to the creditworthiness of the Borrower and its Subsidiaries, and the Administrative Agent shall have no liability to any Lender with respect thereto.

Section 9.6. Indemnity . The Lenders shall ratably, in accordance with their respective Percentages, indemnify and hold the Administrative Agent, and its directors, officers, employees, agents, and representatives harmless from and against any liabilities, losses, costs or expenses suffered or incurred by it under any Loan Document or in connection with the transactions contemplated thereby, regardless of when asserted or arising, except to the extent they are promptly reimbursed for the same by the Borrower and except to the extent that any event giving rise to a claim was caused by the bad faith, gross negligence or willful misconduct of the party seeking to be indemnified. The obligations of the Lenders under this Section shall survive termination of this Agreement. The Administrative Agent shall be entitled to offset amounts received for the account of a Lender under this Agreement against unpaid amounts due from such Lender to the Administrative Agent hereunder (whether as fundings of participations, indemnities or otherwise), but shall not be entitled to offset against amounts owed to the Administrative Agent by any Lender arising outside of this Agreement and the other Loan Documents.

 

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Section 9.7. Resignation of Administrative Agent and Successor Administrative Agent . The Administrative Agent may resign at any time by giving written notice thereof to the Lenders and the Borrower or may be replaced by the Borrower and the Required Lenders (such retiring or replaced Administrative Agent, the “Departing Administrative Agent”). Upon any such resignation or replacement of the Administrative Agent, the Required Lenders shall have the right to appoint a successor Administrative Agent with the written consent of the Borrower (not to be unreasonably withheld). If no successor Administrative Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the retiring Administrative Agent’s giving of notice of resignation then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent with the consent of the Borrower (not to be unreasonably withheld), which may be any Lender hereunder or any commercial bank organized under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least $500,000,000. Upon the acceptance of its appointment as the Administrative Agent hereunder, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights and duties of the Departing Administrative Agent under the Loan Documents, and the Departing Administrative Agent shall be discharged from its duties and obligations thereunder. After any Departing Administrative Agent’s resignation or replacement hereunder as Administrative Agent, the provisions of this Section 9 and all protective provisions of the other Loan Documents shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent, but no successor Administrative Agent shall in any event be liable or responsible for any actions of its predecessor.

Section 9.8. L/C Issuer . The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith. The L/C Issuer shall have all of the benefits and immunities (i) provided to the Administrative Agent in this Section 9 with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and the Applications pertaining to such Letters of Credit as fully as if the term “Administrative Agent”, as used in this Section 9, included the L/C Issuer with respect to such acts or omissions and (ii) as additionally provided in this Agreement with respect to such L/C Issuer.

Section 9.9. Hedging Liability and Funds Transfer Liability, Deposit Account Liability and Data Processing Obligation Arrangements . By virtue of a Lender’s execution of this Agreement or an assignment agreement pursuant to Section 10.10 hereof, as the case may be, any Affiliate of such Lender with whom the Borrower or any Subsidiary has entered into an agreement creating Hedging Liability or Funds Transfer Liability, Deposit Account Liability and Data Processing Obligations shall be deemed a Lender party hereto for purposes of any reference in a Loan Document to the parties for whom the Administrative Agent is acting, it being understood and agreed that the rights and benefits of such Affiliate under the Loan Documents consist exclusively of such Affiliate’s right to share in payments and collections out of the Collateral as more fully set forth in Section 2.9 and Section 4 hereof. In connection with any such distribution of payments and collections, the Administrative Agent shall be entitled to assume no amounts are due to any Lender or its Affiliate with respect to Hedging Liability or Funds Transfer Liability, Deposit Account Liability and Data Processing Obligations unless such

 

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Lender has notified the Administrative Agent in writing of the amount of any such liability owed to it or its Affiliate prior to such distribution.

Section 9.10. Designation of Additional Administrative Agents . The Administrative Agent shall have the continuing right, for purposes hereof, at any time and from time to time to designate one or more of the Lenders (and/or its or their Affiliates) as “syndication agents,” “documentation agents,” “arrangers” or other designations for purposes hereto, but such designation shall have no substantive effect, and such Lenders and their Affiliates shall have no additional powers, duties or responsibilities as a result thereof.

Section 9.11. Authorization to Enter into, and Enforcement of, the Collateral Documents . The Administrative Agent is hereby irrevocably authorized by each of the Lenders to execute and deliver the Collateral Documents on behalf of each of the Lenders and their Affiliates and to take such action and exercise such powers under the Collateral Documents as the Administrative Agent considers appropriate, provided the Administrative Agent shall not (except as expressly provided in Section 10.11) amend the Collateral Documents unless such amendment is agreed to in writing by the Required Lenders. Each Lender acknowledges and agrees that it will be bound by the terms and conditions of the Collateral Documents upon the execution and delivery thereof by the Administrative Agent. Except as otherwise specifically provided for herein, no Lender (or its Affiliates) other than the Administrative Agent shall have the right to institute any suit, action or proceeding in equity or at law for the foreclosure or other realization upon any Collateral or for the execution of any trust or power in respect of the Collateral or for the appointment of a receiver or for the enforcement of any other remedy under the Collateral Documents; it being understood and intended that no one or more of the Lenders (or their Affiliates) shall have any right in any manner whatsoever to affect, disturb or prejudice the Lien of the Administrative Agent (or any security trustee therefor) under the Collateral Documents by its or their action or to enforce any right thereunder, and that all proceedings at law or in equity shall be instituted, had, and maintained by the Administrative Agent (or its security trustee) in the manner provided for in the relevant Collateral Documents for the benefit of the Lenders and their Affiliates.

Section 9.12. Authorization to Release Liens and Limit Amount of Certain Claims . The Administrative Agent is hereby irrevocably authorized by each of the Lenders (and shall, upon the written request of the Borrower) to:

(i) (A) release any Lien covering any Property of the Borrower or its Subsidiaries that is the subject of a disposition that is permitted by this Agreement or that has been consented to in accordance with Section 10.11;

(B) upon the date when all Revolving Credit Commitments have terminated, no Letters of Credit are outstanding and the Loans and other non-contingent obligations have been paid in full, release the Borrower from its Obligations under the Loan Documents (other than those that specifically survive termination of this Agreement); and

(C) release any Lien on any Property that is sold or to be sold as part of or in connection with any sale permitted hereunder or under any other Loan Document; and

 

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(ii) at the request of the Borrower, to subordinate any Lien on any Property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such Property that is permitted by clause (e) of the definition of Permitted Liens.

S ECTION  10. M ISCELLANEOUS .

Section 10.1. Withholding Taxes .

(a) Payments Free of Withholding . Except as otherwise required by law and subject to Section 10.1(b) hereof, each payment by the Borrower under this Agreement or the other Loan Documents shall be made without withholding or deduction for or on account of any present or future United States withholding taxes or any taxes of any other jurisdiction from which or through which payments are made (other than overall net income taxes (including branch profits tax), franchise taxes and other similar taxes on the recipient imposed by the jurisdiction (or any political subdivision thereof) in which its principal executive office or Lending Office is located or taxes imposed on a recipient as a result of a present or former connection between such recipient and the United States (other than in connection with entering into this Agreement, the receipt of payments hereunder or the enforcement of rights hereunder)). If any such withholding is so required, the Borrower shall make the withholding or deduction, pay the amount withheld to the appropriate Governmental Authority before penalties attach thereto or interest accrues thereon and forthwith pay such additional amount as may be necessary to ensure that the net amount actually received by each Lender and the Administrative Agent free and clear of such taxes (including such taxes on such additional amount) is equal to the amount which that Lender or the Administrative Agent (as the case may be) would have received had such withholding not been made. If the Administrative Agent or any Lender pays any amount in respect of any such taxes, penalties or interest, the Borrower shall reimburse the Administrative Agent or such Lender for that payment on demand in the currency in which such payment was made. Notwithstanding the foregoing, the Borrower shall not be required to pay any additional amounts or reimburse any Lender or the Administrative Agent with respect to any taxes (i) that, except as provided in Section 10.1(c), are attributable to a Lender’s failure to comply with the requirements of Section 10.1(b) or (ii) that are withholding taxes imposed on amounts payable to a Lender or Administrative Agent at the time such Lender or Administrative Agent becomes a party to this Agreement, except to the extent such Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts or reimbursement under this Section 10.1(a). If the Borrower pays any such taxes, penalties or interest, it shall deliver official tax receipts evidencing that payment or certified copies thereof (or, if such receipts are not available, other evidence of payment reasonably acceptable to the relevant Lender or Administrative Agent) to the Lender or Administrative Agent on whose account such withholding was made (with a copy to the Administrative Agent if not the recipient of the original) on or before the thirtieth day after payment.

(b) U.S. Withholding Tax Exemptions. Each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall submit to the Borrower and the Administrative Agent (x) on or before the Closing Date or, if later, the date such financial institution becomes a Lender hereunder, (y) on or prior to the date 60 days after written notice

 

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from Borrower that such form or certificate shall expire or become obsolete other than in connection with an event described in (z), and (z) after the occurrence of any event within Lender’s control requiring a change in the most recent form of certification previously delivered by it, two duly completed and signed originals of (i) either Form W-8 BEN (relating to such Lender and entitling it to a complete exemption from withholding under the Code on all amounts to be received by such Lender, including fees, pursuant to the Loan Documents and the Obligations) or Form W-8 ECI (relating to all amounts to be received by such Lender, including fees, pursuant to the Loan Documents and the Obligations) of the United States Internal Revenue Service (the “IRS” ), or any successor forms, (ii) solely if such Lender is claiming exemption from United States withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, a Form W-8 BEN, or any successor form prescribed by the IRS, and a certificate representing that such Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign corporation related to the Borrower (within the meaning of Section 864(d)(4) of the Code) or (iii) any other applicable document prescribed by the IRS certifying as to the entitlement of such Lender to such exemption from United States withholding tax or reduced rate with respect to all payments to be made to such Lender under the Loan Documents. Thereafter and from time to time, each such Lender, within 60 days of Borrower’s written request, shall submit to the Borrower and the Administrative Agent such additional duly completed and signed copies of one or the other of such forms (or such successor forms as shall be adopted from time to time by the relevant United States taxing authorities) and such other certificates as may be (i) requested by the Borrower in a written notice, directly or through the Administrative Agent, to such Lender and (ii) required under then-current United States law or regulations to avoid or reduce United States withholding taxes on payments in respect of all amounts to be received by such Lender, including fees, pursuant to the Loan Documents or the Obligations. Each Lender that is a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall (A) on or prior to the Closing Date or, if later, the date such financial institution becomes a Lender hereunder, (B) on or prior to the date 60 days after written notice from Borrower that such form or certification shall expire or become obsolete other than in connection with an event described in (C), (C) after the occurrence of any event requiring a change in the most recent form or certification previously delivered by it pursuant to this clause (b) and (D) from time to time if requested by the Borrower or the Administrative Agent, provide the Administrative Agent and the Borrower with two completed originals of Form W-9 (certifying that such Lender is entitled to an exemption from U.S. backup withholding tax) or any successor form.

(c) Inability of Lender to Submit Forms . If as a result of any change in Applicable Law, regulation or treaty, or in any official application or interpretation thereof applicable to the payments made by the Borrower or the Administrative Agent under this Agreement or any change in an income tax treaty applicable to any Lender, any Lender is unable to submit to the Borrower or the Administrative Agent any form or certificate that such Lender is obligated to submit pursuant to subsection (b) of this Section 10.1 or such Lender is required to withdraw or cancel any such form or certificate previously submitted or any such form or certificate otherwise becomes ineffective or inaccurate, such Lender shall promptly notify the Borrower and Administrative Agent of such fact and the Lender shall to that extent not be obligated to provide

 

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any such form or certificate and will be entitled to withdraw or cancel any affected form or certificate, as applicable.

(d) Tax Refunds . If the Administrative Agent or any Lender determines that it has received a refund of taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 10.1 or Section 10.4, it shall pay over such refund to the Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 10.1 or Section 10.4 giving rise to such refund), net of all reasonable out-of-pocket expenses of the Administrative Agent or such Lender and without interest (other than any interest paid by the relevant Governmental Authority) with respect to such refund.

(e) Lender Replacement . The Borrower shall be permitted to replace any Lender that (i) requests reimbursement for amounts owing pursuant to Section 10.1 or (ii) becomes a Defaulting Lender, with a replacement bank or other financial institution, provided that (A) such replacement does not conflict with any Applicable Law, (B) no Event of Default shall have occurred and be continuing at the time of such replacement, (C) the Borrower shall repay (or the replacement bank or institution shall purchase, at par) all Loans and other amounts (other than any disputed amounts), pursuant to Section 10.1 owing to such replaced Lender prior to the date of replacement, (D) the replacement bank or institution shall be an Eligible Assignee, (E) the replaced Lender shall be obligated to make such replacement in accordance with the provisions of Section 10.10 and (F) 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.

(f) Mitigation . Any Lender claiming any additional amounts payable pursuant to this Section 10.1 shall use its reasonable efforts (consistent with its internal policies and Applicable Laws) to change the jurisdiction of its lending office if such a change would reduce any such additional amounts (or any similar amount that may thereafter accrue) and would not, in the sole determination of such Lender, be otherwise disadvantageous to such Lender.

Section 10.2. No Waiver, Cumulative Remedies . No delay or failure on the part of the Administrative Agent or any Lender or on the part of the holder or holders of any of the Obligations in the exercise of any power or right under any Loan Document shall operate as a waiver thereof or as an acquiescence in any default, nor shall any single or partial exercise of any power or right preclude any other or further exercise thereof or the exercise of any other power or right. The rights and remedies hereunder of the Administrative Agent, the Lenders and of the holder or holders of any of the Obligations are cumulative to, and not exclusive of, any rights or remedies which any of them would otherwise have.

Section 10.3. Non-Business Days . If any payment hereunder or date for performance becomes due and payable or performable (in each case, including as a result of the expiration of any relevant notice period) on a day which is not a Business Day, the due date of such payment or the date for such performance shall be extended to the next succeeding Business Day on which date such payment shall be due and payable or such other requirement shall be performed. In the case of any payment of principal falling due on a day which is not a Business Day, interest on

 

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such principal amount shall continue to accrue during such extension at the rate per annum then in effect, which accrued amount shall be due and payable on the next scheduled date for the payment of interest.

Section 10.4. Documentary Taxes . The Borrower agrees to pay within 10 days after demand therefor any documentary, stamp or similar taxes payable in respect of this Agreement or any other Loan Document, including interest and penalties, in the event any such taxes are assessed, irrespective of when such assessment is made and whether or not any credit is then in use or available hereunder.

Section 10.5. Survival of Representations . All representations and warranties made herein or in any other Loan Document or in certificates given pursuant hereto or thereto shall survive the execution and delivery of this Agreement and the other Loan Documents, and shall continue in full force and effect with respect to the date as of which they were made as long as any Lender or the L/C Issuer has any Revolving Credit Commitment hereunder or any Obligations remain unpaid hereunder.

Section 10.6. Survival of Indemnities . All indemnities and other provisions relative to reimbursement to the Lenders of amounts sufficient to protect the yield of the Lenders with respect to the Loans and Letters of Credit, including, but not limited to, Sections 8.1, 8.4, 10.4 and 10.13 hereof, shall survive the termination of this Agreement and the other Loan Documents and the payment of the Obligations.

