UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO
SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date of Report
(Date of earliest event reported):
December 8, 2016
Lions Gate Entertainment Corp.
(Exact name of registrant as specified in charter)
British Columbia, Canada
(State or Other
Jurisdiction of Incorporation)
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(Commission File Number)
1-14880
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(IRS Employer Identification No.)
N/A
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(Address of principal
executive offices)
250 Howe Street, 20th Floor
Vancouver, British Columbia V6C 3R8
and
2700 Colorado Avenue
Santa Monica, California 90404
Registrant’s telephone number, including
area code:
(877) 848-3866
No Change
(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:
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Written Communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01. Entry into a Material Definitive Agreement.
On December 8, 2016 (the “Closing Date”), Lions Gate
Entertainment Corp. (“Lions Gate” or the “Company”), Starz and Orion Arm Acquisition Inc., a wholly owned
subsidiary of Lions Gate (“Merger Sub”), consummated the merger (the “Merger”) of Merger Sub with and into
Starz, with Starz continuing as the surviving corporation and becoming an indirect wholly owned subsidiary of Lions Gate, pursuant
to the Agreement and Plan of Merger, dated as of June 30, 2016 (as amended, the “Merger Agreement”), by and among Lions
Gate, Starz and Merger Sub.
The information set forth under Item 2.01 of this Current Report
on Form 8-K is incorporated by reference into this Item 1.01. In connection with the Merger, the Company completed additional
financing activities, as described in this Item 1.01.
Senior Notes Supplemental Indenture
As previously disclosed, on October 27, 2016, LG FinanceCo Corp.
(“FinanceCo”), a wholly owned subsidiary of Lions Gate, completed an offering of $520,000,000 aggregate principal amount
of 5.875% senior notes due in 2024 (the “Notes”). Upon the issuance of the Notes, the net proceeds from the issuance
and sale of the Notes were placed into escrow pending consummation of the Merger.
The Notes were issued pursuant to an indenture, dated as of October
27, 2016, between FinanceCo and Deutsche Bank Trust Company Americas, as trustee (the “Base Indenture”). The Base Indenture
is more fully described in the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission (the
“SEC”) on October 27, 2016, which description is incorporated herein by reference.
On the Closing Date, in connection with the consummation of the
Merger, the net proceeds from the issuance and sale of the Notes were released from escrow and used to fund a portion of the cash
consideration for the Merger, and Lions Gate and certain of Lions Gate’s direct and indirect wholly owned subsidiaries, including Starz and certain of its subsidiaries (the “Guarantors”),
and Deutsche Bank Trust Company Americas, as trustee, entered into a supplemental indenture to the Base Indenture (the “Senior
Notes Supplemental Indenture” and together with the Base Indenture, the “Indenture”), pursuant to which the
Company assumed the obligations of FinanceCo under the Notes and the Base Indenture, and the Guarantors jointly and severally,
fully and unconditionally, guaranteed the Notes on an unsubordinated, unsecured basis.
The description of the Indenture contained herein is not intended
to be complete and is qualified in its entirety by reference to the full texts of the Base Indenture, which was filed as Exhibit
4.1 to the Company’s Current Report on Form 8-K filed with the SEC on October 27, 2016, and of the Senior Notes Supplemental
Indenture, a copy of which is attached as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Senior Credit Facilities
In connection with the consummation of the Merger, Lions Gate entered
into a Credit and Guarantee Agreement (the “Credit Agreement”), dated as of the Closing Date, among Lions Gate, as
borrower, the Guarantors, the lenders referred to therein, and JPMorgan Chase Bank, N.A., as administrative agent. The Credit Agreement
provides for a $1.0 billion revolving credit facility (the “Revolver”), a $1.0 billion term loan A facility (the “Term
Loan A”) and a $2.0 billion term loan B facility (the “Term Loan B” and together with the Revolver and the Term
Loan A, the “Senior Credit Facilities”). The Revolver and the Term Loan A mature on the date that is five years after
the Closing Date, and the Term Loan B matures on the date that is seven years after the Closing Date.
The Senior Credit Facilities are guaranteed by the Guarantors and
are secured by a security interest in substantially all of the assets of Lions Gate and the Guarantors, subject to certain exceptions.
The Revolver and the Term Loan A will bear interest initially at
a rate per annum equal to LIBOR plus 2.50% (or an alternative base rate plus 1.50%), subject to reductions in the margin of up
to 50 basis points (two reductions of 25 basis points each) upon achievement of certain net first lien leverage ratios. The Term
Loan B will bear interest at a rate per annum equal to LIBOR (subject to a LIBOR floor of 0.75%) plus 3.00% (or an alternative
base rate plus 2.00%). Lions Gate will also pay certain undrawn commitment fees in connection with the Revolver.
The Term Loan A amortizes quarterly beginning the last day of the
first full fiscal quarter ending after the Closing Date at quarterly rates of 1.25% for the first and second years after the Closing
Date, 1.75% for the third year, and 2.50% for the fourth and fifth years, with the balance payable at maturity. The Term Loan B
amortizes quarterly beginning on the last day of the first full fiscal quarter ending after the Closing Date at an annual rate
of 1%, with the balance payable at maturity. The Term Loan A and Term Loan B also require mandatory prepayments in connection with
certain asset sales, subject to certain significant exceptions, and the Term Loan B is subject to additional mandatory repayment
from specified percentages of excess cash flow. Additionally, the Term Loan B requires Lions Gate to pay a 1.00% prepayment fee
if the loans thereunder are subject to certain “repricing” transactions within the first six months following the Closing
Date.
The Senior Credit Facilities contain representations and warranties,
events of default and affirmative and negative covenants that are customary for similar financings and which include, among other
things and subject to certain significant exceptions, restrictions on the ability to declare or pay dividends, create liens, incur
additional indebtedness, make investments, dispose of assets and merge or consolidate with any other person. In addition, a net
first lien leverage maintenance covenant and an interest coverage ratio maintenance covenant apply to the Revolver and the Term
Loan A and are tested quarterly.
The description of the Credit Agreement contained herein is not
intended to be complete and is qualified in its entirety by reference to the full text of the Credit Agreement, a copy of which
is attached as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Convertible Subordinated Notes due 2017 and 2018
In January 2012, Lions Gate Entertainment, Inc. (“LGEI”),
a wholly owned subsidiary of Lions Gate, issued approximately $45.0 million of 4.00% Convertible Senior Subordinated Notes due
2017 (the “4.00% Notes”). Interest is payable on the 4.00% Notes semi-annually on January 15 and July 15 of each year,
and the 4.00% Notes mature on January 11, 2017. In April 2013, LGEI issued approximately $60.0 million in aggregate principal amount
of 1.25% Convertible Senior Subordinated Notes due 2018 (the “1.25% Notes”). Interest is payable on the 1.25% Notes
semi-annually on April 15 and October 15 of each year, and the 1.25% Notes mature on April 15, 2018.
The 4.00% Notes and the 1.25% Notes are each fully and unconditionally
guaranteed by Lions Gate.
The 4.00% Notes provide that upon conversion, Lions Gate has the
option to deliver, in lieu of common shares, cash or a combination of cash and common shares of Lions Gate. The 1.25% Notes are
convertible only into Lions Gate’s common shares.
In connection with the Reclassification (as defined in Item 2.01
below), Lions Gate and LGEI entered into supplemental indentures (“Convertible Notes Supplemental Indentures”), which
supplement the indentures governing the 4.00% Notes and the 1.25% Notes. The Convertible Notes Supplemental Indentures provide
that following the Reclassification, each note of the relevant series shall be convertible into the kind and amount of shares of
stock which the holder thereof would have been entitled to receive upon the Reclassification had such notes been converted into
common shares of Lions Gate immediately prior to the Reclassification.
The description of the Convertible Notes Supplemental Indentures
contained herein is not intended to be complete and is qualified in its entirety by reference to the full text of the Convertible
Notes Supplemental Indentures, copies of which are attached as Exhibit 4.2 and Exhibit 4.3 to this Current Report on Form 8-K and
are incorporated herein by reference.
Item 1.02. Termination of a Material Definitive Agreement.
On the Closing Date, Lions Gate paid in full all amounts owing under
that certain Third Amended and Restated Credit, Security, Guaranty and Pledge Agreement, dated as of September 27, 2012, among
Lions Gate, the guarantors party thereto, the lenders party thereto, and JPMorgan Chase Bank, N.A., as administrative agent and
issuing bank, and terminated all commitments to extend further credit thereunder.
On the Closing Date, Lions Gate also paid in full all amounts owing
under that certain Second Lien Credit and Guarantee Agreement, dated as of March 17, 2015, among Lions Gate, the guarantors party
thereto, the lenders party thereto, and JPMorgan Chase Bank, N.A., as administrative agent.
On the Closing Date, Lions Gate also redeemed in full the $225 million
aggregate principal amount of its 5.25% Senior Secured Second-Priority Notes due 2018 in accordance with the provisions of the
indenture relating thereto, dated as of July 19, 2013, among Lions Gate, the guarantors party thereto, and U.S. Bank National Association,
as trustee, and in connection therewith the Indenture was discharged on the Closing Date.
On the Closing Date, Starz paid in full all amounts owing under
that certain Credit Agreement, dated as of April 20, 2015, among Starz, LLC, as the borrower, the lenders party thereto and the
Bank of Nova Scotia, as administrative agent, and terminated all commitments to extend further credit thereunder.
On the Closing Date, Starz also satisfied and discharged its obligations
under the Indenture, dated as of September 13, 2012, among Starz, LLC and Starz Finance Corp., as issuers, the guarantors party
thereto, and U.S. Bank National Association, as trustee (the “Starz Trustee”) by irrevocably depositing with the Starz
Trustee funds sufficient to redeem in full the $675 million aggregate principal amount of its 5.00% Senior Notes due 2019, and
issued a notice of redemption in respect of such notes, with a redemption date of January 7, 2017.
Item 2.01. Completion of Acquisition or Disposition of Assets
As described in Item 1.01, on the Closing Date, the Company consummated
the Merger.
Immediately prior to consummation of the Merger, Lions Gate effected
a reorganization of its outstanding share capital (the “Reclassification”), pursuant to which each existing Lions Gate
common share, without par value (the “Lions Gate common shares”), was converted into 0.5 shares of newly issued Class
A voting shares, without par value, of Lions Gate (the “Lions Gate voting shares”) and 0.5 shares of newly issued Class
B non-voting shares, without par value, of Lions Gate (the “Lions Gate non-voting shares” and together with the Lions
Gate voting shares, the “Lions Gate post-reclassification shares”), subject to the terms and conditions of the
Merger Agreement. Upon the completion of the Reclassification, in accordance with the terms of Lions Gate’s 2012 Performance
Incentive Plan, outstanding Lions Gate stock options, restricted stock units and performance-based restricted stock units were
equitably adjusted to reflect the Reclassification.
At the effective time of the Merger (the “Effective
Time”), (a) each share of Starz Series A common stock, par value $0.01 (the “Starz Series A common
stock”), was converted into the right to receive $18.00 in cash and 0.6784 Lions Gate non-voting shares, and (b) each
share of Starz Series B common stock, par value $0.01 (the “Starz Series B common stock,” and together with the
Starz Series A common stock as the “Starz common stock”), was converted into the right to receive $7.26 in cash,
0.6321 Lions Gate non-voting shares and 0.6321 Lions Gate voting shares, in each case, other than as provided below and
any shares of Starz common stock owned by stockholders who neither voted in favor of the Merger nor consented thereto in
writing and who demanded properly in writing appraisal for such shares in accordance with Section 262 of the General
Corporation Law of the State of Delaware, and subject to the terms and conditions of the Merger Agreement. Each share of
Starz common stock held by Starz as treasury stock or owned by Merger Sub or its direct parent immediately prior to the
Effective Time was cancelled without the right to receive any payment with respect thereto. Holders of approximately 25 million shares of Starz Series A common stock have made demands for appraisal.
The Merger Agreement provides that, at the Effective Time, Starz
stock options and other equity awards will generally convert upon the Effective Time into corresponding stock options and equity
awards with respect to Lions Gate non-voting shares, after giving effect to appropriate adjustments to reflect the consummation
of the Merger.
The description of the Merger Agreement set forth above does not
purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, which is incorporated
herein by reference to Exhibit 2.1 of the Company’s Current Report on Form 8-K filed with the SEC on July 1, 2016.
A copy of the press release issued by the Company announcing
the consummation of the Merger and the related transactions is attached as Exhibit 99.1 to this Current Report on Form 8-K
and incorporated herein by reference.
A copy of the unqualified legal opinion relating to the securities
issued pursuant to Lions Gate’s Registration Statement on Form S-4, as amended (Registration No. 333-212792), which was
declared effective by the U.S. Securities and Exchange Commission on November 7, 2016, is filed as Exhibit 5.1 hereto.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement of a Registrant
The information set forth under Item 1.01 above is incorporated
by reference into this Item 2.03.
Item 3.01. Notice of Delisting or Failure to Satisfy a Continued
Listing Rule or Standard; Transfer of Listing
On the Closing Date, the Company notified the New York Stock
Exchange (“NYSE”) that the Merger had been completed and requested that trading of the Lions Gate common shares
be delisted from the NYSE. The Company also requested that the NYSE file with the SEC a notification of removal from listing
on Form 25 with respect to the delisting of the Lions Gate
common shares from the NYSE. The Company intends to file with the
SEC a certification on Form 15 to terminate or suspend its reporting obligations under Sections 13(a) and 15(d) of
the Securities Exchange Act of 1934, as amended, as promptly as practicable.
The Lions Gate voting shares and the Lions Gate non-voting shares will trade on the NYSE under the ticker symbols LGF.A and LGF.B, respectively.
The information set forth under Item 2.01 of this Current Report
on Form 8-K is incorporated by reference into this Item 3.01.
Item 3.02 Unregistered Sales of Equity Securities.
On December 8, 2016, as described in Item 2.01, each Lions Gate
common share was converted in the Reclassification into 0.5 Lions Gate voting shares and 0.5 Lions Gate non-voting shares. The
Reclassification was exempt from registration under the Securities Act of 1933, as amended, as not involving an offer, offer to
sell, offer for sale or sale of securities within the meaning of Section 2(3) thereof and pursuant to Rule 145(a)(1) thereunder,
or, additionally pursuant to Section 3(a)(9) thereof.
The information set forth under Item 2.01 of this Current Report
on Form 8-K is incorporated
by reference into this Item 3.02.
Item 3.03. Material Modification to Rights of Security Holders
As set forth under Item 2.01 of this Current Report on Form 8-K,
immediately prior to the Effective Time, each Lions Gate common share issued and outstanding immediately prior to the Effective
Time, was converted into 0.5 Lions Gate voting shares and 0.5 Lions Gate non-voting shares.
The information set forth under Items 2.01, 3.01, and 5.03 of this
Current Report on Form 8-K is incorporated by reference into this Item 3.03.
Item 5.03. Amendments to Articles of Incorporation or Bylaws;
Change in Fiscal Year
As of and after 5:00 p.m. eastern time on December 8, 2016,
(i) the Interim Notice of Articles of the Company, as in effect immediately prior to the Effective Time, was amended
and restated in its entirety, and such amended and restated Notice of Articles (the “New Notice of Articles”) became
the Notice of Articles of the Company and (ii) the Interim Articles of the Company, as in effect immediately prior to the
Effective Time, were amended and restated in their entirety, and such amended and restated Articles (the “New Articles”)
became the Articles of the Company. A copy of such amended and restated Articles of the Company is attached as Exhibit 3.1
to this Current Report on Form 8-K and incorporated herein by reference. A copy of such amended and restated Notice
of Articles will be filed on an amendment to this Current Report on Form 8-K. The New Notice of Articles removed the Lions
Gate common shares from the authorized shares, and the New Articles removed references to the Lions Gate common shares therein.
Pursuant to the Merger Agreement, as of 2:00 p.m. eastern
time on December 7, 2016, (i) the Notice of Articles of the Company was amended and restated in its entirety, and such amended
and restated Notice of Articles (the “Interim Notice of Articles”) became the Notice of Articles of the Company and
(ii) the Articles of the Company were amended and restated in their entirety, and such amended and restated Articles (the
“Interim Articles”) became the Articles of the Company. Neither the Interim Notice of Articles nor the Interim
Articles are currently the Notice of Articles or Articles of the Company.
The Interim Notice of Articles created and authorized the Lions
Gate voting shares the Lions Gate non-voting shares and removed the Company’s currently authorized series of preferred shares.
The Interim Articles contained amendments with respect to the special rights and restrictions of the authorized shares, including
the Common Shares, the Lions Gate voting shares, the Lions Gate non-voting shares and the preferred shares, and also extended indemnities
provided for in the previous Articles in favor of directors and former directors of the Company to also apply to officers and former
officers of the Company. In addition, the Interim Articles provided that each Lions Gate common share would, immediately prior
to the Effective Time, convert into 0.5 Lions Gate voting shares and 0.5 Lions Gate non-voting shares.
Item 9.01. Financial Statements and Exhibits.
(a) Financial Statements of Businesses Acquired. The
financial statements of Starz required by Item 9.01(a) to this Current Report on Form 8-K are incorporated herein by
reference to Starz’s Annual Report on Form 10-K for the year ended December 31, 2015 and to Starz’s Quarterly
Report on Form 10-Q for the quarter ended September 30, 2016.
(b) Pro Forma Financial Information. The pro forma financial information
required by Item 9.01(b) to this Current Report on Form 8-K will be filed by amendment within 71 calendar days after the date
this report on Form 8-K must be filed.
(d) Exhibits.
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Exhibit
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Description
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2.1
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Agreement and Plan of Merger, dated as of June 30, 2016, by and among Lions Gate, Starz, and Orion Arm Acquisition Inc. (incorporated by reference to Exhibit 2.1 of Lions Gate’s Current Report on Form 8-K filed with the Securities and Exchange Commission on July 1, 2016)
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2.2
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Letter Agreement, dated as of November 3, 2016, by and among Lions Gate Entertainment
Corp., Starz, and Orion Arm Acquisition Inc. (incorporated by reference to Exhibit 2.1 to Lions Gate Entertainment
Corp.’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on November 4, 2016)
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3.1
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Articles of Lions Gate Entertainment Corp.
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4.1
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Supplemental Indenture, dated as of December 8, 2016, among Lions Gate Entertainment Corp., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee
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4.2
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Supplemental Indenture, dated as of December 8, 2016, among Lions Gate Entertainment Corp., Lions Gate Entertainment, Inc., and The Bank of New York Mellon Trust Company, N.A., as trustee
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4.3
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Supplemental Indenture, dated as of December 8, 2016, among Lions Gate Entertainment Corp., Lions Gate Entertainment, Inc., and U.S. Bank National Association, as trustee
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5.1
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Opinion of Dentons Canada LLP as to the validity of the shares of Lions Gate Entertainment Corp. to be issued in the Merger
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10.1
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Credit and Guarantee Agreement, dated as of December 8, 2016, among Lions Gate, as borrower, the guarantors party thereto, the lenders referred to therein, and JPMorgan Chase Bank, N.A., as Administrative Agent
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23.1
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Consent of Dentons Canada LLP for legal opinion (included in Exhibit 5.1)
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23.2
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Consent of KPMG LLP, Independent Registered Public Accounting Firm (with respect to audited financial statements of Starz)
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99.1
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Press Release, dated December 8, 2016
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Caution Regarding Forward-Looking Statements
This communication may contain certain forward-looking statements,
including certain plans, expectations, goals, projections, and statements about the benefits of the proposed transaction, the merger
parties’ plans, objectives, expectations and intentions, and other statements that are not historical facts. Such statements
are subject to numerous assumptions, risks, and uncertainties. Statements that do not describe historical or current facts, including
statements about beliefs and expectations, are forward-looking statements. Forward-looking statements may be identified by words
such as expect, anticipate, believe, intend, estimate, plan, target, goal, or similar expressions, or future or conditional verbs
such as will, may, might, should, would, could, or similar variations.
While there is no assurance that any list of risks and uncertainties
or risk factors is complete, below are certain factors which could cause actual results to differ materially from those contained
or implied in the forward-looking statements including: the substantial investment of capital required to produce and market films
and television series; increased costs for producing and marketing feature films and television series; budget overruns, limitations
imposed by Lions Gate’s or Starz’s credit facilities and notes; unpredictability of the commercial success of Lions
Gate’s or Starz’s motion pictures and television programming; risks related to Lions Gate’s or Starz’s
acquisition and integration of acquired businesses; the effects of dispositions of businesses or assets, including individual films
or libraries; the cost of defending Lions Gate’s or Starz’s intellectual property; technological changes and other
trends affecting the entertainment industry; potential adverse reactions or changes to business or employee relationships, including
those resulting from the announcement or completion of the transaction; competitive responses to the transaction; the possibility
that the anticipated benefits of the transaction are not realized when expected or at all, including as a result of the impact
of, or problems arising from, the integration of the two companies; the possibility that the transaction may be more expensive
to complete than anticipated, including as a result of unexpected factors or events; diversion of management’s attention
from ongoing business operations and opportunities; Lions Gate’s ability to complete the integration of Starz successfully;
litigation relating to the transaction; and other factors that may affect future results of Lions Gate and Starz. Additional factors
that could cause results to differ materially from those described above can be found in Lions Gate’s Annual Report on Form
10-K for the year ended March 31, 2016, and in its subsequent Quarterly Reports on Form 10-Q, including for the quarters ended
June 30, 2016 and September 30, 2016, each of which is on file with the Securities and Exchange Commission (the “SEC”)
and available in the “Corporate” section of Lions Gate’s website,
http://www.lionsgate.com
, under the
heading “Reports” and in other documents Lions Gate files with the SEC, and in Starz’s Annual Report on Form
10-K for the year ended December 31, 2015 and in its subsequent Quarterly Reports on Form 10-Q, including for the quarters ended
March 31, 2016, June 30, 2016 and September 30, 2016, each of which is on file with the SEC and available in the “Starz Corporate”
section of Starz’s website,
http://www.Starz.com
, under the subsection “Investor Relations” and then under
the heading “SEC Filings” and in other documents Starz files with the SEC.
All forward-looking statements speak only as of the date they are
made and are based on information available at that time. Neither Lions Gate nor Starz assumes any obligation to update forward-looking
statements to reflect circumstances or events that occur after the date the forward-looking statements were made or to reflect
the occurrence of unanticipated events except as required by federal securities laws. As forward-looking statements involve significant
risks and uncertainties, caution should be exercised against placing undue reliance on such 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.
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Date: December 8, 2016
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LIONS GATE ENTERTAINMENT CORP.
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(Registrant)
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By:
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/s/ Wayne Levin
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Name: Wayne Levin
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Title: General Counsel and Chief Strategic Officer
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EXHIBIT INDEX
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Exhibit
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Description
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2.1
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Agreement and Plan of Merger, dated as of June
30, 2016, by and among Lions Gate, Starz, and Orion Arm Acquisition Inc. (incorporated by reference to Exhibit 2.1 of Lions
Gate’s Current Report on Form 8-K filed with the Securities and Exchange Commission on July 1, 2016)
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2.2
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Letter Agreement, dated as of November 3,
2016, by and among Lions Gate Entertainment Corp., Starz, and Orion Arm Acquisition Inc. (incorporated by reference to Exhibit 2.1 to Lions Gate Entertainment
Corp.’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on November 4, 2016)
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3.1
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Articles of Lions Gate Entertainment Corp.
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4.1
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Supplemental Indenture, dated as of December 8, 2016, among Lions Gate Entertainment Corp., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee
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4.2
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Supplemental Indenture, dated as of December 8, 2016, among Lions Gate Entertainment Corp., Lions Gate Entertainment, Inc., and The Bank of New York Mellon Trust Company, N.A., as trustee
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4.3
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Supplemental Indenture, dated as of December
8, 2016, among Lions Gate Entertainment Corp., Lions Gate Entertainment, Inc., and U.S. Bank National Association,
as trustee
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5.1
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Opinion of Dentons Canada LLP as to the validity of the shares of Lions Gate Entertainment Corp. to be issued in the merger
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10.1
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Credit and Guarantee Agreement, dated as of December 8, 2016, among Lions Gate, as borrower, the guarantors party thereto, the lenders referred to therein, and JPMorgan Chase Bank, N.A., as Administrative Agent
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23.1
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Consent of Dentons Canada LLP for legal opinion (included in Exhibit 5.1)
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23.2
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Consent of KPMG LLP, Independent Registered Public Accounting Firm (with respect to audited financial statements of Starz)
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99.1
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Press Release, dated December 8, 2016
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Exhibit 3.1
LIONS GATE ENTERTAINMENT CORP.
Amalgamation Number: BC0786966
Translation of the company name that the company
intends to use outside of Canada: N/A
(the “
Company
”)
ARTICLES
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1.
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Interpretation
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1
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1.1
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Definitions
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1
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1.2
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Business Corporations Act and Interpretation Act Definitions Applicable
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1
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2.
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Shares and Share Certificates
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2
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2.1
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Authorized Share Structure
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2
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2.2
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Form of Share Certificate
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2
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2.3
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Shareholder Entitled to Certificate or Acknowledgment
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2
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2.4
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Delivery by Mail
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2
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2.5
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Replacement of Worn Out or Defaced Certificate or Acknowledgement
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2
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2.6
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Replacement of Lost, Stolen or Destroyed Certificate or Acknowledgment
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2
|
|
|
2.7
|
Splitting Share Certificates
|
3
|
|
|
2.8
|
Certificate Fee
|
3
|
|
|
2.9
|
Recognition of Trusts
|
3
|
|
3.
|
Issue of Shares
|
3
|
|
|
3.1
|
Directors Authorized
|
3
|
|
|
3.2
|
Commissions and Discounts
|
3
|
|
|
3.3
|
Brokerage
|
3
|
|
|
3.4
|
Conditions of Issue
|
4
|
|
|
3.5
|
Share Purchase Warrants and Rights
|
4
|
|
4.
|
Share Registers
|
4
|
|
|
4.1
|
Central Securities Register
|
4
|
|
|
4.2
|
Closing Register
|
4
|
|
5.
|
Share Transfers
|
4
|
|
|
5.1
|
Registering Transfers
|
4
|
|
|
5.2
|
Form of Instrument of Transfer
|
5
|
|
|
5.3
|
Transferor Remains Shareholder
|
5
|
|
|
5.4
|
Signing of Instrument of Transfer
|
5
|
|
|
5.5
|
Enquiry as to Title Not Required
|
5
|
|
|
5.6
|
Transfer Fee
|
5
|
|
6.
|
Transmission Of Shares
|
6
|
|
|
6.1
|
Legal Personal Representative Recognized on Death
|
6
|
|
|
6.2
|
Rights of Legal Personal Representative
|
6
|
|
7.
|
Purchase Of Shares
|
6
|
|
|
7.1
|
Company Authorized to Purchase Shares
|
6
|
|
|
7.2
|
Purchase When Insolvent
|
6
|
|
|
7.3
|
Sale and Voting of Purchased Shares
|
6
|
|
8.
|
Borrowing Powers
|
7
|
|
|
8.1
|
General Powers
|
7
|
|
|
8.2
|
Terms of Debt Obligations
|
7
|
|
|
8.3
|
Powers of Directors may be exercised by committee or other delegate
|
7
|
|
9.
|
Alterations
|
7
|
|
|
9.1
|
Alteration of Authorized Share Structure
|
7
|
|
|
9.2
|
Special Rights and Restrictions
|
8
|
|
|
9.3
|
Change of Name
|
8
|
|
|
9.4
|
Other Alterations
|
8
|
|
10.
|
Meetings Of Shareholders
|
8
|
|
|
10.1
|
Annual General Meetings
|
8
|
|
|
10.2
|
Resolution Instead of Annual General Meeting
|
9
|
|
|
10.3
|
Calling of Meetings of Shareholders
|
9
|
|
|
10.4
|
Notice for Meetings of Shareholders
|
9
|
|
|
10.5
|
Record Date for Notice
|
9
|
|
|
10.6
|
Record Date for Voting
|
9
|
|
|
10.7
|
Failure to Give Notice and Waiver of Notice
|
10
|
|
|
10.8
|
Notice of Special Business at Meetings of Shareholders
|
10
|
|
11.
|
Proceedings At Meetings Of Shareholders
|
10
|
|
|
11.1
|
Special Business
|
10
|
|
|
11.2
|
Special Majority
|
11
|
|
|
11.3
|
Quorum
|
11
|
|
|
11.4
|
One Shareholder May Constitute Quorum
|
11
|
|
|
11.5
|
Other Persons May Attend
|
11
|
|
|
11.6
|
Requirement of Quorum
|
11
|
|
|
11.7
|
Lack of Quorum
|
11
|
|
|
11.8
|
Lack of Quorum at Succeeding Meeting
|
12
|
|
|
11.9
|
Chair
|
12
|
|
|
11.10
|
Selection of Alternate Chair
|
12
|
|
|
11.11
|
Adjournments
|
12
|
|
|
11.12
|
Notice of Adjourned Meeting
|
12
|
|
|
11.13
|
Decisions by Show of Hands or Poll
|
12
|
|
|
11.14
|
Declaration of Result
|
12
|
|
|
11.15
|
Motion Need Not be Seconded
|
13
|
|
|
11.16
|
Casting Vote
|
13
|
|
|
11.17
|
Manner of Taking Poll
|
13
|
|
|
11.18
|
Demand for Poll on Adjournment
|
13
|
|
|
11.19
|
Chair Must Resolve Dispute
|
13
|
|
|
11.20
|
Casting of Votes
|
13
|
|
|
11.21
|
Demand for Poll
|
13
|
|
|
11.22
|
Demand for Poll Not to Prevent Continuance of Meeting
|
14
|
|
|
11.23
|
Retention of Ballots and Proxies
|
14
|
|
12.
|
Votes Of Shareholders
|
14
|
|
|
12.1
|
Number of Votes by Shareholder or by Shares
|
14
|
|
|
12.2
|
Votes of Persons in Representative Capacity
|
14
|
|
|
12.3
|
Votes by Joint Holders
|
14
|
|
|
12.4
|
Legal Personal Representatives as Joint Shareholders
|
14
|
|
|
12.5
|
Representative of a Corporate Shareholder
|
15
|
|
|
12.6
|
Proxy Provisions Do Not Apply to All Companies
|
15
|
|
|
12.7
|
Appointment of Proxy Holders
|
15
|
|
|
12.8
|
Alternate Proxy Holders
|
15
|
|
|
12.9
|
When Proxy Holder Need Not Be Shareholder
|
15
|
|
|
12.10
|
Deposit of Proxy
|
16
|
|
|
12.11
|
Validity of Proxy Vote
|
16
|
|
|
12.12
|
Form of Proxy
|
16
|
|
|
12.13
|
Revocation of Proxy
|
17
|
|
|
12.14
|
Revocation of Proxy Must Be Signed
|
17
|
|
|
12.15
|
Production of Evidence of Authority to Vote
|
17
|
|
13.
|
Directors
|
17
|
|
|
13.1
|
First Directors; Number of Directors
|
17
|
|
|
13.2
|
Change in Number of Directors
|
18
|
|
|
13.3
|
Directors’ Acts Valid Despite Vacancy
|
18
|
|
|
13.4
|
Qualifications of Directors
|
18
|
|
|
13.5
|
Remuneration of Directors
|
18
|
|
|
13.6
|
Reimbursement of Expenses of Directors
|
18
|
|
|
13.7
|
Special Remuneration for Directors
|
19
|
|
|
13.8
|
Gratuity, Pension or Allowance on Retirement of Director
|
19
|
|
14.
|
Election and Removal of Directors
|
19
|
|
|
14.1
|
Election at Annual General Meeting
|
19
|
|
|
14.2
|
Consent to be a Director
|
19
|
|
|
14.3
|
Failure to Elect or Appoint Directors
|
19
|
|
|
14.4
|
Places of Retiring Directors Not Filled
|
20
|
|
|
14.5
|
Directors May Fill Casual Vacancies
|
20
|
|
|
14.6
|
Remaining Directors Power to Act
|
20
|
|
|
14.7
|
Shareholders May Fill Vacancies
|
20
|
|
|
14.8
|
Additional Directors
|
20
|
|
|
14.9
|
Ceasing to be a Director
|
21
|
|
|
14.10
|
Removal of Director by Shareholders
|
21
|
|
|
14.11
|
Removal of Director by Directors
|
21
|
|
15.
|
Powers and Duties of Directors
|
21
|
|
|
15.1
|
Powers of Management
|
21
|
|
|
15.2
|
Appointment of Attorney of Company
|
21
|
|
16.
|
Disclosure of Interest of Directors
|
22
|
|
|
16.1
|
Obligation to Account for Profits
|
22
|
|
|
16.2
|
Restrictions on Voting by Reason of Interest
|
22
|
|
|
16.3
|
Interested Director Counted in Quorum
|
22
|
|
|
16.4
|
Disclosure of Conflict of Interest or Property
|
22
|
|
|
16.5
|
Director Holding Other Office in the Company
|
22
|
|
|
16.6
|
No Disqualification
|
22
|
|
|
16.7
|
Professional Services by Director or Officer
|
22
|
|
|
16.8
|
Director or Officer in Other Corporations
|
23
|
|
17.
|
Proceedings of Directors
|
23
|
|
|
17.1
|
Meetings of Directors
|
23
|
|
|
17.2
|
Voting at Meetings
|
23
|
|
|
17.3
|
Chair of Meetings
|
23
|
|
|
17.4
|
Meetings by Telephone or Other Communications Medium
|
23
|
|
|
17.5
|
Calling of Meetings
|
24
|
|
|
17.6
|
Notice of Meetings
|
24
|
|
|
17.7
|
When Notice Not Required
|
24
|
|
|
17.8
|
Meeting Valid Despite Failure to Give Notice
|
24
|
|
|
17.9
|
Waiver of Notice of Meetings
|
24
|
|
|
17.10
|
Quorum
|
24
|
|
|
17.11
|
Validity of Acts Where Appointment Defective
|
24
|
|
|
17.12
|
Consent Resolutions in Writing
|
24
|
|
18.
|
Executive and Other Committees
|
25
|
|
|
18.1
|
Appointment and Powers of Executive Committee
|
25
|
|
|
18.2
|
Appointment and Powers of Other Committees
|
25
|
|
|
18.3
|
Obligations of Committees
|
25
|
|
|
18.4
|
Powers of Board
|
26
|
|
|
18.5
|
Committee Meetings
|
26
|
|
19.
|
Officers
|
26
|
|
|
19.1
|
Directors May Appoint Officers
|
26
|
|
|
19.2
|
Functions, Duties and Powers of Officers
|
26
|
|
|
19.3
|
Qualifications
|
27
|
|
|
19.4
|
Remuneration and Terms of Appointment
|
27
|
|
20.
|
Indemnification
|
27
|
|
|
20.1
|
Definitions
|
27
|
|
|
20.2
|
Mandatory Indemnification of Directors, Officers, Former Officers and Former Directors
|
27
|
|
|
20.3
|
Indemnification of Other Persons
|
28
|
|
|
20.4
|
Non-Compliance with
Business Corporations Act
|
28
|
|
|
20.5
|
Company May Purchase Insurance
|
28
|
|
21.
|
Dividends
|
28
|
|
|
21.1
|
Payment of Dividends Subject to Special Rights and Restrictions
|
28
|
|
|
21.2
|
Declaration of Dividends
|
28
|
|
|
21.3
|
No Notice Required
|
28
|
|
|
21.4
|
Record Date
|
28
|
|
|
21.5
|
Manner of Paying Dividend
|
29
|
|
|
21.6
|
Settlement of Difficulties
|
29
|
|
|
21.7
|
When Dividend Payable
|
29
|
|
|
21.8
|
Dividends to be Paid in Accordance with Number of Shares
|
29
|
|
|
21.9
|
Receipt by Joint Shareholders
|
29
|
|
|
21.10
|
Dividend Bears No Interest
|
29
|
|
|
21.11
|
Fractional Dividends
|
29
|
|
|
21.12
|
Payment of Dividends
|
29
|
|
|
21.13
|
Capitalization of Surplus
|
30
|
|
22.
|
Documents, Records and Reports
|
30
|
|
|
22.1
|
Recording of Financial Affairs
|
30
|
|
|
22.2
|
Inspection of Accounting Records
|
30
|
|
23.
|
Notices
|
30
|
|
|
23.1
|
Method of Giving Notice
|
30
|
|
|
23.2
|
Deemed Receipt of Mailing
|
31
|
|
|
23.3
|
Certificate of Sending
|
31
|
|
|
23.4
|
Notice to Joint Shareholders
|
31
|
|
|
23.5
|
Notice to Trustees
|
31
|
|
24.
|
Seal
|
32
|
|
|
24.1
|
Who May Attest Seal
|
32
|
|
|
24.2
|
Sealing Copies
|
32
|
|
|
24.3
|
Mechanical Reproduction of Seal
|
32
|
|
25.
|
Special Rights and Restrictions of Preference Shares
|
32
|
|
|
25.1
|
Special Rights and Restrictions of Preference Shares, as a Class
|
32
|
|
26.
|
Special Rights and Restrictions of the Class A Voting Shares
|
33
|
|
|
26.1
|
Designation and Number
|
33
|
|
|
26.2
|
Rights
|
33
|
|
|
26.3
|
Dividends
|
33
|
|
|
26.4
|
Share Distribution
|
34
|
|
|
26.5
|
Liquidation, Dissolution or Winding Up
|
34
|
|
|
26.6
|
Voting
|
34
|
|
|
26.7
|
Subdivision, Reclassification, Exchange or Consolidation
|
35
|
|
27.
|
Special Rights and Restrictions of the Class B Non-Voting Shares
|
35
|
|
|
27.1
|
Designation and Number
|
35
|
|
|
27.2
|
Rights
|
35
|
|
|
27.3
|
Dividends
|
35
|
|
|
27.4
|
Share Distributions
|
35
|
|
|
27.5
|
Liquidation, Dissolution or Winding Up
|
36
|
|
|
27.6
|
Notice of Meetings
|
36
|
|
|
27.7
|
Subdivision, Reclassification, Exchange or Consolidation
|
36
|
LIONSGATE ENTERTAINMENT CORP.
Amalgamation Number: BC0786966
Translation of the company name that the company
intends to use outside of Canada: N/A
(the “
Company
”)
ARTICLES
The Company has as its articles the following
articles:
In these Articles, unless the context otherwise
requires:
|
|
(a)
|
“
board of directors”
, “directors” and “board” mean the
directors or sole director of the Company for the time being;
|
|
|
(b)
|
“
Business Corporations Act
” means the
Business Corporations Act
(British
Columbia) from time to time in force and all amendments thereto and includes all regulations and amendments thereto made pursuant
to that Act;
|
|
|
(c)
|
“
legal personal representative
” means the personal or other legal representative
of the shareholder;
|
|
|
(d)
|
“
registered address
” of a shareholder means the shareholder’s address
as recorded in the central securities register;
|
|
|
(e)
|
“
seal
” means the seal of the Company, if any;
|
|
|
(f)
|
“
Share Distribution
” means a dividend or distribution (including a distribution
made in connection with any stock-split, reclassification, recapitalization, full or partial liquidation of dissolution, winding
up of the Company) payable in shares of any class or other securities of the Company or any other person.
|
|
|
1.2
|
Business Corporations Act and Interpretation Act Definitions Applicable
|
The definitions in the
Business Corporations
Act
and the definitions and rules of construction in the Interpretation Act, with the necessary changes, so far as applicable,
and unless the context requires otherwise, apply to these Articles as if they were an enactment. If there is a conflict between
a definition in the
Business Corporations Act
and a definition or rule in the Interpretation Act relating to a term used
in these Articles, the definition in the
Business Corporations Act
will prevail in relation to the use of the term in these
Articles. If there is a conflict between these Articles and the
Business Corporations Act
, the
Business Corporations
Act
will prevail.
|
|
2.
|
Shares and Share Certificates
|
|
|
2.1
|
Authorized Share Structure
|
The authorized share structure of the Company
consists of shares of the class or classes and series, if any, described in the Notice of Articles of the Company.
|
|
2.2
|
Form of Share Certificate
|
Each share certificate issued by the Company
must comply with, and be signed as required by, the
Business Corporations Act
.
|
|
2.3
|
Shareholder Entitled to Certificate or Acknowledgment
|
Each
shareholder is entitled, without charge, to:
|
|
(a)
|
one share certificate representing the shares of each class or series of shares registered in the
shareholder’s name; or
|
|
|
(b)
|
a non-transferable written acknowledgment of the shareholder’s right to obtain such a share
certificate;
|
provided that in respect of a share held jointly
by several persons, the Company is not bound to issue more than one share certificate and delivery of a share certificate for a
share to one of several joint shareholders or to one of the shareholders’ duly authorized agents will be sufficient delivery
to all.
Any share certificate or non-transferable written
acknowledgment of a shareholder’s right to obtain a share certificate may be sent to the shareholder by mail at the shareholder’s
registered address and neither the Company nor any director, officer or agent of the Company is liable for any loss to the shareholder
because the share certificate or acknowledgement is lost in the mail or stolen.
|
|
2.5
|
Replacement of Worn Out or Defaced Certificate or Acknowledgement
|
If the directors are satisfied that a share
certificate or a non-transferable written acknowledgment of the shareholder’s right to obtain a share certificate is worn
out or defaced, they must, on production to them of the share certificate or acknowledgment, as the case may be, and on such other
terms, if any, as they think fit:
|
|
(a)
|
order the share certificate or acknowledgment, as the case may be, to be cancelled; and
|
|
|
(b)
|
issue a replacement share certificate or acknowledgment, as the case may be.
|
|
|
2.6
|
Replacement of Lost, Stolen or Destroyed Certificate or Acknowledgment
|
If a share certificate or a non-transferable
written acknowledgment of a shareholder’s right to obtain a share certificate is lost, stolen or destroyed, a replacement
share certificate or acknowledgment, as the case may be, must be issued to the person entitled to that share certificate or acknowledgment,
as the case may be, if the directors receive:
|
|
(a)
|
proof satisfactory to them that the share certificate or acknowledgment is lost, stolen or destroyed;
and
|
|
|
(b)
|
any indemnity the directors consider adequate.
|
|
|
2.7
|
Splitting Share Certificates
|
If a shareholder surrenders a share certificate
to the Company with a written request that the Company issue in the shareholder’s name two or more share certificates, each
representing a specified number of shares and in the aggregate representing the same number of shares as the share certificate
so surrendered, the Company must cancel the surrendered share certificate and issue replacement share certificates in accordance
with that request.
There must be paid to the Company, in relation
to the issue of any share certificate under Articles 2.5, 2.6 or 2.7, the amount, if any and which must not exceed the amount prescribed
under the
Business Corporations Act
, determined by the directors.
|
|
2.9
|
Recognition of Trusts
|
Except as required by law or statute or these
Articles, no person will be recognized by the Company as holding any share upon any trust, and the Company is not bound by or compelled
in any way to recognize (even when having notice thereof) any equitable, contingent, future or partial interest in any share or
fraction of a share or (except as by law or statute or these Articles provided or as ordered by a court of competent jurisdiction)
any other rights in respect of any share except an absolute right to the entirety thereof in the shareholder.
Subject to the
Business Corporations Act
and the rights of the holders of issued shares of the Company, the Company may issue, allot, sell or otherwise dispose of the unissued
shares, and issued shares held by the Company, at the times, to the persons, including directors, in the manner, on the terms and
conditions and for the issue prices (including any premium at which shares with par value may be issued) that the directors may
determine. The issue price for a share with par value must be equal to or greater than the par value of the share.
|
|
3.2
|
Commissions and Discounts
|
The Company may at any time, pay a reasonable
commission or allow a reasonable discount to any person in consideration of that person purchasing or agreeing to purchase shares
of the Company from the Company or any other person or procuring or agreeing to procure purchasers for shares of the Company.
The Company may pay such brokerage fee or other
consideration as may be lawful for or in connection with the sale or placement of its securities.
Except as provided for by the
Business Corporations
Act
, no share may be issued until it is fully paid. A share is fully paid when:
|
|
(a)
|
consideration is provided to the Company for the issue of the share by one or more of the following:
|
|
|
(i)
|
past services performed for the Company;
|
|
|
(b)
|
the value of the consideration received by the Company equals or exceeds the issue price set for
the share under Article 3.1.
|
|
|
3.5
|
Share Purchase Warrants and Rights
|
Subject to the
Business Corporations Act
,
the Company may issue share purchase warrants, options and rights upon such terms and conditions as the directors determine, which
share purchase warrants, options and rights may be issued alone or in conjunction with debentures, debenture stock, bonds, shares
or any other securities issued or created by the Company from time to time.
|
|
4.1
|
Central Securities Register
|
As required by and subject to the
Business
Corporations Act
, the Company must maintain in British Columbia a central securities register. The directors may, subject to
the
Business Corporations Act
, appoint an agent to maintain the central securities register. The directors may also appoint
one or more agents, including the agent which keeps the central securities register, as transfer agent for its shares or any class
or series of its shares, as the case may be, and the same or another agent as registrar for its shares or such class or series
of its shares, as the case may be. The directors may terminate such appointment of any agent at any time and may appoint another
agent in its place.
The Company must not at any time close its
central securities register.
|
|
5.1
|
Registering Transfers
|
A transfer of a share of the Company must not
be registered unless:
|
|
(a)
|
a duly signed instrument of transfer in respect of the share has been received by the Company;
|
|
|
(b)
|
if a share certificate has been issued by the Company in respect of the share to be transferred,
that share certificate has been surrendered to the Company; and
|
|
|
(c)
|
if a non-transferable written acknowledgment of the shareholder’s right to obtain a share
certificate has been issued by the Company in respect of the share to be transferred, that acknowledgment has been surrendered
to the Company.
|
|
|
5.2
|
Form of Instrument of Transfer
|
The instrument of transfer in respect of any
share of the Company must be either in the form, if any, on the back of the Company’s share certificates or in any other
form that may be approved by the directors from time to time.
|
|
5.3
|
Transferor Remains Shareholder
|
Except to the extent that the
Business Corporations
Act
otherwise provides, the transferor of shares is deemed to remain the holder of the shares until the name of the transferee
is entered in a securities register of the Company in respect of the transfer.
|
|
5.4
|
Signing of Instrument of Transfer
|
If a shareholder, or his or her duly authorized
attorney, signs an instrument of transfer in respect of shares registered in the name of the shareholder, the signed instrument
of transfer constitutes a complete and sufficient authority to the Company and its directors, officers and agents to register the
number of shares specified in the instrument of transfer or specified in any other manner, or, if no number is specified, all the
shares represented by the share certificates or set out in the written acknowledgments deposited with the instrument of transfer:
|
|
(a)
|
in the name of the person named as transferee in that instrument of transfer; or
|
|
|
(b)
|
if no person is named as transferee in that instrument of transfer, in the name of the person on
whose behalf the instrument is deposited for the purpose of having the transfer registered.
|
|
|
5.5
|
Enquiry as to Title Not Required
|
Neither the Company nor any director, officer
or agent of the Company is bound to inquire into the title of the person named in the instrument of transfer as transferee or,
if no person is named as transferee in the instrument of transfer, of the person on whose behalf the instrument is deposited for
the purpose of having the transfer registered or is liable for any claim related to registering the transfer by the shareholder
or by any intermediate owner or holder of the shares, of any interest in the shares, of any share certificate representing such
shares or of any written acknowledgment of a right to obtain a share certificate for such shares.
There must be paid to the Company, in relation
to the registration of any transfer, the amount, if any, determined by the directors.
|
|
6.
|
Transmission Of Shares
|
|
|
6.1
|
Legal Personal Representative Recognized on Death
|
In case of the death of a shareholder, the
legal personal representative, or if the shareholder was a joint holder, the surviving joint holder, will be the only person recognized
by the Company as having any title to the shareholder’s interest in the shares. Before recognizing a person as a legal personal
representative, the directors may require proof of appointment by a court of competent jurisdiction, a grant of letters probate,
letters of administration or such other evidence or documents as the directors consider appropriate.
|
|
6.2
|
Rights of Legal Personal Representative
|
The legal personal representative has the same
rights, privileges and obligations that attach to the shares held by the shareholder, including the right to transfer the shares
in accordance with these Articles, provided the documents required by the
Business Corporations Act
and the directors have
been deposited with the Company.
|
|
7.1
|
Company Authorized to Purchase Shares
|
Subject to Article 7.2, the special rights
and restrictions attached to the shares of any class or series and the
Business Corporations Act
, the Company may, if authorized
by the directors, purchase or otherwise acquire any of its shares at the price and upon the terms specified in such resolution.
|
|
7.2
|
Purchase When Insolvent
|
The Company must not make a payment or provide
any other consideration to purchase or otherwise acquire any of its shares if there are reasonable grounds for believing that:
|
|
(a)
|
the Company is insolvent; or
|
|
|
(b)
|
making the payment or providing the consideration would render the Company insolvent.
|
|
|
7.3
|
Sale and Voting of Purchased Shares
|
If the Company retains a share redeemed, purchased
or otherwise acquired by it, the Company may sell, gift or otherwise dispose of the share, but, while such share is held by the
Company, it:
|
|
(a)
|
is not entitled to vote the share at a meeting of its shareholders;
|
|
|
(b)
|
must not pay a dividend in respect of the share; and
|
|
|
(c)
|
must not make any other distribution in respect of the share.
|
The Company, if authorized by the directors,
may:
|
|
(a)
|
borrow money in the manner and amount, on the security, from the sources and on the terms and conditions
that they consider appropriate;
|
|
|
(b)
|
issue bonds, debentures and other debt obligations either outright or as security for any liability
or obligation of the Company or any other person and at such discounts or premiums and on such other terms as they consider appropriate;
|
|
|
(c)
|
guarantee the repayment of money by any other person or the performance of any obligation of any
other person; and
|
|
|
(d)
|
mortgage, charge, whether by way of specific or floating charge, grant a security interest in,
or give other security on, the whole or any part of the present and future assets and undertaking of the Company.
|
|
|
8.2
|
Terms of Debt Obligations
|
Any bonds, debentures or other debt obligations
of the Company may be issued at a discount, premium or otherwise, and with any special privileges as to redemption, surrender,
drawing, allotment of or conversion into or exchange for shares or other securities, attending and voting at general meetings of
the Company and appointment of the Directors or otherwise all as the Directors may determine. The directors may make any bonds,
debentures or other debt obligations issued by the Company by their terms assignable free from any equities between the Company
and the person to whom they may be issued or any other person who lawfully acquires them by assignment, purchase or otherwise.
|
|
8.3
|
Powers of Directors may be exercised by committee or other delegate
|
For greater certainty, the powers of the directors
under this Part 8 may be exercised by a committee or other delegate, direct or indirect, of the board authorized to exercise such
powers.
|
|
9.1
|
Alteration of Authorized Share Structure
|
Subject to Article 9.2 and the
Business
Corporations Act
, the Company may by special resolution:
|
|
(a)
|
create one or more classes or series of shares or, if none of the shares of a class or series of
shares are allotted or issued, eliminate that class or series of shares;
|
|
|
(b)
|
increase, reduce or eliminate the maximum number of shares that the Company is authorized to issue
out of any class or series of shares or establish a maximum number of shares that the Company is authorized to issue out of any
class or series of shares for which no maximum is established;
|
|
|
(c)
|
subdivide or consolidate all or any of its unissued, or fully paid issued, shares;
|
|
|
(d)
|
if the Company is authorized to issue shares of a class of shares with par value:
|
|
|
(i)
|
decrease the par value of those shares; or
|
|
|
(ii)
|
if none of the shares of that class of shares are allotted or issued, increase the par value of
those shares;
|
|
|
(e)
|
change all or any of its unissued, or fully paid issued, shares with par value into shares without
par value or any of its unissued shares without par value into shares with par value;
|
|
|
(f)
|
alter the identifying name of any of its shares; or
|
|
|
(g)
|
otherwise alter its shares or authorized share structure when required or permitted to do so by
the
Business Corporations Act
.
|
|
|
9.2
|
Special Rights and Restrictions
|
Subject to the
Business Corporations Act
,
the Company may by special resolution:
|
|
(a)
|
create special rights or restrictions for, and attach those special rights or restrictions to,
the shares of any class or series of shares, whether or not any or all of those shares have been issued; or
|
|
|
(b)
|
vary or delete any special rights or restrictions attached to the shares of any class or series
of shares, whether or not any or all of those shares have been issued.
|
The Company may by special resolution authorize
an alteration of its Notice of Articles in order to change its name.
If the
Business Corporations Act
does
not specify the type of resolution and these Articles do not specify another type of resolution, the Company may by ordinary resolution
alter these Articles or the Notices of Articles.
|
|
10.
|
Meetings Of Shareholders
|
|
|
10.1
|
Annual General Meetings
|
Unless an annual general meeting is deferred
or waived in accordance with the
Business Corporations Act
, the Company must hold its first annual general meeting within
18 months after the date on which it was incorporated or otherwise recognized, and after that must hold an annual general meeting
at least once in each calendar year and not more than 15 months after the last annual reference date at such time and place as
may be determined by the directors.
|
|
10.2
|
Resolution Instead of Annual General Meeting
|
If all the shareholders who are entitled to
vote at an annual general meeting consent by a unanimous resolution under the
Business Corporations Act
to all of the business
that is required to be transacted at that annual general meeting, the annual general meeting is deemed to have been held on the
date of the unanimous resolution. The shareholders must, in any unanimous resolution passed under this Article 10.2, select as
the Company’s annual reference date a date that would be appropriate for the holding of the applicable annual general meeting.
|
|
10.3
|
Calling of Meetings of Shareholders
|
The directors may, whenever they think fit,
call a meeting of shareholders.
|
|
10.4
|
Notice for Meetings of Shareholders
|
The Company must send notice of the date, time
and location of any meeting of shareholders, in the manner provided in these Articles, or in such other manner, if any, as may
be prescribed by ordinary resolution (whether previous notice of the resolution has been given or not), to each shareholder entitled
to attend the meeting, to each director and to the auditor of the Company, unless these Articles otherwise provide, at least the
following number of days before the meeting:
|
|
(a)
|
if and for so long as the Company is a public company, 21 days;
|
|
|
10.5
|
Record Date for Notice
|
The directors may set a date as the record
date for the purpose of determining shareholders entitled to notice of any meeting of shareholders. The record date must not precede
the date on which the meeting is to be held by more than two months or, in the case of a general meeting requisitioned by shareholders
under the
Business Corporations Act
, by more than four months. The record date must not precede the date on which the meeting
is held by fewer than:
|
|
(a)
|
if and for so long as the Company is a public company, 21 days;
|
If no record date is set, the record date is
5 p.m. on the day immediately preceding the first date on which the notice is sent or, if no notice is sent, the beginning of the
meeting.
|
|
10.6
|
Record Date for Voting
|
The directors may set a date as the record
date for the purpose of determining shareholders entitled to vote at any meeting of shareholders. The record date must not precede
the date on which the meeting is to be held by more than two months or, in the case of a general meeting requisitioned by shareholders
under the
Business Corporations Act
, by more than four months. If no record date is set, the record date is 5 p.m. on the
day immediately preceding the first date on which the notice is sent or, if no notice is sent, the beginning of the meeting.
|
|
10.7
|
Failure to Give Notice and Waiver of Notice
|
The accidental omission to send notice of any
meeting to, or the non-receipt of any notice by, any of the persons entitled to notice does not invalidate any proceedings at that
meeting. Any person entitled to notice of a meeting of shareholders may, in writing or otherwise, waive or reduce the period of
notice of such meeting.
|
|
10.8
|
Notice of Special Business at Meetings of Shareholders
|
If a meeting of shareholders is to consider
special business within the meaning of Article 11.1, the notice of meeting must:
|
|
(a)
|
state the general nature of the special business; and
|
|
|
(b)
|
if the special business includes considering, approving, ratifying, adopting or authorizing any
document or the signing of or giving of effect to any document, have attached to it a copy of the document or state that a copy
of the document will be available for inspection by shareholders:
|
|
|
(i)
|
at the Company’s records office, or at such other reasonably accessible location in British
Columbia as is specified in the notice; and
|
|
|
(ii)
|
during statutory business hours on any one or more specified days before the day set for the holding
of the meeting.
|
|
|
11.
|
Proceedings At Meetings Of Shareholders
|
At a meeting of shareholders, the following
business is special business:
|
|
(a)
|
at a meeting of shareholders that is not an annual general meeting, all business is special business
except business relating to the conduct of or voting at the meeting;
|
|
|
(b)
|
at an annual general meeting, all business is special business except for the following:
|
|
|
(i)
|
business relating to the conduct of or voting at the meeting;
|
|
|
(ii)
|
consideration of any financial statements of the Company presented to the meeting;
|
|
|
(iii)
|
consideration of any reports of the directors or auditor;
|
|
|
(iv)
|
the setting or changing of the number of directors;
|
|
|
(v)
|
the election or appointment of directors;
|
|
|
(vi)
|
the appointment of an auditor;
|
|
|
(vii)
|
the setting of the remuneration of an auditor;
|
|
|
(viii)
|
business arising out of a report of the directors not requiring the passing of a special resolution
or an exceptional resolution;
|
|
|
(ix)
|
any other business which, under these Articles or the
Business Corporations Act
, may be
transacted at a meeting of shareholders without prior notice of the business being given to the shareholders.
|
The majority of votes required for the Company
to pass a special resolution at a meeting of shareholders is two-thirds of the votes cast on the resolution.
Subject to the special rights and restrictions
attached to the shares of any class or series of shares, the quorum for the transaction of business at a meeting of shareholders
is two persons who are, or who represent by proxy, shareholders who, in the aggregate, hold at least 10% of the issued shares entitled
to be voted at the meeting.
|
|
11.4
|
One Shareholder May Constitute Quorum
|
If there is only one shareholder entitled to
vote at a meeting of shareholders:
|
|
(a)
|
the quorum is one person who is, or who represents by proxy, that shareholder, and
|
|
|
(b)
|
that shareholder, present in person or by proxy, may constitute the meeting.
|
|
|
11.5
|
Other Persons May Attend
|
The directors, the president (if any), the
secretary (if any), the assistant secretary (if any), any lawyer for the Company, the auditor of the Company and any other persons
invited by the directors are entitled to attend any meeting of shareholders, but if any of those persons does attend a meeting
of shareholders, that person is not to be counted in the quorum and is not entitled to vote at the meeting unless that person is
a shareholder or proxy holder entitled to vote at the meeting.
|
|
11.6
|
Requirement of Quorum
|
No business, other than the election of a chair
of the meeting and the adjournment of the meeting, may be transacted at any meeting of shareholders unless a quorum of shareholders
entitled to vote is present at the commencement of the meeting, but such quorum need not be present throughout the meeting.
If, within one-half hour from the time set
for the holding of a meeting of shareholders, a quorum is not present
|
|
(a)
|
in the case of a general meeting requisitioned by shareholders, the meeting is dissolved, and
|
|
|
(b)
|
in the case of any other meeting of shareholders, the meeting stands adjourned to the same day
in the next week at the same time and place.
|
|
|
11.8
|
Lack of Quorum at Succeeding Meeting
|
If, at the meeting to which the meeting referred
to in Article 11.7(b) was adjourned, a quorum is not present within one-half hour from the time set for the holding of the meeting,
the person or persons present and being, or representing by proxy, one or more shareholders entitled to attend and vote at the
meeting constitute a quorum.
The following individual is entitled to preside
as chair at a meeting of shareholders:
|
|
(a)
|
the chair of the board, if any; or
|
|
|
(b)
|
if the chair of the board is absent or unwilling to act as chair of the meeting, the president,
if any.
|
|
|
11.10
|
Selection of Alternate Chair
|
If, at any meeting of shareholders, there is
no chair of the board or president present within 15 minutes after the time set for holding the meeting, or if the chair of the
board and the president are unwilling to act as chair of the meeting, or if the chair of the board and the president have advised
the secretary, if any, or any director present at the meeting, that they will not be present at the meeting, the directors present
must choose one of their number to be chair of the meeting or if all of the directors present decline to take the chair or fail
to so choose or if no director is present, the shareholders entitled to vote at the meeting who are present in person or by proxy
may choose any person present at the meeting to chair the meeting.
The chair of a meeting of shareholders may,
and if so directed by the meeting must, adjourn the meeting from time to time and from place to place, but no business may be transacted
at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place.
|
|
11.12
|
Notice of Adjourned Meeting
|
It is not necessary to give any notice of an
adjourned meeting or of the business to be transacted at an adjourned meeting of shareholders except that, when a meeting is adjourned
for 30 days or more, notice of the adjourned meeting must be given as in the case of the original meeting.
|
|
11.13
|
Decisions by Show of Hands or Poll
|
Subject to the
Business Corporations Act
,
every motion put to a vote at a meeting of shareholders will be decided on a show of hands unless a poll, before or on the declaration
of the result of the vote by show of hands, is directed by the chair or demanded by at least one shareholder entitled to vote who
is present in person or by proxy.
|
|
11.14
|
Declaration of Result
|
The chair of a meeting of shareholders must
declare to the meeting the decision on every question in accordance with the result of the show of hands or the poll, as the case
may be, and that decision must be entered in the minutes of the meeting. A declaration of the chair that a resolution is carried
by the
necessary majority or is defeated is, unless
a poll is directed by the chair or demanded under Article 11.13, conclusive evidence without proof of the number or proportion
of the votes recorded in favour of or against the resolution.
|
|
11.15
|
Motion Need Not be Seconded
|
No motion proposed at a meeting of shareholders
need be seconded unless the chair of the meeting rules otherwise, and the chair of any meeting of shareholders is entitled to propose
or second a motion.
In case of an equality of votes, the chair
of a meeting of shareholders does not, either on a show of hands or on a poll, have a second or casting vote in addition to the
vote or votes to which the chair may be entitled as a shareholder.
|
|
11.17
|
Manner of Taking Poll
|
Subject to Article 11.8, if a poll is duly
demanded at a meeting of shareholders:
|
|
(a)
|
the poll must be taken:
|
|
|
(i)
|
at the meeting, or within seven days after the date of the meeting, as the chair of the meeting
directs; and
|
|
|
(ii)
|
in the manner, at the time and at the place that the chair of the meeting directs;
|
|
|
(b)
|
the result of the poll is deemed to be the decision of the meeting at which the poll is demanded;
and
|
|
|
(c)
|
the demand for the poll may be withdrawn by the person who demanded it.
|
|
|
11.18
|
Demand for Poll on Adjournment
|
A poll demanded at a meeting of shareholders
on a question of adjournment must be taken immediately at the meeting.
|
|
11.19
|
Chair Must Resolve Dispute
|
In the case of any dispute as to the admission
or rejection of a vote given on a poll, the chair of the meeting must determine the dispute, and his or her determination made
in good faith is final and conclusive.
On a poll, a shareholder entitled to more than
one vote need not cast all the votes in the same way.
No poll may be demanded in respect of the vote
by which a chair of a meeting of shareholders is elected.
|
|
11.22
|
Demand for Poll Not to Prevent Continuance of Meeting
|
The demand for a poll at a meeting of shareholders
does not, unless the chair of the meeting so rules, prevent the continuation of a meeting for the transaction of any business other
than the question on which a poll has been demanded.
|
|
11.23
|
Retention of Ballots and Proxies
|
The Company must, for at least three months
after a meeting of shareholders, keep each ballot cast on a poll and each proxy voted at the meeting, and, during that period,
make them available for inspection during normal business hours by any shareholder or proxyholder entitled to vote at the meeting.
At the end of such three month period, the Company may destroy such ballots and proxies.
|
|
12.
|
Votes Of Shareholders
|
|
|
12.1
|
Number of Votes by Shareholder or by Shares
|
Subject to any special rights or restrictions
attached to any shares and to the restrictions imposed on joint shareholders under Article 12.3:
|
|
(a)
|
on a vote by show of hands, every person present who is a shareholder or proxy holder and entitled
to vote on the matter has one vote; and
|
|
|
(b)
|
on a poll, every shareholder entitled to vote on the matter has one vote in respect of each share
entitled to be voted on the matter and held by that shareholder and may exercise that vote either in person or by proxy.
|
|
|
12.2
|
Votes of Persons in Representative Capacity
|
A person who is not a shareholder may vote
at a meeting of shareholders, whether on a show of hands or on a poll, and may appoint a proxy holder to act at the meeting, if,
before doing so, the person satisfies the chair of the meeting, or the directors, that the person is a legal personal representative
or a trustee in bankruptcy for a shareholder who is entitled to vote at the meeting.
|
|
12.3
|
Votes by Joint Holders
|
If there are joint shareholders registered
in respect of any share:
|
|
(a)
|
any one of the joint shareholders may vote at any meeting, either personally or by proxy, in respect
of the share as if that joint shareholder were solely entitled to it; or
|
|
|
(b)
|
if more than one of the joint shareholders is present at any meeting, personally or by proxy, and
more than one of them votes in respect of that share, then only the vote of the joint shareholder present whose name stands first
on the central securities register in respect of the share will be counted.
|
|
|
12.4
|
Legal Personal Representatives as Joint Shareholders
|
Two or more legal personal representatives
of a shareholder in whose sole name any share is registered are, for the purposes of Article 12.3, deemed to be joint shareholders.
|
|
12.5
|
Representative of a Corporate Shareholder
|
If a corporation, that is not a subsidiary
of the Company, is a shareholder, that corporation may appoint a person to act as its representative at any meeting of shareholders
of the Company, and:
|
|
(a)
|
for that purpose, the instrument appointing a representative must:
|
|
|
(i)
|
be received at the registered office of the Company or at any other place specified, in the notice
calling the meeting, for the receipt of proxies, at least the number of business days specified in the notice for the receipt of
proxies, or if no number of days is specified, two business days before the day set for the holding of the meeting; or
|
|
|
(ii)
|
be provided, at the meeting, to the chair of the meeting or to a person designated by the chair
of the meeting;
|
|
|
(b)
|
if a representative is appointed under this Article 12.5:
|
|
|
(i)
|
the representative is entitled to exercise in respect of and at that meeting the same rights on
behalf of the corporation that the representative represents as that corporation could exercise if it were a shareholder who is
an individual, including, without limitation, the right to appoint a proxy holder; and
|
|
|
(ii)
|
the representative, if present at the meeting, is to be counted for the purpose of forming a quorum
and is deemed to be a shareholder present in person at the meeting.
|
Evidence of the appointment of any such representative
may be sent to the Company by written instrument, fax or any other method of transmitting legibly recorded messages.
|
|
12.6
|
Proxy Provisions Do Not Apply to All Companies
|
Articles 12.7 to 12.15 do not apply to the
Company if and for so long as it is a public company or a pre-existing reporting company which has the Statutory Reporting Company
Provisions as part of its Articles or to which the Statutory Reporting Company Provisions apply.
|
|
12.7
|
Appointment of Proxy Holders
|
Every shareholder of the Company, including
a corporation that is a shareholder but not a subsidiary of the Company, entitled to vote at a meeting of shareholders of the Company
may, by proxy, appoint one or more (but not more than five) proxy holders to attend and act at the meeting in the manner, to the
extent and with the powers conferred by the proxy.
|
|
12.8
|
Alternate Proxy Holders
|
A shareholder may appoint one or more alternate
proxy holders to act in the place of an absent proxy holder.
|
|
12.9
|
When Proxy Holder Need Not Be Shareholder
|
A person must not be appointed as a proxy holder
unless the person is a shareholder, although a person who is not a shareholder may be appointed as a proxy holder if:
|
|
(a)
|
the person appointing the proxy holder is a corporation or a representative of a corporation appointed
under Article 12.5;
|
|
|
(b)
|
the Company has at the time of the meeting for which the proxy holder is to be appointed only one
shareholder entitled to vote at the meeting; or
|
|
|
(c)
|
the shareholders present In person or by proxy at and entitled to vote at the meeting for which
the proxy holder is to be appointed, by a resolution on which the proxy holder is not entitled to vote but in respect of which
the proxy holder is to be counted in the quorum, permit the proxy holder to attend and vote at the meeting.
|
A proxy for a meeting of shareholders must:
|
|
(a)
|
be received at the registered office of the Company or at any other place specified, in the notice
calling the meeting, for the receipt of proxies, at least the number of business days specified in the notice, or if no number
of days is specified, two business days before the day set for the holding of the meeting; or
|
|
|
(b)
|
unless the notice provides otherwise, be provided, at the meeting, to the chair of the meeting
or to a person designated by the chair of the meeting.
|
A proxy may be sent to the Company by written
instrument, fax or any other method of transmitting legibly recorded messages.
|
|
12.11
|
Validity of Proxy Vote
|
A vote given in accordance with the terms of
a proxy is valid notwithstanding the death or incapacity of the shareholder giving the proxy and despite the revocation of the
proxy or the revocation of the authority under which the proxy is given, unless notice in writing of that death, incapacity or
revocation is received:
|
|
(a)
|
at the registered office of the Company, at any time up to and including the last business day
before the day set for the holding of the meeting at which the proxy is to be used; or
|
|
|
(b)
|
by the chair of the meeting, before the vote is taken.
|
A proxy, whether for a specified meeting or
otherwise, must be either in the following form or in any other form approved by the directors or the chair of the meeting:
(NAME OF COMPANY)
(the "Company")
The undersigned, being a shareholder of the
Company, hereby appoints [name] or, failing that person, [name], as proxy holder for the undersigned to attend, act and vote for
and on behalf of the undersigned at the meeting of shareholders of the Company to be held on [month, day, year] and at any adjournment
of that meeting.
Number of shares in respect of which this proxy
is given (if no number is specified, then this proxy if given in respect of all shares registered in the name of the shareholder):
___________________
|
|
Signed [month, day, year]
|
|
|
|
|
|
|
|
|
[Signature of shareholder]
|
|
|
|
|
|
|
|
|
[Name of shareholder—printed]
|
|
|
12.13
|
Revocation of Proxy
|
Subject to Article 12.14, every proxy may be
revoked by an instrument in writing that is:
|
|
(a)
|
received at the registered office of the Company at any time up to and including the last business
day before the day set for the holding of the meeting at which the proxy is to be used; or
|
|
|
(b)
|
provided, at the meeting, to the chair of the meeting.
|
|
|
12.14
|
Revocation of Proxy Must Be Signed
|
An instrument referred to in Article 12.13
must be signed as follows:
|
|
(a)
|
if the shareholder for whom the proxy holder is appointed is an individual, the instrument must
be signed by the shareholder or his or her legal personal representative or trustee in bankruptcy; or
|
|
|
(b)
|
if the shareholder for whom the proxy holder is appointed is a corporation, the instrument must
be signed by the corporation or by a representative appointed for the corporation under Article 12.5.
|
|
|
12.15
|
Production of Evidence of Authority to Vote
|
The chair of any meeting of shareholders may,
but need not, inquire into the authority of any person to vote at the meeting and may, but need not, demand from that person production
of evidence as to the existence of the authority to vote.
|
|
13.1
|
First Directors; Number of Directors
|
The first directors are the persons designated
as directors of the Company in the Notice of Articles that applies to the Company when it is recognized under the
Business Corporations
Act
. The number of directors, excluding additional directors appointed under Article 14.8, is set at:
|
|
(a)
|
subject to paragraphs 13.1(b) and 13.1(c), the number of directors that is equal to the number
of the Company’s first directors:
|
|
|
(b)
|
if the Company is a public company, the greater of three and the most recently set of:
|
|
|
(i)
|
the number of directors set by ordinary resolution (whether or not previous notice of the resolution
was given); and
|
|
|
(ii)
|
the number of directors set under Article 14.4:
|
|
|
(c)
|
if the Company is not a public company, the most recently set of:
|
|
|
(i)
|
the number of directors set by ordinary resolution (whether or not previous notice of the resolution
was given); and
|
|
|
(ii)
|
the number of directors set under Article 14.4.
|
|
|
13.2
|
Change in Number of Directors
|
If the number of directors is set under Articles
13.1(b)(i) or 13.1(c)(i):
|
|
(a)
|
the shareholders may elect or appoint the directors needed to fill any vacancies in the board of
directors up to that number;
|
|
|
(b)
|
if the shareholders do not elect or appoint the directors needed to fill any vacancies in the board
of directors up to that number contemporaneously with the setting of that number, then the directors may appoint, or the shareholders
may elect or appoint, directors to fill those vacancies.
|
|
|
13.3
|
Directors’ Acts Valid Despite Vacancy
|
An act or proceeding of the directors is not
invalid merely because fewer than the number of directors set or otherwise required under these Articles is in office.
|
|
13.4
|
Qualifications of Directors
|
A director is not required to hold a share
of the Company as qualification for his or her office but must be qualified as required by the
Business Corporations Act
to become, act or continue to act as a director.
|
|
13.5
|
Remuneration of Directors
|
The directors are entitled to the remuneration
for acting as directors, if any, as the directors may from time to time determine. If the directors so decide, the remuneration
of the directors, if any, will be determined by the shareholders. That remuneration may be in addition to any salary or other remuneration
paid to any officer or employee of the Company as such, who is also a director,
|
|
13.6
|
Reimbursement of Expenses of Directors
|
The Company must reimburse each director for
the reasonable expenses that he or she may incur in and about the business of the Company.
|
|
13.7
|
Special Remuneration for Directors
|
If any director performs any professional or
other services for the Company that in the opinion of the directors are outside the ordinary duties of a director, or if any director
is otherwise specially occupied in or about the Company’s business, he or she may be paid remuneration fixed by the directors,
or, at the option of that director, fixed by ordinary resolution, and such remuneration may be either in addition to, or in substitution
for, any other remuneration that he or she may be entitled to receive.
|
|
13.8
|
Gratuity, Pension or Allowance on Retirement of Director
|
Unless otherwise determined by ordinary resolution,
the directors on behalf of the Company may pay a gratuity or pension or allowance on retirement to any director who has held any
salaried office or place of profit with the Company or to his or her spouse or dependants and may make contributions to any fund
and pay premiums for the purchase or provision of any such gratuity, pension or allowance.
|
|
14.
|
Election and Removal of Directors
|
|
|
14.1
|
Election at Annual General Meeting
|
At every annual general meeting and in every
unanimous resolution contemplated by Article 10.2:
|
|
(a)
|
the shareholders entitled to vote at the annual general meeting for the election of directors must
elect, or in the unanimous resolution appoint, a board of directors consisting of the number of directors for the time being set
under these Articles; and
|
|
|
(b)
|
all the directors cease to hold office immediately before the election or appointment of directors
under paragraph 14.1(b), but are eligible for re-election or re-appointment.
|
|
|
14.2
|
Consent to be a Director
|
No election, appointment or designation of
an individual as a director is valid unless:
|
|
(a)
|
that individual consents to be a director in the manner provided for in the
Business Corporations
Act
;
|
|
|
(b)
|
that individual is elected or appointed at a meeting at which the individual is present and the
individual does not refuse, at the meeting, to be a director; or
|
|
|
(c)
|
with respect to first directors, the designation is otherwise valid under the
Business Corporations
Act
.
|
|
|
14.3
|
Failure to Elect or Appoint Directors If:
|
|
|
(a)
|
the Company fails to hold an annual general meeting, and all the shareholders who are entitled
to vote at an annual general meeting fail to pass the unanimous resolution contemplated by Article 10.2, on or before the date
by which the annual general meeting is required to be held under the
Business Corporations Act
; or
|
|
|
(b)
|
the shareholders fail, at the annual general meeting or in the unanimous resolution contemplated
by Article 10.2, to elect or appoint any directors;
|
then each director then in office continues
to hold office until the earlier of:
|
|
(c)
|
the date on which his or her successor is elected or appointed; and
|
|
|
(d)
|
the date on which he or she otherwise ceases to hold office under the
Business Corporations
Act
or these Articles.
|
|
|
14.4
|
Places of Retiring Directors Not Filled
|
If, at any meeting of shareholders at which
there should be an election of directors, the places of any of the retiring directors are not filled by that election, those retiring
directors who are not re-elected and who are asked by the newly elected directors to continue in office will, if willing to do
so, continue in office to complete the number of directors for the time being set pursuant to these Articles until further new
directors are elected at a meeting of shareholders convened for that purpose. If any such election or continuance of directors
does not result in the election or continuance of the number of directors for the time being set pursuant to these Articles, the
number of directors of the Company is deemed to be set at the number of directors actually elected or continued in office.
|
|
14.5
|
Directors May Fill Casual Vacancies
|
Any casual vacancy occurring in the board of
directors may be filled by the directors.
|
|
14.6
|
Remaining Directors Power to Act
|
The directors may act notwithstanding any vacancy
in the board of directors, but if the Company has fewer directors in office than the number set pursuant to these Articles as the
quorum of directors, the directors may only act for the purpose of appointing directors up to that number or of summoning a meeting
of shareholders for the purpose of filling any vacancies on the board of directors or, subject to the
Business Corporations
Act
, for any other purpose.
|
|
14.7
|
Shareholders May Fill Vacancies
|
If the Company has no directors or fewer directors
in office than the number set pursuant to these Articles as the quorum of directors, the shareholders may elect or appoint directors
to fill any vacancies on the board of directors.
|
|
14.8
|
Additional Directors
|
Notwithstanding Articles 13.1 and 13.2, between
annual general meetings or unanimous resolutions contemplated by Article 10.2, the directors may appoint one or more additional
directors, but the number of additional directors appointed under this Article 14.8 must not at any time exceed:
|
|
(a)
|
one-third of the number of first directors, if, at the time of the appointments, one or more of
the first directors have not yet completed their first term of office; or
|
|
|
(b)
|
in any other case, one-third of the number of the current directors who were elected or appointed
as directors other than under this Article 14.8.
|
Any director so appointed ceases to hold office
immediately before the next election or appointment of directors under Article 14.1(a), but is eligible for re-election or re-appointment.
|
|
14.9
|
Ceasing to be a Director
|
A director ceases to be a director when:
|
|
(a)
|
the term of office of the director expires;
|
|
|
(c)
|
the director resigns as a director by notice in writing provided to the Company or a lawyer for
the Company; or
|
|
|
(d)
|
the director is removed from office pursuant to Articles 14.10 or 14.11.
|
|
|
14.10
|
Removal of Director by Shareholders
|
The Company may remove any director before
the expiration of his or her term of office by special resolution. In that event, the shareholders may elect, or appoint by ordinary
resolution, a director to fill the resulting vacancy. If the shareholders do not elect or appoint a director to fill the resulting
vacancy contemporaneously with the removal, then the directors may appoint or the shareholders may elect, or appoint by ordinary
resolution, a director to fill that vacancy.
|
|
14.11
|
Removal of Director by Directors
|
The directors may remove any director before
the expiration of his or her term of office if the director is convicted of an indictable offence, or if the director ceases to
be qualified to act as a director of a company and does not promptly resign, and the directors may appoint a director to fill the
resulting vacancy.
|
|
15.
|
Powers and Duties of Directors
|
|
|
15.1
|
Powers of Management
|
The directors must, subject to the
Business
Corporations Act
and these Articles, manage or supervise the management of the business and affairs of the Company and have
the authority to exercise all such powers of the Company as are not, by the
Business Corporations Act
or by these Articles,
required to be exercised by the shareholders of the Company.
|
|
15.2
|
Appointment of Attorney of Company
|
The directors may from time to time, by power
of attorney or other instrument, under seal if so required by law, appoint any person to be the attorney of the Company for such
purposes, and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the directors under
these Articles and excepting the power to fill vacancies in the board of directors, to remove a director, to change the membership
of, or fill vacancies in, any committee of the directors, to appoint or remove officers appointed by the directors and to declare
dividends) and for such period, and with such remuneration and subject to such conditions as the directors may think fit. Any such
power of attorney may contain such provisions for the protection or convenience of persons dealing with such attorney as the directors
think fit. Any such attorney may be authorized by the directors to sub-delegate all or any of the powers, authorities and discretions
for the time being vested in him or her.
|
|
16.
|
Disclosure of Interest of Directors
|
|
|
16.1
|
Obligation to Account for Profits
|
A director or senior officer who holds a disclosable
interest (as that term is used in the
Business Corporations Act
) in a contract or transaction into which the Company has
entered or proposes to enter is liable to account to the Company for any profit that accrues to the director or senior officer
under or as a result of the contract or transaction only if and to the extent provided in the
Business Corporations Act
.
|
|
16.2
|
Restrictions on Voting by Reason of Interest
|
A director who holds a disclosable interest
in a contract or transaction into which the Company has entered or proposes to enter is not entitled to vote on any directors’
resolution to approve that contract or transaction, unless all the directors have a disclosable interest in that contract or transaction,
in which case any or all of those directors may vote on such resolution.
|
|
16.3
|
Interested Director Counted in Quorum
|
A director who holds a disclosable interest
in a contract or transaction into which the Company has entered or proposes to enter and who is present at the meeting of directors
at which the contract or transaction is considered for approval may be counted in the quorum at the meeting whether or not the
director votes on any or all of the resolutions considered at the meeting.
|
|
16.4
|
Disclosure of Conflict of Interest or Property
|
A director or senior officer who holds any
office or possesses any property, right or interest that could result, directly or indirectly, in the creation of a duty or interest
that materially conflicts with that individual’s duty or interest as a director or senior officer, must disclose the nature
and extent of the conflict as required by the
Business Corporations Act
.
|
|
16.5
|
Director Holding Other Office in the Company
|
A director may hold any office or place of
profit with the Company, other than the office of auditor of the Company, in addition to his or her office of director for the
period and on the terms (as to remuneration or otherwise) that the directors may determine.
No director or intended director is disqualified
by his or her office from contracting with the Company either with regard to the holding of any office or place of profit the director
holds with the Company or as vendor, purchaser or otherwise, and no contract or transaction entered into by or on behalf of the
Company in which a director is in any way interested is liable to be voided for that reason.
|
|
16.7
|
Professional Services by Director or Officer
|
Subject to the
Business Corporations Act
,
a director or officer, or any person in which a director or officer has an interest, may act in a professional capacity for the
Company, except as auditor of the Company, and the director or officer or such person is entitled to remuneration for professional
services as if that director or officer were not a director or officer.
|
|
16.8
|
Director or Officer in Other Corporations
|
A director or officer may be or become a director,
officer or employee of, or otherwise interested in, any person in which the Company may be interested as a shareholder or otherwise,
and, subject to the
Business Corporations Act
, the director or officer is not accountable to the Company for any remuneration
or other benefits received by him or her as director, officer or employee of, or from his or her interest in, such other person.
|
|
17.
|
Proceedings of Directors
|
|
|
17.1
|
Meetings of Directors
|
The directors may meet together for the conduct
of business, adjourn and otherwise regulate their meetings as they think fit, and meetings of the directors held at regular intervals
may be held at the place, at the time and on the notice, if any, as the directors may from time to time determine.
Questions arising at any meeting of directors
are to be decided by a majority of votes and, in the case of an equality of votes, the chair of the meeting shall have a second
or casting vote.
The following individual is entitled to preside
as chair at a meeting of directors:
|
|
(a)
|
the chair of the board, if any;
|
|
|
(b)
|
in the absence of the chair of the board, the president, if any, if the president is a director;
or
|
|
|
(c)
|
any other director chosen by the directors if:
|
|
|
(d)
|
neither the chair of the board nor the president, if a director, is present at the meeting within
15 minutes after the time set for holding the meeting;
|
|
|
(e)
|
neither the chair of the board nor the president, if a director, is willing to chair the meeting;
or
|
|
|
(f)
|
the chair of the board and the president, if a director, have advised the secretary, if any, or
any other director, that they will not be present at the meeting.
|
|
|
17.4
|
Meetings by Telephone or Other Communications Medium
|
A director may participate in a meeting of
the directors or of any committee of the directors in person or by telephone if all directors participating in .the meeting, whether
in person or by telephone or other communications medium, are able to communicate with each other. A director may participate in
a meeting of the directors or of any committee of the directors by a communications medium other than telephone if all directors
participating in the meeting, whether in person or by telephone or other communications medium, are able to communicate with each
other and if all directors who wish to participate in the meeting agree to such participation. A director who participates in a
meeting in a manner contemplated by this Article 17.4 is deemed for all purposes of the
Business Corporations Act
and these
Articles to be present at the meeting and to have agreed to participate in that manner.
A director may, and the secretary or an assistant
secretary of the Company, if any, on the request of a director must, call a meeting of the directors at any time.
Other than for meetings held at regular intervals
as determined by the directors pursuant to Article 17.1, reasonable notice of each meeting of the directors, specifying the place,
day and time of that meeting must be given to each of the directors by any method set out in Article 24.1 or orally or by telephone.
|
|
17.7
|
When Notice Not Required
|
It is not necessary to give notice of a meeting
of the directors to a director if:
|
|
(a)
|
the meeting is to be held immediately following a meeting of shareholders at which that director
was elected or appointed, or is the meeting of the directors at which that director is appointed; or
|
|
|
(b)
|
the director, as the case may be, has waived notice of the meeting.
|
|
|
17.8
|
Meeting Valid Despite Failure to Give Notice
|
The accidental omission to give notice of any
meeting of directors to, or the non-receipt of any notice by, any director does not invalidate any proceedings at that meeting.
|
|
17.9
|
Waiver of Notice of Meetings
|
Any director may send to the Company a document
signed by him or her waiving notice of any past, present or future meeting or meetings of the directors and may at any time withdraw
that waiver with respect to meetings held after that withdrawal. After sending a waiver with respect to all future meetings and
until that waiver is withdrawn, no notice of any meeting of the directors need be given to that director and, unless the director
otherwise requires by notice in writing to the Company and all meetings of the directors so held are deemed not to be improperly
called or constituted by reason of notice not having been given to such director.
The quorum necessary for the transaction of
the business of the directors may be set by the directors and, if not so set, is deemed to be set at a majority of the board of
directors or, if the number of directors is set at one, is deemed to be set at one director, and that director may constitute a
meeting.
|
|
17.11
|
Validity of Acts Where Appointment Defective
|
Subject to the
Business Corporations Act
,
an act of a director or officer is not invalid merely because of an irregularity in the election or appointment or a defect in
the qualification of that director or officer.
|
|
17.12
|
Consent Resolutions in Writing
|
A resolution of the directors or of any committee
of the directors consented to in writing by all of the directors entitled to vote on it, whether by signed document, fax, email
or any other method of transmitting
legibly recorded messages, is as valid and
effective as if it had been passed at a meeting of the directors or of the committee of the directors duly called and held. Such
resolution may be in two or more counterparts which together are deemed to constitute one resolution in writing. A resolution passed
in that manner is effective on the date stated in the resolution or on the latest date stated on any counterpart. A resolution
of the directors or of any committee of the directors passed in accordance with this Article 17.12 is deemed to be a proceeding
at a meeting of directors or of the committee of the directors and to be as valid and effective as if it had been passed at a meeting
of the directors or of the committee of the directors that satisfies all the requirements of the
Business Corporations Act
and all the requirements of these Articles relating to meetings of the directors or of a committee of the directors.
|
|
18.
|
Executive and Other Committees
|
|
|
18.1
|
Appointment and Powers of Executive Committee
|
The directors may, by resolution, appoint an
executive committee consisting of the director or directors that they consider appropriate, and this committee has, during the
intervals between meetings of the board of directors, all of the directors’ powers, except:
|
|
(a)
|
the power to fill vacancies in the board of directors;
|
|
|
(b)
|
the power to remove a director;
|
|
|
(c)
|
the power to change the membership of, or fill vacancies in, any committee of the directors; and
|
|
|
(d)
|
such other powers, if any, as may be set out in the resolution or any subsequent directors’
resolution.
|
|
|
18.2
|
Appointment and Powers of Other Committees
|
The
directors may, by resolution:
|
|
(a)
|
appoint one or more committees (other than the executive committee) consisting of the director
or directors that they consider appropriate;
|
|
|
(b)
|
delegate to a committee appointed under paragraph 18.2(a) any of the directors’ powers, except:
|
|
|
(c)
|
the power to fill vacancies in the board of directors;
|
|
|
(d)
|
the power to remove a director;
|
|
|
(e)
|
the power to change the membership of, or fill vacancies in, any committee of the directors; and
|
|
|
(f)
|
the power to appoint or remove officers appointed by the directors; and
|
|
|
(g)
|
make any delegation referred to in paragraph 18.2(b) subject to the conditions set out in the resolution
or any subsequent directors’ resolution.
|
|
|
18.3
|
Obligations of Committees
|
Any committee appointed under Articles 18.1
or 18.2, in the exercise of the powers delegated to it, must:
|
|
(a)
|
conform to any rules that may from time to time be imposed on it by the directors; and
|
|
|
(b)
|
report every act or thing done in exercise of those powers at such times as the directors may require.
|
The directors may, at any time, with respect
to a committee appointed under Articles 18.1 or 18.2:
|
|
(a)
|
revoke or alter the authority given to the committee, or override a decision made by the committee,
except as to acts done before such revocation, alteration or overriding;
|
|
|
(b)
|
terminate the appointment of, or change the membership of, the committee; and
|
|
|
(c)
|
fill vacancies in the committee.
|
Subject to Article 18.3(a) and unless the directors
otherwise provide in the resolution appointing the committee or in any subsequent resolution, with respect to a committee appointed
under Articles 18.1 or 18.2:
|
|
(a)
|
the committee may meet and adjourn as it thinks proper;
|
|
|
(b)
|
the committee may elect a chair of its meetings but, if no chair of a meeting is elected, or if
at a meeting the chair of the meeting is not present within 15 minutes after the time set for holding the meeting, the directors
present who are members of the committee may choose one of their number to chair the meeting;
|
|
|
(c)
|
a majority of the members of the committee constitutes a quorum of the committee; and
|
|
|
(d)
|
questions arising at any meeting of the committee are determined by a majority of votes of the
members present, and in case of an equality of votes, the chair of the meeting does not have a second or casting vote.
|
|
|
19.1
|
Directors May Appoint Officers
|
The directors may, from time to time, appoint
such officers, if any, as the directors determine and the directors may, at any time, terminate any such appointment.
|
|
19.2
|
Functions, Duties and Powers of Officers
|
The
directors may, for each officer:
|
|
(a)
|
determine the functions and duties of the officer;
|
|
|
(b)
|
entrust to and confer on the officer any of the powers exercisable by the directors on such terms
and conditions and with such restrictions as the directors think fit; and
|
|
|
(c)
|
revoke, withdraw, alter or vary all or any of the functions, duties and powers of the officer.
|
No officer may be appointed unless that officer
is qualified in accordance with the
Business Corporations Act
. One person may hold more than one position as an officer
of the Company. Any person appointed as the chair of the board or as the managing director must be a director. Any other officer
need not be a director.
|
|
19.4
|
Remuneration and Terms of Appointment
|
All appointments of officers are to be made
on the terms and conditions and at the remuneration (whether by way of salary, fee, commission, participation in profits or otherwise)
that the directors thinks fit and are subject to termination at the pleasure of the directors, and an officer may in addition to
such remuneration be entitled to receive, after he or she ceases to hold such office or leaves the employment of the Company, a
pension or gratuity.
In this Article 20:
|
|
(a)
|
“
eligible penalty
” means a judgment, penalty or fine awarded or imposed in,
or an amount paid in settlement of, an eligible proceeding;
|
|
|
(b)
|
“
eligible
proceeding
” means a legal proceeding or investigative action,
whether current, threatened, pending or completed, in which a director, officer, former director or former officer of the Company
(an “
eligible
party
”) or any of the heirs and legal personal representatives of the eligible party, by
reason of the eligible party being or having been a director or officer of the Company:
|
|
|
(i)
|
is or may be joined as a party; or
|
|
|
(ii)
|
is or may be liable for or in respect of a judgment, penalty or fine in, or expenses related to,
the proceeding;
|
|
|
(c)
|
“
expenses
” has the meaning set out in the
Business Corporations Act
.
|
|
|
20.2
|
Mandatory Indemnification of Directors, Officers, Former Officers and Former Directors
|
Subject to the
Business Corporations Act
,
the Company must indemnify a director, officer, former director and former officer of the Company and his or her heirs and legal
personal representatives against all eligible penalties to which such person is or may be liable, and the Company must, after the
final disposition of an eligible proceeding, pay the expenses actually and reasonably incurred by such person in respect of that
proceeding. Each director and officer is deemed to have contracted with the Company on the terms of the indemnity contained in
this Article 20.2.
|
|
20.3
|
Indemnification of Other Persons
|
Subject to any restrictions in the
Business
Corporations Act
, the Company may indemnify any person.
|
|
20.4
|
Non-Compliance with
Business Corporations Act
|
The failure of a director or officer of the
Company to comply with the
Business Corporations Act
or these Articles does not invalidate any indemnity to which he or
she is entitled under this Part.
|
|
20.5
|
Company May Purchase Insurance
|
The Company may purchase and maintain insurance
for the benefit of any person (or his or her heirs or legal personal representatives) who:
|
|
(a)
|
is or was a director, officer, employee or agent of the Company;
|
|
|
(b)
|
is or was a director, officer, employee or agent of a corporation at a time when the corporation
is or was an affiliate of the Company;
|
|
|
(c)
|
at the request of the Company, is or was a director, officer, employee or agent of a corporation
or of a partnership, trust, joint venture or other unincorporated entity; or
|
|
|
(d)
|
at the request of the Company, holds or held a position equivalent to that of a director or officer
of a partnership, trust, joint venture or other unincorporated entity;
|
against any liability incurred by him or her
as such director, officer, employee or agent or person who holds or held such equivalent position.
|
|
21.1
|
Payment of Dividends Subject to Special Rights and Restrictions
|
The provisions of this Article 21 are subject
to the rights, if any, of shareholders holding shares with special rights as to dividends.
|
|
21.2
|
Declaration of Dividends
|
Subject to the
Business Corporations Act
,
the directors may from time to time declare and authorize payment of such dividends as they may deem advisable.
The directors need not give notice to any shareholder
of any declaration under Article 21.2.
The directors may set a date as the record
date for the purpose of determining shareholders entitled to receive payment of a dividend. The record date must not precede the
date on which the dividend is to be paid by more than two months. If no record date is set, the record date is 5 p.m. on the date
on which the directors pass the resolution declaring the dividend.
|
|
21.5
|
Manner of Paying Dividend
|
A resolution declaring a dividend may direct
payment of the dividend wholly or partly by the distribution of specific assets or of fully paid shares or of bonds, debentures
or other securities of the Company, or in any one or more of those ways.
|
|
21.6
|
Settlement of Difficulties
|
If any difficulty arises in regard to a distribution
under Article 21.5, the directors may settle the difficulty as they deem advisable, and, in particular, may:
|
|
(a)
|
set the value for distribution of specific assets;
|
|
|
(b)
|
determine that cash payments in substitution for all or any part of the specific assets to which
any shareholders are entitled may be made to any shareholders on the basis of the value so fixed in order to adjust the rights
of all parties; and
|
|
|
(c)
|
vest any such specific assets in trustees for the persons entitled to the dividend.
|
|
|
21.7
|
When Dividend Payable
|
Any dividend may be made payable on such date
as is fixed by the directors.
|
|
21.8
|
Dividends to be Paid in Accordance with Number of Shares
|
All dividends on shares of any class or series
of shares must be declared and paid according to the number of such shares held.
|
|
21.9
|
Receipt by Joint Shareholders
|
If several persons are joint shareholders of
any share, any one of them may give an effective receipt for any dividend, bonus or other money payable in respect of the share.
|
|
21.10
|
Dividend Bears No Interest
|
No dividend bears interest against the Company.
|
|
21.11
|
Fractional Dividends
|
If a dividend to which a shareholder is entitled
includes a fraction of the smallest monetary unit of the currency of the dividend, that fraction may be disregarded in making payment
of the dividend and that payment represents full payment of the dividend.
|
|
21.12
|
Payment of Dividends
|
Any dividend or other distribution payable
in cash in respect of shares may be paid by cheque, made payable to the order of the person to whom it is sent, and mailed to the
address of the shareholder, or in the case of joint shareholders, to the address of the joint shareholder who is first named on
the central securities register, or to the person and to the address the shareholder or joint shareholders may direct in writing.
The mailing of such cheque will, to the extent of the sum represented by the cheque (plus the
amount of the tax required by law to be deducted),
discharge all liability for the dividend unless such cheque is not paid on presentation or the amount of tax so deducted is not
paid to the appropriate taxing authority.
|
|
21.13
|
Capitalization of Surplus
|
Notwithstanding anything contained in these
Articles, the directors may from time to time capitalize any surplus of the Company and may from time to time issue, as fully paid,
shares or any bonds, debentures or other securities of the Company as a dividend representing the surplus or any part of the surplus.
|
|
22.
|
Documents, Records and Reports
|
|
|
22.1
|
Recording of Financial Affairs
|
The directors must cause adequate accounting
records to be kept to record properly the financial affairs and condition of the Company and to comply with the
Business Corporations
Act
.
|
|
22.2
|
Inspection of Accounting Records
|
Unless the directors determine otherwise, or
unless otherwise determined by ordinary resolution, no shareholder of the Company is entitled to inspect or obtain a copy of any
accounting records of the Company.
|
|
23.1
|
Method of Giving Notice
|
Unless the
Business Corporations Act
or these Articles provides otherwise, a notice, statement, report or other record required or permitted by the
Business Corporations
Act
or these Articles to be sent by or to a person may be sent by any one of the following methods:
|
|
(a)
|
mail addressed to the person at the applicable address for that person as follows:
|
|
|
(b)
|
for a record mailed to a shareholder, the shareholder’s registered address;
|
|
|
(c)
|
for a record mailed to a director or officer, the prescribed address for mailing shown for the
director or officer in the records kept by the Company or the mailing address provided by the recipient for the sending of that
record or records of that class;
|
|
|
(d)
|
in any other case, the mailing address of the intended recipient;
|
|
|
(e)
|
delivery at the applicable address for that person as follows, addressed to the person:
|
|
|
(f)
|
for a record delivered to a shareholder, the shareholder’s registered address;
|
|
|
(g)
|
for a record delivered to a director or officer, the prescribed address for delivery shown for
the director or officer in the records kept by the Company or the delivery address provided by the recipient for the sending of
that record or records of that class;
|
|
|
(h)
|
in any other case, the delivery address of the intended recipient;
|
|
|
(i)
|
sending the record by fax to the fax number provided by the intended recipient for the sending
of that record or records of that class;
|
|
|
(j)
|
sending the record by email to the email address provided by the intended recipient for the sending
of that record or records of that class; or
|
|
|
(k)
|
physical delivery to the intended recipient.
|
|
|
23.2
|
Deemed Receipt of Mailing
|
A record that is mailed to a person by ordinary
mail to the applicable address for that person referred to in Article 23.1 is deemed to be received by the person to whom it was
mailed on the day, Saturdays, Sundays and holidays excepted, following the date of mailing.
|
|
23.3
|
Certificate of Sending
|
A certificate signed by the secretary, if any,
or other officer of the Company or of any other corporation acting in that behalf for the Company stating that a notice, statement,
report or other record was addressed as required by Article 23.1, prepaid and mailed or otherwise sent as permitted by Article
23.1 is conclusive evidence of that fact.
|
|
23.4
|
Notice to Joint Shareholders
|
A notice, statement, report or other record
may be provided by the Company to the joint shareholders of a share by providing the notice to the joint shareholder first named
in the central securities register in respect of the share.
A notice, statement, report or other record
may be provided by the Company to the persons entitled to a share in consequence of the death, bankruptcy or incapacity of a shareholder
by:
|
|
(a)
|
mailing the record, addressed to them:
|
|
|
(i)
|
by name, by the title of the legal personal representative of the deceased or incapacitated shareholder,
by the title of trustee of the bankrupt shareholder or by any similar description; and
|
|
|
(ii)
|
at the address, if any, supplied to the Company for that purpose by the persons claiming to be
so entitled; or
|
|
|
(b)
|
if an address referred to in paragraph 23.5(a)(ii) has not been supplied to the Company, by giving
the notice in a manner in which it might have been given if the death, bankruptcy or incapacity had not occurred.
|
Except as provided in Articles 24.2 and 24.3,
the Company’s seal, if any, must not be impressed on any record except when that impression is attested by the signatures
of:
|
|
(b)
|
any officer, together with any director;
|
|
|
(c)
|
if the Company only has one director, that director; or
|
|
|
(d)
|
any one or more directors or officers or persons as may be determined by the directors.
|
For the purpose of certifying under seal a
certificate of incumbency of the directors or officers of the Company or a true copy of any resolution or other document, despite
Article 24.1, the impression of the seal may be attested by the signature of any director or officer.
|
|
24.3
|
Mechanical Reproduction of Seal
|
The directors may authorize the seal to be
impressed by third parties on share certificates or bonds, debentures or other securities of the Company as they may determine
appropriate from time to time. To enable the seal to be impressed on any share certificates or bonds, debentures or other securities
of the Company, whether in definitive or interim form, on which facsimiles of any of the signatures of the directors or officers
of the Company are, in accordance with the
Business Corporations Act
or these Articles, printed or otherwise mechanically
reproduced, there may be delivered to the person employed to engrave, lithograph or print such definitive or interim share certificates
or bonds, debentures or other securities one or more unmounted dies reproducing the seal and the chair of the board or any senior
officer together with the secretary, treasurer, secretary-treasurer, an assistant secretary, an assistant treasurer or an assistant
secretary-treasurer may in writing authorize such person to cause the seal to be impressed on such definitive or interim share
certificates or bonds, debentures or other securities by the use of such dies. Share certificates or bonds, debentures or other
securities to which the seal has been so impressed are for all purposes deemed to be under and to bear the seal impressed on them.
|
|
25.
|
Special Rights and Restrictions of Preference Shares
|
|
|
25.1
|
Special Rights and Restrictions of Preference Shares, as a Class
|
The following special rights and restrictions shall be attached
to the preference shares without par value:
|
|
(a)
|
The preference shares as a class shall have attached thereto the special rights and restrictions specified in this Article 25.1.
|
|
|
(b)
|
Preference shares may at any time and from time to time be issued in one or more series. The directors may from time to time,
by resolution passed before the issue of any preference shares of any particular series, alter the Notice of Articles of the Company
to fix the number of preference
|
shares in, and to determine the designation
of the preference shares of, that series and alter the Articles to create, define and attach special rights and restrictions to
the preference shares of that series, including, but without in any way limiting or restricting the generality of the foregoing,
the rate or amount of dividends, whether cumulative, non-cumulative or partially cumulative, the dates, places and currencies of
payment thereof, the consideration for, and the terms and conditions of, any purchase for cancellation or redemption thereof, including
redemption after a fixed term or at a premium, conversion or exchange rights, the terms and conditions of any share purchase plan
or sinking fund, the restrictions respecting payment of dividends on, or the repayment of capital in respect of, any other shares
of the Company and voting rights and restrictions; but no special right or restriction so created, defined or attached shall contravene
the provisions of clause (c) of this Article 25.1.
|
|
(c)
|
Holders of preference shares shall be entitled, on the distribution of assets of the Company or on the liquidation, dissolution
or winding-up of the Company, whether voluntary or involuntary, or on any other distribution of assets of the Company among its
members for the purpose of winding up its affairs, to receive before any distribution shall be made to holders of common shares
or any other shares of the Company ranking junior to the preference shares with respect to repayment of capital, the amount paid
up with respect to each preference share held by them, together with the fixed premium (if any) thereon, all accrued and unpaid
cumulative dividends (if any and if preferential) thereon. After payment to holders of preference shares of the amounts so payable
to them, such holders shall not be entitled to share in any further distribution of the property or assets of the Company except
as specifically provided in the special rights and restrictions attached to any particular series of the preference shares.
|
|
|
26.
|
Special Rights and Restrictions of the Class A Voting Shares
|
|
|
26.1
|
Designation and Number
|
The Class A voting shares shall consist of
the number of Class A voting shares set out in the Notice of Articles of the Company, which Class A voting shares shall be designated
as “
Class A Voting Shares
”.
Except as otherwise provided in these Articles, each Class A Voting
Share and each Class B Non-Voting Share shall have the same rights, privileges and restrictions and shall be identical in all respects.
The holders of the Class A Voting Shares shall,
subject to the rights of the holders of any other class of shares of the Company entitled to dividends in priority to the holders
of the Class A Voting Shares, participate equally with the holders of the Class B Non-Voting Shares with respect to dividends.
Whenever a dividend, other than a dividend
that constitutes a Share Distribution, is declared and paid to the holders of Class A Voting Shares then outstanding, the Company
shall also declare and pay a dividend equally, on a share for share basis, to the holders of the Class B Non-Voting Shares then
outstanding, without preference or priority.
Whenever a Share Distribution is declared and
paid to the holders of Class A Voting Shares then outstanding, the Company shall also declare and pay a Share Distribution to the
holders of the Class B Non-Voting Shares then outstanding as provided in Article 26.4.
Dividends shall be payable only as and when
declared by the board.
Notwithstanding that the market value of any
stock dividend paid on one class of shares may be different from the market value of the stock dividend paid simultaneously on
another class of shares, the board may, at any time and from time to time, declare and pay a stock dividend:
(a) payable in Class A Voting Shares
on the Class A Voting Shares provided that at the same time a stock dividend payable in either Class A Voting Shares or in Class
B Non-Voting Shares is declared and paid in the same number of shares per share on the Class B Non-Voting Shares;
(b) payable in Class B Non-Voting
Shares on the Class A Voting Shares; provided that at the same time a stock dividend payable in either Class A Voting Shares or
Class B Non-Voting Shares is declared and paid in the same number of shares per share on the Class B Non-Voting Shares;
(c) payable in Class A Voting Shares
on the Class B Non-Voting Shares; provided that at the same time a stock dividend payable in either Class A Voting Shares or Class
B Non-Voting Shares is declared and paid in the same number of shares per share on the Class A Voting Shares; and
(d) payable in Class B Non-Voting
Shares on the Class B Non-Voting Shares; provided that at the same time a stock dividend payable in either Class A Voting Shares
or Class B Non-Voting Shares is declared and paid in the same number of shares per share on the Class A Voting Shares.
|
|
26.5
|
Liquidation, Dissolution or Winding Up
|
In the event of any liquidation, dissolution
or winding-up of the Company or other distribution of assets of the Company among its shareholders for the purpose of winding up
its affairs, subject to the rights, privileges, restrictions and conditions attaching to any other class of shares of the Company,
all of the property and assets of the Company available for distribution to the holders of the Company’s common equity shall
be paid or distributed equally, share for share, to the holders of the Class A Voting Shares and the Class B Non-Voting Shares,
respectively, without preference or distinction.
Each holder of a Class A Voting Share is entitled
to:
|
|
(a)
|
one vote for each Class A Voting Share held at all meetings of shareholders;
|
|
|
(b)
|
receive notice of and to attend all meetings of shareholders of the Company, except meetings at
which only the holders of a specified class of shares (other than the Class A Voting Shares) are entitled to attend; and
|
|
|
(c)
|
vote on all matters submitted to a vote or consent of shareholders of the Company, except matters
upon which only the holders of a specified class of shares (other than the Class A Voting Shares) are entitled to vote.
|
|
|
26.7
|
Subdivision, Reclassification, Exchange or Consolidation
|
No subdivision, reclassification, exchange
or consolidation of the Class A Voting Shares or the Class B Non-Voting Shares shall be carried out unless, at the same time, the
Class B Non-Voting Shares or the Class A Voting Shares, as the case may be, are subdivided, reclassified, exchanged or consolidated
in the same manner and on the same basis.
|
|
27.
|
Special Rights and Restrictions of the Class B Non-Voting Shares
|
|
|
27.1
|
Designation and Number
|
The Class B non-voting shares shall consist
of the number of Class B non-voting shares set out in the Notice of Articles of the Company, which Class B non-voting shares shall
be designated as “
Class B Non-Voting Shares
”.
Except as otherwise provided in these Articles, each Class A Voting
Share and each Class B Non-Voting Share shall have the same rights, privileges and restrictions and shall be identical in all respects.
The holders of the Class B Non-Voting Shares
shall, subject to the rights of the holders of any other class of shares of the Company entitled to dividends in priority to the
holders of the Class B Non-Voting Shares, participate equally, on as share for share basis, with the holders of the Class A Voting
Shares with respect to dividends.
Whenever a dividend, other than a dividend
that constitutes a Share Distribution, is declared and paid to the holders of Class B Non-Voting Shares then outstanding, the Company
shall also declare and pay a dividend equally to the holders of the Class A Voting Shares then outstanding, on a share for share
basis, without preference or priority.
Whenever a Share Distribution is declared and
paid to the holders of Class B Non-Voting Shares then outstanding, the Company shall also declare and pay a Share Distribution
to the holders of the Class A Voting Shares then outstanding as provided in Article 27.4.
Dividends shall be payable only as and when
declared by the board.
Notwithstanding that the market value of any
stock dividend paid on one class of shares may be different from the declared market value of the stock dividend paid simultaneously
on another class of shares, the board may, at any time and from time to time, declare and pay a stock dividend:
(a) payable in Class A Voting Shares
on the Class A Voting Shares; provided that at the same time a stock dividend payable in either Class A Voting Shares or in Class
B Non-Voting Shares is declared and paid in the same number of shares per share on the Class B Non-Voting Shares;
(b) payable in Class B Non-Voting
Shares on the Class A Voting Shares; provided that at the same time a stock dividend payable in either Class A Voting Shares or
Class B Non-Voting Shares is declared and paid in the same number of shares per share on the Class B Non-Voting Shares;
(c) payable in Class A Voting Shares
on the Class B Non-Voting Shares; provided that at the same time a stock dividend payable in either Class A Voting Shares or Class
B Non-Voting Shares is declared and paid in the same number of shares per share on the Class A Voting Shares; and
(d) payable in Class B Non-Voting
Shares on the Class B Non-Voting Shares; provided that at the same time stock dividend payable in either Class A Voting Shares
or Class B Non-Voting Shares is declared and paid in the same number of shares per share on the Class A Voting Shares.
|
|
27.5
|
Liquidation, Dissolution or Winding Up
|
In the event of any liquidation, dissolution
or winding-up of the Company or other distribution of assets of the Company among its shareholders for the purpose of winding up
its affairs, subject to the rights, privileges, restrictions and conditions attaching to any other class of shares of the Company,
all of the property and assets of the Company available for distribution to the holders of the Company’s common equity shall
be paid or distributed equally, share for share, to the holders of the Class B Non-Voting Shares and the Class A Voting Shares,
respectively, without preference or distinction.
The holders of the Class B Non-Voting Shares
shall be entitled to receive notice of and to attend, but, subject to the
Business Corporations Act
, not to vote, at any
and all meetings of the shareholders of the Company.
|
|
27.7
|
Subdivision, Reclassification, Exchange or Consolidation
|
No subdivision, reclassification, exchange
or consolidation of the Class A Voting Shares or the Class B Non-Voting Shares shall be carried out unless, at the same time, the
Class B Non-Voting Shares or the Class A Voting Shares, as the case may be, are subdivided, reclassified, exchanged or consolidated
in the same manner and on the same basis.
Exhibit 4.1
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this “
Supplemental
Indenture
”), dated as of December 8, 2016, among Lions Gate Entertainment Corp., a corporation organized under the laws
of the Province of British Columbia, Canada (the “
Successor Issuer
”), LG FinanceCo Corp., a corporation organized
under the laws of the Province of British Columbia, Canada (the “
Issuer
”), the Guarantors party hereto and Deutsche
Bank Trust Company Americas, as trustee under the Indenture referred to below (the “
Trustee
”).
W I T N E S S E T H
WHEREAS, the Issuer and the Trustee have heretofore
executed an indenture, dated as of October 27, 2016 (as amended, supplemented or otherwise modified, the “
Indenture
”),
providing for the issuance of the Issuer’s 5.875% Senior Notes due 2024 (the “
Notes
”), initially in the
aggregate principal amount of $520,000,000;
WHEREAS, the Successor Issuer and the Issuer
have resolved that the Issuer shall wind-up and dissolve pursuant to Section 314 of the
Business Corporations Act
(British
Columbia)
and, in connection with such dissolution, the Issuer shall transfer and assign all of its assets and liabilities
to the Successor Issuer;
WHEREAS, Section 5.02 of the Indenture
provides that under certain circumstances the Successor Issuer may assume all obligations of the Issuer under the Indenture and
the Notes pursuant to a supplemental indenture to the Indenture, at which time the Issuer will be automatically released from any
obligations as Issuer under the Indenture and the Notes; and
WHEREAS, pursuant to Section 9.01 of the
Indenture, the Trustee, the Successor Issuer, the Issuer and the Guarantors party hereto are authorized to execute and deliver
this Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing
and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Successor Issuer, the Issuer, the
Guarantors party hereto and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes
as follows:
1.
Capitalized Terms
.
Capitalized
terms used herein without definition shall have the meanings assigned to them in the Indenture. The words “herein,”
“hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this
Supplemental Indenture as a whole and not to any particular Section hereof.
2.
Agreement to Assume Obligations
.
(a) The Successor Issuer hereby agrees to unconditionally
assume the Issuer’s Obligations under the Notes and the Indenture on the terms and subject to the conditions set forth in
the Indenture and to be bound by all provisions of the Indenture and the Notes applicable to
the Issuer and to perform all of the obligations
and agreements of the Issuer under the Indenture and the Notes and may exercise every right and power of the Issuer.
(b) The Successor Issuer hereby agrees to unconditionally
assume the Issuer’s Obligations under the Escrow Agreement and to be bound by all provisions of the Escrow Agreement applicable
to the Issuer and to perform all of the obligations and agreements of the Issuer under the Escrow Agreement and may exercise every
right and power of the Issuer.
3.
Release of Obligations
.
(a) FinanceCo is hereby automatically released
from any obligations as Issuer under Indenture and the Notes;
provided
,
however
, that unless FinanceCo is liquidated,
dissolved, transfers all of its assets to the Successor Issuer or any Guarantor or is otherwise wound up on the date hereof, FinanceCo
shall, by an indenture supplemental to the Indenture, substantially in the form of Exhibit C to the Indenture, become a Guarantor
of the Notes.
(b) FinanceCo is hereby automatically released
from any obligations as Issuer under Escrow Agreement.
4.
Guarantor
. Each of the Guarantors
party hereto agree to be a Guarantor under the Indenture and to be bound by the terms of the Indenture applicable to Guarantors,
including, but not limited to, Article 10 thereof.
5.
Notices
. All notices or other
communications to the Successor Issuer shall be given as provided in Section 12.02 of the Indenture.
6.
Governing Law
. THIS SUPPLEMENTAL
INDENTURE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7.
Trustee Makes No Representation
.
The Trustee accepts the amendments of the Indenture effected by this Supplemental Indenture on the terms and conditions set forth
in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee.
Without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect
to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Issuer, or for
or with respect to (i) the validity or sufficiency of this Supplemental Indenture or any of the terms or provisions hereof,
(ii) the proper authorization hereof by the Issuer, the Successor Issuer and the each Guarantor, in each case, by action or
otherwise, (iii) the due execution hereof by the Issuer, the Successor Issuer and the Guarantors or (iv) the consequences
of any amendment herein provided for, and the Trustee makes no representation with respect to any such matters.
8.
Counterparts
. The parties may
sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement. One signed copy is enough to prove this Supplemental Indenture. Notwithstanding the foregoing,
the exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute
effective execution and delivery of this
Supplemental Indenture as to the parties hereto and may be used
in lieu of the original Supplemental Indenture and signature pages for all purposes.
9.
Effect
of Headings
. The
headings of Section of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered
a part of this Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
[Remainder of page intentionally left
blank.]
IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture
to be duly executed as of the date first written above.
|
|
LG FINANCECO CORP., as Issuer
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By:
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/s/ Wayne Levin
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Name: Wayne Levin
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Title: President and Secretary
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LIONS GATE ENTERTAINMENT CORP., as Successor Issuer
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By:
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/s/ Wayne Levin
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Name: Wayne Levin
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Title: General Counsel and Chief Strategic Officer
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[Signature Page to First Supplemental Indenture]
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100 Plus Productions, Inc.
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Alibi Productions, LLC
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Alternate Universe, LLC
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American Lion Productions, Inc.
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Amnesia Productions, LLC (f/k/a Exterior Productions, LLC)
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Artisan Entertainment Inc.
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Artisan Home Entertainment Inc.
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Artisan Pictures LLC
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Atom Productions, Inc.
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Awaken Productions Corp.
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Awaken Productions, Inc.
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Blair Witch Films, LLC
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Blue Mountain State Productions Corp.
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Boss Kane Productions, Inc.
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Bottled Vines Productions Inc. (f/k/a Phat Vines Productions Inc.)
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Caller Productions, Inc.
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Casual Productions, Inc.
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CATX Certain Slant 12 Productions, Inc.
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CATX Exorcism 12 Productions, Inc.
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CATX Reawakening 12 Productions, Inc.
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CATX Ricky 12 Productions, Inc.
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CATX Time After Time 12 Productions, Inc.
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CATX Two Eyes 12 Productions, Inc.
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CATX Wee 12 Productions, Inc.
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CBLG Productions, LLC
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Chains Productions, Inc.
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Condemned Productions, Inc.
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Cooper Productions Louisiana, LLC
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Covered Moon Productions, LLC
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Crash Television Productions, Inc.
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Crushed Productions, Inc.
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Dancing Productions, Inc.
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Davyco Productions, LLC
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DD1 Productions Canada Inc.
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DD1 Productions, LLC
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DD2 Acquisition Corp.
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Dead Zone Production Corp.
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Debmar/Mercury, LLC
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[Signature Page to First Supplemental Indenture]
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Debmar/Mercury (WW) Productions LLC
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Debmar Studios, Inc.
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Delish Projects, LLC
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Delish Television Development, LLC
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DHW Productions, LLC
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Diable Productions, Inc.
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DJM Services, Inc.
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Donor Productions, Inc.
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Drawback Productions, LLC
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Driving All the Way Productions, LLC
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Elah Productions, LLC
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Film Holdings Co.
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Find Series Productions, LLC
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Friends Financing, Inc.
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Full Moon Productions, LLC
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GC Films, Inc.
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Get Some Productions, LLC
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GOE Productions, LLC
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Go For Broke Productions, Inc. (f/k/a Cuckoo Productions, Inc.)
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Good Evel Productions, Inc.
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Graves Productions, Inc.
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Grindstone Entertainment Group, LLC
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Guilt Productions, Inc.
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HGMJ Productions Canada Inc./Les Productions HGMJ Canada Inc.
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Highchair Productions, Inc.
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Higher Post LLC
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Houdini Productions, Inc.
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House Row Productions, LLC
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HSKL Productions Canada Inc. (f/k/a Pyramania Productions Canada, Inc.)
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HSKL Productions, Inc.
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Invisible Casting Inc.
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Jardinero Productions, LLC
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Jessabelle Productions, Inc.
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Just Rewards Productions, Inc.
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Johnson Goode, LLC
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JV1 Delish, LLC
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Kill Pit Productions Inc.
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Knowing Domestic Rights, LLC
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Knowing Productions, LLC
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Landscape Entertainment Corp.
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[Signature Page to First Supplemental Indenture]
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LG Capital Corporation
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LG Horror Channel Holdings, LLC
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LG JV Servicing Company, LLC
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LG Leopard GP Canada Inc.
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LG-Max LLC
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LGAC 1, LLC
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LGAC 3, LLC
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LGAC International LLC
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Lions Gate Digital Projects, Inc.
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Lions Gate Entertainment Inc.
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Lions Gate Exhibition, Inc.
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Lions Gate Films Inc.
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Lions Gate Films Holdings Company #1, Inc.
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Lions Gate Films Holdings Company #2, Inc.
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Lions Gate India Inc.
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Lions Gate International Sales, LLC
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Lions Gate Mandate Financing Vehicle Inc.
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Lions Gate Music Corp.
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Lions Gate Music, Inc.
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Lions Gate Music Publishing LLC
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Lions Gate Online Shop Inc.
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Lions Gate Pennsylvania, Inc.
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Lions Gate Records, Inc.
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Lions Gate Releasing LLC
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Lions Gate Spirit Holdings, LLC
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Lions Gate Television Development LLC
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Lions Gate Television Inc.
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Lions Gate Television International- Latin America, Inc.
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Lions Gate X Productions, LLC
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Lions Gate X Productions Corp.
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Lionsgate LBE, Inc.
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Love Lessons Productions, Inc.
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Lucky 7 Productions Corp.
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LWH Productions, LLC
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Mandate Films, LLC
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Mandate Pictures, LLC
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Manifest Entertainment, LLC
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MK Animated, LLC
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MOAL, LLC
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Mort Productions US, Inc.
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Mother Productions Corp.
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[Signature Page to First Supplemental Indenture]
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MQP, LLC
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NGC Films, Inc.
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Niche Productions, LLC
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NR Productions, Inc.
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Nurse Productions Inc.
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NYSM2 Productions, LLC
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Old Hickory Productions, Inc.
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Orion Arm Holding Co., LLC
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P2 Productions U.S., LLC
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Peeples Productions, Inc.
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PGH Productions, Inc.
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Power Mongering Despot, Inc.
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Preach Productions, Inc.
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Presidential Productions, Inc.
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Production Management Inc.
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Profiler Productions, Inc.
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Psycho Productions Services Corp.
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PWG Productions, Inc.
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PX1 Productions Corp.
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PX1 Productions, Inc.
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R & B Productions, Inc.
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Rabbit Productions, Inc.
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Red 2 US Productions, LLC
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RG Productions, Inc.
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RHO Productions, LLC
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Royals Productions, Inc.
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RRR Productions, LLC
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Saint Productions, Inc.
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Screening Room, Inc.
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SDI Productions, Inc.
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See Me Louisiana, L.L.C.
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SELP, LLC
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Silent Development Corp.
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South Shore Productions, Inc.
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Spoken Productions, Inc. (f/k/a CATX Tape4 12 Productions, Inc.)
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Stanton Productions, LLC
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Step Up 5 Productions Canada, Inc.
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SU4, LLC
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SU5 Productions, Inc. (f/k/a CATX Addicted 12 Productions, Inc.)
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Summit Distribution, LLC
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Summit Entertainment Development Services
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Summit Entertainment, LLC
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Summit Guaranty Services, LLC
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[Signature Page to First Supplemental Indenture]
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Summit International Distribution, Inc.
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Summit Productions, LLC
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Summit Signature, LLC
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TCT Productions, Inc.
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Term Productions, Inc.
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Terrestrial Productions Corp.
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Tiny Horse Productions, Inc.
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TSBD Louisiana, L.L.C.
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TSBD Productions, LLC
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TWA Productions, Inc.
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Twilight Domestic Rights, LLC
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Twilight Productions, LLC
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United Fandom, LLC
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UNZ Productions, Inc.
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U.R.O.K. Productions, Inc.
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Verdict Productions, Inc.
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Verona Productions, LLC
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Vestron Inc.
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Wallflower, LLC
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White Famous Productions, Inc.
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Wikal Productions, LLC
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Wilde Kingdom Productions Corp.
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Women in Comedy Documentary, LLC
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By:
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/s/ Wayne Levin
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Name:
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Wayne Levin
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Title:
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Authorized Person
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[Signature Page to First Supplemental Indenture]
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Starz Acquisition LLC
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Starz, LLC
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Aries Pictures LLC
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Namor Productions, LLC
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Starz Investments, LLC (fka SEG Investments, LLC)
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Starz Entertainment, LLC
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Starz Nu Documentary Productions, LLC
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Starz Ballet Productions, LLC
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Starz Pirates Productions, LLC
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Starz Power Productions, LLC
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Starz Remorse Productions, LLC
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Starz Evil Productions, LLC
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Starz Finance Corp.
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Starz Independent, LLC
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Starz Media Group, LLC
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Starz Media, LLC
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Anchor Bay Entertainment, LLC
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Overture Films, LLC
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By:
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/s/ Timothy A. Sweeney
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Name:
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Timothy A. Sweeney
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Title:
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Authorized Person
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[Signature Page to First Supplemental Indenture]
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Iniquity Productions Limited
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By:
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/s/ Zygmunt Jan Kamasa
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Name:
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Zygmunt Jan Kamasa
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Title:
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Director
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Lions Gate China (UK) Limited
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By:
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/s/ Zygmunt Jan Kamasa
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Name:
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Zygmunt Jan Kamasa
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Title:
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Director
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Lions Gate International Media Limited
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By:
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/s/ Zygmunt Jan Kamasa
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Name:
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Zygmunt Jan Kamasa
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Title:
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Director
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Lions Gate International (UK) Limited
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By:
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/s/ Zygmunt Jan Kamasa
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Name:
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Zygmunt Jan Kamasa
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Title:
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Director
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Lions Gate Pictures International (UK) Limited
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By:
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/s/ Zygmunt Jan Kamasa
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Name:
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Zygmunt Jan Kamasa
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Title:
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Director
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[Signature Page to First Supplemental Indenture]
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NYSM2 Productions Limited
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By:
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/s/ Zygmunt Jan Kamasa
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Name:
Zygmunt Jan
Kamasa
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Title:
Director
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RHO Productions Limited
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By:
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/s/ Zygmunt Jan Kamasa
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Name:
Zygmunt Jan Kamasa
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Title:
Director
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[Signature Page to First Supplemental Indenture]
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ENTERTAINMENT CAPITAL HOLDINGS S.À R.L.
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société à responsabilité limitée
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13-15, avenue de la Liberté
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L-1931 Luxembourg
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RCS number B 180844
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By:
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/s/ Ludovic Trogliero
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Name:
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Ludovic Trogliero
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Title:
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Manager B and Authorized Signatory
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ENTERTAINMENT CAPITAL HOLDINGS II S.À R.L.
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société à responsabilité limitée
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13-15, avenue de la Liberté
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L-1931 Luxembourg
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RCS number B 195833
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By:
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/s/ Ludovic Trogliero
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Name: Ludovic Trogliero
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Title: Manager B and Authorized Signatory
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LIONS
GATE INTERNATIONAL MOTION PICTURES S.À R.L.
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société à responsabilité
limitée
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13-15, avenue de la Liberté
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L-1931 Luxembourg
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RCS number B 185480
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By:
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/s/ Ludovic Trogliero
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Name:
Ludovic Trogliero
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Title: Manager B and Authorized Signatory
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[Signature Page to First Supplemental Indenture]
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LIONS
GATE INTERNATIONAL HOLDINGS S.À R.L.,
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société à responsabilité
limitée
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13-15, avenue de la Liberté
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L-1931 Luxembourg
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RCS number B 193597
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By:
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/s/ Ludovic Trogliero
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Name: Ludovic Trogliero
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Title: Manager B and Authorized Signatory
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LIONS
GATE INTERNATIONAL SLATE INVESTMENT S.A.,
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société anonyme
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13-15, avenue de la Liberté
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L-1931 Luxembourg
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RCS number B 193789
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By:
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/s/ Ludovic Trogliero
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Name: Ludovic Trogliero
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Title: Manager B and Authorized Signatory
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[Signature Page to First Supplemental Indenture]
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DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
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By: Deutsche Bank National Trust Company
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By:
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/s/ Jeffrey Schoenfeld
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Name: Jeffrey Schoenfeld
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Title: Vice President
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By:
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/s/ Debra A. Schwalb
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Name: Debra A. Schwalb
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Title: Vice President
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[Signature Page to First Supplemental Indenture]
Exhibit 4.2
FIRST SUPPLEMENTAL INDENTURE
This First Supplemental Indenture (this “
Supplemental
Indenture
”), dated as of December 8, 2016, is entered into by and among Lions Gate Entertainment Inc., a corporation
organized under the laws of the State of Delaware (“
Issuer
”), Lions Gate Entertainment Corp., a corporation
organized under the laws of the Province of British Columbia (“
Company
”) and The Bank of New York Mellon Trust
Company, N.A., as trustee (the “
Trustee
”). Capitalized terms used herein and not otherwise defined herein have
the meanings set forth in the Indenture referred to below.
WHEREAS, the Issuer, the Company and the Trustee
are parties to that certain Indenture, dated as of January 11, 2012 (as amended, supplemented or otherwise modified prior to the
date hereof, the “
Indenture
”), relating to the issuance of the Issuer’s 4.00% Convertible Senior Subordinated
Notes due 2017 (the “
Notes
”);
WHEREAS, the Company, Orion Arm Acquisition
Inc., a Delaware corporation and Starz, a Delaware corporation, previously entered into an Agreement and Plan of Reorganization,
dated as of June 30, 2016 (as amended, supplemented, or otherwise modified from time to time, the “
Merger Agreement
”);
WHEREAS, pursuant to the terms of the Merger
Agreement and in connection with the closing of the merger contemplated by the Merger Agreement, on the date hereof the Company
has effected a reclassification of its outstanding share capital (the “
Reclassification
”), pursuant to which
each previously existing Common Share of the Company, without par value, was converted into 0.5 shares of newly issued Class A
voting shares, without par value, of the Company and 0.5 shares of newly issued Class B non-voting shares, without par value, of
the Company;
WHEREAS, prior to the date hereof, the Conversion
Price has been adjusted by the Company from time-to-time in connection with the payment of cash dividends by the Company (the “
Prior
Conversions
”);
WHEREAS, Section 14.11 of the Indenture
provides, among other things, that in the event of certain reclassifications or changes of the outstanding Common Shares, the Company
and the Issuer shall execute with the Trustee a supplemental indenture permitted under Section 8.1(c) of the Indenture providing
that following the reclassification, each Note shall be convertible into the kind and amount of shares of stock and other securities
or property or assets (including cash or any combination thereof) which the Holder thereof would have been entitled to receive
upon the reclassification had such Notes been converted into Common Shares immediately prior to the reclassification;
WHEREAS, in accordance with Section 8.1(c)
of the Indenture, the Issuer, the Company and the Trustee may amend or supplement the Indenture and the Notes as provided in this
Supplemental Indenture without the consent of any Holder to make provision with respect to the conversion rights of Holders of
Notes pursuant to Section 14.11 of the Indenture in connection with the Reclassification;
WHEREAS, in accordance with the Indenture,
the Issuer and the Company are entering into this Supplemental Indenture, which reflects both the Prior Conversions and the Reclassification;
WHEREAS, the Issuer and the Company have furnished
the Trustee with an Opinion of Counsel and an Officers’ Certificate in accordance with the Indenture; and
WHEREAS, all things necessary to make this
Supplemental Indenture a valid agreement of the Company, the Issuer and the Trustee and a valid amendment of, and supplement to,
the Indenture and the Notes have been done, and the entry into this Supplemental Indenture by the parties hereto is in all respects
authorized by the provisions of the Indenture.
