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): January 9, 2015
CBRE GROUP, INC.
(Exact
name of registrant as specified in its charter)
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| Delaware |
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001-32205 |
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94-3391143 |
| (State or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(IRS Employer
Identification No.) |
|
|
|
| 400 South Hope Street, 25th Floor
Los Angeles, California |
|
90071 |
| (Address of Principal Executive Offices) |
|
(Zip Code) |
(213) 613-3333
Registrant’s Telephone Number, Including Area Code
Not Applicable
(Former
Name or Former Address, if Changed Since Last Report)
Check the appropriate box below
if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12(b)) |
| ¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
This Current Report on Form 8-K is filed by CBRE Group, Inc., a Delaware corporation (the
“Company”), in connection with the matters described herein.
| Item 1.01 |
Entry into a Material Definitive Agreement |
On January 9, 2015, the Company, CBRE
Services, Inc., a subsidiary of the Company (“Services”), certain subsidiaries of Services, the lenders party thereto, and Credit Suisse AG (“Credit Suisse”), as Administrative Agent and Collateral Agent, entered
into a Second Amended and Restated Credit Agreement (the “Credit Agreement”), which amended and restated that certain Amended and Restated Credit Agreement, dated as of March 28, 2013 (as amended prior to the date hereof, the
“Existing Credit Agreement”) among the Company, Services, certain subsidiaries of Services, the lenders party thereto and Credit Suisse, as Administrative Agent and Collateral Agent.
The Credit Agreement provides for the following credit facilities, the proceeds of which were used to repay in full the loans outstanding
under the Existing Credit Agreement:
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• |
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a $500 million senior secured tranche A term loan facility; and |
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• |
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a senior secured revolving credit facility of up to $2.6 billion, including an allowance for borrowings outside of the United States, with (i) a $200 million sub-facility allowing for multicurrency revolving
borrowings available to the U.S. Borrower (Services), the Canadian Borrower (CBRE Limited) and the Australian Borrower (CBRE Pty Limited) and (ii) a $300 million sub-facility allowing for U.K. revolving loans to the U.S. Borrower and the U.K.
Borrower (CBRE Limited). |
The revolving credit facility includes borrowing capacity (i) of up to $200 million for
letters of credit and (ii) between $20 million and $50 million for short-term borrowings (referred to as swingline loans) available to the New Zealand Borrower.
On January 9, 2015, the U.S. Borrower borrowed $500 million under the tranche A term loan facility. These proceeds, in addition to cash
on hand, were used to repay all amounts outstanding under the Existing Credit Agreement.
In addition to implementing the facilities
described above, the Credit Agreement amended and restated the Existing Credit Agreement to, among other things:
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• |
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add flexibility for competitive bid loans, |
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• |
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increase the amount of incremental loans that may be incurred under the Credit Agreement, |
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• |
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add an option to release all or a portion of the guarantees of, and collateral granted in connection with, the Credit Agreement upon achieving an “investment grade” credit rating (as defined in the Credit
Agreement), |
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• |
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provide flexibility for “open market purchases” of outstanding loans on an unlimited basis, and |
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• |
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provide certain other ancillary amendments related thereto. |
Interest Rate and Fees
Borrowings under the Credit Agreement bear interest at a rate equal to an applicable rate plus, at the applicable borrowers’ option,
either (1) a base rate determined by reference to the greatest of (a) the prime rate determined by Credit Suisse, (b) the federal funds rate plus 1/2 of 1% and (c) the sum of (i) an adjusted LIBO rate determined by reference
to the British Bankers’ Association Interest Settlement Rates for deposits in dollars, Pounds or Euro, as applicable, for the applicable interest period of one month plus (ii) 1.00%, or (2) a reserve adjusted LIBO rate determined by
reference to the ICE Benchmark Administration Interest Settlement Rates for deposits in dollars, Pounds or Euro, as applicable, for the applicable interest period.
The applicable rate for borrowings with respect to the tranche A term loan facility and revolving
credit facility are initially (i) for the Fixed Rate tranche A term loans and Daily Rate tranche A loans, 1.50% and 0.50%, respectively, and (ii) for the Fixed Rate revolving credit loans and Daily Rate revolving credit loans, 1.25% and 0.
25%, respectively. Following delivery of financial statements for the first full fiscal quarter following the closing date of the Credit Agreement, such rates will be based on (i) in the event that the Company is rated “investment
grade”, the Company’s credit rating or (ii) otherwise, the Company’s leverage ratio, each as defined in the Credit Agreement, in accordance with the applicable table below.
In addition to paying interest on outstanding principal under the term loan facilities, the U.S. Borrower is required to pay a facility fee to
the lenders under the revolving credit facility (whether drawn or undrawn), which fee is (i) initially, 0.25% and (ii) following delivery of financial statements for the first full fiscal quarter following the closing date of the Credit
Agreement, such facility fee shall be based on (a) in the event that the Company is rated “investment grade”, the Company’s credit rating or (b) otherwise, the Company’s leverage ratio, each as defined in the Credit
Agreement, in accordance with the applicable table below. The applicable borrowers must also pay customary letter of credit fees.
Leverage-based Grid:
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| Category |
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Leverage
Ratio |
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Fixed Rate
Spread
Tranche A
Loans |
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Daily Rate
Spread
Tranche A
Loans |
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Fixed Rate
Spread
Revolving
Loans |
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Daily Rate
Spread
Revolving
Loans |
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Facility Fee
Revolving
Credit
Commitments |
|
| Category 1 |
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Greater than 2.50 to 1.00 |
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1.85 |
% |
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0.85 |
% |
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1.50 |
% |
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0.50 |
% |
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0.35 |
% |
| Category 2 |
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Greater than 2.00 to 1.00 but less than or equal to 2.50 to 1.00 |
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1.75 |
% |
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0.75 |
% |
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1.40 |
% |
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0.40 |
% |
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0.35 |
% |
| Category 3 |
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Greater than 1.50 to 1.00 but less than or equal to 2.00 to 1.00 |
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1.625 |
% |
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0.625 |
% |
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1.325 |
% |
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0.325 |
% |
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0.30 |
% |
| Category 4 |
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Greater than 1.00 to 1.00 but less than or equal to 1.50 to 1.00 |
|
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1.50 |
% |
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0.50 |
% |
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1.25 |
% |
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0.25 |
% |
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0.25 |
% |
| Category 5 |
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Equal to or less than 1.00 to 1.00 |
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1.375 |
% |
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0.375 |
% |
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1.175 |
% |
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0.175 |
% |
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0.20 |
% |
Ratings-based Grid:
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Credit Rating |
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Fixed Rate
Spread
Tranche A |
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Daily
Rate
Spread
Tranche |
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Fixed Rate
Spread
Revolving |
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Daily Rate
Spread
Revolving |
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Facility Fee
Revolving
Credit |
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| Category |
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S&P |
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Fitch |
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Moody’s |
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Loans |
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A Loans |
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Loans |
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Loans |
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Commitments |
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| Category 1 |
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³ A- |
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³ A- |
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³ A3 |
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0.95 |
% |
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0 |
% |
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|
.85 |
% |
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0 |
% |
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0.10 |
% |
| Category 2 |
|
BBB+ |
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BBB+ |
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Baa1 |
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1.05 |
% |
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0.05 |
% |
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.90 |
% |
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0 |
% |
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0.15 |
% |
| Category 3 |
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BBB |
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BBB |
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Baa2 |
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1.15 |
% |
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0.15 |
% |
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.95 |
% |
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0 |
% |
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0.20 |
% |
| Category 4 |
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BBB- |
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BBB- |
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Baa3 |
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1.25 |
% |
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0.25 |
% |
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1.00 |
% |
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0 |
% |
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0.25 |
% |
Prepayments
The Credit Agreement requires the U.S. Borrower to offer to prepay outstanding term loans, subject to certain exceptions, as follows:
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100% of the net cash proceeds of certain asset sales by the U.S. Borrower or any other subsidiary of the Company; |
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100% of the net cash proceeds from the issuance of debt by the Company or any of its subsidiaries, other than proceeds from debt permitted under the Credit Agreement; and |
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50% (which percentage shall be reduced to 25% or 0% subject to the Company and the U.S. Borrower attaining certain leverage tests) of the Company’s annual excess cash flow. |
The foregoing mandatory prepayments are applied pro rata across the remaining amortization payments under the Credit Agreement. The Credit
Agreement does not require the borrowers to prepay outstanding loans under the revolving credit facilities, except on any date on which the sum of all outstanding revolving credit loans, all outstanding swingline loans and the total of all
lenders’ letter of credit exposure exceeds 105% of the total revolving credit commitments under the Credit Agreement, in which case the borrowers must pay 100% of such excess amount.