Section 10.7. Sharing of Set-Off . Each Lender agrees with each other Lender a party hereto that if such Lender shall receive and retain any payment, whether by set-off or application of deposit balances or otherwise (except pursuant to a valid assignment or participation pursuant to Section 10.10), on any of the Loans or Reimbursement Obligations in excess of its ratable share of payments on all such Obligations then outstanding to the Lenders, then such Lender shall purchase for cash at face value, but without recourse, ratably from each of the other Lenders such amount of the Loans or Reimbursement Obligations, or participations therein, held by each such other Lenders (or interest therein) as shall be necessary to cause such Lender to share such excess payment ratably with all the other Lenders; provided, however, that if any such purchase is made by any Lender, and if such excess payment or part thereof is thereafter recovered from such purchasing Lender, the related purchases from the other Lenders shall be rescinded ratably and the purchase price restored as to the portion of such excess payment so recovered, but without interest. For purposes of this Section, amounts owed to or recovered by the L/C Issuer in connection with Reimbursement Obligations in which Lenders have been required to fund their participation shall be treated as amounts owed to or recovered by the L/C Issuer as a Lender hereunder.

Section 10.8. Notices . Except as otherwise specified herein, all notices hereunder and under the other Loan Documents shall be in writing (including, without limitation, notice by facsimile or email transmission) and shall be given to the relevant party at its physical address, facsimile number or email address set forth below, or such other physical address, facsimile number or email address as such party may hereafter specify by notice to the Administrative Agent and the Borrower given by courier, by United States certified or registered mail, by

 

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facsimile, email transmission or by other telecommunication device capable of creating a written record of such notice and its receipt. Notices under the Loan Documents to any Lender shall be addressed to its physical address or facsimile number or email address set forth on its Administrative Questionnaire; and notices under the Loans Documents to the Borrower or the Administrative Agent shall be addressed to their respective physical addresses, facsimile numbers or email addresses set forth below:

to the Borrower:

Fifth Third Processing Solutions, LLC

38 Fountain Square Plaza, 11th Floor

MD 1090BH

Cincinnati, Ohio 45263

Attention: Stephanie Ferris

Telephone: (513) 534-6109

Facsimile: (513) 534-0318

Email: Stephanie.Ferris@53.com

With a copy of any notice of any Default or Event of Default (which shall not constitute notice to the Borrower) to:

Weil, Gotshall and Manges LLP

200 Crescent Court, Suite 300

Dallas, Texas 75201-6950

Attention: Kelly M. Dybala

Telephone: (214) 746-7898

Facsimile: (214) 746-7777

Email: kelly.dybala@weil.com

to the Administrative Agent:

Fifth Third Bank

38 Fountain Square Plaza

Cincinnati, Ohio 45263

Attention: Loan Syndications/Judy Huls

Telephone: (513) 579-4224

Facsimile: (513) 534-0875

Email: judy.huls@53.com

Each such notice, request or other communication shall be effective (i) if given by facsimile, when such facsimile is transmitted to the facsimile number specified in this Section 10.8 or in the relevant Administrative Questionnaire and a confirmation of such telecopy has been received by the sender, (ii) if given by mail, 5 days after such communication is deposited in the mail, certified or registered with return receipt requested, addressed as aforesaid, (iii) if by email, when delivered (all such notices and communications sent by email shall be deemed delivered upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return email or other written acknowledgement)), or (iv) if given by any other means, when delivered at the addresses specified in this Section 10.8 or in the relevant Administrative Questionnaire; provided that any notice given pursuant to Section 2 hereof shall be effective only upon receipt.

Section 10.9. Counterparts . This Agreement may be executed in any number of counterparts, and by the different parties hereto on separate counterpart signature pages, and all such counterparts taken together shall be deemed to constitute one and the same instrument.

 

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Section 10.10. Successors and Assigns; Assignments and Participations .

(a) Successors and Assigns Generally . 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 the Borrower may not assign or otherwise transfer any of its rights or obligations under any Loan Document without the prior written consent of the Administrative Agent and each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of paragraph (b) of this Section, (ii) by way of participation in accordance with the provisions of paragraph (d) of this Section or (iii) by way of pledge or assignment of a security interest subject to the restrictions of paragraph (f) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in paragraph (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b) Assignments by Lenders . Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement with respect to all or a portion of its Revolving Credit Commitment(s) and the Loans at the time owing to it; provided that:

(i) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Revolving Credit Commitment(s) and the Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Revolving Credit Commitment(s) (which for this purpose includes Loans outstanding thereunder) or, if the applicable Revolving Credit Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of such Trade Date) shall not be less than $2,500,000, in the case of any assignment in respect of the Revolving Credit, or less than $1,000,000, in the case of any assignment in respect of the Term A Credit or Term B Credit, unless each of the Administrative Agent and the Borrower otherwise consent (each such consent not to be unreasonably withheld or delayed);

(ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Credit or the Revolving Credit Commitment assigned, except that this clause (ii) shall not prohibit any Lender from assigning all or a portion of its rights and obligations among separate Credit on a non-pro rata basis;

(iii) any assignment of a Revolving Credit Commitment must be approved by the Administrative Agent, the L/C Issuer and the Borrower (each such approval not to be

 

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unreasonably withheld or delayed) unless the Person that is the proposed assignee is itself a Lender with a Revolving Credit Commitment (whether or not the proposed assignee would otherwise qualify as an Eligible Assignee);

(iv) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500 (unless otherwise waived or reduced by the Administrative Agent in its sole discretion), and the Eligible Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire; and

(v) the Eligible Assignee provides the Borrower and the Administrative Agent the forms required by Section 10.1(b) prior to the assignment and shall not be entitled to any additional amounts or indemnification of taxes under Section 10.1 in excess of the amounts that would be paid to its assignor.

Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, 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 Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 8.4 and 10.13 and subject to any obligations hereunder with respect to facts and circumstances occurring prior to the effective date of such assignment. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be void ab initio . All parties hereto consent that assignments to the Borrower permitted by the terms hereof shall not be construed as violating pro rata, optional redemption or any other provisions hereof, it being understood that, not withstanding anything to the contrary elsewhere in this Agreement, immediately upon receipt by the Borrower of any Loans and/or Revolving Credit Commitments the same shall be deemed cancelled and no longer outstanding for any purpose under this Agreement, including without limitation, Section 10.11, and in no event shall the Borrower have any rights of a Lender under this Agreement or any other Loan Document.

(c) Register . (i) The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, the Revolving Credit Commitment(s) of, and principal amounts of the Loans owing to, each Lender pursuant to the terms hereof from time to time, and each repayment in respect of the principal amount (and any interest thereon) (the “Register” ). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders may 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; provided that in the event any assignment contemplated by clause (b) above is not effected in accordance with the requirements of that Section, nothing in the Register to the contrary shall override the nullity of

 

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such assignment as provided pursuant to clause (b) above. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

(ii) The Administrative Agent shall (A) accept the Assignment and Assumption and (B) promptly record the information contained therein in the Register once all the requirements of paragraph (a) above have been met. No assignment shall be effective unless it has been recorded in the Register.

(d) Participations . Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person) (each, a “Participant” ) in all or a portion of such Lender’s rights and/or obligations under the this Agreement (including all or a portion of its Revolving Credit Commitment(s) and/or the Loans owing to it); provided that, (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) no Lender shall sell participations to any Prohibited Lender or its Affiliates.

Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification, supplement or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification, supplement or waiver described in Section 10.11(a) that directly affects such Participant. Subject to paragraph (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 8.1 and 8.4(b) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.14 as though it were a Lender, provided such Participant agrees to be subject to Section 10.7 as though it were a Lender.

(e) Limitations upon Participant Rights . A Participant shall not be entitled to receive any greater payment under Section 8.4(a) than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant. A Participant that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall not be entitled to the benefits of Section 10.1(a) unless the Borrower is notified of the participation sold to such Participant and such Participant complies with Section 10.1(b), (c) and (e) as though it were a Lender.

(f) Certain Pledges . Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

 

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(g) Electronic Execution of Assignments . The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption 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 Ohio Uniform Electronic Transactions Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

Section 10.11. Amendments . Any provision of this Agreement or the other Loan Documents may be amended, modified, supplemented or waived if, but only if, such amendment, modification, supplement or waiver is in writing and is signed by (i) the Borrower, (ii) the Required Lenders, (iii) if the rights or duties of the Administrative Agent are adversely affected thereby, the Administrative Agent, and (iv) if the rights or duties of the L/C Issuer are affected thereby, the L/C Issuer; provided that:

(A) no amendment, modification, supplement or waiver pursuant to this Section 10.11 shall (i) increase any Revolving Credit Commitment of any Lender without the consent of such Lender (it being understood that any such amendment, modification, supplement or waiver that provides for the payment of interest in kind in addition to, and not as substitution for or as conversion of, the interest otherwise payable hereunder shall only require the consent of the Required Lenders), (ii) reduce the amount of or postpone the date for any scheduled payment of any principal of or interest on any Loan or of any Reimbursement Obligation or of any fee payable hereunder without the consent of the Lender to which such payment is owing or which has committed to make such Loan or Letter of Credit (or participate therein) hereunder or (iii) change the application of payments set forth in Section 2.9 hereof without the consent of any Lender adversely affected thereby;

(B) no amendment, modification, supplement or waiver pursuant to this Section 10.11 shall, unless signed by each Lender, increase the aggregate Revolving Credit Commitments of the Lenders (it being understood that any such amendment, modification, supplement or waiver that provides for the payment of interest in kind in addition to, and not as substitution for or as conversion of, the interest otherwise payable hereunder shall only require the consent of the Required Lenders), change the definitions of Revolving Credit Termination Date or Required Lenders, change the provisions of this Section 10.11, release any material guarantor or all or substantially all of the Collateral (except as otherwise provided for in the Loan Documents), extend the stated expiration date of any Letter of Credit beyond the Revolving Credit Termination Date, affect the number of Lenders required to take any action hereunder or under any other Loan Document, or change or waive any provision of any Loan Document that provides for the pro rata nature of disbursements or payments to Lenders; and

(C) no amendment, modification, supplement or waiver pursuant to this Section 10.11 shall, unless signed by the Borrower, the Administrative Agent and each Term A Lender release or amend the Limited Guaranty; provided that, any amendment to

 

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the Limited Guaranty to modify such Limited Guaranty to be a guaranty of payment shall also require the consent of each Lender.

Notwithstanding anything to the contrary herein, (a) no Defaulting Lender shall have any right to approve or disapprove any amendment, modification, supplement, waiver or consent hereunder or otherwise give any direction to the Administrative Agent; (b) the Administrative Agent may, with the consent of Borrower only, amend, modify or supplement this Agreement or any other Loan Document to cure any ambiguity, omission, defect or inconsistency, so long as such amendment, modification or supplement does not adversely affect the rights of any Lender and (c) any agreement of the Required Lenders to forbear (and/or direction to the Administrative Agent to forbear) from exercising any of their rights and remedies upon a Default or Event of Default shall be effective without the consent of the Administrative Agent or any other Lender.

In addition, notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders (as determined hereunder prior to any such amendment or amendment and restatement), the Administrative Agent and the Borrower (i) 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 Loan Documents with the Loans and the accrued interest and fees in respect thereof and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders, the Required Term Lenders, the Required Revolving Lenders and other definitions related to such new credit facilities; provided that, no Lender shall be obligated to commit to or hold any part of such credit facilities.

(b) If any Lender (such Lender, a “Non-Consenting Lender” ) has failed to consent to a proposed amendment, modification, supplement, waiver, discharge or termination which pursuant to the terms of this Section 10.11 requires the consent of all of the Lenders affected and with respect to which the Required Lenders shall have granted their consent, then provided no Event of Default then exists, the Borrower shall have the right (unless such Non-Consenting Lender grants such consent) to (i) replace such Non-Consenting Lender by requiring such Non-Consenting Lender to assign its relevant outstanding Loans plus any accrued and unpaid interest and fees, its Revolving Credit Commitments and all of its rights and obligations hereunder to one or more assignees, provided that: (a) all Obligations 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, (b) 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 (c) the replacement Lender shall grant such consent or (ii) terminate the Revolving Credit Commitment of such Non-Consenting Lender and repay all Obligations of the Borrower owing to such Lender as of such termination date. In connection with any such assignment, the Borrower, Administrative Agent, such Non-Consenting Lender and the replacement Lender shall otherwise comply with Section 10.10 hereof.

(c) Each waiver, amendment, modification, supplement or consent made or given pursuant to this Section 10.11 shall be effective only in the specific instance and for the specific purpose for which given, and such waiver, amendment, modification or supplement shall apply

 

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equally to each of the Lenders and shall be binding on the Loan Parties, the Lenders, the Administrative Agents and all future holders of the Loans and Revolving Credit Commitments.

Section 10.12. Heading . Section headings and the Table of Contents used in this Agreement are for reference only and shall not affect the construction of this Agreement.

Section 10.13. Costs and Expenses; Indemnification . The Borrower agrees to pay all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent in connection with the administration of the Loan Documents, including, but limited, in the case of the fees and disbursements of counsel, to one firm of outside counsel to the Administrative Agent, in connection with the preparation and execution of any amendment, modification, supplement, waiver or consent related to the Loan Documents, together with any fees and charges suffered or incurred by the Administrative Agent in connection with collateral filing fees and lien searches. The Borrower further agrees to indemnify the Administrative Agent in its capacity as such, each Lender, and their respective directors, officers, employees and agents against all Damages (including, without limitation, all reasonable attorney’s fees and other expenses of litigation or preparation therefor, whether or not the indemnified Person is a party thereto, or any settlement arrangement arising from or relating to any such litigation) which any of them may pay or incur arising out of or relating to any Loan Document or any of the transactions contemplated thereby or the direct or indirect application or proposed application of the proceeds of any Loan or Letter of Credit, other than those which (i) arise from the gross negligence, willful misconduct or bad faith of, or breach of the Loan Documents by, the party claiming indemnification (or any of its respective directors, officers, employees, and agents) (ii) arise out of any dispute solely among indemnitees or (iii) in the case of any affiliate of the Fifth Third Ohio under the Master Investment Agreement, relate to any breach or alleged breach of the Master Investment Agreement or any claim for indemnity thereunder. Under no circumstances will the Borrower be obligated to pay for more than one firm of outside counsel (and shall not be obligated to pay for any in-house counsel) to the Administrative Agent and the Lenders taken as a whole. The obligations of the Borrower under this Section shall survive the termination of this Agreement.

Section 10.14. Set-off . In addition to any rights now or hereafter granted under Applicable Law and not by way of limitation of any such rights, upon the occurrence and during the continuation of any Event of Default, each Lender and each subsequent holder of any Obligation is hereby authorized by the Borrower at any time or from time to time, without prior notice to the Borrower or to any other Person, any such notice being hereby expressly waived, to set-off and to appropriate and to apply any and all deposits (general or special, including, but not limited to, indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts, and in whatever currency denominated) and any other indebtedness at any time held or owing by that Lender or that subsequent holder to or for the credit or the account of the Borrower, whether or not matured, against and on account of any amount due and payable by the Borrower hereunder. Each Lender or any such subsequent holder of any Obligations agrees to promptly notify the Borrower 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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Section 10.15. Entire Agreement . The Loan Documents constitute the entire understanding of the parties thereto with respect to the subject matter thereof and any prior agreements, whether written or oral, with respect thereto are superseded hereby.

