LOAN AGREEMENT among ALGECO SCOTSMAN PIK S.A., as Borrower, ALGECO/SCOTSMAN HOLDING S.à R.L., as Parent and a Guarantor,

Transcription

1 EXECUTION VERSION LOAN AGREEMENT among ALGECO SCOTSMAN PIK S.A., as Borrower, ALGECO/SCOTSMAN HOLDING S.à R.L., as Parent and a Guarantor, The Several Lenders from Time to Time Parties Hereto, and WILMINGTON TRUST (LONDON) LIMITED as Administrative Agent Dated as of May 1, 2013 GOLDMAN SACHS INTERNATIONAL and MORGAN STANLEY SENIOR FUNDING, INC., as Joint Lead Arrangers

2 TABLE OF CONTENTS SECTION 1. DEFINITIONS Defined Terms Other Interpretive Provisions SECTION 2. AMOUNT AND TERMS OF LOANS Loans Procedure for Borrowing Repayment of Loans Optional and Mandatory Prepayments Fees, etc Interest Rate; PIK Election Pro Rata Treatment and Payments Taxes Change of Lending Office Replacement of Lenders Loan Notes SECTION 3. REPRESENTATIONS AND WARRANTIES No Change Existence; Compliance with Law Power; Authorization; Approvals; Enforceable Obligations No Legal Bar Litigation Taxes Federal Regulations Investment Company Act Use of Proceeds True and Complete Disclosure Properties Insurance No Default Luxembourg Pledge Agreements Solvency Matters Certain Laws Labor Matters SECTION 4. CONDITIONS PRECEDENT Conditions to Effective Date Conditions to Closing Date SECTION 5. AFFIRMATIVE COVENANTS Reports and Other Information Page i

3 5.2. Conduct of Business and Maintenance of Existence Inspection of Property; Books and Records; Discussions Compliance with Laws Taxes Further Assurances SECTION 6. Negative Covenants Limitation on Restricted Payments Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock Asset Sales Transactions with Affiliates Liens Corporate Existence [Intentionally Omitted] Additional Guarantees Merger, Consolidation or Sale of All or Substantially All Assets Successor Corporation Substituted Passive Holding Company Status SECTION 7. EVENTS OF DEFAULT Events of Default Action in Event of Default SECTION 8. ADMINISTRATIVE AGENT Appointment Delegation of Duties Exculpatory Provisions Reliance by Agents Notice of Default Non-Reliance on Administrative Agent and Other Lenders Indemnification Administrative Agent in its Individual Capacity Successor Administrative Agent SECTION 9. MISCELLANEOUS Amendments and Waivers Notices No Waiver; Cumulative Remedies Survival of Representations and Warranties Payment of Expenses and Taxes Successors and Assigns; Participations and Assignments Adjustments Counterparts; Electronic Execution Severability Integration ii

4 9.11. GOVERNING LAW Submission To Jurisdiction; Waivers Acknowledgements Confidentiality WAIVERS OF JURY TRIAL USA PATRIOT Act Currencies SECTION 10. GUARANTEE Guarantee No Subrogation Amendments, etc. with respect to the Obligations Guarantee Absolute and Unconditional Reinstatement Luxembourg Guarantee Limitations iii

5 SCHEDULES: 1.1A Commitments EXHIBITS: A B C D Form of Borrowing Notice Form of Cash Interest Notice Form of Assignment and Assumption Form of Loan Note iv

6 LOAN AGREEMENT (this Agreement ), dated as of May 1, 2013, among ALGECO SCOTSMAN PIK S.A., a société anonyme incorporated under the laws of the Grand Duchy of Luxembourg, having its registered office at 20, rue Eugéne Ruppert, L-2453 Luxembourg and registered with the Luxembourg Registre du Commerce et des Sociétés with a number B (the Borrower ) (this and each other capitalized term used herein without definition having the meaning assigned to such term in Section 1.1), ALGECO/SCOTSMAN HOLDING S.à R.L., a société à responsabilité limitée incorporated under the laws of the Grand Duchy of Luxembourg, having its registered office at 20, rue Eugéne Ruppert, L-2453 Luxembourg and registered with the Luxembourg Registre due Commerce et des Sociétés under number B having a share capital of 225,898,514 (the Parent ), each Guarantor from time to time party hereto, the several banks, financial institutions, institutional investors and other entities from time to time party to this Agreement as lenders or holders of the Loans (the Lenders ), GOLDMAN SACHS INTERNATIONAL and MORGAN STANLEY SENIOR FUNDING, INC., as joint lead arrangers, and WILMINGTON TRUST (LONDON) LIMITED, as Administrative Agent. The parties hereto hereby agree as follows: SECTION 1. DEFINITIONS 1.1. Defined Terms. As used in this Agreement (including the recitals hereof), the terms listed in this Section 1.1 shall have the respective meanings set forth in this Section 1.1. Acceptable Commitment : as defined in Section 6.4(I)(b). Acquired Indebtedness : with respect to any specified Person, (1) Indebtedness of any other Person existing at the time such other Person is merged or amalgamated with or into or became a Restricted Subsidiary of such specified Person, including Indebtedness incurred in connection with, or in contemplation of, such other Person merging or amalgamating with or into or becoming a Restricted Subsidiary of such specified Person, and (2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person. Acquisition : as defined in the Offering Memorandum. Additional Amount : as defined in Section 2.4(d). Additional Assets : as defined in Section 6.4(I)(b)(3). Affiliate : with respect to any specified Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such specified Person. Affiliate Transactions : as defined in Section 6.5(a). Agreement : as defined in the preamble hereto