NOW, THEREFORE, in consideration of the premises
set forth herein and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto
covenant and agree for the equal and proportionate benefit of all Holders of the Notes, as follows:
1. The
Indenture is, effective as of the date on which the Supplemental Indenture is entered into, hereby amended to delete the stricken
text (indicated textually in the same manner as the following example:
stricken text
)
and to add the double-underlined text (indicated textually in the same manner as the following example:
double-underlined
text
) as set forth in the pages of the Indenture attached as
Exhibit A
hereto.
2. THIS
SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD
BE REQUIRED THEREBY
.
3. This
instrument may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original but
all such counterparts shall together constitute but one and the same instrument.
4. The
rules of construction set forth in Section 1.3 of the Indenture shall apply to this Supplemental Indenture.
5. Upon
the effectiveness of this Supplemental Indenture, the Indenture shall be and be deemed to be modified and amended in accordance
herewith and the respective rights, limitations of rights, obligations, duties and immunities under the Indenture of the Trustee,
the Issuer, the Company and the Holders affected thereby shall hereafter be determined, exercised and enforced hereunder subject
in all respects to such modifications and amendments, and all the terms and conditions of this Supplemental Indenture shall be
and be deemed to be part of the terms and conditions of the Indenture for any and all purposes.
6. Except
as amended and supplemented hereby, all provisions in the Indenture shall remain in full force and effect and are in all respects
ratified and confirmed.
7. If
there is any express conflict or inconsistency between the Indenture and this Supplemental Indenture, the provisions of this Supplemental
Indenture shall control.
8. All
covenants and agreements in this Supplemental Indenture by the Issuer and the Company shall bind their successors and assigns,
whether so expressed or not.
9. In
case any provision in this Indenture or the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired thereby.
10. The
Trustee makes no representation as to the validity, priority or adequacy of this Supplemental Indenture.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have
caused this Supplemental Indenture to be duly executed.
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LIONS GATE ENTERTAINMENT CORP.
|
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By:
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/s/ Wayne Levin
|
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|
|
Name:
|
Wayne Levin
|
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|
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Title:
|
General Counsel and Chief Strategic Officer
|
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LIONS GATE ENTERTAINMENT INC.
|
|
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By:
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/s/ Wayne Levin
|
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Name:
|
Wayne Levin
|
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|
Title:
|
President and Secretary
|
Signature Page to First Supplemental
Indenture - 2017
IN WITNESS WHEREOF, the parties hereto have
caused this Supplemental Indenture to be duly executed.
|
|
The Bank of New York Mellon Trust Company, N.A.
, as Trustee
|
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By:
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/s/ Lawrence M. Kusch
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|
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Name:
|
Lawrence M. Kusch
|
|
|
|
Title:
|
Vice President
|
Signature Page to First Supplemental Indenture
- 2017
Exhibit A
ADDED TEXT SHOWN
UNDERSCORED
DELETED TEXT SHOWN
STRIKETHROUGH
LIONS GATE ENTERTAINMENT INC.
as Issuer
LIONS GATE ENTERTAINMENT CORP.
as Guarantor
4.00% CONVERTIBLE SENIOR SUBORDINATED NOTES
DUE 2017
INDENTURE
Dated as of January 11, 2012
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
INDENTURE, dated as of January 11, 2012 among
LIONS GATE ENTERTAINMENT INC., a corporation duly organized and existing under the laws of the State of Delaware, having its principal
office at 2700 Colorado Avenue, Suite 200, Santa Monica, California 90404 (the “Issuer”), LIONS GATE ENTERTAINMENT
CORP., a corporation duly organized and existing under the laws of British Columbia, having its principal offices at 2700 Colorado
Avenue, Suite 200, Santa Monica, California 90404 and 1055 West Hastings Street, Suite 2200, Vancouver, British Columbia V6E 2E9
(the “Company”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association duly organized
and existing under the laws of the United States, as Trustee (the “Trustee”).
RECITALS OF THE ISSUER AND THE COMPANY
The Issuer and the Company have duly authorized
the creation of an issue of the Issuer’s 4.00% Convertible Senior Subordinated Notes due 2017 (the “Notes”),
in substantially the tenor and amount hereinafter set forth, and to provide therefor the Issuer and the Company have duly authorized
the execution and delivery of this Indenture.
All things necessary to make (i) the Notes,
when the Notes are executed by the Issuer and authenticated and delivered hereunder and duly issued by the Issuer, guaranteed fully
and unconditionally by the Company, the valid obligations of the Issuer, guaranteed fully and unconditionally by the Company, (ii)
the Note Guarantee the valid obligation of the Company, and (iii) this Indenture a valid agreement of the Issuer and the Company,
in accordance with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and
the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit
of all Holders of the Notes, as follows.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS.
“2016 Reclassification”
shall mean the conversion of each existing common share of the Company, without par value, into 0.5 shares of newly issued Class
A Shares and 0.5 shares of newly issued Class B Shares on the 2016 Reclassification Date.
“2016 Reclassification Date”
shall mean December 8, 2016.
“
Acquiror
” means, in a transaction
that is a Change in Control, the entity that acquires the Issuer or the Company, as the case may be.
“
Act of Holders
” when used
with respect to any Holder of a Note, has the meaning specified in Section 16.4(a) hereof.
“
Affiliate
” of any specified
Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with
such specified “
Person
.” For the purposes of this definition, “control”, when used with respect
to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled”
have meanings correlative to the foregoing.
“
Agent
” means any Registrar,
Paying Agent, Conversion Agent or co-registrar.
“
Applicable Daily Share Price
”
has the meaning specified in Section 14.14 hereof.
“
Bankruptcy Law
” means Title
11 of the U.S. Code or any similar federal, state or foreign law for the relief of debtors.
“
Board of Directors
” means
either the board of directors of Issuer or the Company, as the case may be, or any committee of such board empowered to act for
it with respect to this Indenture.
“
Board Resolution
” means a
copy of a resolution certified by the Secretary or an Assistant Secretary of the Issuer or the Company, as the case may be, duly
adopted by such Board of Directors and in full force and effect on the date of such certification, and delivered to the Trustee.
“
Business Day
,” when used with
respect to any Place of Payment or Place of Conversion, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in that Place of Payment or Place of Conversion, as the case may be, are authorized or obligated
by law to close.
“
Capital Shares
” means, with
respect to any Person, any and all shares, interests, participations or other equivalents (however designated, whether voting or
non-voting) in equity of such Person, whether now outstanding or issued after the date of this Indenture, including, without limitation,
all common shares and preferred shares.
“
Cash Amount
” has the meaning
specified in Section 14.14 hereof.
“
Cash Settlement Averaging Period
”
has the meaning specified in Section 14.14 hereof.
“
Change in Control
” means an
event or series of events in which:
(a) any “person,” including any
syndicate or group deemed to be a “person” under Section 13(d)(3) of the Exchange Act, acquires beneficial ownership,
directly or indirectly, of Capital Shares of the Company entitling that person to exercise more than 50% of the total voting power
of all of the Capital Shares of the Company entitled to vote generally in elections of directors (calculated without giving effect
to any Common Shares issued or issuable by the Company upon conversion of Notes pursuant to Article XIV hereof), other than any
acquisition by the Company, any Subsidiary or any employee benefit plan of the Company;
(b) the Company (1) consolidates with or
merges into any other corporation or business entity or conveys or transfers or leases all or substantially all of the assets of
the Company to any other person, corporation or business entity or any other corporation or business entity merges into the Company
(except solely to the extent necessary to reflect a change in the jurisdiction of incorporation of the Company), and, in any such
case, (2) the holders of the Company’s Capital Shares immediately before such transaction own, directly or indirectly, less
than 50% of the combined voting power of the outstanding voting
securities of the corporation or business entity resulting from, or the transferee in, such transaction (calculated without giving
effect to any Common Shares issued or issuable by the Company upon conversion of Notes pursuant to Article XIV hereof);
(c) any “person,” including any
syndicate or group deemed to be a “person” under Section 13(d)(3) of the Exchange Act, acquires beneficial ownership,
directly or indirectly, of the Issuer’s Capital Shares entitling that person to exercise more than 50% of the total voting
power of all of the Capital Shares of the Issuer entitled to vote generally in elections of directors (calculated without giving
effect to any Common Shares issued or issuable by the Company upon conversion of Notes pursuant to Article XIV hereof), other than
any acquisition by the Company, the Issuer or any of their respective Subsidiaries or any of their respective employee benefit
plans; or
(d) the Issuer (1) consolidates with or merges
into any other corporation or business entity or conveys or transfers or leases all or substantially all of the assets of the Issuer
to any other person, corporation or business entity or any other corporation or business entity merges into the Issuer (except
solely to the extent necessary to reflect a change in jurisdiction of incorporation of the Issuer or any parent of the Issuer),
and, in any such case, (2) the holders of the Issuer’s Capital Shares immediately before such transaction own, directly or
indirectly, less than 50% of the combined voting power of the outstanding voting securities of the corporation or business entity
resulting from, or the transferee in, such transaction (calculated without giving effect to any Common Shares issued or issuable
by the Company upon conversion of Notes pursuant to Article XIV hereof);
provided, however, that a Change in Control shall
not be deemed to occur if at least 90% of the consideration in the Change in Control transaction consists of Capital Shares traded
primarily on a U.S. national securities exchange or quoted primarily on the Nasdaq National Market.
Beneficial ownership shall be determined in accordance
with Rule 13d-3 promulgated by the SEC under the Exchange Act (except that a person will be deemed to have beneficial ownership
of all shares that such person has the right to acquire, either immediately or with the passage of time). The term “person”
includes any syndicate or group that would be deemed to be a “person” under Section 13(d)(3) of the Exchange Act. In
determining beneficial ownership, the Issuer may rely on Schedule 13D and Schedule 13G filings filed pursuant to the Exchange Act.
“
Change in Management
” shall
mean that (a) either (i) both Jon Feltheimer and Michael Burns or (ii) all four of Joseph Drake, Steven Beeks, Kevin Beggs, and
Michael Paseornek (each, a “Key Manager”) shall cease for any reason, including, without limitation, termination of
employment, death or disability (the term “disability” or “disabled” as used herein meaning an inability
continuing for one hundred and eighty (180) consecutive days (the “Disability Period”) to materially perform the functions
and services being performed by such Person as of the date of this Indenture), to materially perform the functions and services
currently being performed for the Company or Issuer by such Person as of the date of this Indenture and (b) the Company or Issuer
shall fail, for a period of ninety (90) consecutive days following the
last day of the Disability Period in which a Key Manager may be
considered disabled or the day on which a Key Manager shall have otherwise ceased to materially perform his executive functions
with the Company or Issuer as aforesaid (such date, the “Disability Determination Date”), to replace such Key Manager
with an individual acceptable to Holders of record as of such Disability Determination Date of a majority in aggregate principal
amount of the outstanding Notes, in their sole discretion. Any replacement for a Key Manager shall be deemed acceptable to the
Holders unless, within 20 days after receiving a written notice from the Issuer containing the name of the proposed replacement
shall have been mailed to such Holders, as contemplated in this Indenture, the Trustee notifies the Issuer in writing that Holders
of a majority in aggregate principal amount of the outstanding Notes object to such replacement.
“Class A Conversion Price”
has the meaning specified in Section 14.1 hereof.
“Class B Conversion Price”
has the meaning specified in Section 14.1 hereof.
“Class A Conversion Rate”
has the meaning specified in Section 14.1 hereof.
“Class B Conversion Rate”
has the meaning specified in Section 14.1 hereof.
“Class A Shares” means
Class A voting shares, without par value, of the Company.
“Class B Shares” means
Class B non-voting shares, without par value, of the Company.
“Class” shall mean,
as to shares of the Company, either Class A Shares or Class B Shares, as applicable.
“
Closing Price
” of any security
on any date of determination means:
(1) the closing sale price (or,
if no closing sale price is reported, the last reported sale price) of such security on the New York Stock Exchange on such date;
(2) if such security is not listed
for trading on the New York Stock Exchange on any such date, the closing sale price as reported in the composite transactions for
the principal U.S. securities exchange on which such security is so listed;
(3) if such security is not so
listed on a U.S. national or regional securities exchange, the last reported sale price as reported by the Nasdaq National Market;
(4) if such security is not so
reported, the last quoted bid price for such security in the over-the-counter market as reported by the National Quotation Bureau
or similar organization; or
(5) if such bid price is not available,
the average of the mid-point of the last bid and ask prices of such security on such date from at least three nationally recognized
independent investment banking firms retained for this purpose by the Issuer or Company.
“
Common Shares
” means any shares
of any class of the Company which has no preference in respect of dividends or of amounts payable in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the Company and which is not subject to redemption by the Company. However,
subject to the provisions of Section 14.11 hereof, shares issuable on conversion of Notes shall include only shares of the class
designated as Common Shares, no par value per share, of the Company at the date of execution of this Indenture or shares of any
class or classes resulting from any reclassification or reclassifications thereof and which have no preference in respect of dividends
or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company and which
are not subject to redemption by the Company, provided that if at any time there shall be more than one such resulting class, the
shares of each such class then so issuable shall be substantially in the proportion which the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications.
For the avoidance of doubt, as of the 2016 Reclassification Date, “Common Shares” shall include the Class A Shares
and the Class B Shares.
“
Company
” means the corporation
named as the “Company” in the first paragraph of this instrument until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor corporation.
“
Conversion Agent
” has the
meaning specified in Section 2.3 hereof.
“
Conversion Date
” has the meaning
specified in Section 14.2 hereof.
“
Conversion Notice
” has the
meaning specified in Section 14.2 hereof.
“
Conversion Obligation
” has
the meaning specified in Section 14.14 hereof.
“
Conversion Price
” has the
meaning specified in Section 14.1 hereof.
“
Conversion Rate
” has the meaning
specified in Section 14.1 hereof.
“
Conversion Retraction Period
”
has the meaning specified in Section 14.14 hereof.
“
Conversion Shares Cap
” has
the meaning specified in Section 11.1 hereof.
“
Corporate Trust Office
” means
the office of the Trustee at which at any particular time its corporate trust business shall be administered (which at the date
of execution of this Indenture is located at the office of The Bank of New York Mellon Trust Company, N.A. at 700 South Flower
Street, 5th Floor, Los Angeles, California 90017, Attention: Corporate Unit and for purposes of Section 10.2 shall be The Bank
of New York Mellon Trust Company, N.A., c/o The Bank of New York Mellon, 101 Barclay Street, 8W, New York, New York 10286), or
at any other time at such other address as the Trustee may designate from time to time by notice to the Company and the Holders.
“
Credit Facility Debt
” means
any and all amounts payable under or in respect of Senior Bank Facilities, including principal, premium, if any, interest (including
interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Issuer or the Company
whether or not a claim for post-filing interest is allowed in such proceeding), fees, charges, expenses, reimbursement obligations,
guarantees and all other amounts payable thereunder or in respect thereof, in an aggregate principal amount not to exceed $340
million at any one time outstanding.
“
Current Market Price
” has
the meaning specified in Section 14.4(g).
“
Daily Cash Amount
” has the
meaning specified in Section 14.14 hereof.
“
Default
” means an event which
is, or after notice or lapse of time or both would be, an Event of Default.
“
Defaulted Interest
” has the
meaning specified in Section 2.12 hereof.
“
Defaulted Interest Special Record Date
”
for the payment of any Defaulted Interest means a date fixed by the Issuer pursuant to Section 2.12 hereof.
“
Depositary
” means The Depository
Trust Company, its nominees and their respective successors.
“
Designated Event
” means a
Change in Control, Change in Management or a Termination of Trading.
“
Designated Event Repurchase Date
”
has the meaning specified in Section 13.2 hereof.
“
Designated Event Repurchase Notice
”
has the meaning specified in Section 13.2 hereof.
“
Designated Event Repurchase Price
”
has the meaning specified in Section 13.2 hereof.
“
Designated Event Repurchase Right
”
has the meaning specified in Section 13.2 hereof.
“
Designated Senior Debt
” means
any Senior Debt (other than under any Senior Bank Facility) in an original principal amount of not less than $50 million.
“
Dollar
,” “
U.S. Dollar
”
or “
$
” means a dollar or other equivalent unit in such coin or currency of the United States as at the time
shall be legal tender for the payment of public and private debts.
“
Effective Date
” has the meaning
specified in Section 11.1 hereof.
“
Event of Default
” has the
meaning specified in Section 5.1 hereof.
“
Exchange Act
” means the Securities
Exchange Act of 1934, as amended.
“
Expiration Time
” has the meaning
specified in Section 14.4(f) hereof.
“
Fair Market Value
” has the
meaning set forth in Section 14.4(g) hereof.
“
Global Note
” has the meaning
specified in Section 2.1(f) hereof.
“
Holder
” means the Person in
whose name the Note is registered in the Register.
“
Indenture
” means this instrument
as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof.
“
Interest Payment Date
” means
each January 15 and July 15, beginning July 15, 2012.
“
Issuer
” means the corporation
named as “Issuer” in the first paragraph of this instrument until a successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter “Issuer” shall mean such successor corporation.
“
Issuer Notice
” has the meaning
specified in Section 13.4 hereof.
“
Make Whole Premium
” has the
meaning specified in Section 11.1 hereof.
“
Make Whole Table
” has the
meaning specified in Section 11.1 hereof.
“
Maturity Date
” has the meaning
specified in Section 2.1(b) hereof.
“
Nasdaq National Market
” means
the National Association of Securities Dealers Automated Quotation National Market or any successor national securities exchange
or automated over-the-counter trading market in the United States.
“
Non-Electing Share
” has the
meaning specified in Section 14.11 hereof.
“
Note Guarantee
” has the meaning
specified in Section 3.1 hereof.
“
Notes
” has the meaning ascribed
to it in the first paragraph under the caption “Recitals of the Issuer and the Company.”
“
Obligations
” has the meaning
specified in Section 3.1 hereof.
“
Officer
” means the Chairman
or Vice Chairman of the Board of Directors, the Chief Executive Officer, the President, the Chief Financial Officer, the Treasurer,
any Vice President, the Secretary or Assistant Secretary of the Issuer or the Company, as the case may be.
“
Officers’ Certificate
”
means a certificate from the Issuer or the Company, as the case may be, signed by its (a) Chairman, Vice Chairman, President, Chief
Executive Officer, Chief Financial Officer or Vice President, and (b) Treasurer, Assistant Treasurer, Secretary or Assistant Secretary,
and delivered to the Trustee.
“
Opinion of Counsel
” means
a written opinion acceptable to the Trustee of counsel, who may be counsel to the Issuer and/or the Company, as the case may be
(and may include directors or employees of the Issuer or the Company, as the case may be).
“
Order
” means a written request
or order signed in the name of the Issuer by its Chairman of the Board of Directors, its President, its Chief Executive Officer,
its Chief Financial Officer or any Vice President, and delivered to the Trustee.
“
Participants
” has the meaning
specified in Section 2.15(a) hereof.
“
Paying Agent
” has the meaning
specified in Section 2.3 hereof.
“
Payment Blockage Period
” has
the meaning specified in Section 15.2(b) hereof.
“
Payment Default
” has the meaning
specified in Section 5.1(d)(i) hereof.
“
Person
” means an individual,
partnership, corporation, limited liability company, unincorporated organization, trust or joint venture, or any entity similar
to any of the foregoing organized under the laws of other countries, or a governmental agency or political subdivision thereof.
“
Physical Notes
” has the meaning
specified in Section 2.1(g) hereof.
“
Place of Conversion
” means
any city in which any Conversion Agent is located.
“
Place of Payment
” means any
city in which any Paying Agent is located.
“
Predecessor Note
” of any particular
Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for
the purposes of this definition, any Note authenticated and delivered under Section 2.7 hereof in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen
Note.
“
Public Entity
” means an entity
with publicly-traded equity securities that are listed on a United States national or regional securities exchange or on the NASDAQ
National Market.
“
Purchased Shares
” has the
meaning specified in Section 14.4(f) hereof.
“
QIB
” means a “qualified
institutional buyer” as defined in Rule 144A.
“
Record Date
” means either
a Regular Record Date or a Special Record Date, as the case may be, provided that, for purposes of Section 14.4 hereof, Record
Date has the meaning specified in 14.4(g) hereof.
“
Reference Period
” has the
meaning specified in Section 14.4(d) hereof.
“
Register
” has the meaning
specified in Section 2.5 hereof.
“
Registrar
” has the meaning
specified in Section 2.3 hereof.
“
Regular Record Date
” for the
interest payable on the Notes means the close of business on the January 1 or July 1 (whether or not a Business Day), as the case
may be, preceding an Interest Payment Date.
“
Repurchase Date
” means any
Designated Event Repurchase Date.
“
Repurchase Notice
” means any
Designated Event Repurchase Notice.
“
Repurchase Price
” means any
Designated Event Repurchase Price.
“
Repurchase Right
” means any
Designated Event Repurchase Right.
“
Responsible Officer
,” when
used with respect to the Trustee, means any officer of the Trustee, including any vice president, assistant vice president, the
treasurer, any assistant
treasurer, or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the administration of this Indenture.
“
Restricted Security
” means
a Note (or
any
Common Share into which such Note has been converted) that constitutes a
“restricted security” within the meaning of Rule 144(a)(3) under the Securities Act;
provided
, however, that
the Trustee shall be entitled to request and conclusively rely on any Opinion of Counsel to the Issuer with respect to whether
any Note (or Common Share into which such Note has been converted) constitutes a Restricted Security.
“
Restrictive Securities Legend
”
has the meaning specified in Section 2.17(a) hereof.
“
Rule 144A
” means Rule 144A
as promulgated under the Securities Act (including any successor rule thereof), as the same may be amended from time to time.
“
SEC
” means the Securities
and Exchange Commission or any successor thereto.
“
Securities Act
” means the
Securities Act of 1933, as amended.
“
Senior Bank Facilities
” means
the Second Amended and Restated Credit, Security, Guaranty and Pledge Agreement among the Issuer, Lions Gate UK Limited and Lions
Gate Australia Pty Limited, as Borrowers, the Company and certain Subsidiaries of the Company, as guarantors, JPMorgan Chase Bank
and the other lenders referred to therein and Wachovia Bank, N.A., dated as of July 25, 2008, as amended by Amendment No. 1 dated
as of September 30, 2009, Amendment No. 2 dated as of November 24, 2009, and Amendment No. 3 dated as of June 22, 2010, (the “Current
Facility”) and any amendment, extension, modification or waiver thereof, including any agreement extending the maturity of,
refinancing, replacing or otherwise restructuring (including increasing amounts available for borrowing thereunder or adding additional
guarantors thereunder) all or any portion of the Credit Facility Debt under such agreement or any successor or replacement agreement,
whether or not with the same lenders or agent, so long as any such refinancing, or amendment, extension, modification or waiver
of any then existing financing (any such refinancing, or amendment, extension, modification or waiver, a “Later Financing”),
is secured by assets of the Company or the Issuer or their respective subsidiaries; provided, however, that the lack of any validity
or enforceability of any lien or other security interest purported to be granted in connection with such Later Financing shall
not affect the classification of such Later Financing as a Senior Bank Facility.
“
Senior Debt
” means any existing
and future obligations of a Person with respect to (i) Credit Facility Debt (ii) Vendor Financing Debt and (iii) to the extent
of the value of the assets securing the debt described in this clause (iii), all secured financing in connection with motion picture
and television production and/or acquisition (including the rights of the entertainment guilds pursuant to their collective bargaining
agreements with the film and television industries), and the acquisition of libraries and catalogues (either directly or through
acquisitions of entities whose principal assets consist of libraries and/or catalogues).
“
Senior Non-monetary Default
”
has the meaning specified in Section 15.2 hereof.
“
Senior Payment Default
” has
the meaning specified in Section 15.2 hereof.
“
Settlement Notice Period
”
has the meaning specified in Section 14.14 hereof.
“
Share Price
” has the meaning
specified in Section 11.1 hereof.
“
Share Price Cap
” has the meaning
specified in Section 11.1 hereof.
“
Share Price Threshold
” has
the meaning specified in Section 11.1 hereof.
“
Significant Subsidiary
” has
the meaning specified in Rule 1-02(w) under Regulation S-K promulgated by the SEC.
“
Special Record Date
” has the
meaning specified in Section 8.4 hereof.
“
Subsidiary
” means a corporation
more than 50% of the outstanding Voting Shares of which are owned, directly or indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries.
“
Successor Company
” has the
meaning specified in Section 7.1.
“
Termination of Trading
” will
be deemed to have occurred if
either Class of
the Common Shares (or other common stock
into which the Notes are convertible)
are
is
neither listed for trading on a U.S. national securities exchange nor approved for listing on the Nasdaq National Market or any
similar U.S. system of automated dissemination of quotations of securities prices, and no American Depository Shares or similar
instruments for such
Class of
Common
stock
Shares
are so listed or approved for listing in the U.S.
“
TIA
” means the Trust Indenture
Act of 1939 (15 U.S. Code Section 77aaa- 77bbbb), as in effect on the date of execution of this Indenture; provided, however, that
in the event the TIA is amended after such date, “TIA” means, to the extent required by such amendment, the Trust Indenture
Act of 1939, as so amended, or any successor statute.
“
Trading Day
” means:
(1) if the applicable security
is listed or admitted for trading on the New York Stock Exchange or another national security exchange, a day on which the New
York Stock Exchange or such other national security is open for business;
(2) if the applicable security
is quoted on the Nasdaq National Market, a day on which trades may be made thereon; or
(3) if the applicable security
is not so listed, admitted for trading or quoted, any day other than a Saturday or Sunday or a day on which banking institutions
in the State of New York are authorized or obligated by law or executive order to close.
“
Transfer Agent
” means any
Person, which may be the Company, authorized by the Company to exchange or register the transfer of Notes, initially Mellon Investor
Services LLC.
“
Trigger Event
” has the meaning
specified in Section 14.4(d) hereof.
“
Trustee
” means the Person
named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean such successor Trustee.
“
Vendor Financing Debt
” means
obligations of the Company or the Issuer, directly or by guarantee, owing to Persons providing financing to any of such entities,
which Persons are bona fide suppliers of products or services to such entities, in an aggregate principal amount not to exceed
$75.0 million at any one time outstanding for all such Persons. If at any time there are obligations outstanding to all such Persons
in a principal amount in excess of $75.0 million, then the Vendor Financing Debt shall be allocated, as among the holders of Vendor
Financing Debt only, in accordance with a schedule provided by the Issuer and the Company to the Trustee, or if no such schedule
has been provided, pro rata among the holders of the Vendor Financing Debt.
“
Vice President
” means any
vice president of a corporation, whether or not designated by a number or a word or words added before or after the title “vice
president.”
“
Voting Shares
” means with
respect to any Person, Capital Shares of any class or kind ordinarily having the power to vote for the election of directors, managers
or other voting members of the governing body of such Person.
“
Withdrawal Notice
” has the
meaning specified in Section 13.5 hereto.
SECTION 1.2 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision
of the TIA, the provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture
have the following meanings:
“
indenture securities
” means
the Notes;
“
indenture security holder
”
means a Holder;
“
indenture to be qualified
”
means this Indenture;
“
indenture trustee
” or “
institutional
trustee
” means the Trustee; and
“
obligor
” on the Notes means
the Issuer and the Company and any other obligor on the indenture securities.
All other TIA terms used in this Indenture
that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rules have the meanings assigned to
them by such definitions.
SECTION 1.3 RULES OF CONSTRUCTION.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article
have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all accounting terms not otherwise
defined herein have the meanings assigned to them in accordance with accounting principles generally accepted in the United States
prevailing at the time of any relevant computation hereunder; and
(3) the words “herein,”
“hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
ARTICLE II
THE NOTES
SECTION 2.1 FORM AND DATING.
(a) The Notes shall be known and designated
as the “4.00% Convertible Senior Subordinated Notes due 2017” of the Issuer. The aggregate principal amount of the
Notes which may be authenticated and delivered under this Indenture shall initially be limited to $45,000,000, but may be reopened
at any time and from time to time for the issuance of additional Notes, which Notes shall have identical terms except that such
additional Notes may have different initial issuance prices and first interest payment dates.
(b) The Notes shall mature on January 11,
2017 (the “Maturity Date”).
(c) Interest shall accrue at a rate of 4.00%
per annum on the principal amount of the Notes calculated from January 11, 2012 or from the most recent date to which interest
has been paid until the principal of the Notes is paid or made available for payment pursuant to the terms of this Indenture. Interest
shall be payable semiannually in arrears on January 15 and July 15 in each year, commencing July 15, 2012.
Interest on the Notes shall be computed on the
basis of a 360-day year comprised of twelve 30-day months, and, in the case of a partial month, the actual number of days elapsed.
Except as provided in the next succeeding paragraph,
a Holder of any Note shall not be entitled to receive any interest that has accrued on such Note if such Note is converted into
Common Shares on any day other than an Interest Payment Date. By delivering to the Holder of any Note that is converted into Common
Shares the number of shares issuable upon conversion, together with a cash payment, if any, in lieu of a fractional share, the
Issuer and the
Company shall be deemed to have satisfied their obligation with
respect to such Note. Accordingly, accrued but unpaid interest shall be deemed to be paid in full rather than canceled, extinguished
or forfeited.
If a Holder of any Note converts such Note after
a Regular Record Date but prior to the corresponding Interest Payment Date, the Holder of record on such Regular Record Date shall
be entitled to receive on the Interest Payment Date interest accrued and paid on such Note, notwithstanding the conversion of such
Note prior to such Interest Payment Date. However, at the time such Holder surrenders such Note for conversion, such Holder shall
pay the Issuer an amount equal to the interest that will be paid on the Notes being converted on the Interest Payment Date. However,
in the event that (i) overdue interest, if any, exists at the time of conversion with respect to such Note or (ii) a Holder exercises
its Designated Event Repurchase Right for a Note on a Designated Event Repurchase Date that is after a Record Date for an interest
payment but prior to the corresponding Interest Payment Date, and prior to such Designated Event Repurchase Date a Holder of any
Note chooses to convert such Note, then such Holder shall not be required to pay the Issuer at the time such Holder surrenders
such Note for conversion the amount of interest on such Note such Holder shall be entitled to receive on the date that has been
fixed for repurchase if such Holder’s conversion right would terminate because of the repurchase between the Regular Record
Date and the close of business on the second Business Day following the next succeeding Interest Payment Date. Accrued but unpaid
interest will be payable upon any conversion of Notes made concurrently with or after acceleration of the Notes following an Event
of Default.
Principal of, and premium, if any, and interest
on, Global Notes shall be payable to the Depositary in immediately available funds.
Principal and premium, if any, and interest on
maturity, on Physical Notes shall be payable at the office or agency of the Issuer maintained for such purpose, initially the Corporate
Trust Office of the Trustee. Interest on Physical Notes (other than at maturity) will be payable by (i) U.S. Dollar check drawn
on a bank in The City of New York mailed to the address of the Holder, or (ii) upon application to the Registrar not later than
the relevant Record Date by a Holder, of an aggregate principal amount in excess of $5,000,000, wire transfer in immediately available
funds.
(d) The Notes shall be guaranteed as to payment
and performance of conversion rights by the Company as provided in Article III; provided that nothing herein shall require the
Note Guarantee to be endorsed on any Note and the failure to so endorse a Note Guarantee thereon shall not impair the validity
or enforceability of the Note Guarantee with respect to any such Note.
(e) The Notes and the Trustee’s certificate
of authentication shall be substantially in the form set forth in EXHIBIT A, which is incorporated in and forms a part of this
Indenture. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note shall
be dated the date of its authentication.
(f) The Notes are being offered and sold
in reliance on Section 4(2) of the Securities Act and shall be issued initially in the form of one or more Global Notes, substantially
in the form set forth in EXHIBIT A (the “Global Note”),
deposited with the Trustee, as custodian for the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter
provided and bearing the legends set forth in EXHIBITS C-1 and C-2. The aggregate principal amount of the Global Note may from
time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary, as hereinafter
provided, subject to the limitations provided in Section 2.1(a) hereof on the aggregate principal amount of the Global Note or
Notes.
(g) Notes issued in exchange for interests
in a Global Note pursuant to Section 2.15 may be issued in the form of permanent certificated Notes in registered form in substantially
the form set forth in EXHIBIT A (the “Physical Notes”) and, if applicable, bearing any legends required by Section
2.17.
SECTION 2.2 EXECUTION AND AUTHENTICATION.
(a) One Officer of the Issuer shall sign
the Notes for the Issuer by manual or facsimile signature.
(b) If an Officer of the Issuer whose signature
is on a Note no longer holds that office at the time the Note is authenticated, the Note shall nevertheless be valid.
(c) A Note shall not be valid until authenticated
by the manual signature of the Trustee. The signature shall be conclusive evidence that the Note has been authenticated under this
Indenture.
(d) Upon an Order of the Issuer signed by
one Officer of the Issuer, the Trustee shall authenticate Notes for original issue in the aggregate principal amount of $45,000,000,
or in the aggregate principal amount of additional Notes as shall be permitted pursuant to Section 2.1(a), as applicable. In authenticating
such Notes or additional Notes, and accepting the additional responsibilities under this Indenture in relation to such Notes or
additional Notes, the Trustee shall receive, and, subject to Section 6.1, shall be fully protected in relying upon:
(i) a copy of the Board Resolution
of the Board of Directors approving the issuance of the Notes or additional Notes, certified by the Secretary or an Assistant Secretary
of the Issuer to have been duly adopted by the Board of Directors and to be in full force and effect as of the date of such certificate;
(ii) an Officers’ Certificate
complying with Section 16.6; and
(iii) an Opinion of Counsel complying
with Section 16.6.
(e) Upon an Order of the Issuer signed by
two Officers of the Issuer, the Trustee shall authenticate Notes not bearing the Restrictive Securities Legend to be issued to
the transferee when sold pursuant to an effective registration statement under the Securities Act as set forth in Section 2.16(c)
hereof.
(f) The Trustee shall act as the initial
authenticating agent. Thereafter, the Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate Notes.
An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication
by the Trustee includes authentication by such authenticating agent. An authenticating agent has the same rights as an Agent to
deal with the Issuer and its Affiliates.
(g) The Notes shall be issuable only in registered
form without interest coupons and only in denominations of $1,000 principal amount and any positive integral multiple thereof.
SECTION 2.3 REGISTRAR, PAYING AGENT AND CONVERSION AGENT.
(a) The Issuer shall maintain an office or
agency where Notes may be presented for registration of transfer or for exchange (“Registrar”), an office or agency
where Notes may be presented for payment (“Paying Agent”) and an office or agency where Notes may be presented for
conversion (“Conversion Agent”). The Registrar shall keep a register of the Notes and of their transfer and exchange.
The Issuer may appoint or change one or more co-registrars, one or more additional paying agents and one or more additional conversion
agents without notice and may act in any such capacity on its own behalf. The term “Registrar” includes any co-registrar;
the term “Paying Agent” includes any additional paying agent; and the term “Conversion Agent” includes
any additional conversion agent.
(b) The Issuer shall enter into an appropriate
agency agreement with any Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture that
relate to such Agent. The Issuer shall notify the Trustee of the name and address of any Agent not a party to this Indenture. If
the Issuer fails to maintain a Registrar, Paying Agent or Conversion Agent, the Trustee shall act as such. The Issuer or any Affiliate
of the Issuer may act as Paying Agent.
(c) The Issuer initially appoints the Trustee
as Paying Agent, Registrar and Conversion Agent.
SECTION 2.4 PAYING AGENT TO HOLD MONEY IN TRUST.
Subject to Section 15.2, each Paying Agent shall
hold in trust for the benefit of the Holders or the Trustee all moneys held by the Paying Agent for the payment of the Notes, and
shall notify the Trustee of any default by the Issuer in making any such payment. While any such default continues, the Trustee
may require a Paying Agent to pay all money held by it to the Trustee. The Issuer at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent shall have no further liability for the
money. If the Issuer acts as Paying Agent, it shall segregate and hold as a separate trust fund all money held by it as Paying
Agent.
SECTION 2.5 HOLDER LISTS.
The Trustee shall preserve in as current a form
as is reasonably practicable the most recent list available to it of the names and addresses of Holders (the “Register”).
If the Trustee is
not the Registrar, the Issuer shall furnish to the Trustee on or
before each interest payment date and at such other times as the Trustee may request in writing the Register.
SECTION 2.6 TRANSFER AND EXCHANGE.
(a) Subject to Sections 2.15 and 2.16 hereof,
when Notes are presented to the Registrar with a request to register their transfer or to exchange them for an equal principal
amount of Notes of other authorized denominations, the Registrar shall register the transfer or make the exchange if its requirements
for such transaction are met. To permit registrations of transfer and exchanges, the Trustee shall authenticate Notes at the Registrar’s
request.
(b) No service charge shall be made for any
transfer, exchange or conversion of Notes, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer, exchange or conversion of Notes, other than exchanges pursuant to Sections
2.10, 12.6, 13.1, 13.2 or 14.2 not involving any transfer.
SECTION 2.7 REPLACEMENT NOTES.
(a) If the Holder claims that the Note has
been mutilated, lost, destroyed or stolen, the Issuer shall issue and the Trustee shall authenticate a replacement Note if the
Trustee’s requirements are met and, in the case of a mutilated Note, such mutilated Note is surrendered to the Trustee. In
the case of lost, destroyed or stolen Notes, if required by the Trustee, an indemnity bond must be provided by the Holder that
is sufficient in the judgment of the Trustee to protect the Issuer, the Trustee or any Agent from any loss which any of them may
suffer if a Note is replaced. The Issuer may require payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation to replacing a Note and any other reasonable expenses (including the reasonable fees and expenses
of the Trustee) in connection therewith.
(b) In case any such mutilated, lost, destroyed
or stolen Note has become or is about to become due and payable, the Issuer in its discretion may, instead of issuing a new Note,
pay such Note when due.
(c) Every replacement Note is an additional
obligation of the Issuer only as provided in Section 2.8.
SECTION 2.8 OUTSTANDING NOTES.
(a) The Notes outstanding at any time are
all the Notes authenticated by the Trustee except for those converted, those cancelled by it, those delivered to it for cancellation
and those described in this Section 2.8 as not outstanding. Except to the extent provided in Section 2.9, a Note does not cease
to be outstanding because the Issuer or one of its subsidiaries or Affiliates holds the Note.
(b) If a Note is replaced pursuant to Section
2.7, it ceases to be outstanding unless the Trustee receives proof satisfactory to it, or a court holds, that the replaced Note
is held by a protected purchaser, as that term is defined in the New York Uniform Commercial Code.
(c) If the Paying Agent (other than the Issuer
or any Affiliate of the Issuer) holds on a Repurchase Date or Maturity Date money sufficient to pay Notes payable on that date
(or, if the Issuer acts as Paying Agent, if the Issuer has segregated and holds such money in trust in accordance with Section
2.4 hereof), then on and after that date, such Notes shall be deemed to be no longer outstanding and interest on them shall cease
to accrue, and such Note shall be deemed paid whether or not the Note is delivered to the Paying Agent. Thereafter, all other rights
of the Holders of such Notes shall terminate with respect to such Notes, other than the right to receive the Repurchase Price or
principal amount, as applicable.
(d) If a Note is converted in accordance
with Article XIV hereof, then from and after the time of conversion on the Conversion Date, such Note will cease to be outstanding,
and interest, if any, will cease to accrue on such Note.
SECTION 2.9 NOTES HELD BY THE ISSUER OR AN AFFILIATE.
In determining whether the Holders of the required
aggregate principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuer or any of its
subsidiaries or an Affiliate shall be considered as though not outstanding, except that for the purposes of determining whether
a Responsible Officer of the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes which the
Trustee knows are so owned shall be so disregarded.
SECTION 2.10 TEMPORARY NOTES.
Until definitive Notes are ready for delivery,
the Issuer may prepare and the Trustee shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of
definitive Notes but may have variations that the Issuer considers appropriate for temporary Notes. Without unreasonable delay,
the Issuer shall prepare and the Trustee shall authenticate definitive Notes in exchange for temporary Notes.
SECTION 2.11 CANCELLATION.
The Issuer at any time may deliver Notes to
the Trustee for cancellation. The Registrar, Paying Agent and Conversion Agent shall forward to the Trustee any Notes surrendered
to them for transfer, exchange, payment or conversion. The Trustee shall cancel all Notes surrendered for transfer, exchange, payment,
conversion or cancellation in accordance with its customary procedures. The Issuer may not issue new Notes to replace Notes that
it has paid or delivered to the Trustee for cancellation or that any Holder has converted pursuant to Article XIV.
SECTION 2.12 DEFAULTED INTEREST.
If and to the extent the Issuer defaults in
a payment of interest on the Notes, the Issuer shall pay the defaulted interest in any lawful manner plus, to the extent not prohibited
by applicable statute or case law, interest payable on the defaulted interest at the rate provided in the Notes (the “Defaulted
Interest”). The Issuer may pay the Defaulted Interest to the persons who are Holders on a subsequent special record date
fixed by the Issuer (a “Defaulted Interest Special Record Date”). The Issuer shall fix such Defaulted Interest Special
Record Date and payment date. At least 15 days before the Defaulted Interest Special Record Date, the Issuer shall mail to
Holders a notice that states the Defaulted Interest Special Record
Date, payment date and amount of interest to be paid.
SECTION 2.13 CUSIP NUMBERS.
The Issuer in issuing the Notes may use one
or more “CUSIP” numbers, and if so, the Trustee shall use the CUSIP numbers in notices of exchange as a convenience
to Holders; provided, however, that no representation is hereby deemed to be made by the Trustee as to the correctness or accuracy
of the CUSIP numbers printed in the notice or on the Notes, and that reliance may be placed only on the other identification numbers
printed on the Notes. The Issuer shall promptly notify the Trustee of any change in the CUSIP numbers.
SECTION 2.14 DEPOSIT OF MONEYS.
Prior to 11:00 A.M., New York City time, on
each Interest Payment Date, Maturity Date and Repurchase Date, the Issuer shall have deposited with a Paying Agent in immediately
available funds money sufficient to make cash payments, if any, due on such Interest Payment Date, Maturity Date and Repurchase
Date, as the case may be, in a timely manner which permits the Paying Agent to remit payment to the Holders on such Interest Payment
Date, Maturity Date and Repurchase Date, as the case may be.
SECTION 2.15 BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES.
(a) The Global Notes initially shall (i)
be registered in the name of the Depositary or the nominee of such Depositary, (ii) be delivered to the Trustee as custodian for
such Depositary, and (iii) bear legends as set forth in Section 2.17.
Members of, or participants in, the Depositary
(“Participants”) shall have no rights under this Indenture with respect to any Global Notes held on their behalf by
the Depositary, or the Trustee as its custodian, or under the Global Notes, and the Depositary may be treated by the Issuer, the
Trustee and any agent of the Issuer or the Trustee as the absolute owner of the Global Notes for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect
to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and
Participants, the operation of customary practices governing the exercise of the rights of a Holder of any Notes.
(b) Transfers of Global Notes shall be limited
to transfers in whole, or in part, to the Depositary, its successors or their respective nominees. In addition, Physical Notes
shall be transferred to all beneficial owners in exchange for their beneficial interests in Global Notes if (i) the Depositary
notifies the Issuer that it is unwilling or unable to continue as Depositary for any Global Note and a successor Depositary is
not appointed by the Issuer within 90 days of such notice or (ii) an Event of Default has occurred and is continuing and the Registrar
has received a written request from the Depositary to issue Physical Notes.
(c) In connection with the transfer of a
Global Note in its entirety to beneficial owners pursuant to Section 2.15(b), such Global Note shall be deemed to be surrendered
to the Trustee for cancellation, and the Issuer shall execute, and the Trustee shall upon written
instructions from the Issuer authenticate and deliver to each beneficial
owner identified by the Depositary in exchange for its beneficial interest in such Global Note, an equal aggregate principal amount
of Physical Notes of authorized denominations.
(d) Any Physical Note constituting a Restricted
Security delivered in exchange for an interest in a Global Note pursuant to Section 2.15(b) shall, except as otherwise provided
by Section 2.16, bear the Restrictive Securities Legend.
(e) The Holder of any Global Note may grant
proxies and otherwise authorize any Person, including Participants and Persons that may hold interests through Participants, to
take any action which a Holder is entitled to take under this Indenture or the Notes.
SECTION 2.16 SPECIAL TRANSFER PROVISIONS.
(a)
Transfers to QIBs
. The following
provisions shall apply with respect to the registration of any proposed transfer of a Restricted Security to a QIB:
(i) the Registrar shall register
the transfer of any Restricted Security, whether or not such Note bears the Restrictive Securities Legend, if (x) the requested
transfer is after the first anniversary of the issue date for the Notes;
provided
,
however
, that neither the Company
nor any of its Affiliates has held any beneficial interest in such Note, or portion thereof, at any time on or prior to the first
anniversary of the issue date for the Notes or (y) such transfer is being made by a proposed transferor who has checked the box
provided for on the form of Note stating, or has otherwise advised the Issuer and the Registrar in writing, that the sale has been
made in compliance with the provisions of Rule 144A to a transferee who has signed the certification provided for on the form of
Note stating, or has otherwise advised the Issuer and the Registrar in writing, that it is purchasing the Note for its own account
or an account with respect to which it exercises sole investment discretion and that it and any such account is a QIB within the
meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received
such information regarding the Issuer as it has requested pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration
provided by Rule 144A; and
(ii) if the proposed transferor
is a Participant seeking to transfer an interest in one Global Note to a transferee who will hold such interest in another Global
Note, upon receipt by the Registrar of (x) written instructions given in accordance with the Depositary’s and the Registrar’s
procedures and (y) the appropriate certificates and other documents, if any, required by clause (y) of paragraph (i) above, the
Registrar shall register the transfer and reflect on its books and records the date and (A) a decrease in the aggregate principal
amount of the Global Note through which the transferor held such interest in an amount equal to the aggregate principal amount
of the Notes to be transferred and (B) an increase in the aggregate principal amount of the Global Note through which the transferee
proposes to hold such interest, in an amount equal to the aggregate principal amount of the Notes to be transferred.
(b)
Restrictions on Transfer and Exchange
of Global Notes
. Notwithstanding any other provisions of this Indenture, a Global Note may not be transferred except as a whole
or in part by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee
of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.
(c)
Restrictive Securities Legend
.
Upon the transfer, exchange or replacement of Notes not bearing the Restrictive Securities Legend, the Registrar or co-Registrar
shall deliver Notes that do not bear the Restrictive Securities Legend. Upon the transfer, exchange or replacement of Notes bearing
the Restrictive Securities Legend, the Registrar or co-Registrar shall deliver only Notes that bear the Restrictive Securities
Legend unless (i) the requested transfer is after the first anniversary of the issue date for the Notes (
provided
,
however
,
that neither the Issuer nor any of its Affiliates has held any beneficial interest in such Note, or portion thereof, at any time
prior to or on the first anniversary of the issue date), (ii) there is delivered to the Trustee an Opinion of Counsel to the Issuer
reasonably satisfactory to the Issuer to the effect that neither such legend nor the related restrictions on transfer are required
in order to maintain compliance with the provisions of the Securities Act or (iii) such Note has been sold pursuant to an effective
registration statement under the Securities Act and the Holder selling such Notes has delivered to the Registrar or co-Registrar
a notice in the form of EXHIBIT D hereto. Upon the effectiveness of a shelf registration statement on Form S-3, the Issuer shall
deliver to the Trustee a notice of effectiveness, a Note or Notes, an authentication order in accordance with Section 2.2 and an
Opinion of Counsel and, if required by the Depositary, the Issuer shall deliver to the Depositary a letter of representations in
a form reasonably acceptable to the Depositary.
(d)
General
. By its acceptance of
any Note bearing the Restrictive Securities Legend, each Holder of such a Note acknowledges the restrictions on transfer of such
Note set forth in this Indenture and in the Restrictive Securities Legend and agrees that it will transfer such Note only as provided
in this Indenture.
The Registrar shall retain copies of all letters,
notices and other written communications received pursuant to Section 2.15 or this Section 2.16. The Issuer shall have the right
to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
(e)
Transfers of Notes Held by Affiliates
.
Any certificate (i) evidencing a Note that has been transferred to an Affiliate of the Issuer within one year after the issue date
for the Notes, as evidenced by a notation on the Assignment Form for such transfer or in the representation letter delivered in
respect thereof or (ii) evidencing a Note that has been acquired from an Affiliate (other than by an Affiliate) in a transaction
or a chain of transactions not involving any public offering, shall, until the later of (x) one year after the date of original
issuance of the Note and (y) 90 days after the Holder ceases to be an Affiliate, bear the Restrictive Securities Legend, unless
otherwise agreed by the Company (with written notice thereof to the Trustee).
SECTION 2.17 RESTRICTIVE SECURITIES LEGENDS.
(a) Each Global Note and Physical Note that
constitutes a Restricted Security shall bear the legend (the “Restrictive Securities Legend”) as set forth in EXHIBIT
C-1 on the face thereof until the date that is the later of (i) one year after the date of original issuance of the Notes, and
(ii) 90 days after the Holder ceases to be an affiliate (within the meaning of Rule 144 under the Securities Act) of the Company
or Issuer (or such shorter period of time as permitted by Rule 144 under the Securities Act or any successor provision thereunder;
or such longer period of time as may be required under the Securities Act or applicable state securities laws in the opinion of
counsel for the Issuer, unless otherwise agreed between the Issuer and the Holder thereof).
(b) Each Common Share that constitutes a
Restricted Security shall bear the Restrictive Securities Legend as set forth in EXHIBIT C-3 on the reverse thereof until the date
that is the later of (i) six months after the date of original issuance of the Notes in the case of Common Shares issuable on conversion
of the Notes (or one year after the original issuance date in the case of Common Shares that is restricted upon issuance), and
(ii) 90 days after the Holder ceases to be an affiliate (within the meaning of Rule 144 under the Securities Act) of the Company
or Issuer (or such shorter period of time as permitted by Rule 144 under the Securities Act or any successor provision thereunder;
or such longer period of time as may be required under the Securities Act or applicable state securities laws in the opinion of
counsel for the Issuer, unless otherwise agreed between the Issuer and the Holder thereof)
(c) Each Global Note shall also bear the
legend as set forth in EXHIBIT C-2.
ARTICLE III
NOTE GUARANTEE
SECTION 3.1 NOTE GUARANTEE.
The Company hereby fully and unconditionally
guarantees, as primary obligor and not merely as surety, to each Holder and the Trustee, the payment of principal and interest
on the Notes and the Repurchase Price, if applicable, with respect to any Note (the “Obligations”) on an unsecured
senior subordinated basis (the “Note Guarantee”). The Note Guarantee ranks junior to all existing and future Senior
Debt of the Company. The Note Guarantee is effectively subordinated to all indebtedness and other liabilities of all Subsidiaries
of the Company (other than the Issuer). Other than as set out above, the Note Guarantee ranks equally in right of payment with
all of the Company’s other existing and future liabilities that are not secured or are not otherwise subordinated in favor
of the Note Guarantee.
The Company waives presentation to, demand of
payment from and protest to the Issuer of any of the Obligations and also waives notice of protest for nonpayment. The Company
waives notice of any default under the Notes or the Obligations. The obligations of the Company hereunder shall not be affected
by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer
or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof;
(c) any rescission, waiver, amendment or modification of any of the terms or provisions
of this Indenture, the Notes or any other agreement; (d) the release
of any security held by any Holder or the Trustee for the Obligations or any of them; or (e) any Change in Control of the Issuer.
The Company further agrees that the Note Guarantee
herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any
resort be had by any Holder or the Trustee to any security held for payment of any Obligations.
The obligations of the Company hereunder shall
not be subject to any reduction, limitation, impairment or termination for any reason (other than payment or performance of the
Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to
any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability
of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of the Company herein shall
not be discharged or impaired or otherwise affected by the failure of any Holder to assert any claim or demand or to enforce any
remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure
or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do
any other act or thing which may or might in any manner or to any extent vary the risk of the Company or would otherwise operate
as a discharge of the Company as a matter of law or equity.
The Company further agrees that the Note Guarantee
herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal
of, or interest on, any of the Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization
of the Company or otherwise.
In furtherance of the foregoing and not in limitation
of any other right which any Holder has at law or in equity against the Company by virtue hereof, upon the failure of the Company
to pay any of the Obligations when and as the same shall become due, whether at maturity, by acceleration, by repurchase or otherwise,
the Company hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in
cash, to the Trustee an amount equal to the sum of (i) the unpaid amount of such Obligations then due and owing and (ii) accrued
and unpaid interest on such Obligations then due and owing (but only to the extent not prohibited by law).
The Company further agrees that, as between
the Company, on the one hand, and the Holders, on the other hand, (x) the maturity of any Obligations may be accelerated as provided
in this Indenture for the purposes of the Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of any Obligations and (y) in the event of any such declaration of acceleration of such Obligations,
such Obligations (whether or not due and payable) shall forthwith become due and payable by the Company for the purposes of this
Note Guarantee.
The Company also agrees to pay any and all reasonable
costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights
under this Section 3.1.
SECTION 3.2 CONSIDERATION.
The Company has received, or will receive, direct
or indirect benefits from the making of the Note Guarantee.
SECTION 3.3 EXECUTION OF GUARANTEE.
To evidence the Note Guarantee to the Holders
set forth in this Article III, the Company hereby agrees to execute the Note Guarantee in substantially the form attached hereto
as EXHIBIT B, which shall be endorsed on each Note ordered to be authenticated and delivered by the Trustee. The Company hereby
agrees that the Note Guarantee set forth in this Article III shall remain in full force and effect notwithstanding any failure
to endorse on each Note a notation of such Note Guarantee. The Note Guarantee shall be signed on behalf of the Company by one of
its authorized Officers prior to the authentication of the Note on which it is endorsed, and the delivery of such Note by the Trustee,
after the authentication thereof hereunder, shall constitute due delivery of the Note Guarantee on behalf of the Company. Such
signatures upon the Note Guarantee may be by manual or facsimile signature of such officers and may be imprinted or otherwise reproduced
on the Note Guarantee, and in case any such officer who shall have signed the Note Guarantee shall cease to be such officer before
the Note on which such Note Guarantee is endorsed shall have been authenticated and delivered by the Trustee or disposed of by
the Issuer, such Note nevertheless may be authenticated and delivered or disposed of as though the Person who signed the Note Guarantee
had not ceased to be such officer of the Company.
SECTION 3.4 SUCCESSOR GUARANTEE.
In the event that the Company consolidates with,
merges with or into, or sells, conveys, transfers, leases or otherwise disposes of all or substantially all of its property and
assets (in one transaction or a series of related transactions) to any Person and the Company is not the surviving entity, such
surviving entity shall expressly assume all of the obligations of the Company under this Article III and shall execute a Note Guarantee
to evidence such obligation.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 SATISFACTION AND DISCHARGE OF INDENTURE.
When:
(1) the Issuer shall deliver to
the Trustee for cancellation all Notes previously authenticated (other than any Notes which have been destroyed, lost or stolen
and in lieu of, or in substitution for which, other Notes shall have been authenticated and delivered) and not previously canceled,
or
(2) the Issuer shall deposit with
the Trustee, within one year before the Notes have become due and payable at stated maturity or within one year of the Notes being
scheduled for conversion or otherwise, cash or Common Shares, pursuant to Article XIV, sufficient to pay all of the outstanding
Notes and all other sums payable by the Issuer under this Indenture, and
if, in the case of either clause (1) or (2),
the Issuer shall also pay or cause to be paid all other sums payable hereunder by the Issuer, then this Indenture shall cease to
be of further effect except as to:
(i) remaining rights of registration
of transfer, substitution and exchange and conversion of Notes,
(ii) rights hereunder of Holders
to receive payments of principal of and premium, if any, and interest on, the Notes and the other rights, duties and obligations
of Holders, as beneficiaries hereof with respect to the amounts, if any, so deposited with the Trustee, and
(iii) the rights, obligations
and immunities of the Trustee hereunder,
and the Trustee, on written demand of the Issuer
accompanied by an Officers’ Certificate and an Opinion of Counsel (each stating that all conditions precedent herein relating
to the satisfaction and discharge of this Indenture have been complied with) and at the cost and expense of the Issuer, shall execute
proper instruments acknowledging satisfaction of and discharging this Indenture; provided, however, the Issuer shall reimburse
the Trustee for all amounts due the Trustee under Section 5.8 and Section 6.7 hereof and for any costs or expenses thereafter reasonably
and properly incurred by the Trustee and to compensate the Trustee for any services thereafter reasonably and properly rendered
by the Trustee in connection with this Indenture or the Notes.
SECTION 4.2 DEPOSITED MONIES TO BE HELD IN TRUST.
Subject to Section 4.3 hereof, all monies deposited
with the Trustee pursuant to Section 4.1 hereof shall be held in trust and applied by it to the payment, notwithstanding the provisions
of Article XIV hereof, either directly or through any Paying Agent (including the Issuer if acting as its own Paying Agent), to
the Holders of the particular Notes for the payment of which such monies have been deposited with the Trustee, of all sums due
and to become due thereon for principal, premium, if any, and interest. All monies deposited with the Trustee pursuant to Section
4.1 hereof (and held by it or any Paying Agent) for the payment of Notes subsequently converted shall be returned to the Issuer
upon request of the Issuer.
SECTION 4.3 RETURN OF UNCLAIMED MONIES.
Anything contained herein to the contrary notwithstanding,
and subject to any applicable law, any money held by the Trustee in trust for the payment and discharge of the principal, interest
or premium, if any, on any of the Notes which remains unclaimed for two years after the date when each payment of such principal,
interest and premium has become payable shall be repaid within sixty days of such date by the Trustee to the Issuer as its absolute
property free from trust, and the Trustee shall thereupon be released and discharged with respect thereto and the Holders shall
look only to the Issuer for the payment of the principal, interest and premium, if any, on such Notes. The Issuer may cause, or,
if requested by the Issuer, the Trustee shall cause notice of such payment to the Issuer to be mailed to each Holder of a Note
entitled thereto prior to such payment. The Trustee shall not be liable to the Issuer or any Holder for interest on funds held
by it for the payment and discharge of the principal of, or interest or premium, if any,
on, any of the Notes to any Holder. The Issuer shall not be liable
for any interest on the sums paid to it pursuant to this paragraph and shall not be regarded as a trustee of such money.
ARTICLE V
DEFAULTS AND REMEDIES
SECTION 5.1 EVENTS OF DEFAULT.
An “Event of Default,” wherever
used herein, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body):
(a) default in the payment of principal of
(or premium, if any, on) any Note at its stated maturity or exercise of a Repurchase Right or otherwise;
(b) default in the payment of interest on
any Note when due and payable and continuance of such default for a period of 30 days;
(c) default in the performance or breach
of any term, covenant or agreement of the Issuer or the Company in this Indenture or under the Notes and continuance of such default
or breach for a period of 60 consecutive days after there has been given, by registered or certified mail, to the Issuer or the
Company by the Trustee or to the Issuer or the Company and the Trustee by the Holders of at least 25% in principal amount of the
outstanding Notes a written notice specifying such default or breach and requiring it to be remedied and stating that such notice
is a “Notice of Default” hereunder;
(d) a default occurs under any mortgage,
indenture or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for money
borrowed by the Issuer, the Company or any of the Company’s Significant Subsidiaries, whether such indebtedness now exists
or shall be created hereafter, which default (i) is caused by a failure to pay principal of such indebtedness by the end of the
applicable grace period, if any, unless such indebtedness is discharged (a “Payment Default”) or (ii) results in the
acceleration of such indebtedness, unless such acceleration is waived, cured, rescinded or annulled, the principal amount of any
such indebtedness, together with the principal amount of any other such indebtedness under which there is then existing a Payment
Default or the maturity of which has been so accelerated, aggregates $10 million or more;
(e) a court having jurisdiction in the premises
enters a decree or order for (A) relief in respect of the Issuer, the Company or any of the Company’s Significant Subsidiaries
in an involuntary case under any applicable bankruptcy or other similar law now or hereafter in effect, (B) appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official of the Issuer, the Company or any of the Company’s
Significant Subsidiaries or (C) the winding up or liquidation of the affairs of the Issuer, the Company or any of the Company’s
Significant Subsidiaries and, in each case, such decree or order shall remain unstayed and in effect for a period of 30 consecutive
days;
(f) the Issuer, the Company or any of the
Company’s Significant Subsidiaries (A) commences a voluntary case under any applicable bankruptcy or other similar law now
or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, (B) consents
to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official
of the Issuer, the Company or any of the Company’s Significant Subsidiaries or for all or substantially all of the property
and assets of the Issuer, the Company or any of the Company’s Significant Subsidiaries or (C) effects any general assignment
for the benefit of creditors; or
(g) failure by the Issuer or the Company
to provide the notice required under this Indenture upon a Designated Event.
SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
(a) If an Event of Default with respect to
outstanding Notes (other than an Event of Default with respect to the Issuer or the Company specified in Section 5.1(e) or 5.1(f)
hereof) occurs and is continuing and has not been cured or waived in accordance with this Indenture, the Trustee or the Holders
of at least 25% in aggregate principal amount of the outstanding Notes, by written notice to the Issuer or the Company specifying
such Event of Default and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder,
may declare due and payable 100% of the principal amount of all outstanding Notes plus any accrued and unpaid interest to the date
of payment. Upon a declaration of acceleration, such principal and accrued and unpaid interest to the date of payment shall be
immediately due and payable.
(b) If an Event of Default with respect to
the Issuer or the Company specified in Section 5.1(e) or 5.1(f) hereof occurs, all unpaid principal and accrued and unpaid interest
on the outstanding Notes shall become and be immediately due and payable, without any declaration or other act on the part of the
Trustee or any Holder.
(c) The Holders, either (a) through the written
consent of not less than a majority in aggregate principal amount of the outstanding Notes, or (b) by the adoption of a resolution
by Holders of a majority in aggregate principal amount of the outstanding Notes represented at a meeting of Holders at which a
quorum (as prescribed in Section 9.4) is present, may rescind and annul an acceleration and its consequences if:
(1) all existing Events of Default,
other than the nonpayment of principal of or interest on the Notes which have become due solely because of the acceleration, have
been remedied, cured or waived, and
(2) the rescission would not conflict
with any judgment or decree of a court of competent jurisdiction;
provided, however, that in the event of a declaration of acceleration
in respect of the Notes because of an Event of Default specified in Section 5.1(d) shall have occurred and be continuing, such
declaration of acceleration shall be automatically rescinded and annulled if the indebtedness that is the subject of such Event
of Default has been discharged or the holders thereof have waived, cured, rescinded or annulled their declaration of acceleration
in respect of such
indebtedness, and written notice of such discharge or waiver, cure,
rescission or annulment as the case may be, shall have been given to the Trustee by the Issuer and countersigned by the holders
of such indebtedness or a trustee, fiduciary or agent for such holders, within 30 days after such declaration of acceleration in
respect of the Notes and no other Event of Default has occurred during such 30-day period which has not been cured or waived during
such period.
SECTION 5.3 OTHER REMEDIES.
If an Event of Default with respect to outstanding
Notes occurs and is continuing, the Trustee may, in its discretion, pursue any available remedy by proceeding at law or in equity
to collect the payment of principal of or interest on the Notes or to enforce the performance of any provision of the Notes.
The Trustee may maintain a proceeding in which
it may prosecute and enforce all rights of action and claims under this Indenture or the Notes, even if it does not possess any
of the Notes or does not produce any of them in the proceeding.
SECTION 5.4 WAIVER OF PAST DEFAULTS.
The Holders, either (a) through the written
consent of not less than a majority in aggregate principal amount of the outstanding Notes, or (b) by the adoption of a resolution,
at a meeting of Holders of the outstanding Notes at which a quorum (as prescribed in Section 9.4) is present, by the Holders of
at least a majority in aggregate principal amount of the outstanding Notes represented at such meeting, may, on behalf of the Holders
of all of the Notes, waive an existing Default or Event of Default, except a Default or Event of Default:
(1) in the payment of the principal
of or premium, if any, or interest on any Note (provided, however, that subject to Section 5.7 hereof, the Holders of a majority
in aggregate principal amount of the outstanding Notes may rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration);
(2) in respect of a covenant or
provision hereof which, under Section 8.2 hereof, cannot be modified or amended without the consent of the Holders of each outstanding
Note affected.
Upon any such waiver, such Default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; provided,
however, that no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
SECTION 5.5 CONTROL BY MAJORITY.
The Holders of a majority in aggregate principal
amount of the outstanding Notes (or such lesser amount as shall have acted at a meeting pursuant to the provisions of this Indenture)
shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that:
(1) conflicts with any law or with
this Indenture;
(2) the Trustee determines may
be unduly prejudicial to the rights of the Holders not joining therein, or
(3) may expose the Trustee to personal
liability.
The Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.
SECTION 5.6 LIMITATION ON SUIT.
No Holder of any Note shall have any right to
pursue any remedy with respect to this Indenture or the Notes (including, instituting any proceeding, judicial or otherwise, with
respect to this Indenture or for the appointment of a receiver or trustee) unless:
(1) such Holder has previously
given written notice to the Trustee of an Event of Default that is continuing;
(2) the Holders of at least 25%
in aggregate principal amount of the outstanding Notes shall have made written request to the Trustee to pursue the remedy;
(3) such Holder or Holders have
offered to the Trustee indemnity satisfactory to it against any costs, expenses and liabilities incurred in complying with such
request;
(4) the Trustee has failed to comply
with the request for 60 days after its receipt of such notice, request and offer of indemnity; and
(5) during such 60-day period,
no direction inconsistent with such written request has been given to the Trustee by the Holders of a majority in aggregate principal
amount of the outstanding Notes (or such amount as shall have acted at a meeting pursuant to the provisions of this Indenture);
provided, however, that no one or more of such Holders may use this
Indenture to prejudice the rights of another Holder (including conversion rights) or to obtain preference or priority over another
Holder.
SECTION 5.7 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision in this
Indenture, the Holder of any Note shall have the right, which is absolute and unconditional, to receive payment of the principal
of and premium, if any, and interest on such Note on the stated maturity expressed in such Note, and in the case of the exercise
of a Repurchase Right, on the Repurchase Date, and to bring suit for the enforcement of any such payment on or after such respective
dates, and such right shall not be impaired or affected without the consent of such Holder.
SECTION 5.8 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY THE TRUSTEE.
Each of the Issuer and Company, jointly and
severally, covenants that if:
(1) a default is made in the payment
of any interest on any Note when such interest becomes due and payable and such default continues for a period of 30 days, or
(2) a default is made in the payment
of the principal of or premium, if any, on any Note at the maturity thereof,
the Issuer and the Company will, upon demand of the Trustee, pay
to it, for the benefit of the Holders of such Notes, the whole amount then due and payable (as expressed therein or as a result
of any acceleration effected pursuant to Section 5.2 hereof) on such Notes for principal and premium, if any, and interest and,
to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium, if any,
and on any overdue interest, calculated using the applicable interest rate specified in Section 2.1(c) hereof, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Issuer and the Company fail to pay such
amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding
for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the
same against the Issuer and/or the Company and collect the moneys adjudged or decreed to be payable in the manner provided by law
out of the property of the Issuer and/or the Company, wherever situated.
If an Event of Default occurs and is continuing,
the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Notes by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 5.9 TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative
to the Issuer or the Company or the property of the Issuer or the Company or its creditors, the Trustee (irrespective of whether
the principal of the Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Issuer or the Company for the payment of overdue principal or interest) shall
be entitled and empowered, by intervention in such proceeding or otherwise,
(1) to file and prove a claim for
the whole amount of principal and premium, if any, and interest owing and unpaid in respect of the Notes and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders of Notes allowed
in such judicial proceeding, and
(2) to collect and receive any
moneys or other property payable or deliverable on any such claim and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceedings is hereby authorized by each Holder of Notes to make such payments to
the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders of Notes, to
pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel and any other amounts due the Trustee under Section 5.8.
Nothing contained herein shall be deemed to
authorize the Trustee to authorize or consent to or accept, or adopt on behalf of any Holder of a Note, any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof or to authorize the Trustee to vote
in respect of the claim of any Holder of a Note in any such proceeding.
SECTION 5.10 RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Note has instituted
any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination
in such proceeding, the Issuer, the Company, the Trustee and the Holders of Notes shall be restored severally and respectively
to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 5.11 RIGHTS AND REMEDIES CUMULATIVE.
No right or remedy conferred in this Indenture
upon or reserved to the Trustee or to the Holders of Notes is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder
or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 5.12 DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any
Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or any acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders of Notes may be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders of Notes, as the case may be.
SECTION 5.13 APPLICATION OF MONEY COLLECTED.
Subject to Article XIII, any money collected
by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or premium, if any, or interest, upon presentation of the Notes
and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the
Trustee;
SECOND: To the payment of the amounts then due
and unpaid for principal of and premium, if any, and interest on the Notes in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such
Notes for principal and premium, if any, and interest, respectively; and
THIRD: Any remaining amounts shall be repaid
to the Issuer.
SECTION 5.14 UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each
Holder of any Note by such Holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees
and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in aggregate principal amount of the outstanding
Notes, or to any suit instituted by any Holder of any Note for the enforcement of the payment of the principal of or premium, if
any, or interest on any Note on or after the stated maturity expressed in such Note (or, in the case of exercise of a Repurchase
Right, on or after the Repurchase Date) or for the enforcement of the right to convert any Note in accordance with Article XIV.
SECTION 5.15 WAIVER OF STAY OR EXTENSION LAWS.
Each of the Issuer and the Company, jointly
and severally, covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim to take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter
in force, which may affect the covenants or the performance of this Indenture; and the Issuer and the Company (to the extent that
they may lawfully do so) hereby expressly waive all benefit or advantage of any such law and covenants that they will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and
is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or
her own affairs.
(b) Except during the continuance of an Event
of Default:
(i) the Trustee need perform
only those duties that are specifically set forth in this Indenture and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith,
willful misconduct or negligence on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to
the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts
stated therein).
(c) The Trustee may not be relieved from
liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(i) this subsection shall not
be construed to limit the effect of subsection (b) of this Section 6.1;
(ii) the Trustee shall not be
liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(iii) the Trustee shall not be
liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant
to Section 5.5.
(d) Every provision of this Indenture that
in any way relates to the Trustee in any of its roles hereunder is subject to the provisions of this Section 6.1.
(e) The Trustee shall not be liable for interest
on any money received by it except as the Trustee may agree in writing with the Issuer. Money held in trust by the Trustee need
not be segregated from other funds except to the extent required by law.
SECTION 6.2 RIGHTS OF TRUSTEE.
(a) Subject to Section 6.1, the Trustee may
conclusively rely and shall be protected in acting or refraining from acting upon any document believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document;
if, however, the Trustee shall determine to make such further inquiry or investigation, it shall be entitled during normal business
hours to examine the relevant books, records and premises of the Issuer, personally or by agent or attorney upon reasonable prior
notice and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(b) Before the Trustee acts or refrains from
acting, it may require an Officers’ Certificate of the Issuer and/or an Opinion of Counsel from the Issuer or from the Company.
The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate
of the Issuer or Opinion of Counsel from the Issuer or from the Company.
(c) Any request or direction of the Issuer
mentioned herein shall be sufficiently evidenced by an Order of the Issuer and any resolution of the Board of Directors of the
Issuer shall be sufficiently evidenced by a Board Resolution of the Issuer.
(d) The Trustee may consult with counsel
of its selection and the advice of such counsel or any Opinion of Counsel of the Issuer shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(e) The Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or indirectly or by or through agents or attorneys and shall
not be responsible for the misconduct or negligence of any agent or attorney appointed with due care.
(f) The Trustee shall not be liable for any
action it takes or omits to take in good faith which it believes to be authorized or within its discretion, rights or powers conferred
upon it by this Indenture.
(g) Except with respect to Section 6.1, the
Trustee shall have no duty to inquire as to the performance of the Issuer with respect to the covenants contained in Article X
hereof. In addition, the Trustee shall not be deemed to have knowledge of an Event of Default except (i) any Default or Event of
Default occurring pursuant to Sections 5.1(a) and 5.1(b) or (ii) any Default or Event of Default of which a Responsible Officer
of the Trustee shall (x) have received written notification of any event which is in fact such a default at its Corporate Trust
Office and such notice references the Notes and this Indenture or (y) obtained actual knowledge. Delivery of reports, information
and documents to the Trustee under Article X (other than Sections 10.4 and 10.7) is for informational purposes only and the Trustee’s
receipt of the foregoing shall not constitute constructive notice of any information contained therein or determinable from information
contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled
to rely exclusively on Officers’ Certificates of the Issuer).
(h) The Trustee shall be under no obligation
to exercise any of the rights or powers vested by this Indenture at the request or direction of any of the Holders pursuant to
this Indenture unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to the Trustee
against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
(i) The rights, privileges, protections,
immunities and benefits given to the Trustee, including without limitation, its right to be indemnified, are extended to, and shall
be enforceable by, the Trustee in each of its capacities hereunder, and its directors, officers, employees and each agent, custodian
and other Person employed to act hereunder.
(j) The Trustee may request that the Issuer
deliver an Officers’ Certificate of the Issuer setting forth the names of individuals and/or titles of officers authorized
at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person
authorized to sign an Officers’ Certificate of the Issuer, including any person specified as so authorized in any such certificate
previously delivered and not superseded.
(k) No provision of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties
hereunder or in the exercise of any of its rights or powers.
(l) No permissive power, right or remedy
conferred upon the Trustee hereunder shall be construed to impose a duty to exercise such power, right or remedy.
(m) In no event shall the Trustee be responsible
or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of
profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form
of action.
SECTION 6.3 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity
may become the owner or pledgee of Notes and may otherwise deal with the Issuer or any of its Affiliates with the same rights it
would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee, however, must comply with Sections
6.10 and 6.11.
SECTION 6.4 TRUSTEE’S DISCLAIMER.
The Trustee makes no representation as to the
validity, priority or adequacy of this Indenture or the Notes; it shall not be accountable for the Issuer’s or the Company’s
use of the proceeds from the Notes; and it shall not be responsible for any statement in the Notes other than its certificate of
authentication.
SECTION 6.5 NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and
is continuing as to which the Trustee has received notice pursuant to the provisions of this Indenture, the Trustee shall mail
to each Holder a notice of the Default or Event of Default within 90 days after it occurs unless such Default or
Event of Default has been cured or waived. Except in the case of
a Default or Event of Default in payment of any amounts due with respect to any Note, the Trustee may withhold the notice if and
so long as it in good faith determines that withholding the notice is in the best interests of Holders.
SECTION 6.6 REPORTS BY TRUSTEE TO HOLDERS.
(a) Within 60 days after each June 15 beginning
with June 15, 2012, the Trustee shall mail to each Holder if required by TIA Section 313(a) a brief report dated as of such June
15 that complies with TIA Section 313(c). In such event, the Trustee also shall comply with TIA Section 313(b) and Section 313(d).
(b) A copy of each report at the time of
its mailing to Holders shall be mailed to the Issuer and filed by the Trustee with the SEC and each stock exchange, if any, on
which the Notes are listed. The Issuer shall promptly notify the Trustee when the Notes are listed or delisted on any stock exchange.
SECTION 6.7 COMPENSATION AND INDEMNITY.
(a) The Issuer and the Company shall pay
to the Trustee from time to time such compensation for its services as shall be agreed upon in writing. The Trustee’s compensation
shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee upon request
for all reasonable out-of-pocket expenses incurred by it. Such expenses shall include the reasonable compensation and out-of-pocket
expenses of the Trustee’s agents and counsel.
(b) The Issuer and the Company shall, jointly
and severally, indemnify the Trustee against any and all loss, liability, damage, claim or expense (including the reasonable fees
and expenses of counsel and taxes other than those based upon the income of the Trustee) incurred by it in connection with the
acceptance or administration of this trust and the performance of its duties hereunder, including the reasonable costs and expenses
of defending itself against any claim (whether asserted by the Issuer, the Company, any Holder or any other Person) or liability
in connection with the exercise or performance of any of its powers and duties hereunder. The Issuer and the Company need not pay
for any settlement made without its consent, which consent shall not be unreasonably withheld. The Trustee shall notify the Issuer
promptly of any claim of which a Responsible Officer has actual knowledge or has received written notice and for which it may seek
indemnification. The Issuer and the Company need not reimburse any expense or indemnify against any loss or liability incurred
by the Trustee through the Trustee’s negligence or willful misconduct.
(c) To secure the Issuer’s and the
Company’s payment obligations in this Section 6.7, the Trustee shall have a lien prior to the Notes on all money or property
held or collected by the Trustee, except that held in trust to pay amounts due on particular Notes.
(d) The indemnity obligations of the Issuer
and the Company with respect to the Trustee provided for in this Section 6.7 shall survive any resignation or removal of the Trustee.
(e) When the Trustee incurs expenses or renders
services after an Event of Default specified in Section 5.1(e) or (f) occurs, the expenses and the compensation for the services
are intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 6.8 REPLACEMENT OF TRUSTEE.
(a) A resignation or removal of the Trustee
and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment
as provided in this Section 6.8.
(b) The Trustee may resign by so notifying
the Issuer in writing 30 Business Days prior to such resignation. The Holders of a majority in aggregate principal amount of the
Notes then outstanding may remove the Trustee by so notifying the Trustee and the Issuer in writing and may appoint a successor
Trustee with the Issuer’s consent. The Issuer may remove the Trustee if:
(i) the Trustee fails to comply
with Section 6.10;
(ii) the Trustee is adjudged
a bankrupt or an insolvent;
(iii) a receiver or other public
officer takes charge of the Trustee or its property; or
(iv) the Trustee becomes incapable
of acting.
(c) If the Trustee resigns or is removed
or if a vacancy exists in the office of Trustee for any reason, the Issuer shall promptly appoint a successor Trustee.
(d) If a successor Trustee does not take
office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee (at the Issuer’s and the Company’s
expense), the Issuer or the Holders of at least 10% in aggregate principal amount of the outstanding Notes may petition any court
of competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section
6.10, any Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
(f) A successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture.
The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall, upon payment of any amount
owed to the retiring Trustee hereunder, promptly transfer all property held by it as Trustee to the successor Trustee, subject
to the lien provided for in Section 6.7.
SECTION 6.9 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or
converts into, or transfers by sale or otherwise all or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor Trustee, if such successor corporation is otherwise eligible
hereunder.
SECTION 6.10 ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder
that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that
is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or
state authorities and that has a combined capital and surplus (on a consolidated basis) of at least $100 million as set forth in
its most recent published annual report of condition. The Trustee shall comply with TIA Section 310(b).
SECTION 6.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER AND
THE COMPANY.
The Trustee shall comply with TIA Section 311(a),
excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to
TIA Section 311(a) to the extent indicated.
ARTICLE VII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 7.1 ISSUER OR COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
The Issuer and the Company shall not consolidate
with, merge with or into, or sell, convey, transfer, lease or otherwise dispose of all or substantially all of their property and
assets (in one transaction or a series of related transactions) to any Person unless:
(1) either (A) the Issuer or the
Company shall be the resulting, surviving or transferee Person (the “Successor Company”), or (B) the Successor Company
(if other than the Issuer or the Company, as the case may be) (i) shall be a corporation organized and existing under the laws
of the United States of America or any state thereof or the District of Columbia or under the laws of Canada or any province thereof,
and (ii) shall (together with its ultimate parent company, if applicable) expressly assume, by a supplemental indenture, executed
and delivered to the Trustee, in form satisfactory to the Trustee, all of the Issuer’s and, if the Successor Company that
succeeds to the Issuer assumes only the obligations under the Notes but not under the Note Guarantee, the Company’s obligations
for the due and punctual payment of the principal of (and premium, if any) and interest on all Notes and the performance and observance
of every covenant of this Indenture on the part of the Issuer and the Company to be performed or observed and shall have provided
for conversion rights in accordance with Section 14.11 hereof;
(2) immediately after giving effect
to such transaction, no Default or Event of Default shall have occurred and be continuing; and
(3) the Issuer and the Company
shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental
indenture comply with this Article and that all conditions precedent provided for herein relating to such transaction have been
complied with.
SECTION 7.2 SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation of the Issuer or the
Company with or merger of the Issuer or the Company with or into any other corporation or any conveyance, transfer or lease of
all or substantially all of the properties and assets of the Issuer or the Company to any Person in accordance with Section 7.1,
the successor Person formed by such consolidation or into which the Issuer or the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer or the
Company under this Indenture with the same effect as if such successor Person had been named as the Issuer or the Company, as the
case may be, herein, and in the event of any such conveyance or transfer, the Issuer or the Company (which term shall for this
purpose mean the Person named as the “Issuer” or the “Company,” as the case may be, in the first paragraph
of this Indenture or any successor Person which shall theretofore become such in the manner described in Section 7.1), except in
the case of a lease to another Person, shall be discharged of all obligations and covenants under this Indenture and the Notes.
ARTICLE VIII
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 8.1 WITHOUT CONSENT OF HOLDERS OF NOTES.
Without the consent of any Holders of Notes,
the Issuer and the Company, when authorized by Board Resolutions of their respective Boards of Directors, and the Trustee, at any
time and from time to time, may amend this Indenture and the Notes to:
(a) add to the covenants of the Issuer and
the Company for the benefit of the Holders of Notes;
(b) surrender any right or power herein conferred
upon the Issuer or the Company;
(c) make provision with respect to the conversion
rights of Holders of Notes pursuant to Section 14.11 hereof;
(d) provide for the assumption of the Issuer’s
and the Company’s obligations to the Holders of Notes in the case of a merger, consolidation, conveyance, transfer or lease
pursuant to Article VII hereof;
(e) reduce
the
one
or both
Conversion
Price
Prices
;
provided, that such reduction in
the
one or both
Conversion
Price
Prices
shall not adversely
affect the interest of the Holders;
(f) comply with the requirements of the SEC
in order to effect or maintain the qualification of this Indenture under the TIA;
(g) cure any ambiguity, to correct or supplement
any provision herein which may be inconsistent with any other provision herein or which is otherwise defective, or to make any
other provisions with respect to matters or questions arising under this Indenture which the Issuer, the Company and the Trustee
may deem necessary or desirable and which shall not be inconsistent with the provisions of this Indenture, provided, that such
action pursuant to this clause (h) does not, in the good faith opinion of the Board of Directors of the Issuer, adversely affect
the interests of the Holders in any material respect;
(h) add or modify any other provisions with
respect to matters or questions arising under this Indenture which the Issuer, the Company and the Trustee may deem necessary or
desirable and which shall not be inconsistent with the provisions of this Indenture, provided, that such action pursuant to this
clause (i) does not adversely affect the interests of the Holders; or
(i) comply with the procedures of the Depositary.
SECTION 8.2 WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 8.2,
this Indenture or the Notes may be amended, modified or supplemented, and noncompliance in any particular instance with any provision
of this Indenture or the Notes may be waived, in each case (i) with the written consent of the Holders of at least a majority in
aggregate principal amount of the outstanding Notes or (ii) by the adoption of a resolution, at a meeting of Holders of the outstanding
Notes at which a quorum (as prescribed in Section 9.4) is present, by the Holders of a majority in aggregate principal amount of
the outstanding Notes represented at such meeting.
Without the written consent or the affirmative
vote of each Holder so affected, an amendment, modification or waiver under this Section 8.2 may not:
(a) change the maturity of the principal
of, or any installment of interest on, any Note;
(b) reduce the principal amount of, or premium,
if any, or interest (including any payment of liquidated damages, if any) on any Note;
(c) change the currency of payment of principal
of, premium, if any, or interest on any Note;
(d) impair the right of any Holder to institute
suit for the enforcement of any payment in or with respect to any Note;
(e) modify the obligations of the Issuer
or the Company to maintain an office or agency in The City of New York pursuant to Section 10.2 hereof;
(f) amend the Designated Event Repurchase
Right after the occurrence of a Change in Control or the right to convert any Note in a manner adverse to the Holders; provided,
however, that the execution of a supplemental indenture solely to permit an Acquiror to assume the Issuer’s or the Company’s
obligations under the Notes shall not be deemed to be adverse to the Holders;
(g) reduce the percentage of aggregate principal
amount of Notes outstanding necessary to waive a default or amend or modify this Indenture, except to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of the Holder of each outstanding Note affected thereby;
or
(h) reduce the requirements of Section 9.4
hereof for quorum or voting, or reduce the percentage of aggregate principal amount of the outstanding Notes the consent of whose
Holders is required for any such supplemental indenture or the consent of whose Holders is required for any waiver provided for
in this Indenture.
It shall not be necessary for any Act of Holders
of Notes under this Section 8.2 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient
if such Act of Holders shall approve the substance thereof.
SECTION 8.3 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to this Indenture or the Notes
shall be set forth in a supplemental indenture that complies with the TIA as then in effect.
SECTION 8.4 REVOCATION OF CONSENTS AND EFFECT OF CONSENTS OR VOTES.
Until an amendment, supplement or waiver becomes
effective, a written consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder of a Note or portion
of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any
Note; provided, however, that unless a record date shall have been established, any such Holder or subsequent Holder may revoke
the consent as to its Note or portion of a Note if the Trustee receives written notice of revocation before the date the amendment,
supplement or waiver becomes effective.
An amendment, supplement or waiver becomes effective
on receipt by the Trustee of written consents from or affirmative votes by, as the case may be, the Holders of the requisite percentage
of aggregate principal amount of the outstanding Notes, and thereafter shall bind every Holder of Notes; provided, however, if
the amendment, supplement or waiver makes a change described in any of the clauses (a) through (i) of Section 8.2 hereof, the amendment,
supplement or waiver shall bind only each Holder of a Note which has consented to it or voted for it, as the case may be, and every
subsequent Holder of a Note or portion of a Note that evidences the same indebtedness as the Note of the consenting or affirmatively
voting, as the case may be, Holder.
The Issuer may, but shall not be obligated to,
fix a special record date (a “Special Record Date”) for the purpose of determining the Holders entitled to consent
to any amendment, supplement or waiver, which Special Record Date shall be not more than 30 days prior to the first solicitation
of such consent. If a Special Record Date is fixed, then notwithstanding the proviso in the first paragraph of this Section 8.4,
those Persons who were Holders at such Special Record Date (or their duly designated proxies), and only those Persons, shall be
entitled to revoke any consent previously given, whether or not such Persons continue to be Holders after such Special Record Date.
No such consent shall be valid or effective for more than 90 days after such Special Record Date unless consents from Holders of
the requisite percentage in principal amount of outstanding Notes required hereunder for the effectiveness of such consents shall
have also been given and not revoked within such 90 day period.
SECTION 8.5 NOTATION ON OR EXCHANGE OF NOTES.
If an amendment, supplement or waiver changes
the terms of a Note:
(a) the Trustee may require the Holder of
a Note to deliver such Notes to the Trustee, the Trustee may place an appropriate notation on the Note about the changed terms
and return it to the Holder and the Trustee may place an appropriate notation on any Note thereafter authenticated; or
(b) if the Issuer or the Trustee so determines,
the Issuer in exchange for the Note shall issue and the Trustee shall authenticate a new Note that reflects the changed terms.
Failure to make the appropriate notation or
issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
SECTION 8.6 TRUSTEE TO SIGN AMENDMENT, ETC.
The Trustee shall sign any amendment authorized
pursuant to this Article VIII if the amendment does not adversely affect the rights, duties, liabilities or immunities of the Trustee.
If the amendment does adversely affect the rights, duties, liabilities or immunities of the Trustee, the Trustee may but need not
sign it. In signing or refusing to sign such amendment, the Trustee shall be given and shall be fully protected in relying upon
an Officers’ Certificate and an Opinion of Counsel stating that such amendment is authorized or permitted by this Indenture.
ARTICLE IX
MEETING OF HOLDERS OF NOTES
SECTION 9.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Notes may be called
at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Notes.
SECTION 9.2 CALL NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting
of Holders of Notes for any purpose specified in Section 9.1 hereof, to be held at such time and at such place as the Trustee may
determine. Notice of every meeting of Holders of Notes, setting forth the time and the place of such meeting and in general terms
the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 16.2 hereof, not less than 21
nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Issuer, pursuant
to an Issuer Board Resolution, or the Holders of at least 10% in principal amount of the outstanding Notes shall have requested
the Trustee to call a meeting of the Holders of Notes for any purpose specified in Section 9.1 hereof, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 21 days after receipt of such request or shall not thereafter proceed to cause the meeting
to be held as provided herein, then the Issuer or the Holders of Notes in the amount specified, as the case may be, may determine
the time and the place for such meeting and may call such meeting for such purposes by giving notice thereof as provided in paragraph
(a) of this Section.
SECTION 9.3 PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders
of Notes, a Person shall be (a) a Holder of one or more outstanding Notes, or (b) a Person appointed by an instrument in writing
as proxy for a Holder or Holders of one or more outstanding Notes by such Holder or Holders. The only Persons who shall be entitled
to be present or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the Issuer and its counsel.
SECTION 9.4 QUORUM; ACTION.
The Persons entitled to vote a majority in principal
amount of the outstanding Notes shall constitute a quorum. In the absence of a quorum within 30 minutes of the time appointed for
any such meeting, the meeting shall, if convened at the request of Holders of Notes, be dissolved. In any other case, the meeting
may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice
of the reconvening of any adjourned meeting shall be given as provided in Section 9.2(a) hereof, except that such notice need be
given only once and not less than five days prior to the date on which the meeting is scheduled to be reconvened.
At a meeting or an adjourned meeting duly reconvened
and at which a quorum is present as aforesaid, any resolution and all matters (except as limited by the proviso to Section 8.2
hereof) shall be effectively passed and decided if passed or decided by the Persons entitled to vote not less than a majority in
principal amount of outstanding Notes represented and voting at such meeting.
Any resolution passed or decisions taken at
any meeting of Holders of Notes duly held in accordance with this Section 9.4 shall be binding on all the Holders of Notes, whether
or not present or represented at the meeting.
SECTION 9.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS.
(a) Notwithstanding any other provisions
of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Notes
in regard to proof of the holding of Notes and of the appointment of proxies and in regard to the appointment and duties of inspectors
of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Notes shall be proved in the manner specified in Section 9.3 hereof and the appointment of any proxy shall be proved
in the manner specified in Section 9.3 hereof. Such regulations may provide that written instruments appointing proxies, regular
on their face, may be presumed valid and genuine without the proof specified in Section 9.3 hereof or other proof.
(b) The Trustee shall, by an instrument in
writing, appoint a temporary chairman (which may be the Trustee) of the meeting, unless the meeting shall have been called by the
Issuer or by Holders of Notes as provided in Section 9.2(b) hereof, in which case the Issuer or the Holders of Notes calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary
of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the outstanding Notes
represented at the meeting.
(c) At any meeting each Holder of a Note
or proxy shall be entitled to one vote for each $1,000 principal amount of Notes held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect of any Note challenged as not outstanding and ruled by the chairman
of the meeting to be not outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Note or
proxy.
(d) Any meeting of Holders of Notes duly
called pursuant to Section 9.2 hereof at which a quorum (as prescribed in Section 9.4) is present may be adjourned from time to
time by Persons entitled to vote a majority in principal amount of the outstanding Notes represented at the meeting, and the meeting
may be held as so adjourned without further notice.
SECTION 9.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any
meeting of Holders of Notes shall be by written ballots on which shall be subscribed the signatures of the Holders of Notes or
of their representatives by proxy and the principal amounts and serial numbers of the outstanding Notes held or represented by
them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate
of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of
each meeting of Holders of Notes shall be prepared by the secretary
of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was given as provided in Section 9.2 hereof and, if applicable, Section 9.4 hereof. Each copy shall
be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered
to the Company and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
ARTICLE X
COVENANTS
SECTION 10.1 PAYMENT OF NOTES.
(a) The Issuer shall pay all amounts due
with respect to the Notes on the dates and in the manner provided in this Indenture and the Notes. All such amounts shall be considered
paid on the date due if the Paying Agent holds (or, if the Issuer is acting as Paying Agent, if the Issuer has segregated and holds
in trust in accordance with Section 2.4) on that date money sufficient to pay the amount then due with respect to the Notes.
(b) The Issuer shall pay interest on any
overdue amount (including, to the extent permitted by applicable law, overdue interest) at the rate borne by the Notes.
SECTION 10.2 MAINTENANCE OF OFFICE OR AGENCY.
(a) The Issuer will maintain in the Borough
of Manhattan, the City of New York, an office or agency (which may be an office of the Trustee or an affiliate of the Trustee,
Registrar or co-Registrar) where Notes may be surrendered for registration of transfer or exchange or conversion and where notices
and demands to or upon the Issuer in respect of the Notes and this Indenture may be served. The Issuer will give prompt written
notice to the Trustee of the location, and any change in the location, of such office or agency (other than a change in the location
of the office of the Trustee). If at any time the Issuer shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
(b) The Issuer may also from time to time
designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and
may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner
relieve the Issuer of its obligation to maintain an office or agency in the Borough of Manhattan, the City of New York for such
purposes. The Issuer will give prompt written notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
SECTION 10.3 REPORTS.
(a) The Issuer will comply with the provisions
of TIA Section 314(a).
(b) The Issuer and the Company (at its own
expense) will deliver to the Trustee within 15 days after the filing of the same with the SEC, copies of the quarterly and annual
reports and of the information, documents and other financial reports, if any, which the Issuer or the Company may be required
to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act or which the Issuer or the Company furnishes to its shareholders
or stockholders. In the event the Issuer or the Company, as the case may be, is at any time no longer subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Issuer or the Company, as the case may be, shall continue to provide
the Trustee with such quarterly and annual reports and other financial reports, if any, which the Issuer or the Company, as the
case may be, furnishes to its shareholders or stockholders. Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including the Issuer’s and the Company’s compliance
with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on the Officers’ Certificate
of the Issuer and the Company).
SECTION 10.4 COMPLIANCE CERTIFICATE.
The Issuer and the Company shall deliver to
the Trustee within 120 days after the end of each fiscal year (beginning with the fiscal year ending on March 31, 2012) of the
Issuer an Officers’ Certificate of the Issuer and the Company stating whether or not the signers know of any Default or Event
of Default by the Issuer or the Company in performing any of its obligations under this Indenture or the Notes. If they do know
of any such Default or Event of Default, the Officers’ Certificate shall describe the Default or Event of Default and its
status.
SECTION 10.5 STAY, EXTENSION AND USURY LAWS.
The Issuer covenants (to the extent that it
may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants or
the performance of this Indenture; and the Issuer (in each case, to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no
such law has been enacted.
SECTION 10.6 CORPORATE EXISTENCE.
Subject to Article VII, the Issuer and the Company
will do or cause to be done all things necessary to preserve and keep in full force and effect their respective corporate existence
and the corporate existence of each of their respective subsidiaries in accordance with the respective organizational documents
of each subsidiary and the rights (charter and statutory), licenses and franchises of the Issuer and the Company, as the case may
be, and their respective subsidiaries; provided, however, that the Issuer and the Company shall not be required to preserve any
such right, license or franchise, or the corporate existence of any subsidiary, if in the judgment of their respective Board of
Directors (i) such preservation or existence is not material to the conduct of business of the Issuer and the Company, respectively
and (ii) the loss of such right, license or
franchise or the dissolution of such subsidiary does not have a
material adverse impact on the Holders.
SECTION 10.7 NOTICE OF DEFAULT.
In the event that any Default or Event of Default
shall occur, the Issuer will give prompt written notice of such Default or Event of Default to the Trustee.
ARTICLE XI
MAKE WHOLE PREMIUM
SECTION 11.1 MAKE WHOLE PREMIUM.
(a) Upon the occurrence of a Change in Control,
unless the Acquiror in such Change in Control is a Public Entity or is a direct or indirect subsidiary of a Public Entity and the
Issuer indicates in the notice required to be sent to Holders pursuant to Section 11.2(c) hereof that it elects to provide for
the Notes to be convertible into common shares of the Public Entity, the Issuer will pay, on the Designated Event Repurchase Date,
the Make Whole Premium, if any, to Holders that convert their Notes pursuant to Section 14.1 hereof at any time after the date
of the Issuer Notice required pursuant to Section 13.4 hereof but on or before the close of business on the Business Day immediately
preceding the Designated Event Repurchase Date.
(b) The Make Whole Premium shall be equal
to an additional number of Common Shares calculated in accordance with Section 11.1(c) hereof. The Make Whole Premium will be in
addition to, and not in substitution for, any cash, securities, or other assets otherwise due to Holders of Notes upon conversion
or repurchase.
(c) The “Make Whole Premium”
shall be equal to
(x)
the principal amount of the Notes to be converted divided by $1,000
and multiplied by the applicable number of
Common
Class
A
Shares determined pursuant to the table below (the “Make Whole Table”)
plus
(y) the
principal amount of the Notes
to be converted
divided by $1,000 and multiplied by the applicable number of Class B Shares determined pursuant to the Make Whole Table, in each
case
based on the
applicable
Share Price and the
applicable
Effective Date:
MAKE WHOLE PREMIUM UPON CHANGE IN CONTROL
(NUMBER OF ADDITIONAL COMMON SHARES)
EFFECTIVE DATE
Class A Shares
|
|
SHARE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SHARE
PRICE ON
EFFECTIVE
DATE
|
|
1/11/2012
|
|
1/11/2013
|
|
1/11/2014
|
|
1/11/2015
|
|
1/11/2016
|
|
1/11/2017
|
|
|
|
8.81
EFFECTIVE
|
|
18.2643
|
|
18.2643
|
|
18.2643
|
|
18.2643
|
|
18.2643
|
|
18.2643
|
|
|
|
DATE
|
|
1/11/2012
|
|
1/11/2013
|
|
1/11/2014
|
|
1/11/2015
|
|
1/11/2016
|
|
1/11/2017
|
|
|
|
10.00
|
|
14.2280
|
|
13.0717
|
|
11.7040
|
|
10.0730
|
|
8.0373
|
|
4.7619
|
|
|
|
11.00
8.57
|
|
11.8419
8.8799
|
|
10.6336
8.8799
|
|
9.1560
8.8799
|
|
7.3040
8.8799
|
|
4.7694
8.8799
|
|
0.0000
8.8799
|
|
|
|
12.00
9.72
|
|
10.0507
6.9175
|
|
8.8624
6.3553
|
|
7.3890
5.6904
|
|
5.5168
4.8974
|
|
2.9355
3.9077
|
|
0.0000
2.3152
|
|
|
|
13.00
10.70
|
|
8.6682
5.7574
|
|
7.5382
5.1700
|
|
6.1299
4.4516
|
|
4.3422
3.5511
|
|
1.9352
2.3188
|
|
0.0000
0
|
|
|
|
14.00
11.67
|
|
7.5740
4.8866
|
|
6.5207
4.3088
|
|
5.2063
3.5925
|
|
3.5498
2.6822
|
|
1.3938
1.4272
|
|
0.0000
0
|
|
|
|
15.00
12.64
|
|
6.6884
4.2144
|
|
5.7186
3.6650
|
|
4.5086
2.9803
|
|
2.9973
2.1111
|
|
1.0944
0.9409
|
|
0.0000
0
|
|
|
|
17.50
13.61
|
|
5.0714
3.6824
|
|
4.3038
3.1703
|
|
3.3419
2.5313
|
|
2.1655
1.7259
|
|
0.7631
0.6777
|
|
0.0000
0
|
|
|
|
20.00
14.59
|
|
3.9641
3.2518
|
|
3.3618
2.7803
|
|
2.6105
2.1920
|
|
1.6941
1.4573
|
|
0.6096
0.5321
|
|
0.0000
0
|
|
|
|
25.00
17.02
|
|
2.5502
2.4657
|
|
2.1725
2.0925
|
|
1.7045
1.6248
|
|
1.1291
1.0528
|
|
0.4190
0.3710
|
|
0.0000
0
|
|
|
|
30.00
19.45
|
|
1.6819
1.9273
|
|
1.4433
1.6345
|
|
1.1454
1.2692
|
|
0.7726
0.8237
|
|
0.2935
0.2964
|
|
0.0000
0
|
|
|
|
35.00
24.31
|
|
1.1069
1.2399
|
|
0.9547
1.0562
|
|
0.7637
0.8287
|
|
0.5225
0.5490
|
|
0.2039
0.2037
|
|
0.0000
0
|
|
|
|
40.00
29.17
|
|
0.7128
0.8177
|
|
0.6157
0.7017
|
|
0.4938
0.5569
|
|
0.3404
0.3756
|
|
0.1367
0.1427
|
|
0.0000
0
|
|
|
|
50.00
34.03
|
|
0.2517
0.5382
|
|
0.2139
0.4642
|
|
0.1672
0.3713
|
|
0.1111
0.2540
|
|
0.0426
0.0991
|
|
0.0000
0
|
|
|
|
38.90
|
|
0.3466
|
|
0.2993
|
|
0.2401
|
|
0.1655
|
|
0.0665
|
|
0
|
|
|
|
48.62
|
|
0.1224
|
|
0.1040
|
|
0.0813
|
|
0.0540
|
|
0.0207
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Class B Shares
|
|
SHARE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PRICE ON
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EFFECTIVE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DATE
|
|
1/11/2012
|
|
1/11/2013
|
|
1/11/2014
|
|
1/11/2015
|
|
1/11/2016
|
|
1/11/2017
|
|
|
|
|
|
|
|
|
8.57
|
|
8.8799
|
|
8.8799
|
|
8.8799
|
|
8.8799
|
|
8.8799
|
|
8.8799
|
|
|
|
9.72
|
|
6.9175
|
|
6.3553
|
|
5.6904
|
|
4.8974
|
|
3.9077
|
|
2.3152
|
|
|
|
10.70
|
|
5.7574
|
|
5.1700
|
|
4.4516
|
|
3.5511
|
|
2.3188
|
|
0
|
|
|
|
11.67
|
|
4.8866
|
|
4.3088
|
|
3.5925
|
|
2.6822
|
|
1.4272
|
|
0
|
|
|
|
12.64
|
|
4.2144
|
|
3.6650
|
|
2.9803
|
|
2.1111
|
|
0.9409
|
|
0
|
|
|
|
13.61
|
|
3.6824
|
|
3.1703
|
|
2.5313
|
|
1.7259
|
|
0.6777
|
|
0
|
|
|
|
14.59
|
|
3.2518
|
|
2.7803
|
|
2.1920
|
|
1.4573
|
|
0.5321
|
|
0
|
|
|
|
17.02
|
|
2.4657
|
|
2.0925
|
|
1.6248
|
|
1.0528
|
|
0.3710
|
|
0
|
|
|
|
19.45
|
|
1.9273
|
|
1.6345
|
|
1.2692
|
|
0.8237
|
|
0.2964
|
|
0
|
|
|
|
24.31
|
|
1.2399
|
|
1.0562
|
|
0.8287
|
|
0.5490
|
|
0.2037
|
|
0
|
|
|
|
29.17
|
|
0.8177
|
|
0.7017
|
|
0.5569
|
|
0.3756
|
|
0.1427
|
|
0
|
|
|
|
34.03
|
|
0.5382
|
|
0.4642
|
|
0.3713
|
|
0.2540
|
|
0.0991
|
|
0
|
|
|
|
38.90
|
|
0.3466
|
|
0.2993
|
|
0.2401
|
|
0.1655
|
|
0.0665
|
|
0
|
|
|
|
48.62
|
|
0.1224
|
|
0.1040
|
|
0.0813
|
|
0.0540
|
|
0.0207
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(i) If the Share Price
for
the applicable Class
is between two share price amounts on the Make Whole Table or the Effective Date is between two
dates on the Make Whole Table, the Make Whole Premium will be determined by straight-line interpolation between Make Whole Premium
amounts set forth for the higher and lower share price amounts
of such Class
and the two
dates, as applicable, based on a 365-day year (or a 366-day year if the Effective Date occurs in a leap year).
(ii) If the Share Price is in
excess of $
50.00
48.62 for the applicable Class
(subject to adjustment as described in Section 11.3, the “Share Price Cap”), the Make Whole Premium
of
such Class
shall be equal to zero Common Shares.
(iii) If the Share Price is less
than $
8.81
8.57 for that Class
(subject
to adjustment as described in Section 11.3, the “Share Price Threshold”), the Make Whole Premium
of
such Class
shall be equal to zero Common Shares.
(iv) In no event shall the
Class
A
Shares issuable upon conversion per $1,000 principal amount of Notes converted pursuant to Article XIV hereof be in
excess of
113.50239 Common Shares (
57.85153 Class
A Shares, or the Class B Shares issuable upon conversion per $1,000 principal amount of Notes converted pursuant to Article XIV
hereof be in excess of 57.85153 Class B Shares (in each case,
subject to adjustment as described in Section 11.3, the
“Conversion Shares Cap”).
(v) For purposes of this Section
11.1(c), the following terms shall have the respective meanings indicated:
(1) “Effective Date”
means the date that a Change in Control becomes effective.
(2) “Share Price” means
the price paid per
Class A
Share
of Common
or
Class B
Share
, as applicable,
in the transaction constituting the Change in
Control, determined as follows:
(A) if holders of Common Shares
of
the applicable Class
receive only cash in the transaction constituting the Change in Control, the Share Price shall
equal the cash amount paid per
share of
Common Share
of such Class
; and
(B) in all other cases, the Share
Price
of the applicable Class
shall equal the average Closing Price of a Common Share
of
such Class
over the five Trading Day period ending on the Trading Day immediately preceding the Effective Date.
(d) The Issuer shall pay the Make Whole Premium
in cash, Common Shares
of the applicable Class
, or a combination of cash and Common Shares
of the applicable Class(es)
pursuant to Section 14.14 hereof; provided, however, that any
payment of the Make Whole Premium in cash shall be valued at the Share Price calculated in accordance with Section 11.1(c) hereof.
(e) On or prior to the Designated Event Repurchase
Date, the Issuer shall deposit with the Paying Agent a number or an amount of Common Shares
of the
applicable Class(es)
, and cash, if any, sufficient to pay the Make Whole Premium with respect to all the Notes to be
repurchased on such date and all the Notes converted in connection with such Change in Control; provided that if such payment is
made on the Designated Event Repurchase Date, it must be received by the Paying Agent by 11:00 a.m., New York City time, on such
date.
SECTION 11.2 ISSUER’S OPTION TO PROVIDE FOR CONVERSION INTO
SHARES OF ACQUIROR IN LIEU OF MAKE WHOLE PREMIUM.
(a) If a Change in Control occurs that would
otherwise trigger the obligation of the Issuer to pay the Make Whole Premium pursuant to Section 11.1 hereof and the Acquiror is
a Public Entity or is a direct or indirect subsidiary of a Public Entity, the Issuer may elect to provide for the Notes to be convertible
into common shares of such Public Entity in lieu of paying the Make Whole Premium. The Issuer may elect to provide for the conversion
of the Notes into common shares of such Public Entity (and thus to be under no obligation to pay the Make Whole Premium) so long
as:
(i) the common shares of the
Public Entity into which the Notes will be convertible are, subject to notification of issuance, listed on the principal United
States securities exchange on which the issued and outstanding common shares of the Public Entity are listed or, if not so listed,
on the NASDAQ National Market;
(ii) the common shares of the
Public Entity are registered under the Exchange Act; and
(iii) the common shares of the
Public Entity into which the Notes will be convertible are registered under the Securities Act and any necessary qualification
or registration under applicable state securities laws have been made (subject to the availability of any exemption from such qualification
and registration requirements).
(b) If the conditions contained in clauses
(i) through (iii) of Section 11.2(a) are not satisfied on or prior to the effectiveness of the Change in Control, the Issuer shall
pay the Make Whole Premium in connection with the Change in Control to electing Holders as described under Article XIII and Section
14.1 hereof.
(c) The Issuer shall give to all Record Holders
and to the Trustee and the Paying Agent, in the manner provided in Section 16.2 hereof on or before the 10th day after the Issuer
has become aware of a Change in Control, a notice indicating Issuer’s intent to either pay the Make Whole Premium or to provide
for the Notes to be convertible into common shares of the Public Entity. Such notice shall be in the same form as required under
Section 13.4 hereof and shall include the amount and basis of calculation of the Make Whole Premium.
SECTION 11.3 ADJUSTMENTS RELATING TO MAKE WHOLE PREMIUM.
Each time that
the
a
Conversion Rate is adjusted by the Issuer pursuant to Section 14.4 hereof, (A) the
applicable
Share Price Threshold, the Share Price Cap and each of the share prices set forth in the left hand column of the
applicable
Make Whole Table shall be adjusted (rounded to the nearest cent) by multiplying each such amount by a fraction, the numerator of
which is the
applicable
Conversion Rate immediately prior to such adjustment and the denominator
of which is the
applicable
Conversion Rate as so adjusted, and (B) the
applicable
Conversion Shares Cap and each of the share amounts set forth in the body of the
applicable
Make Whole Table shall be adjusted (rounded to the nearest one-one hundredth of a share) in the same manner as the
applicable
Conversion Rate is adjusted pursuant to Section 14.4 hereof.
ARTICLE XII
[RESERVED]
ARTICLE XIII
REPURCHASE OF NOTES
SECTION 13.1 [RESERVED]
SECTION 13.2 REPURCHASE AT THE OPTION OF THE HOLDER UPON A DESIGNATED
EVENT.
(a) In the event that a Designated Event
shall occur at any time prior to the Maturity Date, then each Holder shall have the right (the “Designated Event Repurchase
Right”), at such Holder’s option, to require the Issuer to repurchase, and upon the exercise of such right the Issuer
shall repurchase, such Holder’s Notes, in whole or in part, of $1,000 or any integral multiple of $1,000 in excess thereof
or the entire principal amount of the Notes held by any Holder (provided that no single Note may be repurchased in part unless
the portion of the principal amount of such Note to be Outstanding after such repurchase is equal to $1,000 or integral multiples
of $1,000 in excess thereof), on the date specified by the Issuer (the “Designated Event Repurchase Date”) that is
not less than 20 nor more than 30 Business Days
after the date of the Issuer Notice (as defined in Section 13.4)
at a purchase price equal to 100% of the principal amount of the Notes to be repurchased plus accrued and unpaid interest, to,
but excluding, the Designated Event Repurchase Date (the “Designated Event Repurchase Price”); provided, however, that
installments of interest, if any, on Notes with an Interest Payment Date on or prior to the Designated Event Repurchase Date shall
be payable to the Holders of such Notes registered as such on the relevant Record Date according to their terms and the provisions
of Section 2.1 hereof. The Designated Event Repurchase Price to be paid upon a Designated Event shall be paid in cash.
(b) To exercise a Designated Event Repurchase
Right, a Holder shall deliver to the Issuer or its designated agent (i) prior to the close of business on the Designated Event
Repurchase Date specified in the Issuer Notice, written notice of the Holder’s exercise of such right, which notice shall
set forth the name of the Holder, the principal amount of the Notes to be repurchased (and, if any Note is to repurchased in part,
the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in which the
portion thereof to remain Outstanding after such repurchase is to be registered, subject to Section 2.16 hereof) and a statement
that an election to exercise the Designated Event Repurchase Right is being made thereby (the “Designated Event Repurchase
Notice”), and (ii) the Notes with respect to which the Designated Event Repurchase Right is being exercised duly endorsed
for transfer (or, if any Note is not certificated, the Designated Event Repurchase Notice must comply with Depositary procedures).
The Issuer shall pay or deposit funds with the Paying Agent in the amount of the Designated Event Repurchase Price for the Notes
to be repurchased on the Trading Day immediately following the Designated Event Repurchase Date.
(c) The Paying Agent shall promptly notify the
Issuer of the receipt by it of a Designated Event Repurchase Notice.
(d) Any repurchase by the Issuer contemplated
pursuant to the provisions of this Section 13.2 shall be consummated by the delivery from the Issuer to the Paying Agent of the
consideration to be received by the Holder on the Trading Day immediately following the Designated Event Repurchase Date.
SECTION 13.3 [RESERVED]
SECTION 13.4 NOTICE OF OPTIONAL REPURCHASE TO BE PROVIDED BY THE
ISSUER.
(a) On or before the 10th day after the Issuer
becomes aware of the occurrence of a Designated Event, the Issuer shall give to all Holders of Notes and to the Trustee, in the
manner provided in Section 16.2, notice (the “Issuer Notice”) of the occurrence of the Designated Event and of the
Designated Event Repurchase Right set forth herein arising as a result thereof.
(b) Each Issuer Notice shall state:
(i) the Designated Event Repurchase
Date,
(ii) the date by which the Designated
Event Repurchase Right must be exercised,
(iii) whether the Designated Event
is a Termination of Trading, Change in Management or a Change in Control,
(iv) the Designated Event Repurchase
Price,
(v) if the Designated Event is a Change
in Control and the Acquiror is a Public Entity or is a direct or indirect subsidiary of a Public Entity, whether the Issuer elects
to pay the Make Whole Premium, as provided in Section 11.2 hereof,
(vi) if the Designated Event is a
Change in Control and the Issuer must, or in the case of a Change in Control in which the Acquiror is a Public Entity or is a direct
or indirect subsidiary of a Public Entity, elects, to pay the Make Whole Premium, the proportion of the Make Whole Premium to be
paid in cash and Common Shares pursuant to Section 14.14 hereof,
(vii) a description of the procedure
that a Holder must follow to exercise a Designated Event Repurchase Right, and the place or places where such Notes are to be surrendered
for payment of the Designated Event Repurchase Price,
(viii) that on the Designated Event
Repurchase Date the Designated Event Repurchase Price will become due and payable upon each such Note designated by the Holder
to be repurchased, and that interest thereon will cease to accrue on and after such date,
(ix) the Conversion
Rate
Rates
then in effect and the place or places where such Notes may be surrendered for conversion, and
(x) the place or places that the Note
certificate with the election of Holder to require repurchase as specified in form of Global Note shall be delivered.
(c) No failure of the Issuer to give the foregoing
notices or defect therein shall limit any Holder’s right to exercise a repurchase right or affect the validity of the proceedings
for the repurchase of Notes.
(d) If any of the foregoing provisions or other
provisions of this Article XIII are inconsistent with applicable law, such law shall govern.
SECTION 13.5 NOTICE OF WITHDRAWAL.
A Holder may withdraw any Repurchase Notice by
delivering a written notice of withdrawal to the Paying Agent prior to the close of business on the Repurchase Date (“Withdrawal
Notice”). The Withdrawal Notice must state:
(a) the principal amount of the withdrawn Notes;
(b) if certificated Notes have been issued, the
certificate number of the withdrawn Notes (or, if the Notes are not certificated, the Withdrawal Notice must comply with appropriate
Depositary procedures); and
(c) the principal amount, if any, which remains
subject to the Repurchase Notice.
SECTION 13.6 PAYMENT OF THE REPURCHASE PRICE.
(a) Payment of the Repurchase Price for a Note
for which a Repurchase Notice has been delivered and not withdrawn is conditioned upon book-entry transfer or delivery of such
Note, together with necessary endorsements, to the Paying Agent at the Corporate Trust Office, at any time after delivery of the
Repurchase Notice. The Issuer shall pay or deposit funds with the Paying Agent in the amount of the Repurchase Price for the Note
on the Trading Day immediately following the Repurchase Date.
(b) If the Paying Agent holds money sufficient
to pay the Repurchase Price of the Notes on the Trading Day immediately following the Repurchase Date, then, on and after the Trading
Day immediately following the Repurchase Date:
(i) the Notes will cease to be outstanding;
(ii) interest will cease to accrue
in respect of any date from and after the Repurchase Date; and
(iii) all other rights of the Holder
will terminate, other than the right to receive the Repurchase Price upon delivery of the Notes.
(c) This will be the case whether or not book-entry
transfer to the Notes has been made or the Notes have been delivered to the Paying Agent. Installments of interest that mature
on or prior to the Repurchase Date shall be payable in cash to the Holders of such Notes registered as such at the close of business
on the relevant Regular Record Date.
ARTICLE XIV
CONVERSION OF NOTES
SECTION 14.1 CONVERSION RIGHT AND CONVERSION
PRICE
PRICES
.
(a) Subject to and upon compliance with the provisions
of this Article, at the option of the Holder thereof, any outstanding Note or any portion of the principal amount thereof which
is $1,000 or an integral multiple of $1,000 may be converted into duly authorized, fully paid and nonassessable Common Shares,
at the Conversion
Rate
Rates
, determined
as hereinafter provided, in effect at the time of conversion and subject to adjustment, as described below. Such conversion right
shall expire at the close of business on the Business Day immediately preceding the Maturity Date unless the Notes or a portion
thereof have been previously called for repurchase. A Note for which a Holder has delivered a Repurchase Notice pursuant to Article
XIII hereof may be surrendered for conversion only if such notice is withdrawn in accordance with Article XIII hereof.
(b) The rate at which Common Shares shall be delivered
upon conversion
(the “Conversion Rate”)
shall be
initially
, as of the 2016 Reclassification Date,
equal to
95.23809
Common
48.9716 Class A
Shares per $1,000 principal amount of Notes
(the “Class A Conversion Rate”) and 48.9716 Class B
Shares per $1,000 principal
amount of Notes (
the “Class B Conversion Rate”; each of the Class B Conversion Rate
and the Class A Conversion Rate, a “Conversion Rate”)
. The conversion price of the Notes
(the
shall
be, as of the 2016 Reclassification Date, equal to $10.21 per Class A Share (the “Class A Conversion Price”) and $10.21
per Class B Share (the “Class B Conversion Price”; each of the Class B Conversion Price and the Class A Conversion
Price, a
“Conversion Price”)
shall be initially equal to $10.50 per Common
Share
. The Conversion
Rate
Rates
and the Conversion
Price
Prices
shall be
adjusted in certain instances as provided in Section 14.4 hereof.
(c) In case a Note or portion thereof is called
for repurchase, such conversion right in respect of the Note or the portion so called, shall expire at the close of business on
the Business Day immediately preceding a Repurchase Date, unless the Issuer defaults in making the payment due upon repurchase.
In the case of a Change in Control for which the Holder exercises its Designated Event Repurchase Right with respect to a Note
or portion thereof, such conversion right in respect of the Note or portion thereof shall expire at the close of business on the
Business Day immediately preceding the Designated Event Repurchase Date.
(d) Notwithstanding anything contained in this
Article XIV, any conversion of the Notes held by a resident of Canada will be subject to the availability of a prospectus exemption
under applicable Canadian securities laws until such time as a final receipt has been issued for a Canadian prospectus qualifying
the distribution of the underlying Common Shares.
SECTION 14.2 EXERCISE OF CONVERSION RIGHT.
In order to exercise the conversion right with
respect to any interest in a Global Note, the beneficial holder must complete, or cause to be completed, the appropriate instruction
form for conversion pursuant to the Depositary’s book-entry conversion program; deliver, or cause to be delivered, by book-entry
delivery an interest in such Global Note; furnish appropriate endorsements and transfer documents if required by the Issuer or
the Trustee or Conversion Agent; and pay the funds, if any, required by this Section 14.2 and any transfer taxes if required pursuant
to Section 14.8.
In order to exercise the conversion right with
respect to any Note in certificated form, the Issuer must receive at the office or agency of the Issuer maintained for that purpose
in the City of New York or, at the option of such Holder, the Corporate Trust Office, such Note with the original or facsimile
of the form entitled “Conversion Notice” on the reverse thereof, duly completed and manually signed, together with
such Notes duly endorsed for transfer, accompanied by the funds, if any, required by this Section 14.2. Such notice shall also
state the name or names (with address or addresses) in which the certificate or certificates for shares of Common Shares which
shall be issuable on such conversion shall be issued, and shall be accompanied by transfer or similar taxes, if required pursuant
to Section 14.8.
Except to the extent that the Issuer has irrevocably
elected to make a cash payment of principal upon conversion pursuant to Section 14.14(b), the Issuer may, in lieu of delivery of
Common Shares in satisfaction of the Issuer’s obligation upon conversion of the Notes by any Holder, elect to deliver cash
or a combination of cash and Common Shares pursuant to Section 14.14.
If the Issuer elects to settle in Common Shares
only pursuant to Section 14.14, as promptly as practicable after satisfaction of the requirements for conversion set forth above,
subject to compliance with any restrictions on transfer if shares
issuable on conversion are to be issued in a name other than that of the Holder (as if such transfer were a transfer of the Note
or Notes (or portion thereof) so converted), the Issuer shall cause the Company to issue and shall deliver to such Holder at the
office or agency maintained by the Issuer for such purpose pursuant to Section 10.2, (i) a certificate or certificates for the
number of full shares of Common Shares issuable upon the conversion of such Note or portion thereof as determined by the Issuer
in accordance with the provisions of Section 14.14 and (ii) cash or a check in respect of any fractional interest in respect of
a share of Common Shares arising upon such conversion, calculated by the Issuer as provided in Section 14.3. If the Issuer elects
to settle in cash or a combination of cash and Common Shares pursuant to Section 14.14, the cash and, if applicable, a certificate
or certificates for the number of full shares of Common Shares into which the Notes are converted (and cash in lieu of fractional
shares) will be delivered to the Holder after satisfaction of the requirements for conversion set forth above, in accordance with
Section 14.14. In case any Note of a denomination greater than $1,000 shall be surrendered for partial conversion, and subject
to Section 2.2, the Issuer shall execute and the Trustee shall authenticate and deliver to the Holder of the Note so surrendered,
without charge to the Holder, a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted
portion of the surrendered Note.
Each conversion shall be deemed to have been effected
as to any such Note (or portion thereof) on the date on which the requirements set forth above in this Section 14.2 have been satisfied
as to such Note (or portion thereof) (the “Conversion Date”), and the Person in whose name any certificate or certificates
for shares of Common Shares shall be issuable upon such conversion shall be deemed to have become on said date the holder of record
of the shares represented thereby; provided that any such surrender on any date when the stock transfer books of the Issuer shall
be closed shall constitute the Person in whose name the certificates are to be issued as the record holder thereof for all purposes
on the next succeeding day on which such stock transfer books are open, but such conversion shall be at the Conversion
Rate
Rates
in effect on the Conversion Date.
To the extent provided in Section 2.1, Notes surrendered
for conversion during the period from the close of business on any Regular Record Date to the opening of business on the next succeeding
Interest Payment Date (except in the case of any Note whose maturity is prior to such Interest Payment Date) shall be accompanied
by payment in funds acceptable to the Issuer of an amount equal to the interest to be received on such Interest Payment Date on
the principal amount of Notes being surrendered for conversion, as well as any taxes or duties payable pursuant to Section 14.8.
To the extent provided in Section 2.1, Notes (i) for which overdue interest, if any, exists at the time of conversion with respect
to such Notes or (ii) that are submitted for repurchase by the Holder in a Designated Event Repurchase Notice, and which are converted
prior to repurchase, shall not require such concurrent payment to the Issuer upon surrender for conversion, if such Holder’s
conversion right would terminate because of the repurchase between the Regular Record Date and the close of business on the second
Business Day following the next succeeding Interest Payment Date and if converted during the time period set forth in this sentence,
the Holders of such converted Notes shall be entitled to receive (and retain) any accrued interest on the principal of such surrendered
Notes.
Notes shall be deemed to have been converted immediately
prior to 5:00 P.M. Eastern Time on the day of surrender of such Notes for conversion in accordance with the foregoing provisions,
and at such time the rights of the Holders of such Notes as Holders shall cease, and the Person or Persons entitled to receive
the Common Shares issuable upon conversion shall be treated for all purposes as the record holder or holders of such Common Shares
at such time. As promptly as practicable on or after the Conversion Date, the Issuer shall cause to be issued and delivered to
such Conversion Agent a certificate or certificates for the number of full Common Shares issuable upon conversion, together with
payment in lieu of any fraction of a share as provided in Section 14.3 hereof.
Upon the conversion of an interest in a Global
Note, the Conversion Agent, or the Trustee, as custodian for the Depositary, at the direction of the Conversion Agent, shall make
a notation on such Global Note as to the reduction in the principal amount represented thereby. The Issuer shall notify the Trustee
in writing of any conversions of Notes effected through any Conversion Agent.
Except for accrued and unpaid interest payable
through a Regular Record Date with respect to a Note converted after such Regular Record Date but prior to the corresponding Interest
Payment Date, upon the conversion of a Note, a Holder will not receive any cash payment of accrued and unpaid interest. Accrued
and unpaid interest is deemed to be paid in full with the Common Shares (together with the cash payment, if any in lieu of fractional
shares) rather than cancelled, extinguished or forfeited.
In the case of any Note which is converted in
part only, upon such conversion the Issuer shall execute and the Trustee shall authenticate and deliver to the Holder thereof,
at the expense of the Issuer, a new Note or Notes of authorized denominations in aggregate principal amount equal to the unconverted
portion of the principal amount of such Notes.
The Issuer hereby initially appoints the Trustee
as Conversion Agent.
SECTION 14.3 FRACTIONS OF SHARES.
No fractional Common Shares shall be issued upon
conversion of any Note or Notes. If more than one Note shall be surrendered for conversion at one time by the same Holder, the
number of full shares which shall be issued upon conversion thereof shall be computed on the basis of the aggregate principal amount
of the Notes (or specified portions thereof) so surrendered. Instead of any fractional Common Shares which would otherwise be issued
upon conversion of any Note or Notes (or specified portions thereof), the Issuer shall pay a cash adjustment in respect of such
fraction (calculated to the nearest one-100th of a share) in an amount equal to the same fraction of the Closing Price of the Common
Shares as of the Trading Day preceding the date of conversion.
SECTION 14.4 ADJUSTMENT OF CONVERSION
RATE
RATES
.
Each time that
the
a
Conversion Price is adjusted by the Issuer pursuant to this Section 14.4, the
applicable
Conversion Rate shall be adjusted (rounded to the nearest one-ten thousandth) by multiplying the
applicable
Conversion Rate by a fraction, the numerator of which is the
applicable
Conversion
Price immediately prior to such adjustment and the denominator of
which is the
applicable
Conversion Price as so adjusted.
The Conversion
Price
Prices
shall be subject to adjustments, calculated by the Issuer, from time to time as follows:
(a) In case the Company shall hereafter pay a
dividend or make a distribution to all holders of
any Class of
the outstanding Common Shares
in Common Shares, the
applicable
Conversion Price in effect at the opening of business
on the date following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution
shall be reduced by multiplying such
applicable
Conversion Price by a fraction:
(i) the numerator of which shall be
the number of Common Shares
(or Class of Common Shares), as applicable,
outstanding at
the close of business on the Record Date (as defined in Section 14.4(g)) fixed for such determination, and
(ii) the denominator of which shall
be the sum of such number of
Common
Shares
(or Class of Common
Shares)
and the total number of shares constituting such dividend or other distribution.
Such reduction shall become effective immediately
after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this
Section 14.4(a) is declared but not so paid or made, the
applicable
Conversion Price shall
again be adjusted to the
applicable
Conversion Price which would then be in effect if such
dividend or distribution had not been declared.
(b) In case
any Class
of
the outstanding Common Shares shall be subdivided into a greater number of Common Shares
of such Class
, the
applicable
Conversion Price in effect at the opening of business
on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and conversely, in
case outstanding Common Shares
of any Class
shall be combined into a smaller number of
Common Shares
of such Class
, the
applicable
Conversion
Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be
proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of
business on the day following the day upon which such subdivision or combination becomes effective.
(c) In case the Company shall issue rights or
warrants (other than any rights or warrants referred to in Section 14.4(d)) to all holders of
any
Class of
its outstanding Common Shares entitling them to subscribe for or purchase Common Shares (or securities convertible
into Common Shares) at a price per share (or having a conversion price per share) less than the
applicable
Current Market Price (as defined in Section 14.4(g)) on the Record Date fixed for the determination of shareholders entitled to
receive such rights or warrants, the
applicable
Conversion Price shall be adjusted so that
the same shall equal the price determined by multiplying the
applicable
Conversion Price
in effect at the opening of business on the date after such Record Date by a fraction:
(i) the numerator of which shall be
the number of Common Shares
(or Class of Common Shares), as applicable,
outstanding at
the close of business on the Record Date plus the number of shares which the aggregate offering price of the total number of shares
so offered for subscription or
purchase (or the aggregate conversion price of the convertible
securities so offered) would purchase at such Current Market Price, and
(ii) the denominator of which shall
be the number of Common Shares
(or Class of Common Shares), as applicable,
outstanding
on the close of business on the Record Date plus the total number of additional Common Shares so offered for subscription or purchase
(or into which the convertible securities so offered are convertible).
Such adjustment shall become effective immediately
after the opening of business on the day following the Record Date fixed for determination of shareholders entitled to receive
such rights or warrants. To the extent that Common Shares
of the applicable Class
(or securities
convertible into Common Shares
of such Class
) are not delivered pursuant to such rights
or warrants, upon the expiration or termination of such rights or warrants the
applicable
Conversion Price shall be readjusted to the
applicable
Conversion Price which would then
be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only
the number of Common Shares
of the applicable Class
(or securities convertible into Common
Shares
of such Class
) actually delivered. In the event that such rights or warrants are
not so issued, the
applicable
Conversion Price shall again be adjusted to be the
applicable
Conversion Price which would then be in effect if such date fixed for the determination of shareholders entitled to receive such
rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase
Common Shares at less than such Current Market Price, and in determining the aggregate offering price of such Common Shares, there
shall be taken into account any consideration received for such rights or warrants, the value of such consideration if other than
cash, to be determined by the Board of Directors of the Issuer.
(d) In case the Company shall, by dividend or
otherwise, distribute to all holders of
any Class of
its Common Shares any class of Capital
Shares of the Company (other than any dividends or distributions to which Section 14.4(a) applies) or evidences of its indebtedness
or other assets, including securities, but excluding (1) any rights or warrants referred to in Section 14.4(c), (2) any stock,
securities or other property or assets (including cash) distributed as dividends or distributions in connection with a reclassification,
change, merger, combination, sale, conveyance, consolidation or statutory share exchange to which Section 14.11 hereof applies
and (3) any dividends or distributions paid exclusively in cash, (the securities described in foregoing are hereinafter in this
Section 14.4(d) called the “securities”), then, in each such case, subject to the second paragraph of this Section
14.4(d), the
applicable
Conversion Price shall be reduced so that the same shall be equal
to the price determined by multiplying the
applicable
Conversion Price in effect immediately
prior to the close of business on the Record Date (as defined in Section 14.4(g)) with respect to such distribution by a fraction:
(i) the numerator of which shall be
the
applicable
Current Market Price (determined as provided in Section 14.4(g)) on such
date less the fair market value (as determined by the Board of Directors of the Issuer, whose determination shall be conclusive
and set forth in a Board Resolution of the Issuer) on such date of the portion of the securities so distributed applicable to one
Common Share
of the applicable Class
(determined on the basis of the number of Common Shares
of the applicable Class
outstanding on the Record Date), and
(ii) the denominator of which shall
be such Current Market Price.