Section 10.16. Governing Law . T HIS A GREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY , AND CONSTRUED BY AND INTERPRETED IN ACCORDANCE WITH , THE LAW OF THE S TATE OF N EW  Y ORK , INCLUDING SECTION  5 -1401 OF THE GENERAL OBLIGATIONS LAW OF THE S TATE OF N EW  Y ORK , BUT EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW .

Section 10.17. Severability of Provisions . Any provision of any Loan Document which is unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. All rights, remedies and powers provided in this Agreement and the other Loan Documents may be exercised only to the extent that the exercise thereof does not violate any applicable mandatory provisions of law, and all the provisions of this Agreement and other Loan Documents are intended to be subject to all applicable mandatory provisions of law which may be controlling and to be limited to the extent necessary so that they will not render this Agreement or the other Loan Documents invalid or unenforceable.

Section 10.18. Excess Interest . Notwithstanding any provision to the contrary contained herein or in any other Loan Document, no such provision shall require the payment or permit the collection of any amount of interest in excess of the maximum amount of interest permitted by Applicable Law to be charged for the use or detention, or the forbearance in the collection, of all or any portion of the Loans or other obligations outstanding under this Agreement or any other Loan Document ( “Excess Interest” ). If any Excess Interest is provided for, or is adjudicated to be provided for, herein or in any other Loan Document, then in such event (a) the provisions of this Section shall govern and control, (b) neither the Borrower nor any guarantor or endorser shall be obligated to pay any Excess Interest, (c) any Excess Interest that the Administrative Agent or any Lender may have received hereunder shall, at the option of the Administrative Agent, be (i) applied as a credit against the then outstanding principal amount of Obligations hereunder and accrued and unpaid interest thereon (not to exceed the maximum amount permitted by Applicable Law), (ii) refunded to the Borrower, or (iii) any combination of the foregoing, (d) the interest rate payable hereunder or under any other Loan Document shall be automatically subject to reduction to the maximum lawful contract rate allowed under applicable usury laws (the “Maximum Rate” ), and this Agreement and the other Loan Documents shall be deemed to have been, and shall be, reformed and modified to reflect such reduction in the relevant interest rate, and (e) neither the Borrower nor any guarantor or endorser shall have any action against the Administrative Agent or any Lender for any Damages whatsoever arising out of the payment or collection of any Excess Interest. Notwithstanding the foregoing, if for any period of time interest on any of Borrower’s Obligations is calculated at the Maximum Rate rather than the applicable rate under this Agreement, and thereafter such applicable rate becomes less than the Maximum Rate, the rate of interest payable on the Borrower’s Obligations shall remain at the Maximum Rate until the Lenders have received the amount of interest which such

 

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Lenders would have received during such period on the Borrower’s Obligations had the rate of interest not been limited to the Maximum Rate during such period.

Section 10.19. Construction . The parties acknowledge and agree that the Loan Documents shall not be construed more favorably in favor of any party hereto based upon which party drafted the same, it being acknowledged that all parties hereto contributed substantially to the negotiation of the Loan Documents. The provisions of this Agreement relating to Subsidiaries shall apply only during such times as the Borrower has one or more Subsidiaries. In the event of any conflict or inconsistency between or among this Agreement and the other Loan Documents, the terms and conditions of this Agreement shall govern and control.

Section 10.20. Lender’s Obligations Several . The obligations of the Lenders hereunder are several and not joint. Nothing contained in this Agreement and no action taken by the Lenders pursuant hereto shall be deemed to constitute the Lenders a partnership, association, joint venture or other entity.

Section 10.21. USA Patriot Act . Each Lender hereby notifies the Borrower that pursuant to the requirements of the Patriot Act it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender to identify the Borrower in accordance with the Patriot Act.

Section 10.22. Submission to Jurisdiction; Waiver of Jury Trial . Each of the parties hereto hereby submits to the nonexclusive jurisdiction of the United States District Court for the Southern District of New York and of any New York State court sitting in New York City in the borough of Manhattan for purposes of all legal proceedings arising out of or relating to this Agreement, the other Loan Documents or the transactions contemplated hereby or thereby. Each of the parties hereto irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. T HE B ORROWER , THE A DMINISTRATIVE A GENT AND THE L ENDERS HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY .

Section 10.23. Treatment of Certain Information; Confidentiality . Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees, agents, advisors and other representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential) in connection with the transactions contemplated or permitted hereby, (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by Applicable Laws or regulations or by any subpoena or similar legal process; provided that unless specifically prohibited by Applicable Law or court

 

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order, each Lender and the Administrative Agent shall promptly notify the Borrower of any such disclosure, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any Hedge Agreement relating to the Borrower and its obligations, (g) with the consent of the Borrower or (h) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Administrative Agent, any Lender or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower (except to the extent that such Information was available to the Administrative Agent, any Lender or any of their Affiliates as a result of Administrative Agent’s, any Lender’s or their Affiliates’ ownership interests in the Business or the Borrower). For purposes of this Section, “Information” means all information received from the Borrower or any of its Subsidiaries relating to the Borrower or any of its Subsidiaries or any of their respective businesses, other than any such information that is available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by the Borrower or any of its Subsidiaries, provided that, in the case of information received from the Borrower or any of its Subsidiaries after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information. Notwithstanding the foregoing, the Administrative Agent and the Lenders agree not to disclose any Information to a Prohibited Lender.

S ECTION  11. A GREEMENT R EGARDING L IMITED G UARANTY .

Section 11.1. No Limitation Intended . Except as otherwise provided in this Section, nothing herein is intended to affect the respective rights of the Term A Lenders or Term B Lenders against the Borrower, the Limited Guarantor or any third parties obligated on the obligations of the Borrower or the Limited Guarantor.

Section 11.2. Interests in the Limited Guaranty . Each Term B Lender acknowledges and agrees that it does not have, and will not obtain or accept, any interest in the Limited Guaranty.

Section 11.3. Turn-Over . Each Term B Lender agrees that in the event that such Term B Lender receives any payment pursuant to the Limited Guaranty, such payment shall be deemed to have been paid to such Term B Lender in trust for the benefit of the Term A Lenders, and shall be immediately paid over to the Administrative Agent for the benefit of the Term A Lenders.

T HE SIGNATURES OF EACH PARTY HERETO TO THE A MENDMENT AND R ESTATEMENT A GREEMENT AND R EAFFIRMATION DATED J UNE  30, 2009 EVIDENCE EACH PARTIES ’ A GREEMENT TO BE BOUND BY THE TERMS OF THIS L OAN A GREEMENT .

 

-99-


E XHIBIT  A

N OTICE OF P AYMENT R EQUEST

[Date]

[Name of Lender]

[Address]

Attention:

Reference is made to the Loan Agreement, dated as of May 29, 2009, among F IFTH T HIRD P ROCESSING S OLUTIONS , LLC, a Delaware limited liability company, the Lenders party thereto, and Fifth Third Bank, a Michigan banking corporation, as Administrative Agent (as amended, restated, amended and restated, supplemented or otherwise modified, the “Loan Agreement” ). Capitalized terms used herein and not defined herein have the meanings assigned to them in the Loan Agreement. [The Borrower has failed to pay its Reimbursement Obligation in the amount of $                      . Your Revolver Percentage of the unpaid Reimbursement Obligation is $                      ] or [the L/C Issuer has been required to return a payment by the Borrower of a Reimbursement Obligation in the amount of $                      . Your Revolver Percentage of the returned Reimbursement Obligation is $                      .]

 

Very truly yours,

F IFTH T HIRD B ANK , a Michigan banking

    corporation, as L/C Issuer

By        
  Name    
  Title    


E XHIBIT  B

N OTICE OF B ORROWING

Date:               ,         

 

To: Fifth Third Bank, a Michigan banking corporation, as Administrative Agent for the Lenders parties to the Loan Agreement dated as of May 29, 2009 (as extended, renewed, amended or restated from time to time, the “Loan Agreement” ), among Fifth Third Processing Solutions, LLC, a Delaware limited liability company (the “Borrower” ), certain Lenders which are signatories thereto, and Fifth Third Bank, a Michigan banking corporation, as Administrative Agent

Ladies and Gentlemen:

The undersigned, the Borrower, refers to the Loan Agreement, the terms defined therein being used herein as therein defined, and hereby gives you notice irrevocably, pursuant to Section 2.5 of the Loan Agreement, of the Borrowing of Revolving Loans specified below:

1. The Business Day of the proposed Borrowing is                      ,          . 1

2. The aggregate amount of the proposed Borrowing is $              . 1

3. The Borrowing is being advanced under the Revolving Credit.

4. The Borrowing is to be comprised of $              of [Base Rate] [Eurodollar] Loans.

[5. The duration of the Interest Period for the Eurodollar Loans included in the Borrowing shall be                      months.] 2

The undersigned hereby certifies that the following statements are true on the date hereof:

(a) the representations and warranties of the Borrower contained in Section 5 of the Loan Agreement are true and correct in all material respects as though made on and

 

1

Notice must be provided by telephone (promptly confirmed in writing) or telecopy by noon (Cincinnati time) (i) at least 3 Business Days before the date on which the Borrower requests the Lenders to advance a Borrowing of Revolving Loans that are Eurodollar Loans and (ii) on the date the Borrower requests the Lenders to advance a Borrowing of Revolving Loans that are Base Rate Loans.

 

1

Each Borrowing of Base Rate Loans shall be in amount not less than $500,000 or such greater amount that is an integral multiple of $50,000. Each Borrowing of Eurodollar Loans advanced shall be in an amount equal to $1,000,000 or such greater amount that is in integral multiple of $100,000.

 

2

May be 1, 2 or 3 months.


as of such date (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date); and

(b) no Default or Event of Default has occurred and is continuing or would result from such proposed Borrowing.

 

F IFTH T HIRD P ROCESSING S OLUTIONS , LLC,
By        
  Name    
  Title    

 

-2-


E XHIBIT  C

N OTICE OF C ONTINUATION /C ONVERSION

Date:              ,         

 

To: Fifth Third Bank, as Administrative Agent for the Lenders parties to the Loan Agreement dated as of May 29, 2009 (as extended, renewed, amended or restated from time to time, the “Loan Agreement” ) among Fifth Third Processing Solutions, LLC (the “Borrower” ), certain Lenders which are signatories thereto, and Fifth Third Bank, as Administrative Agent

Ladies and Gentlemen:

The undersigned, Fifth Third Processing Solutions, LLC, refers to the Loan Agreement, the terms defined therein being used herein as therein defined, and hereby gives you notice irrevocably, pursuant to Section 2.5 of the Loan Agreement, of the [conversion] [continuation] of the Revolving Loans specified herein, that:

1. The conversion/continuation Date is              ,              . 1

2. The aggregate amount of the Revolving Loans to be [converted] [continued] is $              . 2

3. The Loans are to be [converted into] [continued as] [Eurodollar] [Base Rate] Loans.

4. [If applicable:] The duration of the Interest Period for the Revolving Loans included in the [conversion] [continuation] shall be              months. 3

 

F IFTH T HIRD P ROCESSING S OLUTIONS , LLC
By        
  Name    
  Title    

 

1

Notice of the continuation of a Borrowing of Revolving Notes that are Eurodollar Loans for an additional Interest Period or of the conversion of part or all of a Borrowing of Revolving Loans that are Base Rate Loans into Eurodollar Loans must be given by no later than noon (Cincinnati time) at least 3 Business Days before the date of the requested continuation or conversion.

 

2

Each Borrowing of Eurodollar Loans continued or converted shall be in an amount equal to $1,000,000 or such greater amount that in an integral multiple of $100,000

 

3

May be 1, 2 or 3 months.


E XHIBIT  D-1

T ERM  A N OTE

 

$                     

                , 20__

F OR V ALUE R ECEIVED , the undersigned, Fifth Third Processing Solutions, LLC, a Delaware limited liability company (the “Borrower” ), hereby promises to pay to                                  (the “Lender” ) at the principal office of Fifth Third Bank, a Michigan banking corporation, as Administrative Agent, in Cincinnati, Ohio, in immediately available funds, the principal sum of                      Dollars ($                      ) or, if less, the aggregate unpaid principal amount of the Term A Loan made or maintained by the Lender to the Borrower pursuant to the Loan Agreement, in installments in the amounts and on the dates called for by Section 2.7(a) of the Loan Agreement, together with interest on the principal amount of such Term A Loan from time to time outstanding hereunder at the rates, and payable in the manner and on the dates, specified in the Loan Agreement.

This Note is one of the Term A Notes referred to in the Loan Agreement dated as of May 29, 2009 among the Borrower, Fifth Third Bank, a Michigan banking corporation, as Administrative Agent and the Lenders party thereto (as amended, supplemented, restated, amended and restated or otherwise modified from time to time, the “Loan Agreement” ), and this Note and the holder hereof are entitled to all the benefits and security provided for thereby or referred to therein, to which Loan Agreement reference is hereby made for a statement thereof. All defined terms used in this Note, except terms otherwise defined herein, shall have the same meaning as in the Loan Agreement. This Note shall be governed by and construed in accordance with the laws of the State of New York, including Section 5-1401 of the General Obligations Law of the State of New York (but excluding the laws applicable to conflicts or choice of law).

Voluntary prepayments may be made hereon, certain prepayments are required to be made hereon, and this Note may be declared due prior to the expressed maturity hereof, all on the terms and in the manner as provided for in the Loan Agreement.

The Borrower hereby waives demand, presentment, protest or notice of any kind hereunder.

 

F IFTH T HIRD P ROCESSING S OLUTIONS , LLC
By        
  Name    
  Title    


E XHIBIT  D-2

T ERM B N OTE

 

$                     

                , 20__

F OR V ALUE R ECEIVED , the undersigned, Fifth Third Processing Solutions, LLC, a Delaware limited liability company (the “Borrower” ), hereby promises to pay to                                      (the “Lender” ) at the principal office of Fifth Third Bank, a Michigan banking corporation, as Administrative Agent, in Cincinnati, Ohio, in immediately available funds, the principal sum of                      Dollars ($                      ) or, if less, the aggregate unpaid principal amount of the Term B Loan made or maintained by the Lender to the Borrower pursuant to the Loan Agreement, in installments in the amounts and on the dates called for by Section 2.7(b) of the Loan Agreement, together with interest on the principal amount of such Term B Loan from time to time outstanding hereunder at the rates, and payable in the manner and on the dates, specified in the Loan Agreement.

This Note is one of the Term B Notes referred to in the Loan Agreement dated as of May 29, 2009 among the Borrower, Fifth Third Bank, a Michigan banking corporation, as Administrative Agent and the Lenders party thereto (as amended, supplemented, restated, amended and restated or otherwise modified from time to time, the “Loan Agreement” ), and this Note and the holder hereof are entitled to all the benefits and security provided for thereby or referred to therein, to which Loan Agreement reference is hereby made for a statement thereof. All defined terms used in this Note, except terms otherwise defined herein, shall have the same meaning as in the Loan Agreement. This Note shall be governed by and construed in accordance with the laws of the State of New York, including Section 5-1401 of the General Obligations Law of the State of New York (but excluding the laws applicable to conflicts or choice of law).

Voluntary prepayments may be made hereon, certain prepayments are required to be made hereon, and this Note may be declared due prior to the expressed maturity hereof, all on the terms and in the manner as provided for in the Loan Agreement.

The Borrower hereby waives demand, presentment, protest or notice of any kind hereunder.