The borrowers may voluntarily repay outstanding loans under the term loan facility and the revolving credit facility at any time. All
prepayments of term and revolving loans shall be subject to certain customary “breakage” costs with respect to Fixed Rate loans. In addition, the borrowers may elect to permanently terminate or reduce all or a portion of the revolving
credit commitments and the letter of credit sub-limit under the revolving credit facility at any time without premium or penalty.
Amortization and Maturity
The U.S. Borrower is required to repay installments on the tranche A term loans, (a) until March 31, 2016 in quarterly principal
amounts of 0.625% of the aggregate principal amount outstanding, (b) from June 30, 2016 until March 31, 2018, in quarterly principal amounts of 1.25% of the aggregate principal amount outstanding, (c) from June 30, 2018
until March 31, 2019, in quarterly principal amounts of 1.875% and (d) from June 30, 2019 until December 31, 2019, in quarterly principal amounts of 3.333% of the aggregate principal amount outstanding, with the balance payable
on January 9, 2020.
The entire principal amount of revolving credit loans and swingline loans outstanding (if any) under the
revolving credit facility are due and payable in full at maturity on January 9, 2020, on which day the revolving credit and swingline commitments thereunder will terminate.
Guarantee and Security
All obligations under the Credit Agreement are unconditionally guaranteed by the Company and each of its direct and indirect U.S. material
subsidiaries. The obligations of the foreign subsidiaries under the Credit Agreement are unconditionally guaranteed by the U.K. Borrower, the Canadian Borrower, CBRE Global Holdings S.A.R.L., Relam Amsterdam Holdings B.V. and CBRE Limited
Partnership.
All obligations under the Credit Agreement, and the guarantees of those obligations, are secured by, subject to certain
exceptions, a first-priority pledge of 100% of the capital stock of the U.S. Borrower and certain of its subsidiaries (but not more than 65% of the capital stock of any material first-tier non-U.S. subsidiary).
Covenants and Events of Default
The Credit Agreement includes financial covenants requiring the Company and the Borrowers to maintain a maximum leverage ratio and minimum
interest coverage ratio. In addition, the Credit Agreement also contains other customary affirmative and negative covenants and events of default.
The descriptions of the Credit Agreement and guarantees above are summaries and are qualified in their entirety by the Credit Agreement and
Amended and Restated Guarantee and Pledge Agreement, filed as Exhibit 10.1 and Exhibit 10.2, respectively, to this Current Report on Form 8-K, which are incorporated herein by reference.
| Item 9.01 |
Financial Statements and Exhibits |
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| Exhibit
No. |
|
Description |
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| 10.1 |
|
Second Amended and Restated Credit Agreement, dated as of January 9, 2015, among CBRE Group, Inc., CBRE Services, Inc., certain subsidiaries of CBRE Services, Inc., the lenders party thereto and Credit Suisse AG, as administrative
agent and collateral agent. |
|
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| 10.2 |
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Amended and Restated Guarantee and Pledge Agreement, dated as of January 9, 2015, among CBRE Group, Inc., CBRE Services, Inc., the subsidiary guarantors party thereto and Credit Suisse AG, as collateral agent. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
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| Date: January 13, 2015 |
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CBRE GROUP, INC. |
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By: |
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/s/ JAMES R. GROCH |
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James R. Groch |
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Chief Financial Officer |
Exhibit 10.1
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
dated as of January 9, 2015,
among
CBRE SERVICES, INC.,
CBRE GROUP, INC.,
CERTAIN
SUBSIDIARIES OF
CBRE SERVICES, INC.,
THE LENDERS NAMED HEREIN
and
CREDIT SUISSE AG,
as
Administrative Agent and Collateral Agent
MERRILL LYNCH,
PIERCE, FENNER & SMITH INCORPORATED,
J.P. MORGAN SECURITIES LLC,
CREDIT SUISSE SECURITIES (USA) LLC,
THE BANK OF NOVA SCOTIA,
HSBC BANK
USA, N.A.,
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
THE ROYAL BANK OF SCOTLAND PLC
and
WELLS FARGO SECURITIES,
as
Joint Lead Arrangers and Joint Bookrunners
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
and
J.P. MORGAN SECURITIES LLC,
as Co-Syndication Agents
THE
BANK OF NOVA SCOTIA,
HSBC BANK USA, N.A.,
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
THE ROYAL BANK OF SCOTLAND PLC
and
WELLS FARGO SECURITIES,
as
Co-Documentation Agents
[CS&M Ref. No. 7865-145]
Table of Contents
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Page |
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| ARTICLE I |
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| Definitions |
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| SECTION 1.01. Defined Terms |
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6 |
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| SECTION 1.02. Terms Generally |
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47 |
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| SECTION 1.03. Classification of Loans and Borrowings |
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47 |
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| SECTION 1.04. Pro Forma Calculations |
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47 |
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| SECTION 1.05. Exchange Rate Calculations |
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48 |
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| ARTICLE II |
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| The Credits |
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| SECTION 2.01. Commitments |
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48 |
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| SECTION 2.02. Loans |
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49 |
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| SECTION 2.03. Borrowing Procedure |
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50 |
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| SECTION 2.04. Evidence of Debt; Repayment of Loans |
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51 |
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| SECTION 2.05. Fees |
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52 |
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| SECTION 2.06. Interest on Loans |
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53 |
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| SECTION 2.07. Default Interest |
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54 |
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| SECTION 2.08. Alternate Rate of Interest |
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55 |
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| SECTION 2.09. Termination and Reduction of Commitments |
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55 |
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| SECTION 2.10. Conversion and Continuation of Borrowings |
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56 |
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| SECTION 2.11. Repayment of Term Borrowings |
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57 |
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| SECTION 2.12. Prepayment |
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59 |
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| SECTION 2.13. Mandatory Prepayments |
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60 |
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| SECTION 2.14. Reserve Requirements; Change in Circumstances |
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61 |
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| SECTION 2.15. Change in Legality |
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62 |
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| SECTION 2.16. Indemnity |
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63 |
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| SECTION 2.17. Pro Rata Treatment |
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63 |
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| SECTION 2.18. Sharing of Setoffs |
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64 |
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| SECTION 2.19. Payments |
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65 |
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| SECTION 2.20. Taxes |
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65 |
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| SECTION 2.21. Assignment of Commitments Under Certain Circumstances; Duty to Mitigate |
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69 |
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| SECTION 2.22. N.Z. Swingline Loans |
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70 |
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| SECTION 2.23. Letters of Credit |
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72 |
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| SECTION 2.24. Bankers’ Acceptances |
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76 |
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| SECTION 2.25. Incremental Revolving Credit Commitments |
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78 |
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| SECTION 2.26. Incremental Term Loan Commitments |
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80 |
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| SECTION 2.27. Competitive Bid Procedure |
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81 |
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i
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| ARTICLE III |
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| Representations and Warranties
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| SECTION 3.01. Organization; Powers |
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83 |
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| SECTION 3.02. Authorization |
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83 |
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| SECTION 3.03. Enforceability |
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84 |
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| SECTION 3.04. Governmental Approvals |
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84 |
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| SECTION 3.05. Financial Statements |
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84 |
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| SECTION 3.06. No Material Adverse Change |
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84 |
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| SECTION 3.07. Title to Properties |
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84 |
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| SECTION 3.08. Subsidiaries |
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84 |
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| SECTION 3.09. Litigation; Compliance with Laws |
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85 |
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| SECTION 3.10. Agreements |
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85 |
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| SECTION 3.11. Federal Reserve Regulations |
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85 |
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| SECTION 3.12. Investment Company Act |
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85 |
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| SECTION 3.13. Patriot Act; FCPA; OFAC |
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85 |
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| SECTION 3.14. Use of Proceeds |
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86 |
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| SECTION 3.15. Tax Returns |
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86 |
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| SECTION 3.16. No Material Misstatements |
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86 |
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| SECTION 3.17. Employee Benefit Plans |
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86 |
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| SECTION 3.18. Insurance |
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87 |
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| SECTION 3.19. Security Documents |
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87 |
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| ARTICLE IV |