7 2 Applicable Premium : with respect to any Loan (including PIK Loans) on any Prepayment Date or on any date of payment prior to August 14, 2014 following acceleration pursuant to Section 7.2, the greater of: (1) 1.0% of the principal amount of such Loan; and (2) the excess, if any, of (a) the present value at such Prepayment Date of (i) the prepayment price of such Loan at August 14, 2014 (such prepayment price being set forth in Section 2.4(b)), plus (ii) all required interest payments due on such Loan through August 14, 2014 (excluding accrued but unpaid interest to the Prepayment Date, and assuming that the rate of interest on the Loans for the period from the Prepayment Date through August 14, 2014 will be the rate for Cash Interest), computed using a discount rate equal to the Treasury Rate as of such Prepayment Date plus 50 basis points; over (b) the principal amount of such Loan. Calculation of the Applicable Premium will be made by the Borrower or on behalf of the Borrower by such Person as the Borrower shall designate; provided that such calculation or the correctness thereof shall not be a duty or obligation of the Administrative Agent. Sale. Application Period : the 395 days after the receipt of any Net Proceeds of any Asset Approved Fund : as defined in Section 9.6(b)(i). Asset Sale : (1) the sale, conveyance, transfer or other disposition, whether in a single transaction or a series of related transactions, of property or assets (including by way of a Sale and Lease- Back Transaction) of Parent or any of its Restricted Subsidiaries (each referred to in this definition as a disposition ); or (2) the issuance or sale of Equity Interests of any Restricted Subsidiary (other than non-voting Preferred Stock of Restricted Subsidiaries issued in compliance with Section 6.3), whether in a single transaction or a series of related transactions; in each case, other than: (a) any disposition of obsolete or worn out equipment in the ordinary course of business or any disposition of inventory, rental fleet equipment or goods (or other assets) held for sale in the ordinary course of business; (b) the disposition of all or substantially all of the assets of Parent in a manner permitted pursuant to the provisions described under Section 6.10 or any disposition that constitutes a Change of Control pursuant to this Agreement; (c) the making of any Restricted Payment or Permitted Investment that is permitted to be made, and is made, under Section 6.1; (d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of related transactions with an aggregate fair market value of less than 15,000,000;

8 3 (e) any disposition of property or assets or issuance of securities by a Restricted Subsidiary to Parent or by Parent or a Restricted Subsidiary to another Restricted Subsidiary; (f) to the extent allowable under Section 1031 of the Code or any successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business; (g) the lease, assignment, sub-lease, license or sub-license of, or any transfer related to a reverse build-to-suit or similar transaction in respect of, any real or personal property in the ordinary course of business; (h) any issuance, sale or pledge of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary; (i) foreclosures, Events of Loss or any similar action on assets or the granting of Liens not prohibited by this Agreement; (j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility; (k) any financing transaction with respect to property built or acquired by Parent or any Restricted Subsidiary after the Effective Date, including Sale and Lease-Back Transactions and asset securitizations permitted by this Agreement; (l) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or other litigation claims in the ordinary course of business; (m) the sale or discount of inventory, accounts receivable or notes receivable in the ordinary course of business or the conversion of accounts receivable to notes receivable; (n) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business, other than the licensing of intellectual property on a long-term basis; (o) the unwinding of any Hedging Obligations; (p) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (q) the lapse, cancellation or abandonment of intellectual property rights in the ordinary course of business, which in the reasonable good faith determination of Parent are not material to the conduct of the business of Parent and the Restricted Subsidiaries taken as a whole; (r) the issuance of directors qualifying shares and shares issued to foreign nationals as required by applicable law; and (s) Securities. the sale or other disposition of cash, Cash Equivalents or Investment Grade