 

F IFTH T HIRD P ROCESSING S OLUTIONS , LLC
By        
  Name    
  Title    


E XHIBIT  D-3

R EVOLVING N OTE

 

$                                      , 20__

F OR V ALUE R ECEIVED , the undersigned, Fifth Third Processing Solutions, LLC, a Delaware limited liability company (the “Borrower” ), hereby promises to pay to                                  (the “Lender” ) on the Revolving Credit Termination Date of the hereinafter defined Loan Agreement, at the principal office of Fifth Third Bank, a Michigan banking corporation, as Administrative Agent, in Cincinnati, Ohio, in immediately available funds, the principal sum of                      Dollars ($              ) or, if less, the aggregate unpaid principal amount of all Revolving Loans made by the Lender to the Borrower pursuant to the Loan Agreement, together with interest on the principal amount of each Revolving Loan from time to time outstanding hereunder at the rates, and payable in the manner and on the dates, specified in the Loan Agreement.

This Note is one of the Revolving Notes referred to in the Loan Agreement dated as of May 29, 2009 among the Borrower, Fifth Third Bank, a Michigan banking corporation, as Administrative Agent and the Lenders party thereto (as amended, supplemented, restated, amended and restated or otherwise modified from time to time, the “Loan Agreement” ), and this Note and the holder hereof are entitled to all the benefits and security provided for thereby or referred to therein, to which Loan Agreement reference is hereby made for a statement thereof. All defined terms used in this Note, except terms otherwise defined herein, shall have the same meaning as in the Loan Agreement. This Note shall be governed by and construed in accordance with the laws of the State of New York, including Section 5-1401 of the General Obligations Law of the State of New York (but excluding the laws applicable to conflicts or choice of law).

Voluntary prepayments may be made hereon, certain prepayments are required to be made hereon, and this Note may be declared due prior to the expressed maturity hereof, all on the terms and in the manner as provided for in the Loan Agreement.

The Borrower hereby waives demand, presentment, protest or notice of any kind hereunder.

 

F IFTH T HIRD P ROCESSING S OLUTIONS , LLC
By        
  Name    
  Title    


E XHIBIT  D-4

S WING N OTE

 

$                                      , 20__

F OR V ALUE R ECEIVED , the undersigned, Fifth Third Processing Solutions, LLC, a Delaware limited liability company (the “Borrower” ), hereby promises to pay to                                  (the “Lender” ) on the Revolving Credit Termination Date of the hereinafter defined Loan Agreement, at the principal office of Fifth Third Bank, a Michigan banking corporation, as Administrative Agent, in Cincinnati, Ohio, in immediately available funds, the principal sum of                      ($              ) or, if less, the aggregate unpaid principal amount of all Swing Loans made by the Lender to the Borrower pursuant to the Loan Agreement, together with interest on the principal amount of each Swing Loan from time to time outstanding hereunder at the rates, and payable in the manner and on the dates, specified in the Loan Agreement.

This Note is one of the Swing Notes referred to in the Loan Agreement dated as of May 29, 2009 among the Borrower, the Lenders party thereto, and Fifth Third Bank, a Michigan banking corporation, as Administrative Agent and L/C Issuer (as amended, supplemented, restated, amended and restated or otherwise modified from time to time, the “Loan Agreement” ), and this Note and the holder hereof are entitled to all the benefits and security provided for thereby or referred to therein, to which Loan Agreement reference is hereby made for a statement thereof. All defined terms used in this Note, except terms otherwise defined herein, shall have the same meaning as in the Loan Agreement. This Note shall be governed by and construed in accordance with the laws of the State of New York, including Section 5-1401 of the General Obligations Law of the State of New York (but excluding the laws applicable to conflicts or choice of law).

Voluntary prepayments may be made hereon, certain prepayments are required to be made hereon, and this Note may be declared due prior to the expressed maturity hereof on the terms and in the manner as provided for in the Loan Agreement.

The Borrower hereby waives demand, presentment, protest or notice of any kind hereunder.

 

F IFTH T HIRD P ROCESSING S OLUTIONS , LLC
By        
  Name    
  Title    


E XHIBIT  E

 

 

C OMPLIANCE C ERTIFICATE

 

To: Fifth Third Bank, a Michigan banking corporation, as Administrative Agent under the Loan Agreement described below

This Compliance Certificate is furnished to the A DMINISTRATIVE A GENT (for delivery to the Lenders) pursuant to that certain Loan Agreement dated as of May 29, 2009 among Fifth Third Processing Solutions, LLC, a Delaware limited liability company (the “Borrower” ), Fifth Third Bank, a Michigan banking corporation, as Administrative Agent, and the Lenders party thereto (as amended, supplemented, restated, amended and restated or otherwise modified from time to time, the “Loan Agreement” ). Unless otherwise defined herein, the terms used in this Compliance Certificate shall have the meanings ascribed thereto in the Loan Agreement.

T HE U NDERSIGNED H EREBY C ERTIFIES T HAT :

1. I am the duly elected              1 of the Borrower;

2. I have reviewed the terms of the Loan Agreement and I have made, or have caused to be made under my supervision, a detailed review of the transactions and conditions of the Borrower and its Subsidiaries during the accounting period covered by the attached financial statements;

3. As of the date hereof, no Default or Event of Default has occurred and is continuing [, except as set forth below] ;

4. 2 The financial statements required by Section 6.1(a) of the Loan Agreement and being furnished to you concurrently with this Compliance Certificate fairly present in all material respects in accordance with GAAP the financial condition of the Borrower and its Subsidiaries as of the dates indicated and the results of their operations and changes in their cash flows for the periods indicated, subject to normal year-end adjustments and the absence of footnotes; and

5. Schedule I hereto sets forth financial data and computations evidencing the Borrower’s compliance with the financial covenants set forth in Section 6.19 of the Loan Agreement, all of which data and computations are, to the best of my knowledge, true,

 

1

Must be the chief financial officer or other financial or accounting officer.

 

2

Insert following statement for Compliance Certificates delivered in conjunction with the deliver of quarterly financial statements under Section 6.1(a).


complete and correct and have been made in accordance with the relevant Sections of the Loan Agreement.

[Described below are the exceptions to paragraph 3 by listing, in detail, the nature of the condition or event and the action which the Borrower has taken, is taking, or proposes to take with respect to each such condition or event:

 

      
      
      
       ]

The foregoing certifications, together with the computations set forth in Schedule I hereto and the financial statements delivered with this Certificate in support hereof, are made and delivered this          day of              20      .

 

F IFTH T HIRD P ROCESSING S OLUTIONS , LLC
By        
  Name    
  Title    

 

-2-


S CHEDULE  I

T O C OMPLIANCE C ERTIFICATE

F IFTH T HIRD P ROCESSING S OLUTIONS , LLC

C OMPLIANCE C ALCULATIONS

F OR L OAN A GREEMENT D ATED AS OF M AY  29, 2009*

C ALCULATIONS AS OF              ,         

 

A.      Leverage Ratio (Section 6.19(a))

  

1.      Indebtedness for borrowed money

   $ ___________

2.      Indebtedness secured by a purchase money mortgage or other Lien to secure purchase price

   $ ___________

3.      Obligations under Capital Leases (other than obligations related to Assumed Capital Leases)

   $ ___________

4.      Sum of Lines A1, A2 and A3

   $ ___________

5.      Uunrestricted cash and Cash Equivalents and cash and Cash Equivalents restricted in favor of the Administrative Agent

   $ ___________

6.      Line A4 minus Line A5 (“ Total Funded Debt ”)

   $ ___________

7.      Net income (loss) excluding (a) cumulative effect of a change in accounting principles, (b) accruals and reserves established or adjusted and (c) non-cash, equity-based award compensation expenses

   $ ___________

8.      Interest expense and, to the extent not reflected in Interest Expense, unused line fees and letter of credit fees payable under Loan Agreement

   $ ___________

9.      Taxes based on income, profits or capital, including Distributions made to permit Holdco to make Quarterly Distributions

   $ ___________

10.    Depreciation and amortization, including amortization of intangible assets established through purchase accounting and amortization of deferred financing fees or costs

   $ ___________

11.    Expenses or charges related to any equity offering, investment, acquisition, disposition, recapitalization or the

   $ ___________

 

* Unless otherwise defined herein, the terms used in this Schedule 1 to Compliance Certificate shall have the meanings ascribed thereto in the Loan Agreement.


         incurrence or repayment of Indebtedness permitted under the Loan Agreement

  

12.    Non-Cash Charges

   $ ___________

13.    Extraordinary losses in accordance with GAAP

   $ ___________

14.    (a) All Stand Alone Costs incurred during the first three years following the Closing Date and all other Transaction Expenses and (b) all amounts invoiced by Fifth Third Ohio to the Borrower pursuant to the Transition Services Agreement not to exceed $25,000,000 for such period

   $ ___________

15.    Operating expenses attributable to implementation of cost savings initiatives, severance, relocation costs, integration and facilities’ opening costs, signing costs, retention or completion bonuses, transition costs and costs related to closure/consolidation/separation of facilities and systems not to exceed $25,000,000 for such period

   $ ___________

16.    Amount of any minority interest expense consisting of subsidiary income attributable to minority equity interests of third parties in any non-Wholly-Owned Subsidiary

   $ ___________

17.    Amount of management, monitoring, consulting, transaction and advisory fees and related expenses paid to the Existing Shareholders to the extent permitted under Section 6.8(a)

   $ ___________

18.    Sum of Lines A7, A8, A9, A10, A11, A12, A13, A14, A15, A16 and A17

   $ ___________

19.    Extraordinary gains and unusual or non-recurring gains

   $ ___________

20.    Non-cash gains (excluding any non-cash gain representing reversal of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period)

   $ ___________

21.    Sum of Lines A19 and A20

   $ ___________

22.    Net gain (loss) resulting from Hedging Obligations and the application of Statement of Financial Accounting Standards No. 133 and International Accounting Standards No. 39

   $ ___________

23.    Any net gain (loss) resulting from currency translation gains or losses related to currency remeasurements of indebtedness (including any net loss or gain resulting from hedge agreements for currency exchange risk)

   $ ___________

24.    Line A22 plus or minus Line A23, as applicable

   $ ___________

25.    Line A18 minus Line A21, increased or decreased by Line A24, as applicable (“ Consolidated EBITDA ”)

   $ ___________

 

-2-


26.    Ratio of Line A6 to Line A25

     _____:1.00

27.    Line A26 ratio must not exceed

     _____:1.00

28.    The Borrower is in compliance (circle yes or no)

     yes / no

B.      Interest Coverage Ratio (Section 6.19(b))

  

1.      Consolidated EBITDA (Line A25)

   $ ___________

2.      Interest charges for four fiscal quarters then ended (including imputed interest charges with respect to Capitalized Lease Obligations (other than inputted interest charges to the extent related to Assumed Capital Leases) and all amortization of debt discount and expense) payable in cash

   $ ___________

3.      Non-cash interest expense for four fiscal quarters then ended attributable to the movement in the mark to market valuation of Hedging Obligations or other derivative instruments pursuant to GAAP, amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses

   $ ___________

4.      Any expensing of bridge, commitment and other financing fees for four fiscal quarters then ended

   $ ___________

5.      Line B2 minus Lines B3 and B4

   $ ___________

6.      Interest income for four fiscal quarters then ended

   $ ___________

7.      Line B5 minus Line B6 (“ Interest Expense ”)

   $ ___________

8.      Ratio of Line B1 to Line B7

     _____:1.00

9.      Line B8 shall exceed

     ____:1.00

10.    The Borrower is in compliance (circle yes or no)

     yes / no

 

-3-


E XHIBIT  F

A SSIGNMENT AND A SSUMPTION

This Assignment and Assumption (the “Assignment and Assumption” ) is dated as of the Effective Date set forth on the signature page hereof and is entered into by and between [Insert name of Assignor] (the “Assignor” ) and [Insert name of Assignee] (the “Assignee” ). Capitalized terms used but not defined herein shall have the meanings given to them in the Loan Agreement (as defined below), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex I attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.

For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Loan Agreement, as of the Effective Date (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Loan Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and Percentage identified below of all of such outstanding rights and obligations of the Assignor under the respective Credits identified below (including any Letters of Credit and Swing Loans included in such Credits) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Loan Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as, the “Assigned Interest” ). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.

1. Assignor :

2. Assignee :                                                                                                                                                

                       [and is an Affiliate/Approved Fund of [identify Lender] 1

3. Borrower : Fifth Third Processing Solutions, LLC

4. Administrative Agent : Fifth Third Bank, a Michigan banking corporation, as the Administrative Agent under the Loan Agreement

 

1

Select as applicable.


5. Loan Agreement : The Loan Agreement dated as of May 29, 2009, among Fifth Third Processing Solutions, LLC, the Lenders parties thereto, and Fifth Third Bank, a Michigan banking corporation as Administrative Agent (as amended, restated, amended and restated, supplemented or otherwise modified, the “Loan Agreement” ).

6. Assigned Interest :

 

Credit Assigned 1

   Aggregate Amount of
Commitments/Loans
for all Lenders 2
   Amount of
Commitment/Loans
Assigned 2
   Percentage Assigned of
Commitments/Loans 3
        
        
        

[7. Trade Date :                                                                                                ] 4

[Page break]

 

1

Fill in the appropriate terminology for the types of facilities under the Loan Agreement that are being assigned under this Assignment ( e.g. “Revolving Credit Commitment,” “Term A Credit,” etc.)

 

2

Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.

 

3

Set forth, to at least 9 decimals, as a percentage of the Commitments/Loans of all Lenders thereunder.

 

4

To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.

 

-2-


Effective Date:              , 20      [T O BE INSERTED BY A DMINISTRATIVE A GENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR .]

The terms set forth in this Assignment and Assumption are hereby agreed to:

 

A SSIGNOR
[N AME OF A SSIGNOR ]
By:        
  Title:    

 

A SSIGNEE
[N AME OF A SSIGNEE ]
By:        
  Title:    

 

Consented to and Accepted:

F IFTH T HIRD B ANK , a Michigan banking

    corporation, as Administrative Agent and

    L/C Issuer

By    
  Title:    

 

[Consented to:] 1
[N AME OF R ELEVANT P ARTY ]
By    
  Title:    

 

 

1

To be added only if the consent of the Borrower and/or other parties is required by the terms of the Loan Agreement.

 

-3-


A NNEX  1

S TANDARD T ERMS AND C ONDITIONS FOR A SSIGNMENT AND A SSUMPTION

S ECTION  1. R EPRESENTATIONS AND W ARRANTIES .

Section 1.1. Assignor . The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Loan Agreement or any other Loan Document (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.

Section 1.2. Assignee . The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Loan Agreement, (ii) it meets all the requirements and has received all consents necessary to be an assignee under Section 10.10(b)(iii) and the definition of “Eligible Assignee” of the Loan Agreement, (iii) from and after the Effective Date, it shall be bound by the provisions of the Loan Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Loan Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.1 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest, and (vii) if it is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Loan Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.


Section 2. Payments . From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.

Section 3. General Provisions . This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.