Such reduction shall become effective immediately
prior to the opening of business on the day following the Record Date. However, in the event that the then fair market value (as
so determined) of the portion of the securities so distributed applicable to one Common Share
of the
applicable Class
is equal to or greater than the
applicable
Current Market Price
on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right
to receive upon conversion of a Note (or any portion thereof) the amount of securities such Holder would have received had such
Holder converted such Note (or portion thereof) immediately prior to such Record Date. In the event that such dividend or distribution
is not so paid or made, the
applicable
Conversion Price shall again be adjusted to be the
applicable
Conversion Price which would then be in effect if such dividend or distribution
had not been declared.
If the Board of Directors of the Issuer determines
the fair market value of any distribution for purposes of this Section 14.4(d) by reference to the actual or when issued trading
market for any securities comprising all or part of such distribution, it must in doing so consider the prices in such market over
the same period (the “Reference Period”) used in computing the
applicable
Current
Market Price pursuant to Section 14.4(g) to the extent possible, unless the Board of Directors of the Issuer in a Board Resolution
determines in good faith that determining the fair market value during the Reference Period would not be in the best interest of
the Holder. For purposes of any calculation under this Section 14.4(d) in which the distribution consists of Capital Shares of
one or more of the Company’s Subsidiaries or other business units, if such Capital Shares are listed or quoted on the New
York Stock Exchange or other national or regional exchange or market and Closing Prices are available during the relevant calculation
period, the fair market value of such Capital Shares so listed or quoted shall be the average of the daily Closing Prices per share
or unit of such Capital Shares for the ten consecutive Trading Days commencing on and including the fifth Trading Day after the
“ex” date (as defined in Section 14.4(g) hereof) with respect to the distribution requiring such computation.
Rights or warrants distributed by the Company
to all holders of
any Class of
Common Shares entitling the holders thereof to subscribe
for or purchase the Company’s Capital Shares (either initially or under certain circumstances), which rights or warrants,
until the occurrence of a specified event or events (a “Trigger Event”):
(1) are deemed to be transferred with
such Common Shares;
(2) are not exercisable; and
(3) are also issued in respect of future
issuances of Common Shares
of such Class
,
shall be deemed not to have been distributed for purposes of this
Section 14.4(d) (and no adjustment to the
applicable
Conversion Price under this Section
14.4(d) will be required) until the occurrence of the earliest Trigger Event. If such right or warrant is subject to subsequent
events, upon the occurrence of which such right or warrant shall become exercisable to purchase different securities, evidences
of indebtedness or other assets or entitle the holder to purchase a different number or amount of the foregoing or to purchase
any of the foregoing at a different purchase price, then the occurrence of each such event shall be deemed to be the date of issuance
and record date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without
exercise by the holder thereof). In addition, in the event of any
distribution (or deemed distribution) of rights or warrants, or
any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto, that resulted in an adjustment
to the
applicable
Conversion Price under this Section 14.4(d):
(1) in the case of any such rights or
warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the
applicable
Conversion Price shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event,
as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a
holder of Common Shares
of such Class
with respect to such rights or warrant (assuming
such holder had retained such rights or warrants), made to all holders of Common Shares
of such Class
as of the date of such redemption or repurchase, and
(2) in the case of such rights or warrants
all of which shall have expired or been terminated without exercise, the
applicable
Conversion
Price shall be readjusted as if such rights and warrants had never been issued.
For purposes of this Section 14.4(d) and Sections
14.4(a), 14.4(b) and 14.4(c), any dividend or distribution to which this Section 14.4(d) is applicable that also includes Common
Shares, a subdivision or combination of Common Shares
of any Class
to which Section 14.4(c)
applies, or rights or warrants to subscribe for or purchase Common Shares
of any Class
to which Section 14.4(c) applies (or any combination thereof), shall be deemed instead to be:
(1) a dividend or distribution of the
evidences of indebtedness, assets, shares of capital stock, rights or warrants other than such Common Shares, such subdivision
or combination or such rights or warrants to which Sections 14.4(a), 14.4(b) and 14.4(c) apply, respectively (and any
applicable
Conversion Price reduction required by this Section 14.4(d) with respect to such dividend or distribution shall then be made),
immediately followed by
(2) a dividend or distribution of such
Common Shares, such subdivision or combination or such rights or warrants (and any further Conversion Price reduction required
by Sections 14.4(a), 14.4(b) and 14.4(c) with respect to such dividend or distribution shall then be made), except:
(A) the Record Date of such dividend or
distribution shall be substituted as (x) “the date fixed for the determination of shareholders entitled to receive such dividend
or other distribution,” “Record Date fixed for such determinations” and “Record Date” within the
meaning of Section 14.4(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which
such combination becomes effective” within the meaning of Section 14.4(b), and (z) as “the date fixed for the determination
of shareholders entitled to receive such rights or warrants,” “the Record Date fixed for the determination of the shareholders
entitled to receive such rights or warrants” and such “Record Date” within the meaning of Section 14.4(c), and
(B) any Common Shares included in
such dividend or distribution shall not be deemed “outstanding at the close of business on the date fixed for such determination”
within the meaning of Section 14.4(a) and any reduction or increase in the number of Common Shares resulting from such subdivision
or combination shall be disregarded in connection with such dividend or distribution.
(e) In case the Company shall, by dividend
or otherwise, distribute to all holders of
any Class of
its Common Shares cash (excluding
any cash that is distributed upon a reclassification, change, merger, combination, sale, conveyance, consolidation or statutory
share exchange to which Section 14.11 hereof applies or as part of a distribution referred to in Section 14.4(d) hereof), then
and in each such case, immediately after the close of business on the Record Date of such distribution, the
applicable
Conversion Price shall be reduced so that the same shall equal the price determined by multiplying the
applicable
Conversion Price in effect immediately prior to the close of business on such Record Date by a fraction:
(i) the numerator of which shall
be equal to the
applicable
Current Market Price on such Record Date less the full amount
of such distribution, in each case, applicable to one Common Share
of such Class
, and
(ii) the denominator of which
shall be equal to the
applicable
Current Market Price on the Record Date.
However, as determined by the Board of Directors
of the Issuer, whose determination shall be conclusive and set forth in a Board Resolution of the Issuer, the Issuer may in lieu
of the foregoing adjustment, make adequate provision so that each Holder shall have the right to receive upon conversion of a Note
(or any portion thereof) the amount of cash such Holder would have received had such Holder converted such Note (or portion thereof)
immediately prior to such Record Date. In the event that such dividend or distribution is not so paid or made, the
applicable
Conversion Price shall again be adjusted to be the
applicable
Conversion Price which would
then be in effect if such dividend or distribution had not been declared.
(f) In case a tender or exchange offer made
by the Company or any of its subsidiaries to all holders of
any Class of its
Common Shares
for all or any portion
of such Class
of the Common Shares shall expire and such tender
or exchange offer (as amended upon the expiration thereof) shall require the payment to shareholders (based on the acceptance (up
to any maximum specified in the terms of the tender or exchange offer) of Purchased Shares (as defined below)) of an aggregate
consideration having a fair market value (as determined by the Board of Directors of the Issuer, whose determination shall be conclusive
and set forth in a Board Resolution of the Issuer), as of the expiration of such tender or exchange offer that exceeds the
applicable
Current Market Price (determined as provided in Section 14.4(g)) as of the last time (the “Expiration Time”) tenders
or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of Common Shares
of the applicable Class
outstanding (including any tendered or exchanged shares) on the
Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration
Time, the
applicable
Conversion Price shall be adjusted so that the same shall equal the
price determined by multiplying the
applicable
Conversion
Price in effect immediately prior to close of business on the date
of the Expiration Time by a fraction:
(i) the numerator of which shall
be the number of Common Shares
of the applicable Class
outstanding (including any Purchased
Shares) at the Expiration Time multiplied by the
applicable
Current Market Price of the
Common Shares on the Trading Day next succeeding the Expiration Time, and
(ii) the denominator shall be
the sum of (x) the fair market value (determined by the Board of Directors of the Issuer, whose determination shall be conclusive
and set forth in a Board Resolution of the Issuer) of the aggregate consideration payable to shareholders based on the acceptance
(up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not
withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased
Shares”) and (y) the product of the number of Common Shares
of the applicable Class
outstanding (less any Purchased Shares) as of the Expiration Time and the
applicable
Current
Market Price of the Common Shares on the Trading Day next succeeding the Expiration Time.
Such reduction (if any) shall become effective
immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated
to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from
effecting any such purchases or all such purchases are rescinded, the
applicable
Conversion
Price shall again be adjusted to be the
applicable
Conversion Price which would then be
in effect if such tender or exchange offer had not been made. If the application of this Section 14.4(f) to any tender or exchange
offer would result in an increase in the
applicable
Conversion Price, no adjustment shall
be made for such tender or exchange offer under this Section 14.4(f).
(g) For purposes of this Section 14.4, the
following terms shall have the meanings indicated:
(1) “Current Market Price”
shall mean the average of the daily Closing Prices per Common Share
of the applicable Class
for the ten consecutive Trading Days ending on the earlier of the date of determination and the day before the “ex”
date (as defined below) with respect to the distribution requiring such computation; provided, however, that for purposes of any
calculation under Section 14.4(d) in which the distribution consists of Capital Shares of one or more of the Company’s Subsidiaries
or other business units, the Current Market Price shall mean the average of the daily Closing Prices per Common Share
of
the applicable Class
for the ten consecutive Trading Days commencing on and including the fifth Trading Day after the
“ex” date with respect to the distribution requiring such computation. For purposes of this definition, “ex”
date shall mean:
(A) with respect to any issuance
or distribution, means the first date on which the
applicable
Common Shares trade regular
way on the relevant exchange or in the relevant market from which the Closing Price was obtained without the right to receive such
issuance or distribution;
(B) with respect to any subdivision
or combination of
any Class of
Common Shares, means the first date on which the
applicable
Common Shares trade regular way on such exchange or in such market after the time at which such subdivision or combination becomes
effective, and
(C) with respect to any tender or
exchange offer, means the first date on which the
applicable
Common Shares trade regular
way on such exchange or in such market after the Expiration Time of such offer.
Notwithstanding the foregoing, whenever successive
adjustments to
the
a
Conversion Price are
called for pursuant to this Section 14.4, such adjustments shall be made to the Current Market Price as may be necessary or appropriate
to effectuate the intent of this Section 14.4 and to avoid unjust or inequitable results as determined in good faith by the Board
of Directors of the Issuer.
(2) “fair market value”
shall mean the amount which a willing buyer would pay a willing seller in an arm’s length transaction; provided, however,
that for purposes of any calculation under Section 14.4(d) hereof in which the distribution consists of Capital Shares of one or
more of the Company’s Subsidiaries or other business units, if such Capital Shares are listed or quoted on the New York Stock
Exchange or other national or regional exchange or market and Closing Prices are available during the relevant calculation period,
the fair market value of such Capital Shares so listed or quoted shall be the average of the daily Closing Prices per share or
unit of such Capital Shares for the ten consecutive Trading Days commencing on and including the fifth Trading Day after the “ex”
date (as defined in this Section 14.4(g)) with respect to the distribution requiring such computation.
(3) “Record Date” shall
mean, with respect to any dividend, distribution or other transaction or event in which the holders of
the
applicable
Common Shares have the right to receive any cash, securities or other property or in which the
applicable
Common Shares (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property,
the date fixed for determination of shareholders entitled to receive such cash, securities or other property (whether such date
is fixed by the Board of Directors of the Company or by statute, contract or otherwise).
(h) The Issuer may make such reductions in
the
a
Conversion Price, in addition to
those required by Sections 14.4(a), (b), (c), (d), (e) or (f), as the Board of Directors of the Issuer considers to be advisable
to avoid or diminish any income tax to holders of Common Shares or rights to purchase Common Shares resulting from any dividend
or distribution of stock (or rights to acquire stock) or from any event treated as such for income tax purposes.
To the extent permitted by applicable law, the
Issuer from time to time may reduce
the
a
Conversion Price by any amount for any period of time if the period is at least 20 days and the reduction is irrevocable during
the period and the Board of Directors of the Issuer determines in good faith that such reduction would be in the best interests
of the Issuer, which determination shall be conclusive and set forth in a Board Resolution of the Issuer. Whenever
the
a
Conversion Price is reduced pursuant to the preceding sentence, the Issuer shall mail to the
Trustee and each Holder at the address of such Holder as it appears
in the Register a notice of the reduction at least 15 days prior to the date the reduced Conversion Price takes effect, and such
notice shall state the reduced Conversion Price and the period during which it will be in effect.
Notwithstanding the foregoing, any action taken
under the two immediately preceding paragraphs shall be subject to approval of the New York Stock Exchange (or other applicable
regulatory approval).
Adjustment to
the
a
Conversion Price is not necessary if Holders may participate in the transactions otherwise giving rise to an adjustment on a basis
and with notice that the Board of Directors of the Issuer determines to be fair and appropriate. Such participation is subject
to acceptance by the New York Stock Exchange. In cases where the fair market value of the portion of assets, debt securities or
rights, warrants or options to purchase securities of the Company applicable to one Common Share
of
the applicable Class
distributed to shareholders exceeds the average sale price per Common Share
of such Class
, or the average sale price per share of options on Common Shares
of such
Class
so distributed by less than $1.00, rather than being entitled to an adjustment in
the
a
Conversion Price, a Holder, upon conversion of a Note, will be entitled to receive (in addition to the Common Shares into which
such Note is convertible) the kind and amounts of assets, debt securities or rights, options or warrants comprising the distribution
that such Holder would have received if such Holder had converted such Note immediately prior to the record date for determining
the shareholders entitled to receive such distribution.
(i) No adjustment in
the
a
Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in such price; provided,
however, that any adjustments which by reason of this Section 14.4(i) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this Article XIV shall be made by the Issuer and shall
be made to the nearest cent or to the nearest one-hundredth (1/100th) of a share, as the case may be. No adjustment need be made
for a change in the par value or no par value of
any Class of
the Common Shares.
(j) In any case in which this Section 14.4
provides that an adjustment shall become effective immediately after a Record Date for an event, the Issuer may defer until the
occurrence of such event (i) issuing to the Holder of any Note converted after such Record Date and before the occurrence of such
event the additional Common Shares issuable upon such conversion by reason of the adjustment required by such event over and above
the Common Shares issuable upon such conversion before giving effect to such adjustment and (ii) paying to such holder any amount
in cash in lieu of any fraction pursuant to Section 14.3 hereof.
(k) For purposes of this Section 14.4, the
number of Common Shares at any time outstanding shall not include shares held in the treasury of the Company but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of Common Shares. The Company will not pay any dividend
or make any distribution on Common Shares held in the treasury of the Company.
(l) If the distribution date for the rights
provided in the Company’s rights agreement, if any, occurs prior to the date a Note is converted, (i) the Holder of the Note
who converts such Note after the distribution date is entitled to receive the rights that would otherwise
be attached (but for the date of conversion) to the Common Shares
received upon such conversion and (ii) no adjustment shall be made to
the
a
Conversion Price pursuant to clause 14.4(b).
SECTION 14.5 NOTICE OF ADJUSTMENTS OF CONVERSION PRICE.
Whenever
the
a
Conversion Price is adjusted as herein provided (other than in the case of an adjustment pursuant to the second paragraph of Section
14.4(h) for which the notice required by such paragraph has been provided), the Issuer shall promptly file with the Trustee and
any Conversion Agent an Officers’ Certificate of the Issuer setting forth the adjusted Conversion Price and showing in reasonable
detail the facts upon which such adjustment is based; provided that the Trustee shall have no duty or obligation to verify the
accuracy of the adjusted Conversion Price. Promptly after delivery of such Issuer Officers’ Certificate, the Issuer shall
prepare a notice stating that
the
a
Conversion
Price has been adjusted and setting forth the adjusted Conversion Price and the date on which each adjustment becomes effective,
and shall mail such notice to each Holder at the address of such Holder as it appears in the Register within 20 days of the effective
date of such adjustment. Failure to deliver such notice shall not effect the legality or validity of any such adjustment.
SECTION 14.6 NOTICE PRIOR TO CERTAIN ACTIONS.
In case at any time after the date hereof:
(1) the Company shall declare a
dividend (or any other distribution) on
any Class of
its Common Shares payable otherwise
than in cash out of its capital surplus or its consolidated retained earnings;
(2) the Company shall authorize
the granting to the holders of its Common Shares of rights or warrants to subscribe for or purchase any shares of capital stock
of any class (or of securities convertible into shares of capital stock of any class) or of any other rights;
(3) there shall occur any reclassification
of
any Class of
the Common Shares of the Company (other than a subdivision or combination
of
any Class of
its outstanding Common Shares, a change in par value, a change from par
value to no par value or a change from no par value to par value), or any merger, consolidation, statutory share exchange or combination
to which the Company is a party and for which approval of any shareholders of the Company is required, or the sale, transfer or
conveyance of all or substantially all of the assets of the Company; or
(4) there shall occur the voluntary
or involuntary dissolution, liquidation or winding up of the Company;
the Issuer shall cause to be filed at each office or agency maintained
for the purpose of conversion of securities pursuant to Section 10.2 hereof, and shall cause to be provided to the Trustee and
all Holders in accordance with Section 16.2 hereof, at least 20 days (or 10 days in any case specified in clause (1) or (2) above)
prior to the applicable record or effective date hereinafter specified, a notice stating:
(A) the date on which a record is
to be taken for the purpose of such dividend, distribution, rights or warrants, or, if a record is not to be taken, the date as
of which the holders of Common Shares of record to be entitled to such dividend, distribution, rights or warrants are to be determined,
or
(B) the date on which such reclassification,
merger, consolidation, statutory share exchange, combination, sale, transfer, conveyance, dissolution, liquidation or winding up
is expected to become effective, and the date as of which it is expected that holders of Common Shares of record shall be entitled
to exchange their Common Shares for securities, cash or other property deliverable upon such reclassification, merger, consolidation,
statutory share exchange, sale, transfer, dissolution, liquidation or winding up.
Neither the failure to give such notice nor any
defect therein shall affect the legality or validity of the proceedings or actions described in clauses (1) through (4) of this
Section 14.6.
SECTION 14.7 COMPANY TO RESERVE COMMON SHARES; INTERCOMPANY AGREEMENT.
(a) The Company shall at all times use its
best efforts to reserve and keep available, free from preemptive rights, out of its authorized but unissued Common Shares, for
the purpose of effecting the conversion of Notes, the full number of fully paid and nonassessable Common Shares
of
each Class
then issuable upon the conversion of all outstanding Notes.
(b) The Issuer and the Company will have
agreed to contribute the Common Shares issuable upon conversion of the Notes pursuant to this Article XIV to the Issuer by the
date hereof.
SECTION 14.8 TAXES ON CONVERSIONS.
Except as provided in the next sentence, the Issuer
will pay any and all taxes (other than taxes on income) and duties that may be payable in respect of the issue or delivery of Common
Shares on conversion of Notes pursuant hereto. A Holder delivering a Note for conversion shall be liable for and will be required
to pay any tax or duty which may be payable in respect of any transfer involved in the issue and delivery of Common Shares in a
name other than that of the Holder of the Note or Notes to be converted, and no such issue or delivery shall be made unless the
Person requesting such issue has paid to the Issuer the amount of any such tax or duty, or has established to the satisfaction
of the Issuer that such tax or duty has been paid.
SECTION 14.9 COVENANT AS TO COMMON SHARES.
The Issuer and the Company, jointly and severally,
covenant that all Common Shares which may be issued upon conversion of Notes will upon issue be fully paid and nonassessable and,
except as provided in Section 14.8, the Issuer will pay all taxes, liens and charges with respect to the issue thereof.
SECTION 14.10 CANCELLATION OF CONVERTED NOTES.
All Notes delivered for conversion shall be delivered
to the Trustee to be canceled by or at the direction of the Trustee, which shall dispose of the same as provided in Section 2.11.
SECTION 14.11 EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER
OR SALE.
If any of following events occur, namely:
(i) any reclassification or change
of
any Class of
the outstanding Common Shares (including a compulsory share exchange but
other than changes resulting from a subdivision or combination), as a result of which holders of
such
Common Shares shall be entitled to receive stock, securities or other property or assets (including cash or any combination thereof)
with respect to or in exchange for such Common Shares,
(ii) any merger, consolidation,
statutory share exchange or combination of the Company with another corporation as a result of which holders of Common Shares
of
any Class
shall be entitled to receive stock, securities or other property or assets (including cash or any combination
thereof) with respect to or in exchange for such Common Shares or
(iii) any sale or conveyance
of all or substantially all of the properties and assets of the Company to any other Person as a result of which holders of Common
Shares
of any Class
shall be entitled to receive stock, securities or other property or
assets (including cash or any combination thereof) with respect to or in exchange for such Common Shares,
then the Issuer and the Company or the successor or purchasing corporation,
as the case may be, shall execute with the Trustee a supplemental indenture (which shall comply with the TIA as in force at the
date of execution of such supplemental indenture if such supplemental indenture is then required to so comply) providing that each
Note shall be convertible into the kind and amount of shares of stock and other securities or property or assets (including cash
or any combination thereof) which the Holder thereof would have been entitled to receive upon such reclassification, change, merger,
consolidation, statutory share exchange, combination, sale or conveyance had such Notes been converted into Common Shares immediately
prior to such reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance assuming
such holder of Common Shares did not exercise its rights of election, if any, as to the kind or amount of securities, cash or other
property receivable upon such merger, consolidation, statutory share exchange, sale or conveyance (provided that, if the kind or
amount of securities, cash or other property receivable upon such merger, consolidation, statutory share exchange, sale or conveyance
is not the same for each Common Share in respect of which such rights of election shall not have been exercised (“Non-Electing
Share”), then for the purposes of this Section 14.11 the kind and amount of securities, cash or other property receivable
upon such merger, consolidation, statutory share exchange, sale or conveyance for each Non-Electing Share shall be deemed to be
the kind and amount so receivable per share by a plurality of the Non-Electing Shares). The Trustee shall be given an Opinion of
Counsel of the Issuer and the Company as to whether any such supplemental indenture is required to and does comply with the
TIA. Such supplemental indenture shall provide for adjustments which
shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article XIV. If, in the case of any
such reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance, the stock or other
securities and assets receivable thereupon by a holder of Common Shares includes shares of stock or other securities and assets
of a corporation other than the successor or purchasing corporation, as the case may be, in such reclassification, change, merger,
consolidation, statutory share exchange, combination, sale or conveyance, then such supplemental indenture shall also be executed
by such other corporation and shall contain such additional provisions to protect the interests of the Holders of the Notes as
the Boards of Directors of the Issuer and the Company shall reasonably consider necessary by reason of the foregoing, including
to the extent practicable the provisions providing for the repurchase rights set forth in Article XIII hereof.
The Issuer shall cause notice of the execution
of such supplemental indenture to be mailed to each Holder, at the address of such Holder as it appears on the Register, within
20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental
indenture.
The above provisions of this Section 14.11 shall
similarly apply to successive reclassifications, mergers, consolidations, statutory share exchanges, combinations, sales and conveyances.
If this Section 14.11 applies to any event or
occurrence, Section 14.4 hereof shall not apply.
SECTION 14.12 RESPONSIBILITY OF TRUSTEE FOR CONVERSION PROVISIONS.
The Trustee, subject to the provisions of Section
6.1 hereof, and any Conversion Agent shall not at any time be under any duty or responsibility to any Holder of Notes to determine
whether any facts exist which may require any adjustment of
the
a
Conversion Price, or with respect to the nature or intent of any such adjustments when made, or with respect to the method employed,
or herein or in any supplemental indenture provided to be employed, in making the same. Neither the Trustee, subject to the provisions
of Section 6.1 hereof, nor any Conversion Agent shall be accountable with respect to the validity or value (of the kind or amount)
of any Common Shares, or of any other securities or property, which may at any time be issued or delivered upon the conversion
of any Note; and it or they do not make any representation with respect thereto. Neither the Trustee, subject to the provisions
of Section 6.1 hereof, nor any Conversion Agent shall be responsible for any failure of the Issuer or the Company to make any cash
payment or to issue, transfer or deliver any shares or share certificates or other securities or property upon the surrender of
any Note for the purpose of conversion; and the Trustee, subject to the provisions of Section 6.1 hereof, and any Conversion Agent
shall not be responsible or liable for any failure of the Issuer or the Company to comply with any of the covenants of the Issuer
or the Company contained in this Article XIV. Neither the Trustee nor the Conversion Agent shall have any obligation to make any
calculations hereunder.
SECTION 14.13 LIMITATION ON CONVERSION RIGHT.
Notwithstanding anything to the contrary in this
Article, any Holder of a Note shall not have the right to convert any Note to the extent that, after giving effect to such conversion,
the Holder (together with the Holder’s affiliates), as set forth on the applicable conversion notice, would beneficially
own in excess of 9.99% of the number of
Common
Class
A
Shares outstanding immediately after giving effect to such conversion. For purposes of the foregoing sentence, the
number of
Common
Class A
Shares beneficially
owned by the Holder and its affiliates shall include the number of
Common
Class
A
Shares issuable upon conversion of the Note with respect to which the determination of such sentence is being made,
but shall exclude the number of
Common
Class A
Shares which would be issuable upon (A) conversion of the remaining, nonconverted portion of the Note beneficially owned by the
Holder or any of its affiliates and (B) exercise or conversion of the unexercised or nonconverted portion of any other securities
of the Issuer or the Company (including, without limitation, any other Notes) subject to a limitation on conversion or exercise
analogous to the limitation contained herein, beneficially owned by the Holder or any of its affiliates. Except as set forth in
the preceding sentence, for purposes of this Section 14.13, beneficial ownership shall be calculated in accordance with Section
13(d) of the Exchange Act. For purposes of this Section 14.13, in determining the number of outstanding
Common
Class
A
Shares, the Holder may rely on the number of outstanding
Common
Class
A
Shares as reflected in (x) the Company’s most recent Quarterly Report on Form 10-Q or Annual Report on Form
10-K, as the case may be, (y) a more recent public announcement by the Company or (z) any subsequent notice by the Issuer, the
Company or the Company’s transfer agent setting forth the number of
Common
Class
A
Shares outstanding. Upon the written or oral request of the Holder, the Company shall promptly confirm in writing
to the Holder the number of
Common
Class A
Shares then outstanding. In any case, the number of outstanding
Common
Class
A
Shares shall be determined after giving effect to the conversion or exercise of securities of the Company, including
the Note, by the Holder or its affiliates since the date as of which such number of outstanding
Common
Class
A
Shares was reported. Neither the Trustee nor the Conversion Agent shall be responsible for monitoring compliance with
this Section 14.13 and, absent written direction from the Issuer or Company to the contrary, may assume that any Conversion Notice
complies with this restriction.
SECTION 14.14 OPTION TO SATISFY CONVERSION OBLIGATION WITH CASH,
COMMON SHARES OR A COMBINATION THEREOF
(a) Except to the extent that the Issuer
has irrevocably elected to make a cash payment of principal upon conversion pursuant to Section 14.14(b), the Issuer may, in lieu
of delivery of Common Shares in satisfaction of the Issuer’s obligation upon conversion of the Notes by any Holder, elect
to deliver cash or a combination of cash and Common Shares. The Issuer shall notify such Holder through the Trustee of the method
the Issuer chooses to satisfy its obligation upon conversion, including the Make Whole Premium, if any, (the “Conversion
Obligation”), (i) 26 Trading Days immediately preceding the Maturity Date in respect of Notes to be converted during the
period beginning 25 Trading Days immediately preceding the Maturity Date and ending one Trading Day immediately preceding the Maturity
Date, and (ii) no later than two Trading Days immediately following the Conversion Date in all other cases (such period, the “Settlement
Notice Period”). If the Issuer elects to satisfy any portion of its Conversion Obligation in cash, the Issuer shall specify
in such notice the amount to be satisfied in cash either as a percentage of the Conversion Obligation or as a fixed dollar amount.
The
Issuer shall treat all holders converting on the same Trading Day
in the same manner. The Issuer shall not have any obligation to satisfy Conversion Obligations arising on different Trading Days
in the same manner.
Except to the extent the Issuer has irrevocably
elected to make a cash payment of principal upon conversion, if the Issuer elects to satisfy any portion of its conversion obligation
in cash (other than cash in lieu of fractional shares), such Holder may retract its Conversion Notice at any time during the two
Trading Day period beginning on the Trading Day after the Issuer has notified the Trustee of its method of settlement (the “Conversion
Retraction Period”). A Holder cannot retract its Conversion Notice if: (a) the Issuer elected to make a cash payment of principal
upon conversion before such Holder delivered its Conversion Notice; (b) such Holder is converting its Notes during the period beginning
25 Trading Days preceding the Maturity Date and ending one Trading Day preceding the Maturity Date; or (c) the Issuer does not
elect to satisfy any portion of its conversion obligation in cash (other than cash in lieu of fractional shares).
With respect to each Holder that exercises its
conversion right in accordance with this Indenture, if such Holder’s Conversion Notice has not been retracted, assuming all
of the other requirements have been satisfied by such Holder, then settlement (a) in Common Shares only shall occur as soon as
practicable after the Issuer notifies the Trustee that settlement shall be in Common Shares only, and (b) in cash or in a combination
of cash and Common Shares shall occur on the second Trading Day following the final Trading Day of the Cash Settlement Averaging
Period. Such day will be the 26th Trading Day following the receipt by the Issuer of a Holder’s Conversion Notice (if such
Holder does not retract its Conversion Notice and assuming all other conversion requirements have been satisfied), unless conversion
is:
(i) during the period beginning
25 Trading Days preceding the Maturity Date and ending one Trading Day preceding the Maturity Date, in which case such day will
be the Maturity Date (whether or not the Issuer has irrevocably elected to make a cash payment of principal upon conversion); or
(ii) after the Issuer has irrevocably
elected to make a cash payment of principal upon conversion, in which case such day will be the 22nd Trading Day following the
receipt by the Issuer of such Holder’s Conversion Notice; provided, however, that if the Issuer has irrevocably elected to
make a cash payment of principal upon conversion and conversion is during the period beginning 25 Trading Days preceding the Maturity
Date and ending one Trading Day preceding the Maturity Date, such day will be the Maturity Date.
The settlement amount will be computed as follows:
(i) if the Issuer elects to satisfy
the entire Conversion Obligation in Common Shares, the Issuer will deliver to such holder a number of shares of
Common
(x)
Class A
Shares equal to (1) the aggregate principal amount of the Notes to be converted divided by 1,000, multiplied
by (2) the
Class A Conversion Rate in effect on the Conversion Date (plus cash in lieu of fractional
shares calculated as provided in Section 14.3) and (y) Class B Shares equal to (1) the
aggregate
principal amount of the Notes
to be converted divided by 1,000, multiplied by (2) the Class
B
Conversion Rate in effect on the Conversion Date (plus cash in lieu of fractional shares calculated as provided in
Section 14.3);
(ii) if the Issuer elects to
satisfy the entire Conversion Obligation in cash, the Issuer will deliver to such Holder cash in an amount equal to the sum of
the Daily Cash Amounts for each day during the Cash Settlement Averaging Period.
The “Daily Cash Amount” means, for
each day during the Cash Settlement Averaging Period, the
product
sum
of:
(x) the product of:
(1) a number equal to (A) the aggregate
principal amount of notes to be converted divided by 1,000 and multiplied by (B) the
Class A
Conversion Rate in effect on the Conversion Date;
(2) the Applicable Daily Share
Price; and
(3) 5%.
Plus
(y) the product of:
(1) a number equal
to (A) the aggregate principal amount of notes to be converted divided by 1,000 and multiplied by (B) the Class B Conversion Rate
in effect on the Conversion Date;
(2) the Applicable
Daily Share Price; and
(3) 5%.
(iii) If the Issuer elects to
satisfy the Conversion Obligation in a combination of cash and common shares, it will deliver to the Holder:
(1) cash in an amount equal to
(A) the fixed dollar amount per $1,000 principal amount of Notes (which fixed dollar amount will be specified in the notice regarding
the chosen method of settlement) multiplied by the quotient of the aggregate principal amount of Notes to be converted divided
by 1,000, or (B) the sum of the products, for each day during the Cash Settlement Averaging Period, of the percentage of the Conversion
Obligation to be settled in cash (which percentage will be specified in the notice regarding the chosen method of settlement) multiplied
by the Daily Cash Amount for such day that would be paid pursuant to clause (ii) above, as the case may be (the “Cash Amount”);
and
(2) a number of
Class A Shares equal to (A) (I) the aggregate principal amount of Notes to be converted divided by 1,000 and multiplied by (II)
the Class A Conversion Rate in effect on the Conversion Date, minus (B), if the Cash Amount is determined pursuant to clause (A)
in the immediately preceding subsection (1), the sum of the results, for each day during the Cash Settlement Averaging Period,
of the Cash Amount multiplied by 5% and divided by the Applicable Daily Share Price, or minus (C) if the Cash Amount is determined
pursuant to clause (B) in the immediately preceding subsection (1), the sum of the results, for each day during the Cash Settlement
Averaging Period, of the percentage of the Conversion Obligation to be settled in cash (which percentage will be specified in the
notice regarding the chosen method of settlement) multiplied by the Daily Cash Amount and divided by the Applicable Daily Share
Price; and
(
2
3
)
a number of
Common
Class B
Shares equal
to (A) (I) the aggregate principal amount of Notes to be converted divided by 1,000 and multiplied by (II) the
Class
B
Conversion Rate in effect on the Conversion Date, minus (B), if the Cash Amount is determined pursuant to clause (A)
in the immediately preceding subsection (1), the sum of the results, for each day during the Cash Settlement Averaging Period,
of the Cash Amount multiplied by 5% and divided by the Applicable Daily Share Price, or minus (C) if the Cash Amount is determined
pursuant to clause (B) in the immediately preceding subsection (1), the sum of the results, for each day during the Cash Settlement
Averaging Period, of the percentage of the Conversion Obligation to be settled in cash (which percentage will be specified in the
notice regarding the chosen method of settlement) multiplied by the Daily Cash Amount and divided by the Applicable Daily Share
Price.
The “Applicable Daily Share Price”
means, for any Trading Day, the Closing Price of a
Common
Class
A
Share
or Class B Share, as applicable,
on such Trading Day.
The “Cash Settlement Averaging Period”
means the 20 Trading Day period:
(i) ending on the second Trading
Day preceding the Maturity Date, with respect to Conversion Notices received during the period beginning 25 Trading Days preceding
the Maturity Date and ending one Trading Day preceding the Maturity Date
(whether or not the Issuer has irrevocably elected to
make a cash payment of principal upon conversion);
(ii) beginning on the second
Trading Day following the receipt by the Issuer of a Holder’s Conversion Notice, if the Issuer has irrevocably elected to
make a cash payment of principal upon conversion; provided, however, that if the Issuer has irrevocably elected to make a cash
payment of principal upon conversion and such Holder submit its Conversion Notice during the period beginning 25 Trading Days preceding
the Maturity Date and ending one Trading Day preceding the Maturity Date, the Cash Settlement Averaging Period shall end on the
second Trading Day preceding the Maturity Date; and
(iii) beginning on the second
Trading Day following the final Trading Day of the Conversion Retraction Period, in all other cases.
(b) Notwithstanding anything to the contrary
in this Indenture, at any time on or prior to the 26th Trading Day preceding the Maturity Date, the Issuer may irrevocably elect,
in its sole discretion without the consent of the Holders of the Notes, by written notice to the Trustee and the Holders of the
Notes, to satisfy in cash the Conversion Obligation with respect to the principal amount of Notes to be converted after the date
of such election, with any remaining amount of the Conversion Obligation to be satisfied in cash and/or Common Shares. If the Issuer
makes such election, the Issuer will notify the Trustee and the Holders of Notes at their addresses shown in the Register of the
Registrar. The settlement amount will be computed as follows:
(i) a cash amount equal to the
aggregate principal amount of Notes to be converted; and
(ii) (1) if the Issuer elects
to satisfy any remaining amount in Common Shares, the Issuer will deliver to the Holder a number of
Common
Shares equal to
:
(x) Class
A Shares equal to
(A) the aggregate principal amount of the Notes to be converted divided by 1,000, and multiplied
by
(B) (1) the Class
A Conversion Rate in effect on the Conversion Date minus (2) $1,000 divided by the sum of the Applicable Daily Share Prices for
each day during the Cash Settlement Averaging Period multiplied by 5% plus cash in lieu of fractional shares calculated as provided
in Section 14.3,
Plus
(y) Class
B Shares equal to (A)
the aggregate principal amount of the Notes
to
be converted divided by 1,000, and multiplied by
(B) (1) the
Class
B
Conversion Rate in effect on the Conversion Date minus (2) $1,000 divided by the sum of the Applicable Daily Share
Prices for each day during the Cash Settlement Averaging Period multiplied by 5% plus cash in lieu of fractional shares calculated
as provided in Section 14.3,
(2) if the Issuer elects to satisfy
any remaining amount in cash, the Issuer will deliver to the Holder cash in an amount equal to (A) the sum of the Daily Cash Amounts
for each day during the Cash Settlement Averaging Period, minus (B) $1,000 divided by the sum of the Applicable Daily Share Prices
for each day during the Cash Settlement Averaging Period multiplied by 5%, and
(3) if the Issuer elects to satisfy
any remaining amount in a combination of cash and Common Shares, it will deliver to the Holder such combination in the respective
amounts calculated in a manner comparable to that used to settle any
conversion (as described above), and with the amount of
cash specified by the Issuer as contemplated in connection with any such conversion.
ARTICLE XV
SUBORDINATION OF NOTES
SECTION 15.1 NOTES SUBORDINATED TO SENIOR DEBT.
Notwithstanding any other provision of this Indenture,
the Issuer, the Company and the Trustee each covenants and agrees, and each Holder, by its acceptance of a Note, likewise covenants
and agrees, that all Notes shall be issued subject to the provisions of this Article XV and each Person holding any Note, whether
upon original issue or upon transfer, assignment or exchange thereof, accepts and agrees that the Notes, and all payments in respect
thereof including any payments on account of the Make Whole Premium, shall, to the extent set forth in this Article XV, be subordinated
in right of payment to the prior payment in full, in cash or cash equivalents, of all amounts that constitute Senior Debt, including,
without limitation, the Issuer’s obligations under the Senior Bank Facilities.
The Notes will be on parity in the right of payment
with the Issuer’s other existing and future liabilities that are not otherwise subordinated in favor of the notes.
The Notes will be senior in the right of payment
to all other indebtedness of the Issuer that by its terms is expressly subordinate to the Notes.
SECTION 15.2 NO PAYMENT ON NOTES IN CERTAIN CIRCUMSTANCES.
(a) No direct or indirect payment on account
of the Notes or on account of the purchase or other acquisition of Notes by or on behalf of the Issuer shall be made if, at the
time of such payment, there shall have occurred and be continuing a default in the payment of principal of (or premium, if any)
or interest on Senior Debt (including without limitation upon acceleration of the maturity thereof) when due (a “Senior Payment
Default”).
(b) In addition, if any default (other than
a Senior Payment Default) with respect to any Senior Debt permitting, or which with the giving of notice of lapse of time (or both)
would permit, the holders thereof (or a trustee on behalf thereof) to accelerate the maturity thereof (a “Senior Non-monetary
Default”) has occurred and is continuing and the Issuer and the Trustee have received written notice thereof from the agent
bank for any Credit Facility Debt or from an authorized person on behalf of Designated Senior Debt, then the Issuer may not make
any payments on account of the Notes or on account of the purchase or other acquisition of Notes or on account of the purchase
or other acquisition Notes for a period (a “Payment Blockage Period”) commencing on the date the Issuer and the Trustee
receive such written notice and ending on the earlier of (i) 179 days after such date or on the date on which the Trustee receives
notice from the agent bank for the Credit Facility Debt or from any authorized person on behalf of any Designated Senior Debt,
as applicable, rescinding such notice and (ii) the date, if any, on which the Senior Debt to which such default relates is discharged
or such default is waived or otherwise cured provided that no other default then exists except, in each case, any acceleration
of the Senior Debt.
(c) Not more than one Payment Blockage Period
pursuant to Section 15.2(b) or 15.2(c) may be commenced with respect to the Notes during any period of 360 consecutive days; provided
that, subject to the limitations set forth in the next sentence, the commencement of a Payment Blockage Period by the representatives
for, or the holders of, Designated Senior Debt, other than under the Credit Facility Debt, shall not bar the commencement of another
Payment Blockage Period by the agent bank for the Credit Facility Debt within such period of 360 consecutive days. Notwithstanding
anything in this Indenture to the contrary, there must be 180 consecutive days in any 360-day period in which no Payment Blockage
Period is in effect. For all purposes of Section 15.2(b) or 15.2(c), no event of default that existed or was continuing (it being
acknowledged that any subsequent action that would give rise to an event of default pursuant to any provision under which an event
of default previously existed or was continuing shall constitute a new event of default for this purpose) on the date of the commencement
of any Payment Blockage Period with respect to the Designated Senior Debt or Credit Facility Debt initiating such Payment Blockage
Period shall be, or shall be made, the basis for the commencement of a second Payment Blockage Period by the representative for,
or the holders of, such Designated Senior Debt or Credit Facility Debt, whether or not within a period of 360 consecutive days,
unless such event of default shall have been cured or waived for a period of not less than 90 consecutive days.
SECTION 15.3 PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
(a) Upon any payment or distribution of assets
or securities of the Issuer to creditors of any kind or character, whether in cash, property or securities, in connection with
any dissolution or winding up or total or partial liquidation or reorganization of the Issuer, whether voluntary or involuntary,
or in a bankruptcy, insolvency, receivership or other proceedings, the holders of Senior Debt will first be entitled to receive
payment in full in cash or cash equivalents of principal of (and premium, if any) and interest on such Senior Debt (whether or
not allowed in such proceeding) before the Holders are entitled to receive any payment of principal of (and premium, if any) or
interest on the notes or on account of the purchase or other acquisition of the Notes by the Issuer or any of its subsidiaries.
In the event that notwithstanding the foregoing, the Trustee or the Holder of any Note receives any payment or distribution of
the Issuer’s assets of any kind or character (excluding shares of Issuer’s common stock or securities provided for
in a plan reorganization or readjustment which are subordinate in right of payment to all Senior Debt to substantially the same
extent as the Notes are so subordinated) before all the Senior Debt is paid in full, then such payment or distribution will be
required to be paid over or delivered forthwith to the trustee in bankruptcy or other Person making payment or distribution of
our assets for application to the payment of all Senior Debt remaining unpaid, to the extent necessary to pay the Senior Debt in
full.
(b) To the extent any payment of Senior Debt
of the Issuer (whether by or on behalf of the Issuer, as proceeds of security or enforcement of any right of setoff or otherwise)
is declared to be fraudulent or preferential, set aside or required to be paid to any receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person under any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then
if such payment is recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other similar
Person, the Senior Debt of the Issuer or part thereof originally intended to be satisfied shall be deemed to be reinstated and
outstanding as if such payment had not occurred.
To the extent the obligation to repay any Senior Debt of the Issuer
is declared to be fraudulent, invalid or otherwise set aside under any bankruptcy, insolvency, receivership, fraudulent conveyance
or similar law, then the obligations so declared fraudulent, invalid or otherwise set aside (and all other amounts that would come
due with respect thereto had such obligation not been so affected) shall be deemed to be reinstated and outstanding as Senior Debt
of the Issuer for all purposes of this Indenture as if such declaration, invalidity or setting aside had not occurred.
(c) In the event that, notwithstanding the
foregoing provision prohibiting such payment or distribution, any payment or distribution of assets or securities of the Issuer
of any kind or character, whether in cash, property or securities, shall be received by the Trustee or any Holder at a time when
such payment or distribution is prohibited by Section 15.3(a) and before all obligations in respect of Senior Debt of the Issuer
are paid in full, in cash or cash equivalents, such payment or distribution shall be received and held in trust for the benefit
of, and shall be paid over or delivered to, the holders of Senior Debt of the Issuer (pro rata to such holders on the basis of
the respective amounts of Senior Debt of the Issuer held by such holders) or their representatives or to the trustee or trustees
under any indenture pursuant to which any such Senior Debt of the Issuer may have been issued, as their respective interests appear,
for application to the payment of Senior Debt of the Issuer remaining unpaid until all such Senior Debt of the Issuer has been
paid in full, in cash or cash equivalents, after giving effect to any concurrent payment, distribution or provision therefor to
or for the holders of such Senior Debt of the Issuer.
(d) The consolidation of the Issuer with,
or the merger of the Issuer with or into, another Person or the liquidation or dissolution of the Issuer following the sale, conveyance,
transfer, lease or other disposition of all or substantially all of its property and assets to another Person upon the terms and
conditions provided in Article VII hereof shall not be deemed a dissolution, winding up, liquidation or reorganization for the
purposes of this Section 15.3 if such other Person shall, as a part of such consolidation, merger, sale, conveyance, transfer,
lease or other disposition, comply (to the extent required) with the conditions stated in Article VII hereof.
SECTION 15.4 SUBROGATION.
Upon the payment in full of all Senior Debt in
cash or cash equivalents, the Holders shall be subrogated to the rights of the holders of Senior Debt to receive payments or distributions
of cash, property or securities of the Issuer made on such Senior Debt until the principal of and interest on the Notes shall be
paid in full; and, for the purposes of such subrogation, no payments or distributions to the holders of such Senior Debt of any
cash, property or securities to which the Holders or the Trustee on their behalf would be entitled except for the provisions of
this Article XV, and no payment pursuant to the provisions of this Article XV to the holders of Senior Debt by Holders or the Trustee
on their behalf shall, as between the Issuer, its creditors other than holders of Senior Debt, and the Holders, be deemed to be
a payment by the Issuer to or on account of the Senior Debt. It is understood that the provisions of this Article XV are intended
solely for the purpose of defining the relative rights of the Holders, on the one hand, and the holders of the Senior Debt, on
the other hand.
SECTION 15.5 OBLIGATIONS OF THE ISSUER UNCONDITIONAL.
(a) Nothing contained in this Article XV
or elsewhere in this Indenture or in the Notes is intended to or shall impair, as among the Issuer and the Holders, the obligation
of the Issuer, which is absolute and unconditional, to pay to the Holders the principal of and interest on the Notes as and when
the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of
the Holders and creditors of the Issuer other than the holders of the Senior Debt, nor shall anything herein or therein prevent
the Holders or the Trustee on their behalf from exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article XV of the holders of the Senior Debt.
(b) Without limiting the generality of the
foregoing, nothing contained in this Article XV will restrict the right of the Trustee or the Holders to take any action to declare
the Notes to be due and payable prior to their maturity or to pursue any rights or remedies hereunder; provided, however, that
all Senior Debt then due and payable or thereafter declared to be due and payable shall first be paid in full, in cash or cash
equivalents, before the Holders or the Trustee are entitled to receive any direct or indirect payment from the Issuer under the
Notes.
SECTION 15.6 NOTICE TO TRUSTEE.
(a) The Issuer shall give prompt written
notice to the Trustee of any fact known to the Issuer that would prohibit the making of any payment to or by the Trustee in respect
of the Notes pursuant to the provisions of this Article XV. The Trustee shall not be charged with knowledge of the existence of
any Senior Payment Default or Senior Non-monetary Default with respect to any Senior Debt or of any other facts that would prohibit
the making of any payment to or by the Trustee unless and until the Trustee shall have received notice in writing to that effect
signed by an Officer of the Issuer, or by a holder of Senior Debt or trustee or agent thereof; and prior to the receipt of any
such written notice, the Trustee shall, subject to this Article XV, be entitled to assume that no such facts exist; provided that,
if the Trustee shall not have received the notice provided for in this Section 15.6 at least two Business Days prior to the date
upon which, by the terms of this Indenture, any monies shall become payable for any purpose (including, without limitation, the
payment of the principal of or interest on any Note), then, notwithstanding anything herein to the contrary, the Trustee shall
have full power and authority to receive any monies from the Issuer and to apply the same to the purpose for which they were received,
and shall not be affected by any notice to the contrary that may be received by it on or after such prior date except for an acceleration
of the Notes prior to such application. Nothing contained in this Section 15.6 shall limit the right of the holders of Senior Debt
to recover payments as contemplated by this Article XV. The foregoing shall not apply if the paying agent is the Issuer. The Trustee
shall be entitled to rely on the delivery to it of a written notice by a Person representing himself or itself to be a holder of
any Senior Debt (or a trustee on behalf of, or other representative of, such holder) to establish that such notice has been given
by a holder of such Senior Debt or a trustee or representative on behalf of any such holder.
(b) In the event that the Trustee determines
in good faith that any evidence is required with respect to the right of any Person as a holder of Senior Debt to participate in
any payment or distribution pursuant to this Article XV, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Debt held by such Person, the extent to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person under this Article XV and, if such evidence is not furnished
to the Trustee, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person
to receive such payment.
SECTION 15.7 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT.
Upon any payment or distribution of assets or
securities referred to in this Article XV, the Trustee and the Holders shall be entitled to rely upon any order or decree made
by any court of competent jurisdiction in which bankruptcy, dissolution, winding up, liquidation or reorganization proceedings
are pending, or upon a certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person making
such payment or distribution, delivered to the Trustee or to the Holders for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the Senior Debt and other indebtedness of the Issuer, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article XV.
SECTION 15.8 TRUSTEE’S RELATION TO SENIOR DEBT.
(a) The Trustee and any paying agent shall
be entitled to all the rights set forth in this Article XV with respect to any Senior Debt that may at any time be held by it in
its individual or any other capacity to the same extent as any other holder of Senior Debt and nothing in this Indenture shall
deprive the Trustee or any paying agent of any of its rights as such holder.
(b) With respect to the holders of Senior
Debt, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth
in this Article XV, and no implied covenants or obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Debt (except
as provided in Section 15.2(b), Section 15.3(a) and Section 15.3(c)) and shall not be liable to any such holders if the Trustee
shall, in good faith, mistakenly pay over or distribute to the Holders of Notes or to the Company or to any other person cash,
property or securities to which any holders of Senior Debt shall be entitled by virtue of this Article XV or otherwise.
SECTION 15.9 SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS
OF THE ISSUER OR HOLDERS OF SENIOR DEBT.
No right of any present or future holders of any
Senior Debt to enforce subordination as provided in this Article XV will at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Issuer or by any act or failure to act, in good faith, by any such holder, or by any noncompliance
by the Issuer with the terms of this Indenture, regardless of any knowledge thereof that any such holder may have or otherwise
be charged with. The provisions of this Article XV are intended to be for the benefit of, and shall be enforceable directly by,
the holders of Senior Debt.
SECTION 15.10 HOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE THE SUBORDINATION
OF THE NOTES.
Each Holder, by such Holder’s acceptance
of any Notes, authorizes and expressly directs the Trustee on such Holder’s behalf to take such action as may be necessary
or appropriate to effectuate the subordination provided in this Article XV, and appoints the Trustee such Holder’s attorney-in-fact
for such purposes, including, in the event of any dissolution, winding up, liquidation or reorganization of the Issuer (whether
in bankruptcy, insolvency, receivership, reorganization or similar proceedings or upon an assignment for the benefit of creditors
or otherwise) tending towards liquidation of the property and assets of the Issuer, the filing of a claim for the unpaid balance
of its Notes, if any, in the form required in those proceedings. If the Trustee does not file a proper claim or proof of indebtedness
in the form required in such proceeding at least 30 days before the expiration of the time to file such claim or claims, each holder
of Senior Debt is hereby authorized to file an appropriate claim for and on behalf of the Holders.
SECTION 15.11 NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal
of or interest on the Notes by reason of any provision of this Article XV will not be construed as preventing the occurrence of
an Event of Default.
SECTION 15.12 TRUSTEE’S COMPENSATION NOT PREJUDICED.
Nothing in this Article XV will apply to amounts
due to the Trustee pursuant to other sections of this Indenture.
SECTION 15.13 NO WAIVER OF SUBORDINATION PROVISIONS.
Without in any way limiting the generality of
Section 15.9, the holders of Senior Debt may, at any time and from time to time, without the consent of or notice to the Trustee
or the Holders, without incurring responsibility to the Holders and without impairing or releasing the subordination provided in
this Article XV or the obligations hereunder of the Holders to the holders of Senior Debt, do any one or more of the following:
(a) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, Senior Debt or any instrument
evidencing the same or any agreement under which Senior Debt is outstanding or secured; (b) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior Debt; (c) release any Person liable in any manner for the
collection of Senior Debt; and (d) exercise or refrain from exercising any rights against the Issuer and any other Person.
SECTION 15.14 PAYMENTS MAY BE PAID PRIOR TO DISSOLUTION.
Nothing contained in this Article XV or elsewhere
in this Indenture shall prevent (i) the Issuer, except under the conditions described in Section 15.2 or Section 15.3, from making
payments of principal of and interest on the Notes, or from depositing with the Trustee any money for such payments, or (ii) the
application by the Trustee of any money deposited with it for the purpose of making such payments of principal of and interest
on the Notes to the Holders
entitled thereto unless, at least two Business Days prior to the
date upon which such payment becomes due and payable, the Trustee shall have received the written notice provided for in Section
15.2(b) (or there shall have been an acceleration of the Notes prior to such application) or in Section 15.6. The Issuer shall
give prompt written notice to the Trustee of any dissolution, winding up, liquidation or reorganization of the Issuer.
ARTICLE XVI
OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 16.1 TRUST INDENTURE ACT CONTROLS.
This Indenture is subject to the provisions of
the TIA which are required to be part of this Indenture, and shall, to the extent applicable, be governed by such provisions.
SECTION 16.2 NOTICES.
Any notice or communication to the Issuer and/or
the Company or the Trustee is duly given if in writing and delivered in person or mailed by first-class mail or by overnight delivery
service to the address set forth below:
(a) if to the Issuer and the Company:
Lions Gate Entertainment Corp.
1055 West Hastings Street, Suite 2200
Vancouver, British Columbia V6E 2E9
Lions Gate Entertainment Inc.
2700 Colorado Avenue, Suite 200
Santa Monica, CA 90404
Attention: Chief Financial Officer
with a copy to:
O’Melveny & Myers LLP
1999 Avenue of the Stars, 7th Floor
Los Angeles, CA 90067-6035
Attention: David J. Johnson, Jr., Esq.
(b) if to the Trustee:
The Bank of New York Mellon Trust Company, N.A.
700 South Flower Street, 5th Floor
Los Angeles, CA 90017
Attention: Corporate Unit
The Issuer and the Company or the Trustee by notice
to the other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication to a Holder shall
be mailed by first-class mail to his address shown on the Register kept by the Registrar or, if the Holder is the Depositary, sent
by facsimile or overnight delivery services. Failure to mail a notice or communication to a Holder or any defect in such notice
or communication shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed or sent
in the manner provided above within the time prescribed, it is duly given as of the date it is mailed, whether or not the addressee
receives it, except that notice to the Trustee shall only be effective upon receipt thereof by the Trustee.
The Trustee agrees to accept and act upon instructions
or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic
methods; provided, however, that (a) the party providing such written instructions, subsequent to such transmission of written
instructions, shall provide the originally executed instructions or directions to the Trustee in a timely manner, and (b) such
originally executed instructions or directions shall be signed by an authorized representative of the party providing such instructions
or directions. If the party elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic
method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions
shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from
the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent
with a subsequent written instruction. The party providing electronic instructions agrees to assume all risks arising out of the
use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the
Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.
If the Issuer and the Company mail a notice or
communication to Holders, it shall mail a copy to the Trustee at the same time.
SECTION 16.3 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to Section 312(b)
of the TIA with other Holders with respect to their rights under the Notes or this Indenture. The Company, the Trustee, the Registrar
and anyone else shall have the protection of Section 312(c) of the TIA.
SECTION 16.4 ACTS OF HOLDERS OF NOTES.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of Notes may be embodied in
and evidenced by:
(1) one or more instruments of
substantially similar tenor signed by such Holders in person or by agent or proxy duly appointed in writing;
(2) the record of Holders of Notes
voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders of Notes duly called
and held in accordance with the provisions of Article IX; or
(3) a combination of such instruments
and any such record.
Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where
it is hereby expressly required, to the Issuer and the Company. Such instrument or instruments and record (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the “Act of Holders” of Notes signing such instrument
or instruments and so voting at such meeting. Proof of execution of any such instrument or of a writing appointing any such agent
or proxy, or of the holding by any Person of a Note, shall be sufficient for any purpose of this Indenture and (subject to Section
7.1 hereof) conclusive in favor of the Trustee and the Issuer and the Company if made in the manner provided in this Section. The
record of any meeting of Holders of Notes shall be proved in the manner provided in Section 9.6 hereof.
(b) The fact and date of the execution by
any Person of any such instrument or writing may be provided in any manner which the Trustee reasonably deems sufficient.
(c) The principal amount and serial numbers
of Notes held by any Person, and the date of such Person holding the same, shall be proved by the Register.
(d) Any request, demand, authorization, direction,
notice, consent, election, waiver or other Act of Holders of any Note shall bind every future Holder of the same Note and the Holder
of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything
done, omitted or suffered to be done by the Trustee, the Issuer or the Company in reliance thereon, whether or not notation of
such action is made upon such Note.
SECTION 16.5 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
In any case where several matters are required
to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such
Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an
officer of the Issuer and/or the Company may be based, insofar as it relates to legal matters, upon an Opinion of Counsel of the
Issuer and/or the Company, as the case may be, unless such officer knows, or in the exercise of reasonable care should know, that
the Opinion of Counsel of the Issuer and/or the Company, as the case may be, with respect to the matters upon which such certificate
or opinion is based, is erroneous. Any such Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate
or representations by, an officer or officers of the Issuer and/or the Company stating that the information with respect to such
factual matters is in the possession of the Issuer and/or the Company, unless such counsel knows, or in the exercise
of reasonable care should know, that the certificate or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or
execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
Upon any application or request by the Issuer
and the Company to the Trustee to take any action under any provision of this Indenture, the Issuer and the Company shall furnish
to the Trustee an Officers’ Certificate of the Issuer and the Company stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel of the Issuer and the Company
stating that in the opinion of such Counsel all such conditions precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
SECTION 16.6 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual
signing such certificate or opinion on behalf of the Issuer or the Company has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the
nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion
are based;
(3) a statement that, in the opinion
of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion
as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether,
in the opinion of each such individual, such condition or covenant has been complied with.
SECTION 16.7 EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 16.8 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture
by the Issuer and the Company shall bind their successors and assigns, whether so expressed or not.
SECTION 16.9 SEPARABILITY CLAUSE.
In case any provision in this Indenture or the
Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 16.10 BENEFITS OF INDENTURE.
Nothing contained in this Indenture or in the
Notes, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders
of Notes, any benefit or legal or equitable right, remedy or claim under this Indenture.
SECTION 16.11 GOVERNING LAW.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 16.12 COUNTERPARTS.
This instrument may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an original but all such counterparts shall together constitute
but one and the same instrument.
SECTION 16.13 LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Designated
Event Repurchase Date or stated maturity of any Note shall not be a Business Day at any Place of Payment, then (notwithstanding
any other provision of this Indenture or of the Notes) payment of interest or principal or premium, if any, need not be made at
such Place of Payment on such day, but may be made on the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date, Designated Event Repurchase Date or at the stated maturity, provided, that
in the case that payment is made on such succeeding Business Day, no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Designated Event Repurchase Date or stated maturity, as the case may be.
SECTION 16.14 RECOURSE AGAINST OTHERS.
No recourse for the payment of the principal of
or premium, if any, or interest on any Note, or for any claim based thereon or otherwise in respect thereof, shall be had against
any incorporator, shareholder, officer or director, as such, past, present or future, of the Issuer, the Company or of any their
respective successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the acceptance thereof and as part of the consideration for the issue thereof,
expressly waived and released.
SECTION 16.15 WAIVER OF JURY TRIAL.
EACH OF THE COMPANY, THE ISSUER AND THE TRUSTEE
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
SECTION 16.16 FORCE MAJEURE.
In no event shall the Trustee be responsible or
liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or
military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent
with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed all as of the day and year first above written.
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LIONS GATE ENTERTAINMENT CORP.
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By:
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/s/ Wayne Levin
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Name: Wayne Levin
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Title: General Counsel, Secretary and Executive Vice
President, Corporate Operations
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LIONS GATE ENTERTAINMENT INC.
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By:
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/s/ Wayne Levin
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Name: Wayne Levin
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Title: Vice President and General Counsel
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
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By:
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/s/ Teresa Petta
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Name: Teresa Petta
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Title: Vice President
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EXHIBIT A
FORM OF NOTE
[Face of Note]
LIONS GATE ENTERTAINMENT
INC.
[Certificate No. ]
[
INSERT RESTRICTIVE SECURITIES
LEGEND AND GLOBAL NOTE LEGEND AS REQUIRED
]
4.00% CONVERTIBLE SENIOR
SUBORDINATED NOTE DUE 2017
CUSIP NO. [ ]
LIONS GATE ENTERTAINMENT
INC., a Delaware corporation (herein called the “ISSUER”), for value received, hereby promises to pay to Cede &
Co. or registered assigns, the principal sum of [dollar amount] ([$ AMOUNT]) on January 11, 2017, and interest thereon, as provided
on the reverse hereof, until the principal and any unpaid and accrued interest is paid or duly provided for. The right to payment
of the principal and all other amounts due with respect hereto is subordinated to the rights of Senior Debt as set forth in the
Indenture referred to on the reverse side hereof.
Interest Payment Dates:
January 15 and July 15, with the first payment to be made on July 15, 2012.
Record Dates: January 1
and July 1.
REFERENCE IS HEREBY MADE
TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE
SAME EFFECT AS IF SET FORTH AT THIS PLACE.
IN WITNESS WHEREOF, LIONS
GATE ENTERTAINMENT INC. has caused this instrument to be duly signed.
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LIONS GATE ENTERTAINMENT INC.
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By:
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Name:
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Title:
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A-1
TRUSTEE’S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes
referred to in the within-mentioned Indenture.
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
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By:
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Authorized Signatory
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Dated:
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A-2
[REVERSE OF NOTE]
LIONS GATE ENTERTAINMENT
INC.
4.00% CONVERTIBLE SENIOR
SUBORDINATED NOTE DUE 2017
1. INTEREST.
LIONS GATE ENTERTAINMENT INC., a Delaware corporation (the “ISSUER”), promises to pay interest on the principal amount
of this Note at the initial rate PER ANNUM shown above. The Issuer will pay interest semi-annually on January 15 and July 15 of
each year, with the first payment to be made on July 15, 2012. Interest on the Notes will accrue at a rate of 4.00% per annum on
the principal amount from the most recent date to which interest has been paid or provided for or, if no interest has been paid,
calculated from January 11, 2012. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
The Holder of this Note is entitled
to the benefits of a Note Guarantee whereby Lions Gate Entertainment Corp., a British Columbia corporation and parent of the Issuer
(the “COMPANY”), has fully and unconditionally guaranteed, as primary obligor and not merely as surety, to each Holder
and the Trustee, the payment of principal and interest on this Note on an unsecured senior subordinated basis.
2. MATURITY.
The Notes will mature on January 11, 2017 (“MATURITY”).
3. METHOD OF
PAYMENT. The Issuer will pay interest on the Notes (except defaulted interest) to the persons who are registered Holders at the
close of business on the record date set forth on the face of this Note next preceding the applicable interest payment date. Holders
must surrender Notes to the Issuer or its designated agent to collect the principal or Designated Event Repurchase Price of the
Notes. The Issuer will pay all amounts due with respect to the Notes in money of the United States that at the time of payment
is legal tender for payment of public and private debts. If this Note is in global form, the Issuer will pay interest on the Notes
by wire transfer of immediately available funds to The Depository Trust Company. With respect to Notes held other than in global
form, the Issuer will make payments: (i) by U.S. Dollar check drawn on a bank in The City of New York mailed to the address of
the Holder; or (ii) upon application to the Registrar not later than the relevant Record Date by a Holder of an aggregate principal
amount in excess of $5,000,000, by wire transfer in immediately available funds.
4. PAYING AGENT,
REGISTRAR, CONVERSION AGENT. Initially, The Bank of New York Mellon Trust Company, N.A., (the “TRUSTEE”) will act as
Paying Agent, Registrar and Conversion Agent. The Issuer may change any Paying Agent, Registrar or Conversion Agent without notice.
The Issuer or any Affiliate of the Issuer may act as Paying Agent.
5. INDENTURE.
The Issuer issued the Notes under an Indenture dated as of January 11, 2012 (the “INDENTURE”) between the Issuer, the
Company and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) (the “ACT”) as in effect on the date of the
Indenture. The Notes are subject to all such terms,
A-3
and Holders are referred to the Indenture
and the Act for a statement of such terms. The Notes are general unsecured senior subordinated obligations of the Issuer. Terms
used herein which are defined in the Indenture have the meanings assigned to them in the Indenture.
6. [RESERVED]
7. [RESERVED]
8.
REPURCHASE AT OPTION OF HOLDER UPON A DESIGNATED EVENT. If a Designated Event (as set forth in the Indenture) shall occur at any
time prior to Maturity, each Holder shall have the right, at such Holder’s option and subject to the terms and conditions
of the Indenture, to require the Issuer to purchase any or all of such Holder’s Notes for cash or any portion of the principal
amount thereof that is equal to $1,000 or whole multiples thereof for a repurchase price equal to 100% of the
principal
amount of the Notes
purchased plus accrued and unpaid interest to, but excluding, the Designated
Event Repurchase Date (the “DESIGNATED EVENT REPURCHASE PRICE”), provided that such interest will be paid to the person
who was the registered Holder at the close of business on the record date for the corresponding interest payment date. Notice of
the occurrence and type of Designated Event and containing the information required to be set forth in such notice by the Indenture
(the “DESIGNATED EVENT REPURCHASE NOTICE”), including, without limitation, the date selected by the Issuer that is
not less than 20 nor more than 30 Business Days after the date of the Designated Event Repurchase Notice (the “DESIGNATED
EVENT REPURCHASE DATE”), shall be given by the Issuer to each Holder at such Holder’s registered address, as well as
to the Trustee, not more than 10 days after the Issuer has become aware of such an occurrence. Each Holder electing to require
the Issuer to repurchase the Holder’s Notes shall submit such information and documents as are required by the Indenture,
to the Issuer or its designated agent on or before the close of business on the Designated Event Repurchase Date and shall deliver
(including by book-entry transfer) the Notes to be repurchased to the Issuer or its designated agent. The Issuer shall pay the
Designated Event Repurchase Price in cash. In the event that a Holder submits Notes to be repurchased, the Issuer shall pay or
deposit funds with the Paying Agent in the amount of the Designated Event Repurchase Price on the Trading Day immediately following
the Designated Event Repurchase Date. If a Holder submits the required documentation for Notes to be repurchased and funds are
paid or deposited as required, interest on and after the Designated Event Repurchase Date will cease to accrue on the Notes or
portions of Notes submitted for repurchase.
9. CONVERSION.
Subject to and upon compliance with the provisions of the Indenture, a Holder is entitled until the close of business on the Business
Day immediately preceding the Maturity Date, at its option, to convert any Notes that are whole multiples of $1,000 principal amount
into Common Shares (or, at the option of the Issuer, into cash or a combination of cash and Common Shares) at the Conversion Rate
in effect at the time of conversion, subject to the adjustments described below.
A-4
The initial conversion
rate is 95.23809 Common
Shares per $1,000 principal amount of Notes (
subject
to adjustment in the event of certain circumstances as specified in the Indenture, the “CONVERSION RATE”), or an effective
initial conversion price of approximately $10.50 per share (subject to adjustment in the event of certain circumstances as specified
in the Indenture, the “CONVERSION PRICE”).
If the conversion is in connection
with a Change in Control, there shall, under certain circumstances, be added to the Common Shares otherwise issuable upon conversion
an additional number of Common Shares as a Make Whole Premium as set forth in the Indenture. In the event that of a Change of Control
occurs that would otherwise trigger the obligation of the Issuer to pay the Make Whole Premium and the Acquiror is a Public Entity
or is a direct or indirect subsidiary of a Public Entity, the Issuer may elect instead to provide that the Notes become convertible
into common shares of the Public Entity, subject to certain conditions as specified in the Indenture.
Upon conversion, at the option of
the Issuer, the Issuer may, in lieu of delivery of the Common Shares issuable upon conversion, deliver cash or a combination of
cash and Common Shares in satisfaction of its obligations upon such conversion.
The Issuer will deliver cash in lieu
of any fractional share. Upon conversion, no payment or adjustment for any unpaid and accrued interest and additional interest,
if any, on the Notes will be made, except in certain circumstances as specified in the Indenture. If a Holder surrenders a Note
for conversion after the record date for the payment of interest but prior to the corresponding interest payment date, such Note,
when surrendered for conversion, must be accompanied by payment of an amount equal to the interest and additional interest, if
any, thereon which has accrued and will accrue and be paid on the Notes being converted on the corresponding interest payment date,
unless (1) the Notes have been converted in connection with a Designated Event as described in the Indenture or (2) overdue interest,
if any, exists at the time of conversion with respect to such Note.
To convert a Note, a Holder must (1)
with respect to any Note in certificated form, (A) complete and sign the Conversion Notice, with appropriate signature guarantee,
on the back of the Note and (B) surrender the Note to the Conversion Agent, (2) with respect to any interest in a Global Note,
(A) complete, or cause to be completed, the appropriate instruction form for conversion pursuant to the Depositary’s book-entry
conversion program and (B) deliver, or cause to be delivered, to the Conversion Agent by book-entry delivery the interest in such
Global Note being converted, (3) furnish appropriate endorsements and transfer documents if required by the Registrar or Conversion
Agent, (4) pay funds equal to the interest payable on the next interest payment date to which such Holder is not entitled, if any,
(as provided in the last sentence of the above paragraph) and (5) pay any transfer or similar tax if required. A Holder may convert
a portion of a Note if the portion is $1,000 principal amount or a positive integral multiple of $1,000 principal amount.
Any shares issued upon conversion
of a Note shall bear the Restrictive Securities Legend until the date that is the later of (i) six months after the date of original
issuance of the
A-5
shares (or one year after the original
issuance date in the case of Common Stock that is restricted upon issuance) and (ii) 90 days after the Holder ceases to be an affiliate.
10. SUBORDINATION.
The Notes are subordinated in right of payment, in the manner and to the extent set forth in the Indenture, to the prior payment
in full of all Senior Debt. Each Holder by accepting a Note agrees to such subordination and authorizes the Trustee to give it
effect.
11. DENOMINATIONS,
TRANSFER, EXCHANGE. The Notes are in registered form without coupons in denominations of $1,000 principal amount and positive integral
multiples of $1,000 principal amount. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture.
The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents. No service
charge shall be made for any such registration of transfer or exchange, but the Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith. The Registrar need not exchange or register the
transfer of any Notes for a period of 15 days in certain circumstances provided in the Indenture.
12. PERSONS DEEMED
OWNERS. The registered Holder of a Note may be treated as the owner of such Note for all purposes.
13. MERGER OR
CONSOLIDATION. The Issuer and the Company shall not consolidate with or merge with or into, or convey, transfer or lease all or
substantially all of their assets, whether in a single transaction or series of related transactions to any person unless (i) the
Issuer or Company is the resulting Successor Company or the Successor Company is a corporation organized and existing under the
laws of the United States, any State thereof or the District of Columbia or under the laws of Canada or any province thereof and
such Successor Company assumes by supplemental indenture, executed and delivered to the Trustee, in form satisfactory to the Trustee,
all of the Issuer’s and the Company’s obligations under the Indenture and the Notes, including the conversion rights;
(ii) immediately after giving effect to the transaction, no Default or Event of Default shall exist; and (iii) the Issuer and the
Company deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation,
merger or transfer and such supplemental indenture, if any, comply with the Indenture and the Notes.
14.
AMENDMENTS, SUPPLEMENTS AND WAIVERS. Subject to certain exceptions, the Indenture or the Notes may be modified or amended with
the consent or vote of the Holders of at least a majority in
aggregate principal
amount of the Notes
then outstanding, and any existing Default or Event of Default may be waived
with the consent or vote of the Holders of a majority in aggregate principal amount of the Notes then outstanding. Without notice
to or the consent of any Holder, the Indenture or the Notes may be modified or amended to cure any ambiguity or inconsistency,
to comply with Article VII of the Indenture, to comply with Section 14.11 of the Indenture, to reduce the conversion price, to
make any changes or modifications to the Indenture necessary in connection with the registration of the Notes under the Securities
Act and
A-6
the qualification of the Indenture
under the TIA, to secure the obligations of the Issuer in respect of the Notes, to add to covenants of the Issuer or the Company
described in the Indenture for the benefit of Holders or to surrender any right or power conferred upon the Issuer.
15. DEFAULTS
AND REMEDIES. An Event of Default includes the occurrence of any of the following: default in payment of principal and premium,
if any, at maturity, upon exercise of a repurchase right or otherwise; default for 30 days in payment of interest or other amounts
due; failure by the Issuer or the Company for 60 days after notice to it to comply with any of its other agreements in the Indenture
or the Notes; certain payment defaults or the acceleration of other indebtedness of the Issuer or its subsidiaries; certain events
of bankruptcy or insolvency involving the Issuer, the Company or any of the Company’s subsidiaries; and failure by the Issuer
to provide timely notice of the occurrence of a Designated Event. If any Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding may declare all the Notes to be due
and payable immediately, except as provided in the Indenture. If an Event of Default specified in Sections 5.1(e) or (f) of the
Indenture with respect to the Issuer or the Company occurs, the principal of and accrued interest on all the Notes shall become
and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. Holders may not
enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may require indemnity satisfactory to it before
it enforces the Indenture or the Notes. Subject to certain limitations, Holders of a majority in principal amount of the Notes
then outstanding may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders notice of
any continuing Default or Event of Default (except a Default or Event of Default in payment) if it determines that withholding
notice is in the interests of the Holders. The Issuer and the Company must furnish an annual compliance certificate to the Trustee.
16. REGISTRATION
RIGHTS. The Holders are entitled to registration rights as set forth in the Purchase Agreement dated January 11, 2012 among the
Issuer, Company and Holder.
17. TRUSTEE DEALINGS
WITH THE ISSUER. The Trustee under the Indenture, or any banking institution serving as successor Trustee thereunder, in its individual
or any other capacity, may make loans to, accept deposits from, and perform services for the Issuer or its Affiliates, and may
otherwise deal with the Issuer or its Affiliates, as if it were not Trustee.
18. NO RECOURSE
AGAINST OTHERS. No past, present or future director, officer, employee or shareholder, as such, of the Company shall have any liability
for any obligations of the Issuer under the Notes or the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Notes.
19. AUTHENTICATION.
This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
A-7
20. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entirety), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian),
and U/G/M/A (Uniform Gifts to Minors Act).
THE COMPANY WILL FURNISH
TO ANY HOLDER UPON WRITTEN REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO:
Lions Gate Entertainment
Corp.
Lions Gate Entertainment Inc.
2700 Colorado Blvd., Suite 200
Santa Monica, CA 90404
Attention: Chief Financial Officer
A-8
[FORM OF ASSIGNMENT]
I or we assign to
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PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING NUMBER
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(please print or type name and address)
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the within Note and all rights thereunder, and
hereby irrevocably constitutes and appoints Attorney to transfer the Note on the books of the Issuer with full power of substitution
in the premises.
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Dated:
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NOTICE: The signature on this assignment must
correspond with the name as it appears upon the face of the within Note in every particular without alteration or enlargement or
any change whatsoever and be guaranteed by a guarantor institution participating in the Securities Transfer Agents Medallion Program
or in such other guarantee program acceptable to the Trustee.
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In connection with any transfer
of this Note occurring prior to the date which is the earlier of (i) the date of the declaration by the SEC of the effectiveness
of a registration statement under the Securities Act of 1933, as amended (the “
Securities Act
”)
covering resales of this Note (which effectiveness shall not have been suspended or terminated at the date of the transfer) and
(ii) the Resale Restriction Termination Date, the undersigned confirms that it has not utilized any general solicitation or general
advertising in connection with transfer:
[Check One]
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(1)
¨
to the Issuer, the Company or any of their respective subsidiaries; or
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(2)
¨
pursuant to and in compliance with Rule
144A under the Securities Act of 1933, as amended; or
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(3)
¨
pursuant to the exemption from registration provided by Rule
144 under the Securities Act of 1933, as amended; or
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(4)
¨
pursuant to an effective registration statement under the Securities Act of 1933, as amended.
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A-9
and unless the box below is checked, the undersigned
confirms that such Note is not being transferred to an “affiliate” of the Issuer or the Company as defined in Rule
144 under the Securities Act of 1933, as amended (an “
Affiliate
”):
¨
The transferee is an Affiliate of the Issuer or the Company. (If the Note is transferred to an Affiliate, the restrictive legend
must remain on the Note until the later of (i) one year after the date of original issuance of the Note and (ii) 90 days after
the Holder ceases to be an affiliate).
Unless one of the items is
checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any person other than
the registered Holder thereof;
provided
,
however
, that if item
(2) or (3)
is checked, the Issuer or the Trustee may require, prior to registering any such transfer of the Notes, in their sole discretion,
such written legal opinions, certifications and other information as the Trustee or the Issuer have reasonably requested to confirm
that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements
of the Securities Act of 1933, as amended.
If none of the foregoing items
are checked, the Trustee or Registrar shall not be obligated to register this Note in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set forth herein and in Section 2.16 of the Indenture
shall have been satisfied.
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Dated:
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Signed:
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(Sign exactly as name appears on the other side
of this Note)
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Signature Guarantee:
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TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS
CHECKED
The undersigned represents
and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under
the Securities Act of 1933, as amended, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the Issuer and the Company as the undersigned has requested pursuant to Rule 144A
or has determined transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption
from registration provided by Rule 144A.
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Dated:
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NOTICE: To be executed by an executive officer
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A-10
CONVERSION NOTICE
To convert this Note into Common Shares of the
Company, check the box:
¨
To convert only part of this Note, state the
principal amount to be converted (must be in multiples of $1,000):
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$
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If you want the
share certificate made out in another person’s name, fill in the form below:
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(Insert other person’s soc. sec. or tax
I.D. no.)
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(Print or type other person’s name, address
and zip code)
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Dated:
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Signature(s):
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(Sign exactly as your name(s) appear(s) on the
other side of this Note)
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Signature(s) guaranteed by:
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(All signatures must be guaranteed by a guarantor
institution participating in the Securities Transfer Agents Medallion Program or in such other guarantee program acceptable to
the Trustee.)
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A-11
SCHEDULE A
SCHEDULE OF EXCHANGES OF
INTERESTS IN THE GLOBAL NOTE(1).
The following exchanges of
a part of this Global Note for an interest in another Global Note or for Notes in certificated form, have been made:
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Date of Exchange
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Amount of
decrease in
Principal amount of
this Global Note
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Amount of
increase in
Principle amount of
this Global Note
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Principal
amount of
this Global Note
following such
decrease (or increase)
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(1) This is included in Global Notes only.
A-12
EXHIBIT B
FORM OF NOTE GUARANTEE
For value received, the
undersigned hereby unconditionally guarantees, as primary obligor and not only as a surety, to the Holder of the Note the cash
payments in United States dollars of principal of, premium, if any, and interest on the Note in the amounts and at the times when
due and interest on the overdue principal, premium, if any, and interest, if any, of the Note, if lawful, and the payment or performance
of all other Obligations of the Company under the Indenture (as defined below) or the Note, to the Holder of the Note and the Trustee,
all in accordance with and subject to the terms and limitations of the Note, Article III of the Indenture, the subordination provisions
of Article XV of the Indenture and this Guarantee. This Guarantee will become effective in accordance with Article III of the Indenture
and its terms shall be evidenced therein. The validity and enforceability of this Guarantee shall not be affected by the fact that
it is not affixed to any particular Note. Capitalized terms used but not defined herein shall have the meanings ascribed to them
in the Indenture dated as of January 11, 2012, among Lions Gate Entertainment Inc., a Delaware corporation, as issuer (the “Company”),
Lions Gate Entertainment Corp, a British Columbia, Canada corporation, as guarantor (the “Guarantor”) and The Bank
of New York Mellon Trust Company, N.A., as trustee (the “Trustee”) (as amended or supplemented, the “Indenture”).
THIS GUARANTEE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES
OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. The Guarantor
hereby agrees to submit to the jurisdiction of the courts of the State of New York in any action or proceeding arising out of or
relating to this Guarantee.
This Guarantee is subject
to release upon the terms set forth in the Indenture.
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Date: January 11, 2012
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LIONS GATE ENTERTAINMENT CORP.
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By:
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Name:
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Title:
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B-1
EXHIBIT C-1
RESTRICTIVE SECURITIES
LEGEND FOR NOTES
THIS NOTE (OR ITS PREDECESSOR)
WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND THIS NOTE AND THE COMMON SHARES ISSUABLE UPON CONVERSION HEREOF MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS
HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES
ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE
AGREES FOR THE BENEFIT OF THE ISSUER AND THE COMPANY (1) THAT IT WILL NOT WITHIN THE LATER OF (X) (I) ONE YEAR AFTER THE DATE OF
ORIGINAL ISSUANCE OF THE NOTE, IN THE CASE OF THE NOTE, OR (II) SIX MONTHS AFTER THE DATE OF ORIGINAL ISSUANCE OF THE NOTE, IN
THE CASE OF THE COMMON SHARES ISSUABLE ON CONVERSION OF THE NOTE (OR ONE YEAR AFTER THE DATE OF ORIGINAL ISSUANCE IN THE CASE OF
COMMON SHARES THAT ARE RESTRICTED UPON ISSUANCE), AND (Y) 90 DAYS AFTER THE HOLDER CEASES TO BE AN AFFILIATE (WITHIN THE MEANING
OF RULE 144 UNDER THE SECURITIES ACT) OF THE ISSUER OR COMPANY (THE “RESALE RESTRICTION TERMINATION DATE”), OFFER,
RESELL, PLEDGE OR OTHERWISE TRANSFER THE NOTE EVIDENCED HEREBY OR THE COMMON SHARES ISSUABLE UPON CONVERSION OF SUCH NOTE, EXCEPT
(A) TO THE COMPANY OR ISSUER; (B) UNDER A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT; (C)
TO A PERSON THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, ALL IN COMPLIANCE WITH RULE 144A; OR (D) UNDER ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (2) THAT IT WILL, PRIOR TO ANY TRANSFER OF THIS SECURITY PURSUANT
TO CLAUSE (D) WITHIN THE LATER OF (X) ONE YEAR AFTER THE DATE OF ORIGINAL ISSUANCE OF NOTES AND (Y) 90 DAYS AFTER IT CEASES TO
BE AN AFFILIATE (WITHIN THE MEANING OF RULE 144 UNDER THE SECURITIES ACT) OF THE ISSUER OR THE COMPANY, FURNISH TO THE TRUSTEE
AND THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THEY MAY REQUIRE PURSUANT TO THE INDENTURE AND MAY RELY
UPON TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO SUCH OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT. IN ANY CASE, THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTION WITH
REGARD TO THE SECURITIES EXCEPT AS PERMITTED BY THE SECURITIES ACT. THE HOLDER OF THIS NOTE AGREES THAT IT WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO ABOVE. THE RESTRICTIONS
SET FORTH IN THIS LEGEND SHALL CEASE TO HAVE EFFECT ONE YEAR AFTER THE DATE OF ORIGINAL ISSUANCE OF THE NOTE PROVIDED THAT ALL
HOLDERS AFTER SUCH DATE SHALL CONTINUE TO BE REQUIRED TO TRANSFER SECURITIES IN CONFORMITY WITH THE REQUIREMENTS OF APPLICABLE
SECURITIES LAWS.
C-1
THIS NOTE, ANY SHARES OF
COMMON STOCK ISSUABLE UPON ITS CONVERSION AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY
THE RESTRICTIONS ON RESALES AND OTHER TRANSFERS OF THIS NOTE AND ANY SUCH SHARES TO REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION
(OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO THE RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER
OF THIS NOTE AND SUCH SHARES SHALL BE DEEMED BY THE ACCEPTANCE OF THIS NOTE AND ANY SUCH SHARES TO HAVE AGREED TO ANY SUCH AMENDMENT
OR SUPPLEMENT.
A-2
EXHIBIT C-2
RESTRICTIVE SECURITIES
LEGEND FOR GLOBAL NOTES
THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE
THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN
WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”), A NEW YORK CORPORATION, TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSONS IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
C-2
EXHIBIT C-3
RESTRICTIVE SECURITIES
LEGEND FOR COMMON SHARES
THIS SECURITY EVIDENCED
HEREBY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE COMMON SHARES REPRESENTED HEREBY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER HEREOF IS HEREBY
NOTIFIED THAT THE SELLER HEREOF MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED
BY RULE 144A THEREUNDER.
THE HOLDER OF THIS CERTIFICATE
AGREES FOR THE BENEFIT OF THE COMPANY (1) THAT IT WILL NOT WITHIN THE LATER OF (X) ONE YEAR AFTER THE DATE OF ORIGINAL ISSUANCE
OF THE NOTE UPON THE CONVERSION OF WHICH THIS SECURITY WAS ISSUED OR (Y) 90 DAYS AFTER IT CEASES TO BE AN AFFILIATE (WITHIN THE
MEANING OF RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY OR ISSUER (THE “RESALE RESTRICTION TERMINATION DATE”),
OFFER, RESELL, PLEDGE OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY, EXCEPT (A) TO THE COMPANY OR ISSUER; (B) UNDER A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT; (C) TO A PERSON THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF ANOTHER QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
ALL IN COMPLIANCE WITH RULE 144A; OR (D) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT; AND (2) THAT IT WILL, PRIOR TO ANY TRANSFER OF THIS SECURITY PURSUANT TO CLAUSE (D) WITHIN THE LATER OF (X) ONE YEAR AFTER
THE DATE OF ORIGINAL ISSUANCE OF THE NOTES UPON THE CONVERSION OF WHICH THIS SECURITY WAS ISSUED AND (Y) 90 DAYS AFTER IT CEASES
TO BE AN AFFILIATE (WITHIN THE MEANING OF RULE 144 UNDER THE SECURITIES ACT) OF THE ISSUER OR COMPANY, FURNISH TO THE TRANSFER
AGENT AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS MAY BE REQUIRED TO CONFIRM THAT SUCH TRANSFER
IS BEING MADE PURSUANT TO SUCH OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE RESTRICTIONS
SET FORTH IN THIS LEGEND SHALL CEASE TO HAVE EFFECT ONE YEAR AFTER THE DATE OF ORIGINAL ISSUANCE OF THE NOTES UPON THE CONVERSION
OF WHICH THIS SECURITY WAS ISSUED PROVIDED THAT ALL HOLDERS AFTER SUCH DATE SHALL CONTINUE TO BE REQUIRED TO TRANSFER SECURITIES
IN CONFORMITY WITH THE REQUIREMENTS OF APPLICABLE SECURITIES LAWS. IN ANY CASE THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY,
ENGAGE IN ANY HEDGING TRANSACTION WITH REGARD TO THE SECURITIES EXCEPT AS PERMITTED BY THE SECURITIES ACT. THE HOLDER WILL, AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITIES REPRESENTED HEREBY FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO ABOVE.
THIS CERTIFICATE AND ANY
RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON RESALES AND OTHER TRANSFERS
OF THE SECURITIES REPRESENTED HEREBY TO REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION THEREOF) OR
C-3
IN PRACTICES RELATING TO THE RESALE OR TRANSFER
OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS CERTIFICATE SHALL BE DEEMED BY THE ACCEPTANCE HEREOF TO HAVE AGREED TO SUCH
AMENDMENT OR SUPPLEMENT.
A-2
EXHIBIT D
FORM OF NOTICE OF TRANSFER
PURSUANT TO REGISTRATION STATEMENT
LIONS GATE ENTERTAINMENT INC.
LIONS GATE ENTERTAINMENT CORP.
2700 Colorado Avenue, Suite 200
Santa Monica, California 90404
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
700 South Flower Street, 5th Floor
Los Angeles, California 90017
Attention: Corporate Unit
Re: LIONS GATE
ENTERTAINMENT INC. (the “
Issuer
”) 4.00% Convertible Senior Subordinated Notes due 2017 (the “
Notes
”)
Ladies and Gentlemen:
Please be advised that has
transferred $ aggregate principal amount of the Notes or Common Shares, no par value per share, of the Issuer issuable on conversion
of the Notes (“
Common Shares
”) pursuant to an effective Shelf Registration Statement on Form S-3 (File No. 333-
).
We hereby certify
that the prospectus delivery requirements, if any, of the Securities Act of 1933 as amended, have been satisfied with respect to
the transfer described above and that the above-named beneficial owner of the Notes or Common Shares is named as a “
Selling
Security Holder
” in the Prospectus dated , 20 or in amendments or supplements thereto, and that
the
aggregate principal amount of the Notes
, or number of Common Shares transferred are [a portion
of] the Notes or Common Shares listed in such Prospectus, as amended or supplemented, opposite such owner’s name.
D-1
TABLE OF CONTENTS
|
|
|
Page
|
|
|
|
|
|
ARTICLE I
|
DEFINITIONS AND INCORPORATION BY REFERENCE
|
2
|
|
SECTION 1.1
|
DEFINITIONS
|
2
|
|
SECTION 1.2
|
INCORPORATION BY
REFERENCE OF TRUST INDENTURE ACT
|
12
|
|
SECTION 1.3
|
RULES OF CONSTRUCTION
|
13
|
|
ARTICLE II
|
THE NOTES
|
13
|
|
SECTION 2.1
|
FORM AND DATING
|
13
|
|
SECTION 2.2
|
EXECUTION AND AUTHENTICATION
|
15
|
|
SECTION 2.3
|
REGISTRAR, PAYING
AGENT AND CONVERSION AGENT
|
16
|
|
SECTION 2.4
|
PAYING AGENT TO
HOLD MONEY IN TRUST
|
16
|
|
SECTION 2.5
|
HOLDER LISTS
|
16
|
|
SECTION 2.6
|
TRANSFER AND EXCHANGE
|
17
|
|
SECTION 2.7
|
REPLACEMENT NOTES
|
17
|
|
SECTION 2.8
|
OUTSTANDING NOTES
|
17
|
|
SECTION 2.9
|
NOTES HELD BY THE
ISSUER OR AN AFFILIATE
|
18
|
|
SECTION 2.10
|
TEMPORARY NOTES
|
18
|
|
SECTION 2.11
|
CANCELLATION
|
18
|
|
SECTION 2.12
|
DEFAULTED INTEREST
|
18
|
|
SECTION 2.13
|
CUSIP NUMBERS
|
19
|
|
SECTION 2.14
|
DEPOSIT OF MONEYS
|
19
|
|
SECTION 2.15
|
BOOK-ENTRY PROVISIONS
FOR GLOBAL NOTES
|
19
|
|
SECTION 2.16
|
SPECIAL TRANSFER
PROVISIONS
|
20
|
|
SECTION 2.17
|
RESTRICTIVE SECURITIES
LEGENDS
|
22
|
|
ARTICLE III
|
NOTE GUARANTEE
|
22
|
|
SECTION 3.1
|
NOTE GUARANTEE
|
22
|
|
SECTION 3.2
|
CONSIDERATION
|
24
|
|
SECTION 3.3
|
EXECUTION OF GUARANTEE
|
24
|
|
SECTION 3.4
|
SUCCESSOR GUARANTEE
|
24
|
|
ARTICLE IV
|
SATISFACTION AND DISCHARGE
|
24
|
|
SECTION 4.1
|
SATISFACTION AND
DISCHARGE OF INDENTURE
|
24
|
i
TABLE OF CONTENTS
(continued)
|
|
|
Page
|
|
|
|
|
|
SECTION 4.2
|
DEPOSITED MONIES
TO BE HELD IN TRUST
|
25
|
|
SECTION 4.3
|
RETURN OF UNCLAIMED
MONIES
|
25
|
|
ARTICLE V
|
DEFAULTS AND REMEDIES
|
26
|
|
SECTION 5.1
|
EVENTS OF DEFAULT
|
26
|
|
SECTION 5.2
|
ACCELERATION OF
MATURITY; RESCISSION AND ANNULMENT
|
27
|
|
SECTION 5.3
|
OTHER REMEDIES
|
28
|
|
SECTION 5.4
|
WAIVER OF PAST
DEFAULTS
|
28
|
|
SECTION 5.5
|
CONTROL BY MAJORITY
|
28
|
|
SECTION 5.6
|
LIMITATION ON SUIT
|
29
|
|
SECTION 5.7
|
UNCONDITIONAL RIGHT
OF HOLDERS TO RECEIVE PAYMENT
|
29
|
|
SECTION 5.8
|
COLLECTION OF INDEBTEDNESS AND SUITS
FOR ENFORCEMENT BY THE TRUSTEE
|
30
|
|
SECTION 5.9
|
TRUSTEE MAY FILE
PROOFS OF CLAIM
|
30
|
|
SECTION 5.10
|
RESTORATION OF
RIGHTS AND REMEDIES
|
31
|
|
SECTION 5.11
|
RIGHTS AND REMEDIES
CUMULATIVE
|
31
|
|
SECTION 5.12
|
DELAY OR OMISSION
NOT WAIVER
|
31
|
|
SECTION 5.13
|
APPLICATION OF
MONEY COLLECTED
|
32
|
|
SECTION 5.14
|
UNDERTAKING FOR
COSTS
|
32
|
|
SECTION 5.15
|
WAIVER OF STAY
OR EXTENSION LAWS
|
32
|
|
ARTICLE VI
|
THE TRUSTEE
|
33
|
|
SECTION 6.1
|
DUTIES OF TRUSTEE
|
33
|
|
SECTION 6.2
|
RIGHTS OF TRUSTEE
|
34
|
|
SECTION 6.3
|
INDIVIDUAL RIGHTS
OF TRUSTEE
|
35
|
|
SECTION 6.4
|
TRUSTEE’S
DISCLAIMER
|
35
|
|
SECTION 6.5
|
NOTICE OF DEFAULTS
|
35
|
|
SECTION 6.6
|
REPORTS BY TRUSTEE
TO HOLDERS
|
36
|
|
SECTION 6.7
|
COMPENSATION AND
INDEMNITY
|
36
|
|
SECTION 6.8
|
REPLACEMENT OF
TRUSTEE
|
37
|
|
SECTION 6.9
|
SUCCESSOR TRUSTEE
BY MERGER, ETC.
|
38
|
ii
TABLE OF CONTENTS
(continued)
|
|
|
Page
|
|
|
|
|
|
SECTION 6.10
|
ELIGIBILITY; DISQUALIFICATION
|
38
|
|
SECTION 6.11
|
PREFERENTIAL COLLECTION OF CLAIMS
AGAINST ISSUER AND THE COMPANY
|
38
|
|
ARTICLE VII
|
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER
OR LEASE
|
38
|
|
SECTION 7.1
|
ISSUER OR COMPANY MAY CONSOLIDATE,
ETC., ONLY ON CERTAIN TERMS
|
38
|
|
SECTION 7.2
|
SUCCESSOR CORPORATION
SUBSTITUTED
|
39
|
|
ARTICLE VIII
|
AMENDMENTS, SUPPLEMENTS AND WAIVERS
|
39
|
|
SECTION 8.1
|
WITHOUT CONSENT
OF HOLDERS OF NOTES
|
39
|
|
SECTION 8.2
|
WITH CONSENT OF
HOLDERS OF NOTES
|
40
|
|
SECTION 8.3
|
COMPLIANCE WITH
TRUST INDENTURE ACT
|
41
|
|
SECTION 8.4
|
REVOCATION OF CONSENTS
AND EFFECT OF CONSENTS OR VOTES
|
41
|
|
SECTION 8.5
|
NOTATION ON OR
EXCHANGE OF NOTES
|
42
|
|
SECTION 8.6
|
TRUSTEE TO SIGN
AMENDMENT, ETC.
|
42
|
|
ARTICLE IX
|
MEETING OF HOLDERS OF NOTES
|
42
|
|
SECTION 9.1
|
PURPOSES FOR WHICH
MEETINGS MAY BE CALLED
|
42
|
|
SECTION 9.2
|
CALL NOTICE AND
PLACE OF MEETINGS
|
43
|
|
SECTION 9.3
|
PERSONS ENTITLED
TO VOTE AT MEETINGS
|
43
|
|
SECTION 9.4
|
QUORUM; ACTION
|
43
|
|
SECTION 9.5
|
DETERMINATION OF VOTING RIGHTS; CONDUCT
AND ADJOURNMENT OF MEETINGS
|
44
|
|
SECTION 9.6
|
COUNTING VOTES
AND RECORDING ACTION OF MEETINGS
|
44
|
|
ARTICLE X
|
COVENANTS
|
45
|
|
SECTION 10.1
|
PAYMENT OF
NOTES
|
45
|
|
SECTION 10.2
|
MAINTENANCE
OF OFFICE OR AGENCY
|
45
|
|
SECTION 10.3
|
REPORTS
|
45
|
|
SECTION 10.4
|
COMPLIANCE
CERTIFICATE
|
46
|
|
SECTION 10.5
|
STAY, EXTENSION
AND USURY LAWS
|
46
|
|
SECTION 10.6
|
CORPORATE EXISTENCE
|
46
|
iii
TABLE OF CONTENTS
(continued)
|
|
|
Page
|
|
|
|
|
|
SECTION 10.7
|
NOTICE OF DEFAULT
|
47
|
|
ARTICLE XI
|
MAKE WHOLE PREMIUM
|
47
|
|
SECTION 11.1
|
MAKE WHOLE PREMIUM
|
47
|
|
SECTION 11.2
|
ISSUER’S OPTION TO PROVIDE
FOR CONVERSION INTO SHARES OF ACQUIROR IN LIEU OF MAKE WHOLE PREMIUM
|
49
|
|
SECTION 11.3
|
ADJUSTMENTS RELATING
TO MAKE WHOLE PREMIUM
|
50
|
|
ARTICLE XII
|
[RESERVED]
|
50
|
|
ARTICLE XIII
|
REPURCHASE OF NOTES
|
50
|
|
SECTION 13.1
|
[RESERVED]
|
50
|
|
SECTION 13.2
|
REPURCHASE AT THE OPTION OF THE HOLDER
UPON A DESIGNATED EVENT
|
50
|
|
SECTION 13.3
|
[RESERVED]
|
51
|
|
SECTION 13.4
|
NOTICE OF OPTIONAL
REPURCHASE TO BE PROVIDED BY THE ISSUER
|
51
|
|
SECTION 13.5
|
NOTICE OF WITHDRAWAL
|
52
|
|
SECTION 13.6
|
PAYMENT OF THE
REPURCHASE PRICE
|
53
|
|
ARTICLE XIV
|
CONVERSION OF NOTES
|
53
|
|
SECTION 14.1
|
CONVERSION RIGHT
AND CONVERSION PRICE
|
53
|
|
SECTION 14.2
|
EXERCISE OF CONVERSION
RIGHT
|
54
|
|
SECTION 14.3
|
FRACTIONS OF SHARES
|
56
|
|
SECTION 14.4
|
ADJUSTMENT OF CONVERSION
RATE
|
56
|
|
SECTION 14.5
|
NOTICE OF ADJUSTMENTS
OF CONVERSION PRICE
|
65
|
|
SECTION 14.6
|
NOTICE PRIOR TO
CERTAIN ACTIONS
|
65
|
|
SECTION 14.7
|
COMPANY TO RESERVE
COMMON SHARES; INTERCOMPANY AGREEMENT
|
66
|
|
SECTION 14.8
|
TAXES ON CONVERSIONS
|
66
|
|
SECTION 14.9
|
COVENANT AS TO
COMMON SHARES
|
66
|
|
SECTION 14.10
|
CANCELLATION OF
CONVERTED NOTES
|
67
|
|
SECTION 14.11
|
EFFECT OF RECLASSIFICATION,
CONSOLIDATION, MERGER OR SALE
|
67
|
iv
TABLE OF CONTENTS
(continued)
|
|
|
Page
|
|
|
|
|
|
SECTION 14.12
|
RESPONSIBILITY
OF TRUSTEE FOR CONVERSION PROVISIONS
|
68
|
|
SECTION 14.13
|
LIMITATION ON CONVERSION
RIGHT
|
69
|
|
SECTION 14.14
|
OPTION TO SATISFY CONVERSION OBLIGATION
WITH CASH, COMMON SHARES OR A COMBINATION THEREOF
|
69
|
|
ARTICLE XV
|
SUBORDINATION OF NOTES
|
73
|
|
SECTION 15.1
|
NOTES SUBORDINATED
TO SENIOR DEBT
|
73
|
|
SECTION 15.2
|
NO PAYMENT ON NOTES
IN CERTAIN CIRCUMSTANCES
|
73
|
|
SECTION 15.3
|
PAYMENT OVER OF
PROCEEDS UPON DISSOLUTION, ETC.
|
74
|
|
SECTION 15.4
|
SUBROGATION
|
75
|
|
SECTION 15.5
|
OBLIGATIONS OF
THE ISSUER UNCONDITIONAL
|
76
|
|
SECTION 15.6
|
NOTICE TO TRUSTEE
|
76
|
|
SECTION 15.7
|
RELIANCE ON JUDICIAL ORDER OR CERTIFICATE
OF LIQUIDATING AGENT
|
77
|
|
SECTION 15.8
|
TRUSTEE’S
RELATION TO SENIOR DEBT
|
77
|
|
SECTION 15.9
|
SUBORDINATION RIGHTS NOT IMPAIRED
BY ACTS OR OMISSIONS OF THE ISSUER OR HOLDERS OF SENIOR DEBT
|
77
|
|
SECTION 15.10
|
HOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE
THE SUBORDINATION OF THE NOTES
|
78
|
|
SECTION 15.11
|
NOT TO PREVENT
EVENTS OF DEFAULT
|
78
|
|
SECTION 15.12
|
TRUSTEE’S
COMPENSATION NOT PREJUDICED
|
78
|
|
SECTION 15.13
|
NO WAIVER OF SUBORDINATION
PROVISIONS
|
78
|
|
SECTION 15.14
|
PAYMENTS MAY BE
PAID PRIOR TO DISSOLUTION
|
78
|
|
ARTICLE XVI
|
OTHER PROVISIONS OF GENERAL APPLICATION
|
79
|
|
SECTION 16.1
|
TRUST INDENTURE
ACT CONTROLS
|
79
|
|
SECTION 16.2
|
NOTICES
|
79
|
|
SECTION 16.3
|
COMMUNICATION BY
HOLDERS WITH OTHER HOLDERS
|
80
|
|
SECTION 16.4
|
ACTS OF HOLDERS
OF NOTES
|
80
|
v
TABLE OF CONTENTS
(continued)
|
|
|
Page
|
|
|
|
|
|
SECTION 16.5
|
CERTIFICATE AND
OPINION AS TO CONDITIONS PRECEDENT
|
81
|
|
SECTION 16.6
|
STATEMENTS REQUIRED
IN CERTIFICATE OR OPINION
|
82
|
|
SECTION 16.7
|
EFFECT OF HEADINGS
AND TABLE OF CONTENTS
|
82
|
|
SECTION 16.8
|
SUCCESSORS AND
ASSIGNS
|
82
|
|
SECTION 16.9
|
SEPARABILITY CLAUSE
|
83
|
|
SECTION 16.10
|
BENEFITS OF INDENTURE
|
83
|
|
SECTION 16.11
|
GOVERNING LAW
|
83
|
|
SECTION 16.12
|
COUNTERPARTS
|
83
|
|
SECTION 16.13
|
LEGAL HOLIDAYS
|
83
|
|
SECTION 16.14
|
RECOURSE AGAINST
OTHERS
|
83
|
|
SECTION 16.15
|
WAIVER OF JURY
TRIAL
|
84
|
|
SECTION 16.16
|
FORCE MAJEURE
|
84
|
vi
TABLE OF CONTENTS
(continued)
|
|
|
Page
|
|
|
|
|
|
Exhibit A
|
Form of Note
|
|
|
Schedule A
|
Schedule of Exchanges of Interests in the Global
Note
|
|
|
Exhibit B
|
Form of Note Guarantee
|
|
|
Exhibit C-1
|
Restrictive Securities Legend for Notes
|
|
|
Exhibit C-2
|
Restrictive Securities Legend for Global Notes
|
|
|
Exhibit C-3
|
Restrictive Securities Legend for Common Shares
|
|
|
Exhibit D
|
Form of Notice of Transfer Pursuant to Registration
Statement
|
|
vii
Exhibit 4.3
FIRST SUPPLEMENTAL INDENTURE
This First Supplemental Indenture (this “
Supplemental
Indenture
”), dated as of December 8, 2016, is entered into by and among Lions Gate Entertainment Inc., a corporation
organized under the laws of the State of Delaware (“
Issuer
”), Lions Gate Entertainment Corp., a corporation
organized under the laws of the Province of British Columbia (“
Company
”), and U.S. Bank National Association,
as trustee (the “
Trustee
”). Capitalized terms used herein and not otherwise defined herein have the meanings
set forth in the Indenture referred to below.
WHEREAS, the Issuer, the Company and the Trustee
are parties to that certain Indenture, dated as of April 15, 2013 (as amended, supplemented or otherwise modified prior to the
date hereof, the “
Indenture
”), relating to the issuance of the Issuer’s 1.25% Convertible Senior Subordinated
Notes due 2018 (the “
Notes
”);
WHEREAS, the Company, Orion Arm Acquisition
Inc., a Delaware corporation and Starz, a Delaware corporation, previously entered into an Agreement and Plan of Reorganization,
dated as of June 30, 2016 (as amended, supplemented, or otherwise modified from time to time, the “
Merger Agreement
”);
WHEREAS, pursuant to the terms of the Merger
Agreement and in connection with the closing of the merger contemplated by the Merger Agreement, on the date hereof the Company
has effected a reclassification of its outstanding share capital (the “
Reclassification
”), pursuant to which
each previously existing Common Share of the Company, without par value, was converted into 0.5 shares of newly issued Class A
voting shares, without par value, of the Company and 0.5 shares of newly issued Class B non-voting shares, without par value, of
the Company;
WHEREAS, prior to the date hereof, the Conversion
Price has been adjusted by the Company from time-to-time in connection with the payment of cash dividends by the Company (the “
Prior
Conversions
”);
WHEREAS, Section 14.11 of the Indenture
provides, among other things, that in the event of certain reclassifications or changes of the outstanding Common Shares, the Company
and the Issuer shall execute with the Trustee a supplemental indenture permitted under Section 8.1(c) of the Indenture providing
that following the reclassification, each Note shall be convertible into the kind and amount of shares of stock and other securities
or property or assets (including cash or any combination thereof) which the Holder thereof would have been entitled to receive
upon the reclassification had such Notes been converted into Common Shares immediately prior to the reclassification;
WHEREAS, in accordance with Section 8.1(g)
of the Indenture, the Issuer, the Company and the Trustee may amend or supplement the Indenture and the Notes as provided in this
Supplemental Indenture without the consent of any Holder to make provision with respect to the conversion rights of Holders of
Notes pursuant to Section 14.11 of the Indenture in connection with the Reclassification;
WHEREAS, in accordance with the Indenture,
the Issuer and the Company are entering into this Supplemental Indenture, which reflects both the Prior Conversions and the Reclassification;
WHEREAS, the Issuer and the Company have furnished
the Trustee with an Opinion of Counsel and an Officers’ Certificate in accordance with the Indenture; and
WHEREAS, all things necessary to make this
Supplemental Indenture a valid agreement of the Company, the Issuer and the Trustee and a valid amendment of, and supplement to,
the Indenture and the Notes have been done, and the entry into this Supplemental Indenture by the parties hereto is in all respects
authorized by the provisions of the Indenture.
NOW, THEREFORE, in consideration of the premises
set forth herein and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto
covenant and agree for the equal and proportionate benefit of all Holders of the Notes, as follows:
1. The
Indenture is, effective as of the date on which the Supplemental Indenture is entered into, hereby amended to delete the stricken
text (indicated textually in the same manner as the following example:
stricken text
)
and to add the double-underlined text (indicated textually in the same manner as the following example:
double-underlined
text
) as set forth in the pages of the Indenture attached as
Exhibit A
hereto.
2. THIS
SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD
BE REQUIRED THEREBY
.
3. This
instrument may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original but
all such counterparts shall together constitute but one and the same instrument.
4. The
rules of construction set forth in Section 1.3 of the Indenture shall apply to this Supplemental Indenture.
5. Upon
the effectiveness of this Supplemental Indenture, the Indenture shall be and be deemed to be modified and amended in accordance
herewith and the respective rights, limitations of rights, obligations, duties and immunities under the Indenture of the Trustee,
the Issuer, the Company and the Holders affected thereby shall hereafter be determined, exercised and enforced hereunder subject
in all respects to such modifications and amendments, and all the terms and conditions of this Supplemental Indenture shall be
and be deemed to be part of the terms and conditions of the Indenture for any and all purposes.
6. Except
as amended and supplemented hereby, all provisions in the Indenture shall remain in full force and effect and are in all respects
ratified and confirmed.
7. If
there is any express conflict or inconsistency between the Indenture and this Supplemental Indenture, the provisions of this Supplemental
Indenture shall control.
8. All
covenants and agreements in this Supplemental Indenture by the Issuer and the Company shall bind their successors and assigns,
whether so expressed or not.
9. In
case any provision in this Indenture or the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired thereby.
10. The
Trustee makes no representation as to the validity, priority or adequacy of this Supplemental Indenture.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have
caused this Supplemental Indenture to be duly executed.
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LIONS GATE ENTERTAINMENT CORP.
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By:
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/s/ Wayne Levin
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Name:
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Wayne Levin
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Title:
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General Counsel and Chief Strategic Officer
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LIONS GATE ENTERTAINMENT INC.
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By:
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/s/ Wayne Levin
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Name:
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Wayne Levin
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Title:
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President and Secretary
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Signature Page to First Supplemental Indenture
- 2018
IN WITNESS WHEREOF, the parties hereto have
caused this Supplemental Indenture to be duly executed.
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U.S. bank national association
, as Trustee
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By:
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/s/ Paula Oswald
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Name:
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Paula Oswald
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Title:
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Vice President
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Signature Page to First Supplemental Indenture
- 2018
Exhibit A
ADDED TEXT SHOWN
UNDERSCORED
DELETED TEXT SHOWN
STRIKETHROUGH
LIONS GATE ENTERTAINMENT INC.
as Issuer
LIONS GATE ENTERTAINMENT CORP.
as Guarantor
1.25% CONVERTIBLE SENIOR SUBORDINATED NOTES
DUE 2018
INDENTURE
Dated as of April 15, 2013
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
INDENTURE, dated as of April 15, 2013 among LIONS GATE ENTERTAINMENT
INC., a corporation duly organized and existing under the laws of the State of Delaware, having its principal office at 2700 Colorado
Avenue, Suite 200, Santa Monica, California 90404 (the “Issuer”), LIONS GATE ENTERTAINMENT CORP., a corporation duly
organized and existing under the laws of British Columbia, having its principal offices at 2700 Colorado Avenue, Suite 200, Santa
Monica, California 90404 and 1055 West Hastings Street, Suite 2200, Vancouver, British Columbia V6E 2E9 (the “Company”),
and U.S. BANK NATIONAL ASSOCIATION, a national banking association duly organized and existing under the laws of the United States,
as Trustee (the “Trustee”).
RECITALS OF THE ISSUER AND THE COMPANY
The Issuer and the Company have duly authorized
the creation of an issue of the Issuer’s 1.25% Convertible Senior Subordinated Notes due 2018 (the “Notes”),
in substantially the tenor and amount hereinafter set forth, and to provide therefor the Issuer and the Company have duly authorized
the execution and delivery of this Indenture.
All things necessary to make (i) the Notes, when the Notes are
executed by the Issuer and authenticated and delivered hereunder and duly issued by the Issuer, guaranteed fully and unconditionally
by the Company, the valid obligations of the Issuer, guaranteed fully and unconditionally by the Company, (ii) the Note Guarantee
the valid obligation of the Company, and (iii) this Indenture a valid agreement of the Issuer and the Company, in accordance with
their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders
of the Notes, as follows.
Article
I
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.1 DEFINITIONS.
“2016
Reclassification” shall mean the conversion of each existing common share of the Company, without par value, into 0.5 shares
of newly issued Class A Shares and 0.5 shares of newly issued Class B Shares on the 2016 Reclassification Date.
“2016
Reclassification Date” shall mean December 8, 2016.
“
Acquiror
” means, in a
transaction that is a Change in Control, the entity that acquires the Issuer or the Company, as the case may be.
“
Act of Holders
” when used
with respect to any Holder of a Note, has the meaning specified in Section 16.4(a) hereof.
“
Affiliate
” of any specified
Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with
such specified “
Person
.” For the purposes of this definition, “control”, when used with respect
to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled”
have meanings correlative to the foregoing.
“
Agent
” means any Registrar,
Paying Agent, Conversion Agent or co-registrar.
“
Bankruptcy Law
” means
Title 11 of the U.S. Code or any similar federal, state or foreign law for the relief of debtors.
“
Board of Directors
” means
either the board of directors of Issuer or the Company, as the case may be, or any committee of such board empowered to act for
it with respect to this Indenture.
“
Board Resolution
” means
a copy of a resolution certified by the Secretary or an Assistant Secretary of the Issuer or the Company, as the case may be, duly
adopted by such Board of Directors and in full force and effect on the date of such certification, and delivered to the Trustee.
“
Business Day
,” when used
with respect to any Place of Payment or Place of Conversion, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment or Place of Conversion, as the case may be, are authorized or
obligated by law to close.
“
Capital Shares
” means,
with respect to any Person, any and all shares, interests, participations or other equivalents (however designated, whether voting
or non-voting) in equity of such Person, whether now outstanding or issued after the date of this Indenture, including, without
limitation, all common shares and preferred shares.
“
Change in Control
” means
an event or series of events in which:
(a) any
“person,” including any syndicate or group deemed to be a “person” under Section 13(d)(3) of the Exchange
Act, acquires beneficial ownership, directly or indirectly, of Capital Shares of the Company entitling that person to exercise
more than 50% of the total voting power of all of the Capital Shares of the Company entitled to vote generally in elections of
directors (calculated without giving effect to any Common Shares issued or issuable by the Company upon conversion of Notes pursuant
to Article XIV hereof), other than any acquisition by the Company, any Subsidiary or any employee benefit plan of the Company;
(b) the
Company (1) consolidates with or merges into any other corporation or business entity or conveys or transfers or leases all or
substantially all of the assets of the Company to any other person, corporation or business entity or any other corporation or
business entity merges into the Company (except solely to the extent necessary to reflect a change in the jurisdiction of incorporation
of the Company), and, in any such case, (2) the holders of the Company’s Capital Shares immediately before such transaction
own, directly or indirectly, less than 50% of the combined voting power of the outstanding voting securities of the corporation
or
business entity resulting from, or the transferee
in, such transaction (calculated without giving effect to any Common Shares issued or issuable by the Company upon conversion of
Notes pursuant to Article XIV hereof);
(c) any
“person,” including any syndicate or group deemed to be a “person” under Section 13(d)(3) of the Exchange
Act, acquires beneficial ownership, directly or indirectly, of the Issuer’s Capital Shares entitling that person to exercise
more than 50% of the total voting power of all of the Capital Shares of the Issuer entitled to vote generally in elections of directors
(calculated without giving effect to any Common Shares issued or issuable by the Company upon conversion of Notes pursuant to Article
XIV hereof), other than any acquisition by the Company, the Issuer or any of their respective Subsidiaries or any of their respective
employee benefit plans; or
(d) the
Issuer (1) consolidates with or merges into any other corporation or business entity or conveys or transfers or leases all or substantially
all of the assets of the Issuer to any other person, corporation or business entity or any other corporation or business entity
merges into the Issuer (except solely to the extent necessary to reflect a change in jurisdiction of incorporation of the Issuer
or any parent of the Issuer), and, in any such case, (2) the holders of the Issuer’s Capital Shares immediately before such
transaction own, directly or indirectly, less than 50% of the combined voting power of the outstanding voting securities of the
corporation or business entity resulting from, or the transferee in, such transaction (calculated without giving effect to any
Common Shares issued or issuable by the Company upon conversion of Notes pursuant to Article XIV hereof);
provided, however, that a Change in Control
shall not be deemed to occur if at least 90% of the consideration in the Change in Control transaction consists of Capital Shares
traded primarily on a U.S. national securities exchange or quoted primarily on the Nasdaq National Market.
Beneficial ownership shall be determined in
accordance with Rule 13d-3 promulgated by the SEC under the Exchange Act (except that a person will be deemed to have beneficial
ownership of all shares that such person has the right to acquire, either immediately or with the passage of time). The term “person”
includes any syndicate or group that would be deemed to be a “person” under Section 13(d)(3) of the Exchange Act. In
determining beneficial ownership, the Issuer may rely on Schedule 13D and Schedule 13G filings filed pursuant to the Exchange Act.
“
Change in Management
”
shall mean that (a)
either
(i)
both
Jon Feltheimer
and
Michael Burns
or (ii) all four of
Steven Beeks
, Kevin Beggs, Brian Goldsmith and Wayne Levin
(each, a “Key Manager”) shall cease for any reason, including, without limitation, termination of employment,
death or disability (the term “disability” or “disabled” as used herein meaning an inability continuing
for one hundred and eighty (180) consecutive days (the “Disability Period”) to materially perform the functions and
services being performed by such Person as of the date of this Indenture), to materially perform the functions and services currently
being performed for the Company or Issuer by such Person as of the date of this Indenture and (b) the Company or Issuer shall
fail, for a period of ninety (90) consecutive days following the last day of the Disability Period in which a Key Manager may
be considered disabled or the day on which a Key Manager
shall have otherwise ceased to materially perform his executive
functions with the Company or Issuer as aforesaid (such date, the “Disability Determination Date”), to replace such
Key Manager with an individual acceptable to Holders of record as of such Disability Determination Date of a majority in aggregate
principal amount of the outstanding Notes, in their sole discretion. Any replacement for a Key Manager shall be deemed acceptable
to the Holders unless, within 20 days after receiving a written notice from the Issuer containing the name of the proposed replacement
shall have been mailed to such Holders, as contemplated in this Indenture, the Trustee notifies the Issuer in writing that Holders
of a majority in aggregate principal amount of the outstanding Notes object to such replacement.
“Class
A Conversion Price” has the meaning specified in Section 14.1 hereof.
“Class
B Conversion Price” has the meaning specified in Section 14.1 hereof.
“Class
A Conversion Rate” has the meaning specified in Section 14.1 hereof.
“Class
B Conversion Rate” has the meaning specified in Section 14.1 hereof.
“Class
A Shares” means Class A voting shares, without par value, of the Company.
“Class
B Shares” means Class B non-voting shares, without par value, of the Company.
“Class”
shall mean, as to shares of the Company, either Class A Shares or Class B Shares, as applicable.
“
Closing Price
” of any
security on any date of determination means:
(1) the
closing sale price (or, if no closing sale price is reported, the last reported sale price) of such security on the New York Stock
Exchange on such date;
(2) if
such security is not listed for trading on the New York Stock Exchange on any such date, the closing sale price as reported in
the composite transactions for the principal U.S. securities exchange on which such security is so listed;
(3) if
such security is not so listed on a U.S. national or regional securities exchange, the last reported sale price as reported by
the Nasdaq National Market;
(4) if
such security is not so reported, the last quoted bid price for such security in the over-the-counter market as reported by the
National Quotation Bureau or similar organization; or
(5) if
such bid price is not available, the average of the mid-point of the last bid and ask prices of such security on such date from
at least three nationally recognized independent investment banking firms retained for this purpose by the Issuer or Company.
“
Common Shares
” means any
shares of any class of the Company which has no preference in respect of dividends or of amounts payable in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the Company and which is not subject to redemption by the Company. However,
subject to the provisions of Section 14.11 hereof, shares issuable on conversion of Notes shall include only shares of the class
designated as Common Shares, no par value per share, of the Company at the date of execution of this Indenture or shares of any
class or classes resulting from any reclassification or reclassifications thereof and which have no preference in respect of dividends
or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company and which
are not subject to redemption by the Company, provided that if at any time there shall be more than one such resulting class, the
shares of each such class then so issuable shall be substantially in the proportion which the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications.
For the avoidance of doubt, as of the 2016 Reclassification Date, “Common Shares” shall include the Class A Shares
and the Class B Shares.
“
Company
” means the corporation
named as the “Company” in the first paragraph of this instrument until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor corporation.
“
Conversion Agent
” has
the meaning specified in Section 2.3 hereof.
“
Conversion Date
” has the
meaning specified in Section 14.2 hereof.
“
Conversion Notice
” has
the meaning specified in Section 14.2 hereof.
“
Conversion Price
” has
the meaning specified in Section 14.1 hereof.
“
Conversion Rate
” has the
meaning specified in Section 14.1 hereof.
“
Conversion Shares Cap
”
has the meaning specified in Section 11.1 hereof.
“
Corporate Trust Office
”
means the office of the Trustee at which at any particular time its corporate trust business shall be administered (which at the
date of execution of this Indenture is located at the office of U.S. Bank National Association at 633 W 5th Street, 24th Floor,
Los Angeles, California 90071, Attention: Corporate Trust Services), or at any other time at such other address as the Trustee
may designate from time to time by notice to the Company and the Holders.
“
Credit Facility Debt
”
means any and all amounts payable under or in respect of Senior Bank Facilities, including principal, premium, if any, interest
(including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Issuer
or the Company whether or not a claim for post-filing interest is allowed in such proceeding), fees, charges, expenses, reimbursement
obligations, guarantees and all other amounts payable thereunder or in respect thereof, in an aggregate principal amount not to
exceed $1,000,000,000 at any one time outstanding.
“
Current Market Price
”
has the meaning specified in Section 14.4(g).
“
Default
” means an event
which is, or after notice or lapse of time or both would be, an Event of Default.
“
Defaulted Interest
” has
the meaning specified in Section 2.12 hereof.
“
Defaulted Interest Special Record
Date
” for the payment of any Defaulted Interest means a date fixed by the Issuer pursuant to Section 2.12 hereof.
“
Depositary
” means The
Depository Trust Company, its nominees and their respective successors.
“
Designated Event
” means
a Change in Control, Change in Management or a Termination of Trading.
“
Designated Event Repurchase Date
”
has the meaning specified in Section 13.2 hereof.
“
Designated Event Repurchase Notice
”
has the meaning specified in Section 13.2 hereof.
“
Designated Event Repurchase Price
”
has the meaning specified in Section 13.2 hereof.
“
Designated Event Repurchase Right
”
has the meaning specified in Section 13.2 hereof.
“
Designated Senior Debt
”
means any Senior Debt (other than under any Senior Bank Facility) in an original principal amount of not less than $50 million.
“
Dollar
,” “
U.S.
Dollar
” or “
$
” means a dollar or other equivalent unit in such coin or currency of the United States
as at the time shall be legal tender for the payment of public and private debts.
“
Effective Date
” has the
meaning specified in Section 11.1 hereof.
“
Event of Default
” has
the meaning specified in Section 5.1 hereof.
“
Exchange Act
” means the
Securities Exchange Act of 1934, as amended.
“
Expiration Time
” has the
meaning specified in Section 14.4(f) hereof.
“
Fair Market Value
” has
the meaning set forth in Section 14.4(g) hereof.
“
Global Note
” has the meaning
specified in Section 2.1(f) hereof.
“
Holder
” means the Person
in whose name the Note is registered in the Register.
“
Indenture
” means this
instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof.
“
Interest Payment Date
”
means each April 15 and October 15, beginning October 15, 2013.
“
Issuer
” means the corporation
named as “Issuer” in the first paragraph of this instrument until a successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter “Issuer” shall mean such successor corporation.
“
Issuer Notice
” has the
meaning specified in Section 13.4 hereof.
“
Make Whole Premium
” has
the meaning specified in Section 11.1 hereof.
“
Make Whole Table
” has
the meaning specified in Section 11.1 hereof.
“
Maturity Date
” has the
meaning specified in Section 2.1(b) hereof.
“
Nasdaq National Market
”
means the National Association of Securities Dealers Automated Quotation National Market or any successor national securities exchange
or automated over-the-counter trading market in the United States.
“
Non-Electing Share
” has
the meaning specified in Section 14.11 hereof.
“
Note Guarantee
” has the
meaning specified in Section 3.1 hereof.
“
Notes
” has the meaning
ascribed to it in the first paragraph under the caption “Recitals of the Issuer and the Company.”
“
Obligations
” has the meaning
specified in Section 3.1 hereof.
“
Officer
” means the Chairman
or Vice Chairman of the Board of Directors, the Chief Executive Officer, the President, the Chief Financial Officer, the Treasurer,
any Vice President, the Secretary or Assistant Secretary of the Issuer or the Company, as the case may be.
“
Officers’ Certificate
”
means a certificate from the Issuer or the Company, as the case may be, signed by its (a) Chairman, Vice Chairman, President, Chief
Executive Officer, Chief Financial Officer or Vice President, and (b) Treasurer, Assistant Treasurer, Secretary or Assistant Secretary,
and delivered to the Trustee.
“
Opinion of Counsel
” means
a written opinion acceptable to the Trustee of counsel, who may be counsel to the Issuer and/or the Company, as the case may be
(and may include directors or employees of the Issuer or the Company, as the case may be).
“
Order
” means a written
request or order signed in the name of the Issuer by its Chairman of the Board of Directors, its President, its Chief Executive
Officer, its Chief Financial Officer or any Vice President, and delivered to the Trustee.
“
Participants
” has the
meaning specified in Section 2.15(a) hereof.
“
Paying Agent
” has the
meaning specified in Section 2.3 hereof.
“
Payment Blockage Period
”
has the meaning specified in Section 15.2(b) hereof.
“
Payment Default
” has the
meaning specified in Section 5.1(d)(i) hereof.
“
Person
” means an individual,
partnership, corporation, limited liability company, unincorporated organization, trust or joint venture, or any entity similar
to any of the foregoing organized under the laws of other countries, or a governmental agency or political subdivision thereof.
“
Physical Notes
” has the
meaning specified in Section 2.1(g) hereof.
“
Place of Conversion
” means
any city in which any Conversion Agent is located.
“
Place of Payment
” means
any city in which any Paying Agent is located.
“
Predecessor Note
” of any
particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note;
and, for the purposes of this definition, any Note authenticated and delivered under Section 2.7 hereof in exchange for or in lieu
of a mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen
Note.
“
Public Entity
” means an
entity with publicly-traded equity securities that are listed on a United States national or regional securities exchange or on
the NASDAQ National Market.
“
Purchased Shares
” has
the meaning specified in Section 14.4(f) hereof.
“
QIB
” means a “qualified
institutional buyer” as defined in Rule 144A.
“
Record Date
” means either
a Regular Record Date or a Special Record Date, as the case may be, provided that, for purposes of Section 14.4 hereof, Record
Date has the meaning specified in 14.4(g) hereof.
“
Reference Period
” has
the meaning specified in Section 14.4(d) hereof.
“
Register
” has the meaning
specified in Section 2.5 hereof.
“
Registrar
” has the meaning
specified in Section 2.3 hereof.
“
Regular Record Date
” for
the interest payable on the Notes means the close of business on the April 1 or October 1 (whether or not a Business Day), as the
case may be, preceding an Interest Payment Date.
“
Repurchase Date
” means
any Designated Event Repurchase Date.
“
Repurchase Notice
” means
any Designated Event Repurchase Notice.
“
Repurchase Price
” means
any Designated Event Repurchase Price.
“
Repurchase Right
” means
any Designated Event Repurchase Right.
“
Responsible Officer
,”
when used with respect to the Trustee, means any officer of the Trustee, including any vice president, assistant vice president,
the treasurer, any assistant treasurer, or any other officer of the Trustee customarily performing functions similar to those performed
by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject and who,
in each case, shall have direct responsibility for the administration of this Indenture.
“
Restricted Security
” means
a Note (or
any
Common Share into which such Note has been
converted) that constitutes a “restricted security” within the meaning of Rule 144(a)(3) under the Securities Act;
provided
, however, that the Trustee shall be entitled to request and conclusively rely on any Opinion of Counsel to the
Issuer with respect to whether any Note (or Common Share into which such Note has been converted) constitutes a Restricted Security.
“
Restrictive Securities Legend
”
has the meaning specified in Section 2.17(a) hereof.
“
Rule 144A
” means Rule
144A as promulgated under the Securities Act (including any successor rule thereof), as the same may be amended from time to time.
“
SEC
” means the Securities
and Exchange Commission or any successor thereto.
“
Securities Act
” means
the Securities Act of 1933, as amended.
“
Senior Bank Facilities
”
means the Third Amended and Restated Credit, Security, Guaranty and Pledge Agreement among the Issuer, as Borrower, the Guarantors
referred to therein, the Lenders party thereto from time to time, JPMorgan Chase Bank, N.A., as Administrative Agent and the other
parties thereto, dated as of September 27, 2012, as amended prior to the date hereof (the “Current Facility”) and any
amendment, extension, modification or waiver thereof, including any agreement extending the maturity of, refinancing, replacing
or otherwise restructuring (including increasing amounts available for borrowing thereunder or adding additional guarantors thereunder)
all or any portion of the Credit Facility Debt under such agreement or any successor or replacement agreement, whether or not with
the same lenders or agent, so long as any such refinancing, or amendment, extension, modification or waiver of any then existing
financing (any such refinancing, or amendment, extension, modification or waiver, a “Later Financing”), is secured
by assets of the Company or the Issuer or their respective subsidiaries; provided, however, that the lack of any validity or enforceability
of any lien or other security interest purported to be granted in connection with such Later Financing shall not affect the classification
of such Later Financing as a Senior Bank Facility.
“
Senior Debt
” means any
existing and future obligations of a Person with respect to (i) Credit Facility Debt (ii) Vendor Financing Debt and (iii) to the
extent of the value of the assets securing the debt described in this clause (iii), all secured financing in connection with motion
picture and television production and/or acquisition (including the rights of the entertainment
guilds pursuant to their collective bargaining
agreements with the film and television industries), and the acquisition of libraries and catalogues (either directly or through
acquisitions of entities whose principal assets consist of libraries and/or catalogues).
“
Senior Non-monetary Default
”
has the meaning specified in Section 15.2 hereof.
“
Senior Payment Default
”
has the meaning specified in Section 15.2 hereof.
“
Share Price
” has the meaning
specified in Section 11.1 hereof.
“
Share Price Cap
” has the
meaning specified in Section 11.1 hereof.
“
Share Price Threshold
”
has the meaning specified in Section 11.1 hereof.