9 4 In the event that a transaction (or any portion thereof) meets the criteria of a permitted Asset Sale and would also be a permitted Restricted Payment or Permitted Investment, Parent, in its sole discretion, will be entitled to divide and classify such transaction (or a portion thereof) as an Asset Sale and/or one or more of the types of permitted Restricted Payments or Permitted Investments. Asset Sale Offer : as defined in Section 6.4(I)(b)(2). Assignee : as defined in Section 9.6(b). of Exhibit C. Assignment and Assumption : an Assignment and Assumption, substantially in the form Attributable Debt : means, in respect of a Sale and Lease-Back Transaction, as at the time of determination, the present value (discounted at the interest rate equal to the rate of interest implicit in such transaction, determined in accordance with IFRS; provided that if such interest rate cannot be determined in accordance with IFRS, the present value shall be discounted at the interest rate borne by the Loans, compounded annually) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such Sale and Lease-Back Transaction (including any period for which such lease has been extended)); provided, however, that if such Sale and Lease-Back Transaction results in a Capitalized Lease Obligation, the amount of Indebtedness represented thereby will be determined in accordance with the definition of Capitalized Lease Obligation. Australian Non-Recourse Subsidiary : any Australian Subsidiary of Parent (other than a Subsidiary Guarantor, if any) all of whose Indebtedness is Non-Recourse Debt. Bank Products : any one or more of the following financial products or accommodations: (1) credit cards, (2) credit card processing services, (3) debit cards, (4) stored value cards, (5) purchase cards (including so-called procurement cards or P-cards ), (6) cash management or related services including treasury, depository, return items, overdraft, controlled disbursement, merchant store value cards, e-payables services, electronic funds transfer, interstate depository network, automatic clearing house transfer (including the Automated Clearing House processing of electronic funds transfers through the direct Federal Reserve Fedline system) and other cash management arrangements or (7) transactions under any swap agreement as that term is defined in Section 101(53B)(A) of the Bankruptcy Code. Bankruptcy Code : Title 11 of the United States Code, as amended. Bankruptcy Law : the Bankruptcy Code and any similar federal, state, provincial or foreign law for the relief of debtors. Benefited Lender : as defined in Section 9.7. Blocked Person : any Person that is publicly identified on the most current list of Specially Designated Nationals and Blocked Persons published by the Office of Foreign Assets Control of the U.S. Department of the Treasury. Board : the Board of Governors of the Federal Reserve System of the United States (or any successor).

10 5 Board of Directors, with respect to a Person, means the board of directors (or similar body) of such Person or any committee thereof duly authorized to act on behalf of such board of directors (or similar body). Borrower : as defined in the preamble hereto. Borrowing Base : as of any date, an amount equal to: (1) 75% of the aggregate book value of all accounts receivable owned by Parent and the Restricted Subsidiaries as of the end of the most recent fiscal quarter preceding such date for which internal financial statements are available; plus (2) 65% of the net book value of rental fleet equipment and containers of Parent and the Restricted Subsidiaries as of the end of the most recent fiscal quarter preceding such date for which internal financial statements are available. Exhibit A. Borrowing Notice : a notice of borrowing of Loans, substantially in the form of Business Day : each day which is not a Legal Holiday. Capital Stock : (1) in the case of a corporation, corporate stock; (2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and (4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person; but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such securities include any right of participation with Capital Stock. Capitalized Lease Obligation : at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) in accordance with IFRS. Cash Equivalents : (1) (a) Dollars, Canadian dollars, Euro, or any national currency of any member state of the European Union; or (b) any other foreign currency held by the Borrower and the Restricted Subsidiaries in the ordinary course of business; (2) securities issued or directly and fully guaranteed or insured by the United States or Canadian governments, a member state of the European Union or, in each case, any agency or instrumentality thereof (provided that the full faith and credit of such country or such member state is pledged in support thereof), having maturities of not more than two years from the date of acquisition;