 

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S CHEDULE  1

T ERM A L OANS , T ERM B L OANS AND R EVOLVING C REDIT C OMMITMENTS

AS OF THE C LOSING D ATE

 

N AME OF L ENDER

   A GGREGATE T ERM A
L OANS
O UTSTANDING   ON
THE C LOSING D ATE
   A GGREGATE  T ERM  B
L OANS  O UTSTANDING
ON   THE  C LOSING  D ATE
   R EVOLVING  C REDIT
C OMMITMENT

Fifth Third Holdings LLC, a Delaware limited liability company

   $ 999,000,000.00      $0.00      $0.00

Fifth Third Bank, a Michigan banking corporation

   $ 1,000,000.00    $ 250,000,000.00    $ 125,000,000.00

Total:

   $ 1,000,000,000.00    $ 250,000,000.00    $ 125,000,000.00
                    

Exhibit 10.4

 

 

 

REGISTRATION RIGHTS AGREEMENT

By and between

FIFTH THIRD BANK,

ADVENT-KONG BLOCKER CORP.,

JPDN ENTERPRISES, LLC,

FTPS PARTNERS, LLC

and

FTPS HOLDING, LLC

 

 

Dated as of June 30, 2009

 

 

 


TABLE OF CONTENTS

 

     Page

Section 1.

   Certain Definitions .    1

Section 2.

   IPO Registration .    6

Section 3.

   Demand Registrations .    7

Section 4.

   Piggyback Registrations .    9

Section 5.

   Shelf Takedowns .    10

Section 6.

   Suspension Events; Black-out Periods .    11

Section 7.

   Lock-Up .    12

Section 8.

   Holdback Agreements .    12

Section 9.

   Registration Procedures .    12

Section 10.

   Registration Expenses .    17

Section 11.

   Registration Rights of Other Persons; Transfers of Rights .    17

Section 12.

   Indemnification .    18

Section 13.

   Participation in Underwritten Offerings .    20

Section 14.

   Securities Act Restrictions .    20

Section 15.

   Transfer of Interests in Event of IPO .    21

Section 16.

   Miscellaneous .    21

 

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REGISTRATION RIGHTS AGREEMENT, dated June 30, 2009, among (i) Fifth Third Bank, a bank chartered under the laws of the State of Ohio (“ Fifth Third ”), (ii) Advent-Kong Blocker Corp., a corporation organized under laws of the State of Delaware (“ Advent ”), (iii) JPDN Enterprises, LLC, a Delaware limited liability company (“ JPDN ”), (iv) FTPS Partners, LLC, a limited liability company organized under the laws of the State of Delaware (“ FTPS Partners ”), and (v) FTPS Holding, LLC, a limited liability company organized under the laws of the State of Delaware (the “ Company ”).

In consideration of the premises and the mutual representations, warranties, covenants and undertakings contained in this Agreement, and for other good and valuable consideration, the parties hereto agree as follows:

Section 1. Certain Definitions . As used in this Agreement, the following terms have the meanings set forth below:

Advent ” has the meaning set forth in the Preamble.

Affiliate ” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, such Person as of the date on which, or at any time during the period for which, the determination of affiliation is being made. For purposes of this definition, the term “control” (including the correlative meanings of the terms “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such Person, whether through the ownership of voting securities or by contract or otherwise.

Agreement ” means this Registration Rights Agreement, including all amendments, modifications and supplements in accordance with its terms, and any exhibits or schedules to any of the foregoing, and shall refer to this Registration Rights Agreement as the same may be in effect at the time such reference becomes operative.

Beneficially Owns ” means, with respect to any Person, the direct or indirect “beneficial ownership” by such Person of securities, including securities beneficially owned by others with whom such Person has agreed to act together for the purpose of acquiring, holding, voting or disposing of such securities, as determined pursuant to Rule 13d-3 and Rule 13d-5 under the Exchange Act; provided that, notwithstanding Rule 13d-3(d)(1)(i), a Person shall be deemed to Beneficially Own the securities that such Person has a right to acquire through the exercise of an option, warrant, conversion or any other right, regardless of when such right is then exercisable; provided , further , that a Person shall not be deemed to Beneficially Own (i) securities tendered pursuant to a tender or exchange offer made by such Person or any of such Person’s Affiliates until such tendered securities are accepted for payment, purchase or exchange and (ii) any security as a result of an oral or written agreement, arrangement or understanding to vote such security if such agreement, arrangement or understanding: (a) arises solely from a revocable proxy given in response to a public proxy or consent solicitation made pursuant to, and in accordance with, the applicable provisions of the Exchange Act and (b) is not also then


reportable by such Person on Schedule 13D under the Exchange Act (or any comparable or successor report).

Chosen Courts ” has the meaning set forth in Section 16(d).

Class A Holder ” means Advent and any other Person to whom Class A Units are transferred in accordance with Section 11(c), in each case for so long as such Person Beneficially Owns any Class A Units.

Class A Units ” means (i) the Class A Units of the Company, as defined in the LLC Agreement, (ii) common stock or other equity securities for which the Class A Units have been converted or exchanged of a successor corporation or other entity into which the Company is converted or merged, (iii) the common stock or other equity securities of a corporation or other entity otherwise formed by the Company or the Holders for the purpose of offering securities to the public that are issued or issuable for the Class A Units or the rights to receive, or the securities that are convertible into, or exchangeable or exercisable for, the common stock or other equity securities of a corporation or other entity otherwise formed by the Company or the Members for the purpose of offering securities to the public that are issued or issuable for the Class A Units, (iv) the common stock or other equity securities of a Person that has control of the Company, a Subsidiary or other entity to which the assets of the Company and/or the Subsidiaries have been transferred, in each case, whose securities the Company has determined to offer to the public and that are issued or issuable for the Class A Units, or (v) the Units for which the Class A Units are exchangeable.

Class B Holder ” means Fifth Third, FTPS Partners and any other Person to whom Class B Units are transferred in accordance with Section 11(c), in each case for so long as such Person Beneficially Owns any Class B Units.

Class B Units ” means (i) the Class B Units of the Company, as defined in the LLC Agreement, (ii) common stock or other equity securities for which the Class B Units have been converted or exchanged of a successor corporation or other entity into which the Company is converted or merged, (iii) the common stock or other equity securities of a corporation or other entity otherwise formed by the Company or the Holders for the purpose of offering securities to the public that are issued or issuable for the Class B Units or the rights to receive, or the securities that are convertible into, or exchangeable or exercisable for, the common stock or other equity securities of a corporation or other entity otherwise formed by the Company or the Members for the purpose of offering securities to the public that are issued or issuable for the Class B Units, (iv) the common stock or other equity securities of a Person that has control of the Company, a Subsidiary or other entity to which the assets of the Company and/or the Subsidiaries have been transferred, in each case, whose securities the Company has determined to offer to the public and that are issued or issuable for the Class B Units, or (v) the Units for which the Class B Units are exchangeable.

Class C Holder ” means Fifth Third and any other Person to whom Class C Units are transferred in accordance with Section 11(c), in each case for so long as such Person Beneficially Owns any Class C Units.

 

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Class C Units ” means, as applicable, (a) prior to, and except in connection with, an IPO, the Class C Non-Voting Units of the Company, or (b) upon and after the consummation of an IPO or in connection with an IPO, in each case, in which the Class B Units are offered, the Class B Units.

Company ” has the meaning set forth in the Preamble.

Demand Request ” has the meaning set forth in Section 3(a).

Distribution ” means a distribution made by the Company to a Holder pursuant to the LLC Agreement.

JPDN ” has the meaning set forth in the Preamble.

Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder, as amended, or any successor federal statute, and the rules and regulations of the SEC thereunder, all as the same shall be in effect from time to time.

Fifth Third ” has the meaning set forth in the Preamble.

FTPS Partners ” has the meaning set forth in the Preamble.

Government Entity ” means any federal, state, local or foreign government, governmental subdivision, administrative body or other governmental or quasi-governmental agency, tribunal, court or other entity with competent jurisdiction.

Holder ” means any Class A Holder, Class B Holder, Class C Holder, any holder of all or any portion of the Warrant or any other Person that agrees in writing to be bound by this Agreement in the same capacity as the Person transferring Class A Units, Class B Units, Class C Units or all or any portion of the Warrant to such Person.

Holder’s Counsel ” has the meaning set forth in Section 9(a)(i).

IPO ” means the first Underwritten Offering of Units for cash pursuant to an effective Registration Statement under the Securities Act, registered on Form S-1 (or any successor form).

IPO Corp. ” has the meaning set forth in Section 15.

IPO Demand Request ” has the meaning set forth in Section 2(b)

IPO Notice ” has the meaning set forth in Section 2(a).

LLC Agreement ” means the Amended and Restated Limited Liability Company Agreement of the Company, dated the date hereof, among Fifth Third, FTPS Partners, Advent and the Company, as the same may be amended from time to time in accordance with its terms.

Lock-Up Period ” has the meaning set forth in Section 7(a).

 

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Member ” has the meaning set forth in the LLC Agreement.

Participating Holder ” means, with respect to any Registration Statement or any offering registered on a Registration Statement, any Holder all or a part of whose Registerable Securities are registered pursuant to such Registration Statement.

Person ” means an individual, a corporation, a partnership, an association, a limited liability company, a joint venture, a Government Entity, a trust or other entity or organization.

Prospectus ” means the prospectus or prospectuses (whether preliminary or final) included in any Registration Statement, as amended or supplemented by any prospectus supplement with respect to the terms of the offering of any portion of the Registerable Securities covered by such Registration Statement and by all other amendments and supplements to the prospectus, including post-effective amendments and all material incorporated by reference in such prospectus or prospectuses.

Qualified IPO ” has the meaning set forth in Section 2(b).

Quarterly Distributions ” has the meaning set forth in the LLC Agreement.

Registerable Securities ” means, with respect to any Person, Units issued or issuable to such Person, together with any securities issued or issuable upon any stock split, stock dividend or other distribution or in connection with a combination of shares, recapitalization, merger, consolidation or similar event with respect to the foregoing, but excluding any and all securities that at any time after the date hereof (a) have been sold pursuant to an effective Registration Statement or Rule 144 under the Securities Act, (b) have been sold in a transaction where a subsequent public distribution of such securities would not require registration under the Securities Act, (c) have been issued but are no longer outstanding or (d) have been transferred in violation of Section 11 or the LLC Agreement (or any combination of clauses (a), (b), (c) and (d) of this definition).

Registration Expenses ” has the meaning set forth in Section 10(a).

Registration Statement ” means any registration statement of the Company that covers any of the Registerable Securities pursuant to the provisions of this Agreement, including the Prospectus, amendments and supplements to such registration statement, including post-effective amendments, all exhibits and all documents incorporated by reference in such registration statement.

SEC ” means the United States Securities and Exchange Commission or any successor agency administering the Securities Act.

Securities Act ” means the Securities Act of 1933, as amended, or any successor federal statute, and the rules and regulations of the SEC thereunder, all as the same shall be in effect from time to time.

Shelf Registration ” has the meaning set forth is Section 3(a).

 

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Shelf Takedown ” has the meaning set forth is Section 5(a).

Subsidiary ” means any Person of which (i) a majority of the outstanding share capital, voting securities or other equity interests are owned, directly or indirectly, by the Company and/or any other Subsidiary or (ii) the Company and/or any other Subsidiary is entitled, directly or indirectly, to appoint a majority of the Board of Directors or comparable body of such Person.

Suspension Event ” has the meaning set forth in Section 6(a).

Uncontrolled Event ” has the meaning set forth in Section 6(a).

Underwritten Offering ” means a registered, public offering in which securities of the Company are sold to one or more underwriters on a firm-commitment basis for reoffering to the public.

Units ” means the Class A Units, the Class B Units and the Class C Units.

Warrant ” means the Warrant, dated the date hereof, between the Company and Fifth Third, as the same may be amended from time to time in accordance with its terms, and any new warrants issued for all or any part of such Warrant.

Withdrawn Registration ” has the meaning set forth in Section 3(b).

In addition to the above definitions, unless the express context otherwise requires:

(i) the words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement;

(ii) the terms defined in the singular have a comparable meaning when used in the plural, and vice versa;

(iii) the terms “Dollars” and “$” mean United States Dollars;

(iv) When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period is excluded. If the last day of such period is a non-business day, the period in question ends on the next succeeding business day.

(v) references herein to a specific Article, Section, Subsection or Schedule shall refer, respectively, to Articles, Sections, Subsections or Schedules of this Agreement;

(vi) wherever the word “include,” “includes” or “including” is used in this Agreement, it shall be deemed to be followed by the words “without limitation”;

 

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(vii) references herein to any gender includes each other gender; and

(viii) it is the intention of the parties hereto that this Agreement not be construed more strictly with regard to one Party than with regard to any other Party.

Section 2. IPO Registration.

(a) Company IPO . The Company shall provide written notice (the “ IPO Notice ”) to all Holders at least 10 days prior to filing any Registration Statement in connection with an IPO by the Company. Each Holder, upon providing written notice to the Company no later than seven days following receipt of the IPO Notice and subject to the limitations in this Section 2, shall have the right to include in such a Registration Statement as many Registerable Securities as such Holder requests to be included in such writing. The Company shall take all steps necessary to effect the registration of all Registerable Securities requested by all Holders in such Registration Statement, provided that the Company shall have the right to postpone or withdraw the filing of any such Registration Statement on account of a Suspension Event.

(b) IPO Demand Request . On or after the third anniversary of the date of this Agreement, if the Company has not consummated an IPO, each of (i) the Holders holding a majority of the Class A Units and (ii) the Holders holding a majority of the Class B Units shall each have the right, upon written request (an “ IPO Demand Request ”), to cause the Company, any successor corporation or other entity into which the Company is converted or any other entity that the Company determines to form in accordance with the terms of the LLC Agreement for the purpose of consummating an IPO to file a Registration Statement under the Securities Act with respect to all or a portion of such Holders’ Registerable Securities, subject to the limitations of this Section 2, and to use its commercially reasonable efforts to cause such Registration Statement to become effective and to distribute such Units in a Qualified IPO. “ Qualified IPO ” means an IPO generating proceeds (including, for purposes of calculating the amount of such proceeds, the aggregate amount of any Distributions (other than Quarterly Distributions) made to the Holders to and until the date of the filing of the Registration Statement with respect to the IPO, with the value of any non-cash Distributions being calculated in good faith by the Board of Directors (or successor governing body) of the Company), before deducting underwriting commissions, at a per Unit price (subject to adjustment for any combination, recapitalization, splits, reclassification, merger, consolidation or similar transaction occurring after the date hereof) of no less than $22.00 per Unit.

(c) Priority on IPO Registrations . If, in conjunction with an IPO, the managing underwriters advise the Company that, in their opinion, the number of Registerable Securities proposed to be included in the IPO exceeds the number of Registerable Securities that can be sold in the IPO without materially delaying or jeopardizing the success of the IPO (including the price per share of the Units proposed to be sold in such IPO), the Company shall include in the IPO: (i) first, up to the number of Registerable Securities to be issued and sold by the Company in such IPO, if any, (ii) second, all Registerable Securities requested to be included by each of Advent, Fifth Third and FTPS Partners on a pro rata basis based on the number of Registerable Securities

 

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Beneficially Owned by each of Advent, Fifth Third and FTPS Partners, respectively, (iii) third, all Registerable Securities requested to be included by JPDN, and (iv) fourth, all Registerable Securities requested to be included by all holders other than Advent, JPDN, Fifth Third and FTPS Partners that have elected to participate in such IPO on a pro rata basis based on the number of Registerable Securities Beneficially Owned by each such Holder.

Section 3. Demand Registrations .