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| Conditions of Lending
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| SECTION 4.01. All Credit Events |
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87 |
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| SECTION 4.02. Second Restatement Date |
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88 |
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| ARTICLE V |
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| Affirmative Covenants
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| SECTION 5.01. Existence; Businesses and Properties |
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90 |
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| SECTION 5.02. Insurance |
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90 |
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| SECTION 5.03. Obligations and Taxes |
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90 |
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| SECTION 5.04. Financial Statements, Reports, etc |
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91 |
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| SECTION 5.05. Litigation and Other Notices |
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92 |
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| SECTION 5.06. Information Regarding Collateral |
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92 |
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| SECTION 5.07. Maintaining Records; Access to Properties and Inspections |
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92 |
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| SECTION 5.08. Use of Proceeds |
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93 |
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| SECTION 5.09. Further Assurances |
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93 |
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ii
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| ARTICLE VI |
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| Negative Covenants |
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| SECTION 6.01. Indebtedness |
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94 |
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| SECTION 6.02. Liens |
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94 |
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| SECTION 6.03. Investments, Loans and Advances |
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96 |
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| SECTION 6.04. Mergers, Consolidations, Sales of Assets and Acquisitions |
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99 |
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| SECTION 6.05. Restricted Payments; Restrictive Agreements |
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100 |
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| SECTION 6.06. Transactions with Affiliates |
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101 |
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| SECTION 6.07. Business of Holdings, U.S. Borrower and Subsidiaries |
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102 |
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| SECTION 6.08. Interest Coverage Ratio |
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102 |
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| SECTION 6.09. Maximum Leverage Ratio |
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102 |
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| SECTION 6.10. Fiscal Year |
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102 |
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| ARTICLE VII |
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| Events of Default |
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| ARTICLE VIII |
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| The Administrative Agent and the Collateral Agent |
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| ARTICLE IX |
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| Miscellaneous |
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| SECTION 9.01. Notices |
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|
107 |
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| SECTION 9.02. Survival of Agreement |
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110 |
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| SECTION 9.03. Binding Effect |
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110 |
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| SECTION 9.04. Successors and Assigns |
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110 |
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| SECTION 9.05. Expenses; Indemnity |
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114 |
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| SECTION 9.06. Right of Setoff |
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115 |
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| SECTION 9.07. Applicable Law |
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115 |
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| SECTION 9.08. Waivers; Amendment |
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116 |
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| SECTION 9.09. Interest Rate Limitation |
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116 |
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| SECTION 9.10. Entire Agreement |
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|
117 |
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| SECTION 9.11. WAIVER OF JURY TRIAL |
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|
117 |
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| SECTION 9.12. Severability |
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117 |
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| SECTION 9.13. Counterparts |
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117 |
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| SECTION 9.14. Headings |
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117 |
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| SECTION 9.15. Jurisdiction; Consent to Service of Process |
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118 |
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| SECTION 9.16. Confidentiality |
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118 |
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| SECTION 9.17. Conversion of Currencies |
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119 |
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| SECTION 9.18. Additional Borrowers |
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119 |
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| SECTION 9.19. Release of Collateral |
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119 |
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| SECTION 9.20. Loan Modification Offers |
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121 |
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iii
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| SECTION 9.21. Effect of Certain Inaccuracies |
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121 |
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| SECTION 9.22. USA PATRIOT Act Notice |
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122 |
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| SECTION 9.23. No Advisory or Fiduciary Responsibility |
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122 |
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| SECTION 9.24. Effect of Restatement |
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123 |
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| SECTION 9.25. Release of Guarantees |
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123 |
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| Exhibits |
|
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| Exhibit A |
|
Form of Administrative Questionnaire |
| Exhibit B |
|
Form of Assignment and Acceptance |
| Exhibit C |
|
Form of Borrower Repurchase Assignment and Acceptance |
| Exhibit D |
|
Auction Procedures |
| Exhibit E |
|
Form of Borrowing Request |
| Exhibit F-1 |
|
Form of Borrowing Subsidiary Agreement |
| Exhibit F-2 |
|
Form of Borrowing Subsidiary Termination |
| Exhibit G |
|
Guarantee and Pledge Agreement |
| Exhibit H-1 |
|
Form of First Lien Intercreditor Agreement |
| Exhibit H-2 |
|
Form of Second Lien Intercreditor Agreement |
| Exhibit I-1 |
|
Form of U.S. Tax Compliance Certificate |
| Exhibit I-2 |
|
Form of U.S. Tax Compliance Certificate |
| Exhibit I-3 |
|
Form of U.S. Tax Compliance Certificate |
| Exhibit I-4 |
|
Form of U.S. Tax Compliance Certificate |
| Exhibit J-1 |
|
Form of Competitive Bid Request |
| Exhibit J-2 |
|
Form of Notice of Competitive Bid Request |
| Exhibit J-3 |
|
Form of Competitive Bid |
| Exhibit J-4 |
|
Form of Competitive Bid Accept/Reject Letter |
|
|
|
| Schedules |
|
|
|
|
| Schedule 1.01(a) |
|
Subsidiary Guarantors |
| Schedule 1.01(c) |
|
Approved Take Out Parties |
| Schedule 1.01(d) |
|
Existing Letters of Credit |
| Schedule 2.01 |
|
Lenders |
| Schedule 2.01(a) |
|
Issuing Bank Commitments |
| Schedule 3.08 |
|
Investment Subsidiaries |
| Schedule 3.09 |
|
Litigation; Compliance with Laws |
| Schedule 3.19(a) |
|
UCC Filing Offices |
| Schedule 4.02(a) |
|
Foreign Counsel |
| Schedule 6.01(a) |
|
Indebtedness |
| Schedule 6.02(a) |
|
Liens |
| Schedule 6.05(c) |
|
Certain Existing Restrictions |
iv
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of January 9, 2015
(this “Agreement”), among CBRE SERVICES, INC., a Delaware corporation (the “U.S. Borrower”), CBRE LIMITED, a limited company organized under the laws of England and Wales (with company no:
3536032) (the “U.K. Borrower”), CBRE LIMITED, a corporation organized under the laws of the province of New Brunswick (the “Canadian Borrower”), CBRE PTY LIMITED, a company organized under the
laws of Australia and registered in New South Wales (the “Australian Borrower”), CBRE LIMITED, a company organized under the laws of New Zealand (the “New Zealand Borrower”), CBRE GROUP,
INC., a Delaware corporation (“Holdings”), the Lenders (as defined in Article I), and CREDIT SUISSE AG, as administrative agent (in such capacity, the “Administrative Agent”) and as collateral
agent (in such capacity, the “Collateral Agent”) for the Lenders.
The Borrowers, Holdings, certain
Lenders and Credit Suisse AG, as administrative agent and collateral agent, are party to that certain Amended and Restated Credit Agreement dated as of March 28, 2013 (the “Existing Credit Agreement”). Upon the
satisfaction of the conditions set forth in Section 4.02, the Existing Credit Agreement (including all exhibits and schedules thereto) shall be amended and restated in its entirety and replaced by this Agreement.
The Borrowers have requested the Lenders to extend credit in the form of (a) Tranche A Loans (such term and each other capitalized term
used but not defined in this preliminary statement having the meaning given it in Article I) to the U.S. Borrower on the Second Restatement Date in an aggregate principal amount of $500,000,000 and (b) Revolving Loans in the form of
(i) Domestic Revolving Loans to the U.S. Borrower at any time and from time to time prior to the Revolving Credit Maturity Date, in an aggregate principal amount at any time outstanding not in excess of $2,100,000,000, (ii) Multicurrency
Revolving Loans to the U.S. Borrower, the Canadian Borrower, the Australian Borrower and the New Zealand Borrower at any time and from time to time prior to the Revolving Credit Maturity Date, in an aggregate principal amount at any time outstanding
not in excess of $200,000,000 and (iii) U.K. Revolving Loans to the U.S. Borrower and the U.K. Borrower at any time and from time to time prior to the Revolving Credit Maturity Date, in an aggregate principal amount at any time outstanding not
in excess of $300,000,000. The Borrowers may request any N.Z. Swingline Lender to extend credit in the form of N.Z. Swingline Loans to the New Zealand Borrower, in an aggregate principal amount at any time outstanding not in excess of $50,000,000
under the Multicurrency Revolving Credit Commitments. The Borrowers have requested the Issuing Banks to issue Letters of Credit, in an aggregate face amount at any time outstanding not in excess of $200,000,000 under the Revolving Credit
Commitments, to support payment obligations incurred in the ordinary course of business by the Borrowers and their Subsidiaries. The proceeds of the Tranche A Loans will be used by the U.S. Borrower on the Second Restatement Date to finance the
Existing Tranche A Loan Refinancing, the Existing Tranche B Loan Repayment and to pay fees and expenses in connection therewith. The proceeds of the Revolving Loans and N.Z. Swingline Loans, and the Letters of Credit, are to be used on the
Second Restatement Date to finance the Existing Tranche B Loan Repayment and thereafter from time to time for working capital and other general corporate purposes of the Borrowers and their Subsidiaries.