11 6 (3) certificates of deposit, time deposits, eurodollar time deposits, overnight bank deposits or bankers acceptances having maturities of not more than one year from the date of acquisition thereof issued by any lender or by any bank or trust company (a) whose commercial paper is rated at least A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof by Moody s (or if at the time neither is issuing comparable ratings, then a comparable rating of another Rating Agency) or (b) having combined capital and surplus in excess of million (or the Dollar equivalent thereof); (4) repurchase obligations for underlying securities of the types described in clauses (2) and (3) entered into with any bank or trust company meeting the qualifications specified in clause (3) above; (5) commercial paper, marketable short-term money market and similar securities 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 Rating Agency, if both of the two named rating agencies cease publishing ratings of investments or, if no rating is available in respect of the commercial paper, the issuer of which has an equivalent rating in respect of its long-term debt, and in any case maturing within one year after the date of acquisition thereof; (6) readily marketable direct obligations issued by any foreign government or any political subdivision thereof, in each case, having one of the two highest rating categories obtainable from either Moody s or S&P (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Rating Agency) with maturities of not more than two years from the date of acquisition; (7) Indebtedness or Preferred Stock issued by Persons with a rating of A- or higher from S&P or A3 or higher from Moody s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Rating Agency) with maturities of 12 months or less from the date of acquisition; (8) bills of exchange issued in the United States, Canada, a member state of the European Union or Japan eligible for rediscount at the relevant central bank and accepted by a bank (or any dematerialized equivalent); (9) investment funds investing 95% of their assets in securities of the types described in clauses (1) through (8) above; and (10) Investments with average maturities of 12 months or less from the date of acquisition in money market funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody s. Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clause (1) above, provided that such amounts are converted into any currency listed in clause (1) as promptly as practicable and in any event within ten Business Days following the receipt of such amounts. Cash Interest : the 15.00% interest rate per annum payable on the Loans to the extent interest is paid in cash. Exhibit B. Cash Interest Notice : a notice to the Administrative Agent, substantially in the form of

12 7 Change of Control : the occurrence of any of the following: (1) the sale, lease or transfer, in one or a series of related transactions, of all or substantially all of the assets of Parent and its Subsidiaries, taken as a whole, to any Person other than the Permitted Holders; (2) Parent becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d 5(b)(1) under the Exchange Act), other than the Permitted Holders, in a single transaction or in a related series of transactions, by way of merger, amalgamation, consolidation or other business combination or purchase of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision), directly or indirectly, of 50% or more of the total voting power of the Voting Stock of Parent; or (3) Pledgors cease to be the beneficial owners (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision) and the owners of record of 100% of the total voting power of the Voting Stock (other than any directors qualifying shares and shares issued to foreign nationals or other third parties to the extent required by applicable law) of Holdings (except to the extent Holdings is merged with or into Parent in accordance with the terms of this Agreement), or (4) Parent ceases to be the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision) and the owner of record of 97.01% of the total voting power of the Voting Stock (other than any directors qualifying shares and shares issued to foreign nationals or other third parties to the extent required by applicable law) of Holdings (except to the extent Holdings is merged with or into Parent in accordance with the terms of this Agreement); or (5) Parent ceases to be the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision) and the owner of record of 100% of the total voting power of the Voting Stock (other than any directors qualifying shares and shares issued to foreign nationals or other third parties to the extent required by applicable law) of the Borrower; provided that, notwithstanding the foregoing, a Permitted Equity Transfer shall not be deemed to result in the occurrence of a Change of Control. Closing Date : the date notified to the Administrative Agent by the Borrower pursuant to Section 2.2, which shall be a Business Day after the Effective Date and on or prior to May 14, Code : the U.S. Internal Revenue Code of 1986, as amended. Commitment : as to any Lender, the obligation of such Lender, if any, to make a Loan to the Borrower in a principal amount not to exceed the amount set forth under the heading Commitment opposite such Lender s name on Schedule 1.1A. The original aggregate amount of the Commitments is $400,000,000. Consolidated Depreciation and Amortization Expense : with respect to any Person for any period, the total amount of depreciation and amortization expense of such Person and the Restricted