(a) Right to Request Registration . Subject to the restrictions of this Section 3, at any time after an IPO, each of (x) the Holders of a majority of the Class A Units and (b) the Holders of a majority of the Class B Units may request in writing (each such request, a “ Demand Request ”) that the Company effect a registration for resale under the Securities Act of all or part of such Holders’ Registerable Securities either (i) on Form S-1 or any similar long-form Registration Statement or (ii) if the Company is then eligible, on Form S-3 or any similar short-form Registration Statement, including for offerings to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (such a Registration Statement for offerings to be made on Form S-3 pursuant to Rule 415, a “ Shelf Registration ”). The Company shall use commercially reasonable efforts to (i) file such a Registration Statement within 90 days (in the case of a Form S-1) or within 45 days (in the case of a Form S-3) after receiving the Demand Request and (ii) cause such Registration Statement to be declared effective by the SEC as soon as practicable thereafter; provided that the Company shall have the right to postpone or withdraw the filing of any such Registration Statement on account of a Suspension Event. The Company may satisfy its obligation to effect a registration upon a Demand Request by amending a previously filed Shelf Registration.

(b) Number of Demand Requests . Each of the Class A Holders, on the one hand, and the Class B Holders, on the other hand, may make a maximum of two Demand Requests for registration on Form S-1 or other long-form Registration Statement and, subject to Section 3(c), an unlimited number of Demand Requests for registration on Form S-3 or other short-form Registration Statement. If the Company withdraws pursuant to Section 6(a) any Registration Statement filed pursuant to a Demand Request before the end of the 60-day period of effectiveness provided for in Section 3(f) and before 80% of the Registerable Securities covered by such Demand Request have been sold pursuant thereto (a “ Withdrawn Registration ”), the Holders of Registerable Securities remaining unsold and originally covered by such Withdrawn Registration shall be entitled to a replacement Demand Request with respect to such Registerable Securities, which replacement Demand Request shall be subject to all of the provisions of this Agreement.

(c) Restrictions on Demand Requests . The Company shall not be required to give effect to a Demand Request if: (i) the Company has registered Registerable Securities pursuant to an IPO Demand Request or a Demand Request in the preceding 90 days, (ii) the Company has previously registered any Registerable Securities pursuant to an IPO Demand Request and/or Demand Request twice during the calendar year in which such Demand Request is made, (iii) the Company has registered its Registerable Securities during the preceding 90 days (other than in relation to a merger, combination or employee

 

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stock plan) or (iv) the Registerable Securities requested to be registered do not have in the aggregate a market value of at least $75 million. A Demand Request shall not count for the purposes of determining when the Company may refuse to give effect to another Demand Request pursuant to Section 3(b) or this Section 3(c) if (i) the Registration Statement has not been declared effective by the SEC or does not become effective in accordance with the Securities Act, other than by reason of the withdrawal of such Demand Request after the filing of the Registration Statement, (ii) after becoming effective, the Registration Statement or the applicable offer, sale or distribution of Registerable Securities is materially interfered with by any stop order, injunction or similar order or requirement of the SEC or other Government Entity for any reason not attributable to the Holder(s) making such Demand Request, and does not within 45 days thereafter become effective, (iii) the Holder(s) making such Demand Request shall have withdrawn such Demand Request or otherwise determined not to pursue such registration prior to the filing of the Registration Statement, (iv) if the Holders of Registerable Securities are entitled to a replacement Demand Request pursuant to Section 3(b) or (v) the conditions specified in the underwriting agreement related to the offering, if any, are not satisfied due to a breach by the Company of its covenants, representations or warranties under this Agreement and such unsatisfied conditions are not waived.

(d) Priority on Demand Registrations . If, in conjunction with a Registration Statement filed pursuant to a Demand Request conducted as an Underwritten Offering, the managing underwriters advise the Company that, in their opinion, the number of Registerable Securities proposed to be included in an Underwritten Offering in connection with such Registration Statement exceeds the number of Registerable Securities that can be sold in such offering without materially delaying or jeopardizing the success of such offering (including the price per share of the Units proposed to be sold in such offering), the Company shall include in such offering: (i) first, all Registerable Securities requested to be included by each of Advent, Fifth Third and FTPS Partners on a pro rata basis based on the number of Registerable Securities Beneficially Owned by Advent, Fifth Third and FTPS Partners, respectively, (ii) second, all Registerable Securities requested to be included by JPDN, (iii) third, all Registerable Securities requested to be included by all holders other than Advent, JPDN, Fifth Third and FTPS Partners on a pro rata basis based on the number of Registerable Securities Beneficially Owned by each such holder and (iv) fourth, up to the number of Registerable Securities to be issued and sold by the Company in such offering, if any.

(e) Underwriting Requests . Any Demand Request for registration on Form S-1 or other long-form Registration Statement must be for an Underwritten Offering. Upon such Demand Request, the Company shall have the right to select the underwriters and the managing underwriter (each shall be of recognized national standing) with the consent of the initiating Holder (by a majority of the class of Registerable Securities that is being registered by such initiating Holder), which consent shall not be unreasonably withheld.

(f) Effective Period of Registration Statements Pursuant to Demand Requests . Upon the date of effectiveness of any Registration Statement filed pursuant to a Demand Request for an Underwritten Offering (other than a Shelf Registration), if such

 

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offering is priced promptly on or after such date, the Company shall use commercially reasonable efforts to keep such Registration Statement effective for a period equal to 60 days from such date (or if such Registration Statement is not effective for any period within such 60 days, such 60-day period shall be extended by the number of days during such period when such Registration Statement is not effective) or such shorter period that will terminate when all of the Registerable Securities covered by such Demand Request have been sold.

Section 4. Piggyback Registrations .

(a) Right to Piggyback . If, at any time after an IPO, (i) the Company proposes to file a Registration Statement (whether or not for sale for its own account) other than in connection with an IPO, (ii) the Company proposes to effect a Shelf Takedown from an already effective Shelf Registration of its equity securities or securities convertible into equity securities or (iii) a Demand Request is made to which the Company is required to give effect pursuant to Section 3, the Company shall provide written notice to all Holders of such proposal or Demand Request within 20 days thereof and in any event at least 30 days prior to filing a Registration Statement pursuant to such proposal or Demand Request. Subject to the restrictions of this Section 4, each Holder shall have the right to include in such Registration Statement such number of Registerable Securities as such Holder requests, provided that the Company shall have the right to postpone or withdraw the filing of any such Registration Statement or Shelf Takedown as provided by this Agreement.

(b) Priority on Piggyback Registrations .

(i) Priority on Primary Piggyback Registrations . If the Company registers Registerable Securities pursuant to clauses (i) or (ii) of Section 4(a) and the managing underwriters advise the Company that, in their opinion, the number of Registerable Securities proposed to be included in an Underwritten Offering in connection with such Registration Statement exceeds the number of Registerable Securities that can be sold in such offering without materially delaying or jeopardizing the success of such offering (including the price per share of the Units proposed to be sold in such offering), the Company shall include in such offering: (i) first, up to the number of Registerable Securities to be issued and sold by the Company in such offering, if any, (ii) second, all Registerable Securities requested to be included by each of Advent, Fifth Third and FTPS Partners, as applicable, on a pro rata basis determined based on the number of Registerable Securities Beneficially Owned by each of Advent, Fifth Third and FTPS Partners, respectively, (iii) third, all Registerable Securities requested to be included by JPDN, and (iv) fourth, all Registerable Securities requested to be included by all holders other than Advent, JPDN, Fifth Third and FTPS Partners on a pro rata basis based on the number of Registerable Securities Beneficially Owned by each such holder.

(ii) Priority on Secondary Piggyback Registrations . If the Company registers Registerable Securities for any Holder pursuant to clause (iii) of Section 4(a) and the managing underwriters advise the Company that, in their opinion, the number of Registerable Securities proposed to be included in an Underwritten Offering in

 

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connection with such Registration Statement exceeds the number of Registerable Securities that can be sold in such offering without materially delaying or jeopardizing the success of such offering (including the price per share of the Units proposed to be sold in such offering), the Company shall include in such offering: (i) first, all Registerable Securities requested to be included by each of Advent, Fifth Third and FTPS Partners on a pro rata basis determined based on the number of Registerable Securities Beneficially Owned by Advent, Fifth Third and FTPS Partners respectively, (ii) second, all Registerable Securities requested to be included by JPDN, (iii) third, all Registerable Securities requested to be included by all holders other than Advent, JPDN, Fifth Third and FTPS Partners on a pro rata basis based on the number of Registerable Securities Beneficially Owned by each such holder and (iv) fourth, up to the number of Units to be issued and sold by the Company in such offering, if any.

Section 5. Shelf Takedowns .

(a) Right to Effect a Shelf Takedown. Holders holding Registerable Securities registered pursuant to a Shelf Registration shall be entitled, at any time and from time to time when the Shelf Registration is effective, to sell such Registerable Securities as are then registered pursuant to such Shelf Registration (each, a “ Shelf Takedown ”), but only upon not less than three days’ prior written notice to the Company (whether or not such takedown is underwritten). No prior notice shall be required of any sale pursuant to a plan that complies with Rule 10b5-1 under the Exchange Act, provided that the Company has received a written copy of such plan in advance of the first sale thereunder. Holders holding Registerable Securities registered pursuant to a Shelf Registration shall each be entitled to request that a Shelf Takedown be an Underwritten Offering if, based on the then-current market prices, the number of Registerable Securities included in such Underwritten Offering would yield gross proceeds to all Participating Holders of at least $75 million. Holders participating in the Shelf Takedown shall not be entitled to request that a Shelf Takedown be part of an Underwritten Offering within 30 days after the pricing date of any other Underwritten Offering effected pursuant to a Demand Request or Section 4(a). Holder(s) shall give the Company prompt written notice of the consummation of a Shelf Takedown, whether or not part of an Underwritten Offering. Nothing in this Section 5(a) shall affect, supersede or otherwise modify any of the restrictions on transfer of Units set forth in the LLC Agreement.

(b) Priority on Underwritten Shelf Takedowns . If, in conjunction with a Shelf Takedown conducted as an Underwritten Offering, the managing underwriters advise the Company that, in their opinion, the number of Registerable Securities proposed to be included in an Underwritten Offering in connection with such Shelf Takedown exceeds the number of Registerable Securities that can be sold in such offering without materially delaying or jeopardizing the success of such offering (including the price per share of the Units proposed to be sold in such offering), the Company shall include in such offering: (i) first, all Registerable Securities requested to be included by each of Advent, Fifth Third and FTPS Partners on a pro rata basis based on the number of Registerable Securities Beneficially Owned by Advent, Fifth Third and FTPS Partners, respectively, (ii) second, all Registerable Securities requested to be included by JPDN, (iii) third, all Registerable Securities requested to be included by all holders other than Advent, JPDN,

 

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Fifth Third and FTPS Partners on a pro rata basis based on the number of Registerable Securities Beneficially Owned by each such holder and (iv) fourth, up to the number of Registerable Securities to be issued and sold by the Company in such offering, if any.

(c) Selection of Underwriters . If any of the Registerable Securities are to be sold in a Shelf Takedown that is conducted as an Underwritten Offering, the Company shall have the right to select the underwriters and the managing underwriter (each shall be of recognized national standing) with the consent of the initiating Holder (by a majority of the class of Registerable Securities that is being registered by such initiating Holder), which consent shall not be unreasonably withheld.

(d) Effective Period of Shelf Registrations . The Company shall use commercially reasonable efforts to keep any Shelf Registration effective for a period of one year after the effective date of such Registration Statement (or if such Registration Statement is not effective for any period within such year, such one-year period shall be extended by the number of days during such period when such Registration Statement is not effective).

Section 6. Suspension Events; Black-out Periods .

(a) Suspension Events . The Company may delay the requested filing or effectiveness of a Registration Statement in conjunction with a Demand Request, for a period of up to 90 days from the date of such Demand Request, or withdraw any Registration Statement that has been filed, if at the time that such Demand Request is made (i) the Company engages or plans to engage in a registered offering as to which the Holders may include all of their Registerable Securities subject to such Demand Request and the Company has taken substantial steps (including selecting a managing underwriter, which shall be of recognized national standing, for such offering) and is proceeding with reasonable diligence to effect such offering, (ii) the Company reasonably and in good faith determines that the registration and distribution of Registerable Securities resulting from such Demand Request would materially and adversely interfere with any planned or proposed business combination transaction involving the Company, or any planned or pending financing, acquisition, corporate reorganization or any other corporate development involving the Company or any Subsidiaries or (iii) following the exercise of such Demand Request but before the effectiveness of the applicable Registration Statement, (A) a business combination, tender offer, acquisition or other corporate event involving the Company is proposed, initiated or announced by another Person beyond the control of the Company (an “ Uncontrolled Event ”) or (B) in the reasonable and good faith determination of the Company, the filing or seeking of the effectiveness of such Registration Statement would materially and adversely interfere with such Uncontrolled Event or would otherwise materially and adversely affect the Company (each of the events listed in subparts (i)-(iii) of this Section 6(a), a “ Suspension Event ”). The Company may not exercise its right under this Section 6(a) to delay or withdraw a Demand Request more than twice in a calendar year. The Company shall provide prompt written notice to the Holder making the Demand Request of any Suspension Event and any withdrawal of a Registration Statement pursuant to this Section 6(a).

 

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(b) Black-out Periods . Following the effectiveness of a Registration Statement, the Participating Holder(s) will not effect any sales of Units pursuant to such Registration Statement at any time after they have received notice from the Company to suspend sales (i) as a result of a Suspension Event or (ii) so that the Company may correct or update the Registration Statement, which correction shall be promptly made. Participating Holder(s) may recommence effecting sales of Units pursuant to the Registration Statement following further notice to such effect from the Company, which notice shall be given promptly after the conclusion or completion of any such Suspension Event, correction or update.

Section 7. Lock-Up .

(a) Subject to the provisions of this Section 7, no Holder shall sell or otherwise transfer or dispose of any Units pursuant to a public offering, a private placement, Rule 144 or otherwise for a period of time (the “ Lock-Up Period ”) if the Company has filed a Registration Statement in respect of an Underwritten Offering of the Company’s equity securities and the managing underwriter determines that such sales by such Persons would materially adversely affect such offering.

(b) The Lock-Up Period shall not begin more than seven days before the date on which the Registration Statement is estimated in good faith by the Company to become effective, and shall not extend beyond (i) 180 days following such effectiveness in connection with an IPO or (ii) 90 days following such effectiveness in connection with any offering occurring after the IPO.

(c) Section 7(a) shall not apply to any Holder unless the Company’s directors and officers and all Holders of over 1% of the Registerable Securities of the Company agree to adhere to the Lock-Up Period specified in this Section 7.

(d) Any discretionary waiver or termination of the requirements under this Section 7 made by the managing underwriter of an Underwritten Offering shall apply to each Holder of Registerable Securities on a pro rata basis in accordance with the number of Registerable Securities Beneficially Owned immediately before such Underwritten Offering.

Section 8. Holdback Agreements . The Company agrees not to effect any sale or distribution of any of its equity securities during the seven days prior to and during the 90 days beginning on the effective date of any Underwritten Offering pursuant to a Shelf Takedown, an IPO Demand Request or a Demand Request (except as part of any such Underwritten Offering or pursuant to registrations on Form S-8 or S-4 or any successor forms thereto) unless the underwriters managing such Underwritten Offering otherwise agree to a shorter period.

Section 9. Registration Procedures .