“
Significant Subsidiary
”
has the meaning specified in Rule 1-02(w) under Regulation S-K promulgated by the SEC.
“
Special Record Date
” has
the meaning specified in Section 8.4 hereof.
“
Subsidiary
” means a corporation
more than 50% of the outstanding Voting Shares of which are owned, directly or indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries.
“
Successor Company
” has
the meaning specified in Section 7.1.
“
Termination of Trading
”
will be deemed to have occurred if
either Class of
the Common
Shares (or other common stock into which the Notes are convertible)
are
is
neither listed for trading on a U.S. national securities exchange nor approved for listing on the Nasdaq National Market or any
similar U.S. system of automated dissemination of quotations of securities prices, and no American Depository Shares or similar
instruments for such
common stock
Class
of Common Shares
are so listed or approved for listing in the U.S.
“
TIA
” means the Trust Indenture
Act of 1939 (15 U.S. Code Section 77aaa- 77bbbb), as in effect on the date of execution of this Indenture; provided, however, that
in the event the TIA is amended after such date, “TIA” means, to the extent required by such amendment, the Trust Indenture
Act of 1939, as so amended, or any successor statute.
“
Trading Day
” means:
(1) if
the applicable security is listed or admitted for trading on the New York Stock Exchange or another national security exchange,
a day on which the New York Stock Exchange or such other national security is open for business;
(2) if
the applicable security is quoted on the Nasdaq National Market, a day on which trades may be made thereon; or
(3) if
the applicable security is not so listed, admitted for trading or quoted, any day other than a Saturday or Sunday or a day on which
banking institutions in the State of New York are authorized or obligated by law or executive order to close.
“
Transfer Agent
” means
any Person, which may be the Company, authorized by the Company to exchange or register the transfer of Notes, initially U.S. Bank
National Association.
“
Trigger Event
” has the
meaning specified in Section 14.4(d) hereof.
“
Trustee
” means the Person
named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean such successor Trustee.
“
Vendor Financing Debt
”
means obligations of the Company or the Issuer, directly or by guarantee, owing to Persons providing financing to any of such entities,
which Persons are bona fide suppliers of products or services to such entities, in an aggregate principal amount not to exceed
$100.0 million at any one time outstanding for all such Persons. If at any time there are obligations outstanding to all such Persons
in a principal amount in excess of $100.0 million, then the Vendor Financing Debt shall be allocated, as among the holders of Vendor
Financing Debt only, in accordance with a schedule provided by the Issuer and the Company to the Trustee, or if no such schedule
has been provided, pro rata among the holders of the Vendor Financing Debt.
“
Vice President
” means
any vice president of a corporation, whether or not designated by a number or a word or words added before or after the title “vice
president.”
“
Voting Shares
” means with
respect to any Person, Capital Shares of any class or kind ordinarily having the power to vote for the election of directors, managers
or other voting members of the governing body of such Person.
“
Withdrawal Notice
” has
the meaning specified in Section 13.5 hereto.
SECTION 1.2 INCORPORATION BY REFERENCE OF
TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
“
indenture securities
”
means the Notes;
“
indenture security holder
”
means a Holder;
“
indenture to be qualified
”
means this Indenture;
“
indenture trustee
” or
“
institutional trustee
” means the Trustee; and
“
obligor
” on the Notes
means the Issuer and the Company and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or defined by SEC rules have the meanings assigned to them by such definitions.
SECTION 1.3 RULES OF CONSTRUCTION.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the
terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all
accounting terms not otherwise defined herein have the meanings assigned to them in accordance with accounting principles generally
accepted in the United States prevailing at the time of any relevant computation hereunder; and
(3) the
words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture
as a whole and not to any particular Article, Section or other subdivision.
Article
II
THE NOTES
SECTION 2.1 FORM AND DATING.
(a) The
Notes shall be known and designated as the “1.25% Convertible Senior Subordinated Notes due 2018” of the Issuer. The
aggregate principal amount of the Notes which may be authenticated and delivered under this Indenture shall initially be limited
to $60,000,000, but may be reopened at any time and from time to time for the issuance of additional Notes, which Notes shall have
identical terms except that such additional Notes may have different initial issuance prices and first interest payment dates.
(b) The
Notes shall mature on April 15, 2018 (the “Maturity Date”).
(c) Interest
shall accrue at a rate of 1.25% per annum on the principal amount of the Notes calculated from April 15, 2013 or from the most
recent date to which interest has been paid until the principal of the Notes is paid or made available for payment pursuant to
the terms of this Indenture. Interest shall be payable semiannually in arrears on April 15 and October 15 in each year, commencing
October 15, 2013.
Interest on the Notes shall be computed on
the basis of a 360-day year comprised of twelve 30-day months, and, in the case of a partial month, the actual number of days elapsed.
Except as provided in the next succeeding
paragraph, a Holder of any Note shall not be entitled to receive any interest that has accrued on such Note if such Note is converted
into Common Shares on any day other than an Interest Payment Date. By delivering to the Holder of
any Note that is converted into Common Shares
the number of shares issuable upon conversion, together with a cash payment, if any, in lieu of a fractional share, the Issuer
and the Company shall be deemed to have satisfied their obligation with respect to such Note. Accordingly, accrued but unpaid interest
shall be deemed to be paid in full rather than canceled, extinguished or forfeited.
If a Holder of any Note converts such Note
after a Regular Record Date but prior to the corresponding Interest Payment Date, the Holder of record on such Regular Record Date
shall be entitled to receive on the Interest Payment Date interest accrued and paid on such Note, notwithstanding the conversion
of such Note prior to such Interest Payment Date. However, at the time such Holder surrenders such Note for conversion, such Holder
shall pay the Issuer an amount equal to the interest that will be paid on the Notes being converted on the Interest Payment Date.
However, in the event that (i) overdue interest, if any, exists at the time of conversion with respect to such Note or (ii) a Holder
exercises its Designated Event Repurchase Right for a Note on a Designated Event Repurchase Date that is after a Record Date for
an interest payment but prior to the corresponding Interest Payment Date, and prior to such Designated Event Repurchase Date a
Holder of any Note chooses to convert such Note, then such Holder shall not be required to pay the Issuer at the time such Holder
surrenders such Note for conversion the amount of interest on such Note such Holder shall be entitled to receive on the date that
has been fixed for repurchase if such Holder’s conversion right would terminate because of the repurchase between the Regular
Record Date and the close of business on the second Business Day following the next succeeding Interest Payment Date. Accrued but
unpaid interest will be payable upon any conversion of Notes made concurrently with or after acceleration of the Notes following
an Event of Default.
Principal of, and premium, if any, and interest
on, Global Notes shall be payable to the Depositary in immediately available funds.
Principal and premium, if any, and interest
on maturity, on Physical Notes shall be payable at the office or agency of the Issuer maintained for such purpose, initially the
Corporate Trust Office of the Trustee. Interest on Physical Notes (other than at maturity) will be payable by (i) U.S. Dollar check
drawn on a bank in The City of New York mailed to the address of the Holder, or (ii) upon application to the Registrar not later
than the relevant Record Date by a Holder, of an aggregate principal amount in excess of $5,000,000, wire transfer in immediately
available funds.
(d) The
Notes shall be guaranteed as to payment and performance of conversion rights by the Company as provided in Article III; provided
that nothing herein shall require the Note Guarantee to be endorsed on any Note and the failure to so endorse a Note Guarantee
thereon shall not impair the validity or enforceability of the Note Guarantee with respect to any such Note.
(e) The
Notes and the Trustee’s certificate of authentication shall be substantially in the form set forth in EXHIBIT A, which is
incorporated in and forms a part of this Indenture. The Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note shall be dated the date of its authentication.
(f) The
Notes are being offered and sold in reliance on Section 4(2) of the Securities Act and shall be issued initially in the form of
one or more Global Notes, substantially in
the form set forth in EXHIBIT A (the “Global
Note”), deposited with the Trustee, as custodian for the Depositary, duly executed by the Company and authenticated by the
Trustee as hereinafter provided and bearing the legends set forth in EXHIBITS C-1 and C-2. The aggregate principal amount of the
Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for
the Depositary, as hereinafter provided, subject to the limitations provided in Section 2.1(a) hereof on the aggregate principal
amount of the Global Note or Notes.
(g) Notes
issued in exchange for interests in a Global Note pursuant to Section 2.15 may be issued in the form of permanent certificated
Notes in registered form in substantially the form set forth in EXHIBIT A (the “Physical Notes”) and, if applicable,
bearing any legends required by Section 2.17.
SECTION 2.2 EXECUTION AND AUTHENTICATION.
(a) One
Officer of the Issuer shall sign the Notes for the Issuer by manual or facsimile signature.
(b) If
an Officer of the Issuer whose signature is on a Note no longer holds that office at the time the Note is authenticated, the Note
shall nevertheless be valid.
(c) A
Note shall not be valid until authenticated by the manual signature of the Trustee. The signature shall be conclusive evidence
that the Note has been authenticated under this Indenture.
(d) Upon
an Order of the Issuer signed by one Officer of the Issuer, the Trustee shall authenticate Notes for original issue in the aggregate
principal amount of $60,000,000, or in the aggregate principal amount of additional Notes as shall be permitted pursuant to Section
2.1(a), as applicable. In authenticating such Notes or additional Notes, and accepting the additional responsibilities under this
Indenture in relation to such Notes or additional Notes, the Trustee shall receive, and, subject to Section 6.1, shall be fully
protected in relying upon:
(i) a
copy of the Board Resolution of the Board of Directors approving the issuance of the Notes or additional Notes, certified by the
Secretary or an Assistant Secretary of the Issuer to have been duly adopted by the Board of Directors and to be in full force and
effect as of the date of such certificate;
(ii) an
Officers' Certificate complying with Section 16.6; and
(iii) an
Opinion of Counsel complying with Section 16.6.
(e) Upon
an Order of the Issuer signed by two Officers of the Issuer, the Trustee shall authenticate Notes not bearing the Restrictive Securities
Legend to be issued to the transferee when sold pursuant to an effective registration statement under the Securities Act as set
forth in Section 2.16(c) hereof.
(f) The
Trustee shall act as the initial authenticating agent. Thereafter, the Trustee may appoint an authenticating agent acceptable to
the Issuer to authenticate Notes. An
authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such
authenticating agent. An authenticating agent has the same rights as an Agent to deal with the Issuer and its Affiliates.
(g) The
Notes shall be issuable only in registered form without interest coupons and only in denominations of $1,000 principal amount and
any positive integral multiple thereof.
SECTION 2.3 REGISTRAR, PAYING AGENT AND CONVERSION
AGENT.
(a) The
Issuer shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange (“Registrar”),
an office or agency where Notes may be presented for payment (“Paying Agent”) and an office or agency where Notes may
be presented for conversion (“Conversion Agent”). The Registrar shall keep a register of the Notes and of their transfer
and exchange. The Issuer may appoint or change one or more co-registrars, one or more additional paying agents and one or more
additional conversion agents without notice and may act in any such capacity on its own behalf. The term “Registrar”
includes any co-registrar; the term “Paying Agent” includes any additional paying agent; and the term “Conversion
Agent” includes any additional conversion agent.
(b) The
Issuer shall enter into an appropriate agency agreement with any Agent not a party to this Indenture. The agreement shall implement
the provisions of this Indenture that relate to such Agent. The Issuer shall notify the Trustee of the name and address of any
Agent not a party to this Indenture. If the Issuer fails to maintain a Registrar, Paying Agent or Conversion Agent, the Trustee
shall act as such. The Issuer or any Affiliate of the Issuer may act as Paying Agent.
(c) The
Issuer initially appoints the Trustee as Paying Agent, Registrar and Conversion Agent.
SECTION 2.4 PAYING AGENT TO HOLD MONEY IN
TRUST.
Subject to Section 15.2, each Paying Agent shall hold in trust
for the benefit of the Holders or the Trustee all moneys held by the Paying Agent for the payment of the Notes, and shall notify
the Trustee of any default by the Issuer in making any such payment. While any such default continues, the Trustee may require
a Paying Agent to pay all money held by it to the Trustee. The Issuer at any time may require a Paying Agent to pay all money held
by it to the Trustee. Upon payment over to the Trustee, the Paying Agent shall have no further liability for the money. If the
Issuer acts as Paying Agent, it shall segregate and hold as a separate trust fund all money held by it as Paying Agent.
SECTION 2.5 HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of Holders (the “Register”). If the Trustee
is not the Registrar, the Issuer shall furnish to the Trustee on or before each interest payment date and at such other times as
the Trustee may request in writing the Register.
SECTION 2.6 TRANSFER AND EXCHANGE.
(a) Subject
to Sections 2.15 and 2.16 hereof, when Notes are presented to the Registrar with a request to register their transfer or to exchange
them for an equal principal amount of Notes of other authorized denominations, the Registrar shall register the transfer or make
the exchange if its requirements for such transaction are met. To permit registrations of transfer and exchanges, the Trustee shall
authenticate Notes at the Registrar’s request.
(b) No
service charge shall be made for any transfer, exchange or conversion of Notes, but the Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection with any transfer, exchange or conversion of Notes,
other than exchanges pursuant to Sections 2.10, 12.6, 13.1, 13.2 or 14.2 not involving any transfer.
SECTION 2.7 REPLACEMENT NOTES.
(a) If
the Holder claims that the Note has been mutilated, lost, destroyed or stolen, the Issuer shall issue and the Trustee shall authenticate
a replacement Note if the Trustee’s requirements are met and, in the case of a mutilated Note, such mutilated Note is surrendered
to the Trustee. In the case of lost, destroyed or stolen Notes, if required by the Trustee, an indemnity bond must be provided
by the Holder that is sufficient in the judgment of the Trustee to protect the Issuer, the Trustee or any Agent from any loss which
any of them may suffer if a Note is replaced. The Issuer may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation to replacing a Note and any other reasonable expenses (including the reasonable fees and
expenses of the Trustee) in connection therewith.
(b) In
case any such mutilated, lost, destroyed or stolen Note has become or is about to become due and payable, the Issuer in its discretion
may, instead of issuing a new Note, pay such Note when due.
(c) Every
replacement Note is an additional obligation of the Issuer only as provided in Section 2.8.
SECTION 2.8 OUTSTANDING NOTES.
(a) The
Notes outstanding at any time are all the Notes authenticated by the Trustee except for those converted, those cancelled by it,
those delivered to it for cancellation and those described in this Section 2.8 as not outstanding. Except to the extent provided
in Section 2.9, a Note does not cease to be outstanding because the Issuer or one of its subsidiaries or Affiliates holds the Note.
(b) If
a Note is replaced pursuant to Section 2.7, it ceases to be outstanding unless the Trustee receives proof satisfactory to it, or
a court holds, that the replaced Note is held by a protected purchaser, as that term is defined in the New York Uniform Commercial
Code.
(c) If
the Paying Agent (other than the Issuer or any Affiliate of the Issuer) holds on a Repurchase Date or Maturity Date money sufficient
to pay Notes payable on that date (or, if the Issuer acts as Paying Agent, if the Issuer has segregated and holds such money in
trust in
accordance with Section 2.4 hereof), then
on and after that date, such Notes shall be deemed to be no longer outstanding and interest on them shall cease to accrue, and
such Note shall be deemed paid whether or not the Note is delivered to the Paying Agent. Thereafter, all other rights of the Holders
of such Notes shall terminate with respect to such Notes, other than the right to receive the Repurchase Price or principal amount,
as applicable.
(d) If
a Note is converted in accordance with Article XIV hereof, then from and after the time of conversion on the Conversion Date, such
Note will cease to be outstanding, and interest, if any, will cease to accrue on such Note.
SECTION 2.9 NOTES HELD BY THE ISSUER OR AN
AFFILIATE.
In determining whether the Holders of the required aggregate
principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuer or any of its subsidiaries
or an Affiliate shall be considered as though not outstanding, except that for the purposes of determining whether a Responsible
Officer of the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes which the Trustee knows
are so owned shall be so disregarded.
SECTION 2.10 TEMPORARY NOTES.
Until definitive Notes are ready for delivery, the Issuer may
prepare and the Trustee shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of definitive Notes
but may have variations that the Issuer considers appropriate for temporary Notes. Without unreasonable delay, the Issuer shall
prepare and the Trustee shall authenticate definitive Notes in exchange for temporary Notes.
SECTION 2.11 CANCELLATION.
The Issuer at any time may deliver Notes to the Trustee for
cancellation. The Registrar, Paying Agent and Conversion Agent shall forward to the Trustee any Notes surrendered to them for transfer,
exchange, payment or conversion. The Trustee shall cancel all Notes surrendered for transfer, exchange, payment, conversion or
cancellation in accordance with its customary procedures. The Issuer may not issue new Notes to replace Notes that it has paid
or delivered to the Trustee for cancellation or that any Holder has converted pursuant to Article XIV.
SECTION 2.12 DEFAULTED INTEREST.
If and to the extent the Issuer defaults in a payment of interest
on the Notes, the Issuer shall pay the defaulted interest in any lawful manner plus, to the extent not prohibited by applicable
statute or case law, interest payable on the defaulted interest at the rate provided in the Notes (the “Defaulted Interest”).
The Issuer may pay the Defaulted Interest to the persons who are Holders on a subsequent special record date fixed by the Issuer
(a “Defaulted Interest Special Record Date”). The Issuer shall fix such Defaulted Interest Special Record Date and
payment date. At least 15 days before the Defaulted Interest Special Record Date, the Issuer shall mail to Holders a notice that
states the Defaulted Interest Special Record Date, payment date and amount of interest to be paid.
SECTION 2.13 CUSIP NUMBERS.
The Issuer in issuing the Notes may use one or more “CUSIP”
numbers, and if so, the Trustee shall use the CUSIP numbers in notices of exchange as a convenience to Holders; provided, however,
that no representation is hereby deemed to be made by the Trustee as to the correctness or accuracy of the CUSIP numbers printed
in the notice or on the Notes, and that reliance may be placed only on the other identification numbers printed on the Notes. The
Issuer shall promptly notify the Trustee of any change in the CUSIP numbers.
SECTION 2.14 DEPOSIT OF MONEYS.
Prior to 11:00 A.M., New York City time, on each Interest Payment
Date, Maturity Date and Repurchase Date, the Issuer shall have deposited with a Paying Agent in immediately available funds money
sufficient to make cash payments, if any, due on such Interest Payment Date, Maturity Date and Repurchase Date, as the case may
be, in a timely manner which permits the Paying Agent to remit payment to the Holders on such Interest Payment Date, Maturity Date
and Repurchase Date, as the case may be.
SECTION 2.15 BOOK-ENTRY PROVISIONS FOR GLOBAL
NOTES.
(a) The
Global Notes initially shall (i) be registered in the name of the Depositary or the nominee of such Depositary, (ii) be delivered
to the Trustee as custodian for such Depositary, and (iii) bear legends as set forth in Section 2.17.
Members of, or participants in, the Depositary
(“Participants”) shall have no rights under this Indenture with respect to any Global Notes held on their behalf by
the Depositary, or the Trustee as its custodian, or under the Global Notes, and the Depositary may be treated by the Issuer, the
Trustee and any agent of the Issuer or the Trustee as the absolute owner of the Global Notes for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect
to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and
Participants, the operation of customary practices governing the exercise of the rights of a Holder of any Notes.
(b) Transfers
of Global Notes shall be limited to transfers in whole, or in part, to the Depositary, its successors or their respective nominees.
In addition, Physical Notes shall be transferred to all beneficial owners in exchange for their beneficial interests in Global
Notes if (i) the Depositary notifies the Issuer that it is unwilling or unable to continue as Depositary for any Global Note and
a successor Depositary is not appointed by the Issuer within 90 days of such notice or (ii) an Event of Default has occurred and
is continuing and the Registrar has received a written request from the Depositary to issue Physical Notes.
(c) In
connection with the transfer of a Global Note in its entirety to beneficial owners pursuant to Section 2.15(b), such Global Note
shall be deemed to be surrendered to the Trustee for cancellation, and the Issuer shall execute, and the Trustee shall upon written
instructions from the Issuer authenticate and deliver to each beneficial owner identified by the Depositary in exchange for its
beneficial interest in such Global Note, an equal aggregate principal amount of Physical Notes of authorized denominations.
(d) Any
Physical Note constituting a Restricted Security delivered in exchange for an interest in a Global Note pursuant to Section 2.15(b)
shall, except as otherwise provided by Section 2.16, bear the Restrictive Securities Legend.
(e) The
Holder of any Global Note may grant proxies and otherwise authorize any Person, including Participants and Persons that may hold
interests through Participants, to take any action which a Holder is entitled to take under this Indenture or the Notes.
SECTION 2.16
SPECIAL
TRANSFER PROVISIONS
.
(a)
Transfers
to QIBs
. The following provisions shall apply with respect to the registration of any proposed transfer of a Restricted Security
to a QIB:
(i) the
Registrar shall register the transfer of any Restricted Security, whether or not such Note bears the Restrictive Securities Legend,
if (x) the requested transfer is after the first anniversary of the issue date for the Notes;
provided
,
however
,
that neither the Company nor any of its Affiliates has held any beneficial interest in such Note, or portion thereof, at any time
on or prior to the first anniversary of the issue date for the Notes or (y) such transfer is being made by a proposed transferor
who has checked the box provided for on the form of Note stating, or has otherwise advised the Issuer and the Registrar in writing,
that the sale has been made in compliance with the provisions of Rule 144A to a transferee who has signed the certification provided
for on the form of Note stating, or has otherwise advised the Issuer and the Registrar in writing, that it is purchasing the Note
for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account
is a QIB within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the Issuer as it has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption
from registration provided by Rule 144A; and
(ii) if
the proposed transferor is a Participant seeking to transfer an interest in one Global Note to a transferee who will hold such
interest in another Global Note, upon receipt by the Registrar of (x) written instructions given in accordance with the Depositary’s
and the Registrar’s procedures and (y) the appropriate certificates and other documents, if any, required by clause (y) of
paragraph (i) above, the Registrar shall register the transfer and reflect on its books and records the date and (A) a decrease
in the aggregate principal amount of the Global Note through which the transferor held such interest in an amount equal to the
aggregate principal amount of the Notes to be transferred and (B) an increase in the aggregate principal amount of the Global Note
through which the transferee proposes to hold such interest, in an amount equal to the aggregate principal amount of the Notes
to be transferred.
(b)
Restrictions
on Transfer and Exchange of Global Notes
. Notwithstanding any other provisions of this Indenture, a Global Note may not be
transferred except as a whole or in part by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the
Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.
(c)
Restrictive
Securities Legend
. Upon the transfer, exchange or replacement of Notes not bearing the Restrictive Securities Legend, the Registrar
or co-Registrar shall deliver Notes that do not bear the Restrictive Securities Legend. Upon the transfer, exchange or replacement
of Notes bearing the Restrictive Securities Legend, the Registrar or co-Registrar shall deliver only Notes that bear the Restrictive
Securities Legend unless (i) the requested transfer is after the first anniversary of the issue date for the Notes (
provided
,
however
, that neither the Issuer nor any of its Affiliates has held any beneficial interest in such Note, or portion thereof,
at any time prior to or on the first anniversary of the issue date), (ii) there is delivered to the Trustee an Opinion of Counsel
to the Issuer reasonably satisfactory to the Issuer to the effect that neither such legend nor the related restrictions on transfer
are required in order to maintain compliance with the provisions of the Securities Act or (iii) such Note has been sold pursuant
to an effective registration statement under the Securities Act and the Holder selling such Notes has delivered to the Registrar
or co-Registrar a notice in the form of EXHIBIT D hereto. Upon the effectiveness of a shelf registration statement on Form S-3,
the Issuer shall deliver to the Trustee a notice of effectiveness, a Note or Notes, an authentication order in accordance with
Section 2.2 and an Opinion of Counsel and, if required by the Depositary, the Issuer shall deliver to the Depositary a letter of
representations in a form reasonably acceptable to the Depositary.
(d)
General
.
By its acceptance of any Note bearing the Restrictive Securities Legend, each Holder of such a Note acknowledges the restrictions
on transfer of such Note set forth in this Indenture and in the Restrictive Securities Legend and agrees that it will transfer
such Note only as provided in this Indenture.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.15 or this Section 2.16. The Issuer shall have the right to inspect
and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable
written notice to the Registrar.
(e)
Transfers
of Notes Held by Affiliates
. Any certificate (i) evidencing a Note that has been transferred to an Affiliate of the Issuer
within one year after the issue date for the Notes, as evidenced by a notation on the Assignment Form for such transfer or in the
representation letter delivered in respect thereof or (ii) evidencing a Note that has been acquired from an Affiliate (other than
by an Affiliate) in a transaction or a chain of transactions not involving any public offering, shall, until the later of (x) one
year after the date of original issuance of the Note and (y) 90 days after the Holder ceases to be an Affiliate, bear the Restrictive
Securities Legend, unless otherwise agreed by the Company (with written notice thereof to the Trustee).
SECTION 2.17
RESTRICTIVE
SECURITIES LEGENDS
.
(a) Each
Global Note and Physical Note that constitutes a Restricted Security shall bear the legend (the “Restrictive Securities Legend”)
as set forth in EXHIBIT C-1 on the face thereof until the date that is the later of (i) one year after the date of original issuance
of the Notes, and (ii) 90 days after the Holder ceases to be an affiliate (within the meaning of Rule 144 under the Securities
Act) of the Company or Issuer (or such shorter period of time as permitted by Rule 144
under the Securities Act or any successor
provision thereunder; or such longer period of time as may be required under the Securities Act or applicable state securities
laws in the opinion of counsel for the Issuer, unless otherwise agreed between the Issuer and the Holder thereof).
(b) Each
Common Share that constitutes a Restricted Security shall bear the Restrictive Securities Legend as set forth in EXHIBIT C-3 on
the reverse thereof until the date that is the later of (i) six months after the date of original issuance of the Notes in the
case of Common Shares issuable on conversion of the Notes (or one year after the original issuance date in the case of Common Shares
that is restricted upon issuance), and (ii) 90 days after the Holder ceases to be an affiliate (within the meaning of Rule 144
under the Securities Act) of the Company or Issuer (or such shorter period of time as permitted by Rule 144 under the Securities
Act or any successor provision thereunder; or such longer period of time as may be required under the Securities Act or applicable
state securities laws in the opinion of counsel for the Issuer, unless otherwise agreed between the Issuer and the Holder thereof)
(c) Each
Global Note shall also bear the legend as set forth in EXHIBIT C-2.
Article
III
NOTE GUARANTEE
SECTION 3.1 NOTE GUARANTEE.
The Company hereby fully and unconditionally guarantees, as
primary obligor and not merely as surety, to each Holder and the Trustee, the payment of principal of, premium, if any, and interest
on the Notes in the amounts and at the times when due and interest on the overdue principal of, premium, if any, and interest on
the Notes, if lawful, and the Repurchase Price, if applicable, with respect to any Note (the “Obligations”) on an unsecured
senior subordinated basis (the “Note Guarantee”). The Note Guarantee ranks junior to all existing and future Senior
Debt of the Company on the same terms as the Notes are subordinated thereto under Article XV. The Note Guarantee is effectively
subordinated to all indebtedness and other liabilities of all Subsidiaries of the Company (other than the Issuer). Other than as
set out above, the Note Guarantee ranks equally in right of payment with all of the Company’s other existing and future liabilities
that are not secured or are not otherwise subordinated in favor of the Note Guarantee.
The Company waives presentation to, demand of payment from and
protest to the Issuer of any of the Obligations and also waives notice of protest for nonpayment. The Company waives notice of
any default under the Notes or the Obligations. The obligations of the Company hereunder shall not be affected by (a) the failure
of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person
under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission,
waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the
release of any security held by any Holder or the Trustee for the Obligations or any of them; or (e) any Change in Control of the
Issuer.
The Company further agrees that the Note Guarantee herein constitutes
a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any
Holder or the Trustee to any security held for payment of any Obligations.
The obligations of the Company hereunder shall not be subject
to any reduction, limitation, impairment or termination for any reason (other than payment or performance of the Obligations in
full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of
setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of the Company herein shall not be
discharged or impaired or otherwise affected by the failure of any Holder to assert any claim or demand or to enforce any remedy
under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or
delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any
other act or thing which may or might in any manner or to any extent vary the risk of the Company or would otherwise operate as
a discharge of the Company as a matter of law or equity.
The Company further agrees that the Note Guarantee herein shall
continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, or
interest on, any of the Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization
of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Holder has at law or in equity against the Company by virtue hereof, upon the failure of the Company to pay
any of the Obligations when and as the same shall become due, whether at maturity, by acceleration, by repurchase or otherwise,
the Company hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in
cash, to the Trustee an amount equal to the sum of (i) the unpaid amount of such Obligations then due and owing and (ii) accrued
and unpaid interest on such Obligations then due and owing (but only to the extent not prohibited by law).
The Company further agrees that, as between the Company, on
the one hand, and the Holders, on the other hand, (x) the maturity of any Obligations may be accelerated as provided in this Indenture
for the purposes of the Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration
in respect of any Obligations and (y) in the event of any such declaration of acceleration of such Obligations, such Obligations
(whether or not due and payable) shall forthwith become due and payable by the Company for the purposes of this Note Guarantee.
The Company also agrees to pay any and all reasonable costs
and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under
this Section 3.1.
SECTION 3.2 CONSIDERATION.
The Company has received, or will receive, direct or indirect
benefits from the making of the Note Guarantee.
SECTION 3.3 EXECUTION OF GUARANTEE.
To evidence the Note Guarantee to the Holders set forth in this
Article III, the Company hereby agrees to execute the Note Guarantee in substantially the form attached hereto as EXHIBIT B,
which shall be endorsed on each Note ordered to be authenticated
and delivered by the Trustee. The Company hereby agrees that the Note Guarantee set forth in this Article III shall remain in full
force and effect notwithstanding any failure to endorse on each Note a notation of such Note Guarantee. The Note Guarantee shall
be signed on behalf of the Company by one of its authorized Officers prior to the authentication of the Note on which it is endorsed,
and the delivery of such Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the
Note Guarantee on behalf of the Company. Such signatures upon the Note Guarantee may be by manual or facsimile signature of such
officers and may be imprinted or otherwise reproduced on the Note Guarantee, and in case any such officer who shall have signed
the Note Guarantee shall cease to be such officer before the Note on which such Note Guarantee is endorsed shall have been authenticated
and delivered by the Trustee or disposed of by the Issuer, such Note nevertheless may be authenticated and delivered or disposed
of as though the Person who signed the Note Guarantee had not ceased to be such officer of the Company.
SECTION 3.4 SUCCESSOR GUARANTEE.
In the event that the Company consolidates with, merges with
or into, or sells, conveys, transfers, leases or otherwise disposes of all or substantially all of its property and assets (in
one transaction or a series of related transactions) to any Person and the Company is not the surviving entity, such surviving
entity shall expressly assume all of the obligations of the Company under this Article III and shall execute a Note Guarantee to
evidence such obligation.
Article
IV
SATISFACTION AND DISCHARGE
SECTION 4.1 SATISFACTION AND DISCHARGE OF
INDENTURE.
When:
(1) the
Issuer shall deliver to the Trustee for cancellation all Notes previously authenticated (other than any Notes which have been destroyed,
lost or stolen and in lieu of, or in substitution for which, other Notes shall have been authenticated and delivered) and not previously
canceled, or
(2) the
Issuer shall deposit with the Trustee, within one year before the Notes have become due and payable at stated maturity or within
one year of the Notes being scheduled for conversion pursuant to Article XIV or otherwise, cash or Common Shares, as applicable,
sufficient to pay all of the outstanding Notes and all other sums payable by the Issuer under this Indenture, and
if, in the case of either clause (1) or
(2), the Issuer shall also pay or cause to be paid all other sums payable hereunder by the Issuer, then this Indenture shall cease
to be of further effect except as to:
(i) remaining
rights of registration of transfer, substitution and exchange and conversion of Notes,
(ii) rights
hereunder of Holders to receive payments of principal of and premium, if any, and interest on, the Notes and the other rights,
duties and obligations of Holders, as beneficiaries hereof with respect to the amounts, if any, so deposited with the Trustee,
and
(iii) the
rights, obligations and immunities of the Trustee hereunder,
and the Trustee, on written demand of the
Issuer accompanied by an Officers’ Certificate and an Opinion of Counsel (each stating that all conditions precedent herein
relating to the satisfaction and discharge of this Indenture have been complied with) and at the cost and expense of the Issuer,
shall execute proper instruments acknowledging satisfaction of and discharging this Indenture; provided, however, the Issuer shall
reimburse the Trustee for all amounts due the Trustee under Section 5.8 and Section 6.7 hereof and for any costs or expenses thereafter
reasonably and properly incurred by the Trustee and to compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the Notes.
SECTION 4.2 DEPOSITED MONIES TO BE HELD IN
TRUST.
Subject to Section 4.3 hereof, all monies deposited with the
Trustee pursuant to Section 4.1 hereof shall be held in trust and applied by it to the payment, notwithstanding the provisions
of Article XIV hereof, either directly or through any Paying Agent (including the Issuer if acting as its own Paying Agent), to
the Holders of the particular Notes for the payment of which such monies have been deposited with the Trustee, of all sums due
and to become due thereon for principal, premium, if any, and interest. All monies deposited with the Trustee pursuant to Section
4.1 hereof (and held by it or any Paying Agent) for the payment of Notes subsequently converted shall be returned to the Issuer
upon request of the Issuer.
SECTION 4.3 RETURN OF UNCLAIMED MONIES.
Anything contained herein to the contrary notwithstanding, and
subject to any applicable law, any money held by the Trustee in trust for the payment and discharge of the principal, interest
or premium, if any, on any of the Notes which remains unclaimed for two years after the date when each payment of such principal,
interest and premium has become payable shall be repaid within sixty days of such date by the Trustee to the Issuer as its absolute
property free from trust, and the Trustee shall thereupon be released and discharged with respect thereto and the Holders shall
look only to the Issuer for the payment of the principal, interest and premium, if any, on such Notes. The Issuer may cause, or,
if requested by the Issuer, the Trustee shall cause notice of such payment to the Issuer to be mailed to each Holder of a Note
entitled thereto prior to such payment. The Trustee shall not be liable to the Issuer or any Holder for interest on funds held
by it for the payment and discharge of the principal of, or interest or premium, if any, on, any of the Notes to any Holder. The
Issuer shall not be liable for any interest on the sums paid to it pursuant to this paragraph and shall not be regarded as a trustee
of such money.
Article
V
DEFAULTS AND REMEDIES
SECTION 5.1 EVENTS OF DEFAULT.
An “Event of Default,” wherever used herein, means
any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(a) default
in the payment of principal of (or premium, if any, on) any Note at its stated maturity or exercise of a Repurchase Right or otherwise;
(b) default
in the payment of interest on any Note when due and payable and continuance of such default for a period of 30 days;
(c) default
in the performance or breach of any term, covenant or agreement of the Issuer or the Company in this Indenture or under the Notes
and continuance of such default or breach for a period of 60 consecutive days after there has been given, by registered or certified
mail, to the Issuer or the Company by the Trustee or to the Issuer or the Company and the Trustee by the Holders of at least 25%
in principal amount of the outstanding Notes a written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a “Notice of Default” hereunder;
(d) a
default occurs under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed by the Issuer, the Company or any of the Company’s Significant Subsidiaries,
whether such indebtedness now exists or shall be created hereafter, which default (i) is caused by a failure to pay principal of
such indebtedness by the end of the applicable grace period, if any, unless such indebtedness is discharged (a “Payment Default”)
or (ii) results in the acceleration of such indebtedness, unless such acceleration is waived, cured, rescinded or annulled, the
principal amount of any such indebtedness, together with the principal amount of any other such indebtedness under which there
is then existing a Payment Default or the maturity of which has been so accelerated, aggregates $10 million or more;
(e) a
court having jurisdiction in the premises enters a decree or order for (A) relief in respect of the Issuer, the Company or any
of the Company’s Significant Subsidiaries in an involuntary case under any applicable bankruptcy or other similar law now
or hereafter in effect, (B) appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official
of the Issuer, the Company or any of the Company’s Significant Subsidiaries or (C) the winding up or liquidation of the affairs
of the Issuer, the Company or any of the Company’s Significant Subsidiaries and, in each case, such decree or order shall
remain unstayed and in effect for a period of 30 consecutive days;
(f) the
Issuer, the Company or any of the Company’s Significant Subsidiaries (A) commences a voluntary case under any applicable
bankruptcy or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case
under any such law, (B) consents to the appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator
or similar official of the Issuer, the Company or any of the Company’s Significant Subsidiaries or for all or substantially
all of the property and assets of the Issuer, the Company or any of the Company’s Significant Subsidiaries or (C) effects
any general assignment for the benefit of creditors; or
(g) failure
by the Issuer or the Company to provide the notice required under this Indenture upon a Designated Event.
SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION
AND ANNULMENT.
(a) If
an Event of Default with respect to outstanding Notes (other than an Event of Default with respect to the Issuer or the Company
specified in Section 5.1(e) or 5.1(f) hereof) occurs and is continuing and has not been cured or waived in accordance with this
Indenture, the Trustee or the Holders of at least 25% in aggregate principal amount of the outstanding Notes, by written notice
to the Issuer or the Company specifying such Event of Default and requiring it to be remedied and stating that such notice is a
“Notice of Default” hereunder, may declare due and payable 100% of the principal amount of all outstanding Notes plus
any accrued and unpaid interest to the date of payment. Upon a declaration of acceleration, such principal and accrued and unpaid
interest to the date of payment shall be immediately due and payable.
(b) If
an Event of Default with respect to the Issuer or the Company specified in Section 5.1(e) or 5.1(f) hereof occurs, all unpaid principal
and accrued and unpaid interest on the outstanding Notes shall become and be immediately due and payable, without any declaration
or other act on the part of the Trustee or any Holder.
(c) The
Holders, either (a) through the written consent of not less than a majority in aggregate principal amount of the outstanding Notes,
or (b) by the adoption of a resolution by Holders of a majority in aggregate principal amount of the outstanding Notes represented
at a meeting of Holders at which a quorum (as prescribed in Section 9.4) is present, may rescind and annul an acceleration and
its consequences if:
(1) all
existing Events of Default, other than the nonpayment of principal of or interest on the Notes which have become due solely because
of the acceleration, have been remedied, cured or waived, and
(2) the
rescission would not conflict with any judgment or decree of a court of competent jurisdiction;
provided, however, that in the event of a
declaration of acceleration in respect of the Notes because of an Event of Default specified in Section 5.1(d) shall have occurred
and be continuing, such declaration of acceleration shall be automatically rescinded and annulled if the indebtedness that is the
subject of such Event of Default has been discharged or the holders thereof have waived, cured, rescinded or annulled their declaration
of acceleration in respect of such indebtedness, and written notice of such discharge or waiver, cure, rescission or annulment
as the case may be, shall have been given to the Trustee by the Issuer and countersigned by the holders of such indebtedness or
a trustee, fiduciary or agent for such holders, within 30 days after such declaration of acceleration in
respect of the Notes and no other Event of
Default has occurred during such 30-day period which has not been cured or waived during such period.
SECTION 5.3 OTHER REMEDIES.
If an Event of Default with respect to outstanding Notes occurs
and is continuing, the Trustee may, in its discretion, pursue any available remedy by proceeding at law or in equity to collect
the payment of principal of or interest on the Notes or to enforce the performance of any provision of the Notes.
The Trustee may maintain a proceeding in which it may prosecute
and enforce all rights of action and claims under this Indenture or the Notes, even if it does not possess any of the Notes or
does not produce any of them in the proceeding.
SECTION 5.4 WAIVER OF PAST DEFAULTS.
The Holders, either (a) through the written consent of not less
than a majority in aggregate principal amount of the outstanding Notes, or (b) by the adoption of a resolution, at a meeting of
Holders of the outstanding Notes at which a quorum (as prescribed in Section 9.4) is present, by the Holders of at least a majority
in aggregate principal amount of the outstanding Notes represented at such meeting, may, on behalf of the Holders of all of the
Notes, waive an existing Default or Event of Default, except a Default or Event of Default:
(1) in
the payment of the principal of or premium, if any, or interest on any Note (provided, however, that subject to Section 5.7 hereof,
the Holders of a majority in aggregate principal amount of the outstanding Notes may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration);
(2) in
respect of a covenant or provision hereof which, under Section 8.2 hereof, cannot be modified or amended without the consent of
the Holders of each outstanding Note affected.
Upon any such waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture;
provided, however, that no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
SECTION 5.5 CONTROL BY MAJORITY.
The Holders of a majority in aggregate principal amount of the
outstanding Notes (or such lesser amount as shall have acted at a meeting pursuant to the provisions of this Indenture) shall have
the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that:
(1) conflicts
with any law or with this Indenture;
(2) the
Trustee determines may be unduly prejudicial to the rights of the Holders not joining therein, or
(3) may
expose the Trustee to personal liability.
The Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.
SECTION 5.6 LIMITATION ON SUIT.
No Holder of any Note shall have any right to pursue any remedy
with respect to this Indenture or the Notes (including, instituting any proceeding, judicial or otherwise, with respect to this
Indenture or for the appointment of a receiver or trustee) unless:
(1) such
Holder has previously given written notice to the Trustee of an Event of Default that is continuing;
(2) the
Holders of at least 25% in aggregate principal amount of the outstanding Notes shall have made written request to the Trustee to
pursue the remedy;
(3) such
Holder or Holders have offered to the Trustee indemnity satisfactory to it against any costs, expenses and liabilities incurred
in complying with such request;
(4) the
Trustee has failed to comply with the request for 60 days after its receipt of such notice, request and offer of indemnity; and
(5) during
such 60-day period, no direction inconsistent with such written request has been given to the Trustee by the Holders of a majority
in aggregate principal amount of the outstanding Notes (or such amount as shall have acted at a meeting pursuant to the provisions
of this Indenture);
provided, however, that no one or more of
such Holders may use this Indenture to prejudice the rights of another Holder (including conversion rights) or to obtain preference
or priority over another Holder.
SECTION 5.7 UNCONDITIONAL RIGHT OF HOLDERS
TO RECEIVE PAYMENT.
Notwithstanding any other provision in this Indenture, the Holder
of any Note shall have the right, which is absolute and unconditional, to receive payment of the principal of and premium, if any,
and interest on such Note on the stated maturity expressed in such Note, and in the case of the exercise of a Repurchase Right,
on the Repurchase Date, and to bring suit for the enforcement of any such payment on or after such respective dates, and such right
shall not be impaired or affected without the consent of such Holder.
SECTION 5.8 COLLECTION OF INDEBTEDNESS AND
SUITS FOR ENFORCEMENT BY THE TRUSTEE.
Each of the Issuer and Company, jointly and severally, covenants
that if:
(1) a
default is made in the payment of any interest on any Note when such interest becomes due and payable and such default continues
for a period of 30 days, or
(2) a
default is made in the payment of the principal of or premium, if any, on any Note at the maturity thereof,
the Issuer and the Company will, upon demand
of the Trustee, pay to it, for the benefit of the Holders of such Notes, the whole amount then due and payable (as expressed therein
or as a result of any acceleration effected pursuant to Section 5.2 hereof) on such Notes for principal and premium, if any, and
interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium,
if any, and on any overdue interest, calculated using the applicable interest rate specified in Section 2.1(c) hereof, and, in
addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Issuer and the Company fail to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against
the Issuer and/or the Company and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the
property of the Issuer and/or the Company, wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Notes by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement
of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 5.9 TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Issuer or the Company
or the property of the Issuer or the Company or its creditors, the Trustee (irrespective of whether the principal of the Notes
shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Issuer or the Company for the payment of overdue principal or interest) shall be entitled and empowered,
by intervention in such proceeding or otherwise,
(1) to
file and prove a claim for the whole amount of principal and premium, if any, and interest owing and unpaid in respect of the Notes
and to file such other papers or documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders
of Notes allowed in such judicial proceeding, and
(2) to
collect and receive any moneys or other property payable or deliverable on any such claim and to distribute the same;
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial proceedings is hereby authorized by each Holder of Notes
to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to
the Holders of Notes, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel and any other amounts due the Trustee under Section 5.8.
Nothing contained herein shall be deemed to authorize the Trustee
to authorize or consent to or accept, or adopt on behalf of any Holder of a Note, any plan of reorganization, arrangement, adjustment
or composition affecting the Notes or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim
of any Holder of a Note in any such proceeding.
SECTION 5.10 RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Note has instituted any proceeding
to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding,
the Issuer, the Company, the Trustee and the Holders of Notes shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 5.11 RIGHTS AND REMEDIES CUMULATIVE.
No right or remedy conferred in this Indenture upon or reserved
to the Trustee or to the Holders of Notes is intended to be exclusive of any other right or remedy, and every right and remedy
shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 5.12 DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver
of any such Event of Default or any acquiescence therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders of Notes may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders of Notes, as the case may be.
SECTION 5.13 APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money
on account of principal or premium, if any, or interest, upon presentation of the Notes and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee;
SECOND: Subject to Article XV, to the payment of the amounts
then due and unpaid for principal of and premium, if any, and interest on the Notes in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on
such Notes for principal and premium, if any, and interest, respectively; and
THIRD: Any remaining amounts shall be repaid to the Issuer.
SECTION 5.14 UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any
Note by such Holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses,
against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted
by any Holder, or group of Holders, holding in the aggregate more than 10% in aggregate principal amount of the outstanding Notes,
or to any suit instituted by any Holder of any Note for the enforcement of the payment of the principal of or premium, if any,
or interest on any Note on or after the stated maturity expressed in such Note (or, in the case of exercise of a Repurchase Right,
on or after the Repurchase Date) or for the enforcement of the right to convert any Note in accordance with Article XIV.
SECTION 5.15 WAIVER OF STAY OR EXTENSION LAWS.
Each of the Issuer and the Company, jointly and severally, covenants
(to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim
to take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Issuer and the Company (to the extent that they may lawfully
do so) hereby expressly waive all benefit or advantage of any such law and covenants that they will not hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
Article
VI
THE TRUSTEE
SECTION 6.1 DUTIES OF TRUSTEE.
(a) If
an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs.
(b) Except
during the continuance of an Event of Default:
(i) the
Trustee need perform only those duties that are specifically set forth in this Indenture and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(ii) in
the absence of bad faith, willful misconduct or negligence on its part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or
other facts stated therein).
(c) The
Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct,
except that:
(i) this
subsection shall not be construed to limit the effect of subsection (b) of this Section 6.1;
(ii) the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) the
Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received
by it pursuant to Section 5.5; and
(iv) no
provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability
in the performance of its duties hereunder or in the exercise of any of its rights or powers.
(d) Every
provision of this Indenture that in any way relates to the Trustee in any of its roles hereunder is subject to the provisions of
this Section 6.1.
(e) The
Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer.
Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
SECTION 6.2 RIGHTS OF TRUSTEE.
(a) Subject
to Section 6.1, the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any document
believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact
or matter stated in the document; if, however, the Trustee shall determine to make such further inquiry or investigation, it shall
be entitled during normal business hours to examine the relevant books, records and premises of the Issuer, personally or by agent
or attorney upon reasonable prior notice and shall incur no liability or additional liability of any kind by reason of such inquiry
or investigation.
(b) Before
the Trustee acts or refrains from acting, it may require an Officers’ Certificate of the Issuer and/or an Opinion of Counsel
from the Issuer or from the Company. The Trustee shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers’ Certificate of the Issuer or Opinion of Counsel from the Issuer or from the Company.
(c) Any
request or direction of the Issuer mentioned herein shall be sufficiently evidenced by an Order of the Issuer and any resolution
of the Board of Directors of the Issuer shall be sufficiently evidenced by a Board Resolution of the Issuer.
(d) The
Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel of the Issuer shall
be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(e) The
Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or indirectly or by or
through agents or attorneys and shall not be responsible for the misconduct or negligence of any agent or attorney appointed with
due care.
(f) The
Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within
its discretion, rights or powers conferred upon it by this Indenture.
(g) Except
with respect to Section 6.1, the Trustee shall have no duty to inquire as to the performance of the Issuer with respect to the
covenants contained in Article X hereof. In addition, the Trustee shall not be deemed to have knowledge of an Event of Default
except (i) any Default or Event of Default occurring pursuant to Sections 5.1(a) and 5.1(b), if the Trustee is also the Paying
Agent, or (ii) any Default or Event of Default of which a Responsible Officer of the Trustee shall (x) have received written notification
of any event which is in fact such a default at its Corporate Trust Office and such notice references the Notes and this Indenture
or (y) obtained actual knowledge. Delivery of reports, information and documents to the Trustee under Article X (other than Sections
10.4 and 10.7) is for informational purposes only and the Trustee’s receipt of the foregoing shall not constitute constructive
notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance
with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates of
the Issuer).
(h) The
Trustee shall be under no obligation to exercise any of the rights or powers vested by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture unless such Holders shall have offered to the Trustee security or indemnity reasonably
satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request
or direction.
(i) The
rights, privileges, protections, immunities and benefits given to the Trustee, including without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and its directors, officers, employees
and each agent, custodian and other Person employed to act hereunder.
(j) The
Trustee may request that the Issuer deliver an Officers’ Certificate of the Issuer setting forth the names of individuals
and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate
may be signed by any person authorized to sign an Officers’ Certificate of the Issuer, including any person specified as
so authorized in any such certificate previously delivered and not superseded.
(k) No
permissive power, right or remedy conferred upon the Trustee hereunder shall be construed to impose a duty to exercise such power,
right or remedy.
(l) In
no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action.
SECTION 6.3 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Issuer or any of its Affiliates with the same rights it would have
if it were not Trustee. Any Agent may do the same with like rights. The Trustee, however, must comply with Sections 6.10 and 6.11.
SECTION 6.4 TRUSTEE’S DISCLAIMER.
The Trustee makes no representation as to the validity, priority
or adequacy of this Indenture or the Notes; it shall not be accountable for the Issuer’s or the Company’s use of the
proceeds from the Notes; and it shall not be responsible for any statement in the Notes other than its certificate of authentication.
SECTION 6.5 NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing as
to which the Trustee has received notice pursuant to the provisions of this Indenture, the Trustee shall mail to each Holder a
notice of the Default or Event of Default within 90 days after it occurs unless such Default or Event of Default has been cured
or waived. Except in the case of a Default or Event of Default in payment of any amounts due with respect to any Note, the Trustee
may withhold the notice if and so long as it in good faith determines that withholding the notice is in the best interests of Holders.
SECTION 6.6 REPORTS BY TRUSTEE TO HOLDERS.
(a) Within
60 days after each June 15 beginning with June 15, 2013, the Trustee shall mail to each Holder if required by TIA Section 313(a)
a brief report dated as of such June 15 that complies with TIA Section 313(c). In such event, the Trustee also shall comply with
TIA Section 313(b) and Section 313(d).
(b) A
copy of each report at the time of its mailing to Holders shall be mailed to the Issuer and filed by the Trustee with the SEC and
each stock exchange, if any, on which the Notes are listed. The Issuer shall promptly notify the Trustee when the Notes are listed
or delisted on any stock exchange.
SECTION 6.7 COMPENSATION AND INDEMNITY.
(a) The
Issuer and the Company shall, jointly and severally, pay to the Trustee from time to time such compensation for its services as
shall be agreed upon in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee
of an express trust. The Issuer shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred by
it. Such expenses shall include the reasonable compensation and out-of-pocket expenses of the Trustee’s agents and counsel.
(b) The
Issuer and the Company shall, jointly and severally, indemnify the Trustee against any and all loss, liability, damage, claim or
expense (including the reasonable fees and expenses of counsel and taxes other than those based upon the income of the Trustee)
incurred by it in connection with the acceptance or administration of this trust and the performance of its duties hereunder, including
the reasonable costs and expenses of defending itself against any claim (whether asserted by the Issuer, the Company, any Holder
or any other Person) or liability in connection with the exercise or performance of any of its powers and duties hereunder. The
Issuer and the Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld.
The Trustee shall notify the Issuer promptly of any claim of which a Responsible Officer has actual knowledge or has received written
notice and for which it may seek indemnification. The Issuer and the Company need not reimburse any expense or indemnify against
any loss or liability incurred by the Trustee through the Trustee’s negligence or willful misconduct.
(c) To
secure the Issuer’s and the Company’s payment obligations in this Section 6.7, the Trustee shall have a lien prior
to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay amounts due on particular
Notes.
(d) The
obligations of the Issuer and the Company with respect to the Trustee provided for in this Section 6.7 shall survive the satisfaction
and discharge of this Indenture and any resignation or removal of the Trustee.
(e) Without
prejudice to any other rights available to the Trustee under applicable law, when the Trustee incurs expenses or renders services
after an Event of Default specified in Section 5.1(e) or (f) occurs, the expenses and the compensation for the services are intended
to constitute expenses of administration under any Bankruptcy Law.
SECTION 6.8 REPLACEMENT OF TRUSTEE.
(a) A
resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s
acceptance of appointment as provided in this Section 6.8.
(b) The
Trustee may resign by so notifying the Issuer in writing 30 Business Days prior to such resignation. The Holders of a majority
in aggregate principal amount of the Notes then outstanding may remove the Trustee by so notifying the Trustee and the Issuer in
writing and may appoint a successor Trustee with the Issuer’s consent. The Issuer may remove the Trustee if:
(i) the
Trustee fails to comply with Section 6.10;
(ii) the
Trustee is adjudged a bankrupt or an insolvent;
(iii) a
receiver or other public officer takes charge of the Trustee or its property; or
(iv) the
Trustee becomes incapable of acting.
(c) If
the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Issuer shall promptly appoint
a successor Trustee.
(d) If
a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee
(at the Issuer’s and the Company’s expense), the Issuer or the Holders of at least 10% in aggregate principal amount
of the outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
(e) If
the Trustee fails to comply with Section 6.10, any Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
(f) A
successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring
Trustee shall, upon payment of any amount owed to the retiring Trustee hereunder, promptly transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided for in Section 6.7.
SECTION 6.9 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers by sale or otherwise all or substantially all of its corporate trust business to, another corporation, the successor
corporation without any further act shall be the successor Trustee, if such successor corporation is otherwise eligible hereunder.
SECTION 6.10 ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such
laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that
has a combined capital and surplus (on a consolidated basis) of at least $100 million as set forth in its most recent published
annual report of condition. The Trustee shall comply with TIA Section 310(b).
SECTION 6.11 PREFERENTIAL COLLECTION OF CLAIMS
AGAINST ISSUER AND THE COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section
311(a) to the extent indicated.
Article
VII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 7.1 ISSUER OR COMPANY MAY CONSOLIDATE,
ETC., ONLY ON CERTAIN TERMS.
The Issuer and the Company shall not consolidate with, merge
with or into, or convey, transfer, lease or otherwise dispose of all or substantially all of their property and assets (in one
transaction or a series of related transactions) to any Person unless:
(1) either
(A) the Issuer or the Company shall be the resulting, surviving or transferee Person (the “Successor Company”), or
(B) the Successor Company (if other than the Issuer or the Company, as the case may be) (i) shall be a corporation organized and
existing under the laws of the United States of America or any state thereof or the District of Columbia or under the laws of Canada
or any province thereof, and (ii) shall (together with its ultimate parent company, if applicable) expressly assume, by a supplemental
indenture, executed and delivered to the Trustee, in form satisfactory to the Trustee, all of the Issuer’s and, if the Successor
Company that succeeds to the Issuer assumes only the obligations under the Notes but not under the Note Guarantee, the Company’s
obligations for the due and punctual payment of the principal of (and premium, if any) and interest on all Notes and the performance
and observance of every covenant of this Indenture on the part of the Issuer and the Company to be performed or observed and shall
have provided for conversion rights in accordance with Section 14.11 hereof;
(2) immediately
after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and
(3) the
Issuer and the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with
such transaction, such supplemental indenture comply with this Article
and that all conditions precedent
provided for herein relating to such transaction have been complied with.
SECTION 7.2 SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation of the Issuer or the Company with or
merger of the Issuer or the Company with or into any other corporation or any conveyance, transfer or lease of all or substantially
all of the properties and assets of the Issuer or the Company to any Person in accordance with Section 7.1, the successor Person
formed by such consolidation or into which the Issuer or the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer or the Company under this
Indenture with the same effect as if such successor Person had been named as the Issuer or the Company, as the case may be, herein,
and in the event of any such conveyance or transfer, the Issuer or the Company (which term shall for this purpose mean the Person
named as the “Issuer” or the “Company,” as the case may be, in the first paragraph of this Indenture or
any successor Person which shall theretofore become such in the manner described in Section 7.1), except in the case of a lease
to another Person, shall be discharged of all obligations and covenants under this Indenture and the Notes.
Article
VIII
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 8.1 WITHOUT CONSENT OF HOLDERS OF
NOTES.
Without the consent of any Holders of Notes, the Issuer and
the Company, when authorized by Board Resolutions of their respective Boards of Directors, and the Trustee, at any time and from
time to time, may amend this Indenture and the Notes to:
(a) add
to the covenants of the Issuer and the Company for the benefit of the Holders of Notes;
(b) surrender
any right or power herein conferred upon the Issuer or the Company;
(c) make
provision with respect to the conversion rights of Holders of Notes pursuant to Section 14.11 hereof;
(d) provide
for the assumption of the Issuer’s and the Company’s obligations to the Holders of Notes in the case of a merger, consolidation,
conveyance, transfer or lease pursuant to Article VII hereof;
(e) reduce
the
one or both
Conversion
Price
Prices
;
provided, that such reduction in
the
one
or both
Conversion
Price
Prices
shall not adversely affect the interest of the Holders;
(f) comply
with the requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA;
(g) cure
any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein or which
is otherwise defective, or to make any other provisions with respect to matters or questions arising under this Indenture which
the Issuer, the Company and the Trustee may deem necessary or desirable and which shall not be inconsistent with the provisions
of this Indenture, provided, that such action pursuant to this clause (g) does not adversely affect the interests of the Holders
in any material respect;
(h) add
or modify any other provisions with respect to matters or questions arising under this Indenture which the Issuer, the Company
and the Trustee may deem necessary or desirable and which shall not be inconsistent with the provisions of this Indenture, provided,
that such action pursuant to this clause (h) does not adversely affect the interests of the Holders; or
(i) comply
with the procedures of the Depositary.
SECTION 8.2 WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 8.2, this Indenture
or the Notes may be amended, modified or supplemented, and noncompliance in any particular instance with any provision of this
Indenture or the Notes may be waived, in each case (i) with the written consent of the Holders of at least a majority in aggregate
principal amount of the outstanding Notes or (ii) by the adoption of a resolution, at a meeting of Holders of the outstanding Notes
at which a quorum (as prescribed in Section 9.4) is present, by the Holders of a majority in aggregate principal amount of the
outstanding Notes represented at such meeting.
Without the written consent or the affirmative vote of each
Holder so affected, an amendment, modification or waiver under this Section 8.2 may not:
(a) change
the maturity of the principal of, or any installment of interest on, any Note;
(b) reduce
the principal amount of, or premium, if any, or interest (including any payment of liquidated damages, if any) on any Note;
(c) change
the currency of payment of principal of, premium, if any, or interest on any Note;
(d) impair
the right of any Holder to institute suit for the enforcement of any payment in or with respect to any Note;
(e) modify
the obligations of the Issuer or the Company to maintain an office or agency in The City of New York pursuant to Section 10.2 hereof;
(f) amend
the Designated Event Repurchase Right after the occurrence of a Change in Control or the right to convert any Note in a manner
adverse to the Holders; provided, however, that the execution of a supplemental indenture solely to permit an Acquiror to assume
the Issuer’s or the Company’s obligations under the Notes shall not be deemed to be adverse to the Holders;
(g) reduce
the percentage of aggregate principal amount of Notes outstanding necessary to waive a default or amend or modify this Indenture,
except to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder
of each outstanding Note affected thereby; or
(h) reduce
the requirements of Section 9.4 hereof for quorum or voting, or reduce the percentage of aggregate principal amount of the outstanding
Notes the consent of whose Holders is required for any such supplemental indenture or the consent of whose Holders is required
for any waiver provided for in this Indenture.
It shall not be necessary for any Act of Holders of Notes under
this Section 8.2 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act
of Holders shall approve the substance thereof.
SECTION 8.3 COMPLIANCE WITH TRUST INDENTURE
ACT.
Every amendment to this Indenture or the Notes shall be set
forth in a supplemental indenture that complies with the TIA as then in effect.
SECTION 8.4 REVOCATION OF CONSENTS AND EFFECT
OF CONSENTS OR VOTES.
Until an amendment, supplement or waiver becomes effective,
a written consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder of a Note or portion of a
Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note;
provided, however, that unless a Special Record Date shall have been established, any such Holder or subsequent Holder may revoke
the consent as to its Note or portion of a Note if the Trustee receives written notice of revocation before the date the amendment,
supplement or waiver becomes effective.
An amendment, supplement or waiver becomes effective on receipt
by the Trustee of written consents from or affirmative votes by, as the case may be, the Holders of the requisite percentage of
aggregate principal amount of the outstanding Notes, and thereafter shall bind every Holder of Notes; provided, however, if the
amendment, supplement or waiver makes a change described in any of the clauses (a) through (h) of Section 8.2 hereof, the amendment,
supplement or waiver shall bind only each Holder of a Note which has consented to it or voted for it, as the case may be, and every
subsequent Holder of a Note or portion of a Note that evidences the same indebtedness as the Note of the consenting or affirmatively
voting, as the case may be, Holder.
The Issuer may, but shall not be obligated to, fix a special
record date (a “Special Record Date”) for the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which Special Record Date shall be not more than 30 days prior to the first solicitation of such consent.
If a Special Record Date is fixed, then notwithstanding the proviso in the first paragraph of this Section 8.4, those Persons who
were Holders at such Special Record Date (or their duly designated proxies), and only those Persons, shall be entitled to revoke
any consent previously given, whether or not such Persons continue to be Holders after such Special Record Date. No such consent
shall be valid or effective for more than 90 days after such Special Record Date unless consents from Holders of the requisite
percentage in principal amount of outstanding
Notes required hereunder for the effectiveness of such consents
shall have also been given and not revoked within such 90 day period.
SECTION 8.5 NOTATION ON OR EXCHANGE OF NOTES.
If an amendment, supplement or waiver changes the terms of a
Note:
(a) the
Trustee may require the Holder of a Note to deliver such Notes to the Trustee, the Trustee may place an appropriate notation on
the Note about the changed terms and return it to the Holder and the Trustee may place an appropriate notation on any Note thereafter
authenticated; or
(b) if
the Issuer or the Trustee so determines, the Issuer in exchange for the Note shall issue and the Trustee shall authenticate a new
Note that reflects the changed terms.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or waiver.
SECTION 8.6 TRUSTEE TO SIGN AMENDMENT, ETC.
The Trustee shall sign any amendment authorized pursuant to
this Article VIII if the amendment does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If the
amendment does adversely affect the rights, duties, liabilities or immunities of the Trustee, the Trustee may but need not sign
it. In signing or refusing to sign such amendment, the Trustee shall be given and shall be fully protected in relying upon an Officers’
Certificate and an Opinion of Counsel stating that such amendment is authorized or permitted by this Indenture.
Article
IX
MEETING OF HOLDERS OF
NOTES
SECTION 9.1 PURPOSES FOR WHICH MEETINGS MAY
BE CALLED.
A meeting of Holders of Notes may be called at any time and
from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be made, given or taken by Holders of Notes.
SECTION 9.2 CALL NOTICE AND PLACE OF MEETINGS.
(a) The
Trustee may at any time call a meeting of Holders of Notes for any purpose specified in Section 9.1 hereof, to be held at such
time and at such place as the Trustee may determine. Notice of every meeting of Holders of Notes, setting forth the time and the
place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided
in Section 16.2 hereof, not less than 21 nor more than 180 days prior to the date fixed for the meeting.
(b) In
case at any time the Issuer, pursuant to an Issuer Board Resolution, or the Holders of at least 10% in principal amount of the
outstanding Notes shall have requested the Trustee to call a meeting of the Holders of Notes for any purpose specified in Section
9.1 hereof,
by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not have made the first publication of the notice
of such meeting within 21 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Issuer or the Holders of Notes in the amount specified, as the case may be, may determine the time and
the place for such meeting and may call such meeting for such purposes by giving notice thereof as provided in paragraph (a) of
this Section.
SECTION 9.3 PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Notes, a
Person shall be (a) a Holder of one or more outstanding Notes, or (b) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more outstanding Notes by such Holder or Holders. The only Persons who shall be entitled to be present
or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Issuer and its counsel.
SECTION 9.4 QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount
of the outstanding Notes shall constitute a quorum. In the absence of a quorum within 30 minutes of the time appointed for any
such meeting, the meeting shall, if convened at the request of Holders of Notes, be dissolved. In any other case, the meeting may
be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice
of the reconvening of any adjourned meeting shall be given as provided in Section 9.2(a) hereof, except that such notice need be
given only once and not less than five days prior to the date on which the meeting is scheduled to be reconvened.
At a meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid, any resolution and all matters (except as limited by the proviso to Section 8.2 hereof)
shall be effectively passed and decided if passed or decided by the Persons entitled to vote not less than the percentage in principal
amount of outstanding Notes required by this Indenture for the taking of the particular action.
Any resolution passed or decisions taken at any meeting of Holders
of Notes duly held in accordance with this Section 9.4 shall be binding on all the Holders of Notes, whether or not present or
represented at the meeting.
SECTION 9.5 DETERMINATION OF VOTING RIGHTS;
CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting
of Holders of Notes in regard to proof of the holding of Notes and of the appointment of proxies and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required
by any such
regulations, the holding of Notes shall be
proved in the manner specified in Section 9.3 hereof and the appointment of any proxy shall be proved in the manner specified in
Section 9.3 hereof. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 9.3 hereof or other proof.
(b) The
Trustee shall, by an instrument in writing, appoint a temporary chairman (which may be the Trustee) of the meeting, unless the
meeting shall have been called by the Issuer or by Holders of Notes as provided in Section 9.2(b) hereof, in which case the Issuer
or the Holders of Notes calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal
amount of the outstanding Notes represented at the meeting.
(c) At
any meeting each Holder of a Note or proxy shall be entitled to one vote for each $1,000 principal amount of Notes held or represented
by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Note challenged as not outstanding
and ruled by the chairman of the meeting to be not outstanding. The chairman of the meeting shall have no right to vote, except
as a Holder of a Note or proxy.
(d) Any
meeting of Holders of Notes duly called pursuant to Section 9.2 hereof at which a quorum (as prescribed in Section 9.4) is present
may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the outstanding Notes represented
at the meeting, and the meeting may be held as so adjourned without further notice.
SECTION 9.6 COUNTING VOTES AND RECORDING ACTION
OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders
of Notes shall be by written ballots on which shall be subscribed the signatures of the Holders of Notes or of their representatives
by proxy and the principal amounts and serial numbers of the outstanding Notes held or represented by them. The permanent chairman
of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution
and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at
the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders of Notes shall be prepared by the secretary
of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was given as provided in Section 9.2 hereof and, if applicable, Section 9.4 hereof. Each copy shall
be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered
to the Company and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
Article
X
COVENANTS
SECTION 10.1 PAYMENT OF NOTES.
(a) The
Issuer shall pay all amounts due with respect to the Notes on the dates and in the manner provided in this Indenture and the Notes.
All such amounts shall be considered paid on the date due if the Paying Agent holds (or, if the Issuer is acting as Paying Agent,
if the Issuer has segregated and holds in trust in accordance with Section 2.4) on that date money sufficient to pay the amount
then due with respect to the Notes.
(b) The
Issuer shall pay interest on any overdue amount (including, to the extent permitted by applicable law, overdue interest) at the
rate borne by the Notes.
SECTION 10.2 MAINTENANCE OF OFFICE OR AGENCY.
(a) The
Issuer will maintain in the Borough of Manhattan, the City of New York, an office or agency (which may be an office of the Trustee
or an affiliate of the Trustee, Registrar or co-Registrar) where Notes may be surrendered for registration of transfer or exchange
or conversion and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served. The
Issuer will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency
(other than a change in the location of the office of the Trustee). If at any time the Issuer shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee.
(b) The
Issuer may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered
for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to maintain an office or agency in the Borough of Manhattan,
the City of New York for such purposes. The Issuer will give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
SECTION 10.3 REPORTS.
(a) The
Issuer will comply with the provisions of TIA Section 314(a).
(b) The
Issuer and the Company (at its own expense) will deliver to the Trustee within 15 days after the filing of the same with the SEC,
copies of the quarterly and annual reports and of the information, documents and other financial reports, if any, which the Issuer
or the Company may be required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act or which the Issuer or
the Company furnishes to its shareholders or stockholders. In the event the Issuer or the Company, as the case may be, is at any
time no longer subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Issuer or the Company, as
the case may be, shall continue to provide the Trustee with such quarterly and annual reports and other financial reports, if any,
which the Issuer or the Company, as the case may be, furnishes to its shareholders or stockholders. Delivery of such reports, information
and documents to the Trustee
is for informational purposes only and the
Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from
information contained therein, including the Issuer’s and the Company’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on the Officers’ Certificate of the Issuer and the Company).
SECTION 10.4 COMPLIANCE CERTIFICATE.
The Issuer and the Company shall deliver to the Trustee within
120 days after the end of each fiscal year (beginning with the fiscal year ending on March 31, 2014) of the Issuer an Officers’
Certificate of the Issuer and the Company stating whether or not the signers know of any Default or Event of Default by the Issuer
or the Company in performing any of its obligations under this Indenture or the Notes. If they do know of any such Default or Event
of Default, the Officers’ Certificate shall describe the Default or Event of Default and its status.
SECTION 10.5 STAY, EXTENSION AND USURY LAWS.
The Issuer covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Issuer (in each case, to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law
has been enacted.
SECTION 10.6 CORPORATE EXISTENCE.
Subject to Article VII, the Issuer and the Company will do or
cause to be done all things necessary to preserve and keep in full force and effect their respective corporate existence and the
corporate existence of each of their respective subsidiaries in accordance with the respective organizational documents of each
subsidiary and the rights (charter and statutory), licenses and franchises of the Issuer and the Company, as the case may be, and
their respective subsidiaries; provided, however, that the Issuer and the Company shall not be required to preserve any such right,
license or franchise, or the corporate existence of any subsidiary, if in the judgment of their respective Board of Directors (i)
such preservation or existence is not material to the conduct of business of the Issuer and the Company, respectively and (ii)
the loss of such right, license or franchise or the dissolution of such subsidiary does not have a material adverse impact on the
Holders.
SECTION 10.7 NOTICE OF DEFAULT.
In the event that any Default or Event of Default shall occur,
the Issuer will give prompt written notice of such Default or Event of Default to the Trustee.
Article
XI
MAKE WHOLE PREMIUM
SECTION 11.1 MAKE WHOLE PREMIUM.
(a) Upon
the occurrence of a Change in Control, unless the Acquiror in such Change in Control is a Public Entity or is a direct or indirect
subsidiary of a Public Entity and the Issuer indicates in the notice required to be sent to Holders pursuant to Section 11.2(c)
hereof that it elects to provide for the Notes to be convertible into common shares of the Public Entity, the Issuer will pay,
on the Designated Event Repurchase Date, the Make Whole Premium, if any, to Holders that convert their Notes pursuant to Section
14.1 hereof at any time after the date of the Issuer Notice required pursuant to Section 13.4 hereof but on or before the close
of business on the Business Day immediately preceding the Designated Event Repurchase Date.
(b) The
Make Whole Premium shall be equal to an additional number of Common Shares calculated in accordance with Section 11.1(c) hereof.
The Make Whole Premium will be in addition to, and not in substitution for, any cash, securities, or other assets otherwise due
to Holders of Notes upon conversion or repurchase.
(c) The
“Make Whole Premium” shall be equal
(x)
to the
principal amount of the Notes to be converted divided by $1,000 and multiplied by the applicable number of
Common
Class
A
Shares determined pursuant to the table below (the “Make Whole Table”)
based
on the
plus
(y) the principal amount of
the Notes to be converted divided by $1,000 and multiplied by the applicable number of Class B Shares determined pursuant to the
Make Whole Table, in each case based on the applicable
Share Price and the
applicable
Effective Date:
MAKE WHOLE PREMIUM UPON CHANGE IN CONTROL
(NUMBER OF ADDITIONAL COMMON SHARES)
EFFECTIVE DATE
—————
Class
A Shares
SHARE PRICE ON EFFECTIVE DATE
|
4/15/2013
|
4/15/2014
|
|
|
|
4/15/2015
|
|
4/15/2016
|
|
4/15/2017
|
|
4/15/2018
|
|
$23.25
|
9.6774
SHARE
|
9.6774
|
|
|
|
|
9.6774
|
|
9.6774
|
|
9.6774
|
|
9.6774
|
|
$25.00
|
8.2084
PRICE ON
|
8.4332
|
|
|
|
|
8.4880
|
|
8.2482
|
|
7.5807
|
|
6.6667
|
|
$27.50
|
6.5412
EFFECTIVE
|
6.6337
|
|
|
|
|
6.5452
|
|
6.1445
|
|
5.2375
|
|
3.0303
|
|
|
|
DATE
|
|
4/15/2013
|
|
4/15/2014
|
|
4/15/2015
|
|
4/15/2016
|
|
4/15/2017
|
|
4/15/2018
|
|
|
|
|
|
|
|
|
22.62
|
|
4.7081
|
|
4.7081
|
|
4.7081
|
|
4.7081
|
|
4.7081
|
|
4.7081
|
|
|
|
24.33
|
|
3.9934
|
|
4.1028
|
|
4.1294
|
|
4.0127
|
|
3.6880
|
|
3.2433
|
|
|
|
26.76
|
|
3.1823
|
|
3.2273
|
|
3.1842
|
|
2.9893
|
|
2.5480
|
|
1.4742
|
|
$30.00
|
5.2624
29.19
|
5.2656
|
2.5602
|
|
2.5617
|
|
5.0871
2.4749
|
|
4.5988
2.2373
|
|
3.5878
1.7455
|
|
0.0000
|
|
$35.00
|
3.4841
34.06
|
3.3909
|
1.6950
|
|
1.6497
|
|
3.1329
1.5242
|
|
2.6071
1.2684
|
|
1.6466
0.8011
|
|
0.0000
|
|
$40.00
|
2.3574
38.92
|
2.2301
|
1.1469
|
|
1.0849
|
|
1.9661
0.9565
|
|
1.4949
0.7273
|
|
0.7360
0.3581
|
|
0.0000
|
|
$50.00
|
1.1164
48.65
|
0.9958
|
0.5431
|
|
0.4845
|
|
0.7939
0.3862
|
|
0.4931
0.2399
|
|
0.1292
0.0629
|
|
0.0000
|
|
$60.00
|
0.5276
58.38
|
0.4402
|
0.2567
|
|
0.2142
|
|
0.3107
0.1512
|
|
0.1463
0.0712
|
|
0.0062
0.0030
|
|
0.0000
|
|
$70.00
|
0.2323
68.11
|
0.1763
|
0.1130
|
|
0.0858
|
|
0.1019
0.0496
|
|
0.0239
0.0116
|
|
0.0000
|
|
0.0000
|
|
$80.00
|
0.0826
77.84
|
0.0511
|
0.0402
|
|
0.0249
|
|
0.0156
0.0076
|
|
0.0000
|
|
0.0000
|
|
0.0000
|
|
$90.00
|
0.0131
87.57
|
0.0016
|
0.0064
|
|
0.0008
|
|
0.0000
|
|
0.0000
|
|
0.0000
|
|
0.0000
|
|
Class
B Shares
|
|
SHARE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PRICE ON
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EFFECTIVE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DATE
|
|
4/15/2013
|
|
4/15/2014
|
|
4/15/2015
|
|
4/15/2016
|
|
4/15/2017
|
|
4/15/2018
|
|
|
|
|
|
|
|
|
|
|
22.62
|
|
4.7081
|
|
4.7081
|
|
4.7081
|
|
4.7081
|
|
4.7081
|
|
4.7081
|
|
|
|
|
24.33
|
|
3.9934
|
|
4.1028
|
|
4.1294
|
|
4.0127
|
|
3.6880
|
|
3.2433
|
|
|
|
|
26.76
|
|
3.1823
|
|
3.2273
|
|
3.1842
|
|
2.9893
|
|
2.5480
|
|
1.4742
|
|
|
|
|
29.19
|
|
2.5602
|
|
2.5617
|
|
2.4749
|
|
2.2373
|
|
1.7455
|
|
0.0000
|
|
|
|
|
34.06
|
|
1.6950
|
|
1.6497
|
|
1.5242
|
|
1.2684
|
|
0.8011
|
|
0.0000
|
|
|
|
|
38.92
|
|
1.1469
|
|
1.0849
|
|
0.9565
|
|
0.7273
|
|
0.3581
|
|
0.0000
|
|
|
|
|
48.65
|
|
0.5431
|
|
0.4845
|
|
0.3862
|
|
0.2399
|
|
0.0629
|
|
0.0000
|
|
|
|
|
58.38
|
|
0.2567
|
|
0.2142
|
|
0.1512
|
|
0.0712
|
|
0.0030
|
|
0.0000
|
|
|
|
|
68.11
|
|
0.1130
|
|
0.0858
|
|
0.0496
|
|
0.0116
|
|
0.0000
|
|
0.0000
|
|
|
|
|
77.84
|
|
0.0402
|
|
0.0249
|
|
0.0076
|
|
0.0000
|
|
0.0000
|
|
0.0000
|
|
|
|
|
87.57
|
|
0.0064
|
|
0.0008
|
|
0.0000
|
|
0.0000
|
|
0.0000
|
|
0.0000
|
|
|
(i) If
the Share Price
for the applicable Class
is between two share
price amounts on the Make Whole Table or the Effective Date is between two dates on the Make Whole Table, the Make Whole Premium
will be determined by straight-line interpolation between Make Whole Premium amounts set forth for the higher and lower share price
amounts
of such Class
and the two dates, as applicable, based
on a 365-day year (or a 366-day year if the Effective Date occurs in a leap year).
(ii) If
the Share Price is in excess of $
90.00
87.57
for the applicable Class
(subject to adjustment as described in Section 11.3, the “Share Price Cap”), the
Make Whole Premium
of such Class
shall be equal to zero Common
Shares.
(iii) If
the Share Price is less than $
23.25
22.62
for that Class
(subject to adjustment as described in Section 11.3, the “Share Price Threshold”), the Make
Whole Premium
of such Class
shall be equal to zero Common
Shares.
(iv) In
no event shall the
shares
Class
A Shares
issuable upon conversion per $1,000 principal amount of Notes converted pursuant to Article XIV hereof be in
excess of
43.0108 Common Shares (
21.83721
Class A Shares, or the Class B Shares issuable upon conversion per $1,000 principal amount of Notes converted pursuant to Article
XIV hereof be in excess of 21.83721 Class B Shares (in each case,
subject to adjustment as described in Section 11.3,
the “Conversion Shares Cap”).
(v) For
purposes of this Section 11.1(c), the following terms shall have the respective meanings indicated:
(1) “Effective
Date” means the date that a Change in Control becomes effective.
(2) “Share
Price” means the price paid per
share of Common
Class
A
Share
or Class B Share, as applicable,
in the
transaction constituting the Change in Control, determined as follows:
(A) if
holders of Common Shares
of the applicable Class
receive
only cash in the transaction constituting the Change in Control, the Share Price shall equal the cash amount paid per
share
of
Common Share
of such Class
; and
(B) in
all other cases, the Share Price
of the applicable Class
shall equal the average Closing Price of a Common Share
of such Class
over the five Trading Day period ending on the Trading Day immediately preceding the Effective Date.
(d) The
Issuer shall pay the Make Whole Premium in Common Shares, with cash in lieu of fractional shares in the manner contemplated by
Section 14.3.
(e) On
or prior to the Designated Event Repurchase Date, the Issuer shall deposit with the Paying Agent a number or an amount of Common
Shares
of the applicable Class(es)
, and cash in lieu of fractional
shares, if any, sufficient to pay the Make Whole Premium with respect to all the Notes to be repurchased on such date and all the
Notes converted in connection with such Change in Control; provided that if such payment is made on the Designated Event Repurchase
Date, it must be received by the Paying Agent by 11:00 a.m., New York City time, on such date.
SECTION 11.2 ISSUER’S OPTION TO PROVIDE
FOR CONVERSION INTO SHARES OF ACQUIROR IN LIEU OF MAKE WHOLE PREMIUM.
(a) If
a Change in Control occurs that would otherwise trigger the obligation of the Issuer to pay the Make Whole Premium pursuant to
Section 11.1 hereof and the Acquiror is a Public Entity or is a direct or indirect subsidiary of a Public Entity, the Issuer may
elect to provide for the Notes to be convertible into
Common
common
Shares of such Public Entity in lieu of paying the Make Whole Premium. The Issuer may elect to provide for the conversion of the
Notes into
Common Shares
common
shares
of such Public Entity (and thus to be under no obligation to pay the Make Whole Premium) so long as:
(i) the
common shares of the Public Entity into which the Notes will be convertible are, subject to notification of issuance, listed on
the principal United States securities exchange on which the issued and outstanding common shares of the Public Entity are listed
or, if not so listed, on the NASDAQ National Market;
(ii) the
common shares of the Public Entity are registered under the Exchange Act; and
(iii) the
common shares of the Public Entity into which the Notes will be convertible are registered under the Securities Act and any necessary
qualification or registration under applicable state securities laws have been made (subject to the availability of any exemption
from such qualification and registration requirements).
(b) If
the conditions contained in clauses (i) through (iii) of Section 11.2(a) are not satisfied on or prior to the effectiveness of
the Change in Control, the Issuer shall pay the Make Whole Premium in connection with the Change in Control to electing Holders
as described under Article XIII and Section 14.1 hereof.
(c) The
Issuer shall give to all Record Holders and to the Trustee and the Paying Agent, in the manner provided in Section 16.2 hereof
on or before the 10th day after the Issuer has become aware of a Change in Control, a notice indicating Issuer’s intent to
either pay
the Make Whole Premium or to provide for the
Notes to be convertible into common shares of the Public Entity. Such notice shall be in the same form as required under Section
13.4 hereof and shall include the amount and basis of calculation of the Make Whole Premium.
SECTION 11.3 ADJUSTMENTS RELATING TO MAKE
WHOLE PREMIUM.
Each time that
the
a
Conversion Rate is adjusted by the Issuer pursuant to Section 14.4 hereof, (A) the
applicable
Share Price Threshold, the Share Price Cap and each of the share prices set forth in the left hand column of the
applicable
Make Whole Table shall be adjusted (rounded to the nearest cent) by multiplying each such amount by a fraction, the
numerator of which is the
applicable
Conversion Rate immediately
prior to such adjustment and the denominator of which is the Conversion Rate as so adjusted, and (B) the
applicable
Conversion Shares Cap and each of the share amounts set forth in the body of the
applicable
Make Whole Table shall be adjusted (rounded to the nearest one-one hundredth of a share) in the same manner as the
applicable
Conversion Rate is adjusted pursuant to Section 14.4 hereof.
Article
XII
[RESERVED]
Article
XIII
REPURCHASE OF NOTES
SECTION 13.1 [RESERVED]
SECTION 13.2 REPURCHASE AT THE OPTION OF THE
HOLDER UPON A DESIGNATED EVENT.
(a) In
the event that a Designated Event shall occur at any time prior to the Maturity Date, then each Holder shall have the right (the
“Designated Event Repurchase Right”), at such Holder’s option, to require the Issuer to repurchase, and upon
the exercise of such right the Issuer shall repurchase, such Holder’s Notes, in whole or in part, of $1,000 or any integral
multiple of $1,000 in excess thereof or the entire principal amount of the Notes held by any Holder (provided that no single Note
may be repurchased in part unless the portion of the principal amount of such Note to be Outstanding after such repurchase is equal
to $1,000 or integral multiples of $1,000 in excess thereof), on the date specified by the Issuer (the “Designated Event
Repurchase Date”) that is not less than 20 nor more than 30 Business Days after the date of the Issuer Notice (as defined
in Section 13.4) at a purchase price equal to 100% of the principal amount of the Notes to be repurchased plus accrued and unpaid
interest, to, but excluding, the Designated Event Repurchase Date (the “Designated Event Repurchase Price”); provided,
however, that installments of interest, if any, on Notes with an Interest Payment Date on or prior to the Designated Event Repurchase
Date shall be payable to the Holders of such Notes registered as such on the relevant Record Date according to their terms and
the provisions of Section 2.1 hereof. The Designated Event Repurchase Price to be paid upon a Designated Event shall be paid in
cash.
(b) To
exercise a Designated Event Repurchase Right, a Holder shall deliver to the Issuer or its designated agent (i) prior to the close
of business on the Designated Event Repurchase Date specified in the Issuer Notice, written notice of the Holder’s exercise
of such right, which notice shall set forth the name of the Holder, the principal amount of the Notes to be
repurchased (and, if any Note is to repurchased
in part, the serial number thereof, the portion of the principal amount thereof to be repurchased and the name of the Person in
which the portion thereof to remain Outstanding after such repurchase is to be registered, subject to Section 2.16 hereof) and
a statement that an election to exercise the Designated Event Repurchase Right is being made thereby (the “Designated Event
Repurchase Notice”), and (ii) the Notes with respect to which the Designated Event Repurchase Right is being exercised duly
endorsed for transfer (or, if any Note is not certificated, the Designated Event Repurchase Notice must comply with Depositary
procedures). The Issuer shall pay or deposit funds with the Paying Agent in the amount of the Designated Event Repurchase Price
for the Notes to be repurchased on the Trading Day immediately following the Designated Event Repurchase Date.
(c) The
Paying Agent shall promptly notify the Issuer of the receipt by it of a Designated Event Repurchase Notice.
(d) Any
repurchase by the Issuer contemplated pursuant to the provisions of this Section 13.2 shall be consummated by the delivery from
the Issuer to the Paying Agent of the consideration to be received by the Holder on the Trading Day immediately following the Designated
Event Repurchase Date.
SECTION 13.3 [RESERVED]
SECTION 13.4 NOTICE OF OPTIONAL REPURCHASE
TO BE PROVIDED BY THE ISSUER.
(a) On
or before the 10th day after the Issuer becomes aware of the occurrence of a Designated Event, the Issuer shall give to all Holders
of Notes and to the Trustee, in the manner provided in Section 16.2, notice (the “Issuer Notice”) of the occurrence
of the Designated Event and of the Designated Event Repurchase Right set forth herein arising as a result thereof.
(b) Each
Issuer Notice shall state:
(i) the
Designated Event Repurchase Date,
(ii) the
date by which the Designated Event Repurchase Right must be exercised,
(iii) whether
the Designated Event is a Termination of Trading, Change in Management or a Change in Control,
(iv) the
Designated Event Repurchase Price,
(v) if
the Designated Event is a Change in Control and the Acquiror is a Public Entity or is a direct or indirect subsidiary of a Public
Entity, whether the Issuer elects to pay the Make Whole Premium, as provided in Section 11.2 hereof,
(vi) [reserved],
(vii) a
description of the procedure that a Holder must follow to exercise a Designated Event Repurchase Right, and the place or places
where such Notes are to be surrendered for payment of the Designated Event Repurchase Price,
(viii) that
on the Designated Event Repurchase Date the Designated Event Repurchase Price will become due and payable upon each such Note designated
by the Holder to be repurchased, and that interest thereon will cease to accrue on and after such date,
(ix) the
Conversion
Rate
Rates
then in effect and the place or places where such Notes may be surrendered for conversion, and
(x) the
place or places that the Note certificate with the election of Holder to require repurchase as specified in form of Global Note
shall be delivered.
(c) No
failure of the Issuer to give the foregoing notices or defect therein shall limit any Holder’s right to exercise a repurchase
right or affect the validity of the proceedings for the repurchase of Notes.
(d) If
any of the foregoing provisions or other provisions of this Article XIII are inconsistent with applicable law, such law shall govern.
SECTION 13.5 NOTICE OF WITHDRAWAL.
A Holder may withdraw any Repurchase Notice
by delivering a written notice of withdrawal to the Paying Agent prior to the close of business on the Repurchase Date (“Withdrawal
Notice”). The Withdrawal Notice must state:
(a) the
principal amount of the withdrawn Notes;
(b) if
certificated Notes have been issued, the certificate number of the withdrawn Notes (or, if the Notes are not certificated, the
Withdrawal Notice must comply with appropriate Depositary procedures); and
(c) the
principal amount, if any, which remains subject to the Repurchase Notice.
SECTION 13.6 PAYMENT OF THE REPURCHASE PRICE.
(a) Payment
of the Repurchase Price for a Note for which a Repurchase Notice has been delivered and not withdrawn is conditioned upon book-entry
transfer or delivery of such Note, together with necessary endorsements, to the Paying Agent at the Corporate Trust Office, at
any time after delivery of the Repurchase Notice. The Issuer shall pay or deposit funds with the Paying Agent in the amount of
the Repurchase Price for the Note on the Trading Day immediately following the Repurchase Date.
(b) If
the Paying Agent holds money sufficient to pay the Repurchase Price of the Notes on the Trading Day immediately following the Repurchase
Date, then, on and after the Trading Day immediately following the Repurchase Date:
(i) the
Notes will cease to be outstanding;
(ii) interest
will cease to accrue in respect of any date from and after the Repurchase Date; and
(iii) all
other rights of the Holder will terminate, other than the right to receive the Repurchase Price upon delivery of the Notes.
(c) This
will be the case whether or not book-entry transfer to the Notes has been made or the Notes have been delivered to the Paying Agent.
Installments of interest that mature on or prior to the Repurchase Date shall be payable in cash to the Holders of such Notes registered
as such at the close of business on the relevant Regular Record Date.
Article
XIV
CONVERSION OF NOTES
SECTION 14.1 CONVERSION RIGHT AND CONVERSION
PRICE
PRICES
.
(a) Subject
to and upon compliance with the provisions of this Article, at the option of the Holder thereof, any outstanding Note or any portion
of the principal amount thereof which is $1,000 or an integral multiple of $1,000 may be converted into duly authorized, fully
paid and nonassessable Common Shares, at the Conversion
Rate
Rates
,
determined as hereinafter provided, in effect at the time of conversion and subject to adjustment, as described below. Such conversion
right shall expire at the close of business on the Business Day immediately preceding the Maturity Date unless the Notes or a portion
thereof have been previously called for repurchase. A Note for which a Holder has delivered a Repurchase Notice pursuant to Article
XIII hereof may be surrendered for conversion only if such notice is withdrawn in accordance with Article XIII hereof.
(b) The
rate at which Common Shares shall be delivered upon conversion
(the “Conversion Rate”)
shall be
initially
,
as of the 2016 Reclassification Date,
equal to
33.3333 Common
17.12915
Class A
Shares per $1,000 principal amount of Notes
. The Conversion Price of the Notes
(the “Conversion Price”)
(the “Class
A Conversion Rate”) and 17.12915 Class B Shares per $1,000 principal amount of Notes (the “Class B Conversion Rate”;
each of the Class B Conversion Rate and the Class A Conversion Rate, a “Conversion Rate”). The conversion price of
the Notes
shall be
initially equal to $30.00 per Common Share. The Conversion Rate
and the Conversion Price
, as of the 2016 Reclassification
Date, equal to $29.19 per Class A Share (the “Class A Conversion Price”) and $29.19 per Class B Share (the “Class
B Conversion Price”; each of the Class B Conversion Price and the Class A Conversion Price, a “Conversion Price”).
The Conversion Rates and the Conversion Prices
shall be adjusted in certain instances as provided in Section 14.4 hereof.
.
(c) In
case a Note or portion thereof is called for repurchase, such conversion right in respect of the Note or the portion so called,
shall expire at the close of business on the
Business Day immediately preceding a Repurchase
Date, unless the Issuer defaults in making the payment due upon repurchase. In the case of a Change in Control for which the Holder
exercises its Designated Event Repurchase Right with respect to a Note or portion thereof, such conversion right in respect of
the Note or portion thereof shall expire at the close of business on the Business Day immediately preceding the Designated Event
Repurchase Date.
(d) Notwithstanding
anything contained in this Article XIV, any conversion of the Notes held by a resident of Canada will be subject to the availability
of a prospectus exemption under applicable Canadian securities laws until such time as a final receipt has been issued for a Canadian
prospectus qualifying the distribution of the underlying Common Shares.
SECTION 14.2 EXERCISE OF CONVERSION RIGHT.
In order to exercise the conversion right
with respect to any interest in a Global Note, the beneficial holder must complete, or cause to be completed, the appropriate instruction
form for conversion pursuant to the Depositary’s book-entry conversion program; deliver, or cause to be delivered, by book-entry
delivery an interest in such Global Note; furnish appropriate endorsements and transfer documents if required by the Issuer or
the Trustee or Conversion Agent; and pay the funds, if any, required by this Section 14.2 and any transfer taxes if required pursuant
to Section 14.8.
In order to exercise the conversion right
with respect to any Note in certificated form, the Issuer must receive at the office or agency of the Issuer maintained for that
purpose in the City of New York or, at the option of such Holder, the Corporate Trust Office, such Note with the original or facsimile
of the form entitled “Conversion Notice” on the reverse thereof, duly completed and manually signed, together with
such Notes duly endorsed for transfer, accompanied by the funds, if any, required by this Section 14.2. Such notice shall also
state the name or names (with address or addresses) in which the certificate or certificates for shares of Common Shares which
shall be issuable on such conversion shall be issued, and shall be accompanied by transfer or similar taxes, if required pursuant
to Section 14.8.
As promptly as practicable after satisfaction
of the requirements for conversion set forth above, subject to compliance with any restrictions on transfer if shares issuable
on conversion are to be issued in a name other than that of the Holder (as if such transfer were a transfer of the Note or Notes
(or portion thereof) so converted), the Issuer shall cause the Company to issue and shall deliver to such Holder at the office
or agency maintained by the Issuer for such purpose pursuant to Section 10.2, (i) a certificate or certificates for the number
of full shares of Common Shares issuable upon the conversion of such Note or portion thereof as determined by the Issuer in accordance
with the provisions of Section 14.14 and (ii) cash or a check in respect of any fractional interest in respect of a share of Common
Shares arising upon such conversion, calculated by the Issuer as provided in Section 14.3. In case any Note of a denomination greater
than $1,000 shall be surrendered for partial conversion, and subject to Section 2.2, the Issuer shall execute and the Trustee shall
authenticate and deliver to the Holder of the Note so surrendered, without charge to the Holder, a new Note or Notes in authorized
denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note.
Each conversion shall be deemed to have been
effected as to any such Note (or portion thereof) on the date on which the requirements set forth above in this Section 14.2 have
been satisfied as to such Note (or portion thereof) (the “Conversion Date”), and the Person in whose name any certificate
or certificates for shares of Common Shares shall be issuable upon such conversion shall be deemed to have become on said date
the holder of record of the shares represented thereby; provided that any such surrender on any date when the stock transfer books
of the Issuer shall be closed shall constitute the Person in whose name the certificates are to be issued as the record holder
thereof for all purposes on the next succeeding day on which such stock transfer books are open, but such conversion shall be at
the Conversion
Rate
Rates
in effect on the Conversion Date.
To the extent provided in Section 2.1, Notes
surrendered for conversion during the period from the close of business on any Regular Record Date to the opening of business on
the next succeeding Interest Payment Date (except in the case of any Note whose maturity is prior to such Interest Payment Date)
shall be accompanied by payment in funds acceptable to the Issuer of an amount equal to the interest to be received on such Interest
Payment Date on the principal amount of Notes being surrendered for conversion, as well as any taxes or duties payable pursuant
to Section 14.8. To the extent provided in Section 2.1, Notes (i) for which overdue interest, if any, exists at the time of conversion
with respect to such Notes or (ii) that are submitted for repurchase by the Holder in a Designated Event Repurchase Notice, and
which are converted prior to repurchase, shall not require such concurrent payment to the Issuer upon surrender for conversion,
if such Holder’s conversion right would terminate because of the repurchase between the Regular Record Date and the close
of business on the second Business Day following the next succeeding Interest Payment Date and if converted during the time period
set forth in this sentence, the Holders of such converted Notes shall be entitled to receive (and retain) any accrued interest
on the principal of such surrendered Notes.
Notes shall be deemed to have been converted
immediately prior to 5:00 P.M. Eastern Time on the day of surrender of such Notes for conversion in accordance with the foregoing
provisions, and at such time the rights of the Holders of such Notes as Holders shall cease, and the Person or Persons entitled
to receive the Common Shares issuable upon conversion shall be treated for all purposes as the record holder or holders of such
Common Shares at such time. As promptly as practicable on or after the Conversion Date, the Issuer shall cause to be issued and
delivered to such Conversion Agent a certificate or certificates for the number of full Common Shares issuable upon conversion,
together with payment in lieu of any fraction of a share as provided in Section 14.3 hereof.
Upon the conversion of an interest in a Global
Note, the Conversion Agent, or the Trustee, as custodian for the Depositary, at the direction of the Conversion Agent, shall make
a notation on such Global Note as to the reduction in the principal amount represented thereby. The Issuer shall notify the Trustee
in writing of any conversions of Notes effected through any Conversion Agent.
Except for accrued and unpaid interest payable
through a Regular Record Date with respect to a Note converted after such Regular Record Date but prior to the corresponding Interest
Payment Date, upon the conversion of a Note, a Holder will not receive any cash payment of accrued and unpaid interest. Accrued
and unpaid interest is deemed to be paid in full with the
Common Shares (together with the cash payment,
if any in lieu of fractional shares) rather than cancelled, extinguished or forfeited.
In the case of any Note which is converted
in part only, upon such conversion the Issuer shall execute and the Trustee shall authenticate and deliver to the Holder thereof,
at the expense of the Issuer, a new Note or Notes of authorized denominations in aggregate principal amount equal to the unconverted
portion of the principal amount of such Notes.
The Issuer hereby initially appoints the Trustee
as Conversion Agent.
SECTION 14.3 FRACTIONS OF SHARES.
No fractional Common Shares shall be issued
upon conversion of any Note or Notes. If more than one Note shall be surrendered for conversion at one time by the same Holder,
the number of full shares which shall be issued upon conversion thereof shall be computed on the basis of the aggregate principal
amount of the Notes (or specified portions thereof) so surrendered. Instead of any fractional Common Shares which would otherwise
be issued upon conversion of any Note or Notes (or specified portions thereof), the Issuer shall pay a cash adjustment in respect
of such fraction (calculated to the nearest one-100th of a share) in an amount equal to the same fraction of the Closing Price
of the Common Shares as of the Trading Day preceding the date of conversion.
SECTION 14.4 ADJUSTMENT OF CONVERSION
RATE
RATES
.
Each time that
the
a
Conversion Price is adjusted by the Issuer pursuant to this Section 14.4, the
applicable
Conversion Rate shall be adjusted (rounded to the nearest one-ten thousandth) by multiplying the
applicable
Conversion Rate by a fraction, the numerator of which is the Conversion Price immediately prior to such adjustment and
the denominator of which is the
applicable
Conversion Price
as so adjusted.
The Conversion
Price
Prices
shall be subject to adjustments, calculated by the Issuer, from time to time as follows:
(a) In
case the Company shall hereafter pay a dividend or make a distribution to all holders of
any
Class of
the outstanding Common Shares in Common Shares, the
applicable
Conversion Price in effect at the opening of business on the date following the date fixed for the determination of
shareholders entitled to receive such dividend or other distribution shall be reduced by multiplying such
applicable
Conversion Price by a fraction:
(i) the
numerator of which shall be the number of Common Shares
(or Class of
Common Shares), as applicable
outstanding at the close of business on the Record Date (as defined in Section 14.4(g))
fixed for such determination, and
(ii) the
denominator of which shall be the sum of such number of
Common
shares
(or Class of Common Shares)
and the total number of shares constituting such dividend or other distribution.
Such reduction shall become effective immediately
after the opening of business on the day following the Record Date. If any dividend or distribution of the type described in this
Section 14.4(a) is declared but not so paid or made, the
applicable
Conversion Price shall again be adjusted to the
applicable
Conversion Price which would then be in effect if such dividend or distribution had not been declared.
(b) In
case
any Class of
the outstanding Common Shares shall be
subdivided into a greater number of Common Shares
of such a Class
,
the
applicable
Conversion Price in effect at the opening
of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and conversely,
in case outstanding Common Shares
of any Class
shall be combined
into a smaller number of Common Shares
of such a Class
, the
applicable
Conversion Price in effect at the opening of business on the day following the day upon which such combination
becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately
after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(c) In
case the Company shall issue rights or warrants (other than any rights or warrants referred to in Section 14.4(d)) to all holders
of
any Class of
its outstanding Common Shares entitling
them to subscribe for or purchase Common Shares (or securities convertible into Common Shares) at a price per share (or having
a conversion price per share) less than the
applicable
Current
Market Price (as defined in Section 14.4(g)) on the Record Date fixed for the determination of shareholders entitled to receive
such rights or warrants, the
applicable
Conversion Price
shall be adjusted so that the same shall equal the price determined by multiplying the
applicable
Conversion Price in effect at the opening of business on the date after such Record Date by a fraction:
(i) the
numerator of which shall be the number of Common Shares
(or Class of
Common Shares), as applicable,
outstanding at the close of business on the Record Date plus the number of shares which
the aggregate offering price of the total number of shares so offered for subscription or purchase (or the aggregate conversion
price of the convertible securities so offered) would purchase at such Current Market Price, and
(ii) the
denominator of which shall be the number of Common Shares
(or Class
of Common Shares), as applicable,
outstanding on the close of business on the Record Date plus the total number of additional
Common Shares so offered for subscription or purchase (or into which the convertible securities so offered are convertible).
Such adjustment shall become effective immediately
after the opening of business on the day following the Record Date fixed for determination of shareholders entitled to receive
such rights or warrants. To the extent that Common Shares
of the applicable
Class
(or securities convertible into Common Shares
of such
Class
) are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants
the
applicable
Conversion Price shall be readjusted to the
applicable
Conversion Price which would then be in effect
had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number
of Common Shares
of the applicable Class
(or securities convertible
into Common Shares
of such Class
) actually delivered. In
the event that such rights or
warrants are not so issued, the
applicable
Conversion Price shall again be adjusted to be the
applicable
Conversion Price which would then be in effect if such date fixed for the determination of shareholders entitled to receive such
rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase
Common Shares at less than such Current Market Price, and in determining the aggregate offering price of such Common Shares, there
shall be taken into account any consideration received for such rights or warrants, the value of such consideration if other than
cash, to be determined by the Board of Directors of the Issuer.
(d) In
case the Company shall, by dividend or otherwise, distribute to all holders
of any Class
of its Common Shares any class of Capital Shares of the Company (other than any dividends or distributions
to which Section 14.4(a) applies) or evidences of its indebtedness or other assets, including securities, but excluding (1) any
rights or warrants referred to in Section 14.4(c), (2) any stock, securities or other property or assets (including cash) distributed
as dividends or distributions in connection with a reclassification, change, merger, combination, sale, conveyance, consolidation
or statutory share exchange to which Section 14.11 hereof applies and (3) any dividends or distributions paid exclusively in cash,
(the securities described in foregoing are hereinafter in this Section 14.4(d) called the “securities”), then, in each
such case, subject to the second paragraph of this Section 14.4(d), the
applicable
Conversion Price shall be reduced so that the same shall be equal to the price determined by multiplying the
applicable
Conversion Price in effect immediately prior to the close of business on the Record Date (as defined in Section 14.4(g))
with respect to such distribution by a fraction:
(i) the
numerator of which shall be the
applicable
Current Market
Price (determined as provided in Section 14.4(g)) on such date less the fair market value (as determined by the Board of Directors
of the Issuer, whose determination shall be conclusive and set forth in a Board Resolution of the Issuer) on such date of the portion
of the securities so distributed applicable to one Common Share
of the
applicable Class
(determined on the basis of the number of Common Shares
of the applicable Class
outstanding on the Record Date), and
(ii) the
denominator of which shall be such Current Market Price.
Such reduction shall become effective immediately
prior to the opening of business on the day following the Record Date. However, in the event that the then fair market value (as
so determined) of the portion of the securities so distributed applicable to one Common Share
of
the applicable Class
is equal to or greater than the
applicable
Current Market Price on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that
each Holder shall have the right to receive upon conversion of a Note (or any portion thereof) the amount of securities such Holder
would have received had such Holder converted such Note (or portion thereof) immediately prior to such Record Date. In the event
that such dividend or distribution is not so paid or made, the
applicable
Conversion Price shall again be adjusted to be the
applicable
Conversion Price which would then be in effect if such dividend or distribution had not been declared.
If the Board of Directors of the Issuer determines
the fair market value of any distribution for purposes of this Section 14.4(d) by reference to the actual or when issued trading
market for any securities comprising all or
part of such distribution, it must in doing so consider the prices in such market over the same period (the “Reference Period”)
used in computing the
applicable
Current Market Price pursuant
to Section 14.4(g) to the extent possible, unless the Board of Directors of the Issuer in a Board Resolution determines in good
faith that determining the fair market value during the Reference Period would not be in the best interest of the Holder. For purposes
of any calculation under this Section 14.4(d) in which the distribution consists of Capital Shares of one or more of the Company’s
Subsidiaries or other business units, if such Capital Shares are listed or quoted on the New York Stock Exchange or other national
or regional exchange or market and Closing Prices are available during the relevant calculation period, the fair market value of
such Capital Shares so listed or quoted shall be the average of the daily Closing Prices per share or unit of such Capital Shares
for the ten consecutive Trading Days commencing on and including the fifth Trading Day after the “ex” date (as defined
in Section 14.4(g) hereof) with respect to the distribution requiring such computation.
Rights or warrants distributed by the Company
to all holders of
any Class of
Common Shares entitling the
holders thereof to subscribe for or purchase the Company’s Capital Shares (either initially or under certain circumstances),
which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”):
(1) are
deemed to be transferred with such Common Shares;
(2) are
not exercisable; and
(3) are
also issued in respect of future issuances of Common Shares
of such
Class
,
shall be deemed not to have been distributed
for purposes of this Section 14.4(d) (and no adjustment to the
applicable
Conversion Price under this Section 14.4(d) will be required) until the occurrence of the earliest Trigger Event. If such right
or warrant is subject to subsequent events, upon the occurrence of which such right or warrant shall become exercisable to purchase
different securities, evidences of indebtedness or other assets or entitle the holder to purchase a different number or amount
of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall
be deemed to be the date of issuance and record date with respect to a new right or warrant (and a termination or expiration of
the existing right or warrant without exercise by the holder thereof). In addition, in the event of any distribution (or deemed
distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with
respect thereto, that resulted in an adjustment to the
applicable
Conversion Price under this Section 14.4(d):
(1) in
the case of any such rights or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof,
the
applicable
Conversion Price shall be readjusted upon
such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were
a cash distribution, equal to the per share redemption or repurchase price received by a holder of Common Shares
of
such Class
with respect to such rights or warrant (assuming such holder had retained such rights or warrants), made
to all holders of Common Shares
of such Class
as of the date
of such redemption or repurchase, and
(2) in
the case of such rights or warrants all of which shall have expired or been terminated without exercise, the
applicable
Conversion Price shall be readjusted as if such rights and warrants had never been issued.
For purposes of this Section 14.4(d) and Sections
14.4(a), 14.4(b) and 14.4(c), any dividend or distribution to which this Section 14.4(d) is applicable that also includes Common
Shares, a subdivision or combination of Common Shares
of any Class
to
which Section 14.4(c) applies, or rights or warrants to subscribe for or purchase Common Shares
of any Class
to which Section 14.4(c) applies (or any combination thereof), shall be deemed instead to be:
(1) a
dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, rights or warrants other than such
Common Shares, such subdivision or combination or such rights or warrants to which Sections 14.4(a), 14.4(b) and 14.4(c) apply,
respectively (and any
applicable
Conversion Price reduction
required by this Section 14.4(d) with respect to such dividend or distribution shall then be made), immediately followed by
(2) a
dividend or distribution of such Common Shares, such subdivision or combination or such rights or warrants (and any further Conversion
Price reduction required by Sections 14.4(a), 14.4(b) and 14.4(c) with respect to such dividend or distribution shall then be made),
except:
(A) the
Record Date of such dividend or distribution shall be substituted as (x) “the date fixed for the determination of shareholders
entitled to receive such dividend or other distribution,” “Record Date fixed for such determinations” and “Record
Date” within the meaning of Section 14.4(a), (y) “the day upon which such subdivision becomes effective” and
“the day upon which such combination becomes effective” within the meaning of Section 14.4(b), and (z) as “the
date fixed for the determination of shareholders entitled to receive such rights or warrants,” “the Record Date fixed
for the determination of the shareholders entitled to receive such rights or warrants” and such “Record Date”
within the meaning of Section 14.4(c), and
(B) any
Common Shares included in such dividend or distribution shall not be deemed “outstanding at the close of business on the
date fixed for such determination” within the meaning of Section 14.4(a) and any reduction or increase in the number of Common
Shares resulting from such subdivision or combination shall be disregarded in connection with such dividend or distribution.
(e) In
case the Company shall, by dividend or otherwise, distribute to all holders of
any
Class of
its Common Shares cash (excluding any cash that is distributed upon a reclassification, change, merger, combination,
sale, conveyance, consolidation or statutory share exchange to which Section 14.11 hereof applies or as part of a distribution
referred to in Section 14.4(d) hereof), then and in each such case, immediately after the close of business on the Record Date
of such distribution, the
applicable
Conversion Price shall
be reduced so that the same shall
equal the price determined by multiplying
the
applicable
Conversion Price in effect immediately prior
to the close of business on such Record Date by a fraction:
(i) the
numerator of which shall be equal to the
applicable
Current
Market Price on such Record Date less the full amount of such distribution, in each case, applicable to one Common Share
of such a Class
, and
(ii) the
denominator of which shall be equal to the
applicable
Current
Market Price on the Record Date.
However, as determined by the Board of Directors
of the Issuer, whose determination shall be conclusive and set forth in a Board Resolution of the Issuer, the Issuer may in lieu
of the foregoing adjustment, make adequate provision so that each Holder shall have the right to receive upon conversion of a Note
(or any portion thereof) the amount of cash such Holder would have received had such Holder converted such Note (or portion thereof)
immediately prior to such Record Date. In the event that such dividend or distribution is not so paid or made, the
applicable
Conversion Price shall again be adjusted to be the
applicable
Conversion Price which would then be in effect if such dividend or distribution had not been declared.
(f) In
case a tender or exchange offer made by the Company or any of its subsidiaries to all holders of
any
Class of its
Common Shares for all or any portion
of such
Class
of the Common Shares shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall
require the payment to shareholders (based on the acceptance (up to any maximum specified in the terms of the tender or exchange
offer) of Purchased Shares (as defined below)) of an aggregate consideration having a fair market value (as determined by the Board
of Directors of the Issuer, whose determination shall be conclusive and set forth in a Board Resolution of the Issuer), as of the
expiration of such tender or exchange offer that exceeds the
applicable
Current Market Price (determined as provided in Section 14.4(g)) as of the last time (the “Expiration Time”)
tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of
Common Shares
of the applicable Class
outstanding (including
any tendered or exchanged shares) on the Expiration Time, then, and in each such case, immediately prior to the opening of business
on the day after the date of the Expiration Time, the
applicable
Conversion
Price shall be adjusted so that the same shall equal the price determined by multiplying the
applicable
Conversion Price in effect immediately prior to close of business on the date of the Expiration Time by a fraction:
(i) the
numerator of which shall be the number of Common Shares
of the applicable
Class
outstanding (including any Purchased Shares) at the Expiration Time multiplied by the
applicable
Current Market Price of the Common Shares on the Trading Day next succeeding the Expiration Time, and
(ii) the
denominator shall be the sum of (x) the fair market value (determined by the Board of Directors of the Issuer, whose determination
shall be conclusive and set forth in a Board Resolution of the Issuer) of the aggregate consideration payable to shareholders based
on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or
exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred
to as the “Purchased Shares”)
and (y) the product of the number of Common Shares
of the applicable
Class
outstanding (less any Purchased Shares) as of the Expiration Time and the
applicable
Current Market Price of the Common Shares on the Trading Day next succeeding the Expiration Time.
Such reduction (if any) shall become effective
immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated
to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from
effecting any such purchases or all such purchases are rescinded, the
applicable
Conversion Price shall again be adjusted to be the
applicable
Conversion Price which would then be in effect if such tender or exchange offer had not been made. If the application
of this Section 14.4(f) to any tender or exchange offer would result in an increase in the
applicable
Conversion Price, no adjustment shall be made for such tender or exchange offer under this Section 14.4(f).
(g) For
purposes of this Section 14.4, the following terms shall have the meanings indicated:
(1) “Current
Market Price” shall mean the average of the daily Closing Prices per Common Share
of
the applicable Class
for the ten consecutive Trading Days ending on the earlier of the date of determination and the
day before the “ex” date (as defined below) with respect to the distribution requiring such computation; provided,
however, that for purposes of any calculation under Section 14.4(d) in which the distribution consists of Capital Shares of one
or more of the Company’s Subsidiaries or other business units, the Current Market Price shall mean the average of the daily
Closing Prices per Common Share
of the applicable Class
for
the ten consecutive Trading Days commencing on and including the fifth Trading Day after the “ex” date with respect
to the distribution requiring such computation. For purposes of this definition, “ex” date shall mean:
(A) with
respect to any issuance or distribution, means the first date on which the
applicable
Common Shares trade regular way on the relevant exchange or in the relevant market from which the Closing Price was
obtained without the right to receive such issuance or distribution;
(B) with
respect to any subdivision or combination of
any class of
Common
Shares, means the first date on which the
applicable
Common
Shares trade regular way on such exchange or in such market after the time at which such subdivision or combination becomes effective,
and
(C) with
respect to any tender or exchange offer, means the first date on which the
applicable
Common Shares trade regular way on such exchange or in such market after the Expiration Time of such offer.
Notwithstanding the foregoing, whenever successive
adjustments to
the
a
Conversion Price are called for pursuant to this Section 14.4, such adjustments shall be made to the Current Market Price as may
be necessary or appropriate to effectuate the intent of this Section
14.4 and to avoid unjust or inequitable results
as determined in good faith by the Board of Directors of the Issuer.
(2) “fair
market value” shall mean the amount which a willing buyer would pay a willing seller in an arm’s length transaction;
provided, however, that for purposes of any calculation under Section 14.4(d) hereof in which the distribution consists of Capital
Shares of one or more of the Company’s Subsidiaries or other business units, if such Capital Shares are listed or quoted
on the New York Stock Exchange or other national or regional exchange or market and Closing Prices are available during the relevant
calculation period, the fair market value of such Capital Shares so listed or quoted shall be the average of the daily Closing
Prices per share or unit of such Capital Shares for the ten consecutive Trading Days commencing on and including the fifth Trading
Day after the “ex” date (as defined in this Section 14.4(g)) with respect to the distribution requiring such computation.
(3) “Record
Date” shall mean, with respect to any dividend, distribution or other transaction or event in which the holders of
the
applicable
Common Shares have the right to receive any cash, securities or other property or in which the
applicable
Common Shares (or other applicable security) is exchanged for or converted into any combination of cash,
securities or other property, the date fixed for determination of shareholders entitled to receive such cash, securities or other
property (whether such date is fixed by the Board of Directors of the Company or by statute, contract or otherwise).
(h) The
Issuer may make such reductions in
the
a
Conversion Price, in addition to those required by Sections 14.4(a), (b), (c), (d), (e) or (f), as the Board of Directors of the
Issuer considers to be advisable to avoid or diminish any income tax to holders of Common Shares or rights to purchase Common Shares
resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such for income
tax purposes.
To the extent permitted by applicable law,
the Issuer from time to time may reduce
the
a
Conversion Price by any amount for any period of time if the period is at least 20 days and the reduction is irrevocable during
the period and the Board of Directors of the Issuer determines in good faith that such reduction would be in the best interests
of the Issuer, which determination shall be conclusive and set forth in a Board Resolution of the Issuer. Whenever
the
a
Conversion Price is reduced pursuant to the preceding sentence, the Issuer shall mail to the Trustee and each Holder at the address
of such Holder as it appears in the Register a notice of the reduction at least 15 days prior to the date the reduced Conversion
Price takes effect, and such notice shall state the reduced Conversion Price and the period during which it will be in effect.
Notwithstanding the foregoing, any action
taken under the two immediately preceding paragraphs shall be subject to approval of the New York Stock Exchange (or other applicable
regulatory approval).
Adjustment to
the
a
Conversion Price is not necessary if Holders may participate in the transactions otherwise giving rise to an adjustment on a basis
and with notice that the Board of Directors of the Issuer determines to be fair and appropriate. Such participation is subject
to acceptance by the New York Stock Exchange. In cases where the fair market value of the portion
of assets, debt securities or rights, warrants
or options to purchase securities of the Company applicable to one Common Share
of
the applicable Class
distributed to shareholders exceeds the average sale price per Common Share
of such Class
, or the average sale price per share of options on Common Shares
of
such Class
so distributed by less than $1.00, rather than being entitled to an adjustment in
the
a
Conversion Price, a Holder, upon conversion of a Note, will be entitled to receive (in addition to the Common Shares into which
such Note is convertible) the kind and amounts of assets, debt securities or rights, options or warrants comprising the distribution
that such Holder would have received if such Holder had converted such Note immediately prior to the record date for determining
the shareholders entitled to receive such distribution.
(i) No
adjustment in
the
a
Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in such price; provided,
however, that any adjustments which by reason of this Section 14.4(i) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this Article XIV shall be made by the Issuer and shall
be made to the nearest cent or to the nearest one-hundredth (1/100th) of a share, as the case may be. No adjustment need be made
for a change in the par value or no par value
of any Class
of the Common Shares.
(j) In
any case in which this Section 14.4 provides that an adjustment shall become effective immediately after a Record Date for an event,
the Issuer may defer until the occurrence of such event (i) issuing to the Holder of any Note converted after such Record Date
and before the occurrence of such event the additional Common Shares issuable upon such conversion by reason of the adjustment
required by such event over and above the Common Shares issuable upon such conversion before giving effect to such adjustment and
(ii) paying to such holder any amount in cash in lieu of any fraction pursuant to Section 14.3 hereof.
(k) For
purposes of this Section 14.4, the number of Common Shares at any time outstanding shall not include shares held in the treasury
of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of Common Shares.
The Company will not pay any dividend or make any distribution on Common Shares held in the treasury of the Company.
(l) If
the distribution date for the rights provided in the Company’s rights agreement, if any, occurs prior to the date a Note
is converted, (i) the Holder of the Note who converts such Note after the distribution date is entitled to receive the rights that
would otherwise be attached (but for the date of conversion) to the Common Shares received upon such conversion and (ii) no adjustment
shall be made to
the
a
Conversion Price pursuant to clause 14.4(b).
SECTION 14.5 NOTICE OF ADJUSTMENTS OF CONVERSION
PRICE.
Whenever
the
a
Conversion Price is adjusted as herein provided (other than in the case of an adjustment pursuant to the second paragraph of Section
14.4(h) for which the notice required by such paragraph has been provided), the Issuer shall promptly file with the Trustee and
any Conversion Agent an Officers’ Certificate of the Issuer setting forth the adjusted Conversion Price and showing in reasonable
detail the facts upon which such adjustment is based; provided that the Trustee shall have no duty or obligation to verify the
accuracy of the adjusted Conversion Price. Promptly after delivery of such Issuer Officers’ Certificate, the Issuer shall
prepare a notice
stating that
the
a
Conversion Price has been adjusted and setting forth the adjusted Conversion Price and the date on which each adjustment becomes
effective, and shall mail such notice to each Holder at the address of such Holder as it appears in the Register within 20 days
of the effective date of such adjustment. Failure to deliver such notice shall not effect the legality or validity of any such
adjustment.
SECTION 14.6 NOTICE PRIOR TO CERTAIN ACTIONS.
In case at any time after the date hereof:
(1) the
Company shall declare a dividend (or any other distribution) on
any
Class of
its Common Shares payable otherwise than in cash out of its capital surplus or its consolidated retained earnings;
(2) the
Company shall authorize the granting to the holders of its Common Shares of rights or warrants to subscribe for or purchase any
shares of capital stock of any class (or of securities convertible into shares of capital stock of any class) or of any other rights;
(3) there
shall occur any reclassification of
any Class of
the Common
Shares of the Company (other than a subdivision or combination of
any
Class of
its outstanding Common Shares, a change in par value, a change from par value to no par value or a change from
no par value to par value), or any merger, consolidation, statutory share exchange or combination to which the Company is a party
and for which approval of any shareholders of the Company is required, or the sale, transfer or conveyance of all or substantially
all of the assets of the Company; or
(4) there
shall occur the voluntary or involuntary dissolution, liquidation or winding up of the Company;
the Issuer shall cause to be filed at each
office or agency maintained for the purpose of conversion of securities pursuant to Section 10.2 hereof, and shall cause to be
provided to the Trustee and all Holders in accordance with Section 16.2 hereof, at least 20 days (or 10 days in any case specified
in clause (1) or (2) above) prior to the applicable record or effective date hereinafter specified, a notice stating:
(A) the
date on which a record is to be taken for the purpose of such dividend, distribution, rights or warrants, or, if a record is not
to be taken, the date as of which the holders of Common Shares of record to be entitled to such dividend, distribution, rights
or warrants are to be determined, or
(B) the
date on which such reclassification, merger, consolidation, statutory share exchange, combination, sale, transfer, conveyance,
dissolution, liquidation or winding up is expected to become effective, and the date as of which it is expected that holders of
Common Shares of record shall be entitled to exchange their Common Shares for securities, cash or other property deliverable upon
such reclassification, merger, consolidation, statutory share exchange, sale, transfer, dissolution, liquidation or winding up.
Neither the failure to give such notice nor
any defect therein shall affect the legality or validity of the proceedings or actions described in clauses (1) through (4) of
this Section 14.6.
SECTION 14.7 COMPANY TO RESERVE COMMON SHARES;
INTERCOMPANY AGREEMENT.
(a) The
Company shall at all times use its best efforts to reserve and keep available, free from preemptive rights, out of its authorized
but unissued Common Shares, for the purpose of effecting the conversion of Notes, the full number of fully paid and nonassessable
Common Shares
of each Class
then issuable upon the conversion
of all outstanding Notes.
(b) The
Issuer and the Company will have agreed to contribute the Common Shares issuable upon conversion of the Notes pursuant to this
Article XIV to the Issuer by the date hereof.
SECTION 14.8 TAXES ON CONVERSIONS.
Except as provided in the next sentence, the
Issuer will pay any and all taxes (other than taxes on income) and duties that may be payable in respect of the issue or delivery
of Common Shares on conversion of Notes pursuant hereto. A Holder delivering a Note for conversion shall be liable for and will
be required to pay any tax or duty which may be payable in respect of any transfer involved in the issue and delivery of Common
Shares in a name other than that of the Holder of the Note or Notes to be converted, and no such issue or delivery shall be made
unless the Person requesting such issue has paid to the Issuer the amount of any such tax or duty, or has established to the satisfaction
of the Issuer that such tax or duty has been paid.
SECTION 14.9 COVENANT AS TO COMMON SHARES.
The Issuer and the Company, jointly and severally,
covenant that all Common Shares which may be issued upon conversion of Notes will upon issue be fully paid and nonassessable and,
except as provided in Section 14.8, the Issuer will pay all taxes, liens and charges with respect to the issue thereof.
SECTION 14.10 CANCELLATION OF CONVERTED NOTES.
All Notes delivered for conversion shall be
delivered to the Trustee to be canceled by or at the direction of the Trustee, which shall dispose of the same as provided in Section
2.11.
SECTION 14.11 EFFECT OF RECLASSIFICATION,
CONSOLIDATION, MERGER OR SALE.
If any of following events occur, namely:
(i) any
reclassification or change of
any Class of
the outstanding
Common Shares (including a compulsory share exchange but other than changes resulting from a subdivision or combination), as a
result of which holders of
such
Common Shares shall be entitled
to receive stock, securities or other property or assets (including cash or any combination thereof) with respect to or in exchange
for such Common Shares,
(ii) any
merger, consolidation, statutory share exchange or combination of the Company with another corporation as a result of which holders
of Common Shares
of any Class
shall be entitled to receive
stock, securities or other property or assets (including cash or any combination thereof) with respect to or in exchange for such
Common Shares or
(iii) any
sale or conveyance of all or substantially all of the properties and assets of the Company to any other Person as a result of which
holders of Common Shares
of any Class
shall be entitled to
receive stock, securities or other property or assets (including cash or any combination thereof) with respect to or in exchange
for such Common Shares,
then the Issuer and the Company or the successor
or purchasing corporation, as the case may be, shall execute with the Trustee a supplemental indenture (which shall comply with
the TIA as in force at the date of execution of such supplemental indenture if such supplemental indenture is then required to
so comply) providing that each Note shall be convertible into the kind and amount of shares of stock and other securities or property
or assets (including cash or any combination thereof) which the Holder thereof would have been entitled to receive upon such reclassification,
change, merger, consolidation, statutory share exchange, combination, sale or conveyance had such Notes been converted into Common
Shares immediately prior to such reclassification, change, merger, consolidation, statutory share exchange, combination, sale or
conveyance assuming such holder of Common Shares did not exercise its rights of election, if any, as to the kind or amount of securities,
cash or other property receivable upon such merger, consolidation, statutory share exchange, sale or conveyance (provided that,
if the kind or amount of securities, cash or other property receivable upon such merger, consolidation, statutory share exchange,
sale or conveyance is not the same for each Common Share in respect of which such rights of election shall not have been exercised
(“Non-Electing Share”), then for the purposes of this Section 14.11 the kind and amount of securities, cash or other
property receivable upon such merger, consolidation, statutory share exchange, sale or conveyance for each Non-Electing Share shall
be deemed to be the kind and amount so receivable per share by a plurality of the Non-Electing Shares). The Trustee shall be given
an Opinion of Counsel of the Issuer and the Company as to whether any such supplemental indenture is required to and does comply
with the TIA. Such supplemental indenture shall provide for adjustments which shall be as nearly equivalent as may be practicable
to the adjustments provided for in this Article XIV. If, in the case of any such reclassification, change, merger, consolidation,
statutory share exchange, combination, sale or conveyance, the stock or other securities and assets receivable thereupon by a holder
of Common Shares includes shares of stock or other securities and assets of a corporation other than the successor or purchasing
corporation, as the case may be, in such reclassification, change, merger, consolidation, statutory share exchange, combination,
sale or conveyance, then such supplemental indenture shall also be executed by such other corporation and shall contain such additional
provisions to protect the interests of the Holders of the Notes as the Boards of Directors of the Issuer and the Company shall
reasonably consider necessary by reason of the foregoing, including to the extent practicable the provisions providing for the
repurchase rights set forth in Article XIII hereof.
The Issuer shall cause notice of the execution
of such supplemental indenture to be mailed to each Holder, at the address of such Holder as it appears on the Register, within
20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental
indenture.
The above provisions of this Section 14.11
shall similarly apply to successive reclassifications, mergers, consolidations, statutory share exchanges, combinations, sales
and conveyances.
If this Section 14.11 applies to any event
or occurrence, Section 14.4 hereof shall not apply.
SECTION 14.12 RESPONSIBILITY OF TRUSTEE FOR
CONVERSION PROVISIONS.
The Trustee, subject to the provisions of
Section 6.1 hereof, and any Conversion Agent shall not at any time be under any duty or responsibility to any Holder of Notes to
determine whether any facts exist which may require any adjustment of
the
a
Conversion Price, or with respect to the nature or intent of any such adjustments when made, or with respect to the method employed,
or herein or in any supplemental indenture provided to be employed, in making the same. Neither the Trustee, subject to the provisions
of Section 6.1 hereof, nor any Conversion Agent shall be accountable with respect to the validity or value (of the kind or amount)
of any Common Shares, or of any other securities or property, which may at any time be issued or delivered upon the conversion
of any Note; and it or they do not make any representation with respect thereto. Neither the Trustee, subject to the provisions
of Section 6.1 hereof, nor any Conversion Agent shall be responsible for any failure of the Issuer or the Company to make any cash
payment or to issue, transfer or deliver any shares or share certificates or other securities or property upon the surrender of
any Note for the purpose of conversion; and the Trustee, subject to the provisions of Section 6.1 hereof, and any Conversion Agent
shall not be responsible or liable for any failure of the Issuer or the Company to comply with any of the covenants of the Issuer
or the Company contained in this Article XIV. Neither the Trustee nor the Conversion Agent shall have any obligation to make any
calculations hereunder.
SECTION 14.13 LIMITATION ON CONVERSION RIGHT.
Notwithstanding anything to the contrary in
this Article, any Holder of a Note shall not have the right to convert any Note to the extent that, after giving effect to such
conversion, the Holder (together with the Holder’s affiliates), as set forth on the applicable conversion notice, would beneficially
own in excess of 9.99% of the number of
Common
Class
A
Shares outstanding immediately after giving effect to such conversion. For purposes of the foregoing sentence, the
number of
Common
Class
A
Shares beneficially owned by the Holder and its affiliates shall include the number of
Common
Class
A
Shares issuable upon conversion of the Note with respect to which the determination of such sentence is being made,
but shall exclude the number of
Common
Class
A
Shares which would be issuable upon (A) conversion of the remaining, nonconverted portion of the Note beneficially
owned by the Holder or any of its affiliates and (B) exercise or conversion of the unexercised or nonconverted portion of any other
securities of the Issuer or the Company (including, without limitation, any other Notes) subject to a limitation on conversion
or exercise analogous to the limitation contained herein, beneficially owned by the Holder or any of its affiliates. Except as
set forth in the preceding sentence, for purposes of this Section 14.13, beneficial ownership shall be calculated in accordance
with Section 13(d) of the Exchange Act. For purposes of this Section 14.13, in determining the number of outstanding
Common
Class
A
Shares, the Holder may rely on the number of outstanding
Common
Class
A
Shares as reflected in (x) the Company’s most recent Quarterly Report on Form 10-Q or Annual
Report on Form 10-K, as the case may be, (y)
a more recent public announcement by the Company or (z) any subsequent notice by the Issuer, the Company or the Company’s
transfer agent setting forth the number of
Common
Class
A
Shares outstanding. Upon the written or oral request of the Holder, the Company shall promptly confirm in writing
to the Holder the number of
Common
Class
A
Shares then outstanding. In any case, the number of outstanding
Common
Class
A
Shares shall be determined after giving effect to the conversion or exercise of securities of the Company, including
the Note, by the Holder or its affiliates since the date as of which such number of outstanding
Common
Class
A
Shares was reported. Neither the Trustee nor the Conversion Agent shall be responsible for monitoring compliance with
this Section 14.13 and, absent written direction from the Issuer or Company to the contrary, may assume that any Conversion Notice
complies with this restriction.