13 8 Subsidiaries, including the amortization of deferred financing fees, for such period on a consolidated basis and otherwise determined in accordance with IFRS. Consolidated Interest Expense : with respect to any Person for any period, without duplication, the sum of: (1) consolidated interest expense of such Person and the Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (a) amortization of original issue discount or premium resulting from the issuance of Indebtedness at less than or greater than par, as applicable, other than with respect to Indebtedness issued in connection with the Transactions, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances, (c) non-cash interest payments (but excluding any noncash interest expense attributable to the movement in the mark to market valuation of Hedging Obligations or other derivative instruments pursuant to IFRS), (d) the interest component of Capitalized Lease Obligations, and (e) net payments, if any, pursuant to interest rate Hedging Obligations with respect to Indebtedness, and excluding (r) penalties and interest relating to taxes, (s) any additional interest relating to customary registration rights with respect to any securities, (t) non-cash interest expense attributable to movement in mark-to-market valuation of Hedging Obligations or other derivatives (in each case permitted hereunder under IFRS), (u) interest expense attributable to a Parent Entity resulting from push-down accounting (v) accretion or accrual of discounted liabilities not constituting Indebtedness, (w) any expense resulting from the discounting of Indebtedness in connection with the application of recapitalization or purchase accounting, (x) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses and, with respect to Indebtedness issued in connection with the Transactions, original issue discount, (y) any expensing of bridge, commitment and other financing fees and (z) commissions, discounts, yield and other fees and charges (including any interest expense) related to any Receivables Facility); plus (2) consolidated capitalized interest of such Person and the Restricted Subsidiaries for such period, whether paid or accrued; less (3) interest income of such Person and the Restricted Subsidiaries for such period. For purposes of this definition, interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with IFRS. Consolidated Net Income : with respect to any Person for any period, the aggregate of the Net Income attributable to such Person and the Restricted Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with IFRS; provided, however, that, without duplication, (1) any after-tax effect of extraordinary, non-recurring or unusual gains, losses or charges (including all fees and expenses relating thereto) or expenses (including the Transaction Expenses) shall be excluded, (2) the cumulative effect of a change in accounting principles during such period and changes as a result of the adoption or modification of accounting policies shall be excluded,

14 9 (3) any after-tax effect of income (loss) from disposed, abandoned, transferred, closed or discontinued operations and any net after-tax gains or losses on disposal of disposed, abandoned, transferred, closed or discontinued operations or fixed assets shall be excluded, (4) any after-tax effect of gains or losses (less all fees and expenses relating thereto) attributable to asset dispositions or abandonments or the sale or other disposition of any Capital Stock of any Person other than in the ordinary course of business, as determined in good faith by Parent shall be excluded, (5) the Net Income for such period (A) of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided that Consolidated Net Income of such Person shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash (or to the extent converted into cash or Cash Equivalents) to the referent Person or a Restricted Subsidiary thereof in respect of such period, and (B) of any Australian Non-Recourse Subsidiary shall be excluded to the extent that of any prohibition or restrictions on dividends or distributions binding on such Australian Non-Recourse Subsidiary would prohibit such Australian Non-Recourse Subsidiary from paying a dividend or distribution in the amount of its Net Income, (6) solely for the purpose of determining the amount available for Restricted Payments under clause (iii)(a) of Section 6.1(a), the Net Income for such period of any Restricted Subsidiary (other than any Guarantor or the Borrower) shall be excluded to the extent the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of its Net Income is not at the date of determination permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, is otherwise restricted by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restriction with respect to the payment of dividends or similar distributions (x) has been legally waived or (y) is permitted by Section 6.2; provided that Consolidated Net Income of such Person will be increased by the amount of dividends or other distributions or other payments actually paid in cash (or to the extent converted into cash) or Cash Equivalents to such Person or a Restricted Subsidiary thereof in respect of such period, to the extent not already included therein, (7) effects of adjustments (including the effects of such adjustments pushed down to such Person and its Restricted Subsidiaries) in the inventory, property and equipment, software, goodwill and other intangible assets and in process research and development, deferred revenue and debt line items in such Person s consolidated financial statements pursuant to IFRS resulting from the application of purchase accounting in relation to the Transactions or any consummated acquisition or the amortization or write-off of any amounts thereof, net of taxes, shall be excluded, (8) any after-tax effect of income (loss) from the early extinguishment of Indebtedness or Hedging Obligations or other derivative instruments (including deferred financing costs written off and premiums paid) shall be excluded, (9) any impairment charge, asset write-off or write-down, including impairment charges or asset write-offs or write-downs related to intangible assets, long-lived assets, investments in debt and equity securities or as a result of a change in the law or regulation, the amortization of intangibles, and the effects of adjustments to accruals and reserves during a prior period relating to any change in the methodology of calculating reserves for returns, rebates and