The Lenders are willing to extend such credit to the Borrowers, and the Issuing Banks are willing to issue Letters of Credit for the account
of the Borrowers, in each case on the terms and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms shall have the meanings specified below:
“ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans
comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.
“Acceptance Fee” shall mean a fee payable in Canadian Dollars by the Canadian Borrower to the
Administrative Agent for the account of a Canadian Lender with respect to the acceptance of a B/A or the making of a B/A Equivalent Loan on the date of such acceptance or loan, calculated on the face amount of the B/A or the B/A Equivalent Loan at
the rate per annum applicable on such date as set forth in the row labeled “Fixed Rate Spread” in the definition of the term “Applicable Percentage” on the basis of the number of days in the applicable Contract Period (including
the date of acceptance and excluding the date of maturity) and a year of 365 days (it being agreed that the rate per annum applicable to any B/A Equivalent Loan is equivalent to the rate per annum otherwise applicable to the Bankers’
Acceptance which has been replaced by the making of such B/A Equivalent Loan pursuant to Section 2.24).
“Accepting Lenders” shall have the meaning assigned to such term in Section 9.20(a).
“Additional Secured Indebtedness” shall have the meaning assigned to such term in Section 6.02(q).
“Adjusted Consolidated Net Income” shall mean, for any period, Consolidated Net Income for such period plus, without
duplication and to the extent deducted in determining Consolidated Net Income for such period, the sum of (a) any non-recurring fees, expenses or charges in connection with the consummation of the Transactions and (b) any non-recurring
fees, expenses or charges related to any Equity Issuance, investment permitted under Section 6.03, Permitted Acquisition or incurrence of Indebtedness.
“Adjusted LIBO Rate” shall mean, with respect to any Eurocurrency Borrowing for any Interest Period, an interest rate
per annum equal to the product of (a) the LIBO Rate in effect for such Interest Period and (b) Statutory Reserves.
“Administrative Agent Fees” shall have the meaning assigned to such term in Section 2.05(c).
“Administrative Questionnaire” shall mean an Administrative Questionnaire substantially in the form of Exhibit A,
or such other form as may be supplied from time to time by the Administrative Agent.
“Advance Agent” shall mean
Credit Suisse AG, acting through such Affiliates or branches as it may designate, as competitive advance facility agent.
“Affected Class” shall have the meaning assigned to such term in Section 9.20(a).
“Affiliate” shall mean, when used with respect to a specified person, another person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under common Control with the person specified; provided, however, that, for purposes of Section 6.06, the term
6
“Affiliate” shall also include any person that directly or indirectly owns 10% or more of any class of Equity Interests of the person specified or that is an officer or director of the
person specified. Notwithstanding the foregoing, in relation to The Royal Bank of Scotland plc, the term “Affiliate” shall not include (i) the UK government or any member or instrumentality thereof, including Her Majesty’s
Treasury and UK Financial Investments Limited (or any directors, officers, employees or entities thereof) or (ii) any persons or entities controlled by or under common control with the UK government or any member or instrumentality thereof
(including Her Majesty’s Treasury and UK Financial Investments Limited) and which are not part of The Royal Bank of Scotland Group plc and its subsidiaries or subsidiary undertakings.
“Aggregate Competitive Loan Exposure” shall mean the aggregate amount of the Lenders’ Competitive Loan Exposures.
“Aggregate Domestic Revolving Credit Exposure” shall mean the aggregate amount of the Lenders’
Domestic Revolving Credit Exposures.
“Aggregate Multicurrency Revolving Credit
Exposure” shall mean the aggregate amount of the Lenders’ Multicurrency Revolving Credit Exposures.
“Aggregate U.K. Revolving Credit Exposure” shall mean the aggregate amount of the Lenders’ U.K.
Revolving Credit Exposures.
“Agreement Currency” shall have the meaning assigned to such term in
Section 9.17.
“Alternate 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 (or, in the case of a Dollar Loan to the Canadian Borrower, the U.S. Base Rate), (b) the Federal Funds Effective Rate in effect on such day
plus 1⁄2 of 1% and (c) the sum of (i) the Adjusted LIBO Rate in effect on such day for a one-month Interest Period (or if such day is not a
Business Day, the immediately preceding Business Day) and (ii) 1.00%; provided that, for the avoidance of doubt, the Adjusted LIBO Rate for any day shall be based on the rate determined on such day at
approximately 11 a.m. (London time) by reference to the ICE Benchmark Administration Interest Settlement Rates for deposits in dollars (as set forth by any service selected by the Administrative Agent that has been nominated by the ICE
Benchmark Administration Limited (or any person which takes over the administration of that rate) as an authorized information vendor for the purpose of displaying such rates) for a period equal to one month. If the Administrative Agent shall have
determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate or the Adjusted LIBO Rate for any reason, including the inability or failure of the Administrative Agent to
obtain sufficient quotations in accordance with the terms of the definition of Federal Funds Effective Rate, the Alternate Base Rate shall be determined without regard to clause (b) or (c), as applicable, of the preceding sentence until the
circumstances giving rise to such inability no longer exist. Any change in the Alternate Base Rate due to a change in the Prime Rate, the U.S. Base Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be effective on the effective
date of such change in the Prime Rate, the U.S. Base Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate, respectively.
“Alternative Currency” shall mean (a) with respect to U.K. Revolving Loans and U.K. Letters of
Credit, Pounds and Euro, (b) with respect to Multicurrency Loans and Multicurrency Letters of Credit, Australian Dollars, Canadian Dollars and New Zealand Dollars and (c) with respect to Incremental Revolving Loans and Incremental Term
Loans, Pounds, Euro or any other currency reasonably acceptable to the Administrative Agent and the Incremental Revolving Credit Lenders or Incremental Term Lenders.
7
“Alternative Currency Equivalent” shall mean, on any date
of determination, with respect to any amount denominated in dollars in relation to any specified Alternative Currency, the equivalent in such specified Alternative Currency of such amount in dollars, determined by the Administrative Agent pursuant
to Section 1.05 using the applicable Exchange Rate then in effect.
“ANZ Sublimit” shall mean
$100,000,000.
“Applicable Percentage” shall mean, for any day, subject to Section 2.07,
(a) with respect to the Revolving Credit Commitments, Revolving Loans and the Tranche A Loans, at any time,
(i) if the U.S. Borrower does not have Investment Grade Status at such time, the applicable percentage set forth in the
“Leverage-based Grid” below under the caption “Facility Fee Revolving Credit Commitments”, “Fixed Rate Spread Tranche A Loans”, “Daily Rate Spread Tranche A Loans”, “Fixed Rate Spread Revolving
Loans” or “Daily Rate Spread Revolving Loans”, as the case may be, based upon the Leverage Ratio as of the relevant date of determination, and (ii) if the U.S. Borrower has Investment Grade Status at such time, the applicable
percentage set forth in the “Ratings-based Grid” below under the caption “Facility Fee Revolving Credit Commitments”, “Fixed Rate Spread Tranche A Loans”, “Daily Rate Spread Tranche A Loans”,
“Fixed Rate Spread Revolving Loans” or “Daily Rate Spread Revolving Loans”, as the case may be, based upon the Credit Rating as of the relevant date of determination. Each change in the Applicable Percentage resulting from a
change in the Leverage Ratio shall be effective with respect to all applicable Commitments, Loans and Letters of Credit outstanding on and after the date of delivery to the Administrative Agent of the financial statements and certificates required
by Section 5.04(a) or (b) and Section 5.04(c), respectively, indicating such change until the date immediately preceding the next date of delivery of such financial statements and certificates indicating another such change.