SECTION 14.14 SATISFACTION OF CONVERSION OBLIGATION
With respect to each Holder that exercises
its conversion right in accordance with this Indenture, assuming all of the other requirements have been satisfied by such Holder,
then settlement in Common Shares shall occur as soon as practicable.
The settlement amount will be computed as
follows: the Issuer will deliver to such holder a number of shares of Common Shares equal to (1) the aggregate principal amount
of the Notes to be converted divided by 1,000, multiplied by (2) the Conversion Rate in effect on the Conversion Date (plus cash
in lieu of fractional shares calculated as provided in Section 14.3).
Article
XV
SUBORDINATION OF NOTES
SECTION 15.1 NOTES SUBORDINATED TO SENIOR
DEBT.
Notwithstanding any other provision of this
Indenture, the Issuer, the Company and the Trustee each covenants and agrees, and each Holder, by its acceptance of a Note, likewise
covenants and agrees, that all Notes shall be issued subject to the provisions of this Article XV and each Person holding any Note,
whether upon original issue or upon transfer, assignment or exchange thereof, accepts and agrees that the Notes, and all payments
in respect thereof including any payments on account of the Make Whole Premium, shall, to the extent set forth in this Article
XV, be subordinated in right of payment to the prior payment in full, in cash or cash equivalents, of all amounts that constitute
Senior Debt, including, without limitation, the Issuer’s obligations under the Senior Bank Facilities.
The Notes will be on parity in the right of
payment with the Issuer’s other existing and future liabilities that are not otherwise subordinated in favor of the Notes.
The Notes will be senior in the right of payment
to all other indebtedness of the Issuer that by its terms is expressly subordinate to the Notes.
SECTION 15.2 NO PAYMENT ON NOTES IN CERTAIN
CIRCUMSTANCES.
(a) No
direct or indirect payment on account of the Notes or on account of the purchase or other acquisition of Notes by or on behalf
of the Issuer and no deposit pursuant to
Section 4.1 shall be made if, at the time
of such payment or deposit, there shall have occurred and be continuing a default in the payment of principal of (or premium, if
any) or interest on Senior Debt (including without limitation upon acceleration of the maturity thereof) when due (a “Senior
Payment Default”).
(b) In
addition, if any default (other than a Senior Payment Default) with respect to any Senior Debt permitting, or which with the giving
of notice of lapse of time (or both) would permit, the holders thereof (or a trustee on behalf thereof) to accelerate the maturity
thereof (a “Senior Non-monetary Default”) has occurred and is continuing and the Issuer and the Trustee have received
written notice thereof from the agent bank for any Credit Facility Debt or from an authorized person on behalf of Designated Senior
Debt, then the Issuer may not make any payments on account of the Notes or on account of the purchase or other acquisition of Notes
and may not make any deposit pursuant to Section 4.1, in either case for a period (a “Payment Blockage Period”) commencing
on the date the Issuer and the Trustee receive such written notice and ending on the earlier of (i) 179 days after such date or
on the date on which the Trustee receives notice from the agent bank for the Credit Facility Debt or from any authorized person
on behalf of any Designated Senior Debt, as applicable, rescinding such notice and (ii) the date, if any, on which the Senior Debt
to which such default relates is discharged or such default is waived or otherwise cured provided that no other default then exists
except, in each case, any acceleration of the Senior Debt.
(c) Not
more than one Payment Blockage Period pursuant to Section 15.2(b) or 15.2(c) may be commenced with respect to the Notes during
any period of 360 consecutive days; provided that, subject to the limitations set forth in the next sentence, the commencement
of a Payment Blockage Period by the representatives for, or the holders of, Designated Senior Debt, other than under the Credit
Facility Debt, shall not bar the commencement of another Payment Blockage Period by the agent bank for the Credit Facility Debt
within such period of 360 consecutive days. Notwithstanding anything in this Indenture to the contrary, there must be 180 consecutive
days in any 360-day period in which no Payment Blockage Period is in effect. For all purposes of Section 15.2(b) or 15.2(c), no
event of default that existed or was continuing (it being acknowledged that any subsequent action that would give rise to an event
of default pursuant to any provision under which an event of default previously existed or was continuing shall constitute a new
event of default for this purpose) on the date of the commencement of any Payment Blockage Period with respect to the Designated
Senior Debt or Credit Facility Debt initiating such Payment Blockage Period shall be, or shall be made, the basis for the commencement
of a second Payment Blockage Period by the representative for, or the holders of, such Designated Senior Debt or Credit Facility
Debt, whether or not within a period of 360 consecutive days, unless such event of default shall have been cured or waived for
a period of not less than 90 consecutive days.
SECTION 15.3 PAYMENT OVER OF PROCEEDS UPON
DISSOLUTION, ETC.
(a) Upon
any payment or distribution of assets or securities of the Issuer to creditors of any kind or character, whether in cash, property
or securities, in connection with any dissolution or winding up or total or partial liquidation or reorganization of the Issuer,
whether voluntary or involuntary, or in a bankruptcy, insolvency, receivership or other proceedings, the holders of Senior Debt
will first be entitled to receive payment in full in cash or cash equivalents of principal of (and premium, if any) and interest
on such Senior Debt (whether or not allowed in
such proceeding) before the Holders are entitled
to receive any payment of principal of (and premium, if any) or interest on the notes or on account of the purchase or other acquisition
of the Notes by the Issuer or any of its subsidiaries. In the event that notwithstanding the foregoing, the Trustee or the Holder
of any Note receives any payment or distribution of the Issuer’s assets of any kind or character (excluding shares of Issuer’s
common stock or securities provided for in a plan reorganization or readjustment which are subordinate in right of payment to all
Senior Debt to substantially the same extent as the Notes are so subordinated) before all the Senior Debt is paid in full, then
such payment or distribution will be required to be paid over or delivered forthwith to the trustee in bankruptcy or other Person
making payment or distribution of our assets for application to the payment of all Senior Debt remaining unpaid, to the extent
necessary to pay the Senior Debt in full.
(b) To
the extent any payment of Senior Debt of the Issuer (whether by or on behalf of the Issuer, as proceeds of security or enforcement
of any right of setoff or otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to any receiver,
trustee in bankruptcy, liquidating trustee, agent or other similar Person under any bankruptcy, insolvency, receivership, fraudulent
conveyance or similar law, then if such payment is recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person, the Senior Debt of the Issuer or part thereof originally intended to be satisfied shall
be deemed to be reinstated and outstanding as if such payment had not occurred. To the extent the obligation to repay any Senior
Debt of the Issuer is declared to be fraudulent, invalid or otherwise set aside under any bankruptcy, insolvency, receivership,
fraudulent conveyance or similar law, then the obligations so declared fraudulent, invalid or otherwise set aside (and all other
amounts that would come due with respect thereto had such obligation not been so affected) shall be deemed to be reinstated and
outstanding as Senior Debt of the Issuer for all purposes of this Indenture as if such declaration, invalidity or setting aside
had not occurred.
(c) In
the event that, notwithstanding the foregoing provision prohibiting such payment or distribution, any payment or distribution of
assets or securities of the Issuer of any kind or character, whether in cash, property or securities, shall be received by the
Trustee or any Holder at a time when such payment or distribution is prohibited by Section 15.3(a) and before all obligations in
respect of Senior Debt of the Issuer are paid in full, in cash or cash equivalents, such payment or distribution shall be received
and held in trust for the benefit of, and shall be paid over or delivered to, the holders of Senior Debt of the Issuer (pro rata
to such holders on the basis of the respective amounts of Senior Debt of the Issuer held by such holders) or their representatives
or to the trustee or trustees under any indenture pursuant to which any such Senior Debt of the Issuer may have been issued, as
their respective interests appear, for application to the payment of Senior Debt of the Issuer remaining unpaid until all such
Senior Debt of the Issuer has been paid in full, in cash or cash equivalents, after giving effect to any concurrent payment, distribution
or provision therefor to or for the holders of such Senior Debt of the Issuer.
(d) The
consolidation of the Issuer with, or the merger of the Issuer with or into, another Person or the liquidation or dissolution of
the Issuer following the sale, conveyance, transfer, lease or other disposition of all or substantially all of its property and
assets to another Person upon the terms and conditions provided in Article VII hereof shall not be deemed a dissolution, winding
up, liquidation or reorganization for the purposes of this Section 15.3 if such
other Person shall, as a part of such consolidation,
merger, sale, conveyance, transfer, lease or other disposition, comply (to the extent required) with the conditions stated in Article
VII hereof.
SECTION 15.4 SUBROGATION.
Upon the payment in full of all Senior Debt
in cash or cash equivalents, the Holders shall be subrogated to the rights of the holders of Senior Debt to receive payments or
distributions of cash, property or securities of the Issuer made on such Senior Debt until the principal of and interest on the
Notes shall be paid in full; and, for the purposes of such subrogation, no payments or distributions to the holders of such Senior
Debt of any cash, property or securities to which the Holders or the Trustee on their behalf would be entitled except for the provisions
of this Article XV, and no payment pursuant to the provisions of this Article XV to the holders of Senior Debt by Holders or the
Trustee on their behalf shall, as between the Issuer, its creditors other than holders of Senior Debt, and the Holders, be deemed
to be a payment by the Issuer to or on account of the Senior Debt. It is understood that the provisions of this Article XV are
intended solely for the purpose of defining the relative rights of the Holders, on the one hand, and the holders of the Senior
Debt, on the other hand.
SECTION 15.5 OBLIGATIONS OF THE ISSUER UNCONDITIONAL.
(a) Nothing
contained in this Article XV or elsewhere in this Indenture or in the Notes is intended to or shall impair, as among the Issuer
and the Holders, the obligation of the Issuer, which is absolute and unconditional, to pay to the Holders the principal of and
interest on the Notes as and when the same shall become due and payable in accordance with their terms, or is intended to or shall
affect the relative rights of the Holders and creditors of the Issuer other than the holders of the Senior Debt, nor shall anything
herein or therein prevent the Holders or the Trustee on their behalf from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the rights, if any, under this Article XV of the holders of the Senior Debt.
(b) Without
limiting the generality of the foregoing, nothing contained in this Article XV will restrict the right of the Trustee or the Holders
to take any action to declare the Notes to be due and payable prior to their maturity or to pursue any rights or remedies hereunder;
provided, however, that all Senior Debt then due and payable or thereafter declared to be due and payable shall first be paid in
full, in cash or cash equivalents, before the Holders or the Trustee are entitled to receive any direct or indirect payment from
the Issuer under the Notes.
SECTION 15.6 NOTICE TO TRUSTEE.
(a) The
Issuer shall give prompt written notice to the Trustee of any fact known to the Issuer that would prohibit the making of any payment
to or by the Trustee in respect of the Notes pursuant to the provisions of this Article XV. The Trustee shall not be charged with
knowledge of the existence of any Senior Payment Default or Senior Non-monetary Default with respect to any Senior Debt or of any
other facts that would prohibit the making of any payment to or by the Trustee unless and until the Trustee shall have received
notice in writing to that effect signed by an Officer of the Issuer, or by a holder of Senior Debt or trustee or agent thereof;
and prior to the receipt of any such written notice, the Trustee shall, subject to this Article XV, be
entitled to assume that
no such facts exist; provided that, if the Trustee shall not have received the notice provided for in this Section 15.6 at least
two Business Days prior to the date upon which, by the terms of this Indenture, any monies shall become payable for any purpose
(including, without limitation, the payment of the principal of or interest on any Note), then, notwithstanding anything herein
to the contrary, the Trustee shall have full power and authority to receive any monies from the Issuer and to apply the same to
the purpose for which they were received, and shall not be affected by any notice to the contrary that may be received by it on
or after such prior date except for an acceleration of the Notes prior to such application. Nothing contained in this Section 15.6
shall limit the right of the holders of Senior Debt to recover payments as contemplated by this Article XV. The foregoing shall
not apply if the paying agent is the Issuer. The Trustee shall be entitled to rely on the delivery to it of a written notice by
a Person representing himself or itself to be a holder of any Senior Debt (or a trustee on behalf of, or other representative of,
such holder) to establish that such notice has been given by a holder of such Senior Debt or a trustee or representative on behalf
of any such holder.
(b) In
the event that the Trustee determines in good faith that any evidence is required with respect to the right of any Person as a
holder of Senior Debt to participate in any payment or distribution pursuant to this Article XV, the Trustee may request such Person
to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Debt held by such Person, the extent
to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article XV and, if such evidence is not furnished to the Trustee, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive such payment.
SECTION 15.7 RELIANCE ON JUDICIAL ORDER OR
CERTIFICATE OF LIQUIDATING AGENT.
Upon any payment or distribution of assets
or securities referred to in this Article XV, the Trustee and the Holders shall be entitled to rely upon any order or decree made
by any court of competent jurisdiction in which bankruptcy, dissolution, winding up, liquidation or reorganization proceedings
are pending, or upon a certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person making
such payment or distribution, delivered to the Trustee or to the Holders for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the Senior Debt and other indebtedness of the Issuer, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article XV.
SECTION 15.8 TRUSTEE’S RELATION TO SENIOR
DEBT.
(a) The
Trustee and any paying agent shall be entitled to all the rights set forth in this Article XV with respect to any Senior Debt that
may at any time be held by it in its individual or any other capacity to the same extent as any other holder of Senior Debt and
nothing in this Indenture shall deprive the Trustee or any paying agent of any of its rights as such holder.
(b) With
respect to the holders of Senior Debt, the Trustee undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article XV, and no implied covenants or obligations with respect to the holders of Senior
Debt
shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Debt (except as provided in Section 15.2(b), Section 15.3(a) and Section 15.3(c)) and shall not be liable to any such
holders if the Trustee shall, in good faith, mistakenly pay over or distribute to the Holders of Notes or to the Company or to
any other person cash, property or securities to which any holders of Senior Debt shall be entitled by virtue of this Article XV
or otherwise.
SECTION 15.9 SUBORDINATION RIGHTS NOT IMPAIRED
BY ACTS OR OMISSIONS OF THE ISSUER OR HOLDERS OF SENIOR DEBT.
No right of any present or future holders
of any Senior Debt to enforce subordination as provided in this Article XV will at any time in any way be prejudiced or impaired
by any act or failure to act on the part of the Issuer or by any act or failure to act, in good faith, by any such holder, or by
any noncompliance by the Issuer with the terms of this Indenture, regardless of any knowledge thereof that any such holder may
have or otherwise be charged with. The provisions of this Article XV are intended to be for the benefit of, and shall be enforceable
directly by, the holders of Senior Debt.
SECTION 15.10 HOLDERS AUTHORIZE TRUSTEE TO
EFFECTUATE THE SUBORDINATION OF THE NOTES.
Each Holder, by such Holder’s acceptance
of any Notes, authorizes and expressly directs the Trustee on such Holder’s behalf to take such action as may be necessary
or appropriate to effectuate the subordination provided in this Article XV, and appoints the Trustee such Holder’s attorney-in-fact
for such purposes, including, in the event of any dissolution, winding up, liquidation or reorganization of the Issuer (whether
in bankruptcy, insolvency, receivership, reorganization or similar proceedings or upon an assignment for the benefit of creditors
or otherwise) tending towards liquidation of the property and assets of the Issuer, the filing of a claim for the unpaid balance
of its Notes, if any, in the form required in those proceedings. If the Trustee does not file a proper claim or proof of indebtedness
in the form required in such proceeding at least 30 days before the expiration of the time to file such claim or claims, each holder
of Senior Debt is hereby authorized to file an appropriate claim for and on behalf of the Holders.
SECTION 15.11 NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of
principal of or interest on the Notes by reason of any provision of this Article XV will not be construed as preventing the occurrence
of an Event of Default.
SECTION 15.12 TRUSTEE’S COMPENSATION
NOT PREJUDICED.
Nothing in this Article XV will apply to amounts
due to the Trustee pursuant to other sections of this Indenture.
SECTION 15.13 NO WAIVER OF SUBORDINATION PROVISIONS.
Without in any way limiting the generality
of Section 15.9, the holders of Senior Debt may, at any time and from time to time, without the consent of or notice to the Trustee
or the
Holders, without incurring responsibility to the Holders and without impairing or releasing the subordination provided in
this Article XV or the obligations hereunder of the Holders to the holders of Senior Debt, do any one or more of the following:
(a) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, Senior Debt or any instrument
evidencing the same or any agreement under which Senior Debt is outstanding or secured; (b) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior Debt; (c) release any Person liable in any manner for the
collection of Senior Debt; and (d) exercise or refrain from exercising any rights against the Issuer and any other Person.
SECTION 15.14 PAYMENTS MAY BE PAID PRIOR TO
DISSOLUTION.
Nothing contained in this Article XV or elsewhere
in this Indenture shall prevent (i) the Issuer, except under the conditions described in Section 15.2 or Section 15.3, from making
payments of principal of and interest on the Notes, or from depositing with the Trustee any money for such payments, or (ii) the
application by the Trustee of any money deposited with it for the purpose of making such payments of principal of and interest
on the Notes to the Holders entitled thereto unless, at least two Business Days prior to the date upon which such payment becomes
due and payable, the Trustee shall have received the written notice provided for in Section 15.2(b) (or there shall have been an
acceleration of the Notes prior to such application) or in Section 15.6. The Issuer shall give prompt written notice to the Trustee
of any dissolution, winding up, liquidation or reorganization of the Issuer. Notwithstanding anything herein to the contrary, monies
held pursuant to Section 4.2 shall not be subject to the claims of holders of Senior Debt pursuant to this Article XV; provided,
that the deposit of such monies did not violate Section 15.2.
Article
XVI
OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 16.1 TRUST INDENTURE ACT CONTROLS.
This Indenture is subject to the provisions
of the TIA which are required to be part of this Indenture, and shall, to the extent applicable, be governed by such provisions.
SECTION 16.2 NOTICES.
Any notice or communication to the Issuer
and/or the Company or the Trustee is duly given if in writing and delivered in person or mailed by first-class mail or by overnight
delivery service to the address set forth below:
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(a)
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if to the Issuer and the Company:
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Lions Gate Entertainment Corp.
1055 West Hastings Street, Suite 2200
Vancouver, British Columbia V6E 2E9
Lions Gate Entertainment Inc.
2700 Colorado Avenue, Suite 200
Santa Monica, CA 90404
Attention: Chief Financial Officer
with a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: David E. Shapiro, Esq.
Joshua A. Feltman, Esq.
U.S. Bank National Association
633 W. 5th Street, 24th Floor
Los Angeles, California 90071
Attention: Corporate Trust Services
The Issuer and the Company or the Trustee
by notice to the other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication to a Holder shall
be mailed by first-class mail to his address shown on the Register kept by the Registrar or, if the Holder is the Depositary, sent
by facsimile or overnight delivery services. Failure to mail a notice or communication to a Holder or any defect in such notice
or communication shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed or
sent in the manner provided above within the time prescribed, it is duly given as of the date it is mailed, whether or not the
addressee receives it, except that notice to the Trustee shall only be effective upon receipt thereof by the Trustee.
The Trustee agrees to accept and act upon
instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured
electronic methods; provided, however, that (a) the party providing such written instructions, subsequent to such transmission
of written instructions, shall provide the originally executed instructions or directions to the Trustee in a timely manner, and
(b) such originally executed instructions or directions shall be signed by an authorized representative of the party providing
such instructions or directions. If the party elects to give the Trustee e-mail or facsimile instructions (or instructions by a
similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding
of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly
or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict
or are inconsistent with a subsequent written instruction. The party providing electronic instructions agrees to assume all risks
arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation
the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.
If the Issuer and the Company mail a notice
or communication to Holders, it shall mail a copy to the Trustee at the same time.
SECTION 16.3 COMMUNICATION BY HOLDERS WITH
OTHER HOLDERS.
Holders may communicate pursuant to Section
312(b) of the TIA with other Holders with respect to their rights under the Notes or this Indenture. The Company, the Trustee,
the Registrar and anyone else shall have the protection of Section 312(c) of the TIA.
SECTION 16.4 ACTS OF HOLDERS OF NOTES.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken
by Holders of Notes may be embodied in and evidenced by:
(1) one
or more instruments of substantially similar tenor signed by such Holders in person or by agent or proxy duly appointed in writing;
(2) the
record of Holders of Notes voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of
Holders of Notes duly called and held in accordance with the provisions of Article IX; or
(3) a
combination of such instruments and any such record.
Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where
it is hereby expressly required, to the Issuer and the Company. Such instrument or instruments and record (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the “Act of Holders” of Notes signing such instrument
or instruments and so voting at such meeting. Proof of execution of any such instrument or of a writing appointing any such agent
or proxy, or of the holding by any Person of a Note, shall be sufficient for any purpose of this Indenture and (subject to Section
7.1 hereof) conclusive in favor of the Trustee and the Issuer and the Company if made in the manner provided in this Section. The
record of any meeting of Holders of Notes shall be proved in the manner provided in Section 9.6 hereof.
(b) The
fact and date of the execution by any Person of any such instrument or writing may be provided in any manner which the Trustee
reasonably deems sufficient.
(c) The
principal amount and serial numbers of Notes held by any Person, and the date of such Person holding the same, shall be proved
by the Register.
(d) Any
request, demand, authorization, direction, notice, consent, election, waiver or other Act of Holders of any Note shall bind every
future Holder of the same Note and the Holder of every Note issued upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Issuer or the Company in reliance
thereon, whether or not notation of such action is made upon such Note.
SECTION 16.5 CERTIFICATE AND OPINION AS TO
CONDITIONS PRECEDENT.
In any case where several matters are required
to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by,
or covered
by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such
Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an
officer of the Issuer and/or the Company may be based, insofar as it relates to legal matters, upon an Opinion of Counsel of the
Issuer and/or the Company, as the case may be, unless such officer knows, or in the exercise of reasonable care should know, that
the Opinion of Counsel of the Issuer and/or the Company, as the case may be, with respect to the matters upon which such certificate
or opinion is based, is erroneous. Any such Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate
or representations by, an officer or officers of the Issuer and/or the Company stating that the information with respect to such
factual matters is in the possession of the Issuer and/or the Company, unless such counsel knows, or in the exercise of reasonable
care should know, that the certificate or representations with respect to such matters are erroneous.
Where any Person is required to make, give
or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
Upon any application or request by the Issuer
and the Company to the Trustee to take any action under any provision of this Indenture, the Issuer and the Company shall furnish
to the Trustee an Officers’ Certificate of the Issuer and the Company stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel of the Issuer and the Company
stating that in the opinion of such Counsel all such conditions precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
SECTION 16.6 STATEMENTS REQUIRED IN CERTIFICATE
OR OPINION.
Each certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture shall include:
(1) a
statement that each individual signing such certificate or opinion on behalf of the Issuer or the Company has read such covenant
or condition and the definitions herein relating thereto;
(2) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(3) a
statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a
statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
SECTION 16.7 EFFECT OF HEADINGS AND TABLE
OF CONTENTS.
The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 16.8 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture
by the Issuer and the Company shall bind their successors and assigns, whether so expressed or not.
SECTION 16.9 SEPARABILITY CLAUSE.
In case any provision in this Indenture or
the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
SECTION 16.10 BENEFITS OF INDENTURE.
Nothing contained in this Indenture or in
the Notes, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders
of Notes, any benefit or legal or equitable right, remedy or claim under this Indenture.
SECTION 16.11 GOVERNING LAW.
THIS INDENTURE, THE NOTE GUARANTEES AND THE
NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 16.12 COUNTERPARTS.
This instrument may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an original but all such counterparts shall together constitute
but one and the same instrument.
SECTION 16.13 LEGAL HOLIDAYS.
In any case where any Interest Payment Date,
Designated Event Repurchase Date or stated maturity of any Note shall not be a Business Day at any Place of Payment, then (notwithstanding
any other provision of this Indenture or of the Notes) payment of interest or principal or premium, if any, need not be made at
such Place of Payment on such day, but may be made on the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date, Designated Event Repurchase Date or at the stated maturity, provided, that
in the case that payment is made on such succeeding Business Day, no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Designated Event Repurchase Date or stated maturity, as the case may be.
SECTION 16.14 RECOURSE AGAINST OTHERS.
No recourse for the payment of the principal
of or premium, if any, or interest on any Note, or for any claim based thereon or otherwise in respect thereof, shall be had against
any incorporator, shareholder, officer or director, as such, past, present or future, of the Issuer, the Company or of any their
respective successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the acceptance thereof and as part of the consideration for the issue thereof,
expressly waived and released.
SECTION 16.15 WAIVER OF JURY TRIAL.
EACH OF THE COMPANY, THE ISSUER AND THE TRUSTEE
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
SECTION 16.16 FORCE MAJEURE.
In no event shall the Trustee be responsible
or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or
military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent
with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
TABLE
OF CONTENTS
Page
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed all as of the day and year first above written.
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LIONS GATE ENTERTAINMENT CORP.
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By:
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/s/ Wayne Levin
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Name: Wayne Levin
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Title: General Counsel and Secretary
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LIONS GATE ENTERTAINMENT INC.
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By:
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/s/ Wayne Levin
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Name: Wayne Levin
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Title: Vice President and General Counsel
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U.S. BANK NATIONAL ASSOCIATION
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By:
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/s/ Georgina Thomas
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Name: Georgina Thomas
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Title: Assistant Vice President
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TABLE
OF CONTENTS
Page
Exhibit 5.1
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Dentons Canada LLP
20th Floor, 250 Howe Street
Vancouver, BC, Canada V6C 3R8
T +1 604 687 4460
F +1 604 683 5214
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December 8, 2016
Lions Gate Entertainment Corp.
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Re:
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Registration
Statement on Form S-4
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We have acted as Canadian counsel to Lions
Gate Entertainment Corp., a company existing under the laws of British Columbia (the “Company”) in connection with
the preparation of the Registration Statement of the Company on Form S-4 (the “Registration Statement”) filed by the
Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended, relating to the registration
of the Class A voting shares (the “Voting Shares”) and the Class B non-voting shares (the “Non-voting Shares”)
of the Company to be issued by the Company to Starz stockholders in connection with that certain agreement and plan of merger dated
June 30, 2016 among the Company, Orion Arm Acquisition Inc. and Starz (the “Merger Agreement”).
Prior to consummation of the proposed merger,
the Company effected a reorganization of its outstanding share capital (the “Reclassification”), pursuant to which
each existing common share of the Company was converted into 0.5 shares of a Voting Share and 0.5 shares of a Non-voting Share.
In our capacity as such counsel, we have
examined originals or copies, certified or otherwise identified to our satisfaction, of such corporate and other records and documents
as we considered appropriate including, without limitation:
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a)
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the Registration Statement;
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c)
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the Notice of Articles and the Articles of the Company, as currently in effect;
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d)
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certified resolutions and minutes of a meeting of the Company’s board of directors dated
June 23, 2016 relating to, among other things, the Merger Agreement; and
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e)
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certified minutes of a meeting of the Company’s shareholders held on December 7, 2016 relating
to, among other things, the Reclassification.
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Our opinion expressed herein is limited
to the current laws of the Province of British Columbia and those federal laws of Canada applicable therein and should not be relied
upon, nor are they given, in respect of the laws of any other jurisdiction.
In connection with the opinion expressed
herein, we have considered such questions of law and examined such statutes, public and corporate records, certificates of governmental
authorities and officers of the Company, other documents and conducted such other examinations as we have considered necessary
for the purpose of our opinion.
December
8, 2016
Page 2
For the purposes of the opinion expressed
herein, we have assumed, with respect to all documents examined by us, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals and the conformity to authentic original documents of all documents submitted to us as certified,
conformed, telecopied or photostatic copies.
On the basis of the foregoing, we are of
the opinion that upon issuance in accordance with the terms of the Merger Agreement, including receipt by the Company of the consideration
therefor, the Voting Shares and the Non-voting Shares will be validly issued and outstanding as fully paid and non-assessable shares
of the Company.
We hereby consent to the filing of this
opinion as an exhibit to the Registration Statement.
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Yours truly,
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Dentons Canada LLP
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/s/ Dentons Canada LLP
Exhibit 10.1
Execution Version
CREDIT AND GUARANTEE AGREEMENT
Dated as of December 8, 2016
among
LIONS GATE ENTERTAINMENT CORP.
as Borrower
THE GUARANTORS REFERRED TO HEREIN
THE LENDERS REFERRED TO HEREIN
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
J.P. MORGAN SECURITIES LLC,
DEUTSCHE BANK SECURITIES INC.,
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED,
RBC CAPITAL MARKETS
*
,
CREDIT SUISSE SECURITIES (USA) LLC,
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
(solely with respect to the Term B
Facility),
as Joint Lead Arrangers, Joint Bookrunners
and Co-Syndication Agents
SUNTRUST ROBINSON HUMPHREY, INC.
(solely with respect to the Term A
Facility and the Revolving Facility)
as Joint Lead Arranger and Joint Bookrunner
SUNTRUST BANK,
(solely with respect to the Term A
Facility and the Revolving Facility)
as Co-Syndication Agent
WELLS FARGO SECURITIES, LLC,
(solely with respect to the Term A
Facility and the Revolving Facility)
as Documentation Agent
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
(solely with respect to the Term A
Facility and the Revolving Facility),
BARCLAYS BANK PLC,
SUNTRUST BANK
(solely with respect to the Term B
Facility),
as Co-Documentation Agents
and
BNP PARIBAS,
as Managing Agent
*RBC
Capital Markets is a brand name for the capital markets businesses of Royal Bank of Canada and its affiliates
TABLE OF CONTENTS
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Page
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ARTICLE 1
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DEFINITIONS
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1
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ARTICLE 2
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THE LOANS
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64
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Section 2.1.
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The Term Loans
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64
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Section 2.2.
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Revolving Credit Commitments
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64
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Section 2.3.
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Letters of Credit
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64
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Section 2.4.
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Applicable Interest Rates
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68
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Section 2.5.
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Manner of Borrowing Loans and Designating Applicable Interest Rates
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69
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Section 2.6.
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Minimum Borrowing Amounts; Maximum Eurodollar Loans
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71
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Section 2.7.
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Maturity of Loans
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71
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Section 2.8.
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Prepayments
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72
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Section 2.9.
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Place and Application of Payments
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76
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Section 2.10.
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Commitment Terminations
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77
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Section 2.11.
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Evidence of Indebtedness
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78
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Section 2.12.
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Fees
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79
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Section 2.13.
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Incremental Credit Extensions
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79
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Section 2.14.
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Extensions of Term Loans and Revolving Credit Commitments
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82
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Section 2.15.
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Refinancing Facilities
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85
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Section 2.16.
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Defaulting Lenders
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88
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ARTICLE 3
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CHANGES IN CIRCUMSTANCES, TAXES, INDEMNITY
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90
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Section 3.1.
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Inability to Determine Interest Rate
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90
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Section 3.2.
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Change in Legality
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90
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Section 3.3.
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Change in Circumstances
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90
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Section 3.4.
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Withholding Taxes
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92
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Section 3.5.
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Foreign Currency Conversion; Withholding
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95
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Section 3.6.
|
Indemnity
|
95
|
|
Section 3.7.
|
Replacement of Lenders
|
95
|
|
Section 3.8.
|
Interest Adjustments
|
96
|
|
|
|
|
|
ARTICLE 4
|
REPRESENTATIONS AND WARRANTIES OF CREDIT PARTIES
|
96
|
|
|
|
|
|
Section 4.1.
|
Existence and Power
|
96
|
|
Section 4.2.
|
Authority and No Violation
|
97
|
|
Section 4.3.
|
Governmental Approval
|
97
|
|
Section 4.4.
|
Binding Agreements
|
97
|
|
Section 4.5.
|
Financial Statements
|
98
|
|
Section 4.6.
|
No Material Adverse Change; No Default; Solvency
|
99
|
|
Section 4.7.
|
Ownership of Subsidiaries, etc.
|
99
|
|
Section 4.8.
|
Title to Properties
|
99
|
|
Section 4.9.
|
Litigation
|
100
|
|
Section 4.10.
|
Federal Reserve Regulations
|
100
|
|
Section 4.11.
|
Investment Company Act
|
100
|
|
Section 4.12.
|
Taxes
|
100
|
i
TABLE OF CONTENTS
(continued)
|
|
|
Page
|
|
|
|
|
|
Section 4.13.
|
Compliance with ERISA; Labor Disputes
|
100
|
|
Section 4.14.
|
Non-U.S. Plan Compliance
|
101
|
|
Section 4.15.
|
Agreements
|
101
|
|
Section 4.16.
|
Creation, Validity and Perfection of Security Interest
|
102
|
|
Section 4.17.
|
Disclosure
|
102
|
|
Section 4.18.
|
Distribution Rights
|
102
|
|
Section 4.19.
|
Environmental Liabilities
|
102
|
|
Section 4.20.
|
Compliance with Laws
|
103
|
|
Section 4.21.
|
Real Property
|
103
|
|
Section 4.22.
|
OFAC, FCPA, etc.
|
103
|
|
Section 4.23.
|
Use of Proceeds
|
104
|
|
|
|
|
|
ARTICLE 5
|
CONDITIONS PRECEDENT
|
104
|
|
|
|
|
|
Section 5.1.
|
Conditions to Initial Credit Extension
|
104
|
|
Section 5.2.
|
Conditions to Each Subsequent Credit Extension
|
107
|
|
|
|
|
|
ARTICLE 6
|
AFFIRMATIVE COVENANTS
|
108
|
|
|
|
|
|
Section 6.1.
|
Financial Statements and Other Information
|
108
|
|
Section 6.2.
|
Compliance Certificate and Other Information
|
109
|
|
Section 6.3.
|
Taxes
|
110
|
|
Section 6.4.
|
Corporate Existence
|
110
|
|
Section 6.5.
|
Maintenance of Properties and Insurance
|
110
|
|
Section 6.6.
|
Books and Records
|
111
|
|
Section 6.7.
|
Inspection Rights
|
111
|
|
Section 6.8.
|
Compliance with Laws
|
111
|
|
Section 6.9.
|
Compliance with Agreements
|
111
|
|
Section 6.10.
|
ERISA Event Notice
|
111
|
|
Section 6.11.
|
Non-U.S. Plan Compliance and Reports
|
112
|
|
Section 6.12.
|
Environmental Laws
|
112
|
|
Section 6.13.
|
Additional Guarantors
|
112
|
|
Section 6.14.
|
Further Assurances
|
113
|
|
Section 6.15.
|
OFAC, FCPA
|
114
|
|
Section 6.16.
|
Maintenance of Ratings
|
114
|
|
Section 6.17.
|
Post-Closing Actions
|
115
|
|
Section 6.18.
|
ERISA Matters
|
115
|
|
|
|
|
|
ARTICLE 7
|
NEGATIVE COVENANTS
|
115
|
|
|
|
|
|
Section 7.1.
|
Limitations on Indebtedness
|
115
|
|
Section 7.2.
|
Limitations on Restricted Payments
|
120
|
|
Section 7.3.
|
Limitation on Liens
|
124
|
|
Section 7.4.
|
Limitation on Restrictions on Distribution from Restricted Subsidiaries
|
124
|
|
Section 7.5.
|
Limitation on Affiliate Transactions
|
126
|
|
Section 7.6.
|
Limitation on Mergers and Consolidations
|
127
|
|
Section 7.7.
|
Limitation on Lines of Business
|
130
|
|
Section 7.8.
|
Limitation on Sales of Assets
|
130
|
ii
TABLE OF CONTENTS
(continued)
|
|
|
Page
|
|
|
|
|
|
Section 7.9.
|
Financial Covenant
|
131
|
|
|
|
|
|
ARTICLE 8
|
EVENTS OF DEFAULT
|
131
|
|
|
|
|
|
Section 8.1.
|
Events of Default
|
131
|
|
Section 8.2.
|
Non-Bankruptcy Defaults
|
134
|
|
Section 8.3.
|
Bankruptcy Defaults
|
134
|
|
Section 8.4.
|
Collateral for Undrawn Letters of Credit
|
134
|
|
Section 8.5.
|
Right to Realize on Collateral and Enforce Guarantees
|
135
|
|
Section 8.6.
|
Borrower’s Right to Cure
|
135
|
|
|
|
|
|
ARTICLE 9
|
GUARANTEE
|
136
|
|
|
|
|
|
Section 9.1.
|
Guarantee
|
136
|
|
Section 9.2.
|
No Impairment of Guarantee, etc.
|
137
|
|
Section 9.3.
|
Continuation and Reinstatement, etc.
|
137
|
|
Section 9.4.
|
Limitation on Guaranteed Amount, etc.
|
138
|
|
Section 9.5.
|
Voluntary Arrangements
|
138
|
|
Section 9.6.
|
Release of Guarantees
|
139
|
|
Section 9.7.
|
Indemnity and Subrogation
|
139
|
|
Section 9.8.
|
Contribution and Subrogation
|
140
|
|
Section 9.9.
|
Subordination
|
140
|
|
Section 9.10.
|
Luxembourg Guarantors
|
140
|
|
|
|
|
|
ARTICLE 10
|
THE ADMINISTRATIVE AGENT AND THE ISSUING BANKS
|
142
|
|
|
|
|
|
Section 10.1.
|
Administration by the Administrative Agent
|
142
|
|
Section 10.2.
|
Sharing of Setoffs
|
143
|
|
Section 10.3.
|
Notice to the Lenders
|
144
|
|
Section 10.4.
|
Liability of the Administrative Agent, Issuing Banks
|
144
|
|
Section 10.5.
|
Reimbursement and Indemnification
|
145
|
|
Section 10.6.
|
Rights of Administrative Agent
|
146
|
|
Section 10.7.
|
Independent Investigation by Lenders
|
146
|
|
Section 10.8.
|
Agreement of Required Lenders
|
146
|
|
Section 10.9.
|
Notice of Transfer
|
146
|
|
Section 10.10.
|
Successor Administrative Agent
|
146
|
|
Section 10.11.
|
Administrative Agent May File Proofs of Claim
|
147
|
|
Section 10.12.
|
Québec Security
|
147
|
|
Section 10.13.
|
Other Agent Titles
|
148
|
|
|
|
|
|
ARTICLE 11
|
MISCELLANEOUS
|
148
|
|
|
|
|
|
Section 11.1.
|
Notices
|
148
|
|
Section 11.2.
|
Termination, Survival of Agreement, Representations and Warranties, etc.
|
148
|
|
Section 11.3.
|
Successors and Assigns; Syndications; Loan Sales; Participations
|
149
|
|
Section 11.4.
|
Expenses; Documentary Taxes
|
153
|
|
Section 11.5.
|
Indemnification of the Administrative Agent, the Issuing Banks and the Lenders
|
153
|
iii
TABLE OF CONTENTS
(continued)
|
|
|
Page
|
|
|
|
|
|
Section 11.6.
|
Set-Off
|
154
|
|
Section 11.7.
|
CHOICE OF LAW
|
154
|
|
Section 11.8.
|
WAIVER OF JURY TRIAL
|
155
|
|
Section 11.9.
|
WAIVER WITH RESPECT TO DAMAGES
|
155
|
|
Section 11.10.
|
No Waiver
|
155
|
|
Section 11.11.
|
Extension of Payment Date
|
155
|
|
Section 11.12.
|
Amendments, etc.
|
156
|
|
Section 11.13.
|
Severability
|
158
|
|
Section 11.14.
|
SERVICE OF PROCESS; SUBMISSION TO JURISDICTION
|
158
|
|
Section 11.15.
|
Headings
|
159
|
|
Section 11.16.
|
Execution in Counterparts
|
159
|
|
Section 11.17.
|
USA Patriot Act
|
159
|
|
Section 11.18.
|
Entire Agreement
|
159
|
|
Section 11.19.
|
Confidentiality
|
159
|
|
Section 11.20.
|
Judgment Currency
|
160
|
|
Section 11.21.
|
Lender Obligations Several
|
161
|
|
Section 11.22.
|
Acknowledgement and Consent to Bail-In of EEA Financial Institutions
|
161
|
iv
Schedules
|
1.1
|
Schedule of Commitments
|
|
1.2
|
Certain Excluded Assets
|
|
1.3
|
Initial LUX/UK Guarantors
|
|
1.4
|
Existing Investment Commitments
|
|
2.3
|
Existing Letters of Credit
|
|
4.7(b)
|
Unrestricted Subsidiaries
|
|
4.15
|
Agreements for Indebtedness
|
|
4.21
|
Real Property
|
|
6.17
|
Post-Closing Actions
|
Exhibits
|
A
|
Notice of Borrowing
|
|
B
|
Notice of Continuation/Conversion
|
|
C-1
|
Term A Note
|
|
C-2
|
Term B Note
|
|
C-3
|
Revolving Note
|
|
D
|
Form of Compliance Certificate
|
|
E
|
Form of Solvency Certificate
|
|
F
|
Form of Assignment and Assumption
|
|
G
|
Form of Joinder Agreement
|
v
CREDIT AND GUARANTEE AGREEMENT, dated as of
December 8, 2016 (as may be amended, supplemented or otherwise modified, renewed or replaced from time to time, the “
Credit
Agreement
”), among (i) LIONS GATE ENTERTAINMENT CORP., a corporation organized under the laws of the province of British
Columbia, Canada (the “
Borrower
”); (ii) the Guarantors referred to herein; (iii) the Lenders referred to herein;
and (iv) JPMorgan Chase Bank, N.A., as agent for the Lenders.
PRELIMINARY STATEMENTS
Pursuant to that certain Agreement and Plan
of Merger, dated as of June 30, 2016 (as amended, supplemented or modified and in effect from time to time, and including all schedules
and exhibits thereto, the “
Merger Agreement
”), by and among the Borrower, Orion Arm Acquisition Inc., a Delaware
corporation and an indirect wholly owned Subsidiary of the Borrower (“
Merger Sub
”), and Starz, a Delaware corporation
(the “
Target
”), Merger Sub will merge with and into the Target, with the Target surviving such merger as a wholly-owned
subsidiary of the Borrower, on the terms and subject to the conditions set forth in the Merger Agreement (the “
Acquisition
”).
The Borrower has requested that: (i) the Term
A Lenders extend the Term A Loans to the Borrower on the Closing Date in an aggregate principal amount of $1,000,000,000 pursuant
to this Credit Agreement, (ii) the Term B Lenders extend the Term B Loans to the Borrower on the Closing Date in an aggregate principal
amount of $2,000,000,000 pursuant to this Credit Agreement and (iii) the Revolving Lenders provide the Revolving Facility in an
aggregate principal amount of $1,000,000,000 pursuant to this Credit Agreement.
The Lenders have indicated their willingness
to lend on the terms and subject to the conditions set forth herein.
In consideration of the mutual covenants and
agreements herein contained, the parties hereto covenant and agree as follows:
(a)
Definitions
.
The following terms when used herein shall have the following meanings (unless the context otherwise requires, any of the following
terms may be used in the singular or the plural, depending on the reference):
“
Acquisition
” shall have
the meaning given to such term in the preliminary statements to this Credit Agreement.
“
Additional Assets
” shall
mean:
(1) any
property, plant, equipment or other assets (excluding working capital or current assets for the avoidance of doubt) to be used
by the Borrower or a Restricted Subsidiary in a Related Business; or
(2) an
investment in any one or more businesses or capital expenditures (which for purposes of this definition, shall include the acquisition
of any item of Product) and any Permitted Investment, in each case used or useful to a Related Business.
“
Additional Lender
” shall
mean any Additional Revolving Lender or any Additional Term Lender, as applicable.
“
Additional Revolving Lender
”
shall mean, at any time, any bank or other financial institution that agrees to provide any portion of any Revolving Credit Commitment
Increase or Incremental Revolving Credit Facility pursuant to an Incremental Amendment in accordance with Section 2.13;
provided
that
the relevant Persons under Section 11.3 (including those specified in the definition of “Eligible Assignee”)
shall have consented to such Additional Revolving Lender’s providing such Commitment Increases, if such consent would be
required under Section 11.3 for an assignment of Revolving Credit Commitments to such Additional Revolving Lender.
“
Additional Term Lender
”
shall mean, at any time, any bank or other financial institution that agrees to provide any portion of any Term Commitment Increase
or Incremental Term Loan pursuant to an Incremental Amendment in accordance with Section 2.13;
provided
that
the relevant
Persons under Section 11.3 (including those specified in the definition of “Eligible Assignee”) shall have consented
to such Additional Term Lender’s making such Incremental Term Loans, if such consent would be required under Section 11.3
for an assignment of Loans to such Additional Term Lender.
“
Adjusted EBITDA
” shall
mean, with respect to any Person for any period, the Consolidated Net Income of such Person for such period
plus
, without
duplication, to the extent the same was deducted in calculating Consolidated Net Income, in each case as to such Person and its
Restricted Subsidiaries on a consolidated basis:
(1) Consolidated
Taxes;
plus
(2) Consolidated
Interest Expense;
plus
(3) Consolidated
Adjusted Charges;
plus
(4) restructuring
charges, reserves or expenses and one-time charges (which, for the avoidance of doubt, shall include, without limitation, retention,
severance, systems establishment costs, contract termination costs, integration costs and future lease commitments);
plus
(5) business
optimization expenses;
provided
that
any such business optimization expenses added back pursuant to this clause (5), together
with the Non-S-X Adjustment Amount for such period, shall not exceed 15% of Adjusted EBITDA for such period;
plus
(6) non-operating
expenses (minus non-operating income);
plus
(7) charges,
costs and expenses relating to any issuance or incurrence of Capital Stock, any incurrence or repayment of Indebtedness or the
consummation of any Investment, acquisition or disposition, in each case permitted by this Credit Agreement and whether or not
successful, including fees, charges and expenses relating to the Transactions;
plus
(8) start-up
costs relating to the Comic Con business;
plus
(9) other
start-up costs in an aggregate amount not to exceed $25,000,000 for the relevant four-quarter reference period;
less
, without duplication,
(10) non-cash
items increasing Consolidated Net Income for such period (excluding the recognition of deferred revenue or any items which represent
the reversal of any accrual of, or
cash reserve for, anticipated
cash charges in any prior period and any items for which cash was received in a prior period);
provided
that effects of purchase accounting
adjustments (including the effects of such adjustments pushed down to such Person and such Subsidiaries and including, without
limitation, the effects of adjustments to (A) Capitalized Lease Obligations or (B) any other deferrals of income) in amounts required
or permitted by GAAP, resulting from the application of purchase accounting or the amortization or write-off of any amounts thereof
shall be excluded from the calculation of Adjusted EBITDA.
“
Adjustment Date
” shall
have the meaning given to such term in the Applicable Pricing Grid.
“
Administrative Agent
”
shall mean JPMorgan Chase Bank, N.A., in its capacity as agent for the Lenders hereunder or such successor Administrative Agent
as may be appointed pursuant to Section 10.10.
“
Administrative Agent Fee Letter
”
shall mean the Fee Letter dated as of June 27, 2016 among the Administrative Agent and the Borrower, as amended, supplemented or
amended and restated from time to time.
“
Affiliate
” of any specified
Person shall mean any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control
with such specified Person. For the purposes of this definition, “control” (including, with correlative meanings, the
terms “controlling,” “controlled by” and “under common control with”) when used with respect
to any Person means possession, directly or indirectly, of the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling”
and “controlled” have meanings correlative to the foregoing.
“
Affiliate Transaction
”
shall have the meaning given to such term in Section 7.5(a).
“
Affiliated Persons
” mean,
with respect to any specified Person, (a) such specified Person’s parents, spouse, siblings, descendants, step children,
step grandchildren, nieces and nephews and their respective spouses, (b) the estate, legatees and devisees of such specified Person
and each of the Persons referred to in clause (a), and (c) any company, partnership, trust or other entity or investment vehicle
controlled by any of the Persons referred to in clause (a) or (b) or the holdings of which are for the primary benefit of any of
such Persons.
“
Applicable Law
” shall
mean all provisions of statutes, rules, regulations and orders of the United States, England and Wales, the Grand Duchy of Luxembourg
or Canada, any state or province thereof or municipality therein or of any foreign governmental body or of any regulatory agency
applicable to the Person in question, and all orders and decrees of all courts and arbitrators in proceedings or actions in which
the Person in question is a party.
“
Applicable Margin
” shall
mean:
(a) with respect to the Term B Loans, (i)
3.00% per annum, in the case of a Eurodollar Loan, or (ii) 2.00% per annum, in the case of a Base Rate Loan;
(b) with respect to the Term A Loans and the
Revolving Loans, (i) 2.50% per annum, in the case of a Eurodollar Loan, and (ii) 1.50% per annum, in the case of a Base Rate Loan;
provided
,
that
on and after the first Adjustment Date occurring
after the completion of the first full fiscal quarter of the Borrower after the Closing Date, the Applicable Margin with respect
to the Term A Loans and the Revolving Loans will be determined pursuant to the Applicable Pricing Grid.
“
Applicable Pricing Grid
”
shall mean, with respect to the Term A Loans and the Revolving Loans, the table set forth below:
|
Net First Lien Leverage Ratio
|
|
Term A Loans and
Revolving Loans
Applicable Margin per
annum
for Eurodollar
Loans
|
|
|
Term A Loans and
Revolving Loans
Applicable Margin per
annum for
Base Rate Loans
|
|
|
Category 1
|
|
|
|
|
|
|
|
|
|
Equal or Less than 3.75 to 1.00
|
|
|
2.00
|
%
|
|
|
1.00
|
%
|
|
Category 2
|
|
|
|
|
|
|
|
|
|
Equal or less than 4.50 to 1.00 but greater than 3.75 to 1.00
|
|
|
2.25
|
%
|
|
|
1.25
|
%
|
|
Category 3
|
|
|
|
|
|
|
|
|
|
Greater than 4.50 to 1.00
|
|
|
2.50
|
%
|
|
|
1.50
|
%
|
For the purposes of the Applicable Pricing
Grid, changes in the Applicable Margin resulting from changes in the Net First Lien Leverage Ratio shall become effective on the
date (the “
Adjustment Date
”) that is three Business Days after the date on which financial statements and the
related Compliance Certificate are delivered to the Lenders pursuant to Section 6.1(a) and Section 6.1(b) and shall remain
in effect until the next change to be effected pursuant to this paragraph. If any financial statements or Compliance Certificate
referred to above are not delivered within the time periods specified in Section 6.1(a) and Section 6.1(b), then, until
the date that is three Business Days after the date on which such financial statements and Compliance Certificate are delivered,
the highest rate set forth in each column of the Applicable Pricing Grid shall apply. In addition, at all times while an Event
of Default shall have occurred and be continuing under Section 8.1(a), (f) or (g), the highest rate set forth in each column
of the Applicable Pricing Grid shall apply.
In the event that any financial statements
under Section 6.1(a) and Section 6.1(b) or the related Compliance Certificate is shown to be inaccurate at any time and
such inaccuracy, if corrected, would have led to a higher Applicable Margin for any period (an “
Applicable Period
”)
than the Applicable Margin applied for such Applicable Period, then (i) the Borrower shall promptly (and in no event later than
five (5) Business Days thereafter) deliver to the Administrative Agent a correct Compliance Certificate for such Applicable Period,
(ii) the Applicable Margin shall be determined by reference to the corrected Compliance Certificate, and (iii) the Borrower shall
pay to the Administrative Agent promptly upon written demand (and in no event later than five (5) Business Days after written demand)
any additional interest owing as a result of such increased Applicable Margin for such Applicable Period, which payment shall be
promptly applied by the Administrative Agent in accordance with the terms hereof.
“
Application
” shall have
the meaning given to such term in Section 2.3(b).
“
Approved Fund
” shall mean
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.
“
Approved Jurisdiction
”
shall mean (1) the United States or Canada or any state (but not any territory) or province thereof, (2) if elected by the Borrower,
England or Luxembourg or (3) any other jurisdiction approved by the Administrative Agent.
“
Arranger
” shall mean,
collectively, the Joint Lead Arrangers and Joint Bookrunners identified on the cover page of this Credit Agreement.
“
Arranger Fee Letter
” shall
mean the Fee Letter dated as of June 27, 2016 among the Borrower, the Administrative Agent, the Arrangers party thereto and the
other financial institutions party thereto, as amended, supplemented or amended and restated from time to time.
“
Asset Sale
” shall mean
any direct or indirect sale, lease, transfer, issuance or other disposition, or a series of related sales, leases, transfers,
issuances or dispositions that are part of a common plan, including any Sale/Leaseback Transaction, of (x) shares of Capital Stock
of a Subsidiary (other than directors’ qualifying shares) or (y) other than in the ordinary course of business, other property
or other assets (each referred to for the purposes of this definition as a “disposition”) by the Borrower or any of
the Restricted Subsidiaries, including any disposition by means of a merger, amalgamation, consolidation or similar transaction.
Notwithstanding the preceding, the following
items shall not be deemed to be Asset Sales:
(1) a
disposition of assets by a Restricted Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary to a Restricted
Subsidiary;
provided
that
in the case of a sale by a Restricted Subsidiary to another Restricted Subsidiary, the Borrower
directly and/or indirectly owns an equal or greater percentage of the Common Stock of the transferee than of the transferor;
provided
,
that
in the case of a disposition of Collateral, the transferee, if a Guarantor subject to the Collateral Documents, shall
cause such amendments, supplements or other instruments to be executed, filed, and recorded in such jurisdictions as may be required
by Applicable Law to preserve and protect the Lien on the Collateral owned by or transferred to the transferee, together with such
financing statements or comparable documents as may be required to perfect any security interests in such Collateral which may
be perfected by the filing of a financing statement or a similar document under the UCC, the applicable PPSA, the CCQ, or other
similar statute or regulation of the relevant provinces, states or jurisdictions;
(2) the
sale of Cash Equivalents or tax credits;
(3) a
disposition of inventory, including without limitation, Product (not constituting the sale of a Product that in the aggregate would
be considered a “library”), in the ordinary course of business;
(4) a
disposition of obsolete or worn out equipment or equipment that is no longer useful in the conduct of the business of the Borrower
and the Restricted Subsidiaries and that is disposed of in each case in the ordinary course of business (including the abandonment
of any intellectual property or surrender or transfer for no consideration) or otherwise as may be required pursuant to the terms
of any lease, sublease, license or sublicense;
(5) the
disposition of all or substantially all of the assets of the Borrower in a manner permitted under Section 7.6 or any disposition
that constitutes a Change of Control;
(6) an
issuance of Capital Stock by a Restricted Subsidiary to the Borrower or to a Wholly-Owned Subsidiary;
(7) any
Permitted Investment and any Restricted Payment that is permitted to be made, and is made, under Section 7.2;
(8) dispositions
of assets or issuance or sale of Capital Stock of a Restricted Subsidiary in a single transaction or series of related transactions
with an aggregate Fair Market Value of less than $20,000,000;
(9) the
creation of a Permitted Lien and dispositions in connection with Permitted Liens;
(10) dispositions
of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy
or insolvency or similar proceedings and exclusive of factoring or similar arrangements;
(11) the
issuance by a Restricted Subsidiary of Preferred Stock that is permitted under Section 7.1;
(12) the
licensing or sublicensing of intellectual property or other general intangibles and licenses, leases or subleases of other property
in the ordinary course of business which do not materially interfere with the business of the Borrower and the Restricted Subsidiaries;
(13) foreclosure
on assets;
(14) any
sale of Capital Stock in, Indebtedness or other securities of or Investments in, an Unrestricted Subsidiary;
(15) any
exchange of assets (including Capital Stock) (including a combination of assets and Cash Equivalents) for assets (including Capital
Stock) related to a Related Business of comparable or greater market value or usefulness to the business of the Borrower and its
Restricted Subsidiaries as a whole, as determined in good faith by the Borrower;
(16) sales
of Product outside of the ordinary course of business (including the sale of Product that in the aggregate would be considered
a “library”) if sold for not less than Fair Market Value and not in excess of $45,000,000 in the aggregate from the
Closing Date;
(17) sales
of all or a portion of an interest in a Foreign Subsidiary that is not a Credit Party,
provided
that
the consideration received
is not less than Fair Market Value;
(18) (A)
the sale or transfer of Product or intellectual property Product to any ProdCo as part of any Permitted Slate Transaction or (B)
any Permitted Slate Financing, including the sale or transfer of any interests in copyrights, distribution rights and/or financial
proceeds as contemplated by the definition thereof; and
(19) the
creation of revenue participations of the type described in Section 7.1(c)(xvi).
“
Assignment and Assumption
”
shall mean an agreement substantially in the form of Exhibit F hereto or such other form as is acceptable to the Administrative
Agent, executed by the assignor, assignee and other parties as contemplated thereby.
“
Average Life
” shall mean,
as of the date of determination, with respect to any Indebtedness or Preferred Stock, the quotient obtained by dividing (1) the
sum of the products of the numbers of years from the date of determination to the dates of each successive scheduled principal
payment of such Indebtedness or redemption or similar payment with respect to such Preferred Stock multiplied by the amount of
such payment by (2) the sum of all such payments.
“
Bail-In Action
” shall
mean the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability
of an EEA Financial Institution.
“
Bail-In Legislation
” shall
mean, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of
the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the
EU Bail-In Legislation Schedule.
“
Bankruptcy Code
” shall
mean the Bankruptcy Reform Act of 1978, as heretofore and hereafter amended, as codified at 11 U.S.C. § 101
et
seq
.
“
Bankruptcy Law
” shall
mean the Bankruptcy Code, the
Companies’ Creditors Arrangement Act (Canada)
,
the Bankruptcy and Insolvency Act
(Canada), the Winding-Up and Restructuring Act (Canada)
or other U.S. federal or state law, Canadian federal or provincial
law or the law of any other applicable jurisdiction relating to bankruptcy, insolvency, winding up, liquidation, reorganization
or relief of debtors or plans of arrangement.
“
Base Rate
” shall mean
for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on
such day
plus
½ of 1% and (c) the Eurodollar Rate on such day (or, if such day is not a Business Day, the next preceding
Business Day) for a deposit in Dollars with a maturity of one month
plus
1.0%,
provided
that Base Rate with respect
to the Term B Facility shall be at all times not less than 1.75%. Any change in the Base Rate due to a change in the Prime Rate,
the NYFRB Rate or such Eurodollar Rate shall be effective as of the opening of business on the day of such change in the Prime
Rate, the Federal Funds Rate or such Eurodollar Rate, respectively.
“
Base Rate Loans
” shall
mean Loans the rate of interest applicable to which is based upon the Base Rate.
“
Board
” shall mean the
Board of Governors of the Federal Reserve System of the United States of America.
“
Board of Directors
” shall
mean, as to any Person, the board of directors or managers, as applicable, of such Person (or, if such Person is a partnership,
the board of directors or other governing body of the general partner of such Person) or any duly authorized committee thereof.
“
Borrower
” shall have the
meaning given to such term in the introductory paragraph of this Credit Agreement.
“
Borrowing
” shall mean
the total of 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 applicable Facility on a single date and, in the case of Eurodollar Loans, for a single Interest
Period. Borrowings of Loans are made and maintained ratably from each of the Lenders under the applicable Facility according
to their Percentages of such Facility. A Borrowing of 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 Loan 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 Loan.
“
Bridge Credit Facility
”
shall mean the Bridge Credit and Guarantee Agreement, dated as of December 8, 2016, among the Borrower, the guarantors referred
to therein, the lenders referred to therein, and JPMorgan Chase Bank, N.A., as administrative agent, as amended, restated, modified,
renewed, refunded, replaced or refinanced in whole or in part from time to time. For the avoidance of doubt, the Bridge Credit
Facility shall include any bridge loans or exchange notes incurred or entered into in accordance therewith.
“
Business Day
” shall mean
any day other than a Saturday, Sunday or other day on which banks are required or permitted to close in the State of New York,
the State of California, the Province of British Columbia or the Province of Ontario.
“
Capital Expenditures
”
shall mean, for any period, the aggregate of all expenditures by the Borrower and the Restricted Subsidiaries for the acquisition
or leasing (pursuant to a capital lease) of Product, fixed or capital assets, additions to equipment (including replacements, capitalized
repairs and improvements during such period) or other assets that should be capitalized under GAAP on a consolidated balance sheet
of the Borrower and the Restricted Subsidiaries.
“
Capital Stock
” of any
Person shall mean any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of
or interests in (however designated) equity of such Person, including any Preferred Stock and limited liability or partnership
interests (whether general or limited), but excluding any Indebtedness convertible into such equity.
“
Capitalized Lease Obligations
”
shall mean an obligation that is required to be classified and accounted for as a capitalized lease for financial reporting purposes
in accordance with GAAP, and the amount of Indebtedness represented by such obligation will be the capitalized amount of such obligation
at the time any determination thereof is to be made as determined in accordance with GAAP, and the Stated Maturity thereof will
be the date of the last payment of rent or any other amount due under such lease prior to the first date such lease may be terminated
without penalty;
provided
that obligations of Borrower or the Restricted Subsidiaries, or of a special purpose or other
entity not consolidated with Borrower and the Restricted Subsidiaries, either existing on the Closing Date or created thereafter
that (a) initially were not included on the consolidated balance sheet of Borrower as capital lease obligations and were subsequently
characterized as capital lease obligations or, in the case of such a special purpose or other entity becoming consolidated with
Borrower and the Restricted Subsidiaries were required to be characterized as capital lease obligations upon such consideration,
in either case, due to a change in accounting treatment or otherwise, or (b) did not exist on the Closing Date and were required
to be characterized as capital lease obligations but would not have been required to be treated as capital lease obligations on
the Closing Date had they existed at that time, shall for all purposes not be treated as Capitalized Lease Obligations or Indebtedness.
“
Cash Equivalents
” shall
mean:
(1) Dollars,
Canadian Dollars, pound sterling, euros, the national currency of any member state of the European Union or, in the case of any
Foreign Subsidiary, such other local currencies held by it from time to time in the ordinary course of business;
(2) securities
issued or directly and fully Guaranteed or insured by the United States, Canada, Switzerland, the United Kingdom or any country
that is a member of the European
Union, or any agency or instrumentality
thereof (
provided
that
the full faith and credit of the United States is pledged in support thereof), having maturities
of not more than two years from the date of acquisition;
(3) marketable
general obligations issued by any State of the United States of America or any political subdivision thereof or any Canadian province
or any public instrumentality thereof maturing within two years from the date of acquisition and, at the time of acquisition, having
a credit rating of “A” or better from either S&P or Moody’s, or carrying an equivalent rating by a nationally
recognized Rating Agency, if both of the two named Rating Agencies cease publishing ratings of investments;
(4) certificates
of deposit, time deposits, eurodollar time deposits, overnight bank deposits or bankers’ acceptances having maturities of
not more than two years from the date of acquisition thereof issued by any commercial bank having a short term deposit rating at
the time of acquisition thereof at least “A-2” or the equivalent thereof by S&P, or “P-2” or the equivalent
thereof by Moody’s, or carrying an equivalent rating by a nationally recognized Rating Agency, if both of the two named Rating
Agencies cease publishing ratings of investments;
(5) repurchase
obligations for underlying securities of the types described in clauses (2), (3) and (4) entered into with any bank meeting the
qualifications specified in clause (4) above;
(6) commercial
paper rated at the time of acquisition thereof at least “A-2” or the equivalent thereof by S&P or “P-2”
or the equivalent thereof by Moody’s, or carrying an equivalent rating by a nationally recognized Rating Agency, if both
of the two named Rating Agencies cease publishing ratings of investments and in any case maturing within one year after the date
of acquisition thereof;
(7) Indebtedness
issued by Persons with a rating of “A” or higher from S&P or “A2” or higher from Moody’s (or
reasonably equivalent ratings of another internationally recognized ratings agency) in each case with maturities not exceeding
two years from the date of acquisition;
(8) interests
in any investment company or money market fund which invests 95% or more of its assets in instruments of the type specified in
clauses (1) through (7) above; and
(9) instruments
equivalent to those referred to in clauses (1) through (8) above denominated in any foreign currency comparable in credit quality
and tenor to those referred to above and commonly used by corporations for cash management purposes in any jurisdiction outside
the United States to the extent reasonably required in connection with any business conducted by any Subsidiary organized in such
jurisdiction.
“
CCQ
” shall mean the Civil
Code of Québec as in effect in the province of Québec on the date of execution of this Credit Agreement (as amended
from time to time).
“
Change in Law
” shall mean
the occurrence, after the date of this Credit Agreement, of any of the following: (i) the adoption or taking effect of any law,
rule, regulation or treaty, (ii) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation
or application thereof by any Governmental Authority or (iii) the making or issuance of any request, rule, guideline or directive
(whether or not having the force of law) by any Governmental Authority, in each case not publicly announced before the date of
this Credit Agreement;
provided
that
notwithstanding anything herein to the contrary, (a) the Dodd-Frank Wall Street Reform
and Consumer Protection Act and all
requests, rules, guidelines or directives
thereunder or issued in connection therewith, and (b) all requests, rules, guidelines or directives promulgated by the Bank for
International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States
or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law,”
regardless of the date enacted, adopted or issued.
“
Change of Control
” shall
mean:
(i)
any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than
any Permitted Holder, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that such
person or group shall be deemed to have “beneficial ownership” of all shares that any such person or group has the
right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of
more than 50% of the total voting power of the Voting Stock of the Borrower (or its successor by merger, amalgamation, consolidation,
plan of arrangement or purchase of all or substantially all of its assets) (for the purposes of this clause, such person or group
shall be deemed to beneficially own any Voting Stock of the Borrower held by a parent entity, if such person or group “beneficially
owns” (as defined above), directly or indirectly, more than 50% of the voting power of the Voting Stock of such parent entity);
(ii)
the
first day on which Continuing Directors cease to constitute a majority of the members of the Board of Directors of the Borrower
or any Permitted Parent Holdco;
(iii)
the
sale, assignment, lease, transfer, conveyance or other disposition (other than by way of merger, amalgamation, consolidation or
plan of arrangement), in one or a series of related transactions, of all or substantially all of the assets of the Borrower and
the Restricted Subsidiaries taken as a whole, to any “person” (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act) other than any Permitted Holder or a Restricted Subsidiary; or
(iv)
any
change of control as defined in the Indenture for the Senior Notes.
“
Claiming Guarantor
” shall
have the meaning given to such term in Section 9.8.
“
Class
” means (a) with
respect to Lenders, each of the following classes of Lenders: (i) Lenders having Term A Loan Commitments or outstanding Term A
Loans, (ii) Lenders having Term B Loan Commitments or outstanding Term B Loans and (iii) Lenders having Revolving Exposure and
(b) with respect to Loans, each of the following classes of Loans: (i) Term A Loans, (ii) Term B Loans and (iii) Revolving Loans.
“
Closing Date
” shall mean
the date on which the conditions precedent set forth in Section 5.1 hereof have been satisfied or waived.
“
Closing Date Refinancing
”
shall mean all existing third party debt for borrowed money of (i) the Borrower and its Subsidiaries under (1) the Second Lien
Credit and Guarantee Agreement dated as of March 17, 2015 (as amended, supplemented, modified, renewed or replaced prior to the
date hereof) among the Borrower, the guarantors referred to therein, certain lenders parties hereto and JPMorgan Chase Bank, N.A.,
as administrative agent., (2) the Third Amended and Restated Credit, Security, Guaranty and Pledge Agreement, dated as of September
27, 2012, among LGEI, as borrower, the guarantors referred to therein, the lenders referred to therein, and JPMorgan Chase Bank,
N.A., as administrative agent and issuing bank, as amended by Amendment No. 1 thereto, dated as of December 20, 2013, pursuant
to which Lions Gate Entertainment Corp. became the borrower thereunder, and as amended, restated, modified, renewed, refunded,
replaced or refinanced in whole or in part from time to
time prior to the date hereof, and (3)
the Borrower’s Senior Secured Second Priority Notes due 2018 which were issued pursuant to that certain Indenture,
dated as of July 19, 2013 (as amended, supplemented, modified, renewed or replaced prior to the date hereof), by and among
the Borrower, the other guarantors referred to therein and U.S. Bank National Association, as trustee and (ii) the Target and
its Subsidiaries under (1) the Credit Agreement, dated as of April 20, 2015 among Starz, LLC, as the borrower, the Bank of
Nova Scotia, as administrative agent, and the other parties named therein and (2) the Indenture dated as of September 13,
2012 among Starz, LLC and Starz Finance Corp. as issuers, the guarantors named therein and U.S. Bank National Association, as
trustee, in each case, being repaid, redeemed, defeased, discharged, refinanced or terminated in full and all guarantees and
Liens (if any) in respect thereof being terminated and released (or arrangements reasonably satisfactory to the
Administrative Agent being in place for the termination and release of such guarantees and Liens).
“
Code
” shall mean the Internal
Revenue Code of 1986, as amended.
“
Collateral
” shall mean
all property and assets, whether now owned or hereafter acquired, in which Liens are, from time to time, purported to be granted
to secure the Obligations pursuant to the Collateral Documents,
provided
, that notwithstanding anything to the contrary
herein or in any Fundamental Document, in no case shall the Collateral include any Excluded Assets.
“
Collateral Account
” shall
have the meaning given to such term in Section 8.4(b).
“
Collateral Documents
”
shall mean the Pledge and Security Agreement, the Copyright Security Agreement, the Copyright Security Agreement Supplements, the
Patent Security Agreement, the Patent Security Agreement Supplements, the Trademark Security Agreement, the Trademark Security
Agreement Supplements, the Hypothec, and any other instruments and documents executed and delivered pursuant to this Credit Agreement
or any of the foregoing, as the same may be amended, supplemented or otherwise modified from time to time and pursuant to which
Collateral is pledged, assigned or granted to or on behalf of the Administrative Agent for the ratable benefit of the Lenders.
“
Comic Con
” shall mean
that certain subscription video on demand service (as such service may continue to organically evolve) or other related service
operated by the Borrower, its Subsidiaries or its designees under the name “Comic Con HQ” or other derivation of the
word “Comic Con”.
“
Commitment Fee
” shall
have the meaning given to such term in Section 2.12(a).
“
Commitment Fee Rate
” shall
mean 0.375% per annum;
provided
,
that
on and after the first Adjustment Date occurring after the completion of the
first full fiscal quarter of the Borrower after the Closing Date, the Commitment Fee Rate will be determined pursuant to the following
grid:
|
Net First Lien Leverage Ratio
|
|
Commitment Fee Rate per
annum
|
|
|
Category 1
|
|
|
|
|
|
Equal or Less than 3.75 to 1.00
|
|
|
0.250
|
%
|
|
Category 2
|
|
|
|
|
|
Greater than 3.75 to 1.00
|
|
|
0.375
|
%
|
If any financial statements are not delivered
within the time periods specified in Section 6.1(a) and Section 6.1(b), then, until the date that is three Business Days
after the date on which such financial statements are delivered, the highest rate set forth in the grid shall apply. In addition,
at all
times while an Event of Default shall have
occurred and be continuing under Section 8.1(a), (f) or (g), the highest rate set forth in the grid shall apply
“
Commitment Increase
” shall
have the meaning given to such term in Section 2.13(a).
“
Commodity Exchange Act
”
shall mean the Commodity Exchange Act (7 U.S.C. § 1
et seq.
), as amended from time to time, and any successor statute
“
Common Stock
” shall mean
with respect to any Person, any and all shares, interests or other participations in, and other equivalents (however designated
and whether voting or nonvoting) of such Person’s common stock whether or not outstanding on the Closing Date, and includes,
without limitation, all series and classes of such common stock.
“
Company Material Adverse Effect
”
shall mean (with all capitalized terms used in this definition of “Company Material Adverse Effect” (other than “Arrangers”),
having the meanings ascribed thereto in the Merger Agreement): any event, occurrence, fact, condition, change, development or effect
that, individually or in the aggregate, (A) is materially adverse to the business, assets, properties, liabilities, results of
operations or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole;
provided
,
however
,
that none of the following shall be deemed in and of themselves, either alone or in combination, to constitute, nor shall any of
the following be taken into account (in either case, after giving effect to any event, occurrence, fact, condition, change, development
or effect resulting therefrom) in determining whether there has been or will be, a Company Material Adverse Effect: (a) general
economic conditions attributable to the U.S. economy or financial or credit markets, or changes therein (including changes in prevailing
interest rates, credit availability and liquidity, currency exchange rates, price levels or trading volumes in the United States
or foreign securities markets), (b) general political conditions or changes therein (including any changes arising out of acts
of terrorism or war, weather conditions or other force majeure events), (c) financial or security market fluctuations or conditions,
(d) changes in, or events affecting, the industries in which the Company and its Subsidiaries operate, (e) any effect arising out
of a change in GAAP or applicable Law, (f) (1) the announcement, pendency or consummation of the transactions contemplated by the
Agreement, (2) any actions required by the Agreement or, if the Company has requested in writing the consent of Parent (with the
consent of the Arrangers, not to be unreasonably withheld or delayed, and which the Arrangers will in any case provide (or notify
Parent that they will not provide) within two business days of the written request therefor from the Company) to take a specified
action that is expressly prohibited by the Agreement and Parent unreasonably withholds its consent thereto, the failure to take
such action, or (3) any action taken at the prior written request of Parent (with the consent of the Arrangers, not to be unreasonably
withheld or delayed, and which the Arrangers will in any case provide (or notify Parent that they will not provide) within two
business days of the written request therefor from the Company) (provided that, for purposes of Sections 3.5(a) and 3.5(b) of the
Agreement, events, occurrences, facts, conditions, changes, developments or effects described in subclauses (1) and (2) of this
clause (f) shall not be excluded in determining whether a Company Material Adverse Effect has occurred or would reasonably be expected
to occur), (g) any changes in the price or trading volume of the Company Common Stock (provided that the events, occurrences, facts,
conditions, changes, developments or effects giving rise to or contributing to such change may be taken into account in determining
whether a Company Material Adverse Effect has occurred or would reasonably be expected to occur) or (h) any failure by the Company
to meet published or unpublished revenue or earning projections (provided that the events, occurrences, facts, conditions, changes,
developments or effects giving rise to or contributing to such failure may be taken into account in determining whether a Company
Material Adverse Effect has occurred or would reasonably be expected to occur);
provided
, that in the cases of clauses (a)
through (e), any such event, occurrence, fact, condition, change, development or effect which disproportionately affects the Company
and its Subsidiaries relative to other participants in the industries in which the Company or its
Subsidiaries operate shall not be excluded
from the determination of whether there has been a Company Material Adverse Effect, or (B) prevents or materially impairs or delays
the ability of the Company to perform its obligations under the Agreement or to consummate the transactions contemplated thereby
or would reasonably be expected to do so. Any event, occurrence, fact, condition, change, development or effect that does not constitute
a Company Material Adverse Effect under the Agreement due to the scheduling thereof in the Company Disclosure Schedule shall not
constitute a Company Material Adverse Effect for purposes of this definition.
“
Complete
” or “
Completed
”
or “
Completion
” shall mean with respect to any item of Product, that (1) either (a) sufficient elements have
been delivered by the Borrower or applicable Restricted Subsidiary to, and accepted, deemed or determined to be accepted and/or
exploited by, a Person (other than the Borrower or applicable Restricted Subsidiary or Affiliates thereof) to permit such Person
to exhibit the item of Product in the theatrical or other medium for which the item of Product is intended for initial exploitation
or (b) an independent laboratory has in its possession a complete final 35 mm or 70 mm (or other size which has become standard
in the industry) composite positive print, video master or other equivalent master copy of the item of Product as finally cut,
main and end titled, edited, scored and assembled with sound track printed thereon in perfect synchronization with the photographic
action and fit and ready for exhibition and distribution in the theatrical or other medium for which the item of Product is intended
for initial exploitation, and (2) if such item of Product was acquired by the Borrower or a Restricted Subsidiary from an unaffiliated
third party, the entire acquisition price or minimum advance shall have been paid to the extent then due and there is no condition
or event (including, without limitation, the payment of money not yet due) the occurrence of which might result in the Borrower
or such Restricted Subsidiary losing any of its rights in such item of Product.
“
Completion Guarantee
”
shall mean, with respect to any item of Product, a completion guarantee, in customary form consistent with the Borrower’s
past practice or otherwise reasonable and customary for transactions of such nature, which (1) names the production financier to
the extent such item of Product is financed in accordance with Sections 7.1(a), Section 7.1(b) or Section 7.1(c)(xii)
as a beneficiary thereof to the extent of the Borrower’s or applicable Restricted Subsidiary’s financial interest in
such item of Product and (2) guarantees that such item of Product will be Completed in a timely manner, or else payment may be
made to such production financier of an amount of up to the aggregate amount expended on the production of such item of Product
by, or for the account of, the Borrower or applicable Restricted Subsidiary plus interest on, and other bank charges with respect
to, such amount.
“
Compliance Certificate
”
shall mean the Compliance Certificate to be delivered pursuant to Section 6.2, substantially in the form of Exhibit D.
“
Consolidated Adjusted Charges
”
shall mean, with respect to any Person for any period, the sum, without duplication, of:
(a) depreciation;
plus
(b) amortization other than direct
operating expenses, as calculated on the Closing Date;
plus
(c) other non-cash expenses (including,
without limitation, stock based compensation expenses including for stock appreciation rights or write-off of deferred financing
charges, and non-cash reductions of Consolidated Net Income attributable to consideration paid to any Person in Capital Stock)
of such Person and its Restricted Subsidiaries reducing Consolidated Net Income of such Person for such period on a consolidated
basis and otherwise determined in accordance with GAAP,
(but for each of clauses (a)-(c)
excluding any such charge which consists of or requires an accrual of, or cash reserve for, anticipated cash charges for any future
period (other than accruals for stock appreciation rights));
plus
(d) print and advertising expenses
(irrespective of whether such Person has actually made a cash payment in respect thereof during such period) for which such Person
has an off-setting right of payment and/or guarantee (including, for the avoidance of doubt, any partial guarantee which such Person
believes in good faith to be sufficient in size to cover any reasonably anticipated loses from these expenses) from a third-party
producer (less the amortization of participation charges that would have been expensed had the print and advertising expense not
been expensed in the GAAP financial statements, such amortization to be calculated in accordance with accounting based on the film
forecasting method);
plus
(e) any non-cash accelerated amortization
of programming costs and other intangibles.
For the avoidance of doubt, the amortization
of the allocation of the purchase price of a business to increase or decrease the carrying value of the assets and liabilities
in accordance with GAAP is considered a non-cash expense.
“
Consolidated Applicable Interest
Charge
” shall mean, with respect to any Person for any period, the sum, without duplication, of:
(1) consolidated
interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted in computing
Consolidated Net Income (including the interest component of Capitalized Lease Obligations, and net payments and receipts (if any)
pursuant to interest rate Hedging Obligations and excluding amortization of original issue discount and deferred financing fees
and expensing of any bridge or other financing fees);
plus
(2) consolidated
capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued, other than capitalized
interest included in the cost of any item of Product;
minus
(3) interest
income for such period (other than interest income attributable to the discounting of accounts receivable);
minus
(4) interest
expense accrued as a result of Financial Accounting Standards Board Staff Position No. APB 14-1, to the extent such interest expense
was included in clause (1) of this definition.
“
Consolidated Current Assets
”
shall mean, at any date, all amounts (other than cash and Cash Equivalents) that would, in conformity with GAAP, be set forth opposite
the caption “total current assets” (or any like caption) on a consolidated balance sheet of the Borrower and the Restricted
Subsidiaries at such date.
“
Consolidated Current Liabilities
”
shall mean, at any date, all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current
liabilities” (or any like caption) on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries at such
date, but excluding
(a) the current portion of any Indebtedness
of the Borrower and its Restricted Subsidiaries and (b) without duplication of clause (a) above, all Indebtedness consisting of
Revolving Loans to the extent otherwise included therein.
“
Consolidated Debt
” shall
mean, as of any date of determination, the sum of (without duplication) the principal amount of all Indebtedness of the type set
forth in clauses (1), (2), (3) (other than to the extent undrawn), (5), (6), (7) (to the extent related to any Indebtedness that
would otherwise constitute Consolidated Debt) and (8) (to the extent related to any Indebtedness that would otherwise constitute
Consolidated Debt) of the definition of “Indebtedness” of the Borrower and the Subsidiaries determined on a consolidated
basis on such date;
provided
, that the amount of any Indebtedness with respect to which the applicable obligors have entered
into currency hedging arrangements shall be calculated giving effect to such currency hedging arrangements and
provided
further
,
that neither (i) unfunded commitments for Indebtedness nor (ii) Other Permitted Priority Indebtedness shall be included in the
calculation of Consolidated Debt.
“
Consolidated Interest Expense
”
shall mean, with respect to any Person for any period, the sum, without duplication, of:
(1) consolidated
interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted in computing
Consolidated Net Income (including the interest component of Capitalized Lease Obligations and net payments and receipts (if any)
pursuant to interest rate Hedging Obligations and including amortization of deferred financing fees, debt issuance costs and expensing
of any bridge or other financing fees);
plus
(2) consolidated
capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued, other than capitalized
interest included in the cost of any item of Product;
minus
(3) interest
income for such period (other than interest income attributable to the discounting of accounts receivables).
“
Consolidated Net Income
”
shall mean, for any period, the net income (loss) of the Borrower and its consolidated Restricted Subsidiaries determined on a
consolidated basis in accordance with GAAP;
provided
,
however
, that there will not be included in such Consolidated
Net Income:
(1) any
net income (loss) of any Person if such Person is not a Restricted Subsidiary or that is accounted for by the equity method of
accounting, except that, subject to the limitations contained in clauses (3) through (6) below, equity of the Borrower or any Restricted
Subsidiary in the net income of any such Person for such period will be included in such Consolidated Net Income up to the aggregate
amount of cash actually distributed by such Person during such period to the Borrower or a Restricted Subsidiary as a dividend
or other distribution (subject, in the case of a dividend or other distribution to a Restricted Subsidiary, to the limitations
contained in clause (2) below);
(2) any
net income (but not loss) of any Restricted Subsidiary (other than (i) a Guarantor, (ii) Pilgrim JV and (iii) any other Restricted
Subsidiary to the extent any such restriction relates to a Joint Venture, charter or other agreement or instrument entered into
by the Borrower or a Restricted Subsidiary with a minority shareholder to the extent the Borrower has a call option on such minority
shareholder’s Capital Stock) if such Subsidiary is subject to prior government approval or other restrictions due to the
operation of its charter or any agreement, instrument, judgment, decree, order statute, rule or government regulation (which have
not been
waived), directly or indirectly,
on the payment of dividends or the making of distributions by such Restricted Subsidiary, directly or indirectly, to the Borrower,
except that, subject to the limitations contained in clauses (3) through (6) below, the Borrower’s equity in the net income
of any such Restricted Subsidiary for such period will be included in such Consolidated Net Income up to the aggregate amount of
cash that could have been distributed by such Restricted Subsidiary during such period to the Borrower or another Restricted Subsidiary
as a dividend (subject, in the case of a dividend to another Restricted Subsidiary, to the limitation contained in this clause);
(3) any
gain or loss (less all fees and expenses relating thereto) realized upon sales or other dispositions of any assets of the Borrower
or such Restricted Subsidiary, other than in the ordinary course of business, as determined in good faith by the Borrower;
(4) any
after-tax effect of income (loss) from the early extinguishment of Indebtedness or Hedging Obligations or other derivative instruments;
(5) any
extraordinary, nonrecurring or unusual gain or loss; and
(6) the
cumulative effect of a change in accounting principles.
“
Consolidated Taxes
” shall
mean provision for taxes based on income, profits or capital, including, without limitation, state, franchise and similar taxes
taken into account in calculating Consolidated Net Income.
“
Consolidated Working Capital
”
shall mean, at any date, the excess of Consolidated Current Assets on such date over Consolidated Current Liabilities on such date.
“
Continuing Directors
”
shall mean, as of any date of determination, any member of the Board of Directors of the Borrower or Permitted Parent Holdco, as
the case may be, who: (1) was a member of such Board of Directors on the Closing Date (or, in the case of a Permitted Parent Holdco,
the date such Permitted Parent Holdco acquired 100% of the Voting Stock of the Borrower if the members of the Board of Directors
of such Permitted Parent Holdco were approved for the purpose of this definition, on or prior to such date, by a majority of the
Continuing Directors of the Borrower); or (2) was nominated for election or elected to such Board of Directors with the approval
of a majority of the Continuing Directors who were members of the relevant Board of Directors at the time of such nomination or
election.
“
Contributing Guarantor
”
shall have the meaning given to such term in Section 9.8 hereof.
“
Controlled Foreign Corporation
”
means any Subsidiary that is a “controlled foreign corporation” as defined in Section 957(a) of the Code.
“
Copyright Security Agreement
”
shall have the meaning given to such term in the Pledge and Security Agreement.
“
Copyright Security Agreement Supplement
”
shall have the meaning given to such term in the Pledge and Security Agreement.
“
Credit Agreement
” shall
have the meaning given to such term in the introductory paragraph of this Credit Agreement.
“
Credit Extension
” shall
mean the advancing of any Loan or the issuance or extension of, or increase in the amount of, any Letter of Credit.
“
Credit Parties
” shall
mean the Borrower and the Guarantors and “
Credit Party
” shall mean any one of them.
“
Currency Agreement
” shall
mean in respect of a Person any foreign exchange contract, currency swap agreement, futures contract, option contract or other
similar agreement as to which such Person is a party or a beneficiary.
“
Default
” shall mean any
event, act or condition which with notice or lapse of time, or both, would constitute an Event of Default.
“
Default Excess
” shall
have the meaning given to such term in Section 2.8(d) hereof.
“
Defaulting Lender
” shall
mean any Lender, as reasonably determined by the Administrative Agent, that has (a) failed to fund any portion of its Loans within
three (3) Business Days of the date required to be funded by it hereunder, unless determined by the Administrative Agent to be
the subject of a good faith dispute, (b) notified the Administrative Agent, the Issuing Bank, any Lender (subject to such Lender
having given notice thereof to the Administrative Agent) or the Borrower (subject to the Borrower having given notice thereof to
the Administrative Agent) in writing that it does not intend to comply with any of its funding obligations under this Credit Agreement
or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Credit Agreement
or under other agreements in which it commits to extend credit, unless with respect to such other agreements, the Required Lenders
determine there to be a good faith dispute, (c) failed, within three (3) Business Days after request by the Administrative Agent,
to confirm that it will comply with the terms of this Credit Agreement relating to its obligations to fund prospective Loans, (d)
otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder
within three (3) Business Days of the date when due, unless determined by the Administrative Agent to be the subject of a good
faith dispute, (e) (1) on or after the Closing Date, becomes or is insolvent or has a parent company that becomes or is insolvent,
or (2) on or after the Closing Date, becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator,
trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or
acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency
proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of,
or indicating its consent to, approval of or acquiescence in any such proceeding or appointment;
provided
that
a Lender
shall not become a Defaulting Lender pursuant to this clause (e) solely as a result of the acquisition or maintenance of an ownership
interest in such Lender or Person controlling such Lender, or the exercise of control over such Lender or Person controlling such
Lender, in each case by a Governmental Authority or instrumentality thereof, or (f) on or after the Closing Date, has, or has a
direct or indirect parent company that has, become the subject of a Bail-In Action.
“
Designated Non-cash Consideration
”
means the Fair Market Value of non-cash consideration received by the Borrower or a Restricted Subsidiary in connection with an
Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officers’ Certificate, setting forth
such valuation, less the amount of Cash Equivalents received in connection with a subsequent sale of such Designated Non-cash Consideration.
“
Disqualified Lender
” shall
mean (a) banks, financial institutions and other institutional lenders separately identified in writing by the Borrower to the
Administrative Agent and made available
to the Lenders prior to the Closing Date and
otherwise specified in writing by the Borrower to the Administrative Agent and made available to the Lenders from time to time
(it being understood that any update shall not apply retroactively to disqualify any Person that has previously acquired an assignment
or participation interest in the Loans), (b) any competitors of the Borrower, the Target or their respective Subsidiaries that
were separately identified in writing by the Borrower to the Administrative Agent made available to the Lenders (it being understood
that any update shall not apply retroactively to disqualify any Person that has previously acquired an assignment or participation
interest in the Loans), and (c) in the case of each of the entities covered by clauses (a) and (b), any of their Affiliates (other
than bona fide debt funds) that are either (i) identified in writing by the Borrower to the Administrative Agent and made available
to the Lenders from time to time or (ii) clearly identifiable on the basis of such Affiliate’s name. In no event shall the
Administrative Agent be obligated to ascertain, monitor or inquire as to whether any prospective assignee is a Disqualified Lender
or have any liability with respect to any assignment made to a Disqualified Lender.
“
Disqualified Stock
” shall
mean, with respect to any Person, any Capital Stock of such Person that by its terms (or by the terms of any security into which
it is convertible or for which it is exchangeable) or upon the happening of any event:
(1) matures
or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise;
(2) is
convertible into or exchangeable for Indebtedness or Disqualified Stock (excluding Capital Stock which is convertible or exchangeable
solely at the option of the Borrower or a Restricted Subsidiary (it being understood that upon such conversion or exchange it shall
be an Incurrence of such Indebtedness or Disqualified Stock)); or
(3) is
redeemable at the option of the holder of the Capital Stock in whole or in part, in each case on or prior to the date that is 91
days after the earlier of (a) the Final Maturity Date or (b) the date on which there are no Loans and no Revolving Credit Commitments
outstanding,
provided
,
however
, that only the portion of Capital Stock which so matures or is mandatorily redeemable,
is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date will be deemed to
be Disqualified Stock;
provided
,
further
, that any Capital Stock that would constitute Disqualified Stock solely
because the holders thereof have the right to require the Borrower or its Subsidiaries to repurchase such Capital Stock upon the
occurrence of a change of control or asset sale (each defined in a substantially identical manner to the corresponding definitions
in this Credit Agreement) shall not constitute Disqualified Stock if the terms of such Capital Stock (and all such securities into
which it is convertible or for which it is ratable or exchangeable) provide that the Borrower or its Subsidiaries, as applicable,
may not repurchase or redeem any such Capital Stock (and all such securities into which it is convertible or for which it is ratable
or exchangeable) pursuant to such provision prior to the termination of the Facilities.
“
Distribution Agreements
”
shall mean (i) any and all agreements entered into by a Credit Party pursuant to which such Credit Party has sold, leased, licensed
or assigned distribution rights or other exploitation rights to any item of Product to a Person that is not an Affiliate of such
Credit Party and (ii) any and all agreements hereafter entered into by a Credit Party pursuant to which such Credit Party sells,
leases, licenses or assigns distribution rights or other exploitation rights to any item of Product to a Person that is not an
Affiliate of such Credit Party.
“
Dollars
” and “
$
”
shall mean dollars in lawful currency of the United States of America.
“
ECF Payment
” shall have
the meaning given to such term in Section 2.8(c)(iii).
“
EEA Financial Institution
”
shall mean (a) any institution established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority,
(b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition,
or (c) any institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or
(b) of this definition and is subject to consolidated supervision with its parent.
“
EEA Member Country
” shall
mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“
EEA Resolution Authority
”
shall mean any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country
(including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“
Eligible Assignee
” shall
mean (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund, and (d) any other Person (other than a natural person or
a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person) approved
in writing by (i) the Administrative Agent, (ii) in the case of any assignment of a Revolving Credit Commitment, the Issuing Banks,
and (iii) unless an Event of Default described in Section 8.1(a), (f) or (g) has occurred and is continuing, the Borrower
(each such approval not to be unreasonably withheld or delayed);
provided
that, in the case of assignments of Term B Loans,
the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative
Agent within ten (10) Business Days after having received written notice from the Administrative Agent of such request for its
consent;
provided
further
that, notwithstanding the foregoing, (A) “Eligible Assignee” shall not include (x)
any Disqualified Lenders, (y) any natural person or any holding company, investment vehicle or trust for, or owned and operated
for the primary benefit of, a natural person or (z) except as provided in Section 11.3, the Borrower or any Subsidiary of
the Borrower and (B) in the case of assignments of Revolving Credit Commitments or Revolving Exposure, no Person shall be an Eligible
Assignee pursuant to clause (a), (b) or (c) above unless such Person is, or is an Affiliate or an Approved Fund of, an existing
Lender under the Revolving Facility.
“
Environmental Laws
” shall
mean any and all federal, state, provincial, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees or requirements of any Governmental Authority regulating, relating to, or imposing liability or standards of conduct concerning,
any Hazardous Material or environmental protection or health and safety, as now or at any time hereafter in effect, including without
limitation, the Clean Water Act also known as the Federal Water Pollution Control Act, 33 U.S.C. § 1251
et
seq
., the
Clean Air Act, 42 U.S.C. §§ 7401
et
seq
., the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§
136
et
seq
., the Surface Mining Control and Reclamation Act, 30 U.S.C. §§ 1201
et
seq
., the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601
et
seq
., the Superfund Amendments and Reauthorization
Act of 1986, Public Law 99-499, 100 Stat. 1613, the Emergency Planning and Community Right to Know Act, 42 U.S.C. § 11001
et
seq
., the Resource Conservation and Recovery Act, 42 U.S.C. § 6901
et
seq
., the Occupational Safety and Health
Act as amended, 29 U.S.C. § 655 and § 657, the Waste Management Act, R.S.B.C. 1996, c. 481, the Transportation of Dangerous
Goods Act, R.S.B.C. 1996, c. 458 and other such laws relating to the , storage, transportation, treatment and disposal of Hazardous
Materials into the air, surface water, ground water, land surface, subsurface strata or any building or structure and, together,
in each case, with any amendment thereto, and the regulations adopted pursuant thereto.
“
Equity Cure Period
” shall
have the meaning given to such term in Section 8.6.
“
ERISA
” shall mean the
Employee Retirement Income Security Act of 1974, as heretofore and hereafter amended, as codified at 29 U.S.C. § 1001
et
seq
. and the regulations promulgated thereunder.
“
ERISA Affiliate
” shall
mean any trade or business (whether or not incorporated) which is under common control with any Credit Party under Section 4001
of ERISA or which is treated as a single employer under Section 414(b), (c), (m) or (o) of the Code.
“
ERISA Event
” shall mean:
(a) the
failure of any Plan to be maintained and operated in all respects in accordance with all Applicable Laws, including ERISA;
(b) the
present value of all benefits under a Title IV Plan exceed the actuarial value of the assets of such Title IV Plan allocable to
such benefits (based on those assumptions used to fund such Title IV Plan) as of the last valuation date applicable thereto;
(c)
any event described in Section 4043(c) of ERISA and the regulations promulgated thereunder with respect to a Title IV Plan (other
than an event for which the thirty (30) day notice period is waived);
(d) the
imposition of any liability, or the existence of any circumstances pursuant to which any liability could be imposed, upon any Credit
Party or any of their respective ERISA Affiliates under Chapter 43 of the Code with respect to any Title IV Plan or Multiemployer
Plan, or with respect to any Plan that provides post retirement welfare coverage (other than as required pursuant to Section 4980B
of the Code);
(e) the
withdrawal of any Credit Party or ERISA Affiliate from a Title IV Plan subject to Section 4063 of ERISA during a plan year in which
it was a substantial employer, as defined in Section 4001(a)(2) of ERISA;
(f) the
complete or partial withdrawal of any Credit Party or any ERISA Affiliate from any Multiemployer Plan;
(g) the
filing of a notice of intent to terminate a Title IV Plan or the treatment of a plan amendment as a termination under Section 4041
of ERISA;
(h) the
termination of a Title IV Plan or Multiemployer Plan by the PBGC pursuant to Section 4042 of ERISA;
(i) the
failure by any Credit Party or ERISA Affiliate to make when due required contributions to a Multiemployer Plan or Title IV Plan;
(j) the
termination of a Multiemployer Plan under Section 4041A of ERISA or the insolvency of a Multiemployer Plan under Section 4245 of
ERISA or a determination that a Multiemployer Plan is in “endangered”, “critical” or “critical and
declining” status under the meaning of Section 432 of the Code or Section 304 or 305 of ERISA;
(k)
the termination of a Plan described in Section 4064 of ERISA;
(l) the
failure to satisfy the minimum funding standards (within the meaning of Section 412 of the Code or Section 302 of ERISA), whether
or not waived, with respect to any Title IV Plan;
(m) a
determination that any Title IV Plan is or is expected to be in “at risk” status (within the meaning of Section 430
of the Code or Section 303 of ERISA);
(n) the
incurrence by any Credit Party or any of its ERISA Affiliates of any liability under Title IV of ERISA (other than non-delinquent
premiums payable to the PBGC under Sections 4006 and 4007 of ERISA);
(o) the
imposition of liability on any Credit Party or any ERISA Affiliate due to the cessation of operations at a facility under the circumstances
described in Section 4062(e) of ERISA,
(p) the
occurrence of a non-exempt “prohibited transaction” with respect to which any Credit Party or any of the Subsidiaries
is a “disqualified person” (within the meaning of Section 4975 of the Code) or a “party in interest” (within
the meaning of Section 406 of ERISA) or with respect to which any Credit Party or any such Subsidiary could otherwise be liable.
“
ERISA Lien
”
shall mean any Liens under ERISA or Section 412 of the Code.
“
EU Bail-In Legislation Schedule
”
shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect
from time to time.
“
Eurocurrency Reserve Requirements
”
shall mean for any day as applied to a Eurodollar Loan, the aggregate (without duplication) of the rates (expressed as a decimal
fraction) of reserve requirements in effect on such day (including basic, supplemental, marginal and emergency reserves) under
any regulations of the Board or other Governmental Authority having jurisdiction with respect thereto dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D) maintained
by a member bank of the Federal Reserve System.
“
Eurodollar Base Rate
”
shall mean with respect to any Eurodollar Loan for any Interest Period, a rate per annum equal to the London interbank offered
rate as administered by the ICE Benchmark Administration (or any other Person that takes over the administration of such rate)
for Dollars for a period equal in length to such Interest Period as displayed on pages LIBOR01 or LIBOR02 of the Reuters Screen
that displays such rate (or, in the event such rate does not appear on either of such Reuters pages, on any successor or substitute
page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate
from time to time as selected by the Administrative Agent in its reasonable discretion; in each case, the “
Screen Rate
”)
as of the Specified Time on the Quotation Day for such Interest Period;
provided
that
if the Screen Rate shall be less than
zero, such rate shall be deemed to be zero for purposes of this Credit Agreement;
provided
,
further
, that if the
Screen Rate shall not be available at such time for such Interest Period (an “
Impacted Interest Period
”) with
respect to Dollars, then the Eurodollar Base Rate shall be the Interpolated Rate at such time (
provided
that
if the Interpolated
Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Credit Agreement) and,
provided
,
further
, provided, that the Eurodollar Base Rate with respect to the Term B Facility shall be at all times not less than
0.75%.
“
Eurodollar Loans
” shall
mean Loans the rate of interest applicable to which is based upon the Eurodollar Rate.
“
Eurodollar Rate
” shall
mean with respect to each day during each Interest Period pertaining to a Eurodollar Loan, a rate per annum determined for such
day in accordance with the following formula:
|
|
Eurodollar Base Rate
|
|
|
1.00 - Eurocurrency Reserve Requirements
|
“
Event of Default
” shall
have the meaning given to such term in Section 8.1.
“
Event of Loss
” shall mean,
with respect to any property or other assets, any of the following: (a) any loss, destruction or damage of such property or other
assets or (b) any condemnation, seizure, or taking, by exercise of the power of eminent domain or otherwise, of such property or
other assets, or confiscation of such property or other assets,
provided
that to the extent that any property or assets
subject to any such event would not have, if sold or disposed of immediately prior to such event, constituted an “Asset Sale”
hereunder, such event will not constitute an “Event of Loss” for all purposes hereunder.
“
Excess Cash Flow
” shall
mean, for any fiscal year of the Borrower, the excess, if any, of:
(a) the
sum, without duplication, of:
(i) Consolidated
Net Income for such fiscal year;
(ii) the amount of all non-cash
charges (including depreciation and amortization, including but not limited to amortization of film and television programs and
programming rights, deferred financing costs or other non-cash interest, non-cash stock based compensation, or deferred tax provision)
deducted in arriving at such Consolidated Net Income;
(iii) decreases
in Consolidated Working Capital for such fiscal year (
provided
that
, for purposes of this clause (a)(iii) and clause (b)(iv)
below, Consolidated Working Capital shall exclude the current portion of programming costs and tax credits receivable on film production);
(iv) the
aggregate net amount of non-cash loss on Asset Sales by the Borrower and its Restricted Subsidiaries during such fiscal year, to
the extent deducted in arriving at such Consolidated Net Income; and
(v) amounts
received by the Borrower and its Restricted Subsidiaries during such fiscal year and included in deferred revenue which are not
expected to be recognized within a year and thus are excluded from Consolidated Working Capital;
over
(b) the
sum, without duplication, of:
(i) the
amount of all non-cash credits included in arriving at such Consolidated Net Income;
(ii) the
aggregate amount actually paid by the Borrower and its Restricted Subsidiaries in cash during such fiscal year on account of Capital
Expenditures (excluding the principal amount of Indebtedness incurred to finance such Capital Expenditures and any such Capital
Expenditures financed with the proceeds of any Reinvested Deferred Amount);
(iii) the
aggregate amount of voluntary or mandatory payments or repurchases made or otherwise paid by the Borrower and its Restricted Subsidiaries
during such period in respect of all principal on all Indebtedness, which payments are not prohibited under this Credit Agreement
at the time made (whether such payment is made at maturity, as a result of mandatory or voluntary prepayment, acceleration or otherwise,
but excluding (i) the principal amount of Indebtedness incurred to finance such payments or repurchases, (ii) the voluntary prepayments
deducted pursuant to Section 2.8(c)(iii)(B) and (iii) payments of revolving loans or swingline loans to the extent not accompanied
with a permanent reduction of commitments thereunder);
(iv) increases
in Consolidated Working Capital for such fiscal year;
(v) the
aggregate amount of spending by the Borrower and its Restricted Subsidiaries on investment in film and television programs or programing
rights net of (A) borrowings and repayments on production loans and (B) tax credits received, in each case by the Borrower and
its Restricted Subsidiaries in such fiscal year;
(vi) any
amounts utilized by the Borrower and its Restricted Subsidiaries subsequent to the applicable fiscal year and prior to the calculation
of Excess Cash Flow to make payments on production loans relating to Product released before the end of such fiscal year;
(vii) the
aggregate net amount of non-cash gain on Asset Sales by the Borrower and its Restricted Subsidiaries during such fiscal year, to
the extent included in arriving at such Consolidated Net Income;
(viii) Revenue
amounts included in Consolidated Net Income for such fiscal year which are not expected to be paid within a year and thus are excluded
from Consolidated Working Capital;
(ix) Payments
made by the Borrower and its Restricted Subsidiaries during such fiscal year to pay tax liabilities incurred by current or former
officers, directors and employees of the Borrower and its Subsidiaries upon the vesting of equity interests of any kind held thereby,
including restricted stock units; and
(x) any
amounts included in the Consolidated Net Income attributable to the net income of any Subsidiary which is not a Wholly-Owned Subsidiary
pursuant to clause (2) of the definition of Consolidated Net Income to the extent (and only for so long as) the distribution or
dividend of such amounts to the Borrower or a Guarantor is subject to prior government approval or other restrictions due to the
operation of such Subsidiary’s charter or any agreement, instrument, judgment, decree, order statute, rule or government
regulation, directly or indirectly, on the payment of dividends or the making of distributions by such Restricted Subsidiary, directly
or indirectly, to the Borrower.
“
Exchange Act
” shall mean
the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
“
Excluded Assets
” shall
mean:
(1) the
Fractional Aircraft Interest;
(2) interests
in the Headquarters JV;
(3) any
Capital Stock or other equity interests owned by the Borrower or any Guarantor to the extent that, and for so long as, a pledge
of such Capital Stock or other equity interests would violate Applicable Law or an enforceable contractual obligation binding on
or relating to such Capital Stock or other equity interests;
(4) rights
of any of the Borrower or any Guarantor under any license, contract or agreement or any property subject to a purchase money security
interest or similar arrangement to the extent that pursuant to the terms of such license, contract, agreement, purchase money arrangement
or similar arrangement the granting of a security interest in such rights would result in a termination or right of termination
of, or is otherwise prohibited under, such agreement by the other party thereto, but only to the extent such prohibition on assignment
is enforceable;
provided
,
however
, that upon the ineffectiveness, lapse or termination of any such provision, the
Collateral shall include, and such Person shall be deemed to have granted a security interest in, all such rights and interests
as if such provision had never been in effect;
(5) any
other assets to the extent that, and for so long as, taking a security interest in such assets would violate any Applicable Law
or regulation or an enforceable contractual obligation binding on the assets that existed at the time of the acquisition thereof
and was not created or made binding on the assets in contemplation of or in connection with the acquisition of such assets;
(6) any
leasehold interest in real property;
(7) any
fee interest in real property with a Fair Market Value of $15,000,000 or less individually;
(8) motor
vehicles and other assets subject to certificates of title;
(9) assets
to the extent a security interest in such assets would result in a material adverse tax consequence (including as a result of the
operation of Section 956 of the Code or any similar law or regulation in any applicable jurisdiction) as reasonably determined
by the Borrower;
(10) those
assets as to which the Administrative Agent and the Borrower reasonably agree that the cost of obtaining such a security interest
or perfection thereof are excessive in relation to the benefit to the Secured Parties of the security to be afforded thereby, including
those assets set forth on Schedule 1.2 hereto;
(11) any
of the Capital Stock of Subsidiaries not owned directly by a Credit Party;
(12) any
governmental licenses or state or local franchises, charters and authorizations, to the extent security interests in such licenses,
franchises, charters or
authorizations are prohibited or
restricted thereby after giving effect to the applicable anti-assignment provisions of the UCC;
(13) “intent-to-use”
trademark applications;
(14) letter
of credit rights (except to the extent a security interest therein can be perfected by the filing of UCC financing statements);
(15) any
commercial tort claim with a value not in excess of $15,000,000 individually;
(16) voting
equity interests (and any other interests constituting “stock entitled to vote” within the meaning of U.S. Treasury
Regulations Section 1.956-2(c)(2)) in excess of 65% of all such voting equity interests (and “stock entitled to vote”)
in (i) any Controlled Foreign Corporation, (ii) any FSHCO and (iii) any subsidiary that is a disregarded entity for U.S. federal
income tax purposes and owns any equity interests (or any other interests constituting “stock entitled to vote” within
the meaning of U.S. Treasury Regulations Section 1.956-2(c)(2)) in a Controlled Foreign Corporation or FSHCO; and
(17) any
demand deposit account established by a Credit Party at a commercial bank for the sole purpose of paying the production costs of
a particular item of Product (or, in connection with any Permitted Slate Financing, the audio visual works (including motion pictures)
to which such Permitted Slate Financing relates) in the ordinary course of business (each, a “
Production Account
”).
“
Excluded Contributions
”
shall mean Net Cash Proceeds received by the Borrower from:
(1) contributions
to its common equity capital; or
(2) the
sale (other than to a Subsidiary of the Borrower or to any management equity plan or stock option plan or any other management
or employee benefit plan or agreement of the Borrower or any Subsidiary) of Capital Stock (other than Disqualified Stock) of the
Borrower;
in each case designated as Excluded Contributions
pursuant to an Officers' Certificate executed by the principal financial officer of the Borrower on the date such capital contributions
are made or the date such equity interests are sold, as the case may be.
“
Excluded Subsidiary
” shall
mean any of the following:
(a) each
Immaterial Subsidiary;
(b) each
Subsidiary that is not a Wholly-Owned Subsidiary ;
(c) each
Subsidiary that is prohibited from guaranteeing or granting Liens to secure the Obligations by any Applicable Law or that would
require consent, approval, license or authorization of a Governmental Authority to guarantee or grant Liens to secure the Obligations
(unless such consent, approval, license or authorization has been received);
(d) each
Subsidiary that is prohibited by any applicable contractual requirement (not created in contemplation of the acquisition by the
Borrower of such Subsidiary) from Guaranteeing or granting Liens to secure the Obligations on the Closing Date or at the time such
Subsidiary becomes a Subsidiary
not in violation of Section 7.4 (and for so long as such restriction or any replacement or renewal thereof is in effect);
(e) any
Subsidiary which engages in no activities other than in connection with the financing of accounts receivable;
(f) any
Foreign Subsidiary of any Subsidiary organized in the United States, any state thereof, or the District of Columbia;
(g) any
U.S. Subsidiary (i) that is an FSHCO or (ii) that is a Subsidiary of a Controlled Foreign Corporation;
(f) any
Foreign Subsidiary other than a Subsidiary which is organized in Canada or any province thereof other than Lions Gate International
Motion Pictures S.A.R.L.;
(g) any
other Subsidiary with respect to which the Administrative Agent and the Borrower reasonably agree that the cost or other consequences
(including, without limitation, tax consequences (including as a result of the operation of Section 956 of the Code or any similar
Applicable Law in any applicable jurisdiction)) of providing a guarantee of or granting Liens to secure the Obligations are likely
to be excessive in relation to the value to be afforded thereby;
(h) any
other Subsidiary if in the reasonable good faith determination of the Borrower in consultation with the Administrative Agent, a
guarantee by such Subsidiary would result in materially adverse tax consequences to the Borrower or any of its Subsidiaries;
(i) each
Unrestricted Subsidiary;
(j) any
Subsidiary that is a “captive” insurance company;
(k) not-for-profit
Subsidiaries;
(l) Subsidiaries
which are Special Purpose Producers to the extent that (i) such Special Purpose Producer (A) has incurred (or is reasonably expected
in connection with the financing plan for such Special Purpose Producer to incur) production loans or any Other Permitted Priority
Indebtedness or (B)(I) was formed for the purpose of holding or collecting tax credits in connection with the applicable production
and (II) has guaranteed or granted liens on any of its assets to secure, or is reasonably expected to guarantee or grant liens
on its assets to secure, the applicable production loan or any Other Permitted Priority Indebtedness and (ii) all distribution
and other exploitation rights in the relevant Product or the audio-visual product or live or location-based entertainment produced
by such Special Purpose Producer are licensed to a Credit Party; and
(m) any
ProdCo.
“
Excluded Swap Obligation
”
shall mean, with respect to any Credit Party, any obligation to pay or perform under any Hedging Obligation if, and to the extent
that, and only for so long as, all or a portion of the guarantee of such Credit Party of, or the grant by such Credit Party of
a security interest to secure, as applicable, such Hedging Obligations (or any guarantee thereof) is or becomes illegal under the
Commodity Exchange Act or any rule, regulation, or order of the Commodity Futures Trading Commission (or the application or official
interpretation of any thereof) by virtue of (a) such Credit Party’s failure for any reason to constitute an “eligible
contract participant” as defined in the Commodity
Exchange Act and the regulations
thereunder or (b) in the case of a Hedging Obligation subject to a clearing requirement pursuant to Section 2(h) of the
Commodity Exchange Act (or any successor provision thereto), because such Guarantor is a “financial entity,” as
defined in Section 2(h)(7)(C)(i) of the Commodity Exchange Act (or any successor provision thereto), in each case the time
the guarantee given by such Credit Party or the grant of such security interest, as applicable, becomes effective with
respect to such Hedging Obligation. If a Hedging Obligation arises under a master agreement governing more than one swap,
such exclusion shall apply only to the portion of such Hedging Obligation that is attributable to swaps for which such
guarantee or security interest is or becomes illegal.
“
Excluded Taxes
” shall
mean taxes imposed on or with respect to a Person or required to be withheld or deducted from a payment to a Person pursuant to
this Credit Agreement or any other Fundamental Document: (1) where such Person is subject to such taxes by reason of its carrying
on business (other than any taxes arising solely from such Lender having entered into this Credit Agreement) in the jurisdiction
imposing such tax (the “Relevant Taxing Jurisdiction”), having a permanent establishment in the Relevant Taxing Jurisdiction,
being organized under the laws of the Relevant Taxing Jurisdiction or a subdivision thereof, or being an actual or deemed resident
in the Relevant Taxing Jurisdiction; (2) by reason of such Person not dealing at arm’s length with the Borrower or any Guarantor
for any purpose, including pursuant to the
Income Tax Act
(Canada) or any applicable income tax treaty; (3) by reason of
the failure of such Person to complete, execute and deliver to the Borrower or the applicable Guarantor any form or document to
the extent applicable to such Person that may be required by law or by reason of administration of such law or which is reasonably
requested in writing to be delivered to the Borrower or such Guarantor in order to enable the Borrower or such Guarantor to make
any payments hereunder or under any other Fundamental Document without deduction or withholding for taxes, or with deduction or
withholding of a lesser amount, which form or document shall be delivered prior to the date on which the relevant payment is made;
or (4) in respect of any taxes imposed under FATCA.
“
Existing Convertible Notes
”
shall mean (a) the 4.00% Convertible Senior Subordinated Notes Due 2017 dated as of January 11, 2012 and related Guarantees issued
under the Indenture dated as of January 11, 2012 among the Borrower, LGEI and The Bank of New York Mellon Trust Company, N.A.;
and (b) the 1.25% Convertible Senior Subordinated Notes Due 2018 dated as of April 15, 2013 and related Guarantees issued under
the Indenture dated as of April 15, 2013 among the Borrower, LGEI and U.S. Bank National Association.
“
Extended Revolving Credit Commitment
”
shall have the meaning given to such term in Section 2.14(a)(ii).
“
Extended Revolving Loans
”
shall have the meaning given to such term in Section 2.14(a)(ii).
“
Extended Term Loans
” shall
have the meaning given to such term in Section 2.14(a)(ii).
“
Extension
” shall have
the meaning given to such term in Section 2.14(a).
“
Extension Offer
” shall
have the meaning given to such term in Section 2.14(a).
“
Facility
” shall mean any
of the Revolving Facility and any Term Facility.
“
Fair Market Value
” shall
mean, with respect to any asset or liability, the fair market value of such asset or liability as determined by the Borrower in
good faith.
“
FATCA
” shall mean Sections
1471 through 1474 of the Code, as of the date of this Credit Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof
any agreements entered into pursuant to Section 1471(b)(1) of the Code and any intergovernmental agreements between the United
States and any other jurisdiction entered into in connection with the foregoing (including any treaty, law, regulation or other
official guidance adopted pursuant to any such intergovernmental agreement).
“
Federal Funds Rate
” shall
mean, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions,
as determined in such manner as the NYFRB shall set forth on its public website from time to time, and published on the next succeeding
Business Day by the NYFRB as the federal funds effective rate.
“
Fee Letters
” shall mean
the Arranger Fee Letter and the Administrative Agent Fee Letter.
“
Fee Payment Date
” shall
mean (a) the third Business Day following the last day of each March, June, September and December and (b) the final maturity date
for the Revolving Facility.
“
Final Maturity Date
” shall
mean, as at any date, the latest to occur of (a) the Term A Termination Date, (b) the Term B Termination Date, (c) the latest maturity
date in respect of any outstanding Extended Term Loans and (d) the latest maturity date in respect of any Incremental Term Loans.
“
Final Revolving Credit Termination
Date
” shall mean, as at any date, the latest to occur of (a) the Revolving Credit Termination Date, (b) the latest termination
date in respect of any outstanding Extended Revolving Credit Commitments and (c) the latest termination date in respect of any
Incremental Revolving Credit Facility.
“
FinanceCo
” means LG FinanceCo
Corp., a British Columbia corporation and a direct Wholly-Owned Subsidiary of the Borrower.
“
Fixed Dollar Incremental Amount
”
shall have the meaning given to such term in Section 2.14(b).
“
Flood Insurance Laws
”
shall mean, collectively, (i) National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance
Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (ii)
the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute there-to and (iii) the Biggert-Waters
Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
“
Foreign Subsidiary
” shall
mean any Restricted Subsidiary that is not organized under the laws of the United States of America or any state thereof or the
District of Columbia and any Subsidiary of such Restricted Subsidiary.
“
Fractional Aircraft Interest
”
shall mean a fractional interest in an executive jet aircraft and/or a single purpose trust formed solely to hold such interest,
with an acquisition cost for such interest or such trust which may not exceed $10,000,000.
“
FSHCO
” shall mean any
Subsidiary that owns no material assets (directly or through subsidiaries) other than equity interests (and any other interests
constituting “stock entitled to vote” within the meaning of U.S. Treasury Regulations Section 1.956-2(c)(2)) of one
or more Controlled Foreign Corporations.
“
Fundamental Documents
”
shall mean this Credit Agreement, the Notes, the Collateral Documents, each Refinancing Amendment and each Incremental Amendment.
“
GAAP
” shall mean generally
accepted accounting principles in the United States of America as in effect from time to time, including those set forth in the
opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by
a significant segment of the accounting profession, subject in all cases to paragraph (c) below of this Article 1. All ratios and
computations based on GAAP contained in this Credit Agreement will be computed in conformity with GAAP, except that in the event
the Borrower is acquired in a transaction that is accounted for using purchase accounting, the effects of the application of purchase
accounting shall be disregarded in the calculation of such ratios and other computations contained in this Credit Agreement.
“
Governmental Authority
”
shall mean any federal, state, provincial, municipal or other governmental department, commission, board, bureau, agency or instrumentality,
or any court, in each case whether of the United States, Canada, Luxembourg or any foreign jurisdiction.
“
Guarantee
” shall mean
any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person
and any obligation, direct or indirect, contingent or otherwise, of such Person:
(1) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising
by virtue of partnership arrangements, or by agreement to keep well, to purchase assets, goods, securities or services, to take-or-pay,
or to maintain financial statement conditions or otherwise); or
(2) entered
into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part);
provided
,
however
, that the term “Guarantee” will
not include endorsements for collection or deposit or for indemnification in the ordinary course of business. The term “Guarantee”
used as a verb has a corresponding meaning.
“
Guarantors
” shall mean
each Restricted Subsidiary which is a signatory of this Credit Agreement (including the Initial LUX/UK Guarantors) and any other
direct or indirect Restricted Subsidiary acquired or created after the date hereof which becomes a signatory to this Credit Agreement
as a Guarantor pursuant to Section 6.13.
“
Hazardous Materials
” shall
mean any flammable materials, explosives, radioactive materials, hazardous materials, hazardous wastes, hazardous or toxic substances,
or similar materials defined in any Environmental Law.
“
Headquarters JV
” shall
mean either (i) LGJW Colorado Partners, LLC or (ii) any other entity which is directly or indirectly owned in whole or in part
by the Borrower and which is formed for the sole purpose of constructing, maintaining and owning an office building to be used
as a headquarters of the Borrower and/or Subsidiaries thereof.
“
Hedging Obligations
” of
any Person shall mean the obligations of such Person pursuant to any Interest Rate Agreement or Currency Agreement.
“
Hypothec
” shall have the
meaning given to such term in the Pledge and Security Agreement.
“
Immaterial Subsidiary
”
shall mean any Subsidiary that (a) did not, as of the last day of the fiscal quarter of the Borrower most recently ended for which
financial statements have been (or were required to be) delivered pursuant to Section 6.1(a) or 6.1(b), have assets with a
value in excess of 2.5% of the Total Assets or revenues representing in excess of 2.5% of total revenues of the Borrower and the
Subsidiaries on a consolidated basis as of such date, and (b) taken together with all such Subsidiaries as of such date, did not
have assets with a value in excess of 5.0% of Total Assets or revenues representing in excess of 5.0% of total revenues of the
Borrower and the Subsidiaries on a consolidated basis as of such date.
“
Impacted Interest Period
”
shall have the meaning given to such term in the definition of “Eurodollar Base Rate”.
“
Incremental Amendment
”
shall have the meaning given to such term in Section 2.13(a).
“
Incremental Cap
” shall
have the meaning given to such term in Section 2.13(b).
“
Incremental Equivalent Debt
”
shall mean secured or unsecured loans or notes issued in lieu of Incremental Facilities;
provided
that such loans or notes,
if secured (i) are secured only by the Collateral and on a
pari passu
or junior basis with the liens securing the Obligations
and (ii) are subject to a customary Intercreditor Agreement reasonably satisfactory to the Administrative Agent and
provided
,
further
that any such Incremental Equivalent Debt (x) otherwise satisfies clauses (A)(i), (B), (E), (F), (H) (solely with
respect to such additional secured Indebtedness in the form of term loans that are secured on a
pari passu
basis with the
Obligations), (I), (J) and (K) of Section 2.13(a) as if such Incremental Equivalent Debt were an Incremental Facility and
(y) together with any Incremental Facility, does not exceed the Incremental Cap.
“
Incremental Facility
”
shall mean, without duplication, (a) any Incremental Term Facility, (b) any Incremental Revolving Credit Facility, (c) the commitments
(if any) of Additional Revolving Lenders to make Incremental Revolving Loans in respect of any Revolving Credit Commitment Increase
and the Incremental Revolving Loans in respect thereof and/or (d) the commitments (if any) of Additional Term Lenders to make Incremental
Term Loans in respect of any Term Commitment Increase and the Incremental Term Loans in respect thereof.
“
Incremental Revolving Credit Facility
”
shall have the meaning given to such term in Section 2.13(a).
“
Incremental Revolving Loans
”
shall mean any revolving loans made under any Incremental Revolving Credit Facility or in respect of any Revolving Credit Commitment
Increase.
“
Incremental Term A Facility
”
shall mean the commitments (if any) of Additional Term Lenders to make Incremental Term A Loans in accordance with Section 2.13
and the Incremental Term A Loans in respect thereof.
“
Incremental Term A Loans”
shall mean any term A loans (
i.e.
, having no more than a 5 year maturity and no less than 2.5% average annual amortization
per annum (except during any grace period or initial period)) made pursuant to Section 2.13.
“
Incremental Term B Facility
”
shall mean the commitments (if any) of Additional Term Lenders to make Incremental Term B Loans in accordance with Section 2.13
and the Incremental Term B Loans in respect thereof.
“
Incremental Term B Loans
”
shall mean any term B loans made pursuant to Section 2.13.
“
Incremental Term Facility
”
shall mean the commitments (if any) of Additional Term Lenders to make Incremental Term Loans in accordance with Section 2.13
and the Incremental Term Loans in respect thereof.
“
Incremental Term Loans
”
means any term loans made pursuant to Section 2.13.
“
Incur
” shall mean issue,
create, assume, Guarantee, incur or otherwise become liable for;
provided
,
however
, that any Indebtedness or Capital
Stock of a Person existing at the time such Person becomes a Restricted Subsidiary (whether by merger, amalgamation, consolidation,
acquisition or otherwise) will be deemed to be Incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary;
and the terms “Incurred” and “Incurrence” have meanings correlative to the foregoing.
“
Indebtedness
” shall mean,
with respect to any Person on any date of determination (without duplication):
(1) the
principal of and premium (if any) in respect of indebtedness of such Person for borrowed money;
(2) the
principal of and premium (if any) in respect of obligations of such Person evidenced by bonds, debentures, notes or other similar
instruments;
(3) the
principal component of all obligations of such Person in respect of letters of credit, bankers’ acceptances or other similar
instruments (including reimbursement obligations with respect thereto except to the extent such reimbursement obligation relates
to a trade payable and such obligation is satisfied within 90 days of Incurrence);
(4) the
principal component of all obligations of such Person to pay the deferred and unpaid purchase price of property, which purchase
price is due more than six months after the date of placing such property in service or taking delivery and title thereto, except
(a) any such balance that constitutes a trade payable or similar obligation to a trade creditor, in each case accrued in the ordinary
course of business and (b) any earn-out obligation until the amount of such obligation becomes a liability on the balance sheet
of such Person in accordance with GAAP;
(5) Capitalized
Lease Obligations of such Person (whether or not such items would appear on the balance sheet of the guarantor or obligor);
(6) the
principal component or liquidation preference of all obligations of such Person with respect to the redemption, repayment or other
repurchase of any Disqualified Stock or, with respect to any Subsidiary of the Borrower that is not a Guarantor, any Preferred
Stock;
(7) the
principal component of all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness
is assumed by such Person;
provided
,
however
, that the amount of such Indebtedness will be the lesser of (a) the
Fair Market Value of such asset at such date of determination and (b) the amount of such Indebtedness of such other Persons;
(8) the
principal component of Indebtedness of other Persons to the extent Guaranteed by such Person (whether or not such items would appear
on the balance sheet of the guarantor or obligor);
(9) to
the extent not otherwise included in this definition, net obligations of such Person under Hedging Obligations (the amount of any
such obligations to be equal at any time to the termination value of such agreement or arrangement giving rise to such Hedging
Obligation that would be payable by such Person at such time); and
(10) to
the extent not otherwise included in this definition, the amount of obligations outstanding under the legal documents entered into
as part of a securitization transaction or series of securitization transactions that would be characterized as principal if such
transaction were structured as a secured lending transaction rather than as a purchase outstanding relating to a securitization
transaction or series of securitization transactions.
Notwithstanding anything in this Credit Agreement
to the contrary, Indebtedness shall not include, and shall be calculated without giving effect to, the effects of Financial Accounting
Standards Board Accounting Standards Codification 825 and related interpretations to the extent such effects would otherwise increase
or decrease an amount of Indebtedness for any purpose under this Credit Agreement as a result of accounting for any embedded derivatives
created by the terms of such Indebtedness and any such amounts that would have constituted Indebtedness under this Credit Agreement
but for the application of this sentence shall not be deemed an incurrence of Indebtedness under this Credit Agreement.
“
Indemnified Party
” shall
have the meaning given to such term in Section 10.4.
“
Initial LUX/UK Guarantors
”
shall mean the Subsidiaries listed on Schedule 1.3.
“
Initial Unrestricted Subsidiaries
”
shall mean each Subsidiary of the Borrower set forth in Schedule 4.7(b) to this Credit Agreement.
“
Intercreditor Agreement
”
shall mean such intercreditor or subordination agreements reasonably acceptable to the Administrative Agent to be entered into
from time to time with respect to Other Permitted Priority Indebtedness, Incremental Equivalent Debt, Permitted Slate Financing,
Permitted Slate Transaction, Refinancing Notes, Refinancing Term Loans, Replacement Facilities, and Indebtedness secured by Liens
permitted by clauses (1), (16), (17), (18), (20), (24), (33), (38) or (39) of the definition of “Permitted Liens”,
or other secured Indebtedness permitted hereunder.
“
Interest Coverage Ratio
”
shall mean, as of any date of determination, the ratio of:
(1) Adjusted
EBITDA of the Borrower, calculated on a Pro Forma Basis, for the most recently ended Test Period;
to
(2) Consolidated
Applicable Interest Charge of the Borrower, calculated on a Pro Forma Basis, for such Test Period.
“
Interest Deficit
” shall
have the meaning given to such term in Section 3.8.
“
Interest Payment Date
”
shall mean (a) as to any Base Rate Loan, the last day of each March, June, September and December to occur while such Loan is outstanding
and the final maturity date of such Loan, (b) as to any Eurodollar Loan having an Interest Period of three months or less, the
last day of such Interest Period, (c) as to any Eurodollar Loan having an Interest Period longer than three months, each day that
is three months, or a whole multiple thereof, after the first day of such Interest Period and the last day of such Interest Period,
and (d) as to any Loan (other than any Revolving Loan that is a Base Rate Loan), the date of any repayment or prepayment made in
respect thereof.
“
Interest Period
” shall
mean, as to any Eurodollar Loan, (a) initially, the period commencing on the borrowing or conversion date, as the case may be,
with respect to such Eurodollar Loan and ending one, two, three or six (or, if agreed to by all Lenders under the relevant Facility
twelve) months thereafter, as selected by the Borrower in its notice of borrowing or notice of conversion, as the case may be,
given with respect thereto; and (b) thereafter, each period commencing on the last day of the next preceding Interest Period applicable
to such Eurodollar Loan and ending one, two, three or six (or, if agreed to by all Lenders under the relevant Facility twelve)
months thereafter, as selected by the Borrower by irrevocable notice to the Administrative Agent not later than 11:00 A.M., New
York City time, on the date that is three Business Days prior to the last day of the then current Interest Period with respect
thereto;
provided
that
, all of the foregoing provisions relating to Interest Periods are subject to the following:
(i) if
any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month
in which event such Interest Period shall end on the immediately preceding Business Day;
(ii) the
Borrower may not select an Interest Period under a particular Facility that would extend beyond the applicable Maturity Date of
such Facility; and
(iii) any
Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month.
“
Interest Rate Agreement
”
shall mean with respect to any Person any interest rate protection agreement, interest rate future agreement, interest rate option
agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement
or other similar agreement or arrangement as to which such Person is party or a beneficiary.
“
Interpolated Rate
” shall
mean, at any time, the rate per annum (rounded to the same number of decimal places as the Screen Rate) determined by the Administrative
Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating
on a linear basis between: (a) the Screen Rate (for the longest period for which that Screen Rate is available in Dollars) that
is shorter than the Impacted Interest Period and (b) the Screen Rate (for the shortest period for which that Screen Rate is available
for Dollars) that exceeds the Impacted Interest Period, in each case, as of the Specified Time on the Quotation Day for such Interest
Period. When determining the rate for a period which is less than the shortest period for which the Screen Rate is available, the
Screen Rate for purposes of clause (a) above shall be deemed to be the overnight rate for Dollars determined by the Administrative
Agent from such service as the Administrative Agent may select.
“
Intra Group Liabilities
”
shall have the meaning given to such term in Section 9.10.
“
Investment
” shall mean,
with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of any direct or
indirect advance, loan (other than advances or extensions of credit to customers in the ordinary course of business) or other extensions
of credit (including by way of Guarantee or similar arrangement, but excluding any debt or extension of credit represented by a
bank deposit other than a time deposit or indemnity provision) or capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the account or use of others), or any purchase or acquisition
of Capital Stock, Indebtedness or other similar instruments issued by such other Person and all other items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP;
provided
that
none of the following will
be deemed to be an Investment:
(1) Hedging
Obligations entered into in compliance with this Credit Agreement;
(2) endorsements
of negotiable instruments and documents in the ordinary course of business;
(3) an
acquisition of assets, Capital Stock or other securities by the Borrower or a Subsidiary for consideration to the extent such consideration
consists of Common Stock of the Borrower;
(4) accounts
receivable, trade credit and advances to customers in the ordinary course of business;
(5) commission,
travel and similar advances to officers, employees and consultants made in the ordinary course of business; and
(6) any
assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the
extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary
course of business.