15 10 other chargebacks (including government program rebates), in each case, pursuant to IFRS shall be excluded, (10) any (i) non-cash compensation charge or expense related to the grants of stock appreciation or similar rights, phantom equity stock options, restricted stock or other rights and (ii) income (loss) attributable to deferred compensation plans or trusts shall be excluded, (11) any fees and expenses incurred during such period, or any amortization thereof for such period, in connection with any acquisition, disposition, Investment, recapitalization, Asset Sale, issuance or repayment of Indebtedness, issuance of Equity Interests, refinancing transaction or amendment or modification of any debt instrument (in each case, including any such transaction consummated prior to the Start Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period incurred in connection with any such transaction, (12) accruals and reserves that are established within 12 months after the Start Date that are so required to be established as a result of the Acquisition as part of the Transactions in accordance with IFRS or changes as a result of adoption or modification of accounting policies shall be excluded, (13) (i) any net gain or loss resulting in such period from currency transaction or translation gains or losses related to currency re-measurements and (ii) any income (or loss) related to currency gains or losses related to Indebtedness, intercompany balances and other balance sheet items and to Hedging Obligations shall be excluded, (14) any deferred tax expense associated with tax deductions or net operating losses arising as a result of the Transactions, or the release of any valuation allowance related to such item, shall be excluded, and (15) any non-cash interest expense and non-cash interest income, in each case to the extent there is no associated scheduled cash disbursement or receipt, as the case may be, before the earlier of the maturity date of the Loans and the date on which the Loans cease to be outstanding, shall be excluded. In addition, to the extent not already accounted for in the Consolidated Net Income of such Person and its Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall include (i) the amount of proceeds received during such period from business interruption insurance in respect of insured claims for such period, (ii) the amount of proceeds as to which Parent has determined there is reasonable evidence it will be reimbursed by the insurer in respect of such period from business interruption insurance (with a deduction for any amounts so added back to the extent denied by the applicable carrier in writing within 180 days or not so reimbursed within 365 days) and (iii) reimbursements received of any expenses and charges that are covered by indemnification or other reimbursement provisions in connection with any Permitted Investment or any sale, conveyance, transfer or other disposition of assets permitted hereunder. Notwithstanding the foregoing, for the purpose of Section 6.1 only (other than clause (iii)(d) of Section 6.1(a)), there shall be excluded from Consolidated Net Income any income arising from any sale or other disposition of Restricted Investments made by Parent and the Restricted Subsidiaries, any repurchases and redemptions of Restricted Investments from Parent and the Restricted Subsidiaries, any repayments of loans and advances which constitute Restricted Investments by Parent or any of its Restricted Subsidiaries, any sale of the stock of an Unrestricted Subsidiary or any distribution

16 11 or dividend from an Unrestricted Subsidiary, in each case only to the extent such amounts increase the amount of Restricted Payments permitted under clause (iii)(d) of Section 6.1(a). Consolidated Secured Debt Ratio as of any date of determination means the ratio of (1) Consolidated Total Indebtedness of Parent and the Restricted Subsidiaries (other than Hedging Obligations) that is secured by a Lien as of such date of determination to (2) Parent s EBITDA for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such event for which such calculation is being made shall occur, in each case with such pro forma adjustments to Consolidated Total Indebtedness and EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio. Consolidated Total Indebtedness : as at any date of determination, an amount equal to the sum of (1) the aggregate amount of all outstanding Indebtedness of Parent and the Restricted Subsidiaries on a consolidated basis consisting of Indebtedness for borrowed money, obligations in respect of Capitalized Lease Obligations and debt obligations evidenced by promissory notes and similar instruments and (2) the aggregate amount of all outstanding Disqualified Stock of Parent and all Preferred Stock of the Restricted Subsidiaries on a consolidated basis, with the amount of such Disqualified Stock and Preferred Stock equal to the greater of their respective voluntary or involuntary liquidation preferences and maximum fixed repurchase prices, in each case determined on a consolidated basis in accordance with IFRS. For purposes hereof, the maximum fixed repurchase price of any Disqualified Stock or Preferred Stock that does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock or Preferred Stock as if such Disqualified Stock or Preferred Stock were purchased on any date on which Consolidated Total Indebtedness shall be required to be determined pursuant to this Agreement, and if such price is based upon, or measured by, the fair market value of such Disqualified Stock or Preferred Stock, such fair market value shall be determined reasonably and in good faith by the Board of Directors of Parent. Contingent Obligations : with respect to any Person, any obligation of such Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness ( primary obligations ) of any other Person (the primary obligor ) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (1) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (2) to advance or supply funds (a) for the purchase or payment of any such primary obligation, or (b) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, or (3) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof. Contractual Obligation : as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