For purposes of the foregoing, (x) if the Credit Ratings established or deemed to have been established by Moody’s,
Fitch and S&P shall fall within different Categories, the Applicable Percentage shall be based on the Category in which the highest rating falls unless the two highest ratings differ by two or more Categories, in which case the Applicable
Percentage shall be based on the Category one level below the Category in which the highest rating falls and (y) if the Credit Ratings established or deemed to have been established by S&P, Fitch or Moody’s shall be changed (other than
as a result of a change in the rating system of S&P, Fitch or Moody’s), such change shall be effective on the earlier of the date on which such change is publicly announced and the date on which Holdings or any of its Subsidiaries receives
written notice of such change. Each change in the Applicable Percentage shall apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change.
If the rating system of S&P, Fitch or Moody’s shall change, or if any rating agency shall cease to be in the business
of providing issuer or long-term debt ratings, as the case may be, the U.S. Borrower and the Administrative Agent shall negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from such
rating agency and, pending the effectiveness of any such amendment, the Applicable Percentage shall be determined by reference to the rating of the other rating agencies (or, if the circumstances referred to in this sentence shall affect two or more
such rating agencies, the ratings most recently in effect prior to such changes or cessations).
8
Notwithstanding the foregoing, until Holdings shall have delivered the financial
statements and certificate required by Section 5.04(b) and Section 5.04(c), respectively, for the period ending March 31, 2015, the Leverage Ratio shall be deemed to be in Category 4 for purposes of determining the Applicable
Percentage and Investment Grade Status shall be deemed not to exist. In addition, at any time (a) during which Holdings has failed to deliver the financial statements and certificates required by Section 5.04(a) or (b) and
Section 5.04(c), respectively, the Leverage Ratio shall be deemed to be in the next highest Category for purposes of determining the Applicable Percentages and (b) after the occurrence and during the continuance of an Event of Default, the
Leverage Ratio shall be deemed to be in Category 1 for purposes of determining the Applicable Percentages and Investment Grade Status shall be deemed not to exist.
Leverage-based Grid:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Category |
|
Leverage Ratio |
|
Fixed Rate
Spread
Tranche A
Loans |
|
|
Daily Rate
Spread
Tranche A
Loans |
|
|
Fixed Rate
Spread
Revolving
Loans |
|
|
Daily Rate
Spread
Revolving
Loans |
|
|
Facility Fee
Revolving
Credit
Commitments |
|
| Category 1 |
|
Greater than 2.50 to 1.00 |
|
|
1.85 |
% |
|
|
0.85 |
% |
|
|
1.50 |
% |
|
|
0.50 |
% |
|
|
0.35 |
% |
| Category 2 |
|
Greater than 2.00 to 1.00 but less than or equal to 2.50 to 1.00 |
|
|
1.75 |
% |
|
|
0.75 |
% |
|
|
1.40 |
% |
|
|
0.40 |
% |
|
|
0.35 |
% |
| Category 3 |
|
Greater than 1.50 to 1.00 but less than or equal to 2.00 to 1.00 |
|
|
1.625 |
% |
|
|
0.625 |
% |
|
|
1.325 |
% |
|
|
0.325 |
% |
|
|
0.30 |
% |
| Category 4 |
|
Greater than 1.00 to 1.00 but less than or equal to 1.50 to 1.00 |
|
|
1.50 |
% |
|
|
0.50 |
% |
|
|
1.25 |
% |
|
|
0.25 |
% |
|
|
0.25 |
% |
| Category 5 |
|
Equal to or less than 1.00 to 1.00 |
|
|
1.375 |
% |
|
|
0.375 |
% |
|
|
1.175 |
% |
|
|
0.175 |
% |
|
|
0.20 |
% |
9
Ratings-based Grid:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Category |
|
Credit Rating |
|
|
Fixed Rate
Spread
Tranche A |
|
|
Daily Rate
Spread
Tranche |
|
|
Fixed Rate
Spread
Revolving |
|
|
Daily Rate
Spread
Revolving |
|
|
Facility Fee
Revolving
Credit |
|
| |
S&P |
|
|
Fitch |
|
|
Moody’s |
|
|
Loans |
|
|
A Loans |
|
|
Loans |
|
|
Loans |
|
|
Commitments |
|
| Category 1 |
|
|
> A- |
|
|
|
> A- |
|
|
|
> A3 |
|
|
|
0.95 |
% |
|
|
0 |
% |
|
|
.85 |
% |
|
|
0 |
% |
|
|
0.10 |
% |
| Category 2 |
|
|
BBB+ |
|
|
|
BBB+ |
|
|
|
Baa1 |
|
|
|
1.05 |
% |
|
|
0.05 |
% |
|
|
.90 |
% |
|
|
0 |
% |
|
|
0.15 |
% |
| Category 3 |
|
|
BBB |
|
|
|
BBB |
|
|
|
Baa2 |
|
|
|
1.15 |
% |
|
|
0.15 |
% |
|
|
.95 |
% |
|
|
0 |
% |
|
|
0.20 |
% |
| Category 4 |
|
|
BBB- |
|
|
|
BBB- |
|
|
|
Baa3 |
|
|
|
1.25 |
% |
|
|
0.25 |
% |
|
|
1.00 |
% |
|
|
0 |
% |
|
|
0.25 |
% |
(c) [reserved]
(d) with respect to any Incremental Term Loan or Incremental Revolving Loan, the “Applicable Percentage” set
forth in the Incremental Assumption Agreement relating thereto, and
(e) with respect to any Other Term Loan or Other
Revolving Loan, the “Applicable Percentage” set forth in the Loan Modification Agreement relating thereto.
“Approved Credit Support” shall mean a reimbursement, indemnity or similar obligation issued by a person
(the “Support Provider”) pursuant to which the Support Provider agrees to reimburse, indemnify or hold harmless the U.S. Borrower or any Subsidiary for any Indebtedness, liability, or other obligation of the U.S. Borrower or
such Subsidiary, but only to the extent (a) the Support Provider satisfies the criteria set forth in clause (a), (b), (c) or (d) of the definition of the term “Approved Take Out Party” or (b) the obligations of the
Support Provider are secured by an irrevocable third-party letter of credit from a financial institution with a senior unsecured non-credit-enhanced long-term debt rating of A- or higher from S&P and A3 or higher from Moody’s.
“Approved Take Out Commitment” shall mean a Take Out Commitment (a) no less than 90%
of which is issued by an Approved Take Out Party (with any remaining percentage being provided by TCC or any of its Affiliates, in an aggregate amount for all such Take Out Commitments provided by TCC and its Affiliates not to exceed $10,000,000)
and (b) in which the funding obligation of the issuer of such Take Out Commitment is not subject to any material condition other than (i) completion of construction in accordance with all requirements of applicable law and agreed plans and
specifications and by a date certain, (ii) issuance of a certificate of occupancy and (iii) in the event the underlying transaction involves a Qualifying Lease, the commencement of payment of rent thereunder by the tenant
thereunder. Any Approved Take Out Commitment shall cease to be an Approved Take Out Commitment (x) if the issuer of such Take Out Commitment (other than TCC or any of its Affiliates) at any time no longer meets the definition of
“Approved Take Out Party” (provided that the failure of one (but not more than one) such provider of a Take Out Commitment to satisfy the definition of “Approved Take Out Party” shall not result
in the disqualification of such Take Out Commitment pursuant to this clause (x) so long as, at the time such Take Out Commitment was initially issued, such provider satisfied the definition of Approved Take Out Party and only failed to meet
such definition due to its inability to meet the requirements
10
outlined in (a) or (b) in the definition of “Approved Take Out Party” after the issuance of such Take Out Commitment), (y) to the extent the issuer of such Approved Take
Out Commitment fails or refuses to fund under such Approved Take Out Commitment or notifies Holdings or any Subsidiary of its intention to not fund under such Approved Take Out Commitment or (z) at such time as Holdings or any Borrower acquires
actual knowledge that the Approved Take Out Commitment will not fund.
“Approved Take Out Party”
shall mean a person that issues a Take Out Commitment and that satisfies any of the following criteria: (a) the senior unsecured non-credit-enhanced long-term debt of such person is rated BBB or higher by S&P or Baa2 or higher by
Moody’s, (b) such person is an endowment or pension fund (or such Take Out Commitment is guaranteed by an endowment or pension fund) in compliance with ERISA and having net liquid assets and a consolidated net worth (including equity
commitments) determined in accordance with GAAP (as reflected in its most recent annual audited financial statements issued within 12 months of the date of determination) of not less than $500,000,000, (c) such person is set forth on
Schedule 1.01(c) or (d) such person is otherwise approved by the Administrative Agent after receipt of all information necessary to make such determination.