For purposes of Section 7.2 of this Credit
Agreement,
(a) “Investment”
will include the portion (proportionate to the Borrower’s equity interest in a Restricted Subsidiary to be designated as
an Unrestricted Subsidiary) of the Fair Market Value of the net assets of such Restricted Subsidiary at the time that such Restricted
Subsidiary is designated an Unrestricted Subsidiary;
provided
,
however
, that upon a redesignation of such Subsidiary
as a Restricted Subsidiary, the Borrower will be deemed to continue to have a permanent “Investment” in an Unrestricted
Subsidiary in an amount (if positive) equal to (i) the Borrower’s aggregate “Investment” in such Subsidiary as
of the time of such redesignation
less
(ii) the portion (proportionate to the Borrower’s equity interest in such Subsidiary)
of the Fair Market Value of the net assets of such Subsidiary at the time that such Subsidiary is so re-designated a Restricted
Subsidiary;
(b) any
property transferred to or from an Unrestricted Subsidiary will be valued at its Fair Market Value at the time of such transfer;
and
(c) if
the Borrower or any Restricted Subsidiary sells or otherwise disposes of any Voting Stock of any Restricted Subsidiary such that,
after giving effect to any such sale or disposition, such entity is no longer a Subsidiary of the Borrower, the Borrower shall
be deemed
to have made an Investment on the
date of any such sale or disposition equal to the Fair Market Value of the Capital Stock of such Subsidiary not sold or disposed
of.
“
ISP
” means, with respect
to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking
Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
“
Issuing Bank
” shall mean
each of (i)(a) JPMorgan Chase Bank, N.A., with respect to up to $100,000,000 of Letters of Credit, (b) Bank of America, N.A.,
with respect to up to $50,000,000 of Letters of Credit and (c) Deutsche Bank AG New York Branch, with respect to up to $50,000,000
of Letters of Credit, in each case, acting through any of its affiliates or branches, and (ii) any other Issuing Bank designated
pursuant to Section 2.3(j) in each case in its capacity as an Issuing Bank, and its successors in such capacity as provided
in Section 2.3(i). An Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by
affiliates of such Issuing Bank, in which case the term Issuing Bank shall include any such affiliates with respect to Letters
of Credit issued by such Affiliate. Each reference herein to “the Issuing Bank” shall be deemed to be a reference to
the relevant Issuing Bank.
“
Joinder Agreement
” shall
mean the “Instrument of Assumption and Joinder”, substantially in the form attached hereto as
Exhibit G
.
“
Joint Venture
” shall mean
a joint venture or similar venture with one or more unrelated parties (whether structured as a corporation, partnership, limited
liability company or other entity) in which the Borrower or any of its Restricted Subsidiaries own Capital Stock and which is formed
and operated to conduct a Related Business.
“
Judgment Conversion Date
”
shall have the meaning given to such term in Section 11.10.
“
L/C Backstop
” shall mean,
in respect of any Letter of Credit, (a) a letter of credit delivered to the Issuing Bank which may be drawn by the Issuing Bank
to satisfy any obligations of the Borrower in respect of such Letter of Credit or (b) cash or Cash Equivalents deposited with the
Issuing Bank to satisfy any obligation of the Borrower in respect of such Letter of Credit, in each case, in an amount not to exceed
102.00% 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 Issuing Bank.
“
L/C Disbursement
” shall
mean a payment or disbursement made by an Issuing Bank pursuant to a Letter of Credit.
“
L/C Exposure
” shall mean,
at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time
plus
(b) the
aggregate amount of all L/C Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. The
L/C Exposure of any Lender at any time shall be its Revolver Percentage of the total L/C Exposure at such time. For all purposes
of this Credit Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still
be drawn thereunder by reason of the operation of Rule 3.13 or 3.14 of the ISP or Article 36 of the UCP, such Letter of Credit
shall be deemed to be “outstanding” in the amount so remaining available to be drawn. Unless otherwise specified herein,
the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such
time;
provided
that with respect to any Letter of Credit that, by its terms or the terms of
any document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter
of
Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether
or not such maximum stated amount is in effect at such time.
“
L/C Obligations
” shall
mean the aggregate undrawn face amounts of all outstanding Letters of Credit and all unpaid Reimbursement Obligations.
“
L/C Sublimit
” shall mean
$200,000,000, as reduced pursuant to the terms hereof.
“
Lender
” and “
Lenders
”
shall mean the several banks and other financial institutions and other lenders from time to time party to this Credit Agreement
(excluding Disqualified Lenders), including each assignee Lender pursuant to Section 11.3.
“
Lending Office
” shall
mean, with respect to any of the Lenders, the branch or branches (or affiliate or affiliates) from which such Lender’s Loans
are made or maintained and for the account of which all payments of principal of, and interest on, such Lender’s Loans are
made, as notified to the Administrative Agent from time to time.
“
Letter of Credit
” shall
have the meaning given to such term in Section 2.3(a).
“
Letter of Credit Commitment
”
shall have the meaning given to such term in Section 2.3(a).
“
LGEI
” shall mean Lions
Gate Entertainment Inc., a Delaware corporation, and its successors.
“
LGF
” shall mean Lions
Gate Films Inc. and its successors.
“
LGT
” shall mean Lions
Gate Television Inc. and its successors.
“
Lien
” shall mean, with
respect to any asset, any mortgage, lien (statutory or otherwise), pledge, hypothecation, charge, security interest, preference,
priority or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under Applicable
Law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any other agreement to
give a security interest in and any filing of or agreement to give any financing statement under the applicable PPSA, the CCQ,
or UCC (or equivalent statutes) of any jurisdiction;
provided
that
in no event shall an operating lease be deemed to constitute
a Lien.
“
Loan
” or “
Loans
”
shall mean any Revolving Loan, Term Loan, any loan issued under any Incremental Facility, any Extended Revolving Loan or Extended
Term Loan, any loan issued pursuant to the final paragraph of Section 11.12(a) hereof or any Refinancing Term Loans or Loans
under any Replacement Revolving Facility.
“
Luxembourg Guarantor
”
shall have the meaning assigned to such term in Section 9.10.
“
Majority Facility Lenders
”
shall mean, with respect to any Term Facility, the holders of more than 50% of the aggregate unpaid principal amount of the Term
Loans under such Term Facility, and with respect to the Revolving Facility, the holders of Revolving Exposures and Unused Revolving
Credit Commitments representing more than 50% of the sum of the total Revolving Exposures and Unused Revolving Credit Commitments
at such time.
“
Material Adverse Effect
”
shall mean any change or effect that has a materially adverse effect on (a) the business, assets, properties, operations or financial
condition of the Borrower and its Restricted Subsidiaries, taken as a whole, (b) the legal right, power or authority of any material
Credit Party to perform its respective payment obligations under the Fundamental Documents to which it is a party or (c) the validity
or enforceability of, or the rights, remedies or benefits available to the Lenders under, the Fundamental Documents, taken as a
whole.
“
Material Indebtedness
”
shall mean Consolidated Debt of the Borrower and the Guarantors in an aggregate principal amount equal to or greater than $75,000,000.
“
Material Specified Guarantor
”
shall include each Guarantor representing at least 5% of the Total Assets or consolidated revenue of the Borrower and the Guarantors
in the aggregate,
provided
that if the aggregate of all such Material Specified Guarantors does not represent at least 90%
of the consolidated total assets and consolidated revenue of the Borrower and the Guarantors, one or more Guarantors shall be deemed
to be a “Material Specified Guarantor” such that the requirement set forth above is satisfied on the Closing Date.
“
Maturity Date
” shall mean
the Final Maturity Date or the Final Revolving Credit Termination Date, as applicable.
“
Merger Agreement
” shall
have the meaning set forth in the preliminary statements hereto.
“
Merger Sub
” shall have
the meaning set forth in the preliminary statements hereto.
“
Minimum Extension Condition
”
shall have the meaning given to such term in Section 2.14(b).
“
Moody’s
” shall mean
Moody’s Investors Service, Inc., and any successor-in-interest thereto.
“
MQP
” shall mean MQP, LLC
and its successors.
“
Multiemployer Plan
” shall
mean a plan described in Section 4001(a)(3) of ERISA to which any Credit Party or ERISA Affiliate is making or accruing an obligation
to make contributions, or has within any of the seven preceding plan years made or accrued an obligation to make contributions.
“
Negative Pick-up Obligation
”
shall mean, with respect to any item of Product produced by anyone other than the Borrower or a Restricted Subsidiary, a commitment
to pay a certain sum of money or other Investment made by the Borrower or Restricted Subsidiary in order to obtain ownership, distribution
rights or sales agency rights in such item of Product. Negative Pick-up Obligation includes both “traditional” negative
pickup arrangements and indirect structures.
“
Net Available Cash
” from
an Asset Sale shall mean cash payments actually received (including any cash payments received by way of deferred payment of principal
pursuant to a note or installment receivable, but only as and when actually received, but excluding any other consideration received
in the form of assumption by the acquiring Person of Indebtedness or other obligations relating to the properties or assets that
are the subject of such Asset Sale or received in any other non-cash form) therefrom, in each case net of:
(1) all
legal, accounting, investment banking, title and recording taxes, fees, expenses, commissions and other fees and expenses Incurred,
and all Federal, state, provincial, foreign and local taxes required to be paid or accrued as a liability under GAAP or otherwise
payable (in the good faith determination of the Borrower) in connection with such Asset Sale (including any repatriation of the
proceeds of such Asset Sale);
(2) all
payments made on any Indebtedness that is secured by any assets subject to such Asset Sale, in accordance with the terms of such
Indebtedness, or which must by its terms, or in order to obtain a necessary consent to such Asset Sale, or by Applicable Law be
repaid out of the proceeds from such Asset Sale;
(3) all
distributions and other payments required to be made to minority interest holders in Subsidiaries or Joint Ventures as a result
of such Asset Sale;
(4) the
deduction of appropriate amounts to be provided by the seller as a reserve, in accordance with GAAP, against any liabilities associated
with the assets disposed of in such Asset Sale and retained by the Borrower or any Restricted Subsidiary after such Asset Sale;
and
(5) in
the case of any Asset Sale by a Subsidiary which is not a Wholly-Owned Subsidiary, a portion of the cash payments received by such
Subsidiary equal to the portion of the economic interests in such Subsidiary which are not directly or indirectly owned by the
Borrower.
“
Net Cash Proceeds
,” with
respect to any issuance or sale of Capital Stock or any Incurrence of Indebtedness, shall mean the cash proceeds of such issuance
or sale or such Incurrence net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’
fees, listing fees, discounts or commissions and brokerage, consultant and other fees, expenses and charges actually Incurred in
connection with such issuance or sale or such Incurrence and net of taxes paid or payable (in the good faith determination of the
Borrower) in connection with such issuance or sale or such Incurrence (including any repatriation of the proceeds of such sale
or Incurrence).
“
Net First Lien Leverage Ratio
”
shall mean, as of any date of determination, the ratio of:
(1) (A)
the total principal amount of Secured Funded Indebtedness that would appear on a balance sheet of the Borrower and its Restricted
Subsidiaries as of such determination date,
minus
(B) Unrestricted Cash as of such determination date in an amount not to
exceed $200,000,000, to
(2) Adjusted
EBITDA of the Borrower, calculated on a Pro Forma Basis, for the most recent Test Period.
“
Net Total Leverage Ratio
”
shall mean, as of any date of determination, the ratio of:
(1) (A)
the total principal amount of Consolidated Debt that would appear on a balance sheet of the Borrower and its Restricted Subsidiaries
as of such determination date,
minus
(B) Unrestricted Cash as of such determination date in an amount not to exceed $200,000,000,
to
(2) Adjusted
EBITDA of the Borrower, calculated on a Pro Forma Basis, for the most recent Test Period.
“
Non-Guarantor Subsidiary
”
shall mean any Restricted Subsidiary that is not a Guarantor.
“
Non-S-X Adjustment Amount
”
shall have the meaning given to such term in the definition of “Pro Forma Basis”.
“
Non-U.S. Plan
” shall mean
any plan, fund (including, without limitation, any superannuation fund) or other similar program established, contributed to (regardless
of whether through direct contributions or through employee withholding) or maintained outside the United States by a Credit Party
or one or more Subsidiaries of a Credit Party primarily for the benefit of employees of the Credit Party or such Subsidiaries residing
outside the United States, which plan, fund or other similar program provides, or results in, retirement income, a deferral of
income in contemplation of retirement or payments to be made upon termination of employment, and which plan is not subject to ERISA
or the Code;
provided
,
however
, that “Non-U.S. Plan” shall not include any such plan, fund or program
sponsored or maintained by a Governmental Authority.
“
Note
” or “
Notes
”
shall have the meaning given to such term in Section 2.11(d).
“
NYFRB
” shall mean the
Federal Reserve Bank of New York.
“
NYFRB Rate
” shall mean,
for any day, the greater of (a) the Federal Funds Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect
on such day (or for any day that is not a Business Day, for the immediately preceding Business Day);
provided
that if none
of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal
funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a Federal funds broker of recognized
standing selected by it;
provided
, further, that if any of the aforesaid rates shall be less than zero, such rate shall
be deemed to be zero for purposes of this Credit Agreement
“
Obligations
” shall mean
(a) the obligation of the Borrower to make due and punctual payment of principal and interest on the Loans, the face amount of
the Commitment Fees, any reimbursement obligations in respect of Letters of Credit, costs and attorneys’ fees and all other
monetary obligations of the Borrower and the Guarantors to the Administrative Agent, the Issuing Banks or any Lender under this
Credit Agreement, the Notes, any other Fundamental Document or the Fee Letters (including interest accruing after the maturity
of the Loans and reimbursement obligations and interest accruing after the filing of any petition in bankruptcy, or the commencement
of any insolvency, reorganization or like proceeding relating to any Credit Party, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) and (b) all amounts payable under any Specified Swap Agreement or any Specified Cash Management
Agreement,
provided
that (i) the Obligations of the Credit Parties under any Specified Swap Agreement and Specified Cash
Management Agreements shall be secured and guaranteed pursuant to the Collateral Documents only to the extent that, and for so
long as, the other Obligations are so secured and guaranteed and (ii) any release of Collateral or Guarantors effected in the manner
permitted by this Credit Agreement or any Collateral Document shall not require the consent of any counterparty under such agreement
pursuant to any Fundamental Document; and,
provided
,
further
, that notwithstanding anything to the contrary, for
all purposes of the Fundamental Documents, the Obligations of any Guarantor shall exclude any Excluded Swap Obligation of such
Guarantor.
“
OFAC
” shall have the meaning
given to such term in Section 4.22.
“
Officer
” shall mean the
Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, Chief Strategic Officer, any President,
any Executive Vice President, Senior Vice President or Vice President, the Treasurer or the Secretary of the Borrower. Officer
of any Guarantor has a correlative meaning.
“
Officers’ Certificate
”
shall mean a certificate signed by two Officers or by an Officer and either an Assistant Treasurer or an Assistant Secretary of
the Borrower.
“
Other Applicable Indebtedness
”
shall have the meaning given to such term in Section 2.8(c)(ii).
“
Other Permitted Priority Indebtedness
”
shall mean any Indebtedness which is (a) permitted to be Incurred after the Closing Date by Section 7.1(c)(xii), Section 7.1(c)(xiii),
7.1(c)(xiv), 7.1(c)(xvii) or 7.1(c)(xviii) hereof or (b) incurred prior to the Closing date but of any type described in the foregoing
clause (a).
“
Overnight Bank Funding Rate
”
shall mean, for any day, the rate comprised of both overnight federal funds and overnight Eurodollar borrowings by U.S.-managed
banking offices of depository institutions (as such composite rate shall be determined by the NYFRB as set forth on its public
website from time to time) and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate (from
and after such date as the NYFRB shall commence to publish such composite rate).
“
Participant
” shall have
the meaning given to such term in Section 11.3(d)
“
Participant Register
”
shall have the meaning given to such term in Section 11.3(d).
“
Participating Interest
”
shall have the meaning given to such term in Section 2.3(d).
“
Participating Lender
”
shall have the meaning given to such term in Section 2.3(d).
“
payment default
” shall
have the meaning given to such term in Section 8.1(e).
“
Patent Security Agreement
”
shall have the meaning given to such term in the Pledge and Security Agreement.
“
Patent Security Agreement Supplement
”
shall have the meaning given to such term in the Pledge and Security Agreement.
“
PBGC
” shall mean the Pension
Benefit Guaranty Corporation and its successors.
“
Pension Plan
” means a
Plan described in Section 3(2) of ERISA.
“
Percentage
” shall mean
for any Lender its Revolver Percentage or Term 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
and Term Loan Percentage, and expressing such components on a single percentage basis.
“
Permitted Holder
” shall
mean, at any time, each of:
(a)(i) Mark H. Rachesky, M.D., (ii) John C.
Malone and (iii) any Affiliate of such Persons, or any Affiliated Persons of such Persons;
(b) any group (within the meaning of Section
13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision) of which any Person described in clause (a) hereof
is a member,
provided
that
Persons described in clause (a) hereof beneficially own a majority of the Voting Stock of the
Borrower beneficially owned by all members of such group; and
(c) any Person (including the Borrower upon
a sale of all or substantially all of its assets to a Subsidiary thereof in a transaction permitted under Section 7.6) (x)
that acquires (or otherwise holds), directly or indirectly, 100% of the voting power of the Voting Stock of the Borrower (or the
Successor Borrower) and, immediately after giving effect to such acquisition and any related transactions, has no material assets
other than Capital Stock of the Borrower and (y) of which no other Person or group (within the meaning of Section 13(d)(3) or Section
14(d)(2) of the Exchange Act, or any successor provision) other than any of the Permitted Holders specified in clauses (a) and
(b) above, holds more than 50% of the total voting power of the Voting Stock thereof (any Person described in clause (c) hereof,
a “
Permitted Parent Holdco
”).
“
Permitted Investment
”
shall mean an Investment by the Borrower or any Restricted Subsidiary in:
(1) the
Borrower or a Restricted Subsidiary;
(2) a
Person that is engaged in a Related Business if as a result of such Investment:
(a) such
Person becomes a Restricted Subsidiary; or
(b) such
Person, in one transaction or a series of related transactions, is merged, amalgamated, or consolidated with or into, or transfers
or conveys all or substantially all of its assets to, or is liquidated into the Borrower or a Restricted Subsidiary,
and, in each case, any Investment
held by such Person;
provided
that
such Investment was not acquired by such Person in contemplation of such acquisition,
merger, amalgamation, consolidation or transfer;
(3) cash
and Cash Equivalents;
(4) receivables
owing to the Borrower or any Restricted Subsidiary created or acquired in the ordinary course of business and payable or dischargeable
in accordance with customary trade terms;
provided
,
however
, that such trade terms may include such concessionary
trade terms as the Borrower or any such Restricted Subsidiary deems reasonable under the circumstances;
(5) payroll,
travel, services (e.g., shared services arrangements) to the extent permitted by Section 7.5(b)(vii) and similar advances
to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and
that are made in the ordinary course of business;
(6) loans
or advances to employees, officers or directors of the Borrower or any Restricted Subsidiary not in excess of $10,000,000 at any
time outstanding;
(7) any
Investment acquired by the Borrower or any of its Restricted Subsidiaries:
(a) in
exchange for any other Investment or accounts receivable held by the Borrower or any such Restricted Subsidiary in connection with
or as a result of a bankruptcy, insolvency, workout, reorganization or recapitalization of the issuer of such other Investment
or accounts receivable; or
(b) as
a result of a foreclosure (or similar remedy) by the Borrower or any of its Restricted Subsidiaries with respect to any secured
Investment or other transfer of title with respect to any secured Investment in default;
(8) Investments
made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with Section 7.8
or any other disposition of assets not constituting an Asset Sale;
(9) Investments
in existence on the Closing Date (including, for the avoidance of doubt, Investments of Target and its Subsidiaries) and all exchanges,
extensions, refinancings and renewals thereof;
(10) Currency
Agreements, Interest Rate Agreements and related Hedging Obligations, which transactions or obligations are Incurred in compliance
with Section 7.1;
(11) Guarantees
and other Investments issued in accordance with Section 7.1 relating to Negative Pick-up Obligations, Program Acquisition
Guarantees, minimum guarantees to acquire items of Product or interests therein, or similar activities, in each case in the ordinary
course of business;
(12) Investments
made in connection with the funding of contributions under any non-qualified retirement plan or similar employee compensation plan
in an amount not to exceed the amount of compensation expense recognized by the Borrower and its Restricted Subsidiaries in connection
with such plans;
(13) Investments
made pursuant to investment commitments existing on the Closing Date set forth on Schedule 1.4 in (i) Playco Holdings Limited and
(ii) other Joint Ventures in existence on the Closing Date;
(14) with
respect to the purchase price and/or construction costs expended by the Borrower and Guarantors for Borrower’s headquarters
or any other real property of the Borrower and Guarantors, the portion of such purchase prices in excess of any mortgage related
to such purchase price;
(15) Investments
in the Headquarters JV, at any time outstanding, not to exceed $40,000,000 (exclusive of any permitted guarantee);
(16) Investments
in Joint Ventures and Unrestricted Subsidiaries, in an amount, at any time outstanding, not to exceed the greater of $200,000,000
and 2.25% of Total Assets when made;
(17) Investments
(including debt obligations) received in connection with the bankruptcy, insolvency or reorganization of suppliers, customers or
other debtors or in settlement of delinquent obligations arising in the ordinary course of business;
(18) nominal
Investments in Special Purpose Producers;
(19) Investments
in and Guarantees of obligations of the Borrower, any Restricted Subsidiary, or any of their respective direct or indirect Subsidiaries
or Joint Ventures (which Subsidiaries or Joint Ventures may engage in business unrelated to such Investment to the extent otherwise
permissible under this Credit Agreement) in connection with co-productions, co-ventures or co-financing arrangements related to
the production, distribution and/or acquisition of Product or an interest therein, in each case in the ordinary course of business
consistent with past practice;
(20) Investments
in an aggregate amount at any time outstanding not to exceed the greater of (a) $275,000,000 and (b) 3.0% of Total Assets when
made;
provided
that at the time of and after giving effect to such Investment, no Default shall have occurred and be continuing
or would occur as a consequence thereof;
(21) the
Transactions, including the consummation of the Acquisition pursuant to the terms of the Merger Agreement;
(22) any
acquisition or production of Product in the ordinary course of business, to the extent such action would be considered an Investment;
(23) Letters
of credit as to which the Borrower or a Restricted Subsidiary is the beneficiary and which are issued for the account of third
party investors in Product of the Borrower or a Restricted Subsidiary;
(24) Investments
consisting of the contribution or transfer of the (A) Comic Con business or (B) Spanish-language OTT to an Unrestricted Subsidiary
or Joint Venture (or the transfer of Capital Stock in a Subsidiary that owns the Comic Con business or Spanish-language OTT, as
the case may be, such that such Subsidiary becomes a Joint Venture),
provided
that at the time of and after giving effect
to such Investment, (x) no Default shall have occurred and be continuing or would occur as a consequence thereof and (y) the Borrower
shall be in compliance with the financial ratios set forth in Section 7.9(a) and (b) for the relevant fiscal quarter on a
Pro Forma Basis;
(25) Investments
in any ProdCo in accordance with the definition of “Permitted Slate Transaction”; and
(26) Guarantees
made in accordance with Section 7.1 or Section 6.13.
“
Permitted Liens
” shall
mean, with respect to any Person:
(1) Liens,
which Liens may be pari passu with or junior to the Liens securing the Obligations pursuant to the Collateral Documents, securing
(i) the Obligations, including without limitation the Loans and the Guarantees under Article 9 and any obligations owing to the
Administrative Agent, Issuing Banks or Lenders under this Credit Agreement and the Collateral Documents (including Liens securing
any Indebtedness pursuant to Section 2.13, Section 2.14, and Section 2.15), (ii) any Incremental Equivalent Debt
or (iii) any Refinancing Notes;
(2) pledges
or deposits by such Person under workers’ compensation laws, unemployment insurance laws or similar legislation, or good
faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such
Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or United States government
bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import or
customs duties or for the payment of rent, in each case Incurred in the ordinary course of business;
(3) Liens
imposed by law, including carriers’, warehousemen’s, mechanics’, materialmen’s and repairmen’s Liens;
(4) Liens
for taxes, assessments or other governmental charges not yet subject to penalties for non-payment or that are being contested in
good faith by appropriate proceedings,
provided
that any appropriate
reserves required pursuant to GAAP have been made in respect thereof;
(5) Liens
in favor of issuers of surety or performance bonds or letters of credit or bankers’ acceptances or similar obligations issued
pursuant to the request of and for the account of such Person in the ordinary course of its business;
(6) encumbrances,
ground leases, easements or reservations of, or rights of others for, licenses, rights of way, sewers, electric lines, telegraph
and telephone lines and other similar purposes, or zoning, building codes or other restrictions or agreements (including, without
limitation, minor defects or irregularities in title and similar encumbrances) as to the use of real properties or Liens incidental
to the conduct of the business of such Person or to the ownership of its properties that do not in the aggregate materially impair
their use in the operation of the business of such Person;
(7) Liens
securing Hedging Obligations so long as the related Indebtedness is permitted under this Credit Agreement;
(8) leases,
licenses, subleases and sublicenses of assets (including, without limitation, real property and intellectual property rights) that
do not materially interfere with the ordinary conduct of the business of the Borrower or any of the Restricted Subsidiaries;
(9) Liens
arising out of attachments, judgments (to the extent not resulting in an Event of Default) or awards as to which an appeal or other
appropriate proceedings for contest or review are timely commenced (and as to which foreclosure and other enforcement proceedings
shall not have been commenced (unless fully bonded or otherwise effectively stayed)) and as to which any appropriate reserves have
been established in accordance with GAAP;
(10) Liens
for the purpose of securing the payment of all or a part of the purchase price of, or Capitalized Lease Obligations, mortgage financings,
purchase money obligations or other payments Incurred to finance assets or property (other than Capital Stock or other Investments)
acquired, constructed or improved;
provided
that
:
(a) the
aggregate principal amount of Indebtedness secured by such Liens is otherwise permitted to be Incurred under this Credit Agreement
and does not exceed the cost of the assets or property so acquired, constructed or improved; and
(b) such
Liens are created within 180 days of construction, acquisition or improvement of such assets or property and do not encumber any
other assets or property of the Borrower or any Restricted Subsidiary other than such assets or property and assets affixed or
appurtenant thereto;
(11) Liens
arising solely by virtue of any statutory or common law provisions relating to banker’s Liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained with a depositary institution;
(12) Liens
arising from any applicable UCC, CCQ or PPSA financing statement filings or other similar filings regarding operating leases entered
into by the Borrower and the Restricted Subsidiaries;
(13) Liens
existing on the Closing Date (other than Liens permitted under clauses (1), (16) or (20) of this definition) including, for the
avoidance of doubt, Liens on assets of Target and its Subsidiaries;
(14) Liens
on property or shares of stock of a Person at the time such Person becomes a Restricted Subsidiary;
provided
,
however
,
that such Liens are not created in connection with, or in contemplation of, such other Person becoming a Restricted Subsidiary;
provided
further
,
however
, that any such Lien may not extend to any other property owned by the Borrower or any Restricted
Subsidiary;
(15) Liens
on property at the time the Borrower or a Restricted Subsidiary acquired the property, including any acquisition by means of a
merger, amalgamation or consolidation with or into, or plan of arrangement with, the Borrower or any Restricted Subsidiary;
provided
,
however
, that such Liens are not created in connection with, or in contemplation of, such acquisition;
provided
further
,
however
, that such Liens may not extend to any other property owned by the Borrower or any Restricted Subsidiary;
(16) Liens
securing Indebtedness or other obligations of a Restricted Subsidiary owing to the Borrower or a Wholly-Owned Subsidiary, which
are junior in priority to the Liens securing the Loans and the Guarantees under Article 9 pursuant to an Intercreditor Agreement;
(17) [reserved];
(18) Liens
securing Refinancing Indebtedness Incurred to refinance, refund, replace, amend, extend or modify, as a whole or in part, Indebtedness
that was previously so secured pursuant to clauses (1) (only with respect to Incremental Equivalent Debt and Refinancing Notes),
(10), (13), (14), (15), (18) and (25) of this definition,
provided
that
any such Lien is limited to all or part of the same
property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or,
under the written arrangements under which the original Lien arose, could secure) the Indebtedness being refinanced or is in respect
of property that is the security for a Permitted Lien hereunder;
(19) any
interest or title of a lessor under any Capitalized Lease Obligation or operating lease;
(20) Liens
in favor of the Borrower or any Restricted Subsidiary, which are junior in priority to the Liens securing the Loans and the Guarantees
under Article 9 pursuant to an Intercreditor Agreement;
(21) Liens
to secure payment and performance obligations of the Borrower and Guarantors in connection with a revenue participation purchase
agreement or similar arrangement for third-party investments in Product produced, acquired or distributed by the Borrower and such
Guarantors in the ordinary course of business consistent with past practice;
(22) Liens
under industrial revenue, municipal or similar bonds;
(23) Liens
to secure Negative Pick-up Obligations, Program Acquisition Guarantees and other direct or indirect guarantees (including minimum
guarantees) related to the acquisition, production or distribution of items of Product in the ordinary course of business to the
extent such Lien is limited solely to such item of Product related to such Negative Pick-up Obligation, Program Acquisition Guarantee
or other guarantee;
(24) Liens
to secure Other Permitted Priority Indebtedness to the extent such Lien is limited solely to the item or items of Product or related
Production Accounts relating to such Other Permitted Priority Indebtedness, which Liens may be prior to the Liens securing the
Obligations pursuant to the Collateral Documents;
(25) Liens
securing Indebtedness in an aggregate principal amount outstanding at any one time not to exceed at the time of Incurrence thereof,
together with all other outstanding (x) Indebtedness secured by Liens pursuant to this clause (25) and (y) Refinancing Indebtedness
secured by Liens incurred under clause (18) above in respect of Indebtedness previously secured by Liens under this clause (25),
the greater of (a) $100,000,000 and (b) 1.25% of Total Assets;
(26) Liens
on assets of a Subsidiary that is not a Guarantor securing Indebtedness of a Subsidiary that is not a Guarantor permitted to be
Incurred pursuant to Section 7.1;
(27) Liens
in favor of guilds or unions (whether pursuant to written security agreements, any producer’s or distributor’s assumption
agreements, or otherwise), in each case which are required in the ordinary course of business pursuant to collective bargaining
agreements;
(28) Liens
to secure distribution, exhibition and/or exploitation rights of licensees pursuant to Distribution Agreements or of licensors
from whom any of the Borrower or the Restricted Subsidiaries has (directly or indirectly) obtained any distribution rights or other
exploitation rights to any item of Product (or of Persons providing financing to obtain such rights) or Liens to secure production
advances on an item of Product,
provided
that such Liens are limited to such distribution, exhibition and/or exploitation
rights and the applicable revenue therefrom;
(29) Liens
customarily granted or incurred in the ordinary course of business with regard to services rendered by laboratories and post-production
houses, record warehouses and suppliers of materials and equipment which secure outstanding trade payables;
(30) possessory
Liens (other than those of laboratories and production houses) which (a) occur in the ordinary course of business, (b) secure normal
trade debt which is not yet due and payable and (c) do not secure Indebtedness;
(31) customary
Liens in favor of completion guarantors granted in connection with Completion Guarantees;
(32) Liens
granted by the Borrower or any Restricted Subsidiary that is a Special Purpose Producer to secure outside production financing
otherwise permitted under this Credit Agreement;
(33) Liens
granted in connection with any Permitted Slate Financing in accordance with the definition thereof;
(34) Liens
to secure Replication Advances permitted by Section 7.1(c)(xiv);
(35) Liens
on tax credits to secure Indebtedness which is otherwise non-recourse to the Borrower or any Restricted Subsidiary, other than
customary representations and warranties;
(36) Liens
granted by either MQP, any Services Company that is the Borrower or any Restricted Subsidiary, LGF or LGT to secure MQP’s
obligations to SGF pursuant to the SGF Co-Financing Arrangement;
(37) Liens
in connection with reversion or turnaround rights with respect to a project in development;
(38) Liens
granted by one or more of the Borrower and its Restricted Subsidiaries to secure Secured Funded Indebtedness permitted to be Incurred
under Section 7.1(a) or any refinancing of such Indebtedness permitted pursuant to Section 7.1(c)(xi), in each case,
which Liens are
pari passu
in priority with the liens securing the Obligations pursuant to the Collateral Documents pursuant
to an Intercreditor Agreement;
(39) Liens
granted by one or more of the Borrower and its Restricted Subsidiaries to secure Indebtedness permitted to be Incurred under Section 7.1(b)
or any refinancing of such Indebtedness permitted pursuant to Section 7.1(c)(xi), in each case, which Liens are junior in
priority to the with the liens securing the Obligations pursuant to the Collateral Documents Obligations pursuant to an Intercreditor
Agreement;
(40) rights
or other interests granted under the Co-Publishing Agreement, dated April 5, 2013 and effective as of January 1, 2012, among Lions
Gate Music Publishing LLC and Lions Gate Records, Inc. and Warner/Chappell and its affiliated entities (as the same may be amended,
restated, supplemented, or otherwise modified from time to time); and
(41) Liens
securing the Senior Notes in connection with the escrow of the proceeds thereof.
“
Permitted Parent Holdco
”
shall have the meaning given to such term in the definition of “Permitted Holder”.
“
Permitted Slate Financing
”
shall mean a financing arrangement in which two or more of the Borrower’s and/or Guarantor’s (as applicable) audio
visual works (including motion pictures) are partially financed through an arrangement with a third party (“
Permitted
Financier
”) who may be granted an interest in or share of the copyright, distribution rights, and/or certain financial
proceeds from the subject audio visual works (collectively, “
Permitted Financier Rights
”) in connection with
such financing arrangement,
provided
that (i) the only recourse of the Permitted Financier in connection with such arrangement
against the Borrower or such Guarantor shall be limited to the Permitted Financier Rights, interests in related Production Accounts
(if any), and customary representations and warranties given by the Borrower and/or Guarantor in connection with such arrangement
and (ii) any such interest granted to the Permitted Financier in the Permitted Financier Rights and the other terms of such arrangement
shall be reasonable and on an arm’s length basis and consistent with customary practice for transactions of such nature (as
determined in good faith by the Borrower). The Borrower and/or Guarantors shall be entitled to grant any of the Permitted Financier
Rights to a Permitted Financier and if a Lien is granted to the Permitted Financier in connection with such financing arrangement,
such Lien shall be subject to an Intercreditor Agreement entered into by the Administrative Agent (a) setting forth that: (x) the
Permitted Financier shall maintain a first priority security interest over any of the Permitted Financier Rights and/or any related
Production Account, and (y) the Administrative Agent’s rights, claims and security interests in any such Permitted Financier
Rights and/or related Production Accounts with the Permitted Financier shall be subordinated to the rights, claims and security
interests of the applicable Permitted Financier with respect to such Permitted Financier Rights and/or any related Production Accounts
and (b) otherwise on terms that are no less favorable, taken as a whole, to the Lenders than the terms of similar intercreditor
arrangements entered into by the Borrower
and its Subsidiaries consistent with past and customary practice.
“
Permitted Slate Transaction
”
shall mean a transaction which the Borrower and/or the Guarantors may at their option consummate and which satisfies all of the
following criteria:
(i) the
borrower or the issuer in such transaction (each, a “
ProdCo
”) will be a new corporation, limited liability company
or limited partnership formed solely for the purpose of a Permitted Slate Transaction;
(ii) each
ProdCo will not engage in any business other than producing, acquiring or funding the print and advertising expenses of items of
Product to be distributed by the Borrower or one or more Guarantors;
(iii) the
Borrower or any Guarantor and the other third party investors or financiers in such transaction will acquire (1) shares, membership
interests, limited partnership interests, or other Capital Stock in the applicable ProdCo and/or (2) revenue participations in
the items of Product to be produced by such ProdCo;
(iv) the
shares, membership interests, limited partnership interests, other Capital Stocks and/or revenue participations, in any ProdCo
owned by the Borrower or one or more Guarantors will be Collateral but such ProdCo will not be a Guarantor;
(v) each
ProdCo will acquire from the Borrower or the Guarantors ownership of items of Product;
(vi) each
ProdCo will grant to the Borrower or any Guarantor distribution and exploitation rights in those items of Product acquired by such
ProdCo;
(vii) nothing
in the documentation and/or structure for a Permitted Slate Transaction shall permit ProdCo to distribute the contractually mandated
revenue generated thereby except on a pro rata or a basis which is greater than pro rata in favor of the Borrower or a Guarantor,
other than a customary production fee or interest return on the amount invested (
provided
,
however
, that if this
condition is not satisfied, such transaction will qualify as a Permitted Slate Transaction, but the Investment in such transaction
will be included in and subject to the Slate Cap); and
(viii) ProdCo
may not incur Indebtedness other than Subordinated Obligations (
provided
, however, that if this condition is not satisfied,
such transaction will qualify as a Permitted Slate Transaction, but the Investment in such transaction will be included in and
subject to the Slate Cap).
“
Person
” shall mean any
natural person, corporation, division of a corporation, limited liability company, partnership, trust, joint venture, association,
company, estate, unincorporated organization or government or any agency or political subdivision thereof.
“
Pilgrim JV
” means Pilgrim
Media Group, LLC.
“
Plan
” means at any time,
an “employee benefit plan”, as defined in Section 3(3) of ERISA (other than a Multiemployer Plan), that any Credit
Party or ERISA Affiliate maintains, contributes to or has an obligation to contribute to or has maintained, contributed to or had
an obligation to contribute to at any time within the past seven (7) years and in respect of which any Credit Party or
ERISA Affiliate is (or, if such Plan were
terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in section 3(5) of ERISA.
“
Pledge and Security Agreement
”
shall mean the Pledge and Security Agreement, dated as of the date hereof, among the Credit Parties party thereto and the Administrative
Agent.
“
PPSA
” shall mean unless
otherwise provided in this Credit Agreement, the
Personal Property Security Act
B.C. 1996 chapter 359 as heretofore and
hereafter amended and in effect in the Province of British Columbia, or, where the context requires, the legislation of the other
provinces or territories of Canada (other than Québec) relating to security in personal property generally, including accounts
receivable, as adopted by and in effect from time to time in such provinces or territories of Canada, as applicable.
“
Preferred Stock
,” as applied
to the Capital Stock of any corporation, shall mean Capital Stock of any class or classes (however designated) that is preferred
as to the payment of dividends upon liquidation, dissolution or winding up.
“
Prime Rate
” shall mean
the rate of interest per annum determined by JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New
York City and notified to the Borrower (the Prime Rate not being intended to be the lowest rate of interest charged by JPMorgan
Chase Bank, N.A. in connection with extensions of credit to debtors).
“
Pro Forma Basis
” shall
mean, as to any Person, for any events as described below that occur subsequent to the commencement of a period, such calculation
as will give pro forma effect to such events as if such events occurred on the first day of such period (the “
Reference
Period
”):
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|
(a)
|
the Transactions, any Asset Sale, any asset acquisition or Investment (or series of related Investments) permitted under this
Credit Agreement, in each case, in excess of $25,000,000, any merger, amalgamation, consolidation (or any similar transaction or
transactions) and any dividend, distribution or other similar payment,
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(b)
|
any operational changes or restructurings of the business of the Borrower or any of its Restricted Subsidiaries that the Borrower
or any of its Restricted Subsidiaries has determined to make and/or made during or subsequent to the Reference Period (including
in connection with an Asset Sale or asset acquisition described in clause (a) above) and which are expected to have a continuing
impact and are factually supportable, which would include cost savings resulting from head count reduction, closure of facilities
and other operational changes and other cost savings in connection therewith,
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(c)
|
the designation of any Subsidiary as an Unrestricted Subsidiary or of any Unrestricted Subsidiary as a Subsidiary,
|
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(d)
|
any incurrence, repayment, repurchase or redemption of Indebtedness (or any issuance, repurchase or redemption of Disqualified
Stock or preferred stock), other than fluctuations in revolving borrowings in the ordinary course of business (and not resulting
from a transaction as described in clause (a) above); and
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(e)
|
any other event, in each case that by the terms of the Fundamental Documents requires a test, financial ratio or covenant to
be calculated on a “Pro Forma Basis”.
|
Pro forma calculations made pursuant to this
definition shall be determined in good faith by the Borrower, and shall be made without duplication of amounts already included
pursuant to the definition of “Adjusted EBITDA”. Any such pro forma calculation may include adjustments appropriate,
in the reasonable good faith determination of the Borrower to reflect operating expense reductions, other operating improvements,
synergies or such operational changes or restructurings described in clause (b) of the immediately preceding paragraph reasonably
expected to result from the applicable pro forma event in the 18 month period following the consummation of such pro forma event;
provided
that the aggregate amount of such adjustments described in clause (b) of the immediately preceding paragraph that
do not either (X) comply with Article 11 of Regulation S-X for any Reference Period or (Y) relate to or arise from the Transaction
(the “
Non-S-X Adjustment Amount
”) shall not, when aggregated with the amount of any increase to Adjusted EBITDA
pursuant to clause (5) thereof for such Reference Period, exceed 15% of Adjusted EBITDA for such Reference Period.
If any Indebtedness bears a floating rate
of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect
on the date on which the relevant calculation is being made had been the applicable rate for the entire period (taking into account
any hedging obligations applicable to such Indebtedness if such hedging obligation has a remaining term in excess of 12 months).
Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by the Borrower
to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. For purposes of making the computation
referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed
based upon the average daily balance of such Indebtedness during the applicable period, except to the extent the outstandings thereunder
are reasonably expected to increase as a result of any transactions described in clause (a) of the first paragraph of this definition
of “Pro Forma Basis” which occurred during the respective period or thereafter and on or prior to the date of determination.
Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate,
a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if
none, then based upon such applicable optional rate as the Borrower may designate.
In the event that any financial ratio is being
calculated for purposes of determining whether Indebtedness or any Lien relating thereto may be incurred, the Borrower may elect,
pursuant to an Officers’ Certificate thereof delivered to the Administrative Agent, to treat all or any portion of the commitment
relating thereto as being incurred at the time of such commitment (such election to be consistently applied for all purposes under
this Credit Agreement), in which case Indebtedness in an amount equal to such commitment shall be deemed to be outstanding for
all financial calculations until such commitment is terminated, but any subsequent incurrence of Indebtedness under such commitment
shall not be deemed, for purposes of this calculation, to be an incurrence at such subsequent time.
“
Pro Forma Financial Statements
”
shall have the meaning given to such term in Section 4.5(e).
“
ProdCo
” shall have the
meaning given to such term in the definition of “Permitted Slate Transaction”.
“
Product
” shall mean any
motion picture, live event, film, music or video tape or other audio-visual work or episode thereof produced for theatrical, non-theatrical
or television release or for
exploitation in any other medium (including,
without limitation, interactive media, multi-channel and digital platforms, stage plays, museum tours, theme parks or other location-based
entertainment), in each case whether recorded on film, videotape, cassette, cartridge, disc or on or by any other means, method,
process or device whether now known or hereafter devised, with respect to which the Borrower or any of its Restricted Subsidiaries
(1) is the copyright owner or (2) acquires an equity interest or distribution or sales agency rights. The term “item of Product”
shall include, without limitation, the scenario, screenplay or script upon which such item of Product is based, all of the properties
thereof, tangible and intangible, and whether now in existence or hereafter to be made or produced, whether or not in possession
of the Borrower and the Restricted Subsidiaries, and all rights therein and thereto, of every kind and character.
“
Production Account
” shall
have the meaning given to such term in the definition of “Excluded Assets”.
“
Program Acquisition Guarantees
”
shall mean any commitment of the Borrower or any Restricted Subsidiary to a producer or owner of Product in conjunction with the
acquisition of Product, distribution rights or sales agency rights in Product by the Borrower or such Restricted Subsidiary to
the effect that (1) the gross revenues to be generated in the future from the exploitation of such Product or the net revenues
to be received by such producer or owner from the exploitation of such Product are reasonably anticipated by the Borrower to equal
or exceed an amount specified in the acquisition agreement related to such Product or (2) otherwise requires payment by the Borrower
or Restricted Subsidiary of a minimum amount specified in the acquisition agreement related to such Product regardless of actual
performance of such Product.
“
Qualified Plan
” means
a Pension Plan that is intended to be tax-qualified under Section 401(a) of the Code.
“
Quotation Day
” shall mean,
with respect to any Eurodollar Loan for any Interest Period, two Business Days prior to the commencement of such Interest Period.
“
Rating Agencies
” shall
mean each of S&P and Moody’s or if S&P or Moody’s or both of them shall not make a rating on the Loans publicly
available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Borrower which shall
be substituted for S&P or Moody’s as the case may be.
“
Ratio-Based Incremental Amount
”
shall have the meaning given to such term in Section 2.13(b).
“
Refinancing Amendment
”
shall have the meaning given to such term in Section 2.15.
“
Refinancing Effective Date
”
shall have the meaning given to such term in Section 2.15(a).
“
Refinancing Indebtedness
”
shall mean Indebtedness that is Incurred in exchange for, or to refund, refinance, replace, exchange, renew, repay or extend (including
pursuant to any defeasance or discharge mechanism) (collectively, to “refinance,” “refinances” and “refinanced”
each having a correlative meaning) any Indebtedness being refinanced (or previous refinancing thereof),
provided
,
however
,
that:
(1) the
Refinancing Indebtedness has a Stated Maturity no earlier than the earlier of (a) the Stated Maturity of the Indebtedness being
refinanced or (b) 91 days later than the latest Maturity Date;
(2) the
Refinancing Indebtedness has an Average Life at the time such Refinancing Indebtedness is Incurred that is equal to or greater
than the lesser of (a) the remaining Average Life of the Indebtedness being refinanced or (b) 91 days after the remaining Average
Life of the class of Term Loans then outstanding with the greatest remaining Average Life;
(3) such
Refinancing Indebtedness is Incurred in an aggregate principal amount (or if issued with original issue discount, an aggregate
issue price) that is equal to or less than the sum of the aggregate principal amount (or if issued with original issue discount,
the aggregate accreted value) then outstanding of the Indebtedness being refinanced (plus, without duplication, interest or premiums
required by the instruments governing such existing Indebtedness, any tender premiums with respect thereto, and fees and expenses
Incurred in connection therewith);
(4) if
the Indebtedness being refinanced is subordinated in right of payment to the Loans or the Guarantees under Article 9, such Refinancing
Indebtedness is subordinated in right of payment to the Loans or the Guarantees under Article 9 on terms in the aggregate not materially
less favorable to the Lenders than those contained in the documentation governing the Indebtedness being refinanced (as determined
by the Borrower in good faith); and
(5) Refinancing
Indebtedness shall not include Indebtedness of a Non-Guarantor Subsidiary that refinances Indebtedness of the Borrower or a Guarantor.
“
Refinancing Notes
” shall
mean one or more series of secured or unsecured notes issued by a Credit Party (which, if secured, are secured (x) on a
pari
passu
basis with the Facilities or (y) on a junior basis to the Facilities) in each case issued to refinance outstanding Indebtedness
of the Borrower under any one or more Classes of Term Loans;
provided
that
:
(a) if such Refinancing Notes shall be secured
by a security interest in the Collateral, then such Refinancing Notes shall be issued subject to an Intercreditor Agreement;
(b) no Refinancing Notes shall mature prior
to the Final Maturity Date, or have an Average Life that is less than the Average Life of the Class of Term Loans being refinanced;
(c) no Refinancing Notes shall be subject
to any amortization prior to the final maturity thereof, or be subject to any mandatory redemption or prepayment provisions or
rights (except customary assets sale or change of control provisions);
(d) such Refinancing Notes shall have pricing
(including interest, fees and premiums), optional prepayment and redemption terms as may be agreed to by the Borrower and the lenders
party thereto;
(e) the other terms and conditions (excluding
those referenced in clauses (b) and (d) above) of such Refinancing Notes shall be substantially identical to, or (taken as a whole)
no less favorable (as reasonably determined by the Borrower) to the Borrower than, those applicable to the Term Loans being refinanced
or replaced (except for covenants or other provisions applicable only to periods after the latest Maturity Date of the relevant
Term Loans existing at the time of such refinancing or replacement);
(f) the Refinancing Notes may not have guarantors,
obligors or security in any case more extensive than that which applied to the applicable Term Loans being so refinanced and the
borrower of the Refinancing Notes shall be the Borrower with respect to the Indebtedness being refinanced; and
(g) the Net Cash Proceeds of such Refinancing
Notes shall be applied, substantially concurrently with the incurrence thereof, to the pro rata prepayment of outstanding Term
Loans under the applicable Class of Term Loans being so refinanced in accordance with Section 2.8(c).
“
Refinancing Term Loans
”
shall have the meaning given to such term in Section 2.15(a).
“
Register
” shall have the
meaning given such term in Section 11.3(c).
“
Regulation D
” shall mean
Regulation D of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“
Regulation S-X
” shall
mean Regulation S-X (and the interpretations of the SEC) under the Securities Act.
“
Regulations T, U and X
”
shall mean such regulation of the Board as from time to time in effect and all official rulings and interpretations thereunder
or thereof.
“
Reimbursement Obligations
”
shall have the meaning given to such term in Section 2.3(c).
“
Reinvested Deferred Amount
”
shall have the meaning given to such term in Section 2.8(c).
“
Rejecting Lender
” shall
have the meaning given to such term in Section 2.8(c).
“
Related Business
” shall
mean the (1) development, production, distribution, acquisition or disposition of intellectual properties including films, live
event, television, interactive media, music and video product or any other audio-visual work and/or rights therein or thereto,
(2) operation of physical production facilities, (3) acquisition and operation of television channels and internet or digital distribution
platforms and (4) any business which is related, ancillary or complementary to any of the foregoing activities, including, without
limitation, the acquisition and operation of theme parks, museum tours, stage plays, or other live or location-based entertainment.
“
Related Parties
” shall
mean, with respect to any Person, such Person’s affiliates and the partners, directors, officers, employees, agents, trustees,
administrators, managers, advisors and representatives of such Person and of such Person’s affiliates.
“
Relevant Existing Facility
”
shall have the meaning given to such term in Section 2.13(a).
“
Relevant Taxing Jurisdiction
”
shall have the meaning given to such term in the definition of “Excluded Taxes”.
“
Replacement Revolving Credit Commitments
”
shall have the meaning given to such term in Section 2.15(c).
“
Replacement Revolving Credit Facility
Effective Date
” shall have the meaning given to such term in Section 2.15(c).
“
Replacement Revolving Facility
”
shall have the meaning given to such term in Section 2.15(c).
“
Replication Advances
”
shall mean advances incurred pursuant to DVD replication, tape duplication or film processing transactions which require repayment
if certain volume commitments are not fulfilled,
provided
that
repayment of such advances (1) may not be accelerated or
be required to be paid on demand unless such repayment obligation is completely unsecured, (2) do not require cash payments of
interest and (3) are on terms at least as favorable as the Borrower’s or Restricted Subsidiary’s current replication
deals;
provided
that
, the granting of a Lien in respect of the related assets, which is junior in right to the Lien on such
assets which secures the Loans, to secure any such Replication Advances will not be considered to be less favorable to the Borrower.
“
Repricing Transaction
”
means each of (a) the prepayment, repayment, refinancing, substitution or replacement of all or a portion of the Term B Loans with
the proceeds of any term loans incurred or guaranteed by the Borrower or any Guarantor incurred for the primary purpose of reducing
the effective yield (with the comparative determinations to be made by the Administrative Agent in a manner consistent with generally
accepted financial practices, and in any event consistent with Section 2.13(a)) to less than the effective yield (as determined
by the Administrative Agent on the same basis) applicable to such Term B Loans so prepaid, repaid, refinanced, substituted or replaced
and (b) any amendment, waiver or other modification to, or consent under, this Credit Agreement incurred for the primary purpose
of reducing the effective yield (to be determined by the Administrative Agent on the same basis as set forth in preceding clause
(a)) of the Term B Loans;
provided
that in no event shall any such prepayment, repayment, refinancing, substitution, replacement,
amendment, waiver, modification or consent in connection with a Change of Control or with any acquisition or investment which is
not permitted by the terms of the Credit Agreement, constitute a Repricing Transaction. Any determination by the Administrative
Agent of any effective interest rate as contemplated by preceding clauses (a) and (b) shall be conclusive and binding on all Lenders,
and the Administrative Agent shall have no liability to any Person with respect to such determination.
“
Required Lenders
” shall
mean, 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 (so long as
such Lender is a Defaulting Lender) or the Borrower or any of the Borrower’s Affiliates shall be excluded for purposes of
making a determination of Required Lenders.
“
Required RC Lenders
” means,
at any time, Lenders having Revolving Exposures and Unused Revolving Credit Commitments representing more than 50% of the sum of
the total Revolving Exposures and Unused Revolving Credit Commitments at such time; provided that the Revolving Exposures and Unused
Revolving Credit Commitments held or deemed held by any Defaulting Lender (so long as such Lender is a Defaulting Lender) or the
Borrower or any of the Borrower’s Affiliates shall be excluded for purposes of making a determination of Required RC Lenders.
“
Required RC/TLA Lenders
”
means, at any time, Lenders having Revolving Exposures, Term A Loans and unused Revolving Credit Commitments in respect of the
foregoing representing more than 50% of the sum of the total Revolving Exposures, outstanding Term A Loans and unused Revolving
Credit Commitments in respect of the foregoing at such time;
provided
that the Revolving Exposures, Term A Loans and unused
Revolving Credit Commitments in respect of the foregoing held or deemed held by any Defaulting Lender (so long as such Lender is
a Defaulting Lender) or the Borrower or any of the Borrower’s Affiliates shall be excluded for purposes of making a determination
of Required RC/TLA Lenders.
“
Resignation Effective Date
”
shall have the meaning given to such term in Section 10.10.
“
Responsible Officer
” shall
mean, when used with respect to the Administrative Agent, any officer within the corporate trust department of the Administrative
Agent having direct responsibility for the administration of this Credit Agreement, or any other officer to whom any corporate
trust matter is referred because of such officer’s knowledge of and familiarity with the particular subject.
“
Restricted Asset Sale Amount
”
shall have the meaning given to such term in Section 2.8(a).
“
Restricted ECF Amount
”
shall have the meaning given to such term in Section 2.8(c).
“
Restricted Investment
”
shall mean any Investment other than a Permitted Investment.
“
Restricted Payment
” shall
have the meaning given to such term in Section 7.2(a).
“
Restricted Subsidiary
”
shall mean any Subsidiary of the Borrower other than an Unrestricted Subsidiary.
“
Revolver Percentage
” means,
for each Revolving Lender, the percentage of the aggregate Revolving Credit Commitments represented by such Revolving Lender’s
Revolving Credit Commitment or, if the Revolving Credit Commitments have been terminated, the percentage held by such Revolving
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 Commitment
”
means, as to any Lender, the obligation of such Lender to make Revolving Loans and to participate in 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 Revolving Lender’s name on Schedule 1.1 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
Revolving Lenders acknowledge and agree that the Revolving Credit Commitments of the Revolving Lenders aggregate $1,000,000,000
on the date hereof.
“
Revolving Credit Commitment Increase
”
shall have the meaning given to such term in Section 2.13(a).
“
Revolving Credit Termination Date
”
means the earliest of (a) December 8, 2021, (b) such earlier date on which the Revolving Credit Commitments are terminated in whole
pursuant to Section 2.10, Section 8.2 or Section 8.3 hereof and (c) with respect to any Revolving Lender that has
extended its Revolving Credit Commitment pursuant to an Extension consummated under Section 2.14 and with respect to any Issuing
Bank that has consented to such extension, the extended maturity date of such Revolver Lender’s Revolving Credit Commitment.
“
Revolving Exposure
” shall
mean, with respect to any Lender as of any date of determination, (i) prior to the termination of the Revolving Credit Commitments,
that Lender’s Revolving Credit Commitment; and (ii) after the termination of the Revolving Credit Commitments, the sum of
(a) the aggregate outstanding principal amount of the Revolving Loans of that Lender, (b) in the case of an Issuing Bank, the aggregate
L/C Exposure in respect of all Letters of Credit issued by that Lender (net of any participations by Lenders in such Letters of
Credit) and (c) the aggregate amount of all participations by that Lender in any outstanding Letters of Credit or any unreimbursed
drawing under any Letter of Credit.
“
Revolving Facility
” shall
mean the credit facility for making revolving Loans and issuing Letters of Credit described in Section 2.2 and Section 2.3.
“
Revolving Lender
” shall
mean each Lender that has a Revolving Credit Commitment or that holds Revolving Loans.
“
Revolving Loans
” shall
have the meaning given to such term in Section 2.2.
“
Revolving Note
” shall
have the meaning given to such term in Section 2.11(d).
“
S&P
” shall mean Standard
& Poor’s Financial Services, LLC and any successor-in-interest thereto.
“
Sale/Leaseback Transaction
”
shall mean an arrangement relating to property now owned or hereafter acquired whereby the Borrower or a Restricted Subsidiary
transfers such property to a Person (other than the Borrower or any of its Restricted Subsidiaries) and the Borrower or a Restricted
Subsidiary leases it from such Person.
“
Screen Rate
” shall have
the meaning given to such term in the definition of “Eurodollar Base Rate”.
“
SEC
” shall mean the U.S.
Securities and Exchange Commission.
“
Secured Funded Indebtedness
”
shall mean Consolidated Debt of the Borrower and its Restricted Subsidiaries that is secured by a Lien on any asset of the Borrower
or any Restricted Subsidiary (excluding (i) Liens that are junior in priority to the Liens securing the Loans and the Guarantees
under Article 9 and (ii) Permitted Liens other than (a) Permitted Liens incurred pursuant to clauses (1), (10), (13), (15), (25)
or (38) of the definition thereof (to the extent any such Lien is not, pursuant to an Intercreditor Agreement, subordinated to
the Liens securing the Obligations) and (b) Permitted Liens with respect to any permitted Refinancing Indebtedness or Refinancing
Notes with respect to Indebtedness secured by Liens described in clause (a) (to the extent any such Lien is not, pursuant to an
Intercreditor Agreement, subordinated in right of payment to the Obligations)).
“
Secured Parties
” shall
have the meaning given to such term in the Pledge and Security Agreement.
“
Securities Act
” shall
mean the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.
“
Senior Notes
” means the
5.875% Senior Notes due 2024 of FinanceCo initially issued in an aggregate principal amount of $520,000,000 pursuant to the Senior
Notes Indenture.
“
Senior Notes Indenture
”
means the Indenture, dated as of October 27, 2016, between FinanceCo and Deutsche Bank Trust Company Americas, as trustee (the
“
Trustee
”), under which the Senior Notes were issued, as supplemented by the First Supplemental Indenture, dated
as of December 8, 2016, among the Borrower, the Guarantors (as defined therein), FinanceCo and the Trustee.
“
Services Company
” shall
mean a corporation (which may or may not be a subsidiary of the Borrower) having a permanent establishment in Québec which
provides production services pursuant to a production services agreement between MQP and such Services Company.
“
SGF
” shall mean SGF Entertainment
Inc., a subsidiary of the Société Générale Financement du Québec and its successors.
“
SGF Co-Financing Arrangement
”
shall mean the co-financing arrangement by and among MQP, the Borrower and SGF pursuant to which, among other things, (i) MQP agreed
to sell revenue participation interests in certain motion pictures and television productions to SGF pursuant to that certain Revenue
Participation Purchase Agreement among MQP, SGF, LGF and LGT dated as of July 25, 2007, (ii) MQP licensed certain motion pictures
to LGF pursuant to that certain Master Distribution Agreement (Film Productions) between MQP and LGF, dated as of July 25, 2007
and (iii) MQP agreed to license certain television productions to LGT pursuant to that certain Master Distribution Agreement (Television
Productions) between MQP and LGT, dated as of July 25, 2007.
“
Significant Subsidiary
”
shall mean any Restricted Subsidiary that would be a “Significant Subsidiary” of the Borrower within the meaning of
Rule 1-02 under Regulation S-X promulgated by the SEC.
“
Slate Cap
” shall mean,
at any time, the greater of (a) $300,000,000 (plus any returns of capital actually received by the Borrower and the Guarantors
in respect of Investments made after the Closing Date by them in all Permitted Slate Transactions) or (B) 3.5% of Total Assets
at such time.
“
Solvency Certificate
”
means the Solvency Certificate delivered pursuant to Section 5.1(f) hereof, substantially in the form of
Exhibit E
to this Credit Agreement.
“
Spanish-language OTT
”
means the Borrower’s current Spanish-language subscription video on demand service (as such service may continue to organically
evolve) or other related service operated by the Borrower, its Subsidiaries or its designees.
“
Special Purpose Producer
”
shall mean a special purpose corporation or limited liability company formed solely for the purpose of producing a Product or any
audio-visual product or live or location-based entertainment which, in each case, will be purchased or distributed in whole or
in part by the Borrower or any of its Restricted Subsidiaries.
“
Specified Acquisition
”
shall mean 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 line of 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 Restricted Subsidiary), but, at the Borrower’s option, including acquisitions of Capital Stock increasing
the ownership of the Borrower or a Subsidiary in an existing Subsidiary, or (c) a merger or consolidation or any other combination
with another Person (other than a Person that is already a Restricted Subsidiary);
provided
that the Borrower or a Restricted
Subsidiary is the surviving entity or the surviving entity becomes a Restricted Subsidiary.
“
Specified Cash Management Agreement
”
shall mean any agreement providing for treasury, depositary, purchasing card or cash management services, including in connection
with any automated clearing house transfers of funds or any similar transactions owing by any Credit Party to any entity that was
a Lender, the Administrative Agent or an Affiliate of a Lender or the Administrative Agent at the time such relevant agreement
was entered into or, if later, as of the Closing Date (or, if later, who
becomes a Lender or an Affiliate of a Lender
within 30 days after the Closing Date),
provided
that the Borrower may in its sole discretion designate, by delivering a
written designation by the Borrower and such counterparty to the Administrative Agent, any agreement by a Restricted Subsidiary
which is not a Credit Party which would constitute a “Specified Cash Management Agreement” if such Subsidiary were
a Credit Party as (a) constituting a Specified Cash Management Agreement or (b) only partially constituting a Specified Cash Management
Agreement.
“
Specified Equity Contribution
”
shall have the meaning given to such term in Section 8.6.
“
Specified Merger Agreement Representations
”
shall mean such of the representations made by or with respect to the Target and its Subsidiaries in the Merger Agreement as are
material to the interests of the Lenders in their capacities as such, but only to the extent that the Borrower (or its Affiliate)
has the right to terminate its obligations under the Merger Agreement or to decline to consummate the Acquisition as a result of
a breach of such representations in the Merger Agreement.
“
Specified Representations
”
shall mean those representations and warranties made by the Borrower and the Guarantors (after giving effect to the Acquisition)
in the following Sections of this Credit Agreement:
|
|
(a)
|
solely as to corporate or other organizational existence with respect to the Borrower and each Material Specified Guarantor,
Section 4.1(a);
|
|
|
(b)
|
solely with respect to power and authority, due authorization, execution and delivery, and enforceability of the Fundamental
Documents as to the Borrower and each Material Specified Guarantor, Section 4.1(b);
|
|
|
(c)
|
Section 4.2(i) and (iii) (in each case, solely with respect to the Borrower and each Material Specified Guarantor);
|
|
|
(d)
|
Section 4.4 (solely with respect to the Borrower and each Material Specified Guarantor);
|
|
|
(i)
|
Section 4.22(b)(ii) and (c) (in each case, solely
as it relates to the use of proceeds of the Loans to be made on the Closing Date).
|
“
Specified Swap Agreement
”
shall mean any Interest Rate Agreement or Currency Agreement owing by any Credit Party to any entity that was a Lender, the Administrative
Agent or an Affiliate of a Lender or the Administrative Agent at the time such relevant agreement was entered into or, if later,
as of the Closing Date (or, if later, who becomes a Lender or an Affiliate of a Lender within 30 days after the Closing Date),
provided
that the Borrower may in its sole discretion designate, by delivering a written designation by the Borrower and
such counterparty to the Administrative Agent, any agreement by a Restricted Subsidiary which is not a Credit Party which would
constitute a “Specified
Swap Agreement” if such Subsidiary were
a Credit Party as (a) constituting a Specified Swap Agreement or (b) only partially constituting a Specified Swap Agreement. Notwithstanding
the foregoing, for all purposes of the Fundamental Documents, any Guarantee of, or grant of any Lien to secure, any obligations
in respect of a Specified Swap Agreement by a Guarantor shall not include any Excluded Swap Obligations with respect to such Guarantors.
“
Specified Time
” shall
mean 11:00 a.m., London time.
“
Stated Maturity
” shall
mean, with respect to any security, the date specified in the agreement governing or certificate relating to such Indebtedness
as the fixed date on which the final payment of principal of such security is due and payable, including pursuant to any mandatory
redemption provision, but shall not include any contingent obligations to repay, redeem or repurchase any such principal prior
to the date originally scheduled for the payment thereof.
“
Submitting Party
” shall
have the meaning given to such term in Section 11.12.
“
Subordinated Obligation
”
shall mean any Indebtedness of the Borrower or any Guarantor (whether outstanding on the Closing Date or thereafter Incurred) that
is subordinated or junior in right of payment to the Loans and the Guarantees under Article 9 pursuant to a written agreement.
For the avoidance of doubt, such determination will be made without reference to the presence or absence of security in respect
of any such Indebtedness.
“
Subsidiary
” of any Person
shall mean (x) (1) any corporation, association or other business entity (other than a partnership, joint venture, limited liability
company, unlimited liability company or similar entity) of which more than 50% of the total ordinary voting power of shares of
Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof (or Persons performing similar functions) or (2) any partnership, joint venture, limited liability company, unlimited
liability company or similar entity of which more than 50% of the capital accounts, distribution rights, total equity and voting
interests or general or limited partnership interests, as applicable, is, in the case of clauses (1) and (2), at the time owned
or controlled, directly or indirectly, by (a) such Person, (b) such Person and one or more Subsidiaries of such Person or (c) one
or more Subsidiaries of such Person, and (y) any corporation, association or other business entity (including any partnership,
joint venture, limited liability company, unlimited liability company or similar entity) (1) as to which such Person possesses,
directly or indirectly, the power to direct or cause the direction of the management or policies thereof, whether through the ownership
of voting securities, by contract or otherwise and (2) which is consolidated with such Person pursuant to GAAP. Unless otherwise
specified herein, each reference to a Subsidiary will refer to a Subsidiary of the Borrower.
“
Successor Borrower
” shall
have the meaning given to such term in Section 7.6(a).
“
Successor Guarantor
” shall
have the meaning given to such term in Section 7.6(c).
“
Target
” shall have the
meaning given to such term in the preliminary statements of this Credit Agreement.
“
Term A Facility
” shall
mean the credit facility for the Term A Loans described in Section 2.1(a).
“
Term A Lender
” shall mean
each Lender that holds all or a portion of the Term A Facility.
“
Term A Loan
” shall have
the meaning given to such term in Section 2.1(a).
“
Term A Loan Commitment
”
shall mean, as to any Lender, the obligation of such Lender to make Term A Loans on the Closing Date pursuant to Section 2.1(a)
hereof, in an aggregate principal amount not to exceed the amount set forth opposite such Lender’s name on Schedule 1.1 attached
hereto and made a part hereof, as the same may be reduced pursuant to Section 2.10. The Borrower and the Term A Lenders
acknowledge and agree that the Term A Loan Commitments of the Term A Lenders aggregate $1,000,000,000 as of the date hereof.
“
Term A Loan Percentage
”
shall mean, for any Term A Lender, the percentage held by such Term A Lender of the aggregate principal amount of all Term A Loans
then outstanding.
“
Term A Note
” shall have
the meaning given to such term in Section 2.11(d).
“
Term A Termination Date
”
shall have the meaning given to such term in Section 2.7(a).
“
Term B Facility
” shall
mean the credit facility for the Term B Loans described in Section 2.1(b).
“
Term B Lender
” means any
Lender holding all or a portion of the Term B Facility.
“
Term B Loan
” shall have
the meaning given to such term in Section 2.1(b).
“
Term B Loan Commitment
”
shall mean, as to any Lender, the obligation of such Lender to make Term B Loans hereunder in an aggregate principal amount not
to exceed the amount set forth opposite such Lender’s name on Schedule 1.1 attached hereto and made a part hereof, as the
same may be reduced pursuant to Section 2.10. The Borrower and the Term B Lenders acknowledge and agree that the Term B Loan
Commitments of the Term B Lenders aggregate $2,000,000,000 as of the date hereof.
“
Term B Loan Percentage
”
shall mean, for any Term B Lender, the percentage held by such Term B Lender of the aggregate principal amount of all Term B Loans
then outstanding.
“
Term B Note
” shall have
the meaning given to such term in Section 2.11(d).
“
Term B Termination Date
”
shall have the meaning given to such term in Section 2.7(b).
“
Term Commitment Increase
”
shall have the meaning given to such term in Section 2.13(a).
“
Term Facilities
” shall
mean, collectively, the Term A Facility and the Term B Facility.
“
Term Loans
” shall mean,
collectively, the Term A Loans and the Term B Loans.
“
Term Loan Percentage
”
means any or all of the Term A Loan Percentage or the Term B Loan Percentage, as the context requires.
“
Termination
Date
”
shall mean the date on which (a) all Revolving
Credit Commitments shall have been terminated, (b) the principal of and interest on each Loan, all fees and all other expenses
or amounts payable under any Fundamental Document shall have been paid in full in cash (other than in respect of contingent indemnification
and expense reimbursement claims not then due), and
(c) all Letters of Credit (other than
those subject to an L/C Backstop) have been cancelled or have expired and all amounts drawn or paid thereunder have been reimbursed
in full in cash.
“
Test Period
” means, on
any date of determination, the period of four consecutive fiscal quarters of the Borrower most recently ended for which financial
statements of the Borrower have been (or were required to be) delivered by Section 6.1(a) or 6.1(b) of this Credit Agreement;
provided
that prior to the first date financial statements are required to be so delivered, the Test Period in effect shall
be the most recently ended full four fiscal quarter period prior to the Closing Date for which financial statements would have
been required to be delivered hereunder had the Closing Date occurred prior to the end of such period.
“
Title IV Plan
” shall mean
a Pension Plan (other than a Multiemployer Plan) that is covered by Title IV of ERISA or Section 412 of the Code that is maintained
or contributed to by any Credit Party, or any ERISA Affiliate, or with respect to which any Credit Party could otherwise have any
liability.
“
Total Assets
” shall mean
the total assets of the Borrower and its Restricted Subsidiaries on a consolidated basis, as shown on the most recent balance sheet
of the Borrower.
“
Trademark Security Agreement
”
shall have the meaning given to such term in the Pledge and Security Agreement.
“
Trademark Security Agreement Supplement
”
shall have the meaning given to such term in the Pledge and Security Agreement.
“
tranche
” shall have the
meaning given to such term in Section 2.14(a).
“
Transaction Expenses
”
shall mean any fees, costs or expenses incurred or paid by the Borrower or its Restricted Subsidiaries in connection with the Transactions.
“
Transactions
” shall mean,
collectively, (a) the transactions contemplated by this Credit Agreement and the other Fundamental Documents and the borrowing
of Loans hereunder, (b) the Acquisition and the transactions to occur pursuant to or in connection with the Merger Agreement, (c)
the issue and sale of the Senior Notes pursuant to the Senior Notes Indenture, (d) the entry into and borrowing of an aggregate
principal amount of $150,000,000 under the Bridge Credit Facility, (e) the consummation of the Closing Date Refinancing, (f) the
liquidation of FinanceCo immediately following the consummation of the Acquisition and (g) the payment of Transaction Expenses.
“
UCC
” shall mean the Uniform
Commercial Code as in effect in the State of New York on the date of execution of this Credit Agreement.
“
Unrestricted Cash
” means,
as of any date, all cash and Cash Equivalents owned by the Borrower or any Restricted Subsidiary which would not appear as “restricted”
on a consolidated balance sheet of the Borrower as of such date. For purposes of determining the ability under this Credit Agreement
to Incur any Incremental Facility, Incremental Equivalent Debt and any other Indebtedness permitted to be incurred under Section 7.1,
the proceeds of any such Incurred Indebtedness shall be disregarded in determining Unrestricted Cash when calculating the Net First
Lien Leverage Ratio and/or the Net Leverage Ratio as of such date.
“
Unrestricted Subsidiary
”
shall mean:
(1) any
Subsidiary of the Borrower that at the time of determination shall be designated an Unrestricted Subsidiary by the Borrower in
the manner provided below; and
(2) any
Subsidiary of an Unrestricted Subsidiary.
The Borrower may designate any Subsidiary
of the Borrower (including any newly acquired or newly formed Subsidiary or a Person becoming a Subsidiary through merger, amalgamation
or consolidation or Investment therein) to be an Unrestricted Subsidiary only if:
(1) such
Subsidiary (or any of its Subsidiaries) does not own any Capital Stock of any Subsidiary which, following such designation, will
remain a Restricted Subsidiary, or hold any Lien on any property of the Borrower or any Subsidiary which, following such designation,
will remain a Restricted Subsidiary of the Borrower;
(2) any
Guarantee by the Borrower or any Restricted Subsidiary of any Indebtedness of such Subsidiary (or any of its Subsidiaries) shall
be deemed an “Incurrence” of such Indebtedness and an “Investment” by the Borrower or such Restricted Subsidiary
and complies with Section 7.1;
(3) such
designation and the Investment of the Borrower in such Subsidiary complies with Section 7.2; and
(4) such
Subsidiary, either alone or in the aggregate with all other Unrestricted Subsidiaries, does not operate, directly or indirectly,
all or substantially all of the business of the Borrower and its Subsidiaries.
Any such designation by the Borrower shall
be evidenced to the Administrative Agent by filing with the Administrative Agent an Officers’ Certificate giving effect to
such designation and certifying that such designation complies with the foregoing conditions.
An Officer of the Borrower may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary;
provided
that
immediately after giving effect to such designation,
(X) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof and (Y) the Borrower
shall be in compliance with the financial ratios set forth in Section 7.9(a) and (b) for the relevant fiscal quarter on a
Pro Forma Basis.
For the avoidance of doubt, the Borrower shall
be permitted to designate any Subsidiary a Restricted Subsidiary or Unrestricted Subsidiary, in each case, in accordance with the
terms of this Credit Agreement, notwithstanding the designation of such Subsidiary under any other agreement,
provided
,
that no Subsidiary may be designated as an Unrestricted Subsidiary or subsequently re-designated as a Restricted Subsidiary unless
it is simultaneously so designated or re-designated, as applicable, under the Bridge Credit Facility and/or the Senior Notes, as
applicable (and to the extent outstanding).
Notwithstanding the foregoing, as of the Closing
Date, the Initial Unrestricted Subsidiaries and each of their Subsidiaries shall be Unrestricted Subsidiaries.
“
Unused Revolving Credit Commitments
”
means, at any time, the difference between the Revolving Credit Commitments then in effect and the aggregate outstanding principal
amount of Revolving Loans and L/C Obligations.
“
USA Patriot Act
” shall
mean the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) as amended, and the rules and regulations
thereunder and any successors thereto.
“
U.S. Subsidiary
” shall
mean any Subsidiary organized under the laws of the United States of America or any state thereof or the District of Columbia.
“
Voting Stock
” of a Person
shall mean all classes of Capital Stock of such Person then outstanding and normally entitled to vote in the election of directors,
managers or trustees, as applicable, of such Person.
“
Wholly-Owned Subsidiary
”
shall mean a Restricted Subsidiary, all of the Capital Stock of which (other than directors’ qualifying shares) is owned
by the Borrower or another Wholly-Owned Subsidiary.
“
Withdrawal Liability
”
shall mean any liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan,
as such terms are used in sections 4203 and 4205, respectively, of ERISA.
“
Write-Down and Conversion Powers
”
shall mean, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority
from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are
described in the EU Bail-In Legislation Schedule.
(b)
Interpretation
.
For the purposes hereof unless the context otherwise requires, all Section references herein shall be deemed to correspond with
Sections herein, the above terms shall have the meanings indicated, all accounting terms not otherwise defined herein shall have
the respective meanings accorded to them under GAAP and all terms defined in the UCC and not otherwise defined herein shall have
the respective meanings accorded to them therein. For purposes hereof, all references herein to “the date hereof” shall
mean December 8, 2016.
(c)
GAAP;
Change in Accounting Principles
. Except as otherwise expressly provided herein (including, for the avoidance of doubt, the
proviso in the definition of “Capitalized Lease Obligations”), all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time;
provided
, that if at any time, any change in GAAP
would affect the computation of any financial ratio or requirement in the Fundamental Documents and the Borrower notifies the Administrative
Agent that the Borrower requests an amendment (or if the Administrative Agent notifies the Borrower that the Required Lenders request
an amendment), the Administrative Agent, the Lenders and the Borrower shall, at no cost to the Borrower, negotiate in good faith
to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval
of the Required Lenders), regardless of whether any such notice is given before or after such change in GAAP or in the application
thereof, then such financial ratio or requirement shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such provision is amended in accordance herewith. Notwithstanding any other
provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations
of amounts and ratios referred to herein shall be made (i) without giving effect to any election under Accounting Standards Codification
825-10-25 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to
value any Indebtedness or other liabilities of the Borrower or any Subsidiary at “fair value”, as defined therein,
(ii) without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards
Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting
Standard having a similar result or effect)
to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times
be valued at the full stated principal amount thereof and (iii) for the avoidance of doubt, except as provided in the definition
of “Consolidated Net Income”, without giving effect to the financial condition, results and performance of the Unrestricted
Subsidiaries.
Section 2.1.
The
Term Loans
.
(a)
Subject
to the terms and conditions set forth herein, each Term A Lender agrees, severally and not jointly, to, and shall, make a term
loan (each individually, a “
Term A Loan
” and, collectively, the “
Term A Loans
”) in Dollars
to the Borrower on the Closing Date in a principal amount not to exceed such Term A Lender’s Term A Loan Commitment. As provided
in Section 2.5(a) and subject to the terms hereof, the Borrower may elect that the Term A Loans comprising the Borrowing hereunder
of Term A Loans be either Base Rate Loans and/or Eurodollar Loans.
(b)
Subject
to the terms and conditions set forth herein, each Term B Lender agrees, severally and not jointly, to, and shall, make a term
loan (each individually, a “
Term B Loan
” and, collectively, the “
Term B Loans
”) in Dollars
to the Borrower on the Closing Date in a principal amount not to exceed such Term B Lender’s Term B Loan Commitment. As provided
in Section 2.5(a) and subject to the terms hereof, the Borrower may elect that the Term B Loans comprising the Borrowing hereunder
of Term B Loans be either Base Rate Loans or Eurodollar Loans.
(c)
Amounts
repaid or prepaid in respect of Term Loans may not be reborrowed.
Section 2.2.
Revolving
Credit Commitments
. Prior to the Revolving Credit Termination Date, each Revolving 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 during the period from the
Closing Date to the Revolving Credit Termination Date up to the amount of such Lender’s Revolving Credit Commitment in effect
at such time;
provided
,
however
, that the sum of the aggregate principal amount of Revolving 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 Revolving 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. Notwithstanding the foregoing, the aggregate principal amount of Revolving Loans made
on the Closing Date shall not exceed (i) an amount equal to $150,000,000 to fund Transaction Expenses in connection with the Acquisition
plus
(ii) an amount equal to $100,000,000 to fund working capital needs in the ordinary course (including the refinancing
of existing Indebtedness Incurred for working capital needs in the ordinary course,
provided
that such Indebtedness was
not Incurred in anticipation or in contemplation of the Transactions to occur on the Closing Date).
Section 2.3.
Letters
of Credit
.
(a)
General
Terms
. Subject to the terms and conditions hereof, as part of the Revolving Facility, commencing with the Closing Date, the
Issuing Banks shall issue standby and documentary letters of credit (each, a “
Letter of Credit
”) for the Borrower’s
account and/or its Subsidiaries’ account (
provided
that
each shall be jointly and severally liable) in an aggregate
undrawn
face amount up to the L/C Sublimit;
provided
,
however
, that the sum of the Revolving Loans and L/C Obligations at any time outstanding shall not exceed the sum of all
Revolving Credit Commitments in effect at such time; and
provided
further
that no Issuing Bank shall have any obligation
to issue any Letter of Credit if, after giving effect to such issuance, the aggregate L/C Obligations in respect of Letters of
Credit issued by such Issuing Bank would exceed the amount stipulated for it in the definition of “Issuing Bank” (such
amount, such Issuing Bank’s “
Letter of Credit Commitment
”). Each Revolving Lender shall be obligated to
reimburse the Issuing Banks for such Revolving 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 Revolving Lender
pro rata in an amount equal to its Revolver Percentage of the L/C Obligations then outstanding. The Borrower may, at any time and
from time to time, reduce the Letter of Credit Commitment of any Issuing Bank with the consent of such Issuing Bank;
provided
that
the Borrower shall not reduce the Letter of Credit Commitment of any Issuing Bank if, after giving effect of such reduction,
the condition set forth in the last proviso in the first sentence of this Section 2.3(a) shall not be satisfied.
(b)
Applications
.
At any time after the Closing Date and before the Revolving Credit Termination Date, the Issuing Banks shall, at the request of
the Borrower, issue one or more Letters of Credit in Dollars, in form and substance acceptable to the applicable Issuing Bank,
with expiration dates no later than the earlier of (i) 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 (ii) five (5) Business 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
applicable Issuing Bank for the Letter of Credit requested (each an “
Application
”);
provided
that
any
Letter of Credit with a 12-month tenor may provide for the renewal thereof for additional 12-month periods (which shall in no event
extend beyond the date referred to in clause (ii) above, unless an L/C Backstop has been provided to the Issuing Bank thereof (it
being understood that the Participating Interests of the Participating Lenders shall terminate on the Revolving Credit Termination
Date). 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 2.12(b) hereof, and (ii) if the applicable Issuing Bank 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 such Issuing Bank 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 the
rate applicable to Base Rate Revolving Loans (including, if then applicable, Section 2.4(c)).
(c)
The
Reimbursement Obligations
. Subject to Section 2.3(b) hereof, the Borrower shall reimburse the applicable Issuing Bank
for all drawings under a Letter of Credit (a “
Reimbursement Obligation
”) by no later than (x) 4:00 p.m. (New
York time) on the Business Day after the date of such payment by such Issuing Bank under a Letter of Credit, if the Borrower has
been informed of such drawing by the applicable Issuing Bank on or before 10:00 a.m. (New York time) on the date of the payment
of such drawing, or (y) if notice of such drawing is given to the Borrower after 10:00 a.m. (New York time) on the date of the
payment of such drawing, reimbursement shall be made within two Business Days following the date of the payment of such drawing,
by the end of such day, in all instances in immediately available funds at the Administrative Agent’s principal office in
New York, New York 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 applicable Issuing Bank such amount(s) in like funds;
provided
, that
the Borrower may, subject to the conditions to borrowing set forth herein, request that such payment be financed with a Base Rate
Revolving Loan and, to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced
by the resulting Borrowing (and with interest owing thereon from the date of the respective disbursement). 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 relevant Reimbursement Obligations
shall be distributed in accordance with Section 2.3(d) below. In addition, for the benefit of the Administrative Agent, the
Issuing Banks 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 Credit 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 Issuing Banks or any Lender,
including without limitation (i) any lack of validity or enforceability of any Fundamental Document; (ii) any amendment or waiver
of or any consent to departure from all or any of the provisions of any Fundamental 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 Issuing Banks, any Lender or any other Person, whether in connection with this Credit
Agreement, another Fundamental Document, the transaction related to the Fundamental 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 an
Issuing Bank under a Letter of Credit against presentation to the Administrative Agent or an Issuing Bank of a draft or certificate
that does not comply with the terms of the Letter of Credit;
provided
that
the Administrative Agent’s or an Issuing
Bank’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 an Issuing Bank (as determined by the final, non-appealable
judgment of a court of competent jurisdiction); or (vi) any other act or omission to act or delay of any kind by the Administrative
Agent or an Issuing Bank, 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 Revolving Lender (other than the Lender acting as Issuing Bank) severally and not jointly agrees
to purchase from the Issuing Banks, and each Issuing Bank hereby agrees to sell to each such Revolving 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 Issuing Banks. Upon the Borrower’s
failure to pay any Reimbursement Obligation on the date and at the time required, or if an Issuing Bank 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 written notice from such Issuing Bank
(with a copy to the Administrative Agent) to such effect, if such notice is received before 12:00 noon, or not later than 12:00
noon the following Business Day, if such notice is received after such time, pay to the Administrative Agent for the account of
such Issuing Bank 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 such Issuing Bank 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 such Issuing Bank made the related payment to the
date two (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 two (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 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 each Issuing Bank retaining its Revolver Percentage thereof
as a Revolving Lender hereunder.
The several obligations of the Participating
Lenders to the Issuing Banks 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 Issuing Banks, 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 Revolving 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 Issuing Banks (to the extent
not reimbursed by the Borrower and without relieving the Borrower of its obligation to do so) against any cost, expense (including
reasonable counsel fees and disbursements), claim, demand, action, loss or liability (except as a result from any Issuing Bank’s
gross negligence or willful misconduct as determined by the final, non-appealable judgment of a court of competent jurisdiction)
that such Issuing Bank 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 Credit 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 and the applicable Issuing Bank (or such lesser notice as the Administrative Agent and the Issuing
Banks 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 applicable Issuing Bank, in each case, together with the fees called for by this Credit Agreement. The Issuing Banks shall
promptly notify the Administrative Agent and the Lenders of the issuance, extension or amendment of a Letter of Credit.
(g)
Conflict
with Application
. In the event of any conflict or inconsistency between this Credit Agreement and the terms of any Application,
the terms of this Credit Agreement shall control.
(h)
Existing
Letters of Credit
. Letters of credit of the Borrower, the Target and their respective Subsidiaries outstanding on the Closing
Date, if any, and set forth on
Schedule 2.3
shall be deemed issued under the Revolving Facility to the extent the applicable
letter of credit issuer under such facility is an Issuing Bank under the Revolving Facility.
(i)
Replacement
of Issuing Bank
. An Issuing Bank may be replaced by another Lender at any time by written agreement among the Borrower, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent shall notify the Lenders
of any such replacement of an Issuing Bank. At the time any such replacement shall become effective, the Borrower shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.12(b). From and after the effective
date of any such replacement, (i) the successor Issuing Bank shall have all the rights and obligations of the replaced Issuing
Bank under this Credit Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term
“Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and
all previous Issuing Banks, as the context shall require. After the replacement of an Issuing Bank hereunder, the replaced Issuing
Bank shall remain a party hereto and shall continue to have all the rights and obligations of such Issuing Bank under this Credit
Agreement with respect to Letters of Credit issued by it prior to such replacement but shall not be required to issue additional
Letters of Credit.
(j)
Additional
Issuing Banks
. From time to time, the Borrower may by notice to the Administrative Agent designate one or more additional Lenders
as an Issuing Bank, each of which agrees (in its sole discretion) to act in such capacity and is reasonably satisfactory to the
Administrative Agent. Each such additional Issuing Bank shall execute a counterpart of this Credit Agreement upon the approval
of the Administrative Agent (which approval shall not be unreasonably withheld) and shall thereafter be an Issuing Bank hereunder
for all purposes.
(k)
Provisions
Related to Extended Revolving Credit Commitments
.
If the maturity date in respect of any tranche of Revolving Credit
Commitments occurs prior to the expiration of any Letter of Credit issued under such tranche, then (i) if one or more other tranches
of Revolving Credit Commitments in respect of which the maturity date shall not have occurred are then in effect, (x) the outstanding
Revolving Loans shall be repaid pursuant to Section 2.7(c) on such maturity date to the extent and in an amount sufficient
to permit the reallocation of the L/C Exposure relating to the outstanding Letters of Credit contemplated by clause (y) below and
(y) such Letters of Credit shall automatically be deemed to have been issued (including for purposes of the obligations of the
Revolving Lenders to purchase participations therein and to make payments in respect thereof pursuant to Section 2.3(d)) under
(and ratably participated in by Revolving Lenders pursuant to) the Revolving Credit Commitments in respect of such non-terminating
tranches up to an aggregate amount not to exceed the aggregate principal amount of the Revolving Credit Commitments in respect
of such non-terminating tranches at such time (it being understood that (1) the participations therein of Revolving Lenders under
the maturing tranche shall be correspondingly released and (2) no partial face amount of any Letter of Credit may be so reallocated)
and (ii) to the extent not reallocated pursuant to the immediately preceding clause (i), but without limiting the obligations with
respect thereto, the Borrower shall provide an L/C Backstop with respect to any such Letter of Credit in a manner reasonably satisfactory
to the applicable Issuing Bank. If, for any reason, such L/C Backstop is not provided or the reallocation does not occur, the Revolving
Lenders under the maturing tranche shall continue to be responsible for their participating interests in the Letters of Credit;
provided
that
, notwithstanding anything to the contrary contained herein, upon any subsequent repayment of the Revolving
Loans, the reallocation set forth in clause (i) shall automatically and concurrently occur to the extent of such repayment (it
being understood that no partial face amount of any Letter of Credit may be so reallocated). Except to the extent of reallocations
of participations pursuant to clause (i) of the second preceding sentence, the occurrence of a maturity date with respect to a
given tranche of Revolving Credit Commitments shall have no effect upon (and shall not diminish) the percentage participations
of the Revolving Lenders in any Letter of Credit issued before such maturity date. Commencing with the maturity date of any tranche
of Revolving Credit Commitments, the L/C Sublimit under any tranche of Revolving Credit Commitments that has not so then matured
shall be as agreed by the Borrower with such Revolving Lenders;
provided
that
in no event shall such sublimit be less than
the sum of (x) the L/C Exposure with respect to the Revolving Lenders under such extended tranche immediately prior to such maturity
date and (y) the face amount of the Letters of Credit reallocated to such tranche of Revolving Credit Commitments pursuant to clause
(i) of the first sentence of this clause (k) (assuming Revolving Loans are repaid in accordance with clause (i)(x)).
(l)
Applicability
of ISP
. Unless otherwise expressly agreed by the applicable Issuing Bank and the Borrower when a Letter of Credit is issued,
the rules of the ISP shall apply to each standby Letter of Credit.
Section 2.4.
Applicable
Interest Rates
.
(a)
Base
Rate Loans
. Each Loan that is a Base Rate Loan made or maintained by a Lender shall bear interest (computed on the basis of
a year of 360 days (or, at times when the Base Rate is based on the Prime Rate, 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 for
Loans of the applicable Class, payable in arrears on each Interest Payment Date.
(b)
Eurodollar
Loans
. Each 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 Eurodollar Rate applicable for such Interest
Period for Loans of the applicable Class, payable in arrears on each Interest Payment Date.
(c)
Default
Rate
. If the Borrower shall default in the payment of any principal of or interest or fees on any Loan or any other amount
due hereunder, by acceleration or otherwise, or under any other Fundamental Document, then, until such defaulted amount shall have
been paid in full, the Borrower shall on demand from time to time pay interest, to the extent permitted by Applicable Law, on any
such overdue amount at a rate per annum at (i) in the case of Loans, 2% in excess of the rate then in effect for each such Loan
of the applicable Class and (ii) otherwise, 2% in excess of the rate applicable to Revolving Loans that are Base Rate Loans.
(d)
Applicable
Law
. Anything in this Credit Agreement or the Notes to the contrary notwithstanding, the interest rate on the Loans shall in
no event be in excess of the maximum rate permitted by Applicable Law.
(e)
Notwithstanding
any provision herein to the contrary and without limiting Section 2.4(d), if Canadian law applies to this Credit Agreement
or any Fundamental Document or to any payment made hereunder or thereunder, then in no event will the aggregate “interest”
(as defined in Section 347 of the
Criminal Code
(Canada)) payable by any Credit Party under this Credit Agreement or any
Fundamental Document exceed the maximum effective annual rate of interest on the “credit advanced” (as defined in that
Section 347) permitted under that Section and, if any payment, collection or demand pursuant to this Credit Agreement or any such
Fundamental Document in respect of “interest” (as defined in that Section 347) is determined to be contrary to the
provisions of such Section 347, such payment, collection or demand will be deemed to have been made by mutual mistake of such Credit
Party, the Administrative Agent and the applicable Lender or Lenders and the amount of such payment or collection will be refunded
to such Credit Party only to the extent of the amount which is greater than the maximum effective annual rate permitted by such
laws.
(f)
For
the purposes of this Credit Agreement, whenever interest is to be calculated on the basis of a period of time other than a calendar
year, the annual rate of interest to which each rate of interest determined pursuant to such calculation is equivalent for the
purposes of the Interest Act (Canada) is such rate as so determined multiplied by the actual number of days in the calendar year
in which the same is to be ascertained and divided by the number of days used in the basis of such determination.
Section 2.5.
Manner
of Borrowing 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: (i) 1:00 p.m. (New
York time) at least three (3) Business Days before the date on which the Borrower requests the Lenders to advance a Borrowing of
Loans that are Eurodollar Loans denominated in Dollars and (ii) noon (New York time) on the date the Borrower
requests the Lenders to advance a Borrowing
of Loans that are Base Rate Loans. The Loans included in each Borrowing of Loans shall bear interest initially at the type of rate
specified in such notice for Loans of such Class. Thereafter, with respect to Base Rate Loans and Eurodollar Loans that are denominated
in Dollars, the Borrower may from time to time elect to change or continue the type of interest rate borne by each Borrowing of
Loans or, subject to Section 2.6 hereof, a portion thereof, as follows: (i) if such Borrowing of 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 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 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 A
(Notice
of Borrowing) or
Exhibit B
(Notice of Continuation/Conversion), as applicable, or in such other form acceptable to the Administrative
Agent. Notice of the continuation of a Borrowing of Loans that are Eurodollar Loans for an additional Interest Period or of the
conversion of part or all of a Borrowing of Loans that are Base Rate Loans into Eurodollar Loans must be given by no later than
1:00 p.m. (New York time) at least three Business Days before the date of the requested continuation or conversion of a Borrowing
of Loans that are denominated in Dollars. All notices concerning the advance, continuation or conversion of a Borrowing of Loans
shall specify the Class of Loans as to which the notice relates, the date of the requested advance, continuation or conversion
of a Borrowing of 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. If no Interest Period is specified in any such
notice with respect to any conversion to or continuation as a Borrowing of Eurodollar Loans, the Borrower shall be deemed to have
selected an Interest Period of one month’s duration.
(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 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 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(a)
or (b), such Borrowing shall, at the end of the Interest Period applicable thereto, automatically be converted into a Borrowing
of Base Rate Loans (unless such Borrowing is a Borrowing of Term B Loans, in which case such Term B Loans shall be continued as
a Eurodollar Loan with an Interest Period of one month). In the event the Borrower fails to give notice pursuant to Section 2.5(a)
of a Borrowing of Loans equal to the amount of a Reimbursement Obligation and has not notified the Administrative Agent by 1:00
p.m. (New York time) on the day such Reimbursement Obligation becomes due that it intends to repay such Reimbursement Obligation
through funds not borrowed under this Credit Agreement, the Borrower shall be deemed to have requested a Borrowing of Loans that
are Base Rate Loans 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., New York City time, on the date of any requested advance of a new Borrowing of Loans, subject
to Article 5 hereof, each Lender
shall make available its Loan comprising part
of such Borrowing in funds immediately available at the principal office of the Administrative Agent in New York, New York. The
Administrative Agent shall promptly credit or wire transfer the proceeds of each new Borrowing of Loans to an account designated
by the Borrower in the applicable notice of borrowing; provided, that Borrowings made to finance the reimbursement of a Reimbursement
Obligation shall be remitted by the Administrative Agent to the applicable Issuing Bank.
(e)
Administrative
Agent Reliance on Lender Funding
. Unless the Administrative Agent shall have been notified by a Lender prior to the date (or,
in the case of a Borrowing of Base Rate Loans, by 1:00 p.m. on such date) on which such Lender is scheduled to make payment to
the Administrative Agent of the proceeds of a 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 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 two (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) the Overnight Bank Funding Rate,
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 two (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 immediately upon demand, the Borrower will, on demand, repay to the Administrative Agent the proceeds of the Loan attributable
to such Lender with interest thereon at a rate per annum equal to the interest rate applicable to the relevant Loan, but without
such payment being considered a payment or prepayment of a Loan under Section 3.6 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 applicable Facility shall
be in an amount not less than $1,000,000 or such greater amount that is an integral multiple of $500,000. Each Borrowing of Eurodollar
Loans advanced, continued or converted under the applicable Facility shall be in an amount equal to $1,000,000 or such greater
amount that is an integral multiple of $250,000. Without the Administrative Agent’s consent, there shall not be more than
twenty (20) Borrowings of Eurodollar Loans outstanding at any one time.
Section 2.7.
Maturity
of Loans
.
(a)
Scheduled
Payments of Term A Loans
. Subject to Section 2.14, 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 of each year, commencing on the last Business Day of such
month falling on or after the last Business Day of the first full fiscal quarter of the Borrower following the Closing Date, in
an aggregate amount equal to the following percentages of the aggregate principal amount of the Term A Loans made on the Closing
Date: (i) for the first four (4) quarterly installments, 1.25%; (ii) for the fifth (5
th
) through eighth (8
th
)
quarterly installments, 1.25%; (iii) for the ninth (9
th
) through twelfth (12
th
) quarterly installments, 1.75%;
(iv) for the thirteenth (13
th
) through sixteenth (16
th
) quarterly installments, 2.50%, and (v) for each quarterly
installment after such sixteenth (16
th
) quarterly installment, 2.50%, (which payments in each case shall be reduced
as a result of the application of
prepayments in accordance with the order of
priority set forth in Section 2.8(a), Section 2.8(c) and Section 2.8(e), as applicable); it being further agreed
that a final payment comprised of all principal and interest not sooner paid on the Term A Loans, shall be due and payable on December
8, 2021 (the “
Term A Termination Date
”).
(b)
Scheduled
Payments of Term B Loans
. Subject to Section 2.15, 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 of each year, commencing on the last Business Day of such
month falling on or after the last Business Day of the first full fiscal quarter of the Borrower following the Closing Date, in
an aggregate amount equal to 0.25% of the aggregate principal amount of the Term B Loans made on the Closing Date (which payments
in each case shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth
in Section 2.8(a), Section 2.8(c) and Section 2.8(e), as applicable); it being further agreed that a final payment
comprised of all principal and interest not sooner paid on the Term B Loans, shall be due and payable on December 8, 2023 (the
“
Term B Termination Date
”).
(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 Loans
.
(i)
The
Borrower may, at its option, upon notice as herein provided, prepay without premium or penalty (subject to the requirements of
Section 2.8(a)(ii) below and except as set forth in Section 3.6) at any time all, or from time to time any part of, the
Term Loans, in each case, in a minimum aggregate amount of $5,000,000 or such greater amount that is an integral multiple of $1,000,000
or, if less, the entire principal amount thereof then outstanding. The Borrower will give the Administrative Agent written notice
(or telephone notice promptly confirmed by written notice) of each prepayment under this Section 2.8 prior to 1:00 p.m. (New
York time) at least one Business Day in the case of Base Rate Loans and three (3) Business Days in the case of Eurodollar Loans
prior to the date fixed for such prepayment. Each such notice shall specify the date of such prepayment (which shall be a Business
Day), the principal amount of such Term Loans to be prepaid and the interest to be paid on the prepayment date with respect to
such principal amount being repaid. Such notice of prepayment may state that such notice is conditioned upon the effectiveness
of other credit facilities, indentures or similar agreements or other transactions, in which case such notice may be revoked by
the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.
Any prepayments made pursuant to this Section 2.8(a) shall be applied against the Class of Term Loans and the remaining scheduled
installments of principal due in respect of such Term Loans in the manner specified by the Borrower or, if not so specified on
or prior to the date of such optional prepayment, on a pro rata basis to all Classes of Term Loans in direct order of maturity
and may not be reborrowed.
(ii)
In
the event that, on or prior to the date that is twelve (12) months after the Closing Date, the Borrower (x) prepays, repays, refinances,
substitutes or replaces any Term B Loans in connection with a Repricing Transaction (including, for the avoidance of doubt, any
prepayment made pursuant to Section 2.8(c)(i) that constitutes a Repricing Transaction), or (y) effects any amendment, waiver
or other modification of, or consent under, this Credit Agreement resulting in a Repricing Transaction (including in connection
with the replacement of any Term B Lender which is replaced pursuant to Section 3.7 as a result of its refusal to consent
to an amendment giving rise to such Repricing Transaction), the Borrower shall pay to the Administrative Agent, for the ratable
account of each of the applicable Term B Lenders, (A) in the case of clause (x), a premium of 1.00% of the aggregate principal
amount of the Term B Loans so prepaid, repaid, refinanced, substituted
or replaced and (B) in the case of clause (y), a fee equal to 1.00% of the aggregate principal amount of the Term B Loans outstanding
immediately prior to such amendment, waiver, modification or consent that are the subject of such Repricing Transaction. All such
amounts shall be due and payable on the date of effectiveness of such Repricing Transaction.
(b)
Voluntary
Prepayments of Revolving Loans
.
The Borrower may prepay without
premium or penalty (except as set forth in Section 3.6) and in whole or in part any Borrowing of (i) Revolving Loans
that are Eurodollar Loans at any time upon at least three (3) Business Days’ prior notice by the Borrower to the
Administrative Agent or (ii) Revolving Loans that are Base Rate Loans at any time upon at least one Business
Day’s prior notice by the Borrower to the Administrative Agent (in the case of each of clauses (i) and (ii), such
notice must be in writing (or telephone notice promptly confirmed by written notice) and received by the Administrative Agent
prior to 2:00 p.m. (New York time) on such date), 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, accrued interest thereon to the date fixed for prepayment
plus
any
amounts due the Lenders under Section 3.6;
provided
,
however
, that the Borrower may not partially repay a
Borrowing (i) if such Borrowing is of Base Rate Loans, in a principal amount less than $250,000, and (ii) if such Borrowing
is of Eurodollar Loans, in a principal amount less than $500,000, except, in each case, in such lesser amount of the entire
principal amount thereof then outstanding. Any such notice of prepayment may state that such notice is conditioned upon the
effectiveness of other credit facilities, indentures or similar agreements or other transactions, in which case such notice
may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied.
(c)
Mandatory
Prepayments
.
(i)
From
and after the Closing Date, if the Borrower or any Restricted Subsidiary shall at any time or from time to time incur any Indebtedness
(other than with respect to any Indebtedness permitted to be incurred pursuant to Section 7.1 (other than Refinancing Indebtedness,
Refinancing Notes and Refinancing Term Loans and Replacement Credit Commitments to the extent the proceeds are used to finance
Term Loans)), then promptly and in any event within five (5) Business Days of receipt by the Borrower or the Restricted Subsidiary
of the Net Cash Proceeds from the incurrence of such Indebtedness, the Borrower shall prepay the Term Loans in an aggregate amount
equal to 100% of the amount of all such Net Cash Proceeds (less any Net Cash Proceeds utilized to repay amounts outstanding under
the Bridge Credit Facility). The amount of each such prepayment shall be applied to the outstanding Term Loans of each Class,
pro
rata
, until paid in full.
(ii)
From
and after the Closing Date, if the Borrower or any Restricted Subsidiary shall at any time or from time to time make any Asset
Sale or shall suffer an Event of Loss resulting in Net Available Cash in excess of $60,000,000 in the aggregate for all such Asset
Sales or Events of Loss in any fiscal year of the Borrower, then promptly and in any event within five (5) Business Days of receipt
by the Borrower or the Restricted Subsidiary of the Net Available Cash of such Asset Sale or such Event of Loss, the Borrower shall
prepay the Term Loans in an aggregate amount equal to 100% of the amount of all such Net Available Cash (less any Net Available
Cash utilized to repay amounts outstanding under the Bridge Credit Facility) in excess of the amount specified above;
provided
that
, in the case of each Asset Sale and Event of Loss, if the Borrower or the applicable Restricted Subsidiary intends to
invest or reinvest, as applicable, within twelve (12) months of the later of the date of the applicable Asset Sale or receipt of
Net Available Cash from an Event of Loss, the Net Available Cash thereof in Additional Assets, or make capital expenditures that
are used or useful in a Related Business or that replace the businesses, properties and/or assets that are the subject of such
Asset Sale or Event of Loss (the “
Reinvested Deferred Amount
”), then the Borrower shall not be required to make
a mandatory
prepayment under this Section in respect of
such Reinvested Deferred Amount to the extent such Reinvested Deferred Amount is actually invested or reinvested within such twelve-month
period, or the Borrower or a Restricted Subsidiary has committed to so invest or reinvest such Reinvested Deferred Amount during
such twelve-month period and such Reinvested Deferred Amount is so reinvested within 180 days after the expiration of such twelve-month
period;
provided
,
however
, that if any Reinvested Deferred Amount has not been so invested or reinvested prior to
the expiration of the applicable period, the Borrower shall promptly prepay the Term Loans in the amount of such Reinvested Deferred
Amount in excess of the amount specified above not so invested or reinvested;
provided
,
further
, that if, at the
time that any such prepayment would be required hereunder, the Borrower is required to prepay or offer to repurchase any other
Indebtedness secured on a
pari passu
basis (or any Refinancing Indebtedness in respect thereof that is secured on a
pari
passu
basis) with the Obligations pursuant to the terms of the documentation governing such Indebtedness with such Net Available
Cash (such Indebtedness (or Refinancing Indebtedness in respect thereof) required to be prepaid or offered to be so repurchased,
the “
Other Applicable Indebtedness
”), then the Borrower may apply such Net Available Cash on a
pro rata
basis
to the prepayment of the Term Loans and to the repurchase or prepayment of the Other Applicable Indebtedness (determined on the
basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness (or accreted amount if
such Other Applicable Indebtedness is issued with original issue discount)) at such time;
provided
that the portion of such
Net Available Cash allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Available Cash required
to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net
Available Cash shall be allocated to the Term Loans in accordance with the terms hereof, and the amount of the prepayment of the
Term Loans that would have otherwise been required pursuant to this Section 2.8(c)(ii) shall be reduced accordingly. The amount
of each such prepayment shall be applied to the outstanding Term Loans of each Class
pro rata
, until paid in full.
(iii)
No
later than the fifth (5th) Business Day after the date on which financial statements with respect to each fiscal year of the Borrower
are required to be delivered pursuant to Section 6.1(b) (beginning with the first full fiscal year ended after the Closing
Date), the Borrower shall prepay the then outstanding Term B Loans by an amount equal to (A) 50% of Excess Cash Flow of the Borrower
and its Restricted Subsidiaries for the most recently completed fiscal year of the Borrower;
provided
that
the foregoing
percentage shall be reduced to 25% when the Net First Lien Leverage Ratio calculated on a Pro Forma Basis as of the last day of
the relevant fiscal year is equal to or less than 4.50 to 1.00, and 0% when the Net First Lien Leverage Ratio calculated on a Pro
Forma Basis as of the last day of the relevant fiscal year is equal to or less than 4.00 to 1.00
minus
(B) the principal
amount of (1) any Term Loans and, to the extent
pari passu
with the Term Loans in right of payment and with respect to security,
Incremental Term Loans, Incremental Equivalent Debt, Refinancing Term Loans and Refinancing Notes and (2) any Revolving Loans and
Incremental Revolving Loans (in each case, to the extent accompanied by a permanent reduction of the relevant revolving commitment)
voluntarily prepaid pursuant to paragraphs (a) and (b) of this Section 2.8 or purchased by the Borrower or any of its Subsidiaries
in cash pursuant to Section 11.3 (with the amount of the deduction pursuant to this subclause (B) for Loans purchased pursuant
to Section 11.3 being limited to the amount of cash paid by the Borrower or any of its Subsidiaries in connection therewith)
or voluntarily prepaid or purchased during such fiscal year;
provided
that
no such voluntary prepayments or purchases shall
reduce the payments required to be made under this Section 2.8(c)(iii) to the extent financed with long-term Indebtedness.
The amount of each such prepayment shall be applied to the outstanding Term B Loans
pro rata
until paid in full. Any payment
under this clause (iii) shall be an “
ECF Payment
.”
(iv)
The
Borrower shall, on each date the Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Revolving Loans
and, if necessary after such Revolving Loans have been repaid in full, replace or cause to be cancelled (or provide an L/C Backstop
or make other arrangements reasonably satisfactory to the Issuing Banks) outstanding Letters of Credit by the
amount, if any, necessary to reduce the sum
of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving
Credit Commitments have been so reduced.
(v)
Notwithstanding
any provision under this Section 2.8(c) to the contrary, (A) any amounts that would otherwise be required to be paid by the
Borrower pursuant to Section 2.8(c)(ii) above shall not be required to be so prepaid to the extent any such Asset Sale is
consummated by a Subsidiary or such Net Available Cash in respect of any Event of Loss are received by a Subsidiary, for so long
as the repatriation to the United States, Canada or other relevant jurisdiction of any such amounts would be prohibited under any
Applicable Law (including any such laws with respect to financial assistance, corporate benefit, thin capitalization, capital maintenance,
liquidity maintenance and similar legal principles, restrictions on upstreaming of cash intra group and the fiduciary and statutory
duties of the directors of the relevant Subsidiaries) and (B) if the Borrower determines in good faith that the repatriating of
any amounts required to mandatorily prepay the Loans pursuant to Section 2.8(c)(ii) above would result in a tax liability
that is material to the amount of funds otherwise required to be repatriated (including any withholding tax) (such amount in clauses
(A) and (B), a “
Restricted Asset Sale Amount
”), the amount the Borrower shall be required to mandatorily prepay
pursuant to Section 2.8(c)(ii) shall be reduced by the Restricted Asset Sale Amount until such time as it may repatriate such
Restricted Asset Sale Amount without incurring such tax liability.
(vi)
Notwithstanding
any provision under this Section 2.8(c) to the contrary, for purposes of calculating the amount of the ECF Payment in Section 2.8(c)(iii),
“Excess Cash Flow” will be deemed to be reduced by the amount of Excess Cash Flow generated by a Subsidiary (A) that
would be prohibited under any Applicable Law (including any such laws with respect to financial assistance, corporate benefit,
thin capitalization, capital maintenance, liquidity maintenance and similar legal principles, restrictions on upstreaming of cash
intra group and the fiduciary and statutory duties of directors of the relevant Subsidiaries) from being repatriated to the United
States, Canada or other relevant jurisdiction or (B) that the Borrower determines in good faith would result in a tax liability
that is material to the amount of funds otherwise required to be repatriated (including any withholding tax) if repatriated to
the United States, Canada or other relevant jurisdiction (the amount of such Foreign Subsidiary Excess Cash Flow in clauses (A)
and (B) without duplication, the “
Restricted ECF Amount
”);
provided
that
such amounts in clause (A) shall
only constitute a Restricted ECF Amount for so long as such repatriation to the United States, Canada or other relevant jurisdiction
is prohibited under Applicable Laws, and in clause (B) shall only constitute Restricted ECF Amount for so long as such repatriation
would result in such tax liability.
(vii)
Notwithstanding
the foregoing, each Term B Lender shall have the right to reject its applicable Term Loan Percentage of any mandatory prepayment
of the Term Loans pursuant to Section 2.8(c)(i) (other than Refinancing Indebtedness in respect of the Term Loans), (ii) and
(iii) above (each such Lender, a “
Rejecting Lender
”);
provided
that
any amount rejected by a Rejecting
Lender shall be offered on a
pro rata
basis to the Term A Lenders, which they may elect to decline such prepayment, and
thereafter any amounts so rejected may be retained by the Borrower.
(viii)
Unless
the Borrower otherwise directs, prepayments of Revolving Loans under this Section 2.8(c) shall be applied first to Borrowings
of 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(c) shall be made by the payment of the principal
amount to be prepaid and, in the case of any Term Loans or Eurodollar Loans, accrued interest thereon to the date of prepayment
together with any amounts due the Lenders under Section 3.6. Except as otherwise provided in Section 2.8(c)(i), Section 2.8(c)(ii)
or Section 2.8(c)(iii), mandatory prepayments of the Term Loans shall be applied to each Class of Term Loans on a
pro rata
basis. All mandatory
prepayments shall be applied to the installments
of the Term Loans being repaid in the direct order of maturity other than with respect to that portion of any installment held
by a Rejecting Lender.
(d)
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(b) 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(c) 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 (d). “
Default Excess
” means, with respect to any Defaulting Lender, the excess,
if any, of such Defaulting Lender’s Percentage of the aggregate 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.
(e)
The
Administrative Agent will promptly advise each Lender of any notice of prepayment it receives from the Borrower, and in the case
of any partial prepayment under Section 2.8(a) hereof, such prepayment shall be applied to the Class of Term Loans and the
remaining amortization payments on such Term Loans in the manner specified by the Borrower or, if not so specified on or prior
to the date of such optional prepayment, on a pro rata basis to all Classes of Term Loans in the direct order of maturity.
Section 2.9.
Place
and Application of Payments
.
(a)
Each
borrowing of a Class of Loans from the Lenders thereunder shall be made pro rata according to the Percentages of the applicable
Lenders of such Class in effect on the date of such borrowing. Except as otherwise provided in this Credit Agreement, each payment
on account of any Commitment Fee shall be allocated by the Administrative Agent among the Lenders under the applicable Class in
accordance with their respective Percentages. Except as otherwise provided in this Credit Agreement, any reduction of a Class of
Revolving Credit Commitments of the Lenders shall be allocated by the Administrative Agent among the Revolving Lenders pro rata
according to the Percentages of the Revolving Lenders with respect thereto. Except as otherwise provided in this Credit Agreement,
each payment (including each prepayment) by the Borrower hereunder on account of principal, interest or commitment fees on a Class
of its Loans shall be allocated by the Administrative Agent pro rata to the Lenders of such Class according to the respective outstanding
principal amounts thereof.
(b)
All
payments of principal of and interest on the Loans and the Reimbursement Obligations, and of all other fees and amounts payable
by the Borrower under this Credit Agreement and the other Fundamental Documents, shall be made by the Borrower to the Administrative
Agent by no later than 2:00 p.m. on the due date thereof at the office of the Administrative Agent in New York, New York (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 10.2. 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 Credit
Agreement.
(c)
Anything
contained herein to the contrary notwithstanding, (x) pursuant to the exercise of remedies under Section 8.2 and Section 8.3
hereof or (y) after written instruction by the Required Lenders or Required RC/TLA Lenders, as applicable, 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, shall be remitted to
the Administrative Agent and distributed as follows:
(i)
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 Fundamental Documents, and in any event all costs and expenses of a character which the Borrower has agreed to
pay the Administrative Agent under Section 11.4 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);
(ii)
second
,
to the payment of any outstanding interest and fees due under the Fundamental Documents to be allocated pro rata in accordance
with the aggregate unpaid amounts owing to each holder thereof;
(iii)
third
,
to the payment of principal on the Term 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 8.4 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 Issuing Bank), any
unpaid amounts in respect of Specified Swap Agreements and Specified Cash Management Agreements, the aggregate amount paid to (or
held as collateral security for) the Lenders and, in the case of Specified Swap Agreements and Specified Cash Management Agreements,
their Affiliates, to be allocated pro rata in accordance with the aggregate unpaid amounts owing to each holder thereof;
(iv)
fourth
,
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 to be allocated pro rata in accordance with the aggregate unpaid amounts owing
to each holder thereof; and
(v)
fifth
,
to the Borrower or whoever else may be lawfully entitled thereto.
Notwithstanding the foregoing, no amounts
received from any Guarantor shall be applied to any Excluded Swap Obligations of such Guarantor.
Section 2.10.
Commitment
Terminations
.
(a)
The
Term B Loan Commitments and the Term A Loan Commitments shall automatically terminate upon the making of the Term Loans on the
Closing Date.
(b)
The
Borrower shall have the right at any time and from time to time, upon three Business Days’ prior written notice to the Administrative
Agent (which notice may conditioned upon the effectiveness of other credit facilities, indentures or similar agreements or other
transactions, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the
specified effective date) if such condition is not satisfied), to terminate the Revolving Credit Commitments in whole or in part,
any partial termination to be (i) in an amount not less than $500,000 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 and of L/C Obligations then outstanding;
provided
further
that all Revolving Credit Commitments shall terminate automatically
on the Revolving Credit Termination Date. 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. The Administrative Agent shall give prompt notice to each Lender of any such termination
(in whole or in part) 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.
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, the Class
thereof, the type thereof and, with respect to Eurodollar 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 clauses (a) and (b) above shall be prima facie evidence of the existence
and amounts of the Loans and interest 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 such Loans 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 C-1
(in the case of
its Term A Loan and referred to herein as a “
Term A Note
”),
Exhibit C-2
(in the case of its Term B Loan
and referred to herein as a “
Term B Note
”),
Exhibit C-3
(in the case of its Revolving Loans and
referred to herein as a “
Revolving Note
”), as applicable (the Term A Notes, Term B Notes and Revolving Notes
being hereinafter referred to collectively as the “
Notes
” and individually as a “
Note
”).
In such event, the Borrower shall prepare, execute and deliver to such Lender a Note payable to such Lender in the amount of such
Lender’s Percentage of the applicable Term Loan or Revolving Credit Commitment, 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 11.3) be
represented by one or more Notes, 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 2.12.
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 a rate per annum equal to the applicable Commitment Fee Rate (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 each Fee Payment Date (commencing on the first such date occurring
after the Closing Date).
(b)
Letter
of Credit Fees
. Quarterly in arrears, on each Fee Payment Date, commencing on the first such date occurring after the Closing
Date, the Borrower shall pay to the Issuing Banks for their own account a fronting fee equal to 0.125% of the face amount of (or
of the increase in the face amount of) each outstanding Letter of Credit. Quarterly in arrears, on each Fee Payment Date, commencing
on the first such date occurring after the Closing Date, 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
then in effect with respect to Eurodollar Loans under the Revolving Facility (computed on the basis of a year of 360 days and the
actual number of days elapsed) during each day of such quarter applied to the daily average face amount of Letters of Credit outstanding
during such quarter;
provided
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 Issuing Banks for their own account the Issuing Banks’ standard drawing, 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 Issuing Banks from time to time.
(c)
Administrative
Agent Fees
. The Borrower agrees to pay to the Administrative Agent, for its own account, the administrative fees payable in
the amounts and at the times separately agreed upon between the Borrower and the Administrative Agent pursuant to the Administrative
Agent Fee Letter or otherwise.
(d)
Fees Generally
. All fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate, among the applicable Lenders, except that the
Borrower shall pay the fronting fees directly to the applicable Issuing Bank. Once paid when due and payable, none of the
fees shall be refundable under any circumstances.
Section 2.13.
Incremental
Credit Extensions
.
(a)
At
any time and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower may,
by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly make such notice available to each of
the Lenders), pursuant to an Incremental Amendment (“
Incremental Amendment
”) request to effect (i) one or more
additional term loan facilities hereunder or increases in the aggregate amount of any Term Facility (each such increase, a “
Term
Commitment Increase
”) from one or more Additional Term Lenders or (ii) one or more additional revolving credit facilities
(each such additional facility, an “
Incremental Revolving Credit Facility
”) or increases in the aggregate amount
of the Revolving Credit Commitments (each such increase, a “
Revolving Credit Commitment Increase
” and together
with any Term Commitment Increase, any Incremental Term Facility and any Incremental Revolving Credit Facility, a “
Commitment
Increase
”) from Additional Revolving Lenders;
provided
that
, unless otherwise provided below, upon the effectiveness
of each Incremental Amendment:
(A)
except
as otherwise agreed by the Additional Term Lenders providing an Incremental Facility to finance a Specified Acquisition permitted
under this Credit Agreement, (i) no Default or Event of Default shall have occurred and be continuing or would exist after giving
effect thereto, and (ii) the representations and warranties made by the Credit Parties pursuant to the Fundamental Documents shall
be true and correct in all material respects (or in all respects, if qualified by materiality);
provided
that representations
and warranties that are expressly stated to be as of an earlier date shall be accurate in all material respects as of such earlier
date (or in all respects, if qualified by materiality) immediately prior to, and after giving effect to, the incurrence of such
Incremental Facility,
(B)
so
long as any Revolving Credit Commitments or Term A Loans are outstanding on such date, on the date of the incurrence or effectiveness
of such Incremental Facility (in the case of the incurrence or effectiveness of an Incremental Revolving Credit Facility, assuming
such Incremental Revolving Credit Facility has been drawn in full), the Borrower shall be in compliance, on a Pro Forma Basis,
with the financial ratios set forth in Section 7.9(a) and (b) for the relevant fiscal quarter;
(C)
each
Incremental Term A Facility shall have a final maturity date no earlier than the Term A Termination Date then in effect,
(D)
each
Incremental Term B Facility and each other Incremental Term Facility (other than an Incremental Term A Facility) shall have a final
maturity date no earlier than the Term B Termination Date then in effect,
(E)
the
Average Life of any Incremental Term A Loans shall not be shorter than the Average Life of the Term A Loans then outstanding,
(F)
the
Average Life of any Incremental Term B Loans and any other Incremental Term Loans (other than Incremental Term A Loans) shall not
be shorter than the Average Life of the Term B Loans then outstanding,
(G)
any
Incremental Revolving Loans will mature no earlier than, and will require no scheduled amortization or mandatory reduction of the
commitments related thereto prior to, the Revolving Credit Termination Date then in effect and all other terms of any such Incremental
Revolving Credit Facility shall be substantially identical to the Revolving Facility,
(H)
the
interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower and the
Additional Lenders providing such Incremental Term Facility or Incremental Term Loans;
provided
that
, in the case of Incremental
Term Loans (other than Incremental Term A Loans) or Incremental Term Facilities (other than Incremental Term A Facilities) that
are secured
pari passu
in right of payment and with respect to security with any then existing Term B Loans (the “
Relevant
Existing Facility
”), such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable
to the Relevant Existing Facility unless the interest rate with respect to the Relevant Existing Facility is adjusted to be equal
to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility,
minus
0.50%;
provided
,
further
, that in determining the applicable interest rate under this clause (H): (w) original issue discount or upfront
fees paid in connection with the Relevant Existing Facility or such Incremental Term Facility or Incremental Term Loans (based
on a four-year average life to maturity), shall be included assuming a four year life to maturity, (x) any amendments to or changes
in the Applicable Margin with respect to the Relevant Existing Facility that became effective subsequent to the Closing Date but
prior to the time of (or concurrently with) the addition of such Incremental Term Facility or Incremental Term Loans shall be included,
(y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their
affiliates) in their respective capacities as such in connection with the
Relevant Existing Facility or to one or more
arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans
shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor which is
less or greater than that applicable to the Relevant Existing Facility, and a floor is applicable to the Relevant Existing Facility
on the date of determination, such lesser or greater amount shall correspondingly reduce or increase interest margin for determining
the increase,
(I)
all
Incremental Term Facilities shall rank
pari passu
or junior in right of payment and right of security in respect of the
Collateral with the Term Loans or may be unsecured;
provided
that
to the extent any such Incremental Term Facilities are
subordinated in right of payment or right of security, or
pari passu
in right of security and subject to separate documentation,
they shall be subject to an Intercreditor Agreement,
(J)
no Incremental Facility shall be guaranteed by any Person which is not a Credit
Party,
(K)
any
mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans that are
pari passu
in right
of payment with any then-existing Term Loans shall be made on a pro rata basis with such then-existing Term Loans (and all other
then-existing Incremental Term Loans requiring ratable prepayment), except that the Borrower and the Additional Lenders in respect
of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any
prepayments on a less than pro rata basis (but not on a greater than pro rata basis), notwithstanding anything in this Credit Agreement
or any other Fundamental Document to the contrary,
(L)
the
Borrower shall have delivered to the Administrative Agent a certificate of a financial officer certifying to the effect set forth
in subclauses (A) and (B), if applicable, above, together with, if applicable, reasonably detailed calculations demonstrating compliance
with subclause (B) above, and
(M)
to
the extent the terms of any Incremental Term Loans are not substantially identical to the terms applicable to the relevant Term
Facility (except with respect to pricing and fees and to the extent permitted by the foregoing clauses above and other than any
terms which are applicable only after the then-existing maturity date with respect to the relevant Term Facility), such terms shall
be reasonably satisfactory to the Administrative Agent.
(b)
Notwithstanding
anything to contrary herein, the aggregate principal amount of all Commitment Increases shall not exceed (i) $500,000,000 (less
the aggregate principal amount of Incremental Equivalent Debt incurred pursuant to Section 7.1(c)(i)(B) in reliance on this
clause (i) of the Incremental Cap) (the “
Fixed Dollar Incremental Amount
”),
plus
(ii) an unlimited amount
so long as in the case of this clause (ii), the Net First Lien Leverage Ratio does not exceed 4.50 to 1.00, determined on a Pro
Forma Basis after giving effect to such Commitment Increase and the application of the proceeds thereof and any related transaction,
assuming (x) that all such Indebtedness incurred pursuant to such Commitment Increase (including the Incremental Equivalent
Debt) is secured on a first lien basis even if not so secured, and (y) in the case of an Incremental Revolving Credit Facility,
such Incremental Revolving Credit Facility has been drawn in full as of the last day of the most recently ended period of four
consecutive fiscal quarters for which financial statements have been or were required to be delivered pursuant to Section 6.1(a)
and Section 6.1(b) (such amount under this clause (ii), the “
Ratio-Based Incremental Amount
”);
provided
,
that any Incremental Facility may be incurred under either clause (i) or clause (ii) as selected by the Borrower in its sole discretion,
including by designating any portion of any Incremental Facility in excess of an amount permitted to be incurred under clause (ii)
at the time of such
incurrence as incurred under clause (i), and
unless the Borrower otherwise elects, any portion of any Commitment Increase that could be established in reliance on this clause
(ii) at the time of incurrence shall be deemed to have been incurred in reliance on the Ratio-Based Incremental Amount without
reducing the Fixed Dollar Incremental Amount(the total aggregate amount described under clauses (i) and (ii) hereof, the “
Incremental
Cap
”). Each Commitment Increase shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000
million in excess thereof;
provided
that
such amount may be less than $10,000,000 if such amount represents all the remaining
availability under the aggregate principal amount of Commitment Increases set forth above. No Lender shall be obligated to
provide any Commitment Increase unless it so agrees.
(c)
Each
notice from the Borrower pursuant to this Section 2.13 shall set forth the requested amount of the relevant Commitment Increase.
(d)
Upon
the implementation of any Incremental Revolving Credit Facility or Revolving Credit Commitment Increase pursuant to this Section 2.13,
(A) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned
to each relevant Additional Revolving Lender, and each relevant Additional Revolving Lender will automatically and without further
act be deemed to have assumed a portion of such Revolving Lender’s Participating Interests such that, after giving effect
to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Additional Revolving
Lender’s) Participating Interests shall be held on a pro rata basis on the basis of their Revolver Percentage (after giving
effect to any Revolving Credit Commitment Increase) and (B) the existing Revolving Lenders of the applicable Class shall assign
Revolving Loans to certain other Revolving Lenders of such Class (including the Additional Revolving Lenders providing the relevant
Revolving Credit Commitment Increase), and such other Revolving Lenders (including the Additional Revolving Lenders providing the
relevant Revolving Credit Commitment Increase) shall purchase such Revolving Loans, in each case to the extent necessary so that
all of the Revolving Lenders of such Class participate in each outstanding Borrowing of Revolving Loans of such Class pro rata
on the basis of their Revolver Percentage (after giving effect to any Revolving Credit Commitment Increase); it being understood
and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Credit
Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(e)
Effective
on the date of each Incremental Revolving Credit Facility the maximum amount of L/C Exposure permitted hereunder shall increase
by an amount, if any, agreed upon by the Administrative Agent, the Issuing Banks and the Borrower;
provided
that
the L/C
Exposure shall not exceed the Revolving Facility Commitment after giving effect to the Incremental Revolving Credit Facility.
(f)
An
Incremental Amendment may, subject to Section 2.13(a), without the consent of any other Lenders, effect such amendments to
this Credit Agreement and the other Fundamental Documents as may be necessary, in the reasonable opinion of the Administrative
Agent and the Borrower, to effect the provisions of this Section 2.13 (including, in connection with a Revolving Credit Commitment
Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders).
Section 2.14.
Extensions
of Term Loans and Revolving Credit Commitments
.