(a) Whenever any Holder requests that any Registerable Securities be registered pursuant to this Agreement, the Company shall use reasonable best efforts to effect, as soon as practical as provided herein, the registration and the sale of such

 

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Registerable Securities in accordance with the intended methods of disposition thereof, and, pursuant thereto, the Company shall, as soon as practical as provided herein:

(i) subject to the other provisions of this Agreement, use reasonable best efforts to prepare and file with the SEC a Registration Statement with respect to such Registerable Securities and cause such Registration Statement to become effective (unless it is automatically effective upon filing); and before filing a Registration Statement or Prospectus or any amendments or supplements thereto, furnish to all Participating Holder(s) and the underwriters or other distributors, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by any Participating Holder, one set of the exhibits incorporated by reference, and all Participating Holder(s) and one counsel selected by Participating Holders holding a majority of the Class A Units registered on such Registration Statement, on the one hand, and one counsel selected by Participating Holders holding a majority of the Class B Units registered on such Registration Statement, on the other hand (each, a “ Holder’s Counsel ”), shall have three (3) business days to review and comment on the Registration Statement and each such Prospectus (and each amendment or supplement thereto) before it is filed with the SEC, and each Participating Holder shall have the opportunity to object to any information pertaining to such Participating Holder that is contained therein within three (3) business days of receipt of the documents proposed to be filed, and the Company will make the corrections reasonably requested by the Participating Holder(s) with respect to such information prior to filing any Registration Statement or Prospectus or any amendment or supplement thereto;

(ii) use reasonable best efforts to prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but in any case (other than a Shelf Registration) no longer than is necessary to complete the distribution of Registerable Securities covered by such Registration Statement, and to comply with the applicable requirements of the Securities Act with respect to the disposition of all Registerable Securities covered by such Registration Statement during such period in accordance with the intended methods of disposition set forth in such Registration Statement;

(iii) use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registerable Securities for sale in any jurisdiction in the United States;

(iv) furnish to all Participating Holders and each managing underwriter, if any, without charge, conformed copies of each Registration Statement and amendment thereto and copies of each supplement thereto promptly after they are filed with the SEC (but only one set of exhibits thereto need be provided); and deliver, without charge, to such Persons such number of copies of the preliminary and final Prospectus and any supplement thereto as the Participating Holder(s) may reasonably request in order to

 

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facilitate the disposition of the Registerable Securities covered by such Registration Statement in conformity with the requirements of the Securities Act;

(v) use commercially reasonable efforts to register or qualify such Registerable Securities under such other securities or blue sky laws of such U.S. jurisdictions as the Participating Holder(s) reasonably request and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement ( provided that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);

(vi) notify each Participating Holder and each distributor of such Registerable Securities, at any time when a Prospectus relating thereto is required under the Securities Act to be delivered by such distributor, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein not misleading, and, at the request of any Participating Holder, the Company shall use reasonable best efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to the purchasers of such Registerable Securities, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;

(vii) in the case of an Underwritten Offering, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters) as are customary and reasonable for an offering of such kind, and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registerable Securities (including making members of senior management of the Company available to participate in “road-show” and other customary marketing activities);

(viii) in the case of an Underwritten Offering, and to the extent not prohibited by applicable law or pre-existing applicable contractual restrictions, (A) make reasonably available, for inspection by the Participating Holder(s), Holder’s Counsel, the managing underwriters of such offering and one attorney (and one accountant) for such managing underwriter, pertinent corporate documents and financial and other records of the Company and the Subsidiaries and controlled Affiliates, (B) cause the Company’s officers and employees to supply information reasonably requested by the Participating Holder(s) or such managing underwriters or attorney in connection with such offering and (C) make the Company’s independent accountants available for any such managing underwriters’ due diligence; provided , however , that such records and other information shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews; and provided , further , that, unless the disclosure of such records is necessary to avoid or correct a misstatement or omission in the

 

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Registration Statement or otherwise to comply with federal securities laws or the release of such records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (1) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (2) if either (x) the Company has requested and been granted from the SEC confidential treatment of such information contained in any filing with the SEC or documents provided supplementally or otherwise or (y) the Company reasonably determines in good faith that such records are confidential and so notifies the Persons requesting the records in writing unless prior to furnishing any such information with respect to (1) or (2) such Person requesting such information agrees to enter into a confidentiality agreement in customary form and subject to customary exceptions; and provided , further , that each such Person agrees that it will, upon learning that disclosure of such records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the records deemed confidential;

(ix) use reasonable best efforts to cause all such Registerable Securities to be listed on each securities exchange (if any) on which similar securities of the same class issued by the Company are then listed;

(x) provide a transfer agent and registrar for all such Registerable Securities not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registerable Securities pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registerable Securities to be sold;

(xi) make generally available to its security holders a consolidated earnings statement (which need not be audited) for a period of 12 months beginning after the effective date of the Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earnings statement under Section 11(a) of the Securities Act and Rule 158 thereunder, and which requirement will be deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under the Exchange Act; and

(xii) as promptly as practicable notify the Participating Holder(s) and the managing underwriters of any Underwritten Offering, if any:

(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;

 

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(2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for any additional information regarding any Participating Holder;

(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and

(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registerable Securities for sale under the applicable securities or blue sky laws of any jurisdiction; and

keep Holder’s Counsel reasonably apprised as to the intention and progress of the Company with respect to any Registration Statement hereunder, including by providing Holder’s Counsel with copies of all written correspondence with the SEC in connection with any Registration Statement or Prospectus filed hereunder.

(b) The Company shall ensure that (i) no Registration Statement (including any amendments thereto) shall contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein not misleading, and (ii) no Prospectus (including any supplements thereto) shall contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case, except for any untrue statement or alleged untrue statement of a material fact or omission or alleged omission of a material fact made in reliance on and in conformity with written information furnished to the Company by or on behalf of the Holder(s) or any underwriter or other distributor specifically for use therein.

(c) At all times after the Company has filed a Registration Statement with the SEC pursuant to the requirements of the Securities Act, the Company shall use reasonable best efforts to continuously maintain in effect the Registration Statement for the relevant period required hereunder under Section 12 of the Exchange Act, and to use reasonable best efforts to file all reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder, all to the extent required to enable the Holder(s) to be eligible to sell Registerable Securities pursuant to Rule 144 under the Securities Act.

(d) The Company may require the Participating Holder(s) and each distributor of Registerable Securities as to which any registration is being effected to furnish to the Company any other information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request.

(e) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus. Neither any Participating Holder nor any other seller

 

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of Registerable Securities may use a free-writing prospectus to offer or sell any such shares without the Company’s prior written consent.

(f) It is understood and agreed that any failure of the Company to file a Registration Statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in this Agreement, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a Registration Statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and diligent efforts to resolve those comments, shall not be a breach of this Agreement. However, neither shall any such failure relieve the Company of its obligations hereunder to use reasonable best efforts to remedy such failure.

Section 10. Registration Expenses .

(a) The Company shall pay all customary fees and expenses incident to the Company’s performance of or compliance with this Agreement, including all registration and filing fees, fees and expenses of compliance with securities or blue sky laws, Financial Industry Regulatory Authority fees, exchange listing fees, printing expenses, transfer agent’s and registrar’s fees, cost of distributing Prospectuses in preliminary and final form as well as any supplements thereto, and all fees and disbursements of one counsel for all Class A Holders participating in the offering, one counsel for all Class B Holders participating in the offering, one counsel for all Class C Holders participating in the offering so long as the Class C Holder holding a majority of Class C Units included in the offering is not the Class B Holder holding a majority of the Class B Units included in the offering, counsel for the Company and all independent certified public accountants and other Persons retained by the Company; provided that Registration Expenses shall not include any underwriting discounts or commissions attributable to the sale of Units (collectively, “ Registration Expenses ”). All underwriting discounts and commissions attributable to the sale of Units shall be paid by the Holder(s) of the relevant Units.

(b) The obligation of the Company to pay all Registration Expenses shall apply irrespective of whether a registration, once properly demanded or requested, if applicable, becomes effective, is withdrawn or suspended, is converted to another form of registration and irrespective of when any of the foregoing shall occur; provided however , that Registration Expenses for any Registration Statement withdrawn solely at the request of the Participating Holders (unless withdrawn following commencement of a Suspension Period) shall be borne by such Participating Holders.

Section 11. Registration Rights of Other Persons; Transfers of Rights .

(a) Superior Registration Rights . The Company shall not grant to any Person with respect to any equity securities of the Company, or any securities convertible into or exchangeable or exercisable for any equity securities of the Company, registration rights that have terms more favorable than the registration rights granted to Fifth Third,

 

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FTPS Partners and Advent in this Agreement unless similar rights are granted to Fifth Third, FTPS Partners and Advent.

(b) Subsequent Registration Rights . The Company shall not grant to any Person registration rights unless the rights are consistent with the provisions of this Agreement. The Company shall not grant to any Person the right to request the Company to register any securities other than securities of the same class as the Registerable Securities being registered pursuant to a Demand Request.

(c) Transfers by Holders . The Class A Holders, Class B Holders and Class C Holders can transfer their rights under this Agreement only in connection with a transfer of Units (or, in the case of Fifth Third, the transfer of all or any portion of the Warrant) and only if (i) the transfer of such Units is permitted under and in accordance with the LLC Agreement and, if applicable, the transfer of the Warrant is permitted under and in accordance with the Warrant and (ii) the transferee agrees in writing to be bound by this Agreement in the same capacity as the transferor (and, for the sake of clarity, such transferee shall be entitled to all rights of such transferor) with respect to such transferred Units. This Section 11(c) shall apply to all future permitted transfers of the Units.

Section 12. Indemnification .

(a) Indemnification by the Company . The Company shall indemnify, to the fullest extent permitted by law, each Holder, its Affiliates and each Person who controls such Holder (within the meaning of the Securities Act) and their respective officers and directors against all losses, claims, damages, liabilities and expenses arising out of or based upon any untrue or alleged untrue statement of material fact contained in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading or any violation or alleged violation by the Company of the Securities Act, the Exchange Act or applicable “blue sky” laws, except insofar as the same (i) are made in reliance and in conformity with information relating to such Holder furnished in writing to the Company by such Holder expressly for use therein or (ii) are caused by such Holder’s failure to deliver to such Holder’s immediate purchaser a copy of the Registration Statement or Prospectus or any amendments or supplements thereto (if the same was required by applicable law to be so delivered) after the Company has furnished such Holder with a sufficient number of copies of the same. In connection with an Underwritten Offering, the Company shall indemnify such underwriters, each Person who controls such underwriters (within the meaning of the Securities Act) and their respective officers and directors to the same extent as provided above with respect to the indemnification of the Holders.

(b) Indemnification by the Holders . In connection with any Registration Statement in which there are Participating Holders, each such Participating Holder shall furnish to the Company in writing such information as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus and shall indemnify, severally and not jointly, to the fullest extent permitted by law, the Company, its Affiliates and each Person who controls the Company (within the meaning of the

 

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Securities Act) and their respective officers and directors against all losses, claims, damages, liabilities and expenses arising out of or based upon any untrue or alleged untrue statement of material fact contained in the Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that the same are made in reliance and in conformity with information relating to such Holder furnished in writing to the Company by such Holder expressly for use therein or caused by such Holder’s failure to deliver to such Holder’s immediate purchaser a copy of the Registration Statement or Prospectus or any amendments or supplements thereto (if the same was required by applicable law to be so delivered) after the Company has furnished such Holder with a sufficient number of copies of the same; provided , however , that the liability of each such Holder shall be in proportion to and limited to the net amount received by such Holder from the sale of Registerable Securities pursuant to such Registration Statement. The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified Person or any officer, director or controlling Person of such indemnified Person and shall survive the transfer of securities.

(c) Indemnification Procedures . Any Person entitled to indemnification hereunder shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (so long as such consent is not withheld unreasonably). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party there may be one or more legal or equitable defenses available to such indemnified party that are in addition to or may conflict with those available to another indemnified party with respect to such claim. Failure to give prompt written notice shall not release the indemnifying party from its obligations hereunder except to the extent such party is materially prejudiced thereby.

(d) Contribution . If the indemnification provided for, in, or pursuant to, this Section 12 is due in accordance with the terms hereof but is held by a court to be unavailable or unenforceable in respect of any losses, claims, damages, liabilities or expenses referred to herein (except, for purposes of clarity, any exclusions to indemnification expressly provided for in Section 12(a) or (b)), then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other, in connection with the statements or omissions that result in such losses, claims,

 

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damages, liabilities or expenses as well as any other relevant equitable considerations; provided that no Holder shall be required to contribute more than its pro rata share of any such contribution. The relative fault of the indemnifying party, on the one hand, and of the indemnified party, on the other, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party, and by such party’s relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. In no event shall the liability of any selling Holder be greater in amount than the amount of net proceeds received by such Holder upon such sale or the amount for which such indemnifying party would have been obligated to pay by way of indemnification if the indemnification provided for under Section 12(a) or 12(b) had been available under the circumstances.

Section 13. Participation in Underwritten Offerings . No Person (including the Holders) may participate in any Underwritten Offering pursuant to a registration effected hereunder unless such Person (a) agrees to sell such Person’s Registerable Securities on the basis provided in any underwriting arrangements approved by the Holder(s) selecting the underwriter for such Underwritten Offering pursuant to this Agreement (by a majority of the class of Registerable Securities that is being registered by such initiating Holder), in the case of any Underwritten Offering pursuant to a Demand Request or Shelf Takedown, or by the Company, in any other case and (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements, lock-ups and other documents reasonably required under the terms of such underwriting arrangements.

Section 14. Securities Act Restrictions . The Registerable Securities are restricted securities under the Securities Act and may not be offered or sold except pursuant to an effective Registration Statement or an available exemption from registration under the Securities Act. Accordingly, the Holders shall not, directly or through others, offer or sell any Registerable Securities except pursuant to a Registration Statement as contemplated herein or pursuant to Rule 144 or another exemption from registration under the Securities Act, if available. Prior to any transfer of Registerable Securities other than pursuant to an effective Registration Statement, the Holder seeking to transfer Registerable Securities shall notify the Company of such transfer and the Company may require the Holder to provide, prior to such transfer, such evidence that the transfer will comply with the Securities Act (including written representations or an opinion of counsel) as the Company may reasonably request. The Company may impose stop-transfer instructions with respect to any Registerable Securities that are to be transferred in contravention of this Agreement. Any certificates representing the Registerable Securities may bear a legend (and the Company’s share registry may bear a notation) referencing the restrictions on transfer contained in this Agreement, until such time as such securities have ceased to be, or are to be transferred in a manner that results in their ceasing to be, Registerable Securities. The legend will be in substantially the following form:

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE

 

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TRANSFERRED AT ANY TIME WITHOUT EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR AN EXEMPTION THEREFROM.

Subject to the provisions of this Section 14, the Company will replace any such legended certificates with unlegended certificates promptly upon request by any Holder in order to facilitate a lawful transfer or at any time after such shares cease to be Registerable Securities or are exempt from registration under the Securities Act.

Section 15. Transfer of Interests in Event of IPO . If either (a) the Company’s Board of Directors has approved an IPO and deems it necessary or advisable, or (b) the Company’s Board of Directors otherwise deems it advisable, to (i) convert the Company to, or merge the Company into, a corporation, (ii) contribute the operating business of the Company and/or its Subsidiaries that alone or together represent all or substantially all of the Company’s consolidated business at that time to a corporation (the “ IPO Corp. ”), (iii) cause the outstanding equity securities of the Company and/or its Subsidiaries that alone or together represent all or substantially all of the Company’s consolidated business at that time to be transferred to the IPO Corp. or (iv) effect a transaction having a similar effect as any of clauses (i), (ii) or (iii), then in any such case, all Holders shall take any and all reasonable actions requested by the Board of Directors as may be necessary or advisable to give effect to such transaction in accordance with the terms, and subject to the conditions, of Section 6.4 of the LLC Agreement.