17 12 Control : the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. Controlling and Controlled have meanings correlative thereto. Credit Facilities : with respect to Parent or any of its Restricted Subsidiaries, one or more debt facilities, including the Senior Credit Agreement, or other financing arrangements (including, without limitation, commercial paper facilities or indentures) providing for revolving credit loans, term loans, letters of credit or other long-term indebtedness, including any notes, mortgages, guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals, restatements or refundings thereof and any indentures or credit facilities or commercial paper facilities that exchange, replace, refund, refinance, extend, renew, restate, amend, supplement or modify any part of the loans, notes, other credit facilities or commitments thereunder, including any such exchanged, replacement, refunding, refinancing, extended, renewed, restated, amended, supplemented or modified facility or indenture that increases the amount permitted to be borrowed thereunder or alters the maturity thereof (provided that such increase in borrowings is permitted under Section 6.3) or adds Restricted Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or any other agent, lender or group of lenders. Credit Party : the Administrative Agent, any Lender or any other recipient of a payment to be made by, on behalf of, or on account of any obligation of, any Loan Party under this Agreement or any other Loan Document. Default : any of the events specified in Section 7.1, whether or not any requirement for the giving of notice, the lapse of time, or both, has been satisfied. Designated Non-cash Consideration : the fair market value of non-cash consideration received by Parent or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officer s Certificate, setting forth the basis of such valuation, executed by the principal financial officer of Parent, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of or collection on such Designated Non-cash Consideration. Designated Preferred Stock : Preferred Stock of Parent or any Parent Entity (in each case other than Disqualified Stock) that is issued for cash (other than to a Restricted Subsidiary or an employee stock ownership plan or trust established by Parent or any of its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an Officer s Certificate executed by the principal financial officer of Parent or the applicable Parent Entity, as the case may be, on the issuance date thereof, the cash proceeds of which are excluded from the calculation set forth in clause (iii) of Section 6.1(a). Disqualified Stock : with respect to any Person, any Capital Stock of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than solely as a result of a change of control or asset sale) pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than solely as a result of a change of control or asset sale), in whole or in part, in each case prior to the date 91 days after the earlier of the maturity date of the Loans or the date the Loans are no longer outstanding; provided, however, that if such Capital Stock is issued to any plan for the benefit of employees of Parent or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by Parent or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations, provided, further, that any Capital Stock held by any future, current or former employee, director, manager or consultant (or their respective trusts, estates, investment funds, investment

18 13 vehicles or immediate family members) of Parent, any of its Subsidiaries or any Parent Entity in each case upon the termination of employment or death of such person pursuant to any stockholders agreement, management equity plan, stock option plan or any other management or employee benefit plan or agreement shall not constitute Disqualified Stock solely because it may be required to be repurchased by Parent or its Subsidiaries. Dollars and $ : dollars in lawful currency of the United States. EBITDA : with respect to any Person for any period, the Consolidated Net Income of such Person for such period, (1) increased (without duplication) by: (a) provision for taxes based on income or profits or capital, including, without limitation, foreign, U.S. federal, state, franchise, excise and similar taxes and foreign withholding taxes (including penalties and interest related to such taxes or arising from tax examinations) of such Person and its Restricted Subsidiaries paid or accrued during such period deducted (and not added back) in computing Consolidated Net Income and any payments to any Parent Entity in respect of such taxes; plus (b) Fixed Charges of such Person and its Restricted Subsidiaries for such period (including (y) bank fees and (z) costs of surety bonds in connection with financing activities, in each case, to the extent included in Fixed Charges), together with items excluded from the definition of Consolidated Interest Expense pursuant to clauses 1(r) through 1(z) thereof, to the extent the same were deducted (and not added back) in calculating such Consolidated Net Income; plus (c) Consolidated Depreciation and Amortization Expense of such Person and its Restricted Subsidiaries for such period to the extent the same were deducted (and not added back) in computing Consolidated Net Income; plus (d) any expenses or charges (other than depreciation or amortization expense) related to any Equity Offering, Permitted Investment, acquisition, disposition, recapitalization or the incurrence of Indebtedness permitted to be incurred by this Agreement (including a refinancing thereof) (whether or not successful), and any amendment or modification to the terms of any such transaction including (i) such fees, expenses or charges related to the Transactions and (ii) any amendment or other modification of any such Indebtedness (including, without limitation, the Notes or the Loans), and, in each case, deducted (and not added back) in computing Consolidated Net Income; plus (e) the amount of any restructuring charge or reserve or non-recurring integration costs deducted (and not added back) in such period in computing Consolidated Net Income, including any one time costs incurred in connection with acquisitions after the Start Date and costs related to the closure and/or consolidation of facilities, severance, relocation costs, integration and facilities opening costs, transition costs and other restructuring costs; plus (f) any other non-cash charges, including any write offs or write downs, reducing Consolidated Net Income for such period (provided that if any such non-cash charges represent an accrual or reserve for potential cash items in any future period, the