(a)
Notwithstanding
anything to the contrary in this Credit Agreement, pursuant to one or more offers (each, an “
Extension Offer
”)
made from time to time by the Borrower after the Closing Date to all Lenders holding Term A Loans or Term B Loans, with a like
maturity date or
Revolving Credit Commitments with a like maturity
date, in each case on a pro rata basis (based on the aggregate outstanding principal amount of the respective Term Loans or Revolving
Credit Commitments with a like maturity date, as the case may be) and on the same terms to each such Lender, the Borrower is hereby
permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Extension
Offers to extend the maturity date of all or a portion of each such Lender’s Term Loans and/or Revolving Credit Commitments
and otherwise modify the terms of such Term Loans and/or Revolving Credit Commitments pursuant to the terms of the relevant Extension
Offer (including by increasing the interest rate or fees payable in respect of such Term Loans and/or Revolving Credit Commitments
(and related outstandings) and/or modifying the amortization schedule in respect of such Term Loans) (each, an “
Extension
,”
and each group of Term Loans or Revolving Credit Commitments, as applicable, in each case as so extended, as well as the original
Term Loans and the original Revolving Credit Commitments (in each case not so extended), being a “
tranche
”;
any Extended Term Loans shall constitute a separate tranche of Term Loans from the tranche of Term Loans from which they were converted
and any Extended Revolving Credit Commitments shall constitute a separate tranche of Revolving Credit Commitments from the tranche
of Revolving Credit Commitments from which they were converted), so long as the following terms are satisfied:
(i)
no
Default or Event of Default shall have occurred and be continuing at the time the offering document in respect of an Extension
Offer is delivered to the Lenders;
(ii)
except
as to interest rates, fees and final maturity (which shall be determined by the Borrower and set forth in the relevant Extension
Offer), the Revolving Credit Commitment of any Lender that agrees to an extension with respect to such Revolving Credit Commitment
extended pursuant to an Extension (an “
Extended Revolving Credit Commitment
”; and the Loans thereunder, “
Extended
Revolving Loans
”), and the related outstandings, shall be a Revolving Credit Commitment (or related outstandings, as
the case may be) with the same terms (or terms not less favorable to existing Lenders) as the original Revolving Credit Commitments
(and related outstandings);
provided
that
(x) subject to the provisions of Section 2.3(k) to the extent dealing with
Letters of Credit which mature or expire after a maturity date when there exist Extended Revolving Credit Commitments with a longer
maturity date, all Letters of Credit shall be participated in on a pro rata basis by all Lenders with Extended Revolving Credit
Commitments in accordance with their Revolver Percentages (and except as provided in Section 2.3(k), without giving effect
to changes thereto on an earlier maturity date with respect to Letters of Credit theretofore incurred or issued), (y) all borrowings
and repayments (except for (A) payments of interest and fees at different rates on Extended Revolving Credit Commitments (and related
outstandings), (B) repayments required upon the maturity date of the non-extending Revolving Credit Commitments and (C) repayments
made in connection with a permanent repayment and reduction or termination of commitments) of Extended Revolving Loans after the
applicable Extension date shall be made on a pro rata basis with all other Revolving Credit Commitments and (z) at no time shall
there be Revolving Credit Commitments hereunder (including Extended Revolving Credit Commitments, any commitments with respect
to any Incremental Revolving Credit Facility and any original Revolving Credit Commitments) that have more than three (3) different
maturity dates;
(iii)
except
as to interest rates, fees, amortization, final maturity date, premium, required prepayment dates and participation in prepayments
(which shall, subject to immediately succeeding clauses (iv), (v) and (vi), be determined by the Borrower and set forth in the
relevant Extension Offer), the Term Loans of any Lender that agrees to an extension with respect to such Term Loans extended pursuant
to any Extension (any such extended Term Loans, “
Extended Term Loans
”) shall have the same terms as the tranche
of Term Loans subject to such Extension Offer until the maturity of such Term Loans;
(iv)
(A)
the final maturity date of any Extended Term Loans consisting of Term A Loans shall be no earlier than the Term A Termination Date
and (B) the final maturity date of any Extended Term Loans consisting of Term B Loans shall be no earlier than the Term B Termination
Date;
(v)
(A)
the Average Life of any Extended Term Loans consisting of Term A Loans shall be no shorter than the remaining Average Life of the
Term A Loans extended thereby and (B) the Average Life of any Extended Term Loans consisting of Term B Loans shall be no shorter
than the remaining Average Life of the Term B Loans extended thereby;
(vi)
any
Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in
any voluntary or mandatory repayments or prepayments in respect of the applicable Term Facility, in each case as specified in the
respective Extension Offer, notwithstanding anything in this Credit Agreement or any other Fundamental Document to the contrary;
(vii)
if
the aggregate principal amount of Term Loans (calculated on the face amount thereof) or Revolving Credit Commitments, as the case
may be, in respect of which Lenders shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal
amount of Term Loans or Revolving Credit Commitments, as the case may be, offered to be extended by the Borrower pursuant to such
Extension Offer, then the Term Loans or Revolving Loans, as the case may be, of such Lenders shall be extended ratably up to such
maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) with respect to which such
Lenders have accepted such Extension Offer;
(viii)
the
Extensions shall be in a minimum amount of $50,000,000;
(ix)
any
applicable Minimum Extension Condition shall be satisfied or waived by the Borrower; and
(x)
all
documentation in respect of such Extension shall be consistent with the foregoing.
(b)
With
respect to all Extensions consummated by the Borrower pursuant to this Section 2.14, (i) such Extensions shall not constitute
voluntary or mandatory payments or prepayments or commitment reductions for purposes of Section 2.8, 2.9, 2.10 or Section 2.11,
(ii) the amortization schedules (insofar as such schedule affects payments due to Lenders participating in the relevant Facility)
set forth in Section 2.7 shall be adjusted to give effect to the Extension of the relevant Facility and (iii) except as required
by clause (a)(viii) above, no Extension Offer is required to be in any minimum amount or any minimum increment;
provided
that
the Borrower may at its election specify as a condition (a “
Minimum Extension Condition
”) to consummating any
such Extension that a minimum amount (to be determined and specified in the relevant Extension Offer in the Borrower’s sole
discretion and which may be waived by the Borrower) of Term Loans or Revolving Credit Commitments (as applicable) of any or all
applicable tranches to be tendered. The Administrative Agent and the Lenders hereby consent to the transactions contemplated by
this Section 2.14 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended
Term Loans and/or Extended Revolving Credit Commitments on such terms as may be set forth in the relevant Extension Offer) and
hereby waive the requirements of any provision of this Credit Agreement (including Section 2.8, 2.9, 2.10 or Section 2.11)
or any other Fundamental Document that may otherwise prohibit any such Extension or any other transaction contemplated by this
Section 2.14.
(c)
No
consent of any Lender or the Administrative Agent shall be required to effectuate any Extension, other than (A) the consent of
each Lender agreeing to such Extension with respect to one or more of its Term Loans and/or Revolving Credit Commitments (or a
portion thereof) and (B) with respect to any Extension of the Revolving Credit Commitments (or a portion thereof), the consent
of the Issuing Banks, which consent shall not be unreasonably withheld or delayed. All Extended Term Loans and Extended Revolving
Credit Commitments and all obligations in respect thereof shall be Obligations under this Credit Agreement and the other Fundamental
Documents that are secured by the Collateral and guaranteed on a
pari passu
basis with all other applicable Obligations
under this Credit Agreement and the other Fundamental Documents. The Lenders hereby irrevocably authorize the Administrative
Agent to enter into amendments to this Credit Agreement and the other Fundamental Documents with the Borrower as may be necessary
in order to establish new tranches or sub-tranches in respect of Revolving Credit Commitments or Term Loans so extended and such
technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower
in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.14. In
addition, if so provided in such amendment and with the consent of the Issuing Banks, participants in Letters of Credit expiring
on or after the latest maturity date (but in no event later than the date that is five (5) Business Days prior to the Revolving
Credit Termination Date) in respect of the Revolving Credit Commitments shall be re-allocated from Lenders holding non-extended
Revolving Credit Commitments to Lenders holding Extended Revolving Credit Commitments in accordance with the terms of such amendment;
provided
,
however
, that such participation interests shall, upon receipt thereof by the relevant Lenders holding
Revolving Credit Commitments, be deemed to be participation interests in respect of such Revolving Credit Commitments and the terms
of such participation interests (including, without limitation, the commission applicable thereto) shall be adjusted accordingly. Without
limiting the foregoing, in connection with any Extensions the respective Credit Parties shall (at their expense) amend (and the
Administrative Agent is hereby directed to amend) any mortgage entered into in accordance with Section 6.14 that has a maturity
date prior to the later of the Final Maturity Date and the Final Revolving Credit Termination Date so that such maturity date is
extended to the later of the Final Maturity Date and the Final Revolving Credit Termination Date (or such later date as may be
advised by local counsel to the Administrative Agent).
(d)
In
connection with any Extension, the Borrower shall provide the Administrative Agent at least five (5) Business Days’ (or such
shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and shall agree to such procedures (including
regarding timing, rounding and other adjustments and to ensure reasonable administrative management of the credit facilities hereunder
after such Extension), if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably
to accomplish the purposes of this Section 2.14.
Section 2.15.
Refinancing
Facilities
.
(a)
Notwithstanding
anything to the contrary in this Credit Agreement, the Borrower may by written notice to the Administrative Agent establish one
or more additional tranches of term loans under this Credit Agreement (such loans, “
Refinancing Term Loans
”),
all Net Cash Proceeds of which are used to refinance in whole or in part any Class of Term Loans pursuant to Section 2.8(c)(i).
Each such notice shall specify the date (each, a “
Refinancing Effective Date
”) on which the Borrower proposes
that the Refinancing Term Loans shall be made, which shall be a date not earlier than five (5) Business Days after the date on
which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its
sole discretion);
provided
that
:
(i)
before
and after giving effect to the borrowing of such Refinancing Term Loans on the Refinancing Effective Date each of the conditions
set forth in Section 5.2 shall be satisfied;
(ii)
the
final maturity date of the Refinancing Term Loans shall be no earlier than the maturity date of the refinanced Term Loans;
(iii)
the
Average Life of such Refinancing Term Loans shall be no shorter than the then-remaining Average Life of the refinanced Term Loans;
(iv)
the
aggregate principal amount of the Refinancing Term Loans shall not exceed the outstanding principal amount of the refinanced Term
Loans
plus
amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest
associated therewith and other fees, costs and expenses relating thereto;
(v)
all
other terms applicable to such Refinancing Term Loans (other than provisions relating to original issue discount, upfront fees,
interest rates and any other pricing terms (which original issue discount, upfront fees, interest rates and other pricing terms
shall not be subject to the provisions set forth in Section 2.13(a)(H)) and optional prepayment or mandatory prepayment or
redemption terms, which shall be as agreed between the Borrower and the Lenders providing such Refinancing Term Loans) shall be
substantially similar to, or no less favorable to the Borrower and its Subsidiaries, when taken as a whole, than (as reasonably
determined by the Borrower), the terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such
covenants and other terms apply solely to any period after the latest maturity date applicable to the Term Loans being refinanced
unless less favorable terms are added for the benefit of the existing Lenders);
(vi)
with
respect to Refinancing Term Loans secured by Liens on the Collateral, such Liens rank
pari passu
in right of security to
the Term Loans and are subject to a customary Intercreditor Agreement;
(vii)
there
shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Refinancing Term
Loans; and
(viii)
Refinancing
Term Loans shall not be secured by any assets of the Borrower and its Subsidiaries other than the Collateral.
(b)
The
Borrower may approach any Lender or any other person that would be an Eligible Assignee to provide all or a portion of the Refinancing
Term Loans;
provided
that
any Lender offered or approached to provide all or a portion of the Refinancing Term Loans may
elect or decline, in its sole discretion, to provide a Refinancing Term Loan. Any Refinancing Term Loans made on any Refinancing
Effective Date shall be designated an additional Class of Term Loans for all purposes of this Credit Agreement;
provided
,
further
, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such
Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c)
Notwithstanding
anything to the contrary in this Credit Agreement, the Borrower may by written notice to the Administrative Agent establish one
or more additional Facilities (“
Replacement Revolving Facilities
”) providing for revolving commitments (“
Replacement
Revolving Credit Commitments
”), which replace in whole or in part any Class of Revolving Credit Commitments under this
Credit Agreement. Each such notice shall specify the date (each, a “
Replacement Revolving Credit Facility Effective Date
”)
on which the Borrower proposes that the Replacement Revolving Credit Commitments shall become effective, which shall be a date
not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter
period agreed to by the Administrative Agent in its reasonable discretion);
provided
that
:
(i)
before
and after giving effect to the establishment of such Replacement Revolving Credit Commitments on the Replacement Revolving Credit
Facility Effective Date, each of the conditions set forth in Section 5.2 shall be satisfied;
(ii)
after
giving effect to the establishment of any Replacement Revolving Credit Commitments and any concurrent reduction in the aggregate
amount of any other Revolving Credit Commitments, the aggregate amount of Revolving Credit Commitments shall not exceed the aggregate
amount of the Revolving Credit Commitments outstanding immediately prior to the applicable Replacement Revolving Credit Facility
Effective Date
plus
amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued
interest associated therewith and other fees, costs and expenses relating thereto;
(iii)
no
Replacement Revolving Credit Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior
to the Revolving Credit Termination Date for the Revolving Credit Commitments being replaced;
(iv)
all
other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other
pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower
and the Lenders providing such Replacement Revolving Credit Commitments and (y) the amount of any letter of credit sublimit under
such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving
Credit Commitments, the Administrative Agent and the replacement issuing bank, if any, under such Replacement Revolving Credit
Commitments), when taken as a whole, shall be substantially similar to, or no less favorable to the Borrower and its Subsidiaries
than (as reasonably determined by the Borrower), those, taken as a whole, applicable to the Revolving Credit Commitments so replaced
(except to the extent such covenants and other terms apply solely to any period after the latest Revolving Credit Termination Date
in effect at the time of incurrence or added for the benefit of the existing Lenders);
(v)
there
shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving
Facility;
(vi)
Replacement
Revolving Credit Commitments and extensions of credit thereunder shall not be secured by any asset of the Borrower and its Subsidiaries
other than the Collateral; and
(vii)
if
such Replacement Revolving Facility is secured by Liens on the Collateral, such Liens rank
pari passu
in right of security
to the Revolving Loans and are subject to a customary Intercreditor Agreement.
(d)
The
Borrower may approach any Lender or any other person that would be an Eligible Assignee of a Revolving Credit Commitment to provide
all or a portion of the Replacement Revolving Credit Commitments;
provided
that
any Lender offered or approached to provide
all or a portion of the Replacement Revolving Credit Commitments may elect or decline, in its sole discretion, to provide a Replacement
Revolving Credit Commitment. Any Replacement Revolving Credit Commitment made on any Replacement Revolving Credit Facility
Effective Date shall be designated an additional Class of Revolving Credit Commitments for all purposes of this Credit Agreement;
provided
that
any Replacement Revolving Credit Commitments may, to the extent provided in the applicable Refinancing Amendment,
be designated as an increase in any previously established Class of Revolving Credit Commitments.
(e)
The
Borrower and each Lender providing the applicable Refinancing Term Loans and/or Replacement Revolving Credit Commitments (as applicable)
shall execute and deliver to the Administrative Agent an amendment to this Credit Agreement (a “
Refinancing Amendment
”)
and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans and/or
Replacement Revolving Credit Commitments (as applicable). For purposes of this Credit Agreement and the other Fundamental Documents,
(A) if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have a Term Loan having the terms of such Refinancing
Term Loan and (B) if a Lender is providing a Replacement Revolving Credit Commitment, such Lender will be deemed to have a Revolving
Credit Commitment having the terms of such Replacement Revolving Credit Commitment. Notwithstanding anything to the contrary set
forth in this Credit Agreement or any other Fundamental Document (including without limitation this Section 2.15), (i) no
Refinancing Term Loan or Replacement Revolving Credit Commitment is required to be in any minimum amount or any minimum increment,
(ii) there shall be no condition to any incurrence of any Refinancing Term Loan or Replacement Revolving Credit Commitment at any
time or from time to time other than those set forth in clauses (a) or (c) above, as applicable, and (iii) all Refinancing
Term Loans, Replacement Revolving Credit Commitments and all obligations in respect thereof shall be Obligations under this Credit
Agreement and the other Fundamental Documents that rank equally and ratably in right of security with the Term Loans and other
Obligations.
Section 2.16.
Defaulting
Lenders
. Notwithstanding any provision of this Credit Agreement to the contrary, if any
Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a)
Fees
shall cease to accrue for such Defaulting Lender pursuant to Section 2.12.
(b)
The
Revolving Credit Commitments, Loans and Revolving Exposure of such Defaulting Lender shall not be included in determining whether
the Required Lenders, Required RC Lenders or Required RC/TLA Lenders have taken or may take any action hereunder (including any
consent to any amendment, waiver or other modification pursuant to Section 11.12);
provided
that
this Section 2.16(b)
shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification effecting (i) an increase
or extension of such Defaulting Lender’s Revolving Credit Commitment or (ii) the reduction or excuse of principal amount
of, or interest or fees payable on, such Defaulting Lender’s Loans or the postponement of the scheduled date of payment of
such principal amount, interest or fees to such Defaulting Lender.
(c)
If
any Letters of Credit exist at the time such Lender becomes a Defaulting Lender then:
(i)
Such
Defaulting Lender’s L/C Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective
Revolver Percentages (but excluding the Revolving Credit Commitments of all the Defaulting Lenders from both the numerator and
the denominator) but only to the extent (x) the sum of all the Revolving Exposure owed to all non-Defaulting Lenders does not exceed
the total of all non-Defaulting Lenders’ Unused Revolving Credit Commitments, (y) the Revolving Exposure owed to any non-Defaulting
Lender does not exceed such non-Defaulting Lender’s Revolving Credit Commitment, (z) the representations and warranties of
each Credit Party set forth in the Fundamental Documents to which it is a party are true and correct at such time, except to the
extent that any such representation and warranty relates to an earlier date (in which case such representation and warranty shall
be true and correct as of such earlier date), and (z) no Default shall have occurred and be continuing at such time;
(ii)
If
the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, within two Business
Days following notice by the Administrative Agent, cash collateralize for the benefit of relevant Issuing Banks such Defaulting
Lender’s L/C Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as any Letters
of Credit are outstanding;
(iii)
If
the Borrower cash collateralizes any portion of such Defaulting Lender’s L/C Exposure pursuant clause (ii) above, the Borrower
shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting
Lender’s L/C Exposure during the period such Defaulting Lender’s L/C Exposure is cash collateralized by the Borrower;
(iv)
If
L/C Exposures of the non-Defaulting Lenders are reallocated pursuant to clause (i) above, then the fees payable to the Revolving
Lenders pursuant to Section 2.12(a) and Section 2.12(b) shall be adjusted to reflect such non-Defaulting Lenders’
L/C Exposure as reallocated; and
(v)
If
any Defaulting Lender’s L/C Exposure is neither cash collateralized nor reallocated pursuant to clauses (i) or (ii) above,
then, without prejudice to any rights or remedies of the Issuing Banks or any Revolving Lender hereunder, all letter of credit
fees payable under Section 2.12(b) with respect to such Defaulting Lender’s L/C Exposure shall be payable to each applicable
Issuing Bank until such L/C Exposure is cash collateralized and/or reallocated.
(d)
So
long as such Defaulting Lender is a Defaulting Lender, the Issuing Banks shall not be required to issue, amend or increase any
Letter of Credit, unless the related L/C Exposure will be 100% covered by the Unused Revolving Credit Commitments of the non-Defaulting
Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.16(c)(ii), and the participating
interests in any such newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent
with Section 2.16(c)(i) (and such Defaulting Lender shall not participate therein).
The rights and remedies against a Defaulting
Lender under this Credit Agreement are in addition to other rights and remedies that Borrower may have against such Defaulting
Lender with respect to any funding default and that the Administrative Agent or any Lender may have against such Defaulting Lender
with respect to any funding default. In the event that the Administrative Agent, the Borrower and each applicable L/C Issuer each
agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the
Revolving Exposure shall be readjusted to reflect the inclusion of such Lender’s unused Revolving Credit Commitment and on
such date such Lender shall purchase at par such of the Revolving Loans of the other Lenders or take such other actions as the
Administrative Agent may determine to be necessary to cause such outstanding Revolving Loans and funded and unfunded participations
in Letters of Credit to be held on a
pro
rata
basis by the Revolving Lenders (including such Lender) in accordance with
their applicable percentages, whereupon such Lender will cease to be a Defaulting Lender and will be a non-Defaulting Lender and
any applicable cash collateral shall be promptly returned to the Borrower and any L/C Exposure of such Lender reallocated pursuant
to the requirements above shall be reallocated back to such Lender;
provided
that no adjustments will be made retroactively
with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender;
provided
that, subject to Section 11.22 and except to the extent otherwise expressly agreed by the affected parties, no change hereunder
from Defaulting Lender to non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising
from such Lender’s having been a Defaulting Lender.
|
|
ARTICLE 3
|
CHANGES IN CIRCUMSTANCES,
TAXES, INDEMNITY
|
Section 3.1.
Inability
to Determine Interest Rate
. If prior to the first day of any Interest Period:
(a) the
Administrative Agent shall have determined (which determination shall be conclusive and binding absent manifest error) that adequate
and reasonable means do not exist for ascertaining the Eurodollar Base Rate or the Eurodollar Rate, as applicable, for such Interest
Period, or
(b) the
Administrative Agent shall have received notice from the Majority Facility Lenders in respect of the relevant Facility that the
Eurodollar Base Rate or the Eurodollar Rate, as applicable, determined or to be determined for such Interest Period will not adequately
and fairly reflect the cost to such Lenders (as conclusively certified by such Lenders) of making or maintaining their affected
Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice
thereof to the Borrower and the relevant Lenders as soon as practicable thereafter. If such notice is given (x) any Eurodollar
Loans under the relevant Facility requested to be made on the first day of such Interest Period shall be made as Base Rate Loans,
(y) any Loans under the relevant Facility that were to have been converted on the first day of such Interest Period to Eurodollar
Loans shall be continued as Base Rate Loans and (z) any outstanding Eurodollar Loans under the relevant Facility shall be converted,
on the last day of the then-current Interest Period, to Base Rate Loans. Until such notice has been withdrawn by the Administrative
Agent, no further Eurodollar Loans under the relevant Facility shall be made or continued as such, nor shall the Borrower have
the right to convert Loans under the relevant Facility to Eurodollar Loans.
Section 3.2.
Change
in Legality
.
(a)
Notwithstanding
anything to the contrary contained elsewhere in this Credit Agreement, if any change after the date hereof in Applicable Law, guideline
or order, or in the interpretation thereof by any Governmental Authority charged with the administration thereof, shall make it
unlawful for any Lender to make or maintain any Eurodollar Loan or to give effect to its obligations as contemplated hereby with
respect to a Eurodollar Loan, then, by written notice to the Borrower and the Administrative Agent such Lender may (i) declare
that Eurodollar Loans will not thereafter be made by such Lender hereunder and/or (ii) require that, subject to Section 3.6,
all outstanding Eurodollar Loans made by it be converted to Base Rate Loans whereupon all of such Eurodollar Loans shall automatically
be converted to Base Rate Loans as of the effective date of such notice as provided in paragraph (b) below. Such Lender’s
Percentage of any subsequent Eurodollar Loan shall, instead, be an Base Rate Loan unless such declaration is subsequently withdrawn.
(b)
A
notice to the Borrower by any Lender pursuant to paragraph (a) above shall be effective for purposes of clause (ii) thereof, if
lawful, on the last day of the current Interest Period for each outstanding Eurodollar Loan; and in all other cases, on the date
of receipt of such notice by the Borrower.
Section 3.3.
Change
in Circumstances
. (a) In the event that any Change in Law shall occur or, with respect to clauses (iii) or (iv) below, after
the Closing Date, any changes in conditions shall occur, which in either case shall:
(i)
subject
any Lender to, or increase the net amount of, any tax, levy, impost, duty, charge, fee, deduction or withholding with respect to
any Loan, or change the basis of taxation of any payment to any Lender of principal of or interest on any Loan or other fees and
amounts payable to any Lender hereunder (other than withholding tax imposed by Canada or the United States of America, or any political
subdivision or taxing authority thereof or therein, or any other tax, levy, impost, duty, charge, fee, deduction or withholding
(x) that is measured with respect to the overall net income of such Lender or of a Lending Office of such Lender, and that is imposed
by Canada, the United States of America or by the jurisdiction in which such Lender or Lending Office carries on business, is incorporated,
located, managed or controlled, or has its principal office or a presence not otherwise connected with, or required by, this transaction
(or any political subdivision or taxing authority thereof or therein), (y) that is imposed solely by reason of any Lender failing
to make a declaration of, or otherwise to establish, nonresidence, or to make any other claim for exemption, or otherwise to comply
with any certification, identification, information, documentation or reporting requirements prescribed under the laws of the relevant
jurisdiction, in those cases where a Lender may properly make such declaration or claim or so establish nonresidence or otherwise
comply or (z) imposed under FATCA); or
(ii)
impose,
modify or deem applicable any reserve, deposit or similar requirement against any assets held by, deposits with or for the account
of, or loans or commitments by, an office of such Lender with respect to any Loan; or
(iii)
impose
upon such Lender or the London interbank market any other condition with respect to this Credit Agreement;
and the result of any of the foregoing shall be to increase
the actual cost to such Lender of making or maintaining any Eurodollar Loan hereunder or to reduce the amount of any payment (whether
of principal, interest or otherwise) received or receivable by such Lender in connection with any Eurodollar Loan hereunder, or
to require such Lender to make any payment in connection with any Eurodollar Loan hereunder, in each case by or in an amount which
such Lender in its sole judgment shall deem material, then and in each case, the Borrower agrees to pay to the Administrative Agent
for the account of such Lender, as provided in paragraph (c) below, such amounts as shall be necessary to compensate such Lender
for such cost, reduction or payment.
(b)
If any Lender or an Issuing Bank determines that any Change in Law regarding capital or
liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the applicable
Issuing Bank’s capital or on the capital of such Lender’s or such Issuing Bank holding company, if any, as a
consequence of this Credit Agreement or the Loans made or Letters of Credit issued or participated in by such Lender or such
Issuing Bank pursuant hereto to a level below that which such Lender or such Lender’s or such Issuing Bank’s
holding company could have achieved but for such applicability, adoption, change or compliance (taking into consideration
such Lender’s or such Issuing Bank’s policies and the policies of such Lender’s or such Issuing
Bank’s holding company with respect to capital adequacy or liquidity) by an amount deemed by such Lender or such
Issuing Bank to be material, then from time to time the Borrower agrees to pay to the Administrative Agent for the account of
such Lender, as provided in paragraph (c) below, such additional amount or amounts as will compensate such Lender or such
Issuing Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction suffered to
the extent attributable to this Credit Agreement or the Loans or Letters of Credit issued or participated in made pursuant
hereto.
(c)
Each
Lender and Issuing Bank shall deliver to the Borrower and to the Administrative Agent from time to time one or more certificates
setting forth the amounts due to such Lender or such Issuing Bank under paragraphs (a) or (b) above, the changes as a result of
which such amounts are due and the manner of computing such amounts. Each such certificate shall be conclusive in
the absence of manifest error. The Borrower
shall pay to the Administrative Agent for the account of each such Lender or such Issuing Bank the amounts shown as due on any
such certificate within fifteen (15) Business Days after the Borrower’s receipt of the same. Failure on the part of any Lender
or such Issuing Bank to demand compensation under paragraphs (a) or (b) above on any one occasion shall not constitute a waiver
of its right to demand such compensation on any other occasion, provided that the Borrower shall not be required to compensate
a Lender or Issuing Bank pursuant to paragraphs (a) or (b) above for any increased costs incurred or reductions suffered more than
180 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the changes giving rise
to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefrom.
The protection of this Section 3.3 shall be available to each Lender or such Issuing Bank regardless of any possible contention
of the invalidity or inapplicability of any law, regulation or other condition which shall give rise to any demand by such Lender
or such Issuing Bank for compensation hereunder.
(d)
Each
Lender agrees that after it becomes aware of the occurrence of an event or the existence of a condition that (i) would cause it
to incur any increased cost hereunder or render it unable to perform its agreements hereunder for the reasons specifically set
forth in this Section 3.3 or Section 3.4 or (ii) would require the Borrower to pay an increased amount under this Section 3.3
or Section 3.4, to the extent not inconsistent with such Lender’s internal policies it will use reasonable efforts to
make, fund or maintain the affected Loans of such Lender through another Lending Office of such Lender if as a result thereof the
additional monies which would otherwise be required to be paid or the reduction of amounts receivable by such Lender thereunder
in respect of such Loans would be materially reduced, or such inability to perform would cease to exist, or the increased costs
which would otherwise be required to be paid in respect of such Loans pursuant to this Section 3.3 or Section 3.4 would
be materially reduced or the taxes or other amounts otherwise payable under this Section 3.3 or Section 3.4 would be
materially reduced, and if, as determined by such Lender, in its sole discretion, the making, funding or maintaining of such Loans
through such other Lending Office would not otherwise materially adversely affect such Loans or such Lender.
(e)
Each
Lender will use reasonable efforts to notify the Borrower, through the Administrative Agent, of any event of which it has knowledge
that will entitle such Lender to compensation pursuant to this Section 3.3 or Section 3.4. Other than as set forth in
this Section 3.3, no inadvertent failure by any Lender to give (or delay in giving) such notice shall adversely affect such
Lender’s rights to such compensation.
(f)
If
the Borrower shall receive notice from any Lender that amounts are due to such Lender pursuant to paragraph (c) hereof or that
any of the events designated in paragraph (d) hereof have occurred, the Borrower may (but subject in any such case to the payments
required by Section 3.1 and Section 3.6), upon at least five (5) Business Days’ prior written or telecopier notice
to such Lender and the Administrative Agent, identify to the Administrative Agent a lending institution acceptable to the Borrower
and the Administrative Agent, which will purchase the Revolving Credit Commitments, the amount of outstanding Loans and any participations
in Letters of Credit from the Lender providing such notice, and such Lender shall thereupon assign its Revolving Credit Commitment,
any Loans owing to such Lender, any participations in Letters of Credit and the Notes held by such Lender to such replacement lending
institution pursuant to Section 11.3.
(g)
This
Section shall survive the termination of this Credit Agreement and the payment of the Loans and/or the expiration of any Letter
of Credit.
Section 3.4.
Withholding
Taxes
. (a) Prior to the date of the initial Loans hereunder, and prior to the effective date set forth in the Assignment and
Assumption with respect to any
Lender becoming a Lender after the date hereof,
and from time to time thereafter if requested by the Borrower or the Administrative Agent or required because, as a result of a
Change in Law or a change in circumstances or otherwise, a previously delivered form or statement becomes incomplete or incorrect
in any material respect, each Lender shall provide, if applicable and to the extent a Lender is legally entitled to do so, the
Administrative Agent and the Borrower with complete, accurate and duly executed forms or other statements prescribed by the Canada
Revenue Agency or the Internal Revenue Service of the United States, as applicable, certifying such Lender’s exemption from,
or entitlement to a reduced rate of, Canadian or United States withholding taxes (including backup withholding taxes) with respect
to all payments to be made to such Lender hereunder and under any other Fundamental Document. Where a payment made to a Lender
organized under the laws of a jurisdiction outside the United States would be subject to U.S. federal withholding Tax imposed by
FATCA if such Lender fails to comply with the applicable reporting requirements of FATCA, such Lender shall deliver to the Administrative
Agent and the Borrower at the time or times prescribed by Applicable Law and at such time or times reasonably requested by the
Borrower or the Administrative Agent, such documentation under any Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i)
of the Code) or reasonably requested by the Administrative Agent or the Borrower sufficient for the Administrative Agent or the
Borrower to comply with their respective obligations under FATCA and to determine that such Lender has complied with such applicable
reporting requirements, or to determine the amount to deduct and withhold, if any, from such payment. Solely for purposes of the
preceding sentence, “FATCA” shall include any amendments made to FATCA after the date of this Credit Agreement.
(b)
The
Borrower and the Administrative Agent shall be entitled to deduct and withhold any and all present or future taxes or withholdings,
and all liabilities with respect thereto, from payments to a Lender hereunder or under any other Fundamental Document, if and to
the extent that the Borrower or the Administrative Agent in good faith determines that such deduction or withholding is required
by the law of Canada or the United States, including, without limitation, any applicable treaty of Canada or the United States.
In the event the Borrower or the Administrative Agent shall so determine that deduction or withholding of taxes is required, they
shall advise the affected Lender as to the basis of such determination prior to actually deducting and withholding such taxes.
In the event the Borrower or the Administrative Agent shall so deduct or withhold taxes from amounts payable hereunder, they (i)
shall pay to, or deposit with, the appropriate taxing authority in a timely manner the full amount of taxes it has deducted or
withheld; (ii) shall provide to each Lender from whom taxes were deducted or withheld, evidence of payment of such taxes to, or
the deposit thereof with, the appropriate taxing authority and a statement setting forth the amount of taxes deducted or withheld,
the applicable rate, and any other information or documentation reasonably requested by such Lender; and (iii) shall forward to
each such Lender any official tax receipts or other documentation with respect to the payment or deposit of the deducted or withheld
taxes as may be issued from time to time by the appropriate taxing authority. Unless the Borrower and the Administrative Agent
have received forms or other documents satisfactory to them indicating that payments hereunder or under any Note are not subject
to Canadian or United States withholding tax (as applicable) or are subject to such tax at a rate reduced by an applicable tax
treaty, the Borrower or the Administrative Agent may withhold taxes from such payments at the applicable statutory rate in the
case of payments to or for any Lender organized under the laws of a jurisdiction outside Canada or the United States, as the case
may be.
(c)
Each
Lender agrees (i) to the extent required by applicable law, that as between it and the Borrower or the Administrative Agent, such
Lender shall be the Person to deduct and withhold taxes, and shall deduct and withhold taxes on amounts that such Lender may remit
to any other Person(s) by reason of any undisclosed transfer or assignment of an interest in this Credit Agreement to such other
Person(s) pursuant to Section 11.3; and (ii) to indemnify the Administrative Agent and any Related Party of the Administrative
Agent against, and to hold them harmless from, any tax, interest, additions to tax, penalties, reasonable counsel and accountants’
fees, disbursements or payments arising from (a) the
assertion by any appropriate taxing authority of any claim against
them relating to a failure to withhold taxes as required by law with respect to such Lender or (b) the failure of such Lender to
comply with the provisions of Section 11.3(d) relating to the maintenance of a Participant Register.
(d)
Each
assignee of a Lender’s interest in this Credit Agreement in conformity with Section 11.3 shall be bound by this Section 3.4,
so that such assignee will have all of the obligations and provide all of the forms and statements and all indemnities, representations
and warranties required to be given under this Section 3.4.
(e)
Notwithstanding
the foregoing, in the event that any withholding taxes or additional withholding taxes (other than, for the avoidance of doubt,
any such taxes that are Excluded Taxes) shall become payable in respect of any sum payable hereunder or under any other Fundamental
Document to any Lender or the Administrative Agent solely as a result of any change in any statute, treaty, ruling, determination
or regulation occurring after the Closing Date or, if later, the date on which such Lender becomes a Lender hereunder (pursuant
to an assignment or otherwise) or changes its applicable Lending Office, (i) the sum payable by the Borrower or any Guarantor shall
be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums
payable under this Section 3.4) such Lender or the Administrative Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the applicable withholding agent, shall make such deductions,
(iii) the applicable withholding agent shall pay the full amount deducted to the relevant taxation authority or other authority
in accordance with Applicable Law and (iv) the applicable withholding agent shall forward to such Lender or the Administrative
Agent (as the case may be) the official tax receipts or other documentation pursuant to Section 3.4(b). In addition, the Borrower
shall indemnify each Lender, the Issuing Bank and the Administrative Agent within ten (10) Business Days after written demand,
for any additional withholding taxes paid by such Lender, Issuing Bank or the Administrative Agent, as the case may be, in respect
of which withholding taxes the Borrower or any Guarantor would have a gross-up obligation pursuant to clause (i) in the immediately
preceding sentence, or any liability (including penalties and interest) arising therefrom or with respect thereto, whether or not
such additional withholding taxes were correctly or legally asserted by the relevant Governmental Authority. Notwithstanding anything
to the contrary in this Credit Agreement, the Borrower will not be required to pay any increased amounts or indemnify any Person
for Excluded Taxes.
(f)
In
the event that a Lender receives a refund of taxes withheld or paid pursuant to clause (e) of this Section, which refund is identified
by such Lender as being a result of taxes withheld or paid in connection with sums payable hereunder or under any other Fundamental
Document, such Lender shall promptly notify the Administrative Agent and the Borrower and shall, if no Default or Event of Default
has occurred and is continuing, remit to the Borrower the amount of such refund allocable to payments made hereunder or under any
other Fundamental Document, net of any reasonable out-of-pocket expenses (including taxes) incurred in obtaining such refund.
(g)
Each
Lender agrees that after it becomes aware of the occurrence of an event that would cause the Borrower to pay any amount pursuant
to clause (e) of this Section 3.4, it will use reasonable efforts to notify the Borrower of such event and, to the extent
not inconsistent with such Lender’s internal policies, will use its reasonable efforts to make, fund or maintain the affected
Loans of such Lender through another Lending Office of such Lender if as a result thereof the additional monies which would otherwise
be required to be paid by reason of Section 3.4(e) in respect of such Loans would be materially reduced, and if, as determined
by such Lender, in its discretion, the making, funding or maintaining of such Loans through such other Lending Office would not
otherwise materially adversely affect such Loans or such Lender.
(h)
This
Section shall survive the termination of this Credit Agreement and the payment of the Loans.
For purposes of this Section 3.4, the
term “Lender” includes the Issuing Banks.
Section 3.5.
Foreign
Currency Conversion; Withholding
. If the net amount of any payment received by the Administrative Agent hereunder, after such
amount has (in the case of an amount received in a currency other than Dollars and/or received outside of the United States) been
converted into Dollars and transferred to New York in accordance with normal banking procedures, is less than the amount otherwise
then due and owing by the Borrower to the Lenders hereunder, or if the Administrative Agent is unable to immediately convert and
transfer any such amount as aforesaid, then the Borrower agrees as a separate obligation to the Lenders to indemnify the Lenders
against the loss incurred by reason of such shortfall or delay to the extent but only to the extent such shortfall or delay is
due to (i) the application of any exchange controls or similar laws and regulations or (ii) the fact that such amount was received
in a currency other than Dollars; and if the amount of Dollars thus received by the Administrative Agent, after such conversion,
exceeds the amount otherwise then due and owing, the Administrative Agent shall remit such excess to the Borrower.
Section 3.6.
Indemnity
.
The Borrower shall reimburse each Lender on demand for any loss (excluding any loss of the Applicable Margin) incurred or to be
incurred by it in the reemployment of the funds released (i) by any prepayment or conversion (for any reason) of any Eurodollar
Loan if such Loan is repaid other than on its last day of the Interest Period for such Loan or (ii) in the event that after the
Borrower delivers a notice of advance, continuation or conversion of a Borrowing under Section 2.5 in respect of Eurodollar
Loans, such Loan is not made on the first day of the Interest Period specified in such notice of borrowing for any reason other
than (I) a suspension or limitation under Section 3.3(b) of the right of the Borrower to select a Eurodollar Loan or (II)
a breach by the Lenders of their obligation hereunder. Such loss shall be the amount as reasonably determined by such Lender as
the excess, if any, of (A) the amount of interest which would have accrued to such Lender on the amount so paid or not borrowed,
continued or converted at a rate of interest equal to the interest rate applicable to such Loan pursuant to Section 2.4 hereof
(but excluding the Applicable Margin) over (B) the amount realized by such Lender in reemploying the funds not advanced or the
funds received in prepayment or realized from the Loan so continued or converted during the period referred to above. Each Lender
shall deliver to the Borrower from time to time one or more certificates setting forth the amount of such loss (and in reasonable
detail the manner of computation thereof) as determined by such Lender, which certificates shall be conclusive absent manifest
error. The Borrower shall pay the Administrative Agent for the account of such Lender the amount shown or such certificate within
ten (10) days of the Borrower’s receipt of such certificate.
Section 3.7.
Replacement
of Lenders
. If any Lender (i) requests compensation under Section 3.3 or Section 3.4, (ii) becomes a Defaulting
Lender, (iii) does not consent to any waiver, consent or modification requested by the Borrower (but only where the consent of
all the Lenders or all Lenders directly affected thereby, or all the Lenders of the applicable Class is required for such waiver,
consent or modification and the Borrower obtains approval for the waiver, consent or modification from the Required Lenders or
a majority of all Lenders or all Lenders of the applicable Class, as the case may be, directed affected thereby have otherwise
consented), or (iv) refuses to provide or requires the conversion of its Eurodollar Loans pursuant to Section 3.2, then the
Borrower may, at its sole expense and effort and upon notice to such Lender and the Administrative Agent, require such Lender
to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 11.3),
all of its interests, rights and obligations under this Credit Agreement and the other Fundamental Documents to an assignee which
shall assume such obligations and which accepts such assignment;
provided
,
that
(x) such Lender shall have received
payment of an amount equal to the
outstanding principal of its Loans, accrued interest thereon,
accrued fees, and all other amounts then payable to it hereunder from the assignee (to the extent of such outstanding principal
and accrued interest and fees) or the Borrower (in the case of all other amounts) and a release of its liability with regard to
its Percentage of the L/C Exposure, and (y) in the case of any such assignment resulting from a claim for compensation under Section 3.3
or payments required to be made pursuant to Section 3.4, such assignment will result in a reduction in such compensation or
payment on an ongoing basis. No Lender shall be required to make any such assignment and delegation if, prior thereto, as a result
of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease
to apply. Each party hereto agrees that an assignment required pursuant to this Section 3.7 may be effected pursuant to an
Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee and that the affected Lender required
to make such assignment need not be a party thereto.
Section 3.8.
Interest
Adjustments
. If the provisions of this Credit Agreement or any Note would at any time require payment by the Borrower to a Lender
of any amount of interest in excess of the maximum amount then permitted by Applicable Law with respect to any Loan, the interest
payments to that Lender shall be reduced to the extent necessary in order that such Lender shall not receive interest in excess
of such maximum amount. If, as a result of the foregoing, a Lender shall receive interest payments hereunder or under a Note in
an amount less than the amount otherwise provided hereunder, such deficit (hereinafter called the “
Interest Deficit
”)
will, to the fullest extent permitted by Applicable Law, cumulate and will be carried forward (without interest) until the termination
of this Credit Agreement. Interest otherwise payable to a Lender hereunder and under a Note for any subsequent period shall be
increased by the maximum amount of the Interest Deficit that may be so added without causing such Lender to receive interest in
excess of the maximum amount then permitted by Applicable Law with respect to the Loans.
The amount of any Interest Deficit relating
to a Loan and any Note shall be treated as a prepayment penalty and shall, to the fullest extent permitted by Applicable Law, be
paid in full at the time of any optional prepayment by the Borrower to the Lenders of all the Loans under the relevant Facility
at that time outstanding pursuant to Section 2.8(a) or Section 2.8(b). The amount of any Interest Deficit relating to
a particular Loan and Note at the time of any complete payment of the Loans at that time outstanding (other than an optional prepayment
thereof pursuant to Section 2.8(a) or Section 2.8(b) hereof and a termination of the Revolving Credit Commitments under
Section 2.10) shall be canceled and not paid.
|
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ARTICLE 4
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REPRESENTATIONS
AND WARRANTIES OF CREDIT PARTIES
|
In order to induce the Administrative Agent,
the Issuing Banks and the Lenders to enter into this Credit Agreement and to make the Loans and issue the Letters of Credit provided
for herein, the Credit Parties, jointly and severally, make the following representations and warranties to, and agreements with,
the Administrative Agent, the Issuing Banks and the Lenders on the date hereof and on the dates to the extent required pursuant
to Section 5.1 and Section 5.2, as applicable, all of which shall survive the execution and delivery of this Credit Agreement,
the issuance of the Notes and the making of the Loans and issuance of the Letters of Credit:
Section 4.1.
Existence
and Power
. (a) Each of the Credit Parties is a corporation, limited liability company or partnership duly organized, validly
existing and in good standing under the laws of its jurisdiction of organization and is qualified to do business and in good standing
in all jurisdictions where the nature of its properties or business so requires, except where the failure to be so qualified and
in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(b)
Each
of the Credit Parties has the power and authority (i) to own its respective properties and carry on its respective business as
now being conducted, except where the failure to have such power or authority would not, individually or in the aggregate, have
a Material Adverse Effect, (ii) to execute, deliver and perform, as applicable, its obligations under the Fundamental Documents,
(iii) in the case of the Borrower, to borrow the Loans hereunder, (iv) to grant to the Administrative Agent, for the benefit of
itself and the Secured Parties, a security interest in the Collateral, as contemplated by this Credit Agreement and the other Fundamental
Documents to which it is a party; and (v) in the case of the Guarantors, to guarantee the Obligations as contemplated by Article
9 hereof.
Section 4.2.
Authority
and No Violation
. The execution, delivery and performance of this Credit Agreement and the other Fundamental Documents to which
it is a party, by each Credit Party, the grant to the Administrative Agent for the benefit of the Administrative Agent and the
Secured Parties of the security interest in the Collateral, as contemplated herein and by the other Fundamental Documents and,
in the case of the Borrower, the Borrowings hereunder and the execution, delivery and performance of the Notes and, in the case
of each Guarantor, the Guarantee of the Obligations as contemplated in Article 9 hereof, (i) have been duly authorized by all necessary
corporate or company (as applicable) action on the part of each such Credit Party, (ii) will not constitute a violation of any
provision of Applicable Law or any order of any Governmental Authority applicable to such Credit Party, or any of its properties
or assets, (iii) will not violate any provision of the Certificate of Incorporation, By-Laws, limited liability company agreement
or any other organizational document of any Credit Party, (iv) will not violate any provision of any Distribution Agreement, indenture,
agreement, bond, note or other similar instrument to which such Credit Party is a party or by which such Credit Party or any of
its properties or assets are bound, (v) will not be in conflict with, result in a breach of, or constitute (with due notice or
lapse of time or both) a default under, or create any right to terminate, any such Distribution Agreement, indenture, agreement,
bond, note or other instrument, and (vi) will not result in the creation or imposition of any Lien, charge or encumbrance of any
nature whatsoever, other than any Permitted Lien, upon any of the properties or assets of any of the Credit Parties other than
pursuant to this Credit Agreement or the other Fundamental Documents, except, in the case of clauses (ii), (iv) and (v) above,
for any such conflict, breach, violation or default that would not, individually or in the aggregate, have a Material Adverse Effect.
Section 4.3.
Governmental
Approval
. All material authorizations, approvals, registrations or filings from or with any Governmental Authority (other than
UCC 1 and PPSA financing statements, the publication/registration of the notice with respect to the Hypothec, the Copyright Security
Agreement and the Trademark Security Agreement, filings with the UK Companies House, and any other filings necessary for granting
any lien or obtaining perfection, in each case which will be delivered to the Administrative Agent on or prior to the Closing Date
or otherwise in accordance with the Fundamental Documents, in form suitable for recording or filing with the appropriate filing
office)
required for the execution, delivery and performance by any Credit Party of this Credit Agreement and the other
Fundamental Documents to which it is a party, and the execution and delivery by the Borrower of the Notes, have been duly obtained
or made, and are in full force and effect, except for such authorizations, approvals, registrations or filings as would not adversely
affect the ability of the Borrower or the Guarantors to enter into or perform their obligations under the Fundamental Documents
or have a Material Adverse Effect.
Section 4.4.
Binding
Agreements
. This Credit Agreement and the other Fundamental Documents when executed, will constitute the legal, valid and binding
obligations of each Credit Party that is a party thereto, enforceable against such Credit Party in accordance with their respective
terms, subject, as to the enforcement of remedies, to applicable bankruptcy, insolvency, reorganization and similar laws affecting
creditors’ rights generally and to general principles of equity.
Section 4.5.
Financial
Statements
.
(a)
The
audited consolidated balance sheets of the Borrower and its Subsidiaries at March 31, 2016, March 31, 2015 and March 31, 2014,
together with the related statements of income, equity and cash flows and the related notes and supplemental information for the
fiscal years then ended, have been prepared in accordance with GAAP in effect as of such date consistently applied, except as otherwise
indicated in the notes to such financial statements. Such financial statements fairly present the financial position or the results
of operations of the Borrower and its Subsidiaries on a consolidated basis at the dates or for the periods indicated and reflect
all known liabilities, contingent or otherwise, that GAAP require, as of such dates, to be shown or reserved against.
(b)
The
unaudited condensed balance sheet of the Borrower and its Subsidiaries at September 30, 2016, together with the related statements
of income, equity and cash flows and the related notes and supplemental information for the fiscal quarter then ended, have been
prepared in accordance with GAAP in effect as of such date consistently applied, except as otherwise indicated in the notes to
such financial statements. Such financial statements fairly present the financial position or the results of operations of the
Borrower and its Subsidiaries on a consolidated basis at the date or for the period indicated and reflect all known liabilities,
contingent or otherwise, that GAAP require, as of such dates, to be shown or reserved against.
(c)
The
audited consolidated balance sheets of the Target and its Subsidiaries at December 31, 2015, December 31, 2014 and December 31,
2013, together with the related statements of income, equity and cash flows and the related notes and supplemental information
for the fiscal years then ended, have been prepared in accordance with GAAP in effect as of such date consistently applied, except
as otherwise indicated in the notes to such financial statements. Such financial statements fairly present the financial position
or the results of operations of the Target and its Subsidiaries on a consolidated basis at the dates or for the periods indicated
and reflect all known liabilities, contingent or otherwise, that GAAP require, as of such dates, to be shown or reserved against.
(d)
The
unaudited condensed balance sheet of the Target and its Subsidiaries at September 30, 2016, together with the related statements
of income, equity and cash flows and the related notes and supplemental information for the fiscal quarter then ended, have been
prepared in accordance with GAAP in effect as of such date consistently applied, except as otherwise indicated in the notes to
such financial statements. Such financial statements fairly present the financial position or the results of operations of the
Target and its Subsidiaries on a consolidated basis at the date or for the period indicated and reflect all known liabilities,
contingent or otherwise, that GAAP require, as of such dates, to be shown or reserved against.
(e)
The
Lenders have been furnished the pro forma consolidated balance sheet of the Borrower and its Subsidiaries (including the Target)
as of September 30, 2016 and the related pro forma consolidated statement of income of the Borrower and its Subsidiaries (including
the Target) for the twelve-months ended September 30, 2016 (such pro forma balance sheet and statement of income, the “
Pro
Forma Financial Statements
”), which have been prepared giving effect to the Acquisition and the Transactions as if such
events had occurred on such date (in the case of such balance sheet) or at the beginning of such period (in the case of the statement
of income). The Pro Forma Financial Statements have been prepared in good faith, based on assumptions believed by the Borrower
to be reasonable as of the date of delivery thereof, it being understood that any projections and estimates contained in such Pro
Forma Financial Statements 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 4.6.
No
Material Adverse Change; No Default; Solvency
. (a) There has been no material adverse change with respect to the business, assets,
properties, management, operations, or financial condition of the Credit Parties taken as a whole since March 31, 2016.
(b)
No
Default or Event of Default has occurred and is continuing or would result from the consummation of the transactions contemplated
by this Credit Agreement or any other Fundamental Document.
(c)
As
of the date hereof, immediately after giving effect to the consummation of the Transactions, (i) the fair value of the assets of
the Borrower and its Subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts and liabilities, direct,
subordinated, contingent or otherwise, of the Borrower and its Subsidiaries on a consolidated basis; (ii) the present fair saleable
value of the property of the Borrower and its Subsidiaries on a consolidated basis will be greater than the amount that will be
required to pay the probable liability of the Borrower and its Subsidiaries on a consolidated basis on their debts and other liabilities,
direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii) the Borrower
and its Subsidiaries on a consolidated basis will be able to pay their debts and liabilities, direct, subordinated, contingent
or otherwise, as such debts and liabilities become absolute and matured; and (iv) the Borrower and its Subsidiaries on a consolidated
basis will not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses
are now conducted and are proposed to be conducted following the Closing Date. As of the date hereof, immediately after giving
effect to the consummation of the Transactions, the Borrower does not intend to, and the Borrower does not believe that it or any
of its Subsidiaries will, incur debts beyond its ability to pay such debts as they mature, taking into account the timing and amounts
of cash to be received by it or any such Subsidiary and the timing and amounts of cash to be payable on or in respect of its debts
or the debts of any such Subsidiary.
Section 4.7.
Ownership
of Subsidiaries, etc
. (a) The outstanding shares or other equity interests of the Restricted Subsidiaries have been duly and
validly authorized and issued, are fully paid and non-assessable, except as would not reasonably be expected to have a Material
Adverse Effect. The outstanding shares or other Capital Stock of each Restricted Subsidiary that are owned directly or indirectly
by the Borrower, are owned free and clear of any lien, charge, encumbrance, hypothec, security interest, restriction on voting
or transfer or any other claim of any third party, other than (i) Permitted Liens or (ii) any restrictions on transfer under applicable
securities laws.
(b)
Annexed
hereto as Schedule 4.7(b) is a correct and complete list of all Unrestricted Subsidiaries as of the date hereof.
Section 4.8.
Title
to Properties
.
(a)
Except
as would not reasonably be expected to result in a Material Adverse Effect, the Credit Parties have good title to each of the properties
and assets owned thereby and all such properties and assets are free and clear of Liens, except Permitted Liens.
(b)
The
Borrower and its Restricted Subsidiaries possess all licenses, certificates, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate federal, state, provincial, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses,
except where the failure to possess or make the same would not, individually or in the aggregate, have a Material Adverse Effect;
and neither the Borrower nor any of its Restricted Subsidiaries has received notice of any revocation or modification of any such
license, certificate, permit or
authorization or has any reason to believe that any such license,
certificate, permit or authorization will not be renewed in the ordinary course, except as would not have a Material Adverse Effect.
(c)
The
Borrower and its Restricted Subsidiaries own or possess adequate rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses and know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) necessary for
the conduct of their respective businesses, except for the lack of which would not have, individually or in the aggregate, a Material
Adverse Effect; and the conduct of their respective businesses does not conflict in any material respect with any such rights of
others, and the Borrower and its Restricted Subsidiaries have not received any notice of any claim of infringement of or conflict
with any such rights of others that, if determined adversely to the Borrower or any of its Restricted Subsidiaries, would individually
or in the aggregate have a Material Adverse Effect.
Section 4.9.
Litigation
.
There are no actions, suits or other proceedings at law or in equity by or before any arbitrator or arbitration panel, or any Governmental
Authority (including, but not limited to, matters relating to environmental liability) or any investigation by any Governmental
Authority of the affairs of, or to the best of each Credit Party’s knowledge, threatened action, suit or other proceeding
against any Credit Party or of any of their respective properties or rights which either (A) if adversely determined, would reasonably
be expected to have a Material Adverse Effect or (B) exists on the Closing Date (or on the date of any Credit Extension after the
Closing Date to the extent that the applicable action, suit, proceeding or investigation is brought by the Borrower or any of its
subsidiaries) and challenges any Credit Party’s right or power to enter into or perform any of its obligations under the
Fundamental Documents to which it is a party, or the validity or enforceability of any Fundamental Document or any action taken
thereunder. No Credit Party is in default with respect to any order, writ, injunction, decree, rule or regulation of any Governmental
Authority binding upon such Person, which default would reasonably be expected to have a Material Adverse Effect.
Section 4.10.
Federal
Reserve Regulations
. No part of the proceeds of the Loans will be used, directly or indirectly, for any other purpose violative
of Regulations T, U and X of the Board.
Section 4.11.
Investment
Company Act
. No Credit Party is, or will be after giving effect to the making of the Loans on the Closing Date, an “investment
company”, within the meaning of the Investment Company Act of 1940, as amended.
Section 4.12.
Taxes
.
Each Credit Party has filed or caused to be filed all federal, state, local and foreign tax returns which are required to be filed
with any Governmental Authority after giving effect to applicable extensions, and has paid or has caused to be paid all taxes as
shown on said returns or on any assessment received by them in writing, to the extent that such taxes have become due, except in
any case in which the failure to so pay or file would not, individually or in the aggregate, have a Material Adverse Effect.
Section 4.13.
Compliance
with ERISA; Labor Disputes
. (a) Except as would not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect, (i) except with respect to Multiemployer Plans, each Qualified Plan has either received a favorable determination
letter from the Internal Revenue Service or may rely on a favorable opinion letter issued by the Internal Revenue Service, and
nothing has occurred that would cause the loss of such qualification or tax-exempt status; (ii) each Pension Plan is in compliance
in all respects with the applicable provisions of ERISA, the Code and its terms, including the timely filing of all reports required
under the Code or ERISA; (iii) neither any Credit Party nor ERISA Affiliate has failed to make any contribution or pay any
amount due as required by either Section 412 of the Code or
Section 302 of ERISA or the terms of any such Pension Plan; and (iv) no “prohibited transaction,” as defined in Section
406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan that would subject any Credit Party to a tax on
prohibited transactions imposed by Section 502(i) of ERISA or Section 4975 of the Code.
(b)
Except
as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect: (i) no Title IV
Plan is or is reasonably expected to be in “at risk” status (within the meaning of Section 430 of the Code or
Section 303 of ERISA); (ii) no ERISA Event has occurred or to the knowledge of any Credit Party is reasonably expected to
occur; (iii) there are no pending, or to the knowledge of any Credit Party, threatened material claims (other than claims for
benefits in the normal course), sanctions, actions or lawsuits, asserted or instituted against any Plan or any Person as
fiduciary or sponsor of any Plan; (iv) no Credit Party or ERISA Affiliate has incurred or reasonably expects to incur any
liability as a result of a complete or partial withdrawal from a Multiemployer Plan; and (v) within the last five years no
Title IV Plan of any Credit Party or ERISA Affiliate has been terminated, whether or not in a “standard
termination” as that term is used in Section 4041 of ERISA, nor has any Title IV Plan of any Credit Party or any ERISA
Affiliate (determined at any time within the last five years) with unfunded pension liabilities been transferred outside of
the “controlled group” (within the meaning of Section 4001(a)(14) of ERISA) of any Credit Party or ERISA
Affiliate (determined at such time).
(c)
Except
as disclosed to the Lenders on or prior to the Closing Date, no labor disturbance by or dispute with employees of the Borrower
or any of its Subsidiaries exists or, to the knowledge of the Borrower and each of the Guarantors, is contemplated or threatened
and neither the Borrower nor any Guarantor is aware of any existing or imminent labor disturbance by, or dispute with, the employees
of any of the Borrower’s or any of the Borrower’s Subsidiaries’ principal suppliers, contractors or customers,
except as would not have a Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries has received any notice of
cancellation or termination with respect to any collective bargaining agreement to which it is a party.
Section 4.14.
Non-U.S.
Plan Compliance
. Except as would not reasonably be expected to result in a Material Adverse Effect, each Non-U.S. Plan has
been maintained in compliance with its terms and with the requirements of any and all Applicable Laws, statutes, rules, regulations
and orders and has been maintained, where required, in good standing with applicable regulatory authorities. All contributions
required to be made with respect to a Non-U.S. Plan have been timely made, except as would not reasonably be expected to result
in a Material Adverse Effect. With respect to each Non-U.S. Plan, neither any Credit Party nor any Restricted Subsidiaries or
any of their respective directors, officers, employees or agents has engaged in a transaction which would subject any Credit Party
or any Restricted Subsidiary, directly or indirectly, to a tax or civil penalty which would reasonably be expected, individually
or in the aggregate, to result in a Material Adverse Effect. Except as would not reasonably be expected to result in a Material
Adverse Effect, the present value of the accrued benefit liabilities (whether or not vested) under each Non-U.S. Plan, determined
as of the end of the Credit Party’s most recently ended fiscal year on the basis of actuarial assumptions, each of which
is reasonable, did not materially exceed the current value of the assets of such Non-U.S. Plan allocable to such benefit liabilities.
No Non-U.S. Plan is a “registered pension plan” within the meaning of section 147.1 of the Income Tax Act (Canada)
and no Credit Party or any Restricted Subsidiaries have ever maintained, sponsored or contributed to any such “registered
pension plan”.
Section 4.15.
Agreements
.
(a) There exists no default by any Credit Party in the performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in any agreement or instrument (including, without limitation, any Distribution Agreement) to which it
is a party which would reasonably be expected to result in a Material Adverse Effect.
(b)
Schedule
4.15
is a true and complete listing as of the date hereof of all credit agreements, indentures, and other agreements or instruments
of indebtedness for borrowed money of any Credit Party (including all credit agreements related to production loans, which are
identified as such on such Schedule), other than the Fundamental Documents.
Section 4.16.
Creation,
Validity and Perfection of Security Interest
. The execution and delivery of this Credit Agreement and the Collateral Documents
is effective to create and grant to the Administrative Agent for the benefit of itself and the other Secured Parties, a valid and
enforceable security interest in the Collateral. Upon (i) the filing of UCC-1 and PPSA financing statements and the publication/registration
of the notice with respect to the Hypothec pursuant to CCQ, the Copyright Security Agreement and the Trademark Security Agreement
in the appropriate filing offices, (ii) the delivery of the Pledged Collateral (as defined in the Pledge and Security Agreement)
with appropriate stock powers and instruments of endorsement to the Administrative Agent and (iii) with respect to the Initial
Lux/UK Guarantors, the completion of the actions referred to in Section 6.17 (including for the avoidance of doubt, upon completion
of any perfection formalities applicable), the Collateral Documents shall be effective to create a fully perfected (to the extent
that perfection can be achieved by the actions described in the foregoing clauses (i), (ii) or (iii), as applicable) Lien on, and
security interest in, all right, title and interest of the Credit Parties in the Collateral as security for the Obligations, in
each case prior and superior in right to any other Person (except for Permitted Liens), subject, as to the enforcement of remedies,
to applicable bankruptcy, insolvency or reorganization or similar laws affecting creditors’ rights generally and to principles
of equity.
Section 4.17.
Disclosure
.
All information furnished in writing to the Administrative Agent for the benefit of the Administrative Agent, the Issuing Banks
and the Lenders by any Credit Party in connection with the transactions contemplated hereby (other than any projections, forward-looking
information and information of a general economic or industry nature), at the time it was furnished or delivered, did not contain
any untrue statement of a material fact regarding the Credit Parties or, when taken together with all such other agreements, documents,
certificates and statements, omit to state a material fact necessary under the circumstances under which it was made in order to
make the statements contained herein or therein not misleading.
Section 4.18.
Distribution
Rights
. Except as would not reasonably be expected to result in a Material Adverse Effect, each Credit Party has sufficient
right, title and interest in each item of Product to enable it (i) to enter into and perform all of the Distribution Agreements
to which it is a party and other agreements generating accounts receivable reflected on the most recent balance sheet delivered
to the Lenders pursuant hereto, and (ii) to charge, earn, realize and retain all fees and profits to which such Credit Party is
entitled thereunder. Each Credit Party is not in breach of any of its obligations under any such agreements, nor does any Credit
Party have any knowledge of any breach or anticipated breach by any other parties thereto, which breach in either case either individually
or when aggregated with all other such breaches would reasonably be expected to have a Material Adverse Effect.
Section 4.19.
Environmental
Liabilities
. (a) Except as would not reasonably be expected to have a Material Adverse Effect, (i) no Credit Party has used,
stored, treated, transported, manufactured, refined, handled, produced or disposed of any Hazardous Materials on, under, at, from
or in any way affecting, any of its properties or assets owned or leased by a Credit Party, in any manner which at the time of
the action in question violated any Environmental Law governing the use, storage, treatment, transportation, manufacture, refinement,
handling, production or disposal of Hazardous Materials and (ii) to the best of each Credit Party’s knowledge, no prior owner
of such property or asset or any tenant, subtenant, prior tenant or prior subtenant thereof has used Hazardous Materials on or
affecting such property or asset, or otherwise, in any manner which at the time of the action in question violated
any Environmental Law governing the use, storage, treatment,
transportation, manufacture, refinement, handling, production or disposal of Hazardous Materials.
(b)
To
the best of each Credit Party’s knowledge (i) no Credit Party has any obligations or liabilities, known or unknown, matured
or not matured, absolute or contingent, assessed or unassessed, which would reasonably be expected to have a Material Adverse Effect
and (ii) no claims have been made against any of the Credit Parties in the past five years and no presently outstanding citations
or notices have been issued against any of the Credit Parties, which would reasonably be expected to have a Material Adverse Effect,
which in the case of clauses (i) or (ii) have been or are imposed by reason of or based upon any provision of any Environmental
Law, including, without limitation, any such obligations or liabilities relating to or arising out of or attributable, in whole
or in part, to the manufacture, processing, distribution, use, treatment, storage, disposal, transportation or handling of any
Hazardous Materials by any Credit Party, or any of its employees, agents, representatives or predecessors in interest in connection
with or in any way arising from or relating to any of the Credit Parties or any of their respective owned or leased properties,
or relating to or arising from or attributable, in whole or in part, to the manufacture, processing, distribution, use, treatment,
storage, disposal, transportation or handling of any such substance, by any other Person at or on or under any of the real properties
owned or used by any of the Credit Parties or any other location where such would reasonably be expected to have a Material Adverse
Effect.
Section 4.20.
Compliance
with Laws
. No Credit Party is in violation of any Applicable Law except for such violations in the aggregate which would not
have a Material Adverse Effect.
Section 4.21.
Real
Property
. Except as set forth on Schedule 4.21, as of the Closing Date, each Credit Party does not have any ownership interest
in real property.
Section 4.22.
OFAC,
FCPA, etc
.
(a)
None
of the Credit Parties or any of their Subsidiaries (i) is a person whose property or interest in property is blocked or subject
to blocking pursuant to Section 1 and Annex A of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) engages, in any
dealings or transactions prohibited by executive order, or is otherwise associated with any such person in any manner violative
of such executive order, (iii) appears on any list maintained by the United States Department of the Treasury’s Office of
Foreign Assets Control (“
OFAC
”) of persons with whom U.S. persons are prohibited from dealing, including OFAC’s
Specially Designated Nationals and Blocked Persons List and Foreign Sanctions Evaders List, or is subject to the limitations or
prohibitions under any other OFAC regulation or executive order, or (iv) is a person subject to the limitations or prohibitions
under any other economic or trade sanctions issued by regulation or executive order of the U.S. Department of State, the U.S. Department
of Commerce, or the Canadian federal government (including the Special Economic Measures Act (SEMA)).
(b)
Each
Credit Party and its Subsidiaries is in compliance, in all material respects, with (i) the Trading with the Enemy Act, as amended,
and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as
amended) and any other enabling legislation or executive order relating thereto, and (ii) the USA Patriot Act.
(c)
No
part of the proceeds of the Loans will be used, directly or, to the knowledge of the Borrower, indirectly, (i) 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 improperly obtain, retain or direct business or obtain
any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended; (ii) for the purpose
of financing the activities of any person currently the subject of sanctions administered by OFAC, the U.S. Department of State,
the U.S. Department of Commerce, or the Canadian federal government; or (iii) for the purpose of financing any transactions or
dealings with the governments of, or with any person resident in, Cuba, Iran, North Korea, Sudan, Syria, or the Crimea region of
Ukraine.
Section 4.23.
Use
of Proceeds
.
(a)
The
proceeds of the Revolving Loans, and Letters of Credit to be issued, will be used (A) on the Closing Date, to (i) to fund Transaction
Expenses in connection with the Acquisition in an aggregate amount not to exceed $150,000,000, (ii) for working capital purposes
in an aggregate amount not to exceed $100,000,000, and (iii) to replace, backstop or cash collateralize letters of credit of the
Borrower and its Subsidiaries outstanding on the Closing Date; and (B) after the Closing Date, for working capital needs and for
other general corporate purposes of the Borrower and its Subsidiaries, including the financing of acquisitions and Investments
permitted hereunder.
(b)
The
proceeds of the Term Loans will be used on the Closing Date to finance all or a portion of the purchase price for the payment of
the Acquisition, the Closing Date Refinancing and/or the payment of Transaction Expenses.
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ARTICLE 5
|
CONDITIONS PRECEDENT
|
Section 5.1.
Conditions
to Initial Credit Extension
. The obligation of each Lender to make a Credit Extension hereunder on the Closing Date is subject
to satisfaction in full of the following conditions precedent:
(a)
Corporate
Documents
. The Administrative Agent shall have received, with copies for each of the Lenders:
(i)
a
copy of the articles or certificate of incorporation or other organizational document of each Credit Party, duly certified by the
Secretary of such Credit Party;
(ii)
to
the extent available, a certificate of the Secretary of State or other appropriate governmental official of each Credit Party’s
jurisdiction of incorporation or organization, dated as of a recent date as to the good standing of each Credit Party;
(iii)
a
certificate of the Secretary of each Credit Party, dated the Closing Date and certifying:
(A) that attached thereto is a true and complete copy
of the by-laws, articles or limited liability company agreement, as the case may be, of such party as in effect on the date of
such certification;
(B) that attached thereto is a true and complete copy
of the resolutions adopted by the Board of Directors of such party authorizing the execution, delivery and performance in accordance
with their respective terms of the Fundamental Documents executed by such Credit Party and any other documents required or contemplated
hereunder or thereunder, the grant of the security interests in the Collateral, and in the case of the Borrower, the borrowings
hereunder, and that
such resolutions have not been amended, rescinded
or supplemented and are currently in effect;
(C) either (I) that the certificate of incorporation
or organization or other similar organizational document of such party has not been amended since the date of the last amendment
thereto indicated on the certificates of the Secretary of State or other appropriate governmental official furnished pursuant to
clause (i) above or (II) that attached thereto is a true and complete copy of such certificate or other organizational document
including all amendments thereto; and
(D) as to the incumbency and specimen signature of
each officer of such party executing any Fundamental Document;
(b)
Credit
Agreement
. The Administrative Agent shall have received executed counterparts of this Credit Agreement, which, when taken together,
bear the signatures of the Administrative Agent, all of the Credit Parties and all of the Lenders.
(c)
Opinion
of Counsel
. The Administrative Agent shall have received the written opinions of (i) Dentons Canada LLP, Canadian counsel to
the Credit Parties, (ii) Wachtell, Lipton, Rosen & Katz, special New York counsel to the Credit Parties, and (iii) Wayne Levin,
Esq., General Counsel and California counsel for the Credit Parties and addressed to the Administrative Agent and the Lenders which
opinions shall be in form and substance satisfactory to the Administrative Agent.
(d)
Security
and Other Documentation
. The Administrative Agent shall have received fully executed copies of (i) the Pledge and Security
Agreement, executed by each Credit Party party thereto; (ii) a Copyright Security Agreement executed by each Credit Party party
thereto; (iii) a Trademark Security Agreement executed by each Credit Party party thereto; (iv) a Parent Security Agreement executed
by each Credit Party party thereto; (v) a Hypothec (and all related agreements and instruments) executed by each Credit Party domiciled
in the Province of Québec and each Credit Party where Collateral with respect to such Credit Party is located therein, or
perfection of a Lien in such Collateral is required under the Applicable Laws of the Province of Québec or under any applicable
PPSA; and (vi) appropriate UCC-1 and PPSA financing statements (or CCQ financing statements or comparable documents, if and as
applicable) relating to the Collateral.
(e)
Financial
Statements
. The Administrative Agent shall have received all financial statements referred to in Section 4.5.
(f)
Solvency
Certificate
. The Administrative Agent shall have received a Solvency Certificate signed by the chief financial officer of the
Borrower.
(g)
Payment
of Fees
. All fees required to be paid on the Closing Date pursuant to the Fee Letters and reasonable and invoiced out-of-pocket
expenses required to be paid on the Closing Date, in the case of expenses, to the extent invoiced at least three business days
prior to the Closing Date shall, upon the initial Credit Extension, have been paid (which amounts may be offset against the proceeds
of the initial Credit Extension).
(h)
UCC/PPSA
Searches
. The Administrative Agent shall have received UCC, PPSA, copyright office and other searches satisfactory to it indicating
that no other filings, encumbrances or transfers (other than in connection with Permitted Liens) with regard to the Collateral
are of record in any jurisdiction in which it shall be necessary or desirable for the Administrative Agent to make a UCC or
PPSA filing in order to provide the Administrative Agent (for
the benefit of the Secured Parties) with a perfected security interest in the Collateral.
(i)
USA
Patriot Act
. The Administrative Agent shall have received at least three Business Days prior to the Closing Date any information
requested at least ten Business Days prior to the Closing Date by the Administrative Agent that such Administrative Agent reasonably
determines is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules
and regulations, including without limitation the USA Patriot Act.
(j)
Notice
.
The Administrative Agent shall have received a notice with respect to the Credit Extension to be made on the Closing Date as required
by Section 2.5 hereof.
(k)
Notes
.
The Administrative Agent shall have received Notes executed by the Borrower in favor of each Lender that has requested such a Note.
(l)
No
Company Material Adverse Effect
. Since June 27, 2016, there shall not have occurred and be continuing any event, occurrence,
fact, condition, change, development or effect that has had or would reasonably be expected to have a Company Material Adverse
Effect.
(m)
Acquisition
.
The Acquisition shall have been consummated, or substantially simultaneously with the initial Credit Extension to be made on the
Closing Date, shall be consummated, in all material respects in accordance with the terms of the Merger Agreement, without giving
effect to any modifications, amendments, consents or waivers thereto by the Borrower or Merger Sub or any of their affiliates (other
than, for the avoidance of doubt, the Target or any of its affiliates) that are material and adverse to the Lenders or the Arrangers
in their capacities as such without the prior consent of the Arrangers (such consent not to be unreasonably withheld, delayed or
conditioned). For purposes of the foregoing condition, it is understood and agreed that (i) any increase in the purchase price
of not more than 20% in connection with the Acquisition shall not be deemed to be material and adverse to the interests of the
Lenders or the Arrangers (provided that such increases are funded with equity), (ii) any increase in purchase price that is not
funded by any incurrence of Indebtedness shall not be deemed to be material and adverse to the interests of the Lenders or the
Arrangers and (iii) any reduction in the purchase price shall not be deemed to be material and adverse to the interests of the
Lenders or the Arrangers;
provided
that any such reduction of the purchase price shall be allocated to a reduction of the
Facilities (other than the Revolving Facility) on a pro rata basis.
(n)
Merger
Agreement Representations and Specified Representations
. The Specified Merger Agreement Representations and the Specified Representations
shall be true and correct in all material respects taken as a whole,
provided
that, notwithstanding the foregoing or anything
to the contrary in this Credit Agreement or any other Fundamental Document, to the extent any Specified Representation would not
be true and correct due to the failure by the Borrower or any Guarantor to provide any lien search, guaranty or any Collateral
(or to create or perfect of any security interest therein) on the Closing Date (other than (x) execution and delivery of a customary
guaranty (in the case of Guarantors organized in the United States or Canada or any state or province thereof, other than Québec)
and personal property security agreement (in the case of the Borrower and all Guarantors organized in the United States or Canada
or any state thereof), (y) delivery of stock or other equity certificates of subsidiaries of the Borrower or a Guarantor organized
in the United States or Canada or any state or province thereof, other than Québec, that are Material Specified Guarantors
to the extent such equity securities are owned by the Borrower or any Guarantor organized in the United States, Canada or any state
or province thereof, other than Québec (with respect to the Target and its subsidiaries, to the extent received from the
Target after the Borrower has used commercially reasonable efforts to obtain them on the Closing Date) and (z) the perfection of
security interests in assets with respect to which a lien may be
perfected by the filing of a financing statement under the Uniform
Commercial Code (or, with respect to Canada, the Personal Property Security Act (but not, for the avoidance of doubt, the Civil
Code of Québec))) after the Borrower’s use of commercially reasonable efforts to do so, the accuracy of such Specified
Representation shall not be a condition precedent to the availability of any Credit Extension on the Closing Date.
(o)
Closing
Date Refinancing
. The Closing Date Refinancing shall have been consummated substantially concurrently with the initial Credit
Extension to be made on the Closing Date.
Notwithstanding the foregoing or anything
to the contrary in this Credit Agreement or any other Fundamental Document, to the extent any lien search, guaranty or any Collateral
(or the creation or perfection of any security interest therein) is not or cannot be provided and/or perfected on the Closing Date
(other than (x) execution and delivery of a customary guaranty (in the case of Guarantors organized in the United States or Canada
or any state or province thereof, other than Québec) and personal property security agreement (in the case of the Borrower
and all Guarantors organized in the United States or Canada or any state thereof), (y) delivery of stock or other equity certificates
of subsidiaries of the Borrower or a Guarantor organized in the United States or Canada or any state or province thereof, other
than Québec, that are Material Specified Guarantors to the extent such equity securities are owned by the Borrower or any
Guarantor organized in the United States, Canada or any state or province thereof, other than Québec (with respect to the
Target and its subsidiaries, to the extent received from the Target after the Borrower has used commercially reasonable efforts
to obtain them on the Closing Date) and (z) the perfection of security interests in assets with respect to which a lien may be
perfected by the filing of a financing statement under the Uniform Commercial Code (or, with respect to Canada, the Personal Property
Security Act (but not, for the avoidance of doubt, the Civil Code of Québec))) after the Borrower’s use of commercially
reasonable efforts to do so, then the provision of such lien search, guaranty or Collateral (or the creation or perfection of any
security interest therein) shall not constitute a condition precedent to the availability of any Credit Extension on the Closing
Date, but instead shall be required to be delivered within 60 days after the Closing Date (or such later date as may be agreed
by the applicable Administrative Agent, in its sole discretion).
For purposes of determining compliance with
the conditions specified in this Section 5.1, each Lender that has signed this Credit Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved
by or acceptable or satisfactory to a Lender unless an officer of the Administrative Agent responsible for the transactions contemplated
by this Credit Agreement shall have received notice from such Lender prior to the proposed Closing Date specifying its objection
thereto in reasonable detail. The Administrative Agent shall promptly notify the Lenders and the Borrower in writing of the
occurrence of the Closing Date.
Section 5.2.
Conditions
to Each Subsequent Credit Extension
. The obligation of each Lender to make a Credit Extension hereunder after the Closing Date
is subject to satisfaction in full of the following conditions precedent:
(a)
Representations
and Warranties
. Each of the representations and warranties made by any Credit Party in or pursuant to the Fundamental Documents
shall be true and correct in all material respects (or in all respects, if qualified by a materiality threshold) on and as of such
date as if made on and as of such date (except to the extent that such representations and warranties expressly relate to an earlier
date).
(b)
No
Default
. No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the extensions
of credit requested to be made on such date.
(c)
Revolving
Credit Availability
. After giving effect to any requested extension of credit, the aggregate principal amount of all Revolving
Loans and L/C Obligations under this Credit Agreement shall not exceed the aggregate Revolving Credit Commitments.
(d)
Other
.
(i) In the case of Loans, the Administrative Agent shall have received the notice required by Section 2.5 hereof, (ii) in
the case of the issuance of any Letter of Credit the applicable Issuing Bank shall have received a duly completed Application,
and/or (iii) in the case of an extension or increase in the amount of a Letter of Credit, the applicable Issuing Bank shall have
received a written request therefor in a form reasonably acceptable to the applicable Issuing Bank.
Each Borrowing by and issuance of a Letter
of Credit on behalf of the Borrower hereunder shall constitute a representation and warranty by the Borrower as of the date of
such extension of credit that the conditions contained in this Section 5.2 have been satisfied.
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ARTICLE 6
|
AFFIRMATIVE COVENANTS
|
From the date hereof and for so long as
the Revolving Credit Commitments shall be in effect, any Loan shall remain outstanding, or L/C Exposure shall remain outstanding
or any monetary Obligation then due and payable shall remain unpaid or unsatisfied (other than with respect to a Specified Swap
Agreement or Specified Cash Management Agreement):
Section 6.1.
Financial
Statements and Other Information
.
(a)
Within
45 days after the end of each fiscal quarter of the Borrower not corresponding with the fiscal year end of the Borrower, commencing
with the first fiscal quarter ending after the Closing Date, the Borrower shall deliver to the Administrative Agent (for delivery
to the Lenders) the Borrower’s consolidated balance sheet as at the end of such fiscal quarter and the related consolidated
statements of income, and 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 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.
(b)
Within
90 days after the close of each fiscal year of the Borrower (commencing with the fiscal year of the Borrower ending after the Closing
Date), the Borrower shall deliver to the Administrative Agent (for delivery to the Lenders) 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, cash
flows and shareholders’ equity for the fiscal year then ended, and accompanying notes thereto, each in reasonable detail
and showing in comparative form the figures for the previous fiscal year, accompanied by a report thereon of Ernst & Young
LLP or another 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 (which report shall be unqualified as to scope of such audit
and shall not contain any “going concern”, other than solely with respect to, or resulting solely from, an upcoming
maturity date under any Indebtedness incurred under this Credit Agreement occurring within one year from the time such opinion
is delivered).
(c)
Within
90 days after the commencement of each fiscal year of the Borrower, the Borrower shall deliver to the Administrative Agent (for
delivery to the Lenders) an annual budget for the Borrower and its Subsidiaries for such fiscal year in a form customarily prepared
by management of the Borrower for its internal use (including a projected consolidated balance sheet and consolidated statements
of income and capital expenditures as of the end of and for such fiscal year).
(d)
The
Borrower shall deliver to the Administrative Agent (for delivery to the Lenders) (i) within 45 days after the close of each of
the first three (3) fiscal quarters of the Borrower, a customary management discussion and analysis of the Borrower’s and
its Subsidiaries’ financial performance for that fiscal quarter and a comparison of financial performance for that financial
quarter to the corresponding fiscal quarter of the previous fiscal year and (ii) within 90 days after the close of each fiscal
year, a management discussion and analysis of the Borrower’s and its Subsidiaries’ financial performance for that fiscal
year and a comparison of financial performance for that fiscal year to the prior year.
(e)
For
purposes of this Section 6.1, the Borrower and the Guarantors will be deemed to have furnished the reports and other information
to the Lenders as required by this Section 6.1 if the Borrower has filed such reports with the SEC via the EDGAR or any successor
filing system and such reports are publicly available.
(f)
The
Borrower will also hold a conference call each quarter to discuss such results of operations for the relevant reporting period,
which conference call may be with Lenders only or may be with investors generally (including, for the avoidance of doubt, earnings
calls consistent with past practice).
Section 6.2.
Compliance
Certificate and Other Information
.
(a)
At
the time of the delivery or making available of the annual and quarterly financial statements pursuant to Section 6.1(a) and
Section 6.1(b), the Borrower shall deliver to the Administrative Agent (for delivery to the Lenders) a Compliance Certificate
signed by the chief financial officer or other financial or accounting Officer of the Borrower (w) 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 Default, (x) to the extent
the Revolving Facility or Term Loan A Facility remains outstanding, showing the Borrower’s compliance with the financial
ratios set forth in Section 7.9(a) and (b) and (y) solely in connection with the delivery of financial statements pursuant
to Section 6.1(b) for any fiscal year beginning with the first full fiscal year ended after the Closing Date and solely to
the extent the Term B Facility remains outstanding, if the Net First Lien Leverage Ratio calculated on a Pro Forma Basis as of
the last day of such fiscal year is greater than 4.00:1.00, calculating Excess Cash Flow for such fiscal year.
(b)
The
Borrower shall provide to the Administrative Agent, within 10 days after receiving knowledge of the occurrence thereof, (i) written
notice of any events which would constitute a Default, their status and what action the Borrower is taking or proposing to take
in respect thereof, (ii) written notice of the commencement of, or threat in writing of, any action, suit or proceeding, whether
at
law or in equity or by or before any Governmental Authority
or in arbitration, against the Borrower or any of the Restricted Subsidiaries as to which an adverse determination is reasonably
probable and which would reasonably be expected to result in a Material Adverse Effect, and (iii) any other event which would reasonably
be expected to result in a Material Adverse Effect.
(c)
The
Borrower shall provide to the Administrative Agent, from time to time, such other information or documents (financial or otherwise)
as the Administrative Agent may reasonably request (for itself or on behalf of any Lender);
provided
that the Administrative
Agent may request such information in its capacity as Administrative Agent only and may not use such information for any purpose
other than a purpose reasonably related to its capacity as Administrative Agent.
Information and documents required to be
delivered pursuant to Section 6.1 or this Section 6.2 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.
Section 6.3.
Taxes
.
The Borrower shall pay, and shall cause each of its Restricted Subsidiaries to pay, prior to delinquency, all taxes, assessments
and governmental levies except such as are contested in good faith and by appropriate negotiations or proceedings or where the
failure to make payment could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
Section 6.4.
Corporate
Existence
. Except as (i) permitted by Section 7.6 or (ii) with respect to clause (a) (other than the Borrower and LGEI
(but, for the avoidance of doubt, not the Restricted Subsidiaries thereof, other than LGEI)) or (b), would not reasonably be expected
to result in a Material Adverse Effect, the Borrower shall do or cause to be done all things necessary to preserve and keep in
full force and effect (a) its corporate existence and the corporate, partnership, limited liability company, unlimited liability
company or other existence of each of its Restricted Subsidiaries, in accordance with the respective organizational documents (as
the same may be amended from time to time) of the Borrower or any such Restricted Subsidiary and (b) the rights (charter and statutory),
licenses and franchises of the Borrower and its Restricted Subsidiaries necessary to the conduct of its business or the business
of any of its Restricted Subsidiaries.
Section 6.5.
Maintenance
of Properties and Insurance
.
(a)
The
Borrower will cause all properties used or useful in the conduct of its business or the business of any of its Restricted Subsidiaries
to be maintained and kept in good condition, repair and working order as in the judgment of the Borrower may be necessary so that
the business of the Borrower and its Restricted Subsidiaries may be properly conducted at all times;
provided
that
nothing in this Section 6.5 prevents the Borrower or any Restricted Subsidiary from discontinuing the use, operation or maintenance
of any of such properties or disposing of any of them, if such discontinuance or disposal (i)(A) is, in the judgment of the Borrower,
desirable in the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole or (B) would not reasonably
be expected to have a Material Adverse Effect.
(b)
The
Borrower will provide or cause to be provided, for itself and its Restricted Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds that, in the good faith opinion of the Borrower, is adequate and appropriate for the conduct
of the business of the Borrower and its Restricted Subsidiaries.
Section 6.6.
Books
and Records
. The Borrower will, and will cause each Restricted Subsidiary to, maintain proper books of record and account in
which entries that are full, true and correct in all material respects and are in conformity with GAAP consistently applied shall
be made of all material financial transactions and matters involving the assets and business of the Borrower or its Restricted
Subsidiary, as the case may be.
Section 6.7.
Inspection
Rights
. The Borrower will, and will cause each Restricted Subsidiary to, permit officers, designated representatives and agents
of the Administrative Agent (or during the occurrence and continuation of any Event of Default, any Lender solely if accompanying
the Administrative Agent), to visit and inspect any tangible property of the Borrower or such Restricted Subsidiary, and to examine
the books of account of the Borrower or such Restricted Subsidiary and discuss the affairs, finances and accounts of the Borrower
or such Restricted Subsidiary with its and their officers and independent accountants, all at such reasonable times during normal
business hours as the Administrative Agent may request;
provided
that (i) reasonable 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 6.7 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 (iii) the Administrative
Agent may conduct inspections pursuant to this Section 6.7 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 the Borrower a reasonable opportunity to participate
in any discussions with the Borrower’s independent public accountants.
Section 6.8.
Compliance
with Laws
. The Borrower shall, and shall cause each Restricted Subsidiary to, comply in all respects with all Applicable Laws,
where any such non-compliance, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
Section 6.9.
Compliance
with Agreements
. Except as would not reasonably be expected to result in a Material Adverse Effect, the Borrower shall, and
shall cause each Restricted Subsidiary to duly observe and perform all material terms and conditions of all agreements with respect
to the production, distribution and/or exploitation of items of Product and diligently protect and enforce the rights of the Credit
Parties under all such agreements in a manner consistent with prudent business judgment and subject to the terms and conditions
of such agreements.
Section 6.10.
ERISA
Event Notice
. Promptly following receipt thereof, the Borrower shall furnish copies of (i) any documents described in Sections
101(k) or 101(l) of ERISA that any Credit Party or any ERISA Affiliate may request with respect to any Multiemployer Plan or any
documents described in Section 101(f) of ERISA with respect to any Title IV Plan or any Multiemployer Plan provided to or received
by any Credit Party or any ERISA Affiliate; provided, that if the relevant Credit Parties or ERISA Affiliates have not requested
or received such documents or notices, as applicable, from the administrator or sponsor of the applicable Multiemployer Plan, then,
upon reasonable request of the Administrative Agent, such Credit Party or the ERISA Affiliate shall promptly make a request for
such documents or notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices
to the Administrative Agent promptly after receipt thereof. As soon as possible upon becoming aware of the occurrence of any ERISA
Event that has resulted or would reasonably be expected to result in material liability to any Credit Party, the Borrower shall
furnish Administrative Agent a written notice specifying the nature thereof, what action the Credit Party or any of
their respective ERISA Affiliates has taken, is taking or proposes
to take with respect thereto and, when known, any action taken or threatened by the Internal Revenue Service, the U.S. Department
of Labor or the Pension Benefit Guarantee Corporation with respect thereto; and (ii) with reasonable promptness, and upon the Administrative
Agent’s request, furnish copies of each Schedule SB (Actuarial Information) to the annual report (Form 5500 Series) filed
by any of the Credit Parties or any of their respective ERISA Affiliates with the Internal Revenue Service with respect to each
Title IV Plan.
Section 6.11.
Non-U.S.
Plan Compliance and Reports
.
(a)
Each
Credit Party and each of their applicable Subsidiaries shall cause all Non-U.S. Plans administered by it, or into which it is required
to make payments, obtains or retains (as applicable) registered status under and as required by applicable law and is administered
in a timely manner in all respects in compliance with all applicable laws, except where the failure to do so would not result in
a Material Adverse Effect.
(b)
The
Borrower shall furnish to the Administrative Agent as soon as possible, and in any event within twenty (20) Business Days after
receipt, copies of any notices received by any Credit Party or any of their Subsidiaries with respect to any Non-U.S. Plan with
respect to which there would reasonably be expected to result in a Material Adverse Effect.
Section 6.12.
Environmental
Laws
.
(a)
The
Borrower shall promptly notify the Administrative Agent upon any Credit Party becoming aware of any violation or potential violation
or non-compliance with, or liability or potential liability under any Environmental Laws which, when taken together with all other
actual or pending violations or liabilities under any Environmental Laws would reasonably be expected to have a Material Adverse
Effect, and promptly furnish to the Administrative Agent all notices of any nature which any Credit Party may receive from any
Governmental Authority or other Person with respect to any violation, or potential violation or non-compliance with, or liability
or potential liability under any Environmental Laws which, in any case or when taken together with all such other notices, could
reasonably be expected to have a Material Adverse Effect.
Section 6.13.
Additional
Guarantors
.
(a)
The
Borrower shall not, as of the last day of each fiscal quarter of the Borrower, to the extent that as of such date the Net Total
Leverage Ratio is greater than 4.00 to 1.00, permit the Credit Parties, taken as a whole, to represent less than (A) 70% of the
consolidated revenue (calculated on a Pro Forma Basis) for the then-ended Test Period or (B) 70% of the total assets as of such
date, in each case of the Borrower and the Restricted Subsidiaries (other than any Special Purpose Producer which is not a Guarantor
pursuant to clause (l) of the definition of Excluded Subsidiary) on a consolidated basis.
(b)
Promptly
(i) after formation or acquisition of any new Wholly-Owned Subsidiary other than an Excluded Subsidiary after the Closing Date,
(ii) to the extent required to comply with the provisions of Section 6.13(a), after the delivery of the most recent financial
statements delivered or required to be delivered pursuant to Section 6.1 or (iii) after any Restricted Subsidiary that is
not a Credit Party Guarantees any Material Indebtedness of the Borrower, the Credit Parties shall cause such new or additional
Restricted Subsidiary (and, without limiting the foregoing, the Borrower may, in its sole discretion, cause any other Restricted
Subsidiary including any Excluded Subsidiary which is organized in an Approved Jurisdiction), to execute and deliver to the Administrative
Agent a Joinder Agreement to this Credit Agreement or such other document as the Administrative Agent shall reasonably deem appropriate
for such purpose pursuant to which such Restricted Subsidiary will agree to be a Guarantor
under this Credit Agreement and be bound by the terms of this
Credit Agreement applicable to Guarantors, including, but not limited to, Article 9.
Section 6.14.
Further
Assurances
.
(a)
If
(i)(A) property (other than Excluded Assets) is acquired by the Borrower or a Guarantor (other than property acquired by a Guarantor
which is organized outside of the United States or Canada and which is not of the type covered by the Collateral Documents governed
by the law of such Guarantor’s jurisdiction then outstanding), or (B) property that is owned by the Borrower or a Guarantor
which had been an Excluded Asset ceases to be an Excluded Asset, and in either case such property is not automatically subject
to a perfected security interest under the Collateral Documents or (ii) a Subsidiary of the Borrower becomes a Guarantor under
this Credit Agreement, then the Borrower or such Guarantor will, as soon as reasonably practical (and in any event within 20 Business
Days, or such longer period as (1) provided in the second-to-last sentence of this Section 6.14(a), (2) provided in Section 6.14(b)
below with respect to owned real property or (3) otherwise agreed to by the Administrative Agent) after such property’s acquisition
or its no longer being an Excluded Asset or such Subsidiary’s becoming a Guarantor, as applicable, provide security over
such property or the assets of such Guarantor in favor of the Administrative Agent on a basis that would provide a perfected Lien
on such terms, in each case, consistent with the Collateral Documents, and take such additional actions (including any of the actions
described in this Section 6.14) as the Administrative Agent may deem reasonable and appropriate or advisable to create and
fully perfect in favor of the secured parties under the Collateral Documents a valid and enforceable security interest in such
Collateral. To the extent that any Collateral Document provides that, as to any property or asset, the Borrower or the Guarantors
shall have greater than 20 Business Days to grant or perfect a security interest, or that the Borrower or the Guarantors need only
use commercially reasonable efforts to grant or perfect a security interest, or otherwise limits the obligations of the Borrower
or the Guarantors to comply with this Section 6.14(a), the provisions of such Collateral Document shall control.
(b)
Within
90 days of the purchase by the Borrower or the Guarantors of any owned real property which is not an Excluded Asset, the Borrower
shall (i) furnish and deliver to the Administrative Agent an executed mortgage with respect to such real property and (ii) use
commercially reasonable efforts to furnish and deliver to the Administrative Agent a title insurance policy for the benefit of
the Administrative Agent in the amount of 120% of the Fair Market Value of such real property with extended coverage covering the
real property as well as a current ALTA survey thereof, together with a surveyor’s certificate unless the title insurance
policy referred to above shall not contain an exception for any matter shown by a survey (except to the extent an existing survey
has been provided and specifically incorporated into such title insurance policy), each in form and substance reasonably satisfactory
to the Administrative Agent. If any portion of any mortgaged property is at any time located in an area identified by the Federal
Emergency Management Agency (or any successor agency) as a special flood hazard area with respect to which flood insurance has
been made available under the Flood Insurance Laws, then the Borrower shall, or shall cause each Guarantor to (A) prior to the
delivery of any such executed mortgage for such property, deliver to the Administrative Agent (for further distribution to the
Lenders) advance notice of the location of any such property as required to permit the Administrative Agent and the Lenders to
determine whether such property is located in any such special flood hazard area, (B) maintain, or cause to be maintained, with
a financially sound and reputable insurer, flood insurance in an amount and other-wise sufficient to comply with all applicable
rules and regulations promulgated pursuant to the Flood Insurance Laws and (C) cooperate with the Administrative Agent and provide
information reasonably required by the Administrative Agent to comply with the Flood Insurance Laws and (iii) deliver to the Administrative
Agent evidence of such compliance in form and substance reasonably acceptable to the Administrative Agent, including, without limitation,
evidence of annual renewals of such insurance,
provided
that, notwithstanding this clause (b), (i) no such security interest
shall be granted by the applicable Credit Party nor accepted
by the Administrative Agent until the Administrative Agent has received confirmation that each Lender under the Term A Facility
and Revolving Facility has completed its flood insurance due diligence to its reasonable satisfaction (it being understood that
such satisfactory due diligence of such Lenders shall be deemed completed to the extent the Administrative Agent has not received
written notice to the contrary within ten (10) Business Days after notice of location of such property has been made available
to the Lenders), and (ii) to the extent real property which is not an Excluded Asset is acquired by any Guarantor organized outside
of the United States or Canada, such Guarantor may (I) comply with this clause (b), (II) provide security over such real property
pursuant to documentation and procedures customary in its jurisdiction as reasonably agreed between the Borrower and the Administrative
Agent or (III) if agreed to by the Administrative Agent in its sole discretion, not provide any security over such real property.
(c)
Upon
the reasonable request of the Administrative Agent, the Borrower and each of the Guarantors will make, execute, endorse, acknowledge,
file, record, register and/or deliver such agreements, documents, instruments, and further assurances (including, without limitation,
UCC, CCQ and PPSA financing statements, mortgages, hypothecs, deeds of trust, vouchers, invoices, schedules, confirmatory assignments,
conveyances, transfer endorsements, powers of attorney, certificates, real property surveys and reports), and take such other actions,
as may be required under Applicable Law or as the Administrative Agent may deem reasonably appropriate or advisable to create,
perfect, preserve or protect the security interest in the Collateral of the secured parties under the Collateral Documents, all
at the Borrower’s expense;
provided
that, notwithstanding anything herein or in any other Fundamental Document to
the contrary, under no circumstances will the Borrower or any Guarantor be obligated to enter into any pledgeholder, laboratory
access or similar arrangements or deposit account control agreements, securities account control agreements, or other lockbox or
control agreements, or to obtain bailee agreements or landlord or mortgagee waivers, or to send any notices to account debtors
or other contractual third parties unless an Event of Default has occurred and is continuing. Additionally, notwithstanding anything
in this Agreement or in any other Fundamental Document to the contrary, under no circumstances will the Borrower or any Guarantor
be obligated to (i) enter security agreements or pledge agreements or similar agreements governed under the laws of any non-U.S.
or non-Canadian jurisdiction or (ii) take any other actions in any non-U.S. or non-Canadian jurisdiction to create or perfect any
security interests, except in each case to the extent the Borrower elects to add any Guarantor organized outside of the U.S. or
Canada, in which case the Borrower will cause such Guarantor to enter into customary security and pledge agreements consistent
with the terms of this Agreement governed by the law of such jurisdiction, and the Administrative Agent (with the cooperation of
such Guarantor) may take customary actions to create and perfect security interests on the assets of such Guarantor in such jurisdiction.
Section 6.15.
OFAC,
FCPA
.
(a)
The
Borrower will use the proceeds of each Extension of Credit in accordance with Section 4.22(c) and Section 4.23.
(b)
The
Borrower will maintain in effect and enforce policies and procedures designed to promote compliance by the Borrower, its Subsidiaries
and their respective directors, officers and employees with the provisions of Section 4.22.
Section 6.16.
Maintenance
of Ratings
. The Borrower will use commercially reasonable efforts to cause to be maintained at all times (a)(i) a corporate
family rating, in the case of Moody’s or (ii) an issuer credit rating, in the case of S&P, for the Borrower and (b) credit
ratings for the Facilities from Moody’s and S&P, but in the case of clauses (a) and (b), for the avoidance of doubt,
not any specific rating.
Section 6.17.
Post-Closing
Actions
.
The Borrower and each other Credit Party shall
take each action set forth on Schedule 6.17 within the period set forth on such Schedule 6.17 for such action;
provided
that
, in each case, the Administrative Agent may, in its sole reasonable discretion, grant extensions of the time periods
set forth on such Schedule 6.17 and, each representation or warranty which would be true, each covenant or agreement which would
be complied with, and each condition which would be satisfied, in each case as set forth in any Fundamental Document, but for an
action set forth on Schedule 6.17 not having been completed, will be deemed true, complied with, or satisfied, as the case may
be, unless such action is not completed within the period set forth in Schedule 6.17 for such action (as such period may be extended
by the Administrative Agent).
Section 6.18.
ERISA
Matters
. No Credit Party shall, or shall cause or permit any ERISA Affiliate to, cause or permit to occur (i) an event that
would result in the imposition of an ERISA Lien or (ii) an ERISA Event to the extent such ERISA Event or ERISA Lien, either alone
or together with all such other ERISA Events, would reasonably be expected to have a Material Adverse Effect.
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ARTICLE 7
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NEGATIVE COVENANTS
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From the date hereof and for so long as the
Revolving Credit Commitments shall be in effect, any Loan shall remain outstanding, or L/C Exposure shall remain outstanding or
any monetary Obligation then due and payable shall remain unpaid or unsatisfied (other than with respect to a Specified Swap Agreement
or Specified Cash Management Agreement):
Section 7.1.
Limitations
on Indebtedness
.
(a)
The
Borrower will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, Incur any Secured Funded
Indebtedness;
provided
,
however
, that the Borrower and the Guarantors may Incur Secured Funded Indebtedness if on
the date thereof and after giving effect thereto and to the application of the proceeds thereof on a Pro Forma Basis: (i) the Net
First Lien Leverage Ratio is not greater than 4.50 to 1.00; and (ii) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence of Incurring such Secured Funded Indebtedness or the application of the proceeds thereof.
(b)
The
Borrower will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, Incur any Indebtedness;
provided
,
however
, that the Borrower and the Guarantors may Incur Indebtedness if on the date thereof and after giving effect thereto
and to the application of the proceeds thereof on a Pro Forma Basis: (i) the Net Total Leverage Ratio is not greater than 6.00
to 1.00; and (ii) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence of Incurring
such Indebtedness or the application of the proceeds thereof.
(c)
The
foregoing Section 7.1(a) and (b) will not prohibit the Incurrence of the following Indebtedness:
(i)
(A)
Indebtedness Incurred under this Credit Agreement (including any Guarantee under Article 9 of this Credit Agreement), including
Indebtedness Incurred pursuant to Section 2.13, Section 2.14 or Section 2.15, (B) any Incremental Equivalent Debt
incurred in lieu of Incremental Facilities, and (C) any Refinancing Notes;
(ii)
(A)
Indebtedness of the Borrower and its Restricted Subsidiaries (including, for the avoidance of doubt, Target and the Restricted
Subsidiaries thereof) in existence on the Closing Date (other than Indebtedness described in clauses (i), (iii), (iv) and (vi)
of this Section 7.1(c)), (B) the Senior Notes in an aggregate principal amount not to exceed $520,000,000 and (C) the Bridge
Credit Facility in an aggregate principal amount not to exceed $150,000,000;
(iii)
Guarantees
by (A) the Borrower or the Guarantors of Indebtedness permitted to be Incurred by the Borrower or a Guarantor in accordance with
the terms of this Credit Agreement,
provided
that
in the event such Indebtedness that is being Guaranteed is a Subordinated
Obligation, then the related Guarantee shall be subordinated in right of payment to the Loans or the Guarantees under Article 9
of this Credit Agreement, as the case may be, substantially to the same extent as such Indebtedness is subordinated to the Loans
or the Guarantees under Article 9 of this Credit Agreement, as applicable, and (B) Non-Guarantor Subsidiaries of Indebtedness Incurred
by Non-Guarantor Subsidiaries in accordance with the terms of this Credit Agreement;
(iv)
Indebtedness
of the Borrower owing to and held by any Wholly-Owned Subsidiary or Indebtedness of a Restricted Subsidiary owing to and held by
the Borrower or any Wholly-Owned Subsidiary;
provided
,
however
,
(A)
if
the Borrower is the obligor on Indebtedness owing to a Non-Guarantor Subsidiary, such Indebtedness is expressly subordinated to
the prior payment in full in cash of all obligations under this Credit Agreement;
(B)
if
a Guarantor is the obligor on such Indebtedness and the Borrower or a Guarantor is not the obligee, such Indebtedness is subordinated
in right of payment to the Guarantee of such Guarantor under Article 9 of this Credit Agreement; and
(C)
(1)
any subsequent issuance or transfer of Capital Stock or any other event which results in any such Indebtedness being held by a
Person other than the Borrower or a Wholly-Owned Subsidiary of the Borrower and (2) any sale, assignment, transfer, conveyance,
exchange or other disposition of any such Indebtedness of any such Indebtedness to a Person other than the Borrower or a Wholly-Owned
Subsidiary of the Borrower, shall be deemed, in each case, to constitute an Incurrence of such Indebtedness by the Borrower or
such Subsidiary, as the case may be.
(v)
Indebtedness
(A) of the Borrower or any Restricted Subsidiary Incurred to finance the acquisition of or a merger, amalgamation or consolidation
with another Person (or a line of business of any Person) or (B) of any Person Incurred and outstanding on the date on which such
Person became a Restricted Subsidiary or was acquired by, or merged, amalgamated or consolidated into, the Borrower or any Restricted
Subsidiary;
provided
,
however
, that at the time such Person or line of business is acquired or merged, amalgamated
or consolidated, after giving effect thereto and to the Incurrence of such Indebtedness pursuant to this clause (v) and the use
of the proceeds thereof on a Pro Forma Basis, (1) either (I) the Borrower would have been able to Incur $1.00 of additional Indebtedness
pursuant to Section 7.1(b) above or (II) the Net Total Leverage Ratio would be no greater than it was immediately prior to
such transaction and (2) in the event that such Indebtedness is secured on a pari passu basis with the Obligations, the Borrower
would have been able to Incur $1.00 of Secured Funded Indebtedness pursuant to Section 7.1(a) above.
(vi)
Indebtedness
under Hedging Obligations that are Incurred (A) for the purpose of fixing or hedging interest rate risk with respect to any Indebtedness
not prohibited by this Credit Agreement; (B) for the purpose of fixing or hedging currency exchange rate risk; or (C) for the purpose
of fixing or hedging commodity price risk;
(vii)
Indebtedness
(including Capitalized Lease Obligations) of the Borrower or a Restricted Subsidiary Incurred to finance the purchase, lease, construction
or improvement of any property, plant or equipment used or to be used in the business of the Borrower or such Restricted Subsidiary,
whether through the direct purchase of such property, plant or equipment or the purchase of Capital Stock of any Person owning
such property, plant or equipment (but no other material assets), in a principal amount outstanding not to exceed, at the time
of Incurrence thereof, together with all other outstanding (x) Indebtedness incurred under this clause (vii) and (y) Refinancing
Indebtedness incurred under clause (xi) in respect of Indebtedness previously incurred under this clause (vii), the greater of
(A) $250,000,000 and (B) 3.0% of Total Assets;
(viii)
Indebtedness
Incurred by the Borrower or its Restricted Subsidiaries in respect of workers’ compensation claims, health, disability or
other employee benefits or property, casualty or liability insurance, self-insurance obligations, performance, bid surety and similar
bonds and Completion Guarantees (not for borrowed money) provided by the Borrower or a Restricted Subsidiary in the ordinary course
of business;
(ix)
Indebtedness
arising from agreements of the Borrower or a Restricted Subsidiary providing for indemnification, adjustment of purchase price
or similar obligations, in each case, Incurred or assumed in connection with the disposition of any business or assets of the Borrower
or any business, assets or Capital Stock of a Restricted Subsidiary, other than Guarantees of Indebtedness Incurred by any Person
acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition,
provided
that
the maximum aggregate liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including
non-cash proceeds (the Fair Market Value of such non-cash proceeds being measured at the time received and without giving effect
to subsequent changes in value) actually received by the Borrower and the Restricted Subsidiaries in connection with such disposition;
(x)
Indebtedness
arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case
of daylight overdrafts) drawn against insufficient funds in the ordinary course of business,
provided
,
however
, that
such Indebtedness is extinguished within five Business Days of Incurrence;
(xi)
the
Incurrence or issuance by the Borrower or any Restricted Subsidiary of Refinancing Indebtedness that serves to refund, refinance
or defease any Indebtedness Incurred as permitted under Section 7.1(a) or (b) above and clauses (i)(B), (i)(C), (ii), (v),
(vii), (xix) and this clause (xi) of this Section 7.1(c) or any Indebtedness issued to so refund, refinance or defease such
Indebtedness, including additional Indebtedness Incurred to pay premiums (including reasonable, as determined in good faith by
the Borrower, tender premiums), defeasance costs, accrued interest and fees and expenses in connection therewith prior to its respective
maturity;
(xii)
Indebtedness
incurred by the Borrower or any Restricted Subsidiary that is a Special Purpose Producer which is non-recourse to the Borrower
or any Restricted Subsidiary other than such Special Purpose Producer, except to the extent that a Negative Pick-up Obligation,
Program Acquisition Guarantee or short-fall guarantee would be considered recourse Indebtedness of the Borrower or any of its Restricted
Subsidiaries;
(xiii)
(A)
to the extent constituting Indebtedness pursuant to the definition thereof, any Permitted Slate Financing and (B) any Indebtedness
incurred by any ProdCo to the extent not prohibited by the definition of “Permitted Slate Transaction”;
(xiv)
Replication
Advances not to exceed $100,000,000 outstanding in the aggregate at the time of Incurrence thereof, which are otherwise entered
into in the ordinary course of business and on terms and conditions substantially no less favorable in any material respect, taken
as a whole, to the Borrower as similar transactions entered into by the Borrower or its Subsidiaries prior to the Closing Date;
provided
that
, the granting of a Lien in respect of the related assets, which is junior in right to the Lien on such
assets which secures the Loans, to secure any such Replication Advances will not be considered to be less favorable to the Borrower;
(xv)
Indebtedness
secured solely by liens on tax credits which is otherwise non-recourse to the Borrower and any Restricted Subsidiary, other than
customary representations and warranties;
(xvi)
liabilities
relating to profit participations, revenue participations, talent participations, deferments and guild residuals, and music royalties,
collection agencies and tribunals (e.g., ASCAP), arising in the ordinary course of business in connection with the production,
acquisition and/or distribution of Product;
(xvii)
unsecured
liabilities (including without limitation Guarantees) or liabilities (including without limitation Guarantees) secured solely by
the related rights related to the acquisition, production or distribution of Product or acquisitions of rights incurred in the
ordinary course of business (including co-productions, co-ventures and other co-financing arrangements), which are not otherwise
prohibited hereunder, in an amount no greater than $30,000,000 outstanding in the aggregate at the time of Incurrence thereof;
(xviii)
Negative
Pick-up Obligations, Program Acquisition Guarantees and direct or indirect guarantees (including minimum guarantees) related to
the acquisition or production of items of Product in the ordinary course of business; and
(xix)
in
addition to the items referred to in clauses (i) through (xviii) above, Indebtedness of the Borrower and the Restricted Subsidiaries
in an aggregate outstanding principal amount not to exceed, at the time of Incurrence thereof, together with all other outstanding
(x) Indebtedness incurred under this clause (xix) and (y) Refinancing Indebtedness incurred under clause (xi) in respect of Indebtedness
previously incurred under this clause (xix), the greater of (a) $250,000,000 and (b) 3.0% of Total Assets;
(d)
For
purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant
to and in compliance with, this Section 7.1:
(i)
subject
to clause (ii) and (vi) below, in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness
described in Section 7.1(a), (b) and (c) above, the Borrower, in its sole discretion, may classify such item (or portion)
of Indebtedness on the date of Incurrence and may later re-divide or reclassify such item (or portion) of Indebtedness in any manner
that complies with this covenant;
(ii)
Guarantees
of, or obligations in respect of letters of credit relating to, Indebtedness that is otherwise included in the determination of
a particular amount of Indebtedness shall not be included;
(iii)
if
obligations in respect of letters of credit are Incurred pursuant to a credit facility and are being treated as Incurred pursuant
to Section 7.1(a) or Section 7.1(b) above and the letters of credit relate to other Indebtedness, then such other Indebtedness
shall not be included;
(iv)
the
principal amount of any Disqualified Stock of the Borrower or a Restricted Subsidiary, or Preferred Stock of a Restricted Subsidiary
that is not a Guarantor, will be, subject to the next succeeding paragraph, equal to the greater of the maximum mandatory redemption
or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof;
(v)
subject
to clause (vi) below, Indebtedness permitted by this Section 7.1 need not be permitted solely by reference to one provision
permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of
this Section 7.1 permitting such Indebtedness;
(vi)
(A)
Indebtedness under this Credit Agreement (including any Guarantee under Article 9 of this Credit Agreement), including Indebtedness
Incurred pursuant to Section 2.13, Section 2.14 or Section 2.15, (B) any Incremental Equivalent Debt incurred in
lieu of Incremental Facilities, and (C) any Refinancing Notes, shall in any event be deemed to be Incurred solely under Section 7.1(c)(i)(A),
(B) or (C), as applicable; and
(vii)
the
amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability
in respect thereof determined in accordance with GAAP.
(e)
Accrual
of interest, accrual of dividends, the accretion of accreted value or the amortization of debt discount, the payment of interest
in the form of additional Indebtedness and the payment of dividends in the form of additional shares of Preferred Stock or Disqualified
Stock will not be deemed to be an Incurrence of Indebtedness for purposes of this Section 7.1. The amount of any Indebtedness
outstanding as of any date shall be (i) the accreted value thereof in the case of any Indebtedness issued with original issue discount
or the aggregate principal amount outstanding in the case of Indebtedness issued with interest payable in kind and (ii) the principal
amount or liquidation preference thereof, together with any interest thereon that is more than 30 days past due, in the case of
any other Indebtedness.
(f)
If
at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary shall be deemed to
be Incurred by a Restricted Subsidiary as of such date (and, if such Indebtedness is not permitted to be Incurred as of such date
under this Section 7.1, the Borrower shall be on such date in Default under this Section 7.1).
(g)
For
purposes of determining compliance with any Dollar denominated restriction on the Incurrence of Indebtedness, the Dollar equivalent
principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange
rate in effect on the date such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of
revolving credit Indebtedness;
provided
that
if such Indebtedness is Incurred to refinance other Indebtedness denominated
in a foreign currency, and such refinancing would cause the applicable Dollar denominated restriction to be exceeded if calculated
at the relevant currency exchange rate in effect on the date of such refinancing, such Dollar denominated restriction shall be
deemed not to have been exceeded so long as the principal amount of such Refinancing Indebtedness does not exceed the principal
amount of such Indebtedness being refinanced. Notwithstanding any other provision of this Section 7.1, the maximum amount
of Indebtedness that the Borrower or the Restricted Subsidiaries may Incur pursuant to this Section 7.1 shall not be deemed
to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness
Incurred to refinance other Indebtedness, if Incurred in a different currency from the Indebtedness being refinanced, shall be
calculated based on the
currency exchange rate applicable to the currencies in which
such Refinancing Indebtedness is denominated that is in effect on the date of such refinancing.
Section 7.2.
Limitations
on Restricted Payments
.
(a)
The
Borrower will not, and will not permit any of the Restricted Subsidiaries, directly or indirectly, to:
(i)
declare
or pay any dividend or make any distribution (whether made in cash, securities or other property) on or in respect of the Borrower’s
or any of its Restricted Subsidiaries’ Capital Stock (including any payment in connection with any merger, amalgamation or
consolidation involving the Borrower or any of its Restricted Subsidiaries) other than:
(A)
dividends
or distributions by the Borrower payable solely in Capital Stock (other than Disqualified Stock) of the Borrower;
(B)
dividends
or distributions by a Restricted Subsidiary so long as, in the case of any dividend or distribution payable on or in respect of
any Capital Stock issued by a Restricted Subsidiary that is not a Wholly-Owned Subsidiary, the Borrower or Restricted Subsidiary
holding such Capital Stock receives at least its pro rata share of such dividend or distribution; or
(C)
cash
payments made to (or on behalf of) current and former officers, directors and employees of the Borrower and its Subsidiaries to
pay tax liabilities incurred by such Persons upon the vesting of equity interests of any kind held thereby, including restricted
stock units;
(ii)
purchase,
redeem, retire or otherwise acquire for value any Capital Stock of the Borrower or any direct or indirect parent of the Borrower
held by Persons other than the Borrower or a Restricted Subsidiary (other than in exchange for Capital Stock of the Borrower (other
than Disqualified Stock)), including in connection with any merger, amalgamation or consolidation;
(iii)
make
any principal payment on, or purchase, repurchase, redeem, defease or otherwise acquire or retire for value, prior to any scheduled
repayment, scheduled sinking fund payment, or scheduled maturity, any Subordinated Obligations, other than:
(A)
Indebtedness
permitted under Section 7.1(c)(iv); or
(B)
the
purchase, repurchase, redemption, defeasance or other acquisition or retirement of Subordinated Obligations purchased in anticipation
of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date
of purchase, repurchase, redemption, defeasance or other acquisition or retirement; or
(iv)
make
any Restricted Investment in any Person;
(all such payments and other actions referred to in the foregoing
clauses (i) through (iv) (other than any exception thereto) shall be collectively referred to as a “
Restricted Payment
”),
unless, at the time of and after giving effect to such Restricted Payment:
(A)
no
Default shall have occurred and be continuing (or would result therefrom);
(B)
in
the case of a Restricted Payment of the type referred to in clauses (i) through (iii) of this Section 7.2(a), the Borrower
shall be in compliance with the financial ratios set forth in Section 7.9(a) and (b) for the relevant fiscal quarter on a
Pro Forma Basis; and
(C)
the
aggregate amount of such Restricted Payment and all other Restricted Payments declared or made subsequent to the Closing Date (excluding
Restricted Payments made pursuant to clauses (i), (ii), (iii), (iv), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii) and (xiv)
of Section 7.2(b)) would not exceed the sum of (without duplication):
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(1)
|
100% of Adjusted EBITDA of the Borrower and its Restricted
Subsidiaries for the period (treated as one accounting period) from the Closing Date to the end of the most recent fiscal quarter
ending prior to the date of such Restricted Payment for which financial statements have been delivered or were required to be
delivered pursuant to Section 6.1(a) and Section 6.1(b)
less
1.4 times the Consolidated Applicable Interest Charge
of the Borrower and its Restricted Subsidiaries for the same period;
plus
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(2)
|
100% of the aggregate Net Cash Proceeds and the Fair
Market Value of any property other than cash received by the Borrower from the issue or sale of its Capital Stock (other than
Disqualified Stock) or other capital contributions subsequent to the Closing Date, (other than Net Cash Proceeds received from
an issuance or sale of such Capital Stock to a Subsidiary of the Borrower or to an employee stock ownership plan, option plan
or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or Guaranteed
by the Borrower or any Restricted Subsidiary unless such loans have been repaid with cash on or prior to the date of determination)
excluding in any event Excluded Contributions;
plus
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(3)
|
the amount by which Indebtedness of the Borrower or its
Restricted Subsidiaries is reduced on the Borrower’s consolidated balance sheet upon the conversion or exchange (other than
by a Subsidiary of the Borrower) subsequent to the Closing Date of any Indebtedness of the Borrower or its Restricted Subsidiaries
for Capital Stock (other than Disqualified Stock) of the Borrower or any direct or indirect parent of the Borrower (less the amount
of any cash, or the Fair Market Value of any other property, distributed by the Borrower upon such conversion or exchange);
plus
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(4)
|
the amount equal to the net reduction in Restricted Investments
made by the Borrower or any of the Restricted Subsidiaries in any Person resulting from:
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(A)
repurchases
or redemptions of such Restricted Investments by such Person, proceeds realized upon the sale of such Restricted Investment to
an unaffiliated purchaser, repayments of loans or advances or other transfers of assets (including by way of dividend or distribution)
by such Person to the Borrower or any Restricted Subsidiary; or
(B)
the
redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries or the merger or consolidation of an Unrestricted Subsidiary
with and into the Borrower or any of its Restricted Subsidiaries (valued in each case as provided in the definition of “Investment”)
not to exceed the amount of Investments previously made by the Borrower or any Restricted Subsidiary in such Unrestricted Subsidiary,
which amount in each case under this clause (4) was
included in the calculation of the amount of Restricted Payments; provided, however, that no amount will be included under this
clause (4) to the extent it is already included in Adjusted EBITDA;
plus
(5) $150,000,000.
(b)
The
foregoing Section 7.2(a) will not prohibit:
(i)
any
purchase, repurchase, redemption, defeasance or other acquisition or retirement of Capital Stock, Disqualified Stock or Subordinated
Obligations of the Borrower or any Guarantor made by exchange for, or out of the proceeds of the substantially concurrent sale
of, Capital Stock of the Borrower or contributions to the equity capital of the Borrower (other than Disqualified Stock and other
than Capital Stock issued or sold to a Subsidiary of the Borrower or an employee stock ownership plan or similar trust to the extent
such sale to an employee stock ownership plan or similar trust is financed by loans from or Guaranteed by the Borrower or any Restricted
Subsidiary unless such loans have been repaid with cash on or prior to the date of determination);
provided
,
however
,
that the Net Cash Proceeds from such sale of Capital Stock will be excluded from Section 7.2(a)(iv)(C)(2) above;
(ii)
any
purchase, repurchase, redemption, defeasance or other acquisition or retirement of Subordinated Obligations of the Borrower or
any Guarantor made by exchange for, or out of the proceeds of the substantially concurrent sale of, Subordinated Obligations of
the Borrower or any Guarantor that, in each case, is permitted to be Incurred under Section 7.1 and that, in each case, constitutes
Refinancing Indebtedness;
(iii)
any
purchase, repurchase, redemption, defeasance or other acquisition or retirement of Disqualified Stock of the Borrower or a Restricted
Subsidiary made by exchange for or out of the proceeds of the substantially concurrent sale of Disqualified Stock of the Borrower
or such Restricted Subsidiary, as the case may be, that, in each case, is permitted to be Incurred under Section 7.1 and that,
in each case, constitutes Refinancing Indebtedness;
(iv)
any
purchase or redemption of Subordinated Obligations from Net Available Cash to the extent the Borrower has complied with its obligations
to prepay all Term Loans to the extent required by Section 2.8(c)(ii) prior to such purchase or redemption;
(v)
dividends
or distributions paid within 60 days after the date of declaration if at such date of declaration such dividends or distributions
would have complied with this provision;
(vi)
the
purchase, redemption or other acquisition, cancellation or retirement for value of Capital Stock, or options, warrants, equity
appreciation rights or other rights to purchase or acquire Capital Stock of the Borrower or any direct or indirect parent of the
Borrower, or cash dividends distributed to any direct or indirect parent of the Borrower for the purpose of consummating such purchase,
redemption or other acquisition, cancellation or retirement for value;
provided
that
such redemptions or repurchases
pursuant to this clause (vi) will not exceed $75,000,000 in the aggregate during any fiscal year;
provided
further
that (x) such amount, if not so expended in the fiscal year for which it is permitted, may be carried forward in the next fiscal
year and (y) redemptions or repurchases made pursuant to this clause (vi) during any fiscal year shall be deemed made first in
respect of amounts carried over from the prior fiscal year and second in respect of amounts permitted for such fiscal year as provided
above;
(vii)
the
declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Borrower permitted to be Incurred
pursuant to Section 7.1 of this Credit Agreement;
(viii)
repurchases
of Capital Stock deemed to occur upon the exercise of stock options, warrants, other rights to purchase Capital Stock or other
convertible securities if such Capital Stock represents a portion of the exercise price thereof;
(ix)
the
declaration and payment of cash dividends, distributions, loans or other transfers by the Borrower to any direct or indirect parent
of the Borrower, directly or indirectly, in amounts required for such other parent entity to pay, in each case without duplication:
(A)
federal,
provincial or local income taxes payable to the extent that such income taxes are directly attributable to the income of the Borrower
and its Subsidiaries (rather than the income of such parent entity resulting from distributions of property from the Borrower or
any Subsidiary) and only to the extent such taxes are not offset by applicable tax credits, tax losses or other assets;
provided
that
in each case the amount of such payments in any fiscal year does not exceed the amount that the Borrower and its Subsidiaries
would be required to pay in respect of foreign, federal, provincial, state and local taxes for such fiscal year were the Borrower
and its Subsidiaries to pay such taxes separately from any such parent entity;
(B)
franchise
taxes and other fees required to maintain such parent entity’s legal existence; and
(C)
corporate
overhead expenses Incurred in the ordinary course of business, and salaries or other compensation of employees who perform services
for both such parent entity and the Borrower,
provided
that
the amount available under this clause (C) in any fiscal
year shall not exceed the greater of $20,000,000 and 3.0% of Adjusted EBITDA of the Borrower for such fiscal year;
(x)
payments
on the Existing Convertible Notes or the purchase of call options to hedge the Borrower’s or any Restricted Subsidiary’s
exposure in connection with the issuance of the Existing Convertible Notes, which call options are to be settled on a net (not
cash) basis;
(xi)
Restricted
Payments that are made with the proceeds of Excluded Contributions;
(xii)
other
Restricted Payments made in an aggregate amount (as reduced by the amount of capital returned from any such Restricted Payments
that constituted Restricted Investments in the form of cash and Cash Equivalents (exclusive of items reflected in Consolidated
Net Income)) from the Closing Date not to exceed $150,000,000;
(xiii)
other
Restricted Payments of the type referred to in clauses (i) or (ii) of Section 7.2(a),
provided
, however, that at the
time of and after giving pro forma effect to any such Restricted Payment, the Net Total Leverage Ratio is not greater than 4.00
to 1.00 on a Pro Forma Basis; and
(xiv)
other
Restricted Payments of the type referred to in clauses (iii) or (iv) of Section 7.2(a),
provided
, however, that at
the time of and after giving pro forma effect to any such Restricted Payment, the Net Total Leverage Ratio is not greater than
4.50 to 1.00 on a Pro Forma Basis;
provided
,
however
, that at the time of and after
giving effect to, any Restricted Payment permitted under the foregoing clauses (iv), (vi), (xi), (xii), (xiii) and (xiv), no Default
shall have occurred and be continuing or would occur as a consequence thereof.
(c)
The
amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of such Restricted Payment of the
asset(s) or securities proposed to be paid, transferred or issued by the Borrower or such Restricted Subsidiary, as the case may
be, pursuant to such Restricted Payment.
(d)
As
of the Closing Date, all of the Borrower’s Subsidiaries will be Restricted Subsidiaries, except for the Initial Unrestricted
Subsidiaries. The Borrower will not permit any Unrestricted Subsidiary to become a Restricted Subsidiary except in accordance with
the definition of “Unrestricted Subsidiary.” For purposes of designating any Restricted Subsidiary as an Unrestricted
Subsidiary, all outstanding Investments by the Borrower and its Restricted Subsidiaries (except to the extent repaid) in the Subsidiary
so designated will be deemed to be Restricted Payments and/or, in the discretion of the Borrower, Investments, in an amount determined
as set forth in the definition of “Investment.” Such designation will be permitted only if a Restricted Payment (and/or
Permitted Investment) in such amount would be permitted at such time and if such Subsidiary otherwise meets the definition of an
Unrestricted Subsidiary. Unrestricted Subsidiaries will not be subject to any of the restrictive covenants set forth in this Credit
Agreement.
Section 7.3.
Limitation
on Liens
. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, directly or indirectly, create,
Incur, assume or suffer to exist any Lien (other than Permitted Liens) upon any of its property or assets (including Capital Stock
of Subsidiaries), or income or profits therefrom, whether owned on the Closing Date or acquired after that date, which Lien secures
any Indebtedness.
Section 7.4.
Limitation
on Restrictions on Distribution from Restricted Subsidiaries
.
(a)
The
Borrower will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or permit
to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(i)
pay
dividends or make any other distributions on its Capital Stock to the Borrower or any of its Restricted Subsidiaries, or with respect
to any other interest or participation in, or measured by, its profits (it being understood that the priority of any Preferred
Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on any other
Capital Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock); or
(ii)
make
any loans or advances to the Borrower or any Restricted Subsidiary (it being understood that the subordination of loans or advances
made to the Borrower or any Restricted Subsidiary to other Indebtedness Incurred by the Borrower or any Restricted Subsidiary shall
not be deemed a restriction on the ability to make loans or advances).
(b)
The
foregoing Section 7.4(a) will not apply to encumbrances or restrictions existing under or by reason of:
(i)
contractual
encumbrances or restrictions pursuant to an agreement in effect on the Closing Date (including, for the avoidance of doubt agreements
of Target and the Restricted
Subsidiaries thereof), including without limitation, the Senior
Notes, the Bridge Credit Facility and the Existing Convertible Notes (and related documentation) in effect on such date;
(ii)
this
Credit Agreement and the Collateral Documents;
(iii)
any
agreement or other instrument of a Person acquired by the Borrower or any of its Restricted Subsidiaries in existence at the time
of such acquisition (but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the Person
and its Subsidiaries, so acquired (including after acquired property);
(iv)
any
amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement or arrangement
referred to in Section 7.4(a)(ii);
provided
,
however
, that any encumbrances or restrictions contained in any
such amendments, restatements, modifications, renewals, supplements, refundings, replacements, or refinancings are, in the good
faith judgment of the Borrower, no less favorable in any material respect, taken as a whole, to the Lenders than the encumbrances
and restrictions contained in the agreements or arrangement so amended, restated, modified, renewed, supplemented, refunded, replaced
or refinanced;
(v)
purchase
money obligations and Capitalized Lease Obligations permitted under this Credit Agreement;
(vi)
customary
restrictions on cash or other deposits or net worth imposed by customers or by co-production partners, Joint Venture partners or
similar parties under contracts;
(vii)
any
customary provisions in Joint Venture agreements and other similar agreements;
(viii)
any
customary provisions in leases, subleases or licenses and other agreements entered into by the Borrower or any Restricted Subsidiary;
(ix)
encumbrances
or restrictions arising or existing by reason of Applicable Law or any applicable rule, regulation or order;
(x)
any
restriction with respect to the Borrower or a Restricted Subsidiary or any asset or line of business thereof imposed pursuant to
an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of the Borrower or
such Restricted Subsidiary or any asset or line of business thereof pending the closing of such sale or disposition;
(xi)
imposed
by any agreement relating to Indebtedness or Investments, as applicable, permitted to be Incurred in accordance with Section 7.1,
7.2 or the definition of “Permitted Investment,” in each case, if such restrictions or conditions apply only to the
property or assets securing such Indebtedness or Investments and/or only to the Restricted Subsidiary incurring such Indebtedness
or in which such Investments are made, or its Subsidiaries;
(xii)
other
Indebtedness, Disqualified Stock or Preferred Stock of Borrower or any Restricted Subsidiary so long as such encumbrances and restrictions
contained in any agreement or instrument will not materially affect Borrower’s or any Guarantor’s ability to make anticipated
principal or interest payments on the Loans (in each case, as determined in good faith by Borrower), provided that such Indebtedness,
Disqualified Stock or Preferred Stock is permitted to be Incurred pursuant to Section 7.1; and
(xiii)
any
restrictions or encumbrances imposed on Special Purpose Producers or ProdCos, or otherwise in connection with any Permitted Slate
Financing or Permitted Slate Transaction, in each case which are customary for slate or production financing or similar transactions.
Section 7.5.
Limitation
on Affiliate Transactions
.
(a)
The
Borrower will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or conduct any
transaction (including the purchase, sale, lease, exchange or other disposition of any property or asset or the rendering of any
service) with any Affiliate of the Borrower (an “
Affiliate Transaction
”) involving consideration in excess of
$30,000,000 unless:
(i)
the
terms of such Affiliate Transaction are not materially less favorable to the Borrower or such Restricted Subsidiary, as the case
may be, than those that could have been obtained by the Borrower or such Restricted Subsidiary in a comparable transaction with
a Person that is not an Affiliate; and
(ii)
in
the event such Affiliate Transaction involves an aggregate consideration in excess of $60,000,000 (or with respect to transactions
involving any item of Product, $90,000,000), the terms of such transaction have been approved by a majority of the members of the
Board of Directors of the Borrower and by a majority of the members of such Board of Directors having no personal stake in such
transaction, if any (and such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies
the criteria in clause (i) above).