“Asset Sale” shall mean the sale, transfer or other disposition (by way of merger, casualty,
condemnation or otherwise) by the U.S. Borrower or any of the Subsidiaries to any person other than the U.S. Borrower, any Subsidiary Guarantor or, after the Guarantee Release Date, any other Subsidiary of any assets of the
U.S. Borrower or any of the Subsidiaries (other than (a) inventory, damaged, obsolete or worn out assets and Permitted Investments, in each case disposed of in the ordinary course of business, (b) dispositions between or among
Non-Guarantor Subsidiaries, (c) the sale by Melody of assets purchased and/or funded pursuant to a Melody Repo Arrangement, a Melody Mortgage Warehousing Facility, the Melody Loan Arbitrage Facility or Melody Lending Program Securities,
(d) the sale by the U.S. Borrower or CBRE, Inc. of assets purchased and/or funded pursuant to the CBRE Loan Arbitrage Facility, (e) the sale by Melody of servicing rights in respect of mortgage portfolios in the ordinary course of its
business, (f) the sale of interests or investments in real estate or related assets by an Investment Subsidiary, (g) transfers of Equity Interests contemplated by the definition of the term “Foreign Restructuring Transaction” in
connection with the consummation thereof and (h) the issuance or transfer of CBRE Clarion Units to directors, employees or other service providers of CBRE Clarion or its subsidiaries pursuant to any Management Subscription Agreement or under
any employee stock option or stock purchase plan or employee benefit plan in existence from time to time); provided that any asset sale or series of related asset sales having a value (net of related assumed
liabilities) not in excess of $25,000,000 shall be deemed not to be an “Asset Sale” for purposes of this Agreement.
“Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender and an
assignee, and accepted by the Administrative Agent, substantially in the form of Exhibit B or such other form as shall be approved by the Administrative Agent.
“Auction” shall mean an auction pursuant to which a Borrower offers to purchase Term Loans pursuant to
the Auction Procedures.
“Auction Procedures” shall mean the procedures set forth in Exhibit D.
“Australian Dollars” or “A$” shall mean the lawful currency of Australia.
“Available Cash” shall mean, on any date, the amount of cash and Permitted Investments held by the
U.S. Borrower and the Subsidiaries on such date, less the amount thereof that is (a) reflected as “Cash Surrender Value for Insurance Policy for Deferred Compensation Plan” and “Prepaid Pension Costs” on the most recent
balance sheet of the U.S. Borrower delivered pursuant to this Agreement or (b) subject to restrictions, directly or indirectly, on its use by the U.S. Borrower or any Subsidiary, as the case may be.
11
“Available Investment Amount” shall mean an amount equal to
the excess of (a) 20% of cumulative Adjusted Consolidated Net Income for each full fiscal quarter of the U.S. Borrower commencing with the fiscal quarter beginning January 1, 2011 (taken as a single accounting period) over
(b) the aggregate amount utilized pursuant to Section 6.03(y)(ii) to make investments, loans and advances (net of all returns on capital or principal thereon).
“Available Restricted Payment Amount” shall mean, at any time, an amount equal to the excess of
(a) 50% of cumulative Adjusted Consolidated Net Income for each full fiscal quarter of the U.S. Borrower commencing with the fiscal quarter beginning January 1, 2011 (taken as a single accounting period) and ended prior to such time
over (b) the aggregate amount utilized pursuant to Section 6.05(b) at or prior to such time to make Restricted Payments.
“B/A Borrowing” shall mean a Borrowing comprised of one or more Bankers’ Acceptances or, as
applicable, B/A Equivalent Loans. For greater certainty, all provisions of this Agreement that are applicable to Bankers’ Acceptances are also applicable, mutatis mutandis, to B/A Equivalent Loans.
“B/A Equivalent Loan” shall have the meaning assigned to such term in Section 2.24(h).
“Bank Bill Rate” shall mean, in relation to an Interest Period for any Loan denominated in Australian
Dollars or New Zealand Dollars, the rate determined by the Administrative Agent (or, in the case of any N.Z. Swingline Loan, the N.Z. Swingline Lender) to be the average bid rate displayed at or about 10:30 a.m. (Local Time) on the first day of
such Interest Period on the Reuters screen BBSY page (for Australian Dollars) or BKBM page (for New Zealand Dollars), for a term equivalent to such Interest Period. If (a) for any reason there is no rate displayed for a period equivalent to
such Interest Period or (b) the basis on which such rate is displayed is changed and in the reasonable opinion of the Administrative Agent (or, in the case of any N.Z. Swingline Loan, the N.Z. Swingline Lender) such rate ceases to reflect the
cost to a majority in interest of the Multicurrency Revolving Credit Lenders of funding to the same, then the Bank Bill Rate shall be the rate determined by the Administrative Agent (or, in the case of any N.Z. Swingline Loan, the N.Z. Swingline
Lender) to be the average of the buying rates quoted to the Administrative Agent (or, in the case of any N.Z. Swingline Loan, the N.Z. Swingline Lender) by three reference banks selected by it at or about that time on that date for bills of exchange
that are accepted by an Australian bank or a New Zealand bank, as the case may be, and that have a term equivalent to the Interest Period. If there are no such buying rates the rate shall be the rate reasonably determined by the Administrative Agent
(or, in the case of any N.Z. Swingline Loan, the N.Z. Swingline Lender) to be its cost of funds. Rates will be expressed as a yield percent per annum to maturity and rounded up or down, if necessary, to the nearest two decimal places. When used in
reference to any Loan or Borrowing, the term “Bank Bill Rate” refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Bank Bill Rate.
“Bankers’ Acceptance” and “B/A” shall mean a non-interest bearing
instrument denominated in Canadian dollars, drawn by the Canadian Borrower, and accepted by a Multicurrency Lender in accordance with this Agreement, and shall include a depository note within the meaning of the Depository Bills and Notes Act
(Canada) and a bill of exchange within the meaning of the Bills of Exchange Act (Canada).
“Board”
shall mean the Board of Governors of the Federal Reserve System of the United States of America.
“Borrower
Materials” shall have the meaning assigned to such term in Section 9.01.
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“Borrower Repurchase Assignment and Acceptance” shall mean
an assignment and acceptance entered into by a Lender and a Borrower, and accepted by the Administrative Agent, substantially in the form of Exhibit C or such other form as shall be approved by the Administrative Agent.
“Borrowers” shall mean, collectively, the U.S. Borrower, the Australian Borrower, the Canadian
Borrower, the New Zealand Borrower and the U.K. Borrower and any other wholly owned Subsidiary of the U.S. Borrower that becomes a party hereto as a Borrower pursuant to Section 9.18.
“Borrowing” shall mean (a) Loans of the same Class and Type and in the same currency made,
converted or continued on the same date and, in the case of a Fixed Rate Loan, as to which a single Interest Period or Contract Period, as the case may be, is in effect, (b) a Competitive Loan or group of Competitive Loans of the same Type made
on the same date and as to which a single Interest Period is in effect or (c) a N.Z. Swingline Loan.
“Borrowing Minimum” shall mean $5,000,000, £2,000,000, €2,000,000, A$1,000,000, NZ$1,000,000
or C$1,000,000, as the case may be.
“Borrowing Multiple” shall mean $1,000,000,
£500,000, €500,000, A$250,000, NZ$250,000 or C$250,000, as the case may be.
“Borrowing
Request” shall mean a request by a Borrower in accordance with the terms of Section 2.03 and substantially in the form of Exhibit E or such other form as shall be approved by the Administrative Agent.
“Borrowing Subsidiary Agreement” shall mean a Borrowing Subsidiary Agreement substantially in the form
of Exhibit F-1.
“Borrowing Subsidiary Termination” shall mean a Borrowing
Subsidiary Termination substantially in the form of Exhibit F-2.