Section 16. Miscellaneous .

(a) Notices . Except as otherwise provided herein, all notices, requests, consents and other communications required or permitted hereunder shall be in writing and shall be effective if hand-delivered, mailed (postage prepaid) by registered or certified mail or sent by e-mail (with e-mail or telephone confirmation promptly thereafter) or facsimile transmission (with automated or telephone confirmation promptly thereafter).

If to the Company:

FTPS Holding, LLC

c/o 38 Fountain Square Plaza

Cincinnati, OH 45263

Attention: Charles Drucker

with a copy to:

c/o Advent International Corp.

75 State Street

Boston, Massachusetts 02109

Telephone: (617) 951-9400

Email: cpike@adventinternational.com

Attention: Chris Pike

and

Weil Gotshal & Manges, LLP

 

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100 Federal Street, Floor 34

Boston, Massachusetts 02110

Telephone: (617) 772-8300

Telecopy: (617) 772-8333

Email: james.westra@weil.com; marilyn.french@weil.com

Attention: James Westra, Marilyn French

and

Fifth Third Bank

38 Fountain Square Plaza

Cincinnati, OH 45263

Telephone: (513) 579-4300

Telecopy: (513) 534-6757

Email: paul.reynolds@53.com

Attention: Paul Reynolds

and

Sullivan & Cromwell LLP

125 Broad Street

New York, New York 10004

Telephone: (212) 558-4000

Telecopy: (212) 291-9085

Email: korrya@sullcrom.com

Attention: Alexandra D. Korry

If to Advent:

c/o Advent International Corp.

75 State Street

Boston, Massachusetts 02109

Telephone: (617) 951-9400

Email: cpike@adventinternational.com

Attention: Chris Pike

If to JPDN:

JDPN Enterprises, LLC

4626 151 St.

Urbandale, Iowa 50323

Attention: Charles Drucker

with a copy to:

 

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Keating Muething & Klekam PLL

One East Fourth Street, Suite 1400

Cincinnati, Ohio 45202

Telephone: (513) 579-6435

Telecopy: (513) 579-6457

Email: wkeating@kmklaw.com

Attention: William J. Keating Jr.

If to Fifth Third or FTPS Partners:

Fifth Third Bank

38 Fountain Square Plaza

Cincinnati, OH 45263

Telephone: (513) 579-4300

Telecopy: (513) 534-6757

Email: paul.reynolds@53.com

Attention: Paul Reynolds

If to a Holder other than Advent, Fifth Third or FTPS Partners, or to a transferee Holder, to the address of such Holder set forth in the transfer documentation provided to the Company; or at such other address as such party each may specify by written notice to the others.

(b) Amendment; Waiver . Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Company, the Holders holding a majority of the Class A Units and the Holders holding a majority of the Class B Units, or in the case of a waiver, by any of the following parties against whom such waiver is to be effective with respect to the Company or Holders of such Class, as applicable: the Company, the Holders holding a majority of the Class A Units, the Holders holding a majority of the Class B Units or the Holders holding a majority of the Class C Units. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

(c) Entire Agreement . This Agreement contains the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes and replaces all other prior agreements, written or oral, among the parties hereto with respect to the subject matter hereof.

(d) Governing Law; Submission to Jurisdiction; Selection of Forum; Waiver of Trial by Jury . This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflicts of law thereof. Each party agrees that it shall bring any action, suit, demand or proceeding (including counterclaims) in respect of any claim arising out of or related to this Agreement or the transactions contemplated hereby, exclusively in the United States District Court for the Southern District of New York or any New York State court, in each case, sitting in New York County (the “ Chosen Courts ”), and solely in connection with

 

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claims arising under this Agreement or the transactions contemplated hereby (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such action, suit, demand or proceeding in the Chosen Courts, (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any Party and (iv) agrees that service of process upon such party in any such action, suit, demand or proceeding shall be effective if notice is given in accordance with Section 16(a). Each party irrevocably waives any and all right to trial by jury in any action, suit, demand or proceeding (including counterclaims) arising out of or related to this Agreement or the transactions contemplated hereby.

(e) Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same Agreement.

(f) Successors and Assigns . Except as otherwise expressly provided herein, this Agreement shall be binding upon and benefit the Company, each Holder and their respective successors and permitted assigns.

(g) Headings . The heading references herein and the table of contents hereof are for convenience purposes only, and shall not be deemed to limit or affect any of the provisions hereof.

(h) Severability . The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any Person or any circumstance, is invalid or unenforceable, (i) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (ii) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.

[signature page follows]

 

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IN WITNESS WHEREOF, this Registration Rights Agreement has been duly executed by each of the parties hereto as of the date first written above.

 

FIFTH THIRD BANK

By:  

/ S / R OSS J. K ARI

Name:  

Ross J. Kari

Title:  

Executive Vice President

By:  

/ S / P AUL L. R EYNOLDS

Name:  

Paul L. Reynolds

Title:  

Executive Vice President

 

[S IGNATURE PAGE TO R EGISTRATION R IGHTS A GREEMENT ]


FTPS HOLDING, LLC
By:  

/ S / C HARLES D. D RUCKER

Name:   Charles D. Drucker
Title:   President

 

[S IGNATURE PAGE TO R EGISTRATION R IGHTS A GREEMENT ]


FTPS PARTNERS, LLC
By:  

/ S / P AUL L. R EYNOLDS

Name:   Paul L. Reynolds
Title:   Manager

 

[S IGNATURE PAGE TO R EGISTRATION R IGHTS A GREEMENT ]


JPDN ENTERPRISES, LLC
By:  

/ S / C HARLES D. D RUCKER

Name:   Charles D. Drucker
Title:   Manager

 

[S IGNATURE PAGE TO R EGISTRATION R IGHTS A GREEMENT ]


ADVENT-KONG BLOCKER CORP.
By:  

/ S / C HRISTOPHER P IKE

Name:   Christopher Pike
Title:   Authorized Signatory

 

[S IGNATURE PAGE TO R EGISTRATION R IGHTS A GREEMENT ]

Exhibit 99.1

 

LOGO    LOGO

 

 

      News Release                             
CONTACTS:    Jeff Richardson (Investors)    FOR IMMEDIATE RELEASE
   (513) 534-0983    June 30, 2009
   Rich Rosen (Investors)   
   (513) 534-3307   
   Debra DeCourcy, APR (Media)   
   (513) 534-4153   
   Marissa Wolf (Advent Media Inquiries)   
   (212) 850-5629   

Fifth Third Bancorp and Advent International Announce

Closing of Processing Joint Venture Transaction

Business Well Positioned for Future Growth

Cincinnati, Ohio and Boston, Massachusetts, June 30, 2009 – Fifth Third Bancorp (NASDAQ: FITB) and Advent International announced today the consummation of their joint venture transaction for Fifth Third’s processing business. Advent is purchasing an approximate 51% interest in Fifth Third’s merchant acquiring and financial institutions businesses, most of the assets and operations of which are held by a limited liability company (“the LLC”). The transaction is valued at approximately $2.35 billion before valuation adjustments by either party. Fifth Third will retain an approximate 49% interest in the LLC, and will also retain its credit card issuing business, which includes retail credit card and commercial multi-card services.

“We believe we are very well positioned for the future,” said Charles Drucker, CEO of Fifth Third Processing Solutions, LLC. “Our clients will maintain the same industry-leading platform as before, working with the same team, delivering the same high caliber client service they are accustomed to. Reaction to this transaction from our clients has been very favorable, and our employees are also excited about the future of this company.”

“Fifth Third Processing Solutions has a highly efficient model and an experienced management team, and we are excited about the opportunity to invest in the growth of this business,” said Chris Pike, a Managing Director at Advent. “We believe that our international relationships, sector experience and operational expertise, coupled with Fifth Third’s sales and distribution capabilities, will make for a successful partnership.”

“Today’s closing begins a new chapter for this business and Fifth Third,” said Kevin T. Kabat, Chairman, President and CEO of Fifth Third Bancorp. “This completes the capital plan we laid out in June of 2008, and


enables us to focus more fully on leveraging the opportunities of the processing business with Advent and of our other businesses. We are pleased to be able to continue to participate in the future growth of Fifth Third Processing Solutions.”

Fifth Third will recognize a pre-tax gain of approximately $1.7 billion ($1.0 billion after-tax) on the transaction. The transaction is expected to contribute an estimated $1.2 billion in Tier 1 common equity, and to enhance the Tier 1 common equity ratio by approximately 100 bps and the Tier 1 capital ratio by approximately 95 bps.

Advent has been investing in the financial services sector for over 20 years, and has backed more than 25 companies worldwide in a broad range of sub-sectors, including payments, transaction processing, and financial technology. Advent has made several investments of particular relevance to Fifth Third Processing Solutions: CSU CardSystem, a leading card processor in Brazil, which went public in 2006; Dolex Dollar Express, a leading money transfer business which Advent sold to Global Payments in 2003; and Monext, a French merchant acquirer and bank processor which Advent acquired in 2008.

Credit Suisse acted as exclusive financial advisor, while Sullivan & Cromwell, LLP, Chapman & Cutler, LLP, Alston & Bird, LLP, and Graydon Head & Ritchey, LLP acted as legal advisors to Fifth Third in this transaction. Morgan Stanley and Weil, Gotshal & Manges, LLP acted as financial and legal advisor, respectively, to Advent.

About Fifth Third Bancorp and Fifth Third Processing Solutions

Fifth Third Bancorp is a diversified financial services company headquartered in Cincinnati, Ohio. As of March 31, 2009, the Company had $119 billion in assets, operates 16 affiliates with 1,318 full-service Banking Centers, including 99 Bank Mart ® locations open seven days a week inside select grocery stores and 2,354 ATMs in Ohio, Kentucky, Indiana, Michigan, Illinois, Florida, Tennessee, West Virginia, Pennsylvania, Missouri, Georgia and North Carolina. Fifth Third operates four main businesses: Commercial Banking, Branch Banking, Consumer Lending, and Investment Advisors. Fifth Third also has a 49% interest in Fifth Third Processing Solutions, LLC. Fifth Third is among the largest money managers in the Midwest and, as of March 31, 2009, has $166 billion in assets under care, of which it managed $23 billion for individuals, corporations and not-for-profit organizations. Investor information and press releases can be viewed at www.53.com . Fifth Third’s common stock is traded on the NASDAQ(R) National Global Select Market under the symbol “FITB.”

Fifth Third Processing Solutions is a premier source of payment acceptance services for leading businesses nationwide, providing electronic funds transfer (EFT), debit, credit and merchant transaction processing to support the complex payment strategies for the Bank and its merchant and financial institutions clients. In 2008, Fifth Third Processing Solutions processed over 28.4 billion ATM and point of sale transactions and processed over $292 billion of debit and credit card sales volume. Additionally, Fifth Third Processing Solutions supports over 173,000 merchant and financial institution locations and 11,000 ATMs in 44 states

 

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and 11 countries. According to the Nilson Report (March 2009), Fifth Third is the fourth largest U.S. merchant purchase transaction acquirer.

About Advent International

Founded in 1984, Advent International is one of the world’s leading global buyout firms, with offices in 15 countries on four continents. A driving force in international private equity for 25 years, Advent has built an unparalleled global platform of over 140 investment professionals across Western and Central Europe, North America, Latin America and Asia. The firm focuses on international buyouts, strategic repositioning opportunities and growth buyouts in five core sectors, working actively with management teams to drive revenue growth and earnings improvements in portfolio companies. Since inception, Advent has raised $24 billion in private equity capital and, through its buyout programs, has completed more than 250 transactions valued at approximately $45 billion in 35 countries. More information about Advent International is available at www.adventinternational.com.

FORWARD-LOOKING STATEMENTS

This news release contains statements that we believe are “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Rule 175 promulgated thereunder, and Section 21E of the Securities Exchange Act of 1934, as amended, and Rule 3b-6 promulgated thereunder. These statements relate to our financial condition, results of operations, plans, objectives, future performance or business. They usually can be identified by the use of forward-looking language such as “will likely result,” “may,” “are expected to,” “is anticipated,” “estimate,” “forecast,” “projected,” “intends to,” or may include other similar words or phrases such as “believes,” “plans,” “trend,” “objective,” “continue,” “remain,” or similar expressions, or future or conditional verbs such as “will,” “would,” “should,” “could,” “might,” “can,” or similar verbs. You should not place undue reliance on these statements, as they are subject to risks and uncertainties, including but not limited to the risk factors set forth in our most recent Annual Report on Form 10-K and our most recent quarterly report on Form 10-Q. When considering these forward-looking statements, you should keep in mind these risks and uncertainties, as well as any cautionary statements we may make. Moreover, you should treat these statements as speaking only as of the date they are made and based only on information then actually known to us.

There are a number of important factors that could cause future results to differ materially from historical performance and these forward-looking statements. Factors that might cause such a difference include, but are not limited to: (1) general economic conditions and weakening in the economy, specifically the real estate market, either nationally or in the states in which Fifth Third, one or more acquired entities and/or the combined company do business, are less favorable than expected; (2) deteriorating credit quality; (3) political developments, wars or other hostilities may disrupt or increase volatility in securities markets or other economic conditions; (4) changes in the interest rate environment reduce interest margins; (5) prepayment speeds, loan origination and sale volumes, charge-offs and loan loss provisions; (6) Fifth Third’s ability to maintain required capital levels and adequate sources of funding and liquidity; (7) maintaining capital requirements may limit Fifth Third’s operations and potential growth; (8) changes and trends in capital markets; (9) problems encountered by larger or similar financial institutions may adversely affect the banking industry and/or Fifth Third (10) competitive pressures among depository institutions increase significantly; (11) effects of critical accounting policies and judgments; (12) changes in accounting policies or procedures as may be required by the Financial Accounting Standards Board (FASB) or other regulatory agencies; (13) legislative or regulatory changes or actions, or significant litigation, adversely affect Fifth Third, one or more acquired entities and/or the combined company or the businesses in which Fifth Third, one or more acquired entities and/or the combined company are engaged; (14) ability to maintain favorable ratings from rating agencies; (15) fluctuation of Fifth Third’s stock price; (16) ability to attract and retain key personnel; (17) ability to receive dividends from its subsidiaries; (18) potentially dilutive effect of future acquisitions on current shareholders’ ownership of Fifth Third; (19) effects of accounting or financial results of one or more acquired entities; (20) difficulties in separating and streamlining the operations of the LLC; (21) lower than expected gains related to any sale or potential sale of businesses; (22)other difficulties in separating the merchant acquiring and financial institutions businesses from Fifth Third; (23) loss of income from any sale or potential sale of businesses that could have an adverse effect on Fifth Third’s earnings and future growth;(24) ability to secure confidential information through the use of computer systems and telecommunications networks; and (25) the impact of reputational risk created by these developments on such matters as business generation and retention, funding and liquidity.

You should refer to our periodic and current reports filed with the Securities and Exchange Commission, or “SEC,” for further information on other factors which could cause actual results to be significantly different from those expressed or implied by these forward-looking statements.

# # #

 

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