19 14 cash payment in respect thereof in such future period shall be subtracted from EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period); plus (g) the amount of any non-controlling interest expense consisting of Subsidiary income attributable to minority equity interests of third parties in any non- Wholly Owned Subsidiary of Parent deducted (and not added back) in such period in the calculation of Consolidated Net Income, excluding cash distributions in respect thereof; plus (h) the amount of management, monitoring, consulting and advisory fees (including termination fees) and related indemnities and expenses paid or accrued in such period to the Investor to the extent otherwise permitted under Section 6.5 to the extent deducted (and not added back) in such period in computing Consolidated Net Income; plus (i) the amount of net cost savings and operating improvements or synergies projected by Parent in good faith to be realized within 12 months following the date of determination as a result of specified actions initiated or to be taken (calculated on a pro forma basis as though such cost savings had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions; provided that (x) such net cost savings and operating improvements or synergies are reasonably identifiable and quantifiable, (y) no cost savings shall be added pursuant to this clause (i) to the extent duplicative of any expenses or charges relating to such net cost savings and operating improvements or synergies that are included in clause (e) above, and (z) the aggregate amount of net cost savings and operating improvements or synergies added pursuant to this clause (i) shall not exceed 10.0% of EBITDA for any four consecutive fiscal quarter period; provided further that the adjustments pursuant to this clause (i) may be incremental to pro forma adjustments made pursuant to the second paragraph of the definition of Fixed Charge Coverage Ratio plus (j) the amount of loss or discount on sale of receivables and related assets to the Receivables Subsidiary in connection with a Receivables Facility; plus (k) any costs or expense incurred by Parent or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of Parent or net cash proceeds of an issuance of Equity Interests of Parent (other than Disqualified Stock and Designated Preferred Stock) solely to the extent that such net cash proceeds are excluded from the calculation set forth in clause (iii) of Section 6.1(a); plus (l) the amount of expenses relating to payments made to option holders of Parent or any Parent Entity in connection with, or as a result of, any distribution being made to shareholders of such Person or its Parent Entity, which payments are being made to compensate such option holders as though they were shareholders at the time of, and entitled to share in, such distribution, in each case to the extent permitted under this Agreement, plus

20 15 (m) costs associated with, or in anticipation of, or preparation for, compliance with the requirements of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith and Public Company Costs; plus (n) costs of surety bonds incurred in such period in connection with financing activities; and (2) decreased by (without duplication) non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced EBITDA in any prior period; provided that, to the extent non-cash gains are deducted pursuant to this clause (2) for any previous period and not otherwise added back to EBITDA, EBITDA shall be increased by the amount of any cash receipts (or any netting arrangements resulting in reduced cash expenses) in respect of such non-cash gains received in subsequent periods to the extent not already included therein. Effective Date : May 1, Eligible Assignee : (a) any Lender, any Affiliate of a Lender and any Approved Fund (any two or more Approved Funds with respect to a particular Lender being treated as a single Eligible Assignee for all purposes hereof) and (b) any commercial bank, insurance company, financial institution, investment or mutual fund or other entity that is an accredited investor (as defined in Regulation D under the Securities Act) and which extends credit or buys commercial loans in the ordinary course; provided that neither the Borrower nor any of its Affiliates shall be an Eligible Assignee; provided, further that, any Person that is (x) engaged in a business which competes with any business in which Parent or any of its subsidiaries is engaged or (y) a private equity firm or an Affiliate thereof (other than an Affiliate which is primarily engaged in, or advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds or similar extensions of credit or securities in the ordinary course of business) (any such Person, a Competitor ) shall not be an Eligible Assignee. Equity Interests : Capital Stock and all warrants, options or other rights to acquire Capital Stock, but excluding any debt security that is convertible into, or exchangeable for, Capital Stock. Equity Offering : any public or private sale of Equity Interests (other than options) of Parent or any Parent Entity, or any public offering of Equity Interests of any Restricted Subsidiary of Parent (excluding Disqualified Stock), other than: (1) public offerings with respect to common stock registered on Form S-8; (2) issuances to Parent or any Subsidiary of Parent; (3) except for purposes of Section 2.4(e), any such public sale that constitutes an Excluded Contribution; (4) a Permitted Equity Transfer; and (5) a sale or transfer to Parent in connection with the Reorganization Transactions;