“Business Day”
shall mean any day other than a Saturday, Sunday or day on which banks in New York City are authorized or required by law to close; provided, however, that when used in connection
with a Eurocurrency Loan, the term “Business Day” shall also exclude (a) any day on which banks are not open for dealings in dollar deposits in the London interbank market (if such Eurocurrency Loan is denominated in dollars) and
(b) any day that is not a TARGET Day (if such Eurocurrency Loan is denominated in Euro), and, when used in connection with any Calculation Date or determining any date on which any amount is to be paid or made available in an Alternative
Currency other than Euro, the term “Business Day” shall also exclude any day on which commercial banks and foreign exchange markets are not open for business in the principal financial center in the country of such Alternative
Currency.
“Calculation Date” shall mean (a) the date on which any Multicurrency
Loan or U.K. Loan is made, (b) the date of issuance, extension or renewal of any Multicurrency Letter of Credit or U.K. Letter of Credit, (c) the date of conversion or continuation of any Multicurrency Borrowing or U.K. Borrowing pursuant
to Section 2.10 or (d) such additional dates as the Administrative Agent shall specify.
“Canadian Dollars” or “C$” shall mean the
lawful currency of Canada.
“Canadian Prime Rate” shall mean, on any day, the annual rate of
interest equal to the greater of: (a) the annual rate of interest determined from time to time by the Administrative Agent as its prime rate in effect at its principal office in Toronto, Ontario on such day for interest rates on Canadian
Dollar-Denominated commercial loans made in Canada; and (b) the annual rate of interest equal to the sum of (i) the CDOR Rate in effect on such day and (ii) 1%. When used in reference to any Loan or Borrowing, “Canadian Prime
Rate” refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Canadian Prime Rate.
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“Canadian Sublimit” shall mean $75,000,000.
“Capital Expenditures” shall mean, for any period, (a) the additions to property,
plant and equipment and other capital expenditures of Holdings and its consolidated Subsidiaries that are set forth as such in a consolidated statement of cash flows of Holdings for such period prepared in accordance with GAAP and (b) Capital
Lease Obligations incurred by Holdings and its consolidated Subsidiaries during such period, but excluding in each case (i) any such expenditure made to restore, replace or rebuild property to the condition of such property immediately prior to
any damage, loss, destruction or condemnation of such property, to the extent such expenditure is made with insurance proceeds, condemnation awards, damage recovery proceeds or other indemnity payments relating to any such damage, loss, destruction
or condemnation within 365 days of receipt of such proceeds, (ii) any such expenditure made at the request of, and for which Holdings or any consolidated Subsidiary receives reimbursement in cash from, a person other than Holdings or any
Subsidiary in the ordinary course of business and (iii) expenditures which represent any part of the aggregate consideration paid in connection with any investment or Permitted Acquisition permitted under Section 6.03.
“Capital Lease Obligations” of any person shall mean the obligations of such person to pay rent or other
amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such person
under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
“CBRE Clarion” shall mean CBRE Clarion Securities LLC, a Delaware limited liability company and an
indirect majority owned subsidiary of CBRE Clarion CRA Holdings, Inc.
“CBRE Clarion
Units” shall mean the Class A Units and Class B Units of CBRE Clarion.
“CBRE
Loan Arbitrage Facility” shall mean a credit facility provided to the U.S. Borrower or CBRE, Inc. by any depository bank in which the U.S. Borrower or CBRE, Inc., as the case may be, makes deposits, so long as (a) the U.S. Borrower
or CBRE, Inc., as the case may be, applies all proceeds of loans made under such credit facility to purchase certain highly-rated debt instruments considered to be permitted short-term investments under such credit facility and (b) all such
permitted short-term investments purchased by the U.S. Borrower or CBRE, Inc., as the case may be, with the proceeds of loans thereunder (and proceeds thereof and distributions thereon) are pledged to the depository bank providing such credit
facility, and such bank has a first priority perfected security interest therein, to secure loans made under such credit facility.
“CDOR Rate” shall mean, for each day in any period, the annual rate of interest that is the rate based
on an average rate applicable to Canadian Dollar bankers’ acceptances for a term equal to the term of the relevant Contract Period (or for a term of 30 days for purposes of determining the Canadian Prime Rate) appearing on the Reuters
Screen CDOR Page at approximately 10:00 a.m. (Toronto time), on such date, or if such date is not a Business Day, on the immediately preceding Business Day; provided that if such rate does not appear on the
Reuters Screen CDOR Page on such date as contemplated, then the CDOR Rate on such date shall be the rate that would be applicable to Canadian Dollar bankers’ acceptances quoted by the Administrative Agent as of 10:00 a.m. (Toronto time) on
such date or, if such date is not a Business Day, on the immediately preceding Business Day.
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“Change in Control” shall mean any of the following events: (a) any
“person” or “group” (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934 as in effect on the date hereof) other than the Permitted Investors becomes, directly or indirectly, the beneficial
owner of Equity Interests in Holdings representing more than (i) 35% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Holdings and (ii) the aggregate ordinary voting power represented by
the issued and outstanding Equity Interests of Holdings beneficially owned, directly or indirectly, by the Permitted Investors; (b) during any period of two consecutive years, individuals who at the beginning of such period constituted the
board of directors of Holdings (together with any new directors whose election or nomination for election by the stockholders was approved by a majority of the directors then in office who were either directors at the beginning of such period or
whose election was previously so approved) cease for any reason to constitute a majority of the board of directors of Holdings; (c) Holdings shall cease to directly own 100% of the issued and outstanding Equity Interests of the U.S. Borrower or
(d) the occurrence of a “Change of Control” (however designated) under and as defined in the definitive documentation governing any Subordinated Indebtedness constituting Material Indebtedness.
“Change in Law” shall mean (a) the adoption of any law, rule or regulation after the Second
Restatement Date, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date hereof or (c) compliance by any Lender or any Issuing Bank (or, for purposes of
Section 2.14, by any lending office of such Lender or by such Lender’s or such Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority
made or issued after the date hereof.
“Class”, when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Domestic Revolving Loans, Multicurrency Revolving Loans, U.K. Revolving Loans, Competitive Loans, N.Z. Swingline Loans, Other Revolving Loans, Tranche A Loans,
Specified Incremental Term Loans or Other Term Loans and, when used in reference to any Commitment, refers to whether such Commitment is a Domestic Revolving Credit Commitment, Multicurrency Revolving Credit Commitment, U.K. Revolving Credit
Commitment, N.Z. Swingline Commitment, Specified Incremental Term Loan Commitment or Other Revolving Credit Commitment.
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.
“Co-investment Vehicle” shall mean an entity (other than a
Subsidiary) formed for the purpose of investing principally in real estate related assets.
“Collateral” shall mean all the “Collateral” as defined in any Security Document.
“Commitment” shall mean, with respect to any Lender, such Lender’s Domestic Revolving Credit
Commitment, Multicurrency Revolving Credit Commitment, U.K. Revolving Credit Commitment, N.Z. Swingline Commitment, Incremental Revolving Credit Commitment, Incremental Term Loan Commitment, Other Revolving Credit Commitment or Other Term Loan
Commitment.
“Common Stock” shall mean the Class A Common Stock of Holdings.
“Communications” shall have the meaning assigned to such term in Section 9.01.
“Competitive Bid” shall mean an offer by a Lender to make a Competitive Loan pursuant to
Section 2.27 in the form of Exhibit J-3, or another form approved by the Advance Agent.
“Competitive Bid Accept/Reject Letter” shall mean a notification made by the U.S. Borrower pursuant to
Section 2.27(d) in the form of Exhibit J-4, or another form approved by the Advance Agent.
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“Competitive Bid Rate” shall mean, as to any Competitive
Bid, the Competitive Loan Margin or the fixed rate of interest per annum, as applicable, offered by the Lender making such Competitive Bid.
“Competitive Bid Request” shall mean a request made pursuant to Section 2.27 in the form of Exhibit
J-1, or another form approved by the Advance Agent.
“Competitive Borrowing” shall mean a Borrowing consisting of a Competitive Loan or concurrent
Competitive Loans from the Lender or Lenders whose Competitive Bids for such Borrowing have been accepted under the bidding procedure described in Section 2.27.
“Competitive Loan” shall mean a Loan made pursuant to Section 2.27. Each Competitive Loan shall be
a Eurocurrency Competitive Loan or a Flat Rate Competitive Loan.
“Competitive Loan
Exposure” shall mean, with respect to any Lender at any time, the aggregate principal amount of the outstanding Competitive Loans of such Lender.
“Competitive Loan Margin” shall mean, with respect to any Competitive Loan bearing interest at a rate based on the
Adjusted LIBO Rate, the marginal rate of interest, if any, to be added to or subtracted from the Adjusted LIBO Rate in order to determine the interest rate applicable to such Loan, as specified by the Lender making such Loan in its related
Competitive Bid.