(b)
The
preceding Section 7.5(a) will not apply to:
(i)
(A)
transactions between or among the Borrower and any of its Restricted Subsidiaries, and (B) any merger, amalgamation, or consolidation
of the Borrower and any direct parent of the Borrower,
provided
,
however
that such parent shall have no Indebtedness
other than Indebtedness that would be permitted to be Incurred by the Borrower at the time of such merger, amalgamation, or consolidation
and such merger, amalgamation, or consolidation is otherwise not prohibited by the terms of this Credit Agreement;
(ii)
any
Restricted Payment permitted to be made under Section 7.2 or any Permitted Investments;
(iii)
any
loan or issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding
of, employment agreements and other compensation arrangements, options to purchase Capital Stock of the Borrower, restricted stock
plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans and/or
indemnity provided on behalf of Officers and employees;
(iv)
the
payment of reasonable and customary fees and reimbursement of expenses paid to and indemnity provided on behalf of, directors of
the Borrower or any Restricted Subsidiary;
(v)
any
agreement as in effect as of the Closing Date (including, for the avoidance of doubt, agreements of Target and the Restricted Subsidiaries
thereof) , as these agreements may be amended, modified, supplemented, extended or renewed from time to time, so long as any such
amendment, modification, supplement, extension or renewal is not more disadvantageous to the Lenders in any material respect in
the good faith judgment of the Borrower when taken as a whole than the terms of the agreements in effect on the Closing Date;
(vi)
any
agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by or merged, amalgamated
or consolidated into the Borrower or a Restricted Subsidiary;
provided
,
that
such agreement was not entered into
in contemplation of such acquisition or merger, amalgamation, or consolidation , or any amendment thereto (so long as any such
agreement is not disadvantageous to the Lenders in the good faith judgment of the Borrower when taken as a whole as compared to
the applicable agreement as in effect on the date of such acquisition or merger, amalgamation, or consolidation);
(vii)
transactions
with customers, clients, suppliers, Joint Venture partners or purchasers or sellers of goods or services (including, without limitation,
licensing, production, co-production, services (e.g., shared services agreements), advertising, distribution, promotional or delivery
agreements), in each case in the ordinary course of the business of the Borrower and the Restricted Subsidiaries and otherwise
in compliance with the terms of this Credit Agreement;
provided
that
in the reasonable determination of the Borrower,
such transactions are on terms that are no less favorable to the Borrower or the relevant Restricted Subsidiary than those that
could reasonably have been obtained at the time of such transactions in a comparable transaction by the Borrower or such Restricted
Subsidiary with an unrelated Person;
(viii)
any
issuance or sale of Capital Stock (other than Disqualified Stock) to affiliates of the Borrower and the granting of registration
and other customary rights in connection therewith;
(ix)
the
entering into of any tax sharing agreement or arrangement and the performance thereunder;
(x)
any
contribution to the capital of the Borrower, or any sale of Capital Stock of the Borrower (other than Disqualified Stock);
(xi)
transactions
permitted by, and complying with, the provisions of Section 7.6;
(xii)
pledges
of Capital Stock of Unrestricted Subsidiaries;
(xiii)
any
employment agreements entered into by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(xiv)
any
distribution, license, participation, sale, lease, production, reproduction or co-financing agreement, guarantee, negative pick-up
or other acquisition agreement, or other similar agreement to any of the foregoing, entered into in the ordinary course of business
and on an arm’s length basis; and
(xv)
any
Permitted Slate Transaction.
Section 7.6.
Limitation
on Mergers and Consolidations
.
(a)
The
Borrower will not merge, amalgamate or consolidate with or into (whether or not the Borrower is the surviving corporation), or
convey, transfer or lease all or substantially all of its assets to, any Person, unless:
(i)
the
Borrower is the surviving person or the resulting, surviving or transferee Person (the “
Successor Borrower
”)
is a corporation organized and existing under the laws of
Canada, any Province of Canada, the United States of America,
any State of the United States or the District of Columbia;
(ii)
the
Successor Borrower (if not the Borrower) will expressly assume, by documentation executed and delivered to the Administrative Agent,
in form satisfactory to the Administrative Agent, all the obligations of the Borrower under this Credit Agreement and the Collateral
Documents (as applicable) and shall cause such amendments, supplements or other instruments to be executed, filed, and recorded
in such jurisdictions as may be required by Applicable Law to preserve and protect the Lien on the Collateral owned by or transferred
to the Successor Borrower, together with such financing statements or comparable documents as may be required to perfect any security
interests in such Collateral which may be perfected by the filing of a financing statement or a similar document under the applicable
PPSA, the CCQ, the UCC or other similar statute or regulation of the relevant states or jurisdictions;
(iii)
immediately
after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Borrower or
any Subsidiary of the Successor Borrower as a result of such transaction as having been Incurred by the Successor Borrower or such
Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
(iv)
immediately
after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred
at the beginning of the applicable four-quarter period, the Borrower (including any Successor Borrower) shall be in compliance
with the financial ratios set forth in Section 7.9(a) and (b) for the relevant fiscal quarter on a Pro Forma Basis;
(v)
each
Guarantor (unless it is the other party to the transactions above, in which case the next succeeding paragraph shall apply) shall
have by documentation in form and substance satisfactory to the Administrative Agent, confirmed that its Guarantee under Article
9 of this Credit Agreement shall apply to such Person’s obligations in respect of this Credit Agreement and shall have by
written agreement confirmed that its obligations under the Collateral Documents Agreement shall continue to be in effect and shall
cause such amendments, supplements or other instruments to be executed, filed, and recorded in such jurisdictions as may be required
by Applicable Law to preserve and protect the Lien on the Collateral owned by such Guarantor, together with such financing statements
or comparable documents as may be required to perfect any security interests in such Collateral which may be perfected by the filing
of a financing statement or a similar document under the applicable PPSA, the CCQ, the UCC or other similar statute or regulation
of the relevant provinces, states or jurisdictions; and
(vi)
the
Borrower shall have delivered to the Administrative Agent an Officers’ Certificate stating that such merger, amalgamation,
consolidation, conveyance or transfer and such supplemental documentation (if any) comply with the terms of this Credit Agreement
and any other documentation and other information about the Successor Borrower as shall have been reasonably required by any Lender
through the Administrative Agent that such Lender shall have reasonably determined is required by regulatory authorities under
applicable “know your customer” and anti-money laundering rules and regulation, including the Patriot Act.
(b)
Notwithstanding
clauses (iii) and (iv) of the preceding Section 7.6(a):
(i)
any
Restricted Subsidiary may merge with, amalgamate with, consolidate with or into or transfer all or part of its properties and assets
to the Borrower so long as no Capital Stock of the Restricted Subsidiary is distributed to any Person other than the Borrower or
another Restricted Subsidiary; and
(ii)
the
Borrower may merge with, amalgamate with or consolidate with an Affiliate of the Borrower solely for the purpose of reincorporating
the Borrower in Canada, a Province of Canada or a State or territory of the United States or the District of Columbia, so long
as the amount of Indebtedness of the Borrower and its Restricted Subsidiaries is not increased thereby;
provided
that
,
in the case of a Restricted Subsidiary that merges, amalgamates or consolidates into the Borrower, the Borrower will not be required
to comply with Section 7.6(a)(iv).
(c)
The
Borrower will not permit any Guarantor to merge, amalgamate or consolidate with or into (whether or not the Borrower or such Guarantor
is the surviving corporation), or convey, transfer or lease all or substantially
all of its properties and assets to any Person (other than with or into, or to, the Borrower or a Guarantor) unless:
(i) if such entity remains a Guarantor, the resulting,
surviving or transferee Person (the “
Successor Guarantor
”) will be a corporation, partnership, trust or limited
liability company organized and existing under the laws of Luxembourg, any country within the United Kingdom, Canada, a Province
of Canada, the United States of America, any State of the United States or the District of Columbia or the jurisdiction of organization
of such Guarantor and shall assume by written agreement all the obligations of such Guarantor under the Collateral Documents (as
applicable) and shall cause such amendments, supplements or other instruments to be executed, filed and recorded in such jurisdictions
as may be required by Applicable Law to preserve and protect the Lien on the Collateral pledged by or transferred to the surviving
entity, together with such financing statements or comparable documents as may be required to perfect any security interest in
such Collateral which may be perfected by the filing of a financing statement or similar document under the applicable PPSA, the
CCQ, the UCC or other similar statute or regulation of the relevant states, provinces or jurisdictions in each case in a form reasonably
satisfactory to the Administrative Agent;
(ii) the Successor Guarantor, if other than such Guarantor,
expressly assumes all the obligations of such Guarantor under this Credit Agreement and its Guarantee under Article 9 hereof pursuant
to documentation in form and substance reasonably satisfactory to the Administrative Agent;
(iii) immediately after giving effect to such transaction
(and treating any Indebtedness that becomes an obligation of the resulting, surviving or transferee Person or any Restricted Subsidiary
as a result of such transaction as having been Incurred by such Person or such Restricted Subsidiary at the time of such transaction),
no Default or Event of Default shall have occurred and be continuing; and
(iv) the Borrower will have delivered to the Administrative
Agent an Officers’ Certificate stating that such consolidation, merger, winding up or disposition and such supplemental documentation
(if any) comply with the terms of this Credit Agreement.
Except as otherwise described in this Credit
Agreement, the Successor Guarantor shall succeed to, and be substituted for, such Guarantor under this Credit Agreement and the
Guarantee of such Guarantor.
Notwithstanding this Section 7.6(c),
without complying with any of clauses (i)-(iv) of this Section 7.6(c), any Guarantor may merge, amalgamate or consolidate
with or into or transfer all or part of its properties and assets (A) to another Guarantor or the Borrower or (B) to any other
Person in a transaction permitted by Section 7.6 or by the definition of the term “Asset Sale”.
Additionally, notwithstanding this Section 7.6(c),
any Guarantor may merge, amalgamate or consolidate with a Restricted Subsidiary of the Borrower solely for the purpose of reincorporating
the Guarantor federally, in a Province of Canada or a State of the United States or the District of Columbia, as long as the amount
of Indebtedness of such Guarantor and its Restricted Subsidiaries is not increased thereby.
(d)
The
Borrower or a Guarantor, as the case may be, will be released from its obligations under this Credit Agreement and its Guarantee
under Article 9 hereof, as the case may be, and the Successor Borrower or Successor Guarantor, as the case may be, will succeed
to, and be substituted for, and may exercise every right and power of, the Borrower or a Guarantor, as the case may be, under this
Credit Agreement, the Guarantee under Article 9 hereof and the Collateral Documents;
provided
that
, in the case of
a lease of all or substantially all its assets, the Borrower will not be released from the obligation to pay the principal of and
interest on the Loans and a Guarantor will not be released from its obligations under Article 9 hereof.
Section 7.7.
Limitation
on Lines of Business
. The Borrower will not, and will not permit any Restricted Subsidiary to, engage in any material respect
in any business other than a Related Business.
Section 7.8.
Limitation
on Sales of Assets
. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, cause or make any Asset
Sale, unless:
(i)
the
Borrower or such Restricted Subsidiary, as the case may be, receives consideration at least equal to the Fair Market Value (such
Fair Market Value to be determined on the date of contractually agreeing to such Asset Sale) of the shares and assets subject to
such Asset Sale;
(ii)
at
least 75% of the consideration from such Asset Sale received by the Borrower or such Restricted Subsidiary, as the case may be,
is in the form of cash or Cash Equivalents; and
(iii)
the
Net Available Cash from such Asset Sale is applied by the Borrower or such Restricted Subsidiary in accordance with Section 2.8(c)(ii).
For the purpose of this Section 7.8 and for no other purpose,
the following will be deemed to be cash:
(I) any
liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet) of the Borrower
or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Loans or the Guarantees under
Article 9 of this Credit Agreement) that are assumed by the transferee of any such assets and from which the Borrower and all Restricted
Subsidiaries have been validly released by all creditors in writing;
(II) any
securities, notes or other obligations received by the Borrower or any Restricted Subsidiary from the transferee that are converted
by the Borrower or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing
of such Asset Sale;
(III) consideration consisting of Indebtedness of
the Borrower (other than Subordinated Obligations) received after the Closing Date from Persons who are not the Borrower or any
Restricted Subsidiary, and
(IV) any Designated Non-cash Consideration received
by the Borrower or any Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value (as determined in good faith
by Borrower), taken together with all other Designated Non-cash Consideration received pursuant to this Section 7.8(IV) that
is at that time outstanding, not to exceed the greater of $100,000,000 and 1.25% of Total Assets at the time of the receipt of
such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured
at the time received and without giving effect to subsequent changes in value).
Section 7.9.
Financial
Covenant
. Solely with respect to the Revolving Facility and the Term A Facilities:
(a)
Net
First Lien 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 Net First Lien Leverage Ratio to be greater than:
|
From
and Including
|
|
To
but Excluding
|
|
The
Net First Lien Leverage
Ratio
Shall
Not Be Greater
Than
|
|
March 31, 2017
|
|
March 31, 2018
|
|
5.25 to 1.00
|
|
March 31, 2018
|
|
March 31, 2019
|
|
4.75 to 1.00
|
|
March 31, 2019
|
|
All periods thereafter
|
|
4.50 to 1.00
|
(b)
Interest
Coverage Ratio
: The Borrower shall not, as of the last day of each fiscal quarter of the Borrower, permit the Interest Coverage
Ratio to be less than 2.75 to 1.00.
(c)
Notwithstanding
the foregoing, compliance with (a) and (b) of this Section 7.9 shall commence as of the last day of the fiscal quarter of
the Borrower ending on March 31, 2017,
provided
that
, to the extent any provision under this Credit Agreement requires
the Borrower to be in pro forma compliance with the financial ratios set forth in this Section 7.9 prior to such date, such
provision shall be satisfied to the extent that the Borrower is in compliance as of such date of determination with the financial
ratios set forth in this Section 7.9 for the most recent Test Period on a Pro Forma Basis.
|
|
ARTICLE 8
|
EVENTS OF DEFAULT
|
Section 8.1.
Events
of Default
. Any one or more of the following shall constitute an “
Event of Default
”:
(a)
default
(i) in the payment when due (whether at the stated maturity thereof or at any other time provided for in this Credit Agreement)
of all or any part of the principal of any Loan or Reimbursement Obligation or (ii) in the payment when due of interest on any
Loan, any fee, or any other amount payable hereunder or under any other Fundamental Document and such default shall continue unremedied
for a period of five (5) Business Days; or
(b)
default
in the observance or performance of any covenant set forth in Section 6.2(b)(i), Section 6.4 (with respect to the Borrower)
or Article 7 hereof;
provided
that no breach or default by the Borrower under Section 7.9 shall constitute an
Event of Default with respect to the Term B Facility, unless and until the Required RC/TLA Lenders have accelerated the Revolving
Loans and/or Term A Loans and/or terminated the Revolving Credit Commitments; or
(c)
failure
by the Borrower or any Guarantor to comply for 30 days after notice as provided below with any of its other agreements contained
in the Fundamental Documents; or
(d)
any
representation or warranty made by the Borrower or any Guarantor herein or in any other Fundamental Document or that is contained
in any certificate or other document furnished by it at any time under or in connection with this Credit Agreement or any other
Fundamental Document shall prove to have been inaccurate in any material respect on or as of the date made; or
(e)
default
under any mortgage, indenture, agreement or instrument, in each case governing Indebtedness for money borrowed by any Guarantor
or the Borrower or any of the Restricted Subsidiaries (or the payment of which is guaranteed by any Guarantor or the Borrower or
any of the Restricted Subsidiaries), other than Indebtedness owed to any Guarantor or the Borrower or a Restricted Subsidiary,
and other than Indebtedness incurred by a Special Purpose Producer that is non-recourse to the Borrower or any Restricted Subsidiary
other than such Special Purpose Producer (for the avoidance of doubt, an outstanding Negative Pick-up Obligation of the Borrower
or a Restricted Subsidiary shall be considered recourse Indebtedness of the Borrower or such Restricted Subsidiary), whether such
indebtedness or guarantee now exists, or is created after the Closing Date, which default:
(i)
is
caused by a failure to pay principal of such Indebtedness prior to the expiration of the final maturity date provided in such Indebtedness
unless such Indebtedness is discharged (“
payment default
”); or
(ii)
results
in the acceleration of such Indebtedness prior to its maturity; or
(iii)
which
default causes, or permits the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders),
with all applicable grace or cure periods having expired, to cause any such Indebtedness to become due or required to be prepaid,
repurchased, defeased or redeemed prior to its stated maturity;
and, in each case, the principal amount of such Indebtedness,
together with the principal amount of any other such Indebtedness under which there has been a payment default or such other default
or the maturity of which has been so accelerated, aggregates $75,000,000 or its foreign currency equivalent or more; or
(f)
the
Borrower, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together
(as of the most recent audited consolidated financial statements of the Borrower and the Restricted Subsidiaries), would constitute
a Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:
(i)
commences
proceedings to be adjudicated bankrupt or insolvent;
(ii)
consents
to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking
an arrangement of debt, reorganization, dissolution, winding up or relief under applicable Bankruptcy Law (including, for the avoidance
of doubt, the filing of a notice of intention under the Bankruptcy and Insolvency Act (Canada) or of an application under the Companies’
Creditors Arrangement Act (Canada) or any proposal to compromise, arrange or reorganize any of its debts or obligations under Section
192 of the Canada Business Corporations Act or any similar provision of Canadian federal or provincial corporate law, or any applicable
Bankruptcy Law in Luxembourg or England);
(iii)
consents
to the appointment of a receiver, interim receiver, receiver and manager, liquidator, assignee, trustee, sequestrator or other
similar official of it or for all or substantially all of its property; or
(iv)
makes
a general assignment for the benefit of its creditors; or
(g)
a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i)
is
for relief against the Borrower, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries
that, taken together (as of the most recent audited consolidated financial statements of the Borrower and the Restricted Subsidiaries),
would constitute a Significant Subsidiary, in a proceeding in which the Borrower, any such Restricted Subsidiary that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken together (as of the most recent audited consolidated financial statements
of the Borrower and the Restricted Subsidiaries), would constitute a Significant Subsidiary, is to be adjudicated bankrupt or insolvent;
(ii)
appoints
a receiver, interim receiver, receiver and manager, liquidator, assignee, trustee, sequestrator or other similar official of the
Borrower, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together
(as of the most recent audited consolidated financial statements of the Borrower and the Restricted Subsidiaries), would constitute
a Significant Subsidiary, or for all or substantially all of the property of the Borrower, any Restricted Subsidiary that is a
Significant Subsidiary or any group of Restricted Subsidiaries that, taken together (as of the most recent audited consolidated
financial statements of the Borrower and the Restricted Subsidiaries), would constitute a Significant Subsidiary;
(iii)
orders
the liquidation, dissolution or winding up of the Borrower, any Restricted Subsidiary that is a Significant Subsidiary or any group
of Subsidiaries that, taken together (as of the most recent audited consolidated financial statements of the Borrower and the Restricted
Subsidiaries), would constitute a Significant Subsidiary; or
(iv)
orders
the presentation of any plan or arrangement, compromise or reorganization of the Borrower, any Restricted Subsidiary that is a
Significant Subsidiary or any group of Restricted Subsidiaries that, taken together (as of the most recent audited consolidated
financial statements of the Borrower and the Restricted Subsidiaries), would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days; or
(h)
failure
by the Borrower or any Significant Subsidiary or group of Restricted Subsidiaries that, taken together (as of the latest audited
consolidated financial statements for the Borrower and the Restricted Subsidiaries), would constitute a Significant Subsidiary
to pay final judgments aggregating in excess of $75,000,000 or its foreign currency equivalent (net of any amounts that a reputable
and creditworthy insurance company has acknowledged liability for in writing), which judgments are not paid, discharged or stayed
for a period of 60 days; or
(i)
(i)
an ERISA Event shall have occurred; (ii) a trustee shall be appointed by a United States district court to administer any Plan;
(iii) the PBGC shall institute proceedings to terminate any Plan; (iv) any Credit Party or any of their respective ERISA Affiliates
shall have been notified by the sponsor of a Multiemployer Plan that it has incurred or will be assessed Withdrawal Liability to
such Multiemployer Plan and such entity does not have reasonable grounds for contesting such Withdrawal Liability or is not contesting
such Withdrawal Liability in a timely and appropriate manner; or (v) any
other event or condition shall occur or exist with respect to
a Plan; and in each case in clauses (i) through (v) above, such event or condition, together with all other such events or conditions,
if any, would reasonably be expected to result in a Material Adverse Effect;
(j)
(i)
any of the Fundamental Documents shall, for any reason, not be or shall cease to be in full force and effect or shall be declared
null and void or (ii) the validity or enforceability of the Liens granted or purported to be granted by any Collateral Document
on any material portion of the Collateral shall cease to be valid and perfected, or shall be contested by any Credit Party, except
to the extent that any such loss of perfection results from the limitations of foreign laws, rules and regulations as they apply
to pledges of Capital Stock in Foreign Subsidiaries or the application thereof, or from failure of the Administrative Agent to
maintain possession of certificates actually delivered to it representing securities pledged under the Collateral Documents, or
to file Uniform Commercial Code continuation statements or other similar statements (so long as such failure does not result from
the breach or non-compliance with the Fundamental Documents by any Credit Party); or
(k)
a
Change of Control shall occur.
Section 8.2.
Non-Bankruptcy
Defaults
. When any Event of Default other than those described in subsection (f) or (g) of Section 8.1 hereof has occurred
and is continuing, the Administrative Agent shall, by written notice to the Borrower: (a) if so directed by the Required RC
Lenders, terminate the remaining Revolving Credit Commitments, and if so directed by the Required Lenders, terminate all other
obligations of the 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 Fundamental Documents without further demand, presentment, protest or notice
of any kind; (c) after a breach or default by the Borrower under Section 7.9, if so directed by the Required RC/TLA Lenders,
terminate the remaining Revolving Credit Commitments and declare the principal of and the accrued interest on all outstanding Revolving
Loans and Term A Loans to be forthwith due and payable, and thereafter, if so directed by the Required RC/TLA Lenders, terminate
all other obligations of the Revolving Lenders and Term A Lenders hereunder on the date stated in such notice (which may be the
date thereof) and (d) if so directed by the Required Revolving 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.
Section 8.3.
Bankruptcy
Defaults
.
When any Event of Default described in subsections (f) or (g) of Section 8.1
hereof has occurred and is continuing, then all outstanding Loans shall immediately become due and payable together with all other
amounts payable under the Fundamental 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 8.4.
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)(iv)
or under Section 8.2 or Section 8.3
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 clause (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 Issuing Banks, 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 Issuing Banks. 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 Issuing Banks, the 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 clause (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 8.5.
Right
to Realize on Collateral and Enforce Guarantees
. Anything contained in any of the Fundamental Documents to the contrary notwithstanding,
the Borrower, the Administrative Agent and each Secured Party hereby agree that (a) no Secured Party shall have any right individually
to realize upon any of the Collateral or to enforce any Guarantee set forth in any Fundamental Document, it being understood and
agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative Agent, on behalf of the Secured
Parties in accordance with the terms hereof and all powers, rights and remedies under the Collateral Documents may be exercised
solely by the Administrative Agent;
provided
that, notwithstanding the foregoing, the Lenders may exercise the set-off rights
contained in Section 11.6 in the manner set forth therein, and (b) in the event of a foreclosure by the Administrative Agent
on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may
be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Administrative Agent,
as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities
unless the Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement
or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of
the Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent at such sale
or other disposition.
Section 8.6.
Borrower’s
Right to Cure
. Notwithstanding anything to the contrary contained in Section 8.1 or Section 8.2 or otherwise, for
purposes of determining whether an Event of Default under Section 7.9 has occurred, the cash proceeds of any equity contribution
in the form of common equity, “qualified” preferred or other equity on terms acceptable to the Administrative Agent
made to, and actually received by, the Borrower during the period commencing after the last day of any fiscal quarter and ending
fifteen (15) Business Days after the date on which financial statements are required to be delivered hereunder with respect to
such fiscal quarter (such period, the “
Equity Cure Period
”), if requested in writing by the Borrower, shall
be deemed to increase Adjusted EBITDA for purposes of determining compliance with Section 7.9 at the end of such fiscal quarter
and applicable
subsequent periods that include
such fiscal quarter (any such equity contribution so included in the calculation of Adjusted EBITDA, a “
Specified Equity
Contribution
”);
provided
that (i) in each period of four consecutive fiscal quarters, there shall be at least
two fiscal quarters in which no Specified Equity Contribution is made, (ii) no more than four (4) Specified Equity Contributions
may be made in the aggregate during the term of this Credit Agreement, (iii) the amount of any Specified Equity Contribution shall
be no more than the amount required to cause the Borrower to be in pro forma compliance with
Section 7.9
for any applicable period and (iv) the Specified Equity Contributions shall be counted solely for the purposes of compliance with
Section 7.9 and shall not be included for any other purposes including availability or amount of any covenant “baskets”,
Excess Cash Flow and, whether or not used to prepay indebtedness, there shall be no reduction in indebtedness or netting of cash
in connection with the proceeds of any Specified Equity Contributions for determining compliance with any financial ratio during
any fiscal quarter in which it is included in Adjusted EBITDA. Upon receipt by the Administrative Agent of such written request
from the Borrower prior to the last day of the Equity Cure Period, neither the Administrative Agent nor any Lender shall exercise
any rights or remedies under Section 8.2 on the basis of any failure to comply with Section 7.9 until the expiration
of the Equity Cure Period. For the avoidance of doubt, no Revolving Lender shall be obligated to fund any Revolving Loan during
such Equity Cure Period.
Section 9.1.
Guarantee
.
(a) Each Guarantor, jointly and severally, unconditionally and irrevocably guarantees to the Administrative Agent, the Issuing
Banks and the other Secured Parties the due and punctual payment by, and performance of, the Obligations (including interest accruing
on and after the filing of any petition in bankruptcy or of reorganization of the obligor whether or not post filing interest is
allowed in such proceeding). Each Guarantor further agrees that the Obligations may be increased, extended or renewed, in whole
or in part, without notice or further assent from it (except as may be otherwise required herein), and it will remain bound upon
this Guarantee notwithstanding any extension or renewal of any Obligation.
(b)
Each
Guarantor waives presentation to, demand for payment from and protest to, as the case may be, any Credit Party or any other guarantor
of any of the Obligations, and also waives notice of protest for nonpayment, notice of acceleration and notice of intent to accelerate.
The obligations of each Guarantor hereunder shall not be affected by (i) the failure of the Administrative Agent, the Issuing Banks
or any Secured Party to assert any claim or demand or to enforce any right or remedy against the Borrower or any Guarantor or any
other guarantor under the provisions of this Credit Agreement or any other agreement or otherwise; (ii) any extension or renewal
of any provision hereof or thereof; (iii) the failure of the Administrative Agent, the Issuing Banks or any Secured Party to obtain
the consent of the Guarantor with respect to any rescission, waiver, compromise, acceleration, amendment or modification of any
of the terms or provisions of this Credit Agreement, the Notes or of any other agreement; (iv) the release, exchange, waiver or
foreclosure of any security held by the Administrative Agent for the Obligations or any of them; (v) the failure of the Administrative
Agent, the Issuing Banks or any Secured Party to exercise any right or remedy against any other Guarantor or any other guarantor
of the Obligations; (vi) any bankruptcy, reorganization, liquidation, dissolution or receivership proceeding or case by or
against either Borrower or other Credit Party, any change in the corporate existence, structure, ownership or control of either
Borrower or other Credit Party (including any of the foregoing arising from any merger, consolidation, amalgamation, reorganization
or similar transaction); or (vii) the release or substitution of any Guarantor or any other guarantor of the Obligations. Without
limiting the generality of the foregoing or any other provision hereof (including, without limitation, Section 11.7 hereof),
to the extent permitted by Applicable Law, each Guarantor hereby expressly waives any and all benefits which might otherwise be
available to it under California Civil Code Sections 2799, 2809, 2810, 2815, 2819, 2820, 2821, 2822, 2838, 2839, 2845, 2848, 2849,
2850, 2899 and 3433.
(c)
Each
Guarantor further agrees that this Guarantee is a continuing guarantee, shall secure the Obligations and any ultimate balance thereof,
notwithstanding that the Borrower or others may from time to time satisfy the Obligations in whole or in part and thereafter incur
further Obligations, and that this Guarantee constitutes a guarantee of performance and of payment when due and not just of collection,
and waives any right to require that any resort be had by the Administrative Agent, the Issuing Banks or any Secured Party to any
security held for payment of the Obligations or to any balance of any deposit, account or credit on the books of the Administrative
Agent, the Issuing Banks or any Secured Party in favor of the Borrower or any Guarantor, or to any other Person.
(d)
Each
Guarantor hereby expressly assumes all responsibilities to remain informed of the financial condition of the Borrower, the Guarantors
and any other guarantors of the Obligations and any circumstances affecting the Collateral or the ability of the Borrower to perform
under this Credit Agreement.
(e)
Each
Guarantor’s obligations under the Guarantee shall not be affected by the genuineness, validity, regularity or enforceability
of the Obligations, the Notes or any other instrument evidencing any Obligations, or by the existence, validity, enforceability,
perfection, or extent of any collateral therefor or by any other circumstance relating to the Obligations which might otherwise
constitute a defense to this Guarantee. The Administrative Agent, the Issuing Banks and the Secured Parties make no representation
or warranty with respect to any such circumstances and have no duty or responsibility whatsoever to any Guarantor in respect to
the management and maintenance of the Obligations or any collateral security for the Obligations.
Section 9.2.
No
Impairment of Guarantee, etc
. The obligations of each Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (except payment and performance in full of the Obligations), including, without limitation,
any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or set-off, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise.
Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired
or otherwise affected by the failure of the Administrative Agent, the Issuing Banks or any Secured Party to assert any claim or
demand or to enforce any remedy under this Credit Agreement or any other agreement, by any waiver or modification of any provision
hereof or thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other
act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk
of such Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law, unless and until the Obligations
are paid in full.
Section 9.3.
Continuation
and Reinstatement, etc
.
(a)
Each
Guarantor further agrees that its Guarantee hereunder shall continue to be effective or be reinstated, as the case may be, if at
any time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored by the Administrative Agent,
the Issuing Banks or the Secured Parties upon the bankruptcy or reorganization of the Borrower or a Guarantor, or otherwise. In
furtherance of the provisions of this Article 9, and not in limitation of any other right which the Administrative Agent, the Issuing
Banks or the Secured Parties may have at law or in equity against the Borrower, a Guarantor or any other Person by virtue hereof,
upon failure of the Borrower to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration,
after notice or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Administrative Agent
on behalf of itself, the Issuing Banks and/or the Secured Parties, forthwith pay or cause to be paid to the Administrative Agent
for the benefit of itself, the Issuing Banks and/or the Lenders
(as applicable) in cash an amount equal to the unpaid amount
of all the Obligations with interest thereon at a rate of interest equal to the rate specified in Section 2.4 hereof, and
thereupon the Administrative Agent shall assign such Obligation, together with all security interests, if any, then held by the
Administrative Agent in respect of such Obligation, to the Guarantors making such payment; such assignment to be subordinate and
junior to the rights of the Administrative Agent on behalf of itself, the Issuing Banks and the Secured Parties with regard to
amounts payable by the Borrower in connection with the remaining unpaid Obligations and to be pro tanto to the extent to which
the Obligation in question was discharged by the Guarantor or Guarantors making such payments.
(b)
All
rights of a Guarantor against the Borrower, arising as a result of the payment by such Guarantor of any sums to the Administrative
Agent for the benefit of the Administrative Agent, the Issuing Banks and/or the Secured Parties or directly to the Lenders hereunder
by way of right of subrogation or otherwise, shall in all respects be subordinated and junior in right of payment to, and shall
not be exercised by such Guarantor until and unless, the prior final and indefeasible payment in full of all the Obligations. If
any amount shall be paid to such Guarantor (other than a Luxembourg Guarantor) for the account of the Borrower, such amount shall
be held in trust for the benefit of the Administrative Agent, segregated from such Guarantor’s own assets, and shall forthwith
be paid to the Administrative Agent on behalf of the Administrative Agent, the Issuing Banks and/or the Secured Parties to be credited
and applied to the Obligations, whether matured or unmatured. If any amount shall be paid to a Luxembourg Guarantor for the account
of the Borrower, such Luxembourg Guarantor will hold such amount for and on behalf of the Administrative Agent.
Section 9.4.
Limitation
on Guaranteed Amount, etc
. Notwithstanding any other provision of this Article 9, the amount guaranteed by each Guarantor hereunder
shall be limited to the extent, if any, required so that its obligations under this Article 9 shall not be subject to avoidance
under Section 548 of the Bankruptcy Code or to being set aside or annulled under any Applicable Law relating to fraud on creditors.
In determining the limitations, if any, on the amount of any Guarantor’s obligations hereunder pursuant to the preceding
sentence, it is the intention of the parties hereto that any rights of subrogation or contribution which such Guarantor may have
under this Article 9, any other agreement or Applicable Law shall be taken into account. In addition, to the extent that any Person
becomes a Guarantor of this Credit Agreement and such Person is organized outside of the United States or Canada, the Guarantee
by such Person of the Obligations hereunder may be subject to such other limitations as are customary in such Guarantor’s
jurisdiction as reasonably agreed by the Administrative Agent and the Borrower.
Section 9.5.
Voluntary
Arrangements
.
(a)
Without
prejudice to the Administrative Agent's, the Issuing Banks’ and the Secured Parties' rights to recover such sums under the
Guarantee and indemnity under Section 9.1, on the approval of any company voluntary arrangement in respect of the Borrower
(or the implementation of any compromise or scheme of arrangement or any analogous procedure to any of the foregoing in any other
jurisdiction) under which the Borrower's obligations to the Administrative Agent, the Issuing Banks and the Secured Parties are
compromised in any way, each Guarantor shall as principal obligor be liable to the Administrative Agent, the Issuing Banks and
the Secured Parties for, and hereby undertakes to the Administrative Agent, the Issuing Banks and the Secured Parties (as a separate
and additional covenant) immediately on demand from time to time to pay to the Administrative Agent, the Issuing Banks and the
Secured Parties, amounts equal to the sums that would have been payable to the Administrative Agent, the Issuing Banks and the
Secured Parties by the Borrower, or any guarantor of the Borrower, had such compromise not occurred, and so that payment shall
be made by a Guarantor to the Administrative Agent, the Issuing Banks and the Secured Parties under this Section in the amounts
and at the times at which but for the said compromise the Borrower would have been obliged to make payment to the Administrative
Agent, the Issuing Banks and the Secured Parties. Each Guarantor's
liability under Section 9.1 and this Section 9.5 shall not be affected in any way by the Administrative Agent and the
Lenders voting in favor of (if the Administrative Agent, the Issuing Banks and the Secured Parties chooses to do so) any company
voluntary arrangement, compromise, scheme of arrangement or analogous procedure proposed by or in respect of the Borrower.
(b)
If
and to the extent that any right is or may be held by a Guarantor as against the Borrower, the existence or exercise of which may
affect the right or ability of the Administrative Agent, the Issuing Banks and the Secured Parties to obtain the full benefit of
this Guarantee and indemnity from a Guarantor if a company voluntary arrangement, compromise, scheme of arrangement or analogous
procedure proposed by or in respect of the Borrower is approved, each Guarantor hereby waives such right. In the event of any inconsistency
between this Section and any other provision of the Credit Agreement this Section shall prevail.
Section 9.6.
Release
of Guarantees
.
(a)
A
Guarantor shall be automatically and unconditionally released and discharged from its obligations under its Guarantee, this Credit
Agreement and the Fundamental Documents to which it is a party, and no further action by such Guarantor, the Borrower or the Administrative
Agent shall be required for the release of such Guarantor’s Guarantee, upon:
(i)
any
sale, assignment, transfer, conveyance, exchange or other disposition (by merger, amalgamation, consolidation or otherwise) of
the Capital Stock of such Guarantor, after which the applicable Guarantor is no longer a Restricted Subsidiary or any sale, assignment,
transfer, conveyance, exchange or other disposition of all or substantially all the assets of such Guarantor (other than by lease);
provided
that
, in each of the foregoing cases, (x) such sale, assignment, transfer, conveyance, exchange or other
disposition is made in compliance with this Credit Agreement, including Section 7.6 and 7.7 (it being understood that only
such portion of the Net Available Cash as is required to be applied on or before the date of such release in accordance with Section 2.8(c)
is to be applied in accordance therewith at such time) and (y) all the obligations of such Guarantor under all Consolidated Indebtedness
of the Borrower terminate upon consummation of such transaction;
(ii)
the
proper designation of any Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary;
(iii)
in
the case of any Guarantor which has provided a Guarantee in the Borrower’s discretion and which does not or, substantially
contemporaneously with the release, will not Guarantee any Material Indebtedness of the Borrower, the Borrower’s delivering
notice to the Administrative Agent of its election to release such Guarantor from its Guarantee;
(iv)
in
the case of any Guarantor which meets the definition of an Excluded Subsidiary, delivery to the Administrative Agent of an Officer’s
Certificate certifying thereto, and requesting the release of the Guarantees provided by such Guarantor; and
(v)
the
Termination Date.
Section 9.7.
Indemnity
and Subrogation
. In addition to all such rights of indemnity and subrogation as the Guarantors may have under applicable law
(but subject to Section 9.9), the Borrower agrees that (a) in the event a payment shall be made by any Guarantor under
this Credit Agreement or any other Fundamental Document or related agreement, the Borrower shall indemnify such Guarantor for the
full amount of such payment and such Guarantor shall be subrogated to the rights of the
person to whom such payment shall have been made to the extent
of such payment and (b) in the event any assets of any Guarantor shall be sold pursuant to any Collateral Document to satisfy
in whole or in part a claim of any Secured Party, the Borrower shall indemnify such Guarantor in an amount equal to the greater
of the book value or the fair market value of the assets so sold.
Section 9.8.
Contribution
and Subrogation
. Each Guarantor (a “
Contributing Guarantor
”) agrees (subject to Section 9.9) that, in
the event a payment shall be made by any other Guarantor hereunder or under any other Fundamental Document or related agreement,
in respect of any Obligation, or assets of any other Guarantor shall be sold pursuant to any Collateral Document to satisfy any
Obligation owed to any Secured Party, and such other Guarantor (the “
Claiming Guarantor
”) shall not have been
fully indemnified by the Borrower as provided in Section 9.7, the Contributing Guarantor shall indemnify the Claiming Guarantor
in an amount equal to (i) the amount of such payment or (ii) the greater of the book value or the Fair Market Value of
such assets, as the case may be, in each case multiplied by a fraction of which the numerator shall be the net worth of the Contributing
Guarantor on the date hereof and the denominator shall be the aggregate net worth of all the Guarantors on the date hereof (or,
in the case of any Guarantor becoming a party hereto after the date hereof, the date such Guarantor becomes a party). Any
Contributing Guarantor making any payment to a Claiming Guarantor pursuant to this Section 9.8 shall be subrogated to the
rights of such Claiming Guarantor under Section 9.7 to the extent of such payment.
Section 9.9.
Subordination
.
(a) Notwithstanding any provision of this Credit Agreement to the contrary, all rights of the Guarantors under Section 9.7
and 9.8 and all other rights of indemnity, contribution or subrogation under applicable law or otherwise shall be fully subordinated
to the indefeasible payment in full in cash of the Obligations. No failure on the part of the Borrower or any Guarantor to
make the payments required by Sections 9.7 and 9.8 (or any other payments required under applicable law or otherwise) shall
in any respect limit the obligations and liabilities of any Guarantor with respect to its obligations hereunder, and each Guarantor
shall remain liable for the full amount of its obligations hereunder.
(b)
The
Borrower and each Guarantor hereby agree that all Indebtedness and other monetary obligations owed by it to the Borrower or any
Subsidiary shall be fully subordinated to the indefeasible payment in full in cash of the Obligations.
Section 9.10.
Luxembourg
Guarantors
. (a) Notwithstanding any other provision of this Credit Agreement, the maximum liability of any Guarantor incorporated
under the laws of Luxembourg (a “
Luxembourg Guarantor
”) under this Section 9.10 for the Obligations of
any obligor (including, but not limited to, the Borrower) which is not a direct or indirect Subsidiary of such Luxembourg Guarantor
shall be limited to the sum of:
(i)
an
amount equal to the aggregate (without double-counting) of (A) all moneys received by the Luxembourg Guarantor or its direct or
indirect present of future Subsidiaries under the Fundamental Documents and (B) the aggregate amount directly or indirectly made
available to the Luxembourg Guarantor or its direct or indirect present or future Subsidiaries by other members of the Group that
has been financed by a borrowing under the Fundamental Documents;
plus
(ii)
an
amount equal to 95% of the greater of (a) the Luxembourg Guarantor’s own funds (
capitaux propres
), as referred to
in annex I to the grand ducal regulation dated December 18, 2015 defining the form and content of the presentation of balance sheet
and profit and loss account implementing Articles 34, 35, 46 and 47 of the Luxembourg law dated December 19, 2002 concerning the
trade and companies register and the accounting and annual accounts of undertakings as amended (the “
Regulation
”)
as increased by the amount of any Intra Group Liabilities, each as reflected
in the Luxembourg Guarantor’s latest duly approved annual
accounts and other relevant documents available to the Administrative Agent at the date of this Credit Agreement or (B) the Luxembourg
Guarantor’s own funds (
capitaux propres
), as referred to in the Regulation as increased by the amount of any Intra
Group Liabilities, each as reflected in the Luxembourg Guarantor’s latest duly approved annual accounts and other relevant
documents available to the Administrative Agent at the time the Guarantee is called.
For the purposes of this paragraph, “
Intra
Group Liabilities
” means all existing liabilities owed by the Luxembourg Guarantor to the Borrower or any Guarantor that
have not been financed, directly or indirectly, by a borrowing under the Fundamental Documents.
Where for the purpose of the determination
of the Luxembourg Guarantor’s own funds under paragraph (ii) above, no duly established and approved annual accounts are
available for the relevant reference period (which, for the avoidance of doubt, includes a situation where, in respect of the determination
to be made under (ii) above, no final annual accounts have been established in due time in respect of the then most recently ended
financial year) the relevant Luxembourg Guarantor shall, promptly, establish unaudited interim accounts (as of the date of the
end of the then most recent financial quarter) or annual accounts (as applicable) duly established in accordance with applicable
accounting rules, pursuant to which the relevant Luxembourg Guarantor’s own funds and Intra Group Liabilities will be determined.
If the relevant Luxembourg Guarantor fails to provide such unaudited interim accounts or annual accounts (as applicable) within
30 Business Days as from the request of the Administrative Agent, the Administrative Agent may appoint an independent auditor (réviseur
d’entreprises agréé) or an independent reputable investment bank which shall undertake the determination of
the relevant Guarantor’s own funds and Intra Group Liabilities. In order to prepare such determination, the independent auditor
(réviseur d’entreprises agréé) or the independent reputable investment bank shall take into consideration
such available elements and facts at such time, including without limitation, the latest annual accounts of its Subsidiaries, any
recent valuation of the assets of such Luxembourg Guarantor and its subsidiaries (if available), the market value of the assets
of such Luxembourg Guarantor and its subsidiaries as if sold between a willing buyer and a willing seller as a going concern using
a standard market multi criteria approach combining market multiples, book value, discounted cash flow or comparable public transaction
of which price is known (taking into account circumstances at the time of the valuation and making all necessary adjustments to
the assumption being used) and acting in a reasonable manner.
The limitation set out in this Section 9.10
does not apply to any security granted by any Luxembourg Guarantors under the Collateral Documents (excluding any personal or corporate
guarantee).
(b) Notwithstanding
any other provision of this Credit Agreement to the contrary, in this Credit Agreement where it relates to the Borrower (to the
extent organized under the laws of Luxembourg), any Guarantor organized under the laws of Luxembourg, or any other party which
is organized under the laws of Luxembourg, a reference to:
(i)
a
winding-up, administration, liquidation, bankruptcy, general assignment for the benefit of creditors, receivership, insolvency,
reorganization or dissolution includes bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation voluntaire
ou judiciare), composition with creditors (concordat préventif de la faillite), moratorium or reprieve from payment (sursis
de paiement), controlled management (gestion contrôlée), fraudulent conveyance (action paulienne), general settlement
with creditors, reorganization or similar laws affecting the rights of creditors generally;
(ii)
a
receiver, receiver and manager, liquidator, administrator, trustee, custodian, sequestrator, conservator or similar officer includes
a juge délégué, commissaire, juge-commissaire, mandataire ad hoc, administrateur provisoire, liquidateur or
curateur;
(iii)
a
lien or security interest includes any hypothèque, nantissement, gage, privilège, sûreté réelle,
droit de rétention, and any type of security in rem (sûreté réelle) or agreement or arrangement having
a similar effect and any transfer of title by way of security;
(iv)
attachments
or similar creditors process means an executory attachment (saisie exécutoire) or conservatory attachment (saisie arrêt);
(v)
by-laws
includes its articles of association (statuts); and
(vi)
a
“set-off” includes, for purposes of Luxembourg law, legal set-off.
|
|
ARTICLE 10
|
THE ADMINISTRATIVE
AGENT
AND THE ISSUING BANKS
|
Section 10.1.
Administration
by the Administrative Agent
. (a) The general administration of the Fundamental Documents and any other documents contemplated
by this Credit Agreement or any other Fundamental Document shall be by the Administrative Agent or its designees. Except as otherwise
expressly provided herein (including by way of an express instruction given to the Administrative Agent by the Required Lenders,
Required RC Lenders or Required RC/TLA Lenders, as applicable under the circumstances), each of the Lenders and the Issuing Banks
hereby irrevocably authorizes the Administrative Agent, at its discretion, to take or refrain from taking such actions as agent
on its behalf and to exercise or refrain from exercising such powers under the Fundamental Documents, the Notes and any other documents
contemplated by this Credit Agreement or any other Fundamental Document as are expressly delegated by the terms hereof or thereof,
as appropriate, together with all powers reasonably incidental thereto. The Administrative Agent shall have no duties or responsibilities
except as set forth in the Fundamental Documents.
(b)
The
Lenders and the Issuing Banks hereby authorize the Administrative Agent (without the consent of any Lender or Issuing Bank, who
hereby irrevocably authorize any such action pursuant to this clause (b)):
(i)
to
release any Lien on the Collateral or any Guarantor from its guarantee in accordance with the terms of this Credit Agreement or
any other applicable Fundamental Document;
(ii)
to
determine that the cost to the Borrower or another Credit Party is disproportionate to the benefit to be realized by the Administrative
Agent, the Issuing Banks and the Lenders by perfecting a Lien in a given asset or group of assets included in the Collateral and
that the Borrower or other Credit Party should not be required to perfect such Lien in favor of the Administrative Agent (for the
benefit of itself, the Issuing Banks and the Lenders);
(iii)
to
appoint subagents to be the holder of record of a Lien to be granted to the Administrative Agent (for the benefit of the Administrative
Agent, the Issuing Banks and the Lenders);
(iv)
in
connection with an item of Product being produced by a Credit Party, the principal photography of which is being done outside the
United States, to approve arrangements with such Credit Party as shall be satisfactory to the Administrative Agent with respect
to the temporary storage of the original negative film, the original sound track materials or other Physical Materials (as
defined in the Pledge and Security Agreement) of such item of
Product in a production laboratory located outside the United States;
(v)
to
enter into and perform its obligations under the other Fundamental Documents;
(vi)
to
enter into intercreditor, subordination, non-disturbance and/or attornment agreements, or any similar or comparable agreement,
with (A) any union and/or guild with respect to the security interests in favor of such unions and/or guilds required pursuant
to the terms of collective bargaining agreements, (B) Persons who have been granted Liens which are permitted pursuant to this
Credit Agreement, (C) any licensee, licensor, co-financier or co-producer having any rights to any item of Product, (D) Persons
providing any services in connection with any item of Product, or (E) any other lessor to or lessee of the Borrower or any Subsidiaries,
or any other counterparty of the Borrower or any or its Subsidiaries, at the request of the Borrower;
(vii)
upon
the request of the Borrower, if any additional Indebtedness permitted to be incurred under this Credit Agreement is secured by
first priority Liens or junior Liens on the Collateral and permitted to be incurred under this Credit Agreement (including any
Permitted Slate Financing or Permitted Slate Transaction), the Administrative Agent shall, at the request of the Borrower, enter
into an (or amend any existing) Intercreditor Agreement with such other secured creditor(s), as necessary to accommodate the additional
Indebtedness; and
(viii)
upon the request of the Borrower, to enter into amendments, replacements, extensions, restatements, modifications and supplements
of or to any Intercreditor Agreements then in existence.
(c)
It
is understood and agreed that the use of the term “agent” herein or in any other Fundamental Documents (or any other
similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any Applicable Law. Instead such term is used as a matter of market custom, and is
intended to create or reflect only an administrative relationship between contracting parties.
Section 10.2.
Sharing
of Setoffs
. Each of the Lenders agrees that if it shall, through the exercise of a right of banker’s lien, setoff or
counterclaim against any Credit Party (including, but not limited to, a secured claim under Section 506 of Title 11 of the United
States Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender under any
applicable bankruptcy, insolvency or other similar law) or otherwise, obtain payment in respect of its Obligations (which term,
for purposes of this Section 10.2 only, shall refer solely to those Obligations referred to in clause (a) of the definition
of “Obligations”) as a result of which the unpaid portion of its Obligations is proportionately less than the unpaid
portion of Obligations of any of the other Lenders (a) it shall promptly purchase at par (and shall be deemed to have thereupon
purchased) from such other Lenders a participation in the Obligations of such other Lenders, so that the aggregate unpaid principal
amount of each of the Lender’s Obligations and its participation in Obligations of the other Lenders shall be in the same
proportion to the aggregate unpaid amount of all remaining Obligations as the amount of its Obligations prior to the obtaining
of such payment was to the amount of all Obligations prior to the obtaining of such payment and (b) such other adjustments shall
be made from time to time as shall be equitable to ensure that the Lenders share such payment
pro rata
. If all or any portion
of such excess payment is thereafter recovered from the Lender which originally received such excess payment, such purchase (or
portion thereof) shall be canceled and the purchase price restored to the extent of such recovery. The Credit Parties expressly
consent to the foregoing arrangements and agree that any Lender or Lenders holding (or deemed to be holding) a participation in
a Note or Letter of Credit may exercise
any and all rights of banker’s lien, setoff or counterclaim
with respect to any and all moneys owing by the Borrower to such Lender or Lenders as fully as if such Lender or Lenders held a
Note and was the original obligee thereon or was the issuer of the Letter of Credit, in the amount of such participation. Notwithstanding
the foregoing, a Defaulting Lender shall not be entitled to share in any benefit contemplated by this Section 10.2 realized
by a non-Defaulting Lender until all the Obligations owed to the non-Defaulting Lenders have been paid in full and the Revolving
Credit Commitments have been terminated. Notwithstanding the foregoing, the provisions of this Section 10.2 shall not be construed
to apply to any payment made by or on behalf of the Borrower or any Subsidiary thereof pursuant to and in accordance with the express
terms of this Credit Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation
in any of its Loans or participations in L/C Disbursements to any assignee or participant, including the Borrower or any Subsidiary
thereof.
Section 10.3.
Notice
to the Lenders
. (a) Upon receipt by the Administrative Agent or the Issuing Banks from any of the Credit Parties of any communication
calling for an action on the part of the Lenders, or upon notice to the Administrative Agent or an Issuing Bank of any Event of
Default, the Administrative Agent or such Issuing Bank will in turn immediately inform the other Lenders in writing (which shall
include facsimile communications) of the nature of such communication or of the Event of Default, as the case may be.
(b)
The
Administrative Agent or the Issuing Banks shall not be deemed to know of any Default or Event of Default unless a Responsible Officer
of the Administrative Agent or the Issuing Banks has actual knowledge thereof or unless written notice of any event which is in
fact such a Default or Event of Default is received by the Administrative Agent or the Issuing Banks at its address for notices
set forth in Section 11.1, and such notice references the existence of a Default or Event of Default and this Credit Agreement.
Section 10.4.
Liability
of the Administrative Agent, Issuing Banks
. (a) The Administrative Agent, or the Issuing Banks, when acting on behalf of the
Lenders, may execute any of its duties under this Credit Agreement or the other Fundamental Documents by or through its officers,
agents, or employees and neither the Administrative Agent, the Issuing Banks nor their respective officers, agents or employees
shall be liable to the Lenders or any of them for any action taken or omitted to be taken in good faith, nor be responsible to
the Lenders or to any of them for the consequences of any oversight or error of judgment, or for any loss, unless the same shall
happen through its gross negligence or willful misconduct. The Administrative Agent, the Issuing Banks and their Related Parties
shall in no event be liable to the Lenders or to any of them for any action taken or omitted to be taken by it pursuant to: (i)
instructions received by it from the Required Lenders, Majority Facility Lenders, Required RC Lenders or Required RC/TLA Lenders,
as applicable or (ii) in reliance upon the advice of counsel selected by it with reasonable care. Without limiting the foregoing,
neither the Administrative Agent, the Issuing Banks, nor any of its Related Parties shall be responsible to any of the Lenders
for the due execution, validity, genuineness, effectiveness, sufficiency, or enforceability of, or for any statement, warranty,
or representation in, or for the perfection of any security interest contemplated by, this Credit Agreement, any other Fundamental
Document or any related agreement, document or order, or for freedom of any of the Collateral from prior Liens or security interests,
or shall be required to ascertain or to make any inquiry concerning the performance or observance by the Borrower or any other
Credit Party of any of the terms, conditions, covenants, or agreements of this Credit Agreement, any other Fundamental Document,
or any related agreement or document.
(b)
None
of the Administrative Agent (in its capacity as agent for the Lenders), the Issuing Banks or any of their Related Parties shall
have any responsibility to the Borrower or any other Credit Party on account of the failure or delay in performance or breach by
any of the Lenders of any of such Lender’s obligations under this Credit Agreement, the other Fundamental Documents or any
related
agreement or document or in connection herewith or therewith.
No Lender nor any of its Related Parties shall have any responsibility to the Borrower or any other Credit Party on account of
the failure or delay in performance or breach by any other Lender of such other Lender’s obligations under this Credit Agreement,
the other Fundamental Documents or any related agreement or document or in connection herewith or therewith.
(c)
The
Administrative Agent, as agent for the Lenders hereunder and the Issuing Banks in such capacity, shall be entitled to rely on any
communication, instrument, or document believed by it to be genuine or correct and to have been signed or sent by a Person or Persons
believed by it to be the proper Person or Persons, and it shall be entitled to rely on advice of legal counsel, independent public
accountants, and other professional advisers and experts selected by it.
(d)
The
Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through one or more sub-agents.
The exculpatory provisions of this Article shall apply to any such sub-agent and to any respective Related Parties of the Administrative
Agent or the Issuing Banks and any such sub-agent, and shall apply to their respective activities in connection with the syndication
of this Credit Agreement as well as activities as Administrative Agent or the Issuing Banks. The Administrative Agent and the Issuing
Banks shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent
jurisdiction determines in a final and nonappealable judgment that the Administrative Agent or the Issuing Bank, as applicable,
acted with gross negligence or willful misconduct in the selection of such sub-agents.
(e)
None
of the provisions of this Credit Agreement shall require the Administrative Agent or the Issuing Banks to expend or risk its own
funds or otherwise to incur any liability, financial or otherwise, in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or indemnity
reasonably satisfactory to it against such risk or liability is not assured to it.
Section 10.5.
Reimbursement
and Indemnification
.
(a)
Each
of the Lenders agrees (i) to reimburse the Administrative Agent and the Issuing Banks for such Lender’s applicable Percentage
of any expenses and fees incurred for the benefit of the Lenders under the Fundamental Documents, including, without limitation,
counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, and any other expense
incurred in connection with the operations or enforcement thereof not reimbursed by or on behalf of the Borrower and (ii) to indemnify
and hold harmless the Administrative Agent, any of its Related Parties and the Issuing Banks, on demand, in accordance with such
Lender’s Percentage, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses, or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against,
any of them in any way relating to or arising out of any Fundamental Documents or any related agreement or document, or any action
taken or omitted by it or any of them under the Fundamental Documents or any related agreement or document, to the extent not reimbursed
by or on behalf of the Borrower or any other Credit Party (except such as shall result from their gross negligence or willful misconduct).
To the extent indemnification payments made by the Lenders pursuant to this Section 10.5 are subsequently recovered by the
Administrative Agent, or the Issuing Banks from a Credit Party, the Administrative Agent will promptly refund such previously paid
indemnity payments to the Lenders. Notwithstanding the foregoing, if there are at the time of computation of a reimbursement and/or
indemnity obligation one or more Defaulting Lenders which have not fulfilled their obligations under this Section 10.5, the
obligations of such non-performing Defaulting Lenders shall be reallocated among the other Lenders (including performing Defaulting
Lenders), in proportion to the percentage of such Lender
to the aggregate percentage of all Lenders
(other than that of the non-performing Defaulting Lender or Defaulting Lenders).
(b)
The
provisions of Section 10.5(a) are agreements among the Administrative Agent and the Lenders and are not for the benefit of
any of the Credit Parties and may not be asserted by any of the Credit Parties as a defense to, or a limitation of, their respective
Obligations under this Credit Agreement.
Section 10.6.
Rights
of Administrative Agent
. (a) It is understood and agreed that the Administrative Agent shall have the same duties, rights and
powers as a Lender hereunder (including the right to give such instructions) as any of the other Lenders and may exercise such
rights and powers, as well as its rights and powers under other agreements and instruments to which it is or may be party, and
engage in other transactions with any Credit Party or Affiliate thereof, as though it were not the Administrative Agent, of the
Lenders under this Credit Agreement and the other Fundamental Documents.
(b)
The
Administrative Agent may consult with counsel of its selection and the written advice of such counsel shall be full and complete
authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and
in reliance thereon.
Section 10.7.
Independent
Investigation by Lenders
. Each of the Lenders acknowledges that it has decided to enter into this Credit Agreement and the other
Fundamental Documents and to make the Loans and participate in the Letters of Credit hereunder based on its own analysis of the
transactions contemplated hereby and of the creditworthiness of the Credit Parties and agrees that neither the Administrative Agent
nor the Issuing Banks shall bear any responsibility therefor.
Section 10.8.
Agreement
of Required Lenders
. Except as otherwise expressly stated herein, upon any occasion requiring or permitting an approval, consent,
waiver, election or other action on the part of the Required Lenders, Majority Facility Lenders, Required RC Lenders or Required
RC/TLA Lenders, as required under this Credit Agreement, action shall be taken by the Administrative Agent for and on behalf of,
or for the benefit of, all Lenders upon the direction of such Required Lenders, Majority Facility Lenders, Required RC Lenders
or Required RC/TLA Lenders, as applicable, and any such action shall be binding on all Lenders. No amendment, modification, consent
or waiver shall be effective except in accordance with the provisions of Section 11.12 hereof.
Section 10.9.
Notice
of Transfer
. The Administrative Agent and the Issuing Banks may deem and treat any Lender which is a party to this Credit Agreement
as the owner of such Lender’s respective portions of the Loans and participations in Letters of Credit for all purposes,
unless and until a written notice of the assignment or transfer thereof executed by any such Lender shall have been received by
the Administrative Agent and become effective in accordance with Section 11.3 hereof.
Section 10.10.
Successor
Administrative Agent
. The Administrative Agent may resign at any time by giving written notice thereof to the Lenders and the
Borrower. Such resignation shall become effective upon the earlier to occur of (i) 30 days from the date of such notice and (ii)
acceptance by a successor agent of its appointment pursuant hereto (the “
Resignation Effective Date
”). Upon
the Resignation Effective Date, the retiring Administrative Agent shall be discharged from its duties and obligations hereunder
and under the other Fundamental Documents (except that in the case of any collateral security held by the Administrative Agent
on behalf of the Lenders under any of the Fundamental Documents, the retiring Administrative Agent shall continue to hold such
collateral security until such time as a successor Administrative Agent is appointed). Upon any such resignation, the Required
Lenders shall promptly appoint a successor agent from among the Lenders which successor
shall be experienced and sophisticated in entertainment industry
lending,
provided
that
such replacement is reasonably acceptable (as evidenced in writing) to the Borrower;
provided
,
however
, that such approval by the Borrower shall not be required at any time when an Event of Default is continuing. If
no successor agent shall have been so appointed by the Required Lenders and shall have accepted such appointment, within thirty
(30) days after the retiring agent’s giving of notice of resignation, the Borrower may appoint a successor agent (which successor
may be replaced by the Required Lenders;
provided
that
such successor is experienced and sophisticated in entertainment
industry lending and reasonably acceptable to the Borrower), which shall be either a Lender or a commercial bank organized, licensed,
carrying on business under the laws of the United States of America or of any State thereof and shall have a combined capital and
surplus of at least $500,000,000 and shall be experienced and sophisticated in entertainment industry lending. Upon the acceptance
of any appointment as Administrative Agent hereunder by a successor agent, such successor agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent under this Credit Agreement,
the other Fundamental Documents and any other credit documentation. After any retiring Administrative Agent’s resignation
hereunder as Administrative Agent, the provisions of this Article 10 and Article 11 shall inure to such retiring Administrative
Agent, its sub-agents and their respective Related Parties’ benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Credit Agreement.
Section 10.11.
Administrative
Agent May File Proofs of Claim
. In case of the pendency of any proceeding under any bankruptcy or insolvency proceeding or any
other judicial proceeding relative to any Credit Party, the Administrative Agent (irrespective of whether the principal of any
Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding
or otherwise:
(a)
to
file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other
Obligations under the Fundamental Documents that are owing and unpaid and to file such other documents as may be necessary or advisable
in order to have the claims of the Lenders and the Administrative Agent allowed in such judicial proceeding; and
(b)
to
collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments
to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly
to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel.
Section 10.12.
Québec
Security
. For the purposes of holding any security granted by or to be granted by any of the Credit Parties pursuant to the
laws of the Province of Québec, each of the parties hereto hereby appoints and designates JPMorgan Chase Bank, N.A. as the
hypothecary representative (within the meaning of Article 2692 of the CCQ) for the Administrative Agent, the Issuing Banks, and
all present and future Lenders and their Affiliates and the other Secured Parties. By executing an Assignment and Assumption, any
future Lender (and their Affiliates) shall be deemed to ratify the appointment as hypothecary representative granted to JPMorgan
Chase Bank, N.A. hereunder for and on behalf of the Administrative Agent, the Issuing Banks, all present and future Lenders and
their Affiliates and the other Secured Parties. JPMorgan Chase Bank, N.A. agrees to act in such capacity. The execution prior to
the date hereof by JPMorgan Chase Bank, N.A. in its capacity as hypothecary representative of any security pursuant to the laws
of the Province of Québec is hereby ratified and confirmed. For greater
certainty, JPMorgan Chase Bank, N.A., acting as hypothecary
representative, shall have the same rights, powers, immunities, indemnities and exclusions from liability as prescribed in favour
of the Administrative Agent in this Credit Agreement, which shall apply
mutatis mutandis
. In the event of the resignation
or replacement and appointment of a successor Administrative Agent, such successor Administrative Agent shall also act as the hypothecary
representative unless a hypothecary representative is otherwise appointed.
Section 10.13.
Other
Agent Titles
. Other than the title “Administrative Agent,” any title accorded to any Person on the cover page hereof
including Joint Bookrunner, Joint Lead Arranger or any other title containing the word “Agent,” is granted for recognition
only and any such Person granted such a title shall not have any right, power, obligation, liability, responsibility or duty under
this Credit Agreement other than those applicable to all such Persons as such. Without limiting the foregoing, no such Person shall
have or be deemed to have any fiduciary relationship with any other Lender or the Credit Parties. Each Lender acknowledges that
it has not relied, and will not rely, on any Person having any such title in deciding to enter into this Credit Agreement or in
taking or not taking action hereunder. In the event of any claim against any such Person in any capacity or purported capacity
inferred from any such title, such Person shall have the benefit of Section 11.5 to the same extent as the Administrative
Agent.
Section 11.1.
Notices
.
Notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by facsimile or electronic photocopy (
i.e.
, “PDF”
or “TIFF”) format sent by electronic mail, as follows, (a) if to the Administrative Agent or JPMorgan Chase Bank,
N.A., to it at (i) JPMorgan Chase Bank, N.A., 2029 Century Park East, 38
th
Floor, Los Angeles, CA, 90067,
Attention: David Shaheen, Phone No.: 310-860-7241, Facsimile No.: 310-860-7260 or (b) if to any Credit Party to it at Lions
Gate Entertainment Inc., 2700 Colorado Avenue, Santa Monica, CA, 90404, Attn: Wayne Levin and James Gladstone , Facsimile
No.: 310-452-8934, E-mail:
wlevin@lionsgate.com, jgladstone@lionsgate.com
, or (c) if to a Lender or an Issuing Bank,
to it at its address set forth on the signature pages hereto, or such other address as such party may from time to time
designate by giving written notice to the other parties hereunder. Notwithstanding the foregoing, any notification made by
the Borrower to the Administrative Agent from time to time with respect to the identity of the Disqualified Lenders shall be
sent by electronic mail to:
JPMDQ_Contact@jpmorgan.com
. Any failure of the Administrative Agent, an Issuing Bank or a
Lender giving notice pursuant to this Section 11.1, to provide a courtesy copy to a party as provided herein, shall not
affect the validity of such notice. All notices and other communications given to any party hereto in accordance with the
provisions of this Credit Agreement shall be deemed to have been given on the fifth (5th) Business Day after the date when
sent by registered or certified mail, postage prepaid, return receipt requested, if by mail, or upon receipt by such party,
if by any telegraphic or facsimile communications equipment or electronic mail, in each case addressed to such party as
provided in this Section 11.1 or in accordance with the latest unrevoked written direction from such party.
Section 11.2.
Termination,
Survival of Agreement, Representations and Warranties, etc
. All warranties, representations and covenants made by any of the
Credit Parties herein, in any other Fundamental Document or in any certificate or other instrument delivered by it or on its behalf
in connection with this Credit Agreement or any other Fundamental Document shall be considered to have been relied upon by the
Administrative Agent, Issuing Banks and the Lenders and, except for any terminations, amendments, modifications or waivers thereof
in accordance with the terms hereof, shall survive the making of the Loans and the issuance of the Letters of Credit herein contemplated
and the execution and delivery to the Administrative Agent of the Notes regardless of any investigation made by
the Administrative Agent, the Issuing Banks or the Lenders or
on their behalf and shall continue in full force and effect until the Termination Date. This Credit Agreement and each other Fundamental
Document will terminate and be of no further force and effect on the Termination Date, except with respect to those sections hereof
or thereof which expressly survive.
Section 11.3.
Successors
and Assigns; Syndications; Loan Sales; Participations
.
(a)
Successors and Assigns Generally
. The provisions of this Credit Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns permitted hereby, except that, other than as permitted by Section 7.6
of this Credit Agreement, the Borrower may not assign or otherwise transfer any of its rights or obligations under any Fundamental
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 clause (b) of
this Section 11.3, (ii) by way of participation in accordance with the provisions of clause (d) of this Section or (iii) by
way of pledge or assignment of a security interest subject to the restrictions of clause (f) of this Section 11.3. Nothing
in this Credit Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent provided in clause (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 Credit Agreement.
(b)
Assignments
by Lenders
.
(i)
Any
Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Credit
Agreement with respect to all or a portion of its Revolving Credit Commitment(s) and the Loans at the time owing to it.
(ii)
Assignments
shall be subject to the following additional conditions:
(A)
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 $5,000,000, in the case of any assignment in respect of the Revolving
Facility, or less than $1,000,000, in the case of any assignment in respect of any Term Facility (calculated, in each case, in
the aggregate with respect to multiple, simultaneous assignments by two (2) or more Approved Funds) unless each of the Administrative
Agent and the Borrower otherwise consent (each such consent not to be unreasonably withheld or delayed);
(B)
each
partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Credit Agreement with respect to the Facility or the Revolving Credit Commitment assigned, except that this clause (B)
shall not prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non-
pro
rata
basis;
(C)
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
in a form supplied by the Administrative Agent and completed by such Eligible Assignee; and
(D)
the
Eligible Assignee provides the Borrower and the Administrative Agent the forms required by Section 3.4(a) prior to the assignment.
Subject to acceptance and recording thereof
by the Administrative Agent pursuant to clause (c) of this Section 11.3, from and after the effective date specified in each
Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Credit Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, shall become a Lender hereunder and have the rights and obligations of a Lender
under this Credit 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 Credit Agreement (and, in the case of an Assignment and Assumption
covering all of the assigning Lender’s rights and obligations under this Credit Agreement, such Lender shall cease to be
a party hereto) but shall continue to be entitled to the benefits of Section 3.3, Section 3.4, 11.4 and 11.5 and subject
to any obligations hereunder with respect to facts and circumstances occurring prior to the effective date of such assignment.
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, notwithstanding anything to the contrary
elsewhere in this Credit 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 Credit Agreement, including without limitation,
Section 11.12, and in no event shall the Borrower have any rights of a Lender under this Credit Agreement or any other Fundamental
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 (and stated interest) 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 shall treat
each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this
Credit Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and
any Lender (as to its own interest, but not the interest of any other 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 clause (a) and (b) 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, the Administrative Agent or any Issuing Bank, sell
participations to any Person (other than a natural person (or a holding company, investment vehicle or trust for, or owned and
operated for the primary benefit of, a natural person) or a Disqualified Lender) (each, a “
Participant
”) in
all or a portion of
such Lender’s rights and/or obligations under this Credit
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 Credit 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 Credit Agreement.
Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Credit Agreement
and to approve any amendment, modification, supplement or waiver of any provision of this Credit 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 subclause (A) (to the extent that such Participant is directly affected)
or (B) of Section 11.12. Subject to clause (e) of this Section 11.3, the Borrower agrees that each Participant shall
be entitled to the benefits of Section 3.3, Section 3.4 and Section 3.6 (subject to the requirements and limitations
therein (including the requirements under Section 3.4, it being understood that the documentation required to be provided
under Section 3.4 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to clause (b) of this Section 11.3. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 10.2 as though it were a Lender;
provided
that such Participant
agrees to be subject to Section 10.2 as though it were a Lender.
Each Lender that sells a participation pursuant
to this Section 11.3(d), acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain a register
for the recordation of the names and addresses of the Participants, the commitments of, and principal amounts (and stated interest)
of the Loans owing to, each Participant pursuant to the terms hereof from time to time, and each repayment in respect of the principal
amount (and any interest thereon) (each, a “
Participant Register
”). The entries in the Participant Register
shall be conclusive absent manifest error, and such Lender and the Borrower shall treat each Person whose name is recorded in the
Participant Register pursuant to the terms hereof as the owner of a participation for all purposes of this Credit Agreement, notwithstanding
notice to the contrary;
provided
that no Lender shall have the obligation to disclose all or any portion of the Participant
Register (including the identity of any Participant or any information relating to a Participant’s interest in any Loan or
other Obligations under any Fundamental Document) to any Person except to the extent such disclosure is necessary in connection
with a tax audit or other proceeding to establish that any such Obligations are in registered form for U.S. federal income tax
purposes.
(e)
Limitations
upon Participant Rights
. A Participant shall not be entitled to receive any greater payment under Section 3.3 than
the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant. A Participant
shall not be entitled to receive any greater payment under Section 3.4 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, except to the extent such entitlement to a greater payment
results from a Change in Law after the sale of the participation.
(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
Credit Agreement (other than to any Disqualified Lender) to secure obligations of such Lender, including any pledge or assignment
to secure obligations to a Federal Reserve Bank or other central bank having jurisdiction over such Lender, and this Section 11.3
shall not apply to any pledge or assignment of a security interest;
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.
(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 Electronic Signatures and Records Act, or any other similar
state laws based on the Uniform Electronic Transactions Act.
(h)
Assignments
to the Borrower and its Subsidiaries
. The Borrower or its Subsidiaries may purchase by way of open market purchases or
auction or otherwise, and become an Assignee with respect to Term B Loans at any time and from time to time from Lenders in accordance
with Section 11.3(b) hereof, subject to the following limitations:
(i)
under
no circumstances, whether or not a Credit Party is subject to bankruptcy or other insolvency proceeding, shall the Borrower or
such Subsidiary be entitled to exercise any voting rights or other privileges with respect to Term B Loans under this Credit Agreement
and the other Fundamental Documents;
(ii)
the
Borrower or such Subsidiary shall not receive information provided solely to Lenders by the Administrative Agent or any Lender
and shall not be permitted to attend or participate in meetings by the Administrative Agent and the Lenders and their advisors;
(A) the Revolving Facility shall not be utilized to fund the
purchase or assignment and (B) no Default or Event of Default shall have occurred and be continuing at the time of such purchase
or assignment; and
(iii)
all
Term B Loans acquired by the Borrower or any of its Subsidiaries shall be immediately and automatically cancelled.
Notwithstanding anything to the contrary
herein, this Section 11.3(h) shall supersede any provisions in Section 10.2 to the contrary.
(i)
If
the Borrower wishes to replace the Loans or Revolving Credit Commitments under any Facility with ones having different terms, it
shall have the option, with the consent of the Administrative Agent and subject to at least three (3) Business Days’ advance
notice to the Lenders under such Facility, instead of prepaying the Loans or reducing or terminating the Revolving Credit Commitments
to be replaced, to (i) require the Lenders under such Facility to assign all such Loans or Revolving Credit Commitments under such
Facility to the Administrative Agent or its designees and (ii) amend the terms thereof in accordance with Section 11.12 (with
such replacement, if applicable, deemed to have been made pursuant to Section 2.15). Pursuant to any such assignment,
all Loans and Revolving Credit Commitments to be replaced shall be purchased at par (allocated among the Lenders under such Facility
in the same manner as would be required if such Loans were being optionally prepaid or such Revolving Credit Commitments were being
optionally reduced or terminated by the Borrower), accompanied by payment by the Borrower of any accrued interest and fees thereon
and any amounts owing pursuant to Section 11.4 to the extent demanded in writing prior to the date of such assignment. By
receiving such purchase price, the Lenders under such Facility shall automatically be deemed to have assigned the Loans or Revolving
Credit Commitments under such Facility pursuant to the terms of the form of Assignment and Assumption attached hereto as
Exhibit
F
and accordingly no other action by such Lenders shall be required in connection therewith. The provisions of this clause
(i) are intended to facilitate the maintenance of the perfection and priority of existing security interests in the Collateral
during any such replacement.
Section 11.4.
Expenses;
Documentary Taxes
. The Borrower agrees to pay (a) all reasonable and documented out-of-pocket expenses incurred by the Administrative
Agent in connection with the performance of due diligence, the syndication of the credit facility contemplated hereby, the negotiation,
preparation, execution, delivery, waiver or modification and administration of this Credit Agreement and any other documentation
contemplated hereby, the making of the Loans and the issuance of the Letters of Credit, the Collateral or any Fundamental Document,
including but not limited to, the verification of financial data and the transactions contemplated hereby, including the reasonable
fees and disbursements of one firm of outside counsel to the Administrative Agent and, if reasonably necessary, one firm of special
or local counsel in each applicable jurisdiction, and (b) all reasonable and documented out-of-pocket expenses incurred by the
Administrative Agent, the Issuing Banks or the Lenders in the enforcement or protection (as distinguished from administration)
of the rights and remedies thereof in connection with this Credit Agreement, the other Fundamental Documents, the Letters of Credit
or the Notes, or as a result of any transaction, action or non-action arising from any of the foregoing, including but not limited
to, the reasonable fees and disbursements of one firm of outside counsel for the Administrative Agent, the Issuing Banks or the
Lenders and, if reasonably necessary, one firm of special or local counsel in each applicable jurisdiction. Such payments shall
be made on the date this Credit Agreement is executed by the Borrower and thereafter promptly upon on demand. The Borrower agrees
that it shall indemnify the Administrative Agent, the Issuing Banks and the Lenders from and hold them harmless against any documentary
taxes, assessments or charges made by any Governmental Authority by reason of the execution and delivery of this Credit Agreement
or the Notes or the issuance of the Letters of Credit, but, in each case, only if and to the extent that the Administrative Agent,
the Issuing Banks and the Lenders comply with all reasonable requests of the Borrower to comply with applicable reporting requirements
(which requirements would not subject the Administrative Agent, the Issuing Banks or Lenders to any unreimbursed cost or expense
and would not otherwise be materially disadvantageous to the Administrative Agent, Issuing Banks or Lenders, as applicable) as
may be necessary to reduce or eliminate such documentary taxes, assessments or charges. The obligations of the Borrower under this
Section shall survive the termination of this Credit Agreement and the payment of the Loans and/or the expiration of any Letter
of Credit.
Section 11.5.
Indemnification
of the Administrative Agent, the Issuing Banks and the Lenders
. The Borrower agrees (a) to indemnify and hold harmless the Administrative
Agent, the Issuing Banks and the Lenders and their respective Related Parties (each, an “
Indemnified Party
”)
(to the full extent permitted by Applicable Law) from and against any and all claims, demands, losses, judgments and liabilities
(including liabilities for penalties) of whatsoever nature, and (b) to pay to the Indemnified Parties an amount equal to the amount
of all reasonable and documented out-of-pocket costs and expenses of investigation or defense, including reasonable legal fees
of one firm of outside counsel for all Indemnified Parties taken as a whole, and, if reasonably necessary, one firm of special
or local counsel in each applicable jurisdiction (or, in the event of an actual or perceived conflict of interest, one additional
firm of counsel for such Indemnified Parties so conflicted) and disbursements, and with regard to both (a) and (b) in connection
with or resulting from any litigation, investigation or other proceedings relating to the Collateral, this Credit Agreement and
the other Fundamental Documents and the Letters of Credit, the making of the Loans, the Acquisition or any other Transaction (regardless
of whether such Indemnified Party is a party thereto, and whether or not such proceedings are brought by a Credit Party, their
equity holders, Affiliates, creditors or any other third Person) but excluding therefrom all claims, demands, losses, judgments,
liabilities, costs and expenses arising out of or resulting from (i) the gross negligence, willful misconduct, or material breach
of its obligations under this Credit Agreement or any Fundamental Document by an Indemnified Party, as determined by a court of
competent jurisdiction in a final and non-appealable decision, (ii) litigation or claims among Indemnified Parties in connection
with the Fundamental Documents or in any way relating to the transactions contemplated hereby not involving an act or omission
by a Credit Party (other than disputes involving claims against the Administrative Agent or Arranger or any Person with another
titled capacity or similar role in its capacity as such), (iii) claims
asserted or litigation commenced against any Indemnified Party
by a Credit Party in which the Credit Party is the prevailing party, and (iv) an act or omission that does not involve a Credit
Party and is not a claim against an Indemnified Party. The foregoing indemnity agreement includes any reasonable out-of-pocket
costs incurred by any Indemnified Party in connection with any action or proceeding which may be instituted in respect of the foregoing
by any Indemnified Party, or by any other Person either against the Lenders or in connection with which any officer, director,
agent or employee of any Indemnified Party is called as a witness or deponent, including, but not limited to, the reasonable fees
and disbursements of outside counsel to the Administrative Agent (subject to the limitations described in this clause (b) on number
and type of counsel), and any out-of-pocket costs incurred by any Indemnified Party in appearing as a witness or in otherwise complying
with legal process served upon them.
All indemnities contained in this Section 11.5
shall survive the expiration or earlier termination of this Credit Agreement and shall inure to the benefit of any Person who was
a Lender notwithstanding such Person’s assignment of all its Loans and Revolving Credit Commitments as to any actions taken
or omitted to be taken by it while it was a Lender.
Section 11.6.
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.
Section 11.7.
CHOICE
OF LAW
. THIS CREDIT AGREEMENT AND THE NOTES SHALL IN ALL RESPECTS BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS
OF THE STATE OF NEW YORK WHICH ARE APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE AND, IN THE CASE OF
PROVISIONS RELATING TO INTEREST RATES, ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA;
PROVIDED
THAT, NOTWITHSTANDING
ANY GOVERNING LAW PROVISION OF THE FUNDAMENTAL DOCUMENTS, (A) THE INTERPRETATION OF THE DEFINITION OF “
COMPANY MATERIAL
ADVERSE EFFECT
” (AND WHETHER OR NOT A COMPANY MATERIAL ADVERSE EFFECT HAS OCCURRED), (B) THE DETERMINATION OF THE ACCURACY
OF ANY SPECIFIED MERGER AGREEMENT REPRESENTATION AND WHETHER AS A RESULT OF ANY INACCURACY THEREOF EITHER THE BORROWER OR ITS APPLICABLE
AFFILIATE HAS THE RIGHT TO TERMINATE ITS OBLIGATIONS UNDER THE MERGER AGREEMENT OR TO DECLINE TO CONSUMMATE THE ACQUISITION AND
(C) THE DETERMINATION OF WHETHER THE ACQUISITION HAS BEEN CONSUMMATED IN ACCORDANCE WITH THE TERMS OF THE MERGER AGREEMENT AND,
IN ANY CASE, CLAIMS OR DISPUTES ARISING OUT OF ANY SUCH INTERPRETATION OR DETERMINATION OR ANY ASPECT THEREOF SHALL, IN EACH CASE,
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE
GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
Section 11.8.
WAIVER
OF JURY TRIAL
. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH PARTY HERETO HEREBY WAIVES, AND COVENANTS
THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY
ISSUE, CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS CREDIT AGREEMENT, THE SUBJECT MATTER HEREOF,
ANY OTHER FUNDAMENTAL DOCUMENT OR THE SUBJECT MATTER THEREOF, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER
IN CONTRACT OR TORT OR OTHERWISE. EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE OTHER PARTIES HERETO THAT THE
PROVISIONS OF THIS SECTION CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH SUCH OTHER PARTIES HAVE RELIED, ARE RELYING AND WILL RELY
IN ENTERING INTO THIS CREDIT AGREEMENT AND ANY OTHER FUNDAMENTAL DOCUMENT. ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY
OF THIS SECTION 11.8 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF ANY OTHER PARTY TO THE WAIVER OF ITS RIGHTS TO TRIAL
BY JURY.
Section 11.9.
WAIVER
WITH RESPECT TO DAMAGES
. EACH CREDIT PARTY ACKNOWLEDGES THAT NEITHER THE ADMINISTRATIVE AGENT, THE ISSUING BANKS NOR ANY LENDER
HAS ANY FIDUCIARY RELATIONSHIP WITH, OR FIDUCIARY DUTY TO, ANY CREDIT PARTY ARISING OUT OF OR IN CONNECTION WITH THIS CREDIT AGREEMENT
OR ANY OTHER FUNDAMENTAL DOCUMENT AND THE RELATIONSHIP BETWEEN THE ADMINISTRATIVE AGENT, THE ISSUING BANKS AND THE LENDERS, ON
THE ONE HAND, AND THE CREDIT PARTIES, ON THE OTHER HAND, IN CONNECTION THEREWITH IS SOLELY THAT OF DEBTOR AND CREDITOR. TO THE
EXTENT PERMITTED BY APPLICABLE LAW, NO CREDIT PARTY SHALL ASSERT, AND EACH CREDIT PARTY HEREBY WAIVES, ANY CLAIMS AGAINST THE ADMINISTRATIVE
AGENT, THE ISSUING BANKS AND THE LENDERS ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (AS
OPPOSED TO DIRECT OR ACTUAL DAMAGES) ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF, THIS CREDIT AGREEMENT, ANY FUNDAMENTAL
DOCUMENT, ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY OR THEREBY, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 11.10.
No
Waiver
. No failure on the part of the Administrative Agent or any Lender or the Issuing Banks to exercise, and no delay in exercising,
any right, power or remedy hereunder, under the Notes or any other Fundamental Document or with regard to any Letter of Credit
shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other
or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are
not exclusive of any other remedies provided by law.
Section 11.11.
Extension
of Payment Date
. Except as otherwise specifically provided in Article 2 hereof, should any payment or prepayment of principal
of or interest on the Notes or any other amount due hereunder, become due and payable on a day other than a Business Day, the due
date of such payment or prepayment shall be extended to the next succeeding Business Day and, in the case of a payment or prepayment
of principal, interest shall be payable thereon at the rate herein specified during such extension.
Section 11.12.
Amendments,
etc
.
(a)
Except
as provided (X) in Section 2.13 with respect to any Incremental Facility, Section 2.14 with respect to any Extension
and Section 2.15 with respect to any Refinancing Term Loans or Replacement Revolving Facility, (Y) Section 10.1 or (Z)
as otherwise expressly provided herein or in any Fundamental Document, (a) no provision of this Credit Agreement or the other Fundamental
Documents may be amended, modified, supplemented or waived unless 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 Issuing Banks are affected thereby, the Issuing
Banks;
provided
that:
(A)
no
amendment, modification, supplement or waiver pursuant to this Section 11.12 shall:
(i) increase any Revolving Credit Commitment or extend
the expiry date of any such 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 and that a waiver of any condition precedent or the waiver of any Default or Event of Default or mandatory prepayment shall
not constitute an extension or increase of any Revolving Credit Commitment);
(ii) reduce the amount of, postpone the date for any
scheduled payment of any principal of or interest or fee on, or extend the final maturity of any Loan or of any Reimbursement Obligation
or of any fee payable hereunder (other than with respect to a waiver of default interest and it being understood that any change
in the definitions of any ratio used in the calculation of such rate of interest or fees (or the component definitions) shall not
constitute a reduction in any rate of interest or fees) without the consent of each Lender (but not the Required Lenders) 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 11.12 shall, unless signed by each Lender:
(i) change the definition of “Required Lenders”
in a manner that reduces the voting percentages set forth therein;
(ii) change the provisions of this Section 11.12;
(iii) release all or substantially all of the Collateral
(except as expressly provided in the Fundamental Documents) or all or substantially all of the value of the guarantees provided
by the Guarantors (except as expressly provided in the Fundamental Documents);or
(iv) change or waive Section 10.2;
(C)
no
amendment, modification, supplement or waiver pursuant to this Section 11.12 shall amend or otherwise modify Section 2.8
or any other provisions of any Fundamental Document in a manner that by its terms adversely affects the rights in respect of payments
due to Lenders holding Loans of any Class differently than those holding Loans of any other Class, without the consent of the Majority
Facility Lenders of each affected Class (it being understood that the Required Lenders may waive, in whole or in part, any prepayment
of Loans hereunder so long as the application, as between Classes, of any portion of such prepayment that is still required to
be made is not altered); and
(D)
no
amendment, modification, supplement or waiver pursuant to this Section 11.12 shall amend or modify the provisions of Section 2.3
or any letter of credit application and any bilateral agreement between the Borrower and an Issuing Bank regarding such Issuing
Bank’s Letter of Credit Commitment or the respective rights and obligations between the Borrower and such Issuing Bank in
connection with the issuance of Letters of Credit without the prior written consent of the Administrative Agent and such Issuing
Bank, respectively.
Notwithstanding anything to the contrary herein:
(v) except as set forth in clause (A) above,
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;
(w) the Borrower and the Administrative Agent
may, without the input or consent of any other Lender, effect amendments to this Credit Agreement and the other Fundamental Documents
as may be necessary in the reasonable opinion of the Borrower and the Administrative Agent to effect the provisions of Section 2.8(d),
2.13, 2.14, 2.15, Section 7.6 or as contemplated by Section 10.1;
(x) intercreditor agreements, guarantees,
collateral or security documents and other related documents executed by the Borrower or any of its Subsidiaries in connection
with this Credit Agreement may be in a form reasonably determined by the Administrative Agent and may be amended, restated, supplemented
or waived without the consent of any Lender;
(y) the Administrative Agent may, with the
consent of Borrower only, amend, modify or supplement this Credit Agreement or any other Fundamental 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 the Lenders shall have received, at least five (5) Business Days’ prior written notice thereof and the Administrative
Agent shall not have received, within five (5) Business Days of the date of such notice to the Lenders, a written notice from the
Required Lenders stating that the Required Lenders object to such amendment;
(z) in connection with the addition of any
Guarantor from an Approved Jurisdiction, the Borrower and the Administrative Agent may, without the consent of any Lender, amend,
modify or supplement any Fundamental Documents, in order to include provisions which are reasonably required as to Guarantors organized
in the applicable jurisdiction, including customary limitation language for such jurisdictions.
Notwithstanding the foregoing, (i) only the
consent of the Required RC/TLA Lenders shall be required in respect of amendments, modifications or waivers of the financial covenants
set forth in Section 7.9 (or any component definition thereof to the extent applicable thereto) and (ii) only the
consent of the Required RC Lenders shall be required with respect
to waivers of any conditions to the Borrowing of any Revolving Loans, and any such amendment, modification or waiver may be made
without the consent of any other Lender (including, for the avoidance of doubt, the Required Lenders).
In addition, notwithstanding the foregoing,
this Credit 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 Credit 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 Credit Agreement and the
other Fundamental 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 RC/TLA Lenders, the Required
RC 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)
Each
waiver, amendment, modification, supplement or consent made or given pursuant to this Section 11.12 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 equally to each of the Lenders and shall be binding on the Credit Parties, the Lenders, the Administrative Agent and all
future holders of the Loans and Revolving Credit Commitments.
Section 11.13.
Severability
.
Any provision of this Credit Agreement or of the Notes which is invalid, illegal or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without invalidating the
remaining provisions hereof, and any such invalidity, illegality or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 11.14.
SERVICE
OF PROCESS; SUBMISSION TO JURISDICTION
. EACH PARTY HERETO (EACH, A “
SUBMITTING PARTY
”) HEREBY IRREVOCABLY
SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE COURTS OF THE STATE OF NEW YORK IN NEW YORK COUNTY AND TO THE JURISDICTION OF
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING
ARISING OUT OF OR BASED UPON THIS CREDIT AGREEMENT (INCLUDING, BUT NOT LIMITED TO, THE LETTERS OF CREDIT), THE SUBJECT MATTER HEREOF,
ANY OTHER FUNDAMENTAL DOCUMENT AND THE SUBJECT MATTER THEREOF. EACH SUBMITTING PARTY TO THE EXTENT PERMITTED BY APPLICABLE LAW
(A) HEREBY WAIVES, AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY SUCH SUIT, ACTION OR OTHER PROCEEDING
BROUGHT IN THE ABOVE-NAMED COURTS, ANY CLAIM THAT IT IS NOT SUBJECT PERSONALLY TO THE JURISDICTION OF SUCH COURTS, THAT ITS PROPERTY
IS EXEMPT OR IMMUNE FROM ATTACHMENT OR EXECUTION, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT
THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER OR THAT THIS CREDIT AGREEMENT, THE SUBJECT MATTER HEREOF, THE OTHER FUNDAMENTAL
DOCUMENTS OR THE SUBJECT MATTER THEREOF (AS APPLICABLE) MAY NOT BE ENFORCED IN OR BY SUCH COURT, (B) HEREBY WAIVES THE RIGHT TO
REMOVE ANY SUCH ACTION, SUIT OR PROCEEDING INSTITUTED BY THE ADMINISTRATIVE AGENT, AN ISSUING BANK OR A LENDER IN STATE COURT TO
FEDERAL COURT, AND (C) HEREBY WAIVES THE RIGHT TO ASSERT IN ANY SUCH ACTION, SUIT OR PROCEEDING ANY OFFSETS OR COUNTERCLAIMS EXCEPT
COUNTERCLAIMS THAT ARE COMPULSORY OR OTHERWISE ARISE FROM THE SAME SUBJECT MATTER. EACH SUBMITTING PARTY HEREBY CONSENTS TO SERVICE
OF
PROCESS BY MAIL AT THE ADDRESS TO WHICH NOTICES ARE TO BE GIVEN
TO IT PURSUANT TO SECTION 11.1 HEREOF. EACH SUBMITTING PARTY AGREES THAT ITS SUBMISSION TO JURISDICTION AND CONSENT TO SERVICE
OF PROCESS BY MAIL IS MADE FOR THE EXPRESS BENEFIT OF EACH OF THE OTHER SUBMITTING PARTIES. FINAL JUDGMENT AGAINST ANY SUBMITTING
PARTY IN ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE CONCLUSIVE, AND MAY BE ENFORCED IN ANY OTHER JURISDICTION (X) BY SUIT, ACTION
OR PROCEEDING ON THE JUDGMENT, A CERTIFIED OR TRUE COPY OF WHICH SHALL BE CONCLUSIVE EVIDENCE OF THE FACT AND OF THE AMOUNT OF
INDEBTEDNESS OR LIABILITY OF THE SUBMITTING PARTY THEREIN DESCRIBED OR (Y) IN ANY OTHER MANNER PROVIDED BY OR PURSUANT TO THE LAWS
OF SUCH OTHER JURISDICTION,
PROVIDED
,
HOWEVER
, THAT THE ADMINISTRATIVE AGENT, THE ISSUING BANKS OR A LENDER MAY AT
ITS OPTION BRING SUIT, OR INSTITUTE OTHER JUDICIAL PROCEEDINGS AGAINST A SUBMITTING PARTY OR ANY OF ITS ASSETS IN ANY STATE OR
FEDERAL COURT OF THE UNITED STATES OF AMERICA OR OF ANY COUNTRY OR PLACE WHERE THE SUBMITTING PARTY OR SUCH ASSETS MAY BE FOUND.
Section 11.15.
Headings
.
Section headings used herein and the Table of Contents are for convenience only and are not to affect the construction of or be
taken into consideration in interpreting this Credit Agreement.
Section 11.16.
Execution
in Counterparts
. This Credit Agreement may be executed in any number of counterparts, each of which shall constitute an original,
but all of which taken together shall constitute one and the same instrument.
Section 11.17.
USA
Patriot Act
. Each Lender hereby notifies each of the Credit Parties that, pursuant to the requirements of the USA Patriot Act,
it is required to obtain, verify and record information that identifies the Credit Parties and their investors, which information
includes the name and address of each such Person and other information that will allow such Lender to identify such Person in
accordance with the USA Patriot Act.
Section 11.18.
Entire
Agreement
. This Credit Agreement (including the Exhibits and Schedules hereto) represents the entire agreement of the parties
with regard to the subject matter hereof and the terms of any letters and other documentation entered into between any of the parties
hereto prior to the execution of this Credit Agreement which relate to Loans to be made hereunder shall be replaced by the terms
of this Credit Agreement.
Section 11.19.
Confidentiality
.
(a)
Each
of the Administrative Agent, the Issuing Banks and each Lender agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to it and its affiliates’ Related Parties (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), (b) to the extent requested by any Governmental Authority (including any self-regulatory authority),
(c) to the extent required by Applicable Law or by any subpoena or similar legal process, (d) to any other party to this Credit
Agreement, (e) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Credit
Agreement or the enforcement of rights hereunder, (f) subject to an agreement containing provisions substantially the same as those
of this Section 11.19, to (i) any assignee of or participant in, or any prospective assignee of or participant in, any of
its rights or obligations under this Credit Agreement, (ii) any actual or prospective counterparty (or its advisors) to any swap
or derivative transaction relating to the Borrower and its obligations and (iii) to
any credit insurance provider relating to the Borrower and the
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 11.19, or (y) becomes available to the Administrative Agent, the Issuing Banks or
any Lender on a non-confidential basis from a source other than a Credit Party that is not actually known by the recipient to have
breached a binding confidentiality agreement by having remitted such Information. For the purposes of this Section 11.19,
“Information” means all information received from any Credit Party relating to any Credit Party or its business, other
than any such information that is available to the Administrative Agent, the Issuing Banks or any Lender on a non-confidential
basis prior to disclosure by such Credit Party and other than information pertaining to this Credit Agreement routinely provided
by arrangers to data service providers, including league table providers, that serve the lending industry;
provided
,
that
in the case of information received from a Credit Party 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.
Section 11.20.
Judgment
Currency
.
(a)
If
for the purpose of obtaining or enforcing judgment against the Borrower or any other Credit Party which is incorporated or organized
under the laws of Canada or any province thereof in any court in any jurisdiction, it becomes necessary to convert into Canadian
currency an amount due in United States Dollars under this Credit Agreement or any other Fundamental Document, the conversion shall
be made at the rate of exchange prevailing on the Business Day immediately preceding:
(i)
the
date of actual payment of the amount due, in the case of any proceeding in the courts of the Province of British Columbia or in
the courts of any other jurisdiction that will give effect to such conversion being made on such date; or
(ii)
the
date on which the judgment is given, in the case of any proceeding in the courts of any other jurisdiction (the date as of which
such conversion is made pursuant to this Section 11.20(a)(ii) being hereinafter in this Section 11.20 referred to as
the “
Judgment Conversion Date
”).
(b)
If,
in the case of any proceeding in the court of any jurisdiction referred to in Section 11.20(a)(ii), there is a change in the
rate of exchange prevailing between the Judgment Conversion Date and the date of actual payment of the amount due, the Borrower
shall pay such additional or lesser amount as may be necessary to ensure that the amount paid in Canadian currency, when converted
at the rate of exchange prevailing on the date of payment, will produce the amount of United States dollars which could have been
purchased with the amount of Canadian dollars stipulated in the judgment or judicial order at the rate of exchange prevailing on
the Judgment Conversion Date.
(c)
Any
amount due from the Borrower or any other Credit Party under the provisions of Section 11.20(b) shall be due as a separate
debt and shall not be affected by judgment being obtained for any other amounts due under or in respect of this Credit Agreement
or any other Fundamental Document.
(d)
The
term “rate of exchange” in this Section 11.20 means the noon rate of exchange based on Canadian interbank transactions
in United States dollars and Canadian dollars published or quoted by the Bank of Canada for the day in question.
Section 11.21.
Lender
Obligations Several
. The respective obligations of the Lenders under this Credit Agreement and the other Fundamental Documents
are several and not joint, and no Lender shall be responsible for the failure of any other Lender to satisfy its obligations hereunder
and thereunder.
Section 11.22.
Acknowledgement
and Consent to Bail-In of EEA Financial Institutions
. Notwithstanding anything to the contrary in any Fundamental
Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that
any liability of any EEA Financial Institution arising under any Fundamental Document may be subject to the write-down and
conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)
the
application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which
may be payable to it by any party hereto that is an EEA Financial Institution; and
(b)
the
effects of any Bail-In Action on any such liability, including, if applicable:
(1) a
reduction in full or in part or cancellation of any such liability;
(2) a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution,
its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other
instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Credit Agreement
or any other Fundamental Document; or
(3) the
variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution
Authority.
[SIGNATURE PAGES TO FOLLOW]
IN WITNESS WHEREOF, the parties hereto have
caused this Credit Agreement to be duly executed as of the day and the year first written.
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BORROWER:
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LIONS GATE ENTERTAINMENT CORP.
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By
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/s/ Wayne Levin
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Name:
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Wayne Levin
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Title:
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General Counsel and Chief Strategic Officer
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[Signature Page to Credit and Guarantee Agreement]
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GUARANTORS:
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100
Plus Productions, Inc.
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Alibi
Productions, LLC
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Alternate
Universe, LLC
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American
Lion Productions, Inc.
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Amnesia
Productions, LLC (f/k/a Exterior Productions, LLC)
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Artisan
Entertainment Inc.
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Artisan
Home Entertainment Inc.
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Artisan
Pictures LLC
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Atom
Productions, Inc.
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Awaken
Productions Corp.
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Awaken
Productions, Inc.
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Blair
Witch Films, LLC
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Blue
Mountain State Productions Corp.
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Boss
Kane Productions, Inc.
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Bottled
Vines Productions Inc. (f/k/a Phat Vines Productions Inc.)
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Caller
Productions, Inc.
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Casual
Productions, Inc.
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CATX
Certain Slant 12 Productions, Inc.
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CATX
Exorcism 12 Productions, Inc.
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CATX
Reawakening 12 Productions, Inc.
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CATX
Ricky 12 Productions, Inc.
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CATX
Time After Time 12 Productions, Inc.
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CATX
Two Eyes 12 Productions, Inc.
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CATX
Wee 12 Productions, Inc.
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CBLG
Productions, LLC
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Chains
Productions, Inc.
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Condemned
Productions, Inc.
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Cooper
Productions Louisiana, LLC
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Covered
Moon Productions, LLC
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Crash
Television Productions, Inc.
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Crushed
Productions, Inc.
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Dancing
Productions, Inc.
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Davyco
Productions, LLC
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DD1
Productions Canada Inc.
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DD1
Productions, LLC
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DD2
Acquisition Corp.
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Dead
Zone Production Corp.
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Debmar/Mercury,
LLC
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Debmar/Mercury
(WW) Productions LLC
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Debmar
Studios, Inc.
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Delish
Projects, LLC
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Delish
Television Development, LLC
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DHW
Productions, LLC
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Diable
Productions, Inc.
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DJM
Services, Inc.
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Donor
Productions, Inc.
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[Signature Page to Credit
and Guarantee Agreement]
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Drawback
Productions, LLC
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Driving
All the Way Productions, LLC
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Elah
Productions, LLC
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Film
Holdings Co.
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Find
Series Productions, LLC
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Friends
Financing, Inc.
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Full
Moon Productions, LLC
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GC
Films, Inc.
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Get
Some Productions, LLC
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GOE
Productions, LLC
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Go
For Broke Productions, Inc. (f/k/a Cuckoo Productions, Inc.)
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Good
Evel Productions, Inc.
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Graves
Productions, Inc.
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Grindstone
Entertainment Group, LLC
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Guilt
Productions, Inc.
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HGMJ
Productions Canada Inc./Les Productions HGMJ Canada Inc.
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Highchair
Productions, Inc.
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Higher
Post LLC
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Houdini
Productions, Inc.
|
|
|
House
Row Productions, LLC
|
|
|
HSKL
Productions Canada Inc. (f/k/a Pyramania Productions Canada, Inc.)
|
|
|
HSKL
Productions, Inc.
|
|
|
Invisible
Casting Inc.
|
|
|
Jardinero
Productions, LLC
|
|
|
Jessabelle
Productions, Inc.
|
|
|
Just
Rewards Productions, Inc.
|
|
|
Johnson
Goode, LLC
|
|
|
JV1
Delish, LLC
|
|
|
Kill
Pit Productions Inc.
|
|
|
Knowing
Domestic Rights, LLC
|
|
|
Knowing
Productions, LLC
|
|
|
Landscape
Entertainment Corp.
|
|
|
LG
Capital Corporation
|
|
|
LG
Horror Channel Holdings, LLC
|
|
|
LG
JV Servicing Company, LLC
|
|
|
LG
Leopard GP Canada Inc.
|
|
|
LG-Max
LLC
|
|
|
LGAC
1, LLC
|
|
|
LGAC
3, LLC
|
|
|
LGAC
International LLC
|
|
|
Lions
Gate Digital Projects, Inc.
|
|
|
Lions
Gate Entertainment Inc.
|
|
|
Lions
Gate Exhibition, Inc.
|
|
|
Lions
Gate Films Inc.
|
|
|
Lions
Gate Films Holdings Company #1, Inc.
|
|
|
Lions
Gate Films Holdings Company #2, Inc.
|
[Signature Page to
Credit and Guarantee Agreement]
|
|
Lions
Gate India Inc.
|
|
|
Lions
Gate International Sales, LLC
|
|
|
Lions
Gate Mandate Financing Vehicle Inc.
|
|
|
Lions
Gate Music Corp.
|
|
|
Lions
Gate Music, Inc.
|
|
|
Lions
Gate Music Publishing LLC
|
|
|
Lions
Gate Online Shop Inc.
|
|
|
Lions
Gate Pennsylvania, Inc.
|
|
|
Lions
Gate Records, Inc.
|
|
|
Lions
Gate Releasing LLC
|
|
|
Lions
Gate Spirit Holdings, LLC
|
|
|
Lions
Gate Television Development LLC
|
|
|
Lions
Gate Television Inc.
|
|
|
Lions
Gate Television International- Latin America, Inc.
|
|
|
Lions
Gate X Productions, LLC
|
|
|
Lions
Gate X Productions Corp.
|
|
|
Lionsgate
LBE, Inc.
|
|
|
Love
Lessons Productions, Inc.
|
|
|
Lucky
7 Productions Corp.
|
|
|
LWH
Productions, LLC
|
|
|
Mandate
Films, LLC
|
|
|
Mandate
Pictures, LLC
|
|
|
Manifest
Entertainment, LLC
|
|
|
MK
Animated, LLC
|
|
|
MOAL,
LLC
|
|
|
Mort
Productions US, Inc.
|
|
|
Mother
Productions Corp.
|
|
|
MQP,
LLC
|
|
|
NGC
Films, Inc.
|
|
|
Niche
Productions, LLC
|
|
|
NR
Productions, Inc.
|
|
|
Nurse
Productions Inc.
|
|
|
NYSM2
Productions, LLC
|
|
|
Old
Hickory Productions, Inc.
|
|
|
Orion
Arm Holding Co., LLC
|
|
|
P2
Productions U.S., LLC
|
|
|
Peeples
Productions, Inc.
|
|
|
PGH
Productions, Inc.
|
|
|
Power
Mongering Despot, Inc.
|
|
|
Preach
Productions, Inc.
|
|
|
Presidential
Productions, Inc.
|
|
|
Production
Management Inc.
|
|
|
Profiler
Productions, Inc.
|
|
|
Psycho
Productions Services Corp.
|
|
|
PWG
Productions, Inc.
|
|
|
PX1
Productions Corp.
|
|
|
PX1
Productions, Inc.
|
|
|
R
& B Productions, Inc.
|
|
|
Rabbit
Productions, Inc.
|
[Signature Page to
Credit and Guarantee Agreement]
|
|
Red
2 US Productions, LLC
|
|
|
RG
Productions, Inc.
|
|
|
RHO
Productions, LLC
|
|
|
Royals
Productions, Inc.
|
|
|
RRR
Productions, LLC
|
|
|
Saint
Productions, Inc.
|
|
|
Screening
Room, Inc.
|
|
|
SDI
Productions, Inc.
|
|
|
See
Me Louisiana, L.L.C.
|
|
|
SELP,
LLC
|
|
|
Silent
Development Corp.
|
|
|
South
Shore Productions, Inc.
|
|
|
Spoken
Productions, Inc. (f/k/a CATX Tape4 12 Productions, Inc.)
|
|
|
Stanton
Productions, LLC
|
|
|
Step
Up 5 Productions Canada, Inc.
|
|
|
SU4,
LLC
|
|
|
SU5
Productions, Inc. (f/k/a CATX Addicted 12 Productions, Inc.)
|
|
|
Summit
Distribution, LLC
|
|
|
Summit
Entertainment Development Services
|
|
|
Summit
Entertainment, LLC
|
|
|
Summit
Guaranty Services, LLC
|
|
|
Summit
International Distribution, Inc.
|
|
|
Summit
Productions, LLC
|
|
|
Summit
Signature, LLC
|
|
|
TCT
Productions, Inc.
|
|
|
Term
Productions, Inc.
|
|
|
Terrestrial
Productions Corp.
|
|
|
Tiny
Horse Productions, Inc.
|
|
|
TSBD
Louisiana, L.L.C.
|
|
|
TSBD
Productions, LLC
|
|
|
TWA
Productions, Inc.
|
|
|
Twilight
Domestic Rights, LLC
|
|
|
Twilight
Productions, LLC
|
|
|
United
Fandom, LLC
|
|
|
UNZ
Productions, Inc.
|
|
|
U.R.O.K.
Productions, Inc.
|
|
|
Verdict
Productions, Inc.
|
|
|
Verona
Productions, LLC
|
|
|
Vestron
Inc.
|
|
|
Wallflower,
LLC
|
|
|
White
Famous Productions, Inc.
|
|
|
Wikal
Productions, LLC
|
|
|
Wilde
Kingdom Productions Corp.
|
|
|
Women
in Comedy Documentary, LLC
|
|
|
By:
|
/s/ Wayne Levin
|
|
|
|
Name:
|
Wayne Levin
|
|
|
|
Title:
|
Authorized Person
|
[Signature Page to Credit and Guarantee Agreement]
|
|
Starz
Acquisition LLC
|
|
|
Starz,
LLC
|
|
|
Aries
Pictures LLC
|
|
|
Namor
Productions, LLC
|
|
|
Starz
Investments, LLC (fka SEG Investments, LLC)
|
|
|
Starz
Entertainment, LLC
|
|
|
Starz
Nu Documentary Productions, LLC
|
|
|
Starz
Ballet Productions, LLC
|
|
|
Starz
Pirates Productions, LLC
|
|
|
Starz
Power Productions, LLC
|
|
|
Starz
Remorse Productions, LLC
|
|
|
Starz
Evil Productions, LLC
|
|
|
Starz
Finance Corp.
|
|
|
Starz
Independent, LLC
|
|
|
Starz
Media Group, LLC
|
|
|
Starz
Media, LLC
|
|
|
Anchor
Bay Entertainment, LLC
|
|
|
Overture
Films, LLC
|
|
|
By:
|
/s/ Timothy A. Sweeney
|
|
|
|
Name:
|
Timothy
A. Sweeney
|
|
|
|
Title:
|
Authorized
Person
|
[Signature Page to Credit and Guarantee Agreement]
|
|
Iniquity
Productions Limited
|
|
|
|
|
|
|
By:
|
/s/
Zygmunt Jan Kamasa
|
|
|
|
Name:
Zygmunt Jan Kamasa
|
|
|
|
Title:
Director
|
|
|
|
|
|
|
Lions
Gate China (UK) Limited
|
|
|
|
|
|
|
By:
|
/s/
Zygmunt Jan Kamasa
|
|
|
|
Name:
Zygmunt Jan Kamasa
|
|
|
|
Title:
Director
|
|
|
|
|
|
|
Lions
Gate International Media Limited
|
|
|
|
|
|
|
By:
|
/s/ Zygmunt Jan Kamasa
|
|
|
|
Name:
Zygmunt Jan Kamasa
|
|
|
|
Title:
Director
|
|
|
|
|
|
|
Lions
Gate International (UK) Limited
|
|
|
|
|
|
|
By:
|
/s/
Zygmunt
Jan Kamasa
|
|
|
|
Name:
Zygmunt Jan Kamasa
|
|
|
|
Title:
Director
|
|
|
|
|
|
|
Lions
Gate Pictures International (UK) Limited
|
|
|
|
|
|
|
By:
|
/s/ Zygmunt Jan Kamasa
|
|
|
|
Name:
Zygmunt Jan Kamasa
|
|
|
|
Title:
Director
|
[Signature Page to Credit and Guarantee Agreement]
|
|
NYSM2
Productions Limited
|
|
|
|
|
|
|
By:
|
/s/
Zygmunt Jan Kamasa
|
|
|
|
Name:
Zygmunt Jan Kamasa
|
|
|
|
Title:
Director
|
|
|
|
|
|
|
RHO
Productions Limited
|
|
|
|
|
|
|
By:
|
/s/ Zygmunt Jan Kamasa
|
|
|
|
Name:
Zygmunt Jan Kamasa
|
|
|
|
Title:
Director
|
[Signature Page to Credit and Guarantee Agreement]
|
|
ENTERTAINMENT
CAPITAL HOLDINGS S.À R.L.
|
|
|
société
à responsabilité limitée
|
|
|
13-15,
avenue de la Liberté
|
|
|
L-1931
Luxembourg
|
|
|
RCS
number B 180844
|
|
|
|
|
|
|
By:
|
/s/
Ludovic Trogliero
|
|
|
|
Name:
Ludovic Trogliero
|
|
|
|
Title:
Manager B and Authorized Signatory
|
|
|
|
|
|
|
ENTERTAINMENT
CAPITAL HOLDINGS II S.À R.L.
|
|
|
société
à responsabilité limitée
|
|
|
13-15,
avenue de la Liberté
|
|
|
L-1931
Luxembourg
|
|
|
RCS
number B 195833
|
|
|
|
|
|
|
By:
|
/s/
Ludovic Trogliero
|
|
|
|
Name:
Ludovic Trogliero
|
|
|
|
Title:
Manager B and Authorized Signatory
|
|
|
|
|
|
|
LIONS
GATE INTERNATIONAL MOTION PICTURES S.À R.L.
|
|
|
société
à responsabilité limitée
|
|
|
13-15,
avenue de la Liberté
|
|
|
L-1931
Luxembourg
|
|
|
RCS
number B 185480
|
|
|
|
|
|
|
By:
|
/s/ Ludovic Trogliero
|
|
|
|
Name:
Ludovic Trogliero
|
|
|
|
Title:
Manager B and Authorized Signatory
|
[Signature Page to Credit and Guarantee Agreement]
|
|
LIONS
GATE INTERNATIONAL HOLDINGS S.À R.L.,
|
|
|
société
à responsabilité limitée
|
|
|
13-15,
avenue de la Liberté
|
|
|
L-1931
Luxembourg
|
|
|
RCS
number B 193597
|
|
|
|
|
|
|
By:
|
/s/
Ludovic Trogliero
|
|
|
|
Name:
Ludovic Trogliero
|
|
|
|
Title:
Manager B and Authorized Signatory
|
|
|
|
|
|
|
LIONS
GATE INTERNATIONAL SLATE INVESTMENT S.A.,
|
|
|
société
anonyme
|
|
|
13-15,
avenue de la Liberté
|
|
|
L-1931
Luxembourg
|
|
|
RCS
number B 193789
|
|
|
|
|
|
|
By:
|
/s/
Ludovic Trogliero
|
|
|
|
Name:
Ludovic Trogliero
|
|
|
|
Title:
Manager B and Authorized Signatory
|
[Signature Page to Credit and Guarantee Agreement]
|
|
JPMORGAN
CHASE BANK, N.A.
|
|
|
as
Administrative Agent and as a Lender
|
|
|
|
|
|
|
By
|
/s/
Lynn M. Braun
|
|
|
|
Name:
Lynn M. Braun
|
|
|
|
Title:
Executive Director
|
|
|
|
|
|
|
Address
for Notices:
|
|
|
|
|
|
|
JPMorgan
Chase Bank, N.A.
|
|
|
2029
Century Park East, 38
th
Floor
|
|
|
Los
Angeles, CA 90067
|
|
|
Attention: David
Shaheen
|
|
|
Facsimile: (310)
860-7260
|
[Signature Page to Credit and Guarantee Agreement]
|
|
BANK
OF AMERICA, N.A.
|
|
|
as
a Lender
|
|
|
|
|
|
|
By
|
/s/
Matthew Koenig
|
|
|
|
Name:
Matthew Koenig
|
|
|
|
Title:
Senior Vice President
|
|
|
|
|
|
|
Address
for Notices:
|
|
|
|
|
|
|
On record with the Administrative
Agent
|
[Signature Page to Credit and Guarantee Agreement]
|
|
DEUTSCHE
BANK AG NEW YORK BRANCH
|
|
|
as
a Lender
|
|
|
|
|
|
|
By
|
/s/
Scott Sartorius
|
|
|
|
Name:
Scott Sartorius
|
|
|
|
Title:
Managing Director
|
|
|
|
|
|
|
By
|
/s/
Ryan Corning
|
|
|
|
Name:
Ryan Corning
|
|
|
|
Title:
Director
|
|
|
|
|
|
|
Address
for Notices:
|
|
|
|
|
|
|
On record with the Administrative Agent
|
[Signature Page to Credit and Guarantee Agreement]
|
|
ROYAL
BANK OF CANADA
|
|
|
as
a Lender
|
|
|
|
|
|
|
By
|
/s/
Alfonse Simone
|
|
|
|
Name:
Alfonse Simone
|
|
|
|
Title:
Signatory
|
|
|
|
|
|
|
Address
for Notices:
|
|
|
|
|
|
|
On record with the Administrative Agent
|
[Signature Page to Credit and Guarantee Agreement]
|
|
CREDIT
SUISSE AG, CAYMAN ISLANDS BRANCH
|
|
|
as
a Lender
|
|
|
|
|
|
|
By
|
/s/
Vipul Dhadda
|
|
|
|
Name:
Vipul Dhadda
|
|
|
|
Title:
Authorized Signatory
|
|
|
|
|
|
|
By
|
/s/
Joan Park
|
|
|
|
Name:
Joan Park
|
|
|
|
Title:
Authorized Signatory
|
|
|
|
|
|
|
Address
for Notices:
|
|
|
|
|
|
|
On record with the Administrative Agent
|
[Signature Page to Credit and Guarantee Agreement]
|
|
SUNTRUST
BANK
|
|
|
as
a Lender
|
|
|
|
|
|
|
By
|
/s/
J. Matthew Rowand
|
|
|
|
Name:
J. Matthew Rowand
|
|
|
|
Title:
Vice President
|
|
|
|
|
|
|
Address
for Notices:
|
|
|
|
|
|
|
On record with the Administrative Agent
|
[Signature Page to Credit and Guarantee Agreement]
|
|
THE
BANK OF TOKYO-MITSUBISHI UFJ, LTD.
|
|
|
as
a Lender
|
|
|
|
|
|
|
By
|
/s/
Anthony Beaudoin
|
|
|
|
Name:
Anthony Beaudoin
|
|
|
|
Title:
Managing Director
|
|
|
|
|
|
|
Address
for Notices:
|
|
|
|
|
|
|
The
Bank of Tokyo-Mitsubichi UFJ, LTD.
Harborside
Financial Center, Suite 500
Plaza
III
Jersey
City, NJ. 07311
Attention:
Ligia Castro
Facsimile:
201-521-2304
|
[Signature Page to Credit and Guarantee Agreement]
|
|
BARCLAYS
BANK PLC
|
|
|
as
a Lender
|
|
|
|
|
|
|
By
|
/s/
Christopher Aitkin
|
|
|
|
Name:
Christopher Aitkin
|
|
|
|
Title:
Assistant Vice President
|
|
|
|
|
|
|
Address
for Notices:
|
|
|
|
|
|
|
On
record with the Administrative Agent
|
[Signature Page to Credit and Guarantee Agreement]
|
|
WELLS
FARGO BANK, N.A.
|
|
|
as
a Lender
|
|
|
|
|
|
|
By
|
/s/
Bryan Milinovich
|
|
|
|
Name:
Bryan Milinovich
|
|
|
|
Title:
Vice President
|
|
|
|
|
|
|
Address
for Notices:
|
|
|
|
|
|
|
On
record with the Administrative Agent
|
[Signature Page to Credit and Guarantee Agreement]
|
|
BNP
PARIBAS
|
|
|
as
a Lender
|
|
|
|
|
|
|
By
|
/s/
James McHale
|
|
|
|
Name:
James McHale
|
|
|
|
Title:
Managing Director
|
|
|
|
|
|
|
By
|
/s/
Ade Adedeji
|
|
|
|
Name:
Ade Adedeji
|
|
|
|
Title:
Vice President
|
|
|
|
|
|
|
Address
for Notices:
|
|
|
|
|
|
|
On
record with the Administrative Agent
|
[Signature Page to Credit and Guarantee Agreement]
|
|
COMERICA
BANK
|
|
|
as
a Lender
|
|
|
|
|
|
|
By
|
/s/
Adam J. Korn
|
|
|
|
Name:
Adam J. Korn
|
|
|
|
Title:
Senior Vice President
|
|
|
|
|
|
|
Address
for Notices:
|
|
|
|
|
|
|
entloanrequestsmail@comerica.com
On
record with the Administrative Agent
|
[Signature Page to Credit and Guarantee Agreement]
|
|
FIRST
REPUBLIC
|
|
|
as
a Lender
|
|
|
|
|
|
|
By
|
/s/
Charles Heaphy
|
|
|
|
Name:
Charles Heaphy
|
|
|
|
Title:
Senior Managing Director
|
|
|
|
|
|
|
Address
for Notices:
|
|
|
|
|
|
|
On
record with the Administrative Agent
|
[Signature Page to Credit and Guarantee Agreement]
|
|
EAST
WEST BANK
|
|
|
as
a Lender
|
|
|
|
|
|
|
By
|
/s/
Jodi Chong
|
|
|
|
Name:
Jodi Chong
|
|
|
|
Title:
Vice President
|
|
|
|
|
|
|
Address
for Notices:
|
|
|
|
|
|
|
On
record with the Administrative Agent
|
[Signature Page to Credit and Guarantee Agreement]
|
|
BANK
HAPOALIM
|
|
|
as
a Lender
|
|
|
|
|
|
|
By
|
/s/ Martin Greenberg
|
|
|
|
Name:
Martin Greenberg
|
|
|
|
Title:
Senior Vice President
Deputy
Chief Credit Officer
Head
of Asset Based Lending
|
|
|
|
|
|
|
By
|
/s/ Charles McLaughlin
|
|
|
|
Name:
Charles McLaughlin
|
|
|
|
Title:
Senior Vice President
|
|
|
|
|
|
|
Address
for Notices:
|
|
|
|
|
|
|
On
record with the Administrative Agent
|
[Signature Page to Credit and Guarantee Agreement]
|
|
CIT
|
|
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as
a Lender
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By
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/s/
Kevin Cullen
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Name:
Kevin Cullen
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Title:
Managing Director
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Address
for Notices:
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On
record with the Administrative Agent
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[Signature Page to Credit and Guarantee Agreement]
Schedule 1.1
Schedule of Commitments
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Initial
Lender
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Revolving
Facility
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Term
A Facility
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Term
B Facility
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Total Commitment
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$
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1,000,000,000
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$
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1,000,000,000
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$
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2,000,000,000
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Exhibit 23.2
Consent of Independent Registered
Public Accounting Firm
The Board of Directors
Starz:
We consent to the use of our reports dated February 25, 2016,
with respect to the consolidated balance sheets of Starz and subsidiaries as of December 31, 2015 and 2014, and the related consolidated
statements of operations, comprehensive income, cash flows, and equity for each of the years in the three-year period ended December
31, 2015, and the effectiveness of internal control over financial reporting as of December 31, 2015, incorporated herein by reference.
/s/ KPMG LLP
Denver, Colorado
December 8, 2016
Exhibit 99.1
LIONSGATE
CLOSES STARZ ACQUISITION
Transaction
Creates Vertically Integrated, Diversified Global Content Platform
Lionsgate Shareholders Overwhelmingly Ratify Deal
SANTA MONICA, CA, and ENGLEWOOD, CO, December 8, 2016 – Lionsgate
(NYSE: LGF.A, LGF.B) and Starz today announced the closing of the transaction under which Lionsgate has acquired Starz for approximately
$4.4 billion in cash and stock. The deal creates a vertically integrated global content platform that includes one of the largest
independent television businesses in the world, a 16,000-title film and television library, the STARZ premium pay network serving
nearly 25 million subscribers, a world-class film business and a growing suite of streaming services.
The acquisition was approved by 98% of the votes cast by
Lionsgate shareholders and 95% of the votes cast by Starz shareholders, in person or represented by proxy, not including
abstentions, at the companies’ respective shareholder meetings on Wednesday, December 7, 2016. All necessary regulatory
approvals have been obtained and all conditions to the closing have been satisfied.
Under the terms of the transaction, each share of previously existing
Lionsgate common stock has been reclassified into 0.5 newly created voting shares of Lionsgate (NYSE: LGF.A) and 0.5 newly created
non-voting shares of Lionsgate (NYSE: LGF.B). Holders of Starz Series A common stock are receiving $18.00 in cash as well as 0.6784
shares of Lionsgate Class B non-voting stock. Holders of Starz Series B common stock are receiving $7.26 in cash, 0.6321 shares
of Lionsgate Class A voting stock and 0.6321 shares of Lionsgate Class B non-voting stock. Previously existing Lionsgate common
shares and Starz common shares will no longer be listed on the NYSE and NASDAQ, respectively, effective December 9, 2016.
Lionsgate will operate Starz as a wholly-owned subsidiary. With
the completion of the acquisition, the combined company is well positioned to increase its content creation capabilities, enhance
its leadership in premium scripted programming and scale its global distribution footprint. Chris Albrecht will continue to serve
as President and CEO of Starz, reporting to Lionsgate CEO Jon Feltheimer, and will also join Lionsgate’s Executive Management
Committee.
“After planning the integration of Lionsgate and Starz for
the past five months, we are more excited than ever at the value created by the combination of our two great companies,”
said Feltheimer and Vice Chairman Michael Burns. “Chris and his team have built Starz into a strong brand, a world-class
distribution platform and a premium programming leader, and we’re delighted to welcome them to the Lionsgate family. Working
together, we believe that the strategic opportunities are enormous, and we’re pleased that our shareholders recognize the
transformative potential of the transaction.”
“Lionsgate and Starz have a shared vision
– to make incredible content for audiences across the world and capitalize on technology and innovation to distribute that
content across multiple platforms and devices,” said Albrecht. “There is no better time to be in this business and
no better company to be a part of. I am thrilled to join Jon, Michael and the rest of the Lionsgate team in growing our combined
company into a global content powerhouse.”
The companies noted that integration planning is substantially complete
in a number of areas. Starz’s home entertainment and television distribution operations are being consolidated into Lionsgate’s
worldwide home entertainment and television distribution businesses, respectively. The consolidation further strengthens an industry
leader in packaged media and digital entertainment marketing and international television sales.
ABOUT LIONSGATE
Lionsgate (NYSE: LGF.A, LGF.B) is a vertically integrated next generation
global content leader with a diversified presence in motion picture production and distribution, television programming and syndication,
premium pay television networks, home entertainment, global distribution and sales, interactive ventures and games and location-based
entertainment.
With the acquisition of Starz, Lionsgate adds to its
portfolio of businesses the flagship STARZ premium pay network serving nearly 25 million subscribers and the STARZENCORE
platform with over 31 million subscribers. The combined company will operate five over-the-top (OTT) streaming services and
the Starz app delivering content directly to consumers.
One of the largest independent television businesses in the world,
Lionsgate’s slate of premium quality series encompasses nearly 90 shows on more than 40 different networks. These include
the ground-breaking
Orange is the New Black
, the fan favorite
Nashville
, the syndication success
The Wendy Williams
Show
, the acclaimed drama
The Royals,
the Golden Globe-nominated
Casual,
the breakout success
Greenleaf
and
hit Starz series including
Outlander
,
Black Sails
,
Survivor’s Remorse
and
Power
, the second highest-rated
premium pay television series of 2016.
The Company’s feature film business spans eight labels and
includes the blockbuster
Hunger Games
franchise, the
Now You See Me
and
John Wick
series, the
critically-acclaimed
La La
Land
,
Hacksaw Ridge
,
Tyler Perry’s Boo! A Madea Halloween
, CBS Films/Lionsgate’s
Hell or High Water
, Roadside Attractions'
Manchester by the Sea,
Codeblack Films’
breakout
concert film
Kevin Hart: Let Me Explain
and Pantelion Films’
Instructions Not Included
, the highest-grossing
Spanish-language film ever released in the U.S.
Lionsgate's home entertainment business is an industry leader in
box office-to-DVD and box office-to-VOD revenue conversion rates. Lionsgate handles a prestigious and prolific library of
more than 16,000 motion picture and television titles that is an important source of recurring revenue and serves as a foundation for the growth of the Company's
core businesses. The Lionsgate, Summit Entertainment and Starz brands are synonymous with original, daring, quality entertainment
in markets around the world.
www.lionsgate.com
ABOUT STARZ
Starz (
www.starz.com
), a Lionsgate company (NYSE: LGF.A,
LGF.B), is a leading global media and entertainment company that provides premium subscription video programming on domestic U.S.
pay television networks and produces and distributes content for worldwide audiences, including its investment in the STARZ PLAY
Arabia OTT service. Starz is home to the flagship STARZ
®
brand with 24.5 million subscribers in the United States
as of September 30, 2016, with the STARZ ENCORE
SM
network at 31.5 million subscribers. Starz provides high-quality,
entertaining premium subscription video programming with 17 premium pay TV channels and associated on-demand and online services,
including the STARZ app. Sold through U.S. multichannel video distributors, including cable operators, satellite television providers,
telecommunications companies, and other online and digital platforms, Starz offers subscribers more than 5,000 distinct premium
television episodes and feature films every year and up to 1,500 every month, including STARZ Original series, first-run movies
and other popular movie and television programming.
Caution Regarding Forward-Looking Statements
This communication may contain certain forward-looking statements,
including certain plans, expectations, goals, projections, and statements about the benefits of the proposed transaction, the merger
parties’ plans, objectives, expectations and intentions, and other statements that are not historical facts. Such statements
are subject to numerous assumptions, risks, and uncertainties. Statements that do not describe historical or current facts, including
statements about beliefs and expectations, are forward-looking statements. Forward-looking statements may be identified by words
such as expect, anticipate, believe, intend, estimate, plan, target, goal, or similar expressions, or future or conditional verbs
such as will, may, might, should, would, could, or similar variations.
While there is no assurance that any list of risks and uncertainties
or risk factors is complete, below are certain factors which could cause actual results to differ materially from those contained
or implied in the forward-looking statements including: the substantial investment of capital required to produce and market films
and television series; increased costs for producing and marketing feature films and television series; budget overruns, limitations
imposed by Lions Gate’s or Starz’s credit facilities and notes; unpredictability of the commercial success of Lions
Gate’s or Starz’s motion pictures and television programming; risks related to Lions Gate’s or Starz’s
acquisition and integration of acquired businesses; the effects of dispositions of businesses or assets, including individual films
or libraries; the cost of defending Lions Gate’s or Starz’s intellectual property; technological changes and other
trends affecting the entertainment industry; potential adverse reactions or changes to business or employee relationships, including
those resulting from the announcement or completion of the transaction; competitive responses to the transaction; the possibility
that the anticipated benefits of the transaction are not realized when expected or at all, including as a result of the impact
of, or problems arising from, the integration of the two companies; the possibility that the transaction may be more expensive
to complete than anticipated, including as a result of unexpected factors or events; diversion of management’s attention
from ongoing business operations and opportunities; Lions Gate’s ability to complete the integration of Starz
successfully; litigation relating to the transaction; and other factors that may affect future results of Lions Gate and Starz.
Additional factors that could cause results to differ materially from those described above can be found in Lions Gate’s
Annual Report on Form 10-K for the year ended March 31, 2016, and in its subsequent Quarterly Reports on Form 10-Q, including
for the quarters ended June 30, 2016 and September 30, 2016, each of which is on file with the Securities and Exchange Commission
(the “SEC”) and available in the “Corporate” section of Lions Gate’s website,
http://www.lionsgate.com
,
under the heading “Reports” and in other documents Lions Gate files with the SEC, and in Starz’s Annual Report
on Form 10-K for the year ended December 31, 2015 and in its subsequent Quarterly Reports on Form 10-Q, including for the quarters
ended March 31, 2016, June 30, 2016 and September 30, 2016, each of which is on file with the SEC and available in the “Starz
Corporate” section of Starz’s website,
http://www.Starz.com,
under the subsection “Investor Relations”
and then under the heading “SEC Filings” and in other documents Starz files with the SEC.
All forward-looking statements speak only as of the date they are
made and are based on information available at that time. Neither Lions Gate nor Starz assumes any obligation to update forward-looking
statements to reflect circumstances or events that occur after the date the forward-looking statements were made or to reflect
the occurrence of unanticipated events except as required by federal securities laws. As forward-looking statements involve significant
risks and uncertainties, caution should be exercised against placing undue reliance on such statements.
# # #
|
For more information, please contact:
|
|
|
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|
|
Peter Wilkes
|
Theano Apostolou
|
|
Lionsgate
|
Starz
|
|
(310) 255-3726
|
(424) 204-4052
|
|
pwilkes@lionsgate.com
|
theano@starz.com
|
|
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|
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For investor inquiries:
|
|
|
James Marsh
|
Courtnee Chun
|
|
Lionsgate
|
Starz
|
|
(310) 255-3651
|
(720) 875-5420
|
|
jmarsh@lionsgate.com
|
courtnee.chun@starz.com
|