“Confidential Information Memorandum” shall mean the Confidential Information
Memorandum of the Borrowers dated December 2014.
“Consolidated EBITDA” shall mean,
for any period, Consolidated Net Income for such period plus (a) without duplication and to the extent deducted in determining such Consolidated Net Income, the sum of (i) consolidated interest expense for such period (including deferred
financing costs), (ii) consolidated income tax expense for such period, (iii) all amounts attributable to depreciation and amortization for such period, (iv) any non-recurring fees, expenses or charges in connection with the
consummation and implementation of the Transactions, any Auction or any Loan Modification Offer, (v) any non-recurring fees, expenses or charges related to any Equity Issuance, investment permitted under Section 6.03, Permitted Acquisition
or incurrence of Indebtedness, (vi) any restructuring expenses that are directly attributable to identified restructuring initiatives and are factually supportable and certified by a Financial Officer of the U.S. Borrower, (vii) all other
non-cash losses, expenses and charges of Holdings and its consolidated subsidiaries (excluding (x) the write-down of current assets and (y) any such non-cash charge to the extent that it represents an accrual of or reserve for cash
expenditures in any future period), (viii) all compensation expense to the extent the proceeds of which are substantially concurrently used by the employees receiving such compensation to purchase Common Stock from Holdings pursuant to an
employee stock purchase plan of Holdings and its Subsidiaries, (ix) upfront fees or charges arising from any Permitted Receivables Securitization for such period and (x) all non-cash charges of Holdings and its consolidated subsidiaries
resulting from the amortization of the value or any mark-to-market valuation of the CBRE Clarion Units, and all cash payments made in connection with the purchase or other acquisition of CBRE Clarion Units, required or permitted by, and on the terms
and conditions of, the Management Subscription Agreements, and any other amounts for such period comparable to or in the nature of interest under any Permitted Receivables Securitization, and losses on dispositions of Receivables and related assets
in connection with any Permitted Receivables Securitization for such period; and minus (b) without duplication (i) all cash payments made during such period on account of reserves and other noncash charges added to Consolidated Net Income
pursuant to clause (a)(vii) above in a previous period, (ii) all non-cash gains of Holdings and its consolidated subsidiaries resulting from any mark-to-market valuation of the CBRE Clarion Units and (iii) to the extent included in
determining such Consolidated Net Income, any extraordinary gains for such period, all determined on a consolidated basis in accordance with GAAP. Notwithstanding the foregoing,
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Consolidated EBITDA for any period of four consecutive fiscal quarters may also be increased by pro forma cost savings that are reasonably expected to result from one or more Permitted
Acquisitions or restructurings consummated during such period (or consummated after such period, but for which pro forma effect is to be given in such period), in each case net of actual cost savings included in such Consolidated EBITDA and set
forth in a certificate of a Financial Officer of the U.S. Borrower in form and substance reasonably satisfactory to the Administrative Agent; provided that any such cost savings that would not be required or permitted to be included in a pro
forma income statement prepared in accordance with Regulation S-X of the Securities Act of 1933, as amended, shall not exceed 15% of the Consolidated EBITDA for such period.
“Consolidated Interest Expense” shall mean, for any period, (a) the sum of (i) the interest
expense (including imputed interest expense in respect of Capital Lease Obligations) of Holdings and its consolidated subsidiaries for such period, determined on a consolidated basis in accordance with GAAP, plus (ii) any interest accrued
during such period in respect of Indebtedness of Holdings or any of its consolidated subsidiaries that is required to be capitalized rather than included in consolidated interest expense for such period in accordance with GAAP, minus (b) to the
extent otherwise included in Consolidated Interest Expense, (i) deferred financing costs, (ii) interest expense associated with any Non-Recourse Indebtedness, (iii) interest capitalized in accordance with GAAP in connection with the
construction of real estate investments so long as the applicable consolidated subsidiary has obtained construction loan financing pursuant to which construction loan advances are made in the amount of such interest expense, (iv) interest
expense associated with Exempt Construction Loans to the extent such interest expense is either fully supported by net operating income from the underlying real estate investment or is covered by advances under such Exempt Construction Loans,
(v) interest expense associated with Melody Permitted Indebtedness, Indebtedness under the CBRE Loan Arbitrage Facility or Excluded Subordinated Indebtedness and (vi) any interest expense in respect of a Permitted Receivables
Securitization. For purposes of the foregoing, interest expense shall be determined after giving effect to any net payments made or received by Holdings or any of its consolidated subsidiaries with respect to interest rate Hedging Agreements.
“Consolidated Net Income” shall mean, for any period, the net income or loss of Holdings and its
consolidated subsidiaries for such period determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income of any such consolidated subsidiary to the extent that the declaration or payment
of dividends or similar distributions by such consolidated subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, statute, rule or governmental regulation
applicable to such consolidated subsidiary, (b) except as set forth in Section 1.04, the income or loss of any person accrued prior to the date it becomes a consolidated subsidiary of Holdings or is merged into or consolidated with
Holdings or any of its consolidated subsidiaries or the date that such person’s assets are acquired by Holdings or any of its consolidated subsidiaries, (c) any reduction for charges made in accordance with Financial Accounting Standard
No. 142—Goodwill and Other Intangible Assets, (d) any income or gains associated with or resulting from the purchase of Purchased Loans and (e) any gains or losses attributable to sales of assets out of the ordinary course of
business; provided further, that Consolidated Net Income for any period shall be increased (i) by cash received during such period by Holdings or any of its consolidated subsidiaries in respect of commissions receivable (net of related
commissions payable to brokers) on transactions that were completed by any acquired business prior to the acquisition of such business and which purchase accounting rules under GAAP would require to be recognized as an intangible asset purchased,
(ii) increased, to the extent otherwise deducted in determining Consolidated Net Income for such period, by the amortization of intangibles relating to purchase accounting in connection with any Permitted Acquisition and (iii) increased
(or decreased, as the case may be), in connection with the sale of real estate during such period, to eliminate the effect of purchase price allocations to such real estate resulting from the consummation of any Permitted Acquisition.
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“Contract Period” shall mean the term of a B/A Loan
selected by the Canadian Borrower in accordance with Section 2.24, commencing on the date of such B/A Loan and expiring on a Business Day which shall be either 30 days, 60 days, 90 days or 180 days thereafter,
provided that (a) subject to clause (b) below, each such period shall be subject to such extensions or reductions as may be reasonably determined by the Administrative Agent to ensure that each Contract
Period shall expire on a Business Day and (b) no Contract Period shall extend beyond the Revolving Credit Maturity Date.
“Control” shall mean 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 ownership of voting securities, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have meanings
correlative thereto.
“Credit Event” shall have the meaning assigned to such term in
Section 4.01.
“Credit Facilities” shall mean the revolving credit, swingline,
letter of credit and term loan facilities provided for by this Agreement.
“Credit
Rating” shall mean the issuer ratings assigned to the U.S. Borrower by S&P or Fitch or the long-term debt ratings assigned to the U.S. Borrower’s long-term debt by Moody’s (or if an issuer rating by Moody’s is
available, such issuer rating), as the case may be.
“Current Assets” shall mean, at
any time, the consolidated current assets of Holdings and the Subsidiaries at such time, but excluding, without duplication, (a) cash, (b) Permitted Investments and (c) “real estate under development” and “real estate
and other assets held for sale” (or line items similar to the foregoing) to the extent reflected as assets on the balance sheet of Holdings.
“Current Liabilities” shall mean, at any time, the consolidated current liabilities of Holdings and the
Subsidiaries at such time, but excluding, without duplication, (a) the current portion of any long-term Indebtedness, (b) “notes payable on real estate” and “liabilities related to real estate and other assets held for
sale” (or line items similar to the foregoing) to the extent reflected as liabilities on the balance sheet of Holdings and (c) outstanding Revolving Loans, Other Revolving Loans and N.Z. Swingline Loans.
“D&I Business” shall mean the real estate development and investment activities conducted by TCC and
its subsidiaries.
“D&I Subsidiary” shall mean any subsidiary of
TCC engaged principally in the D&I Business.
“Daily Rate”, when used in reference
to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate, the Canadian Prime Rate or the Foreign Base Rate.
“Default” shall mean any event or condition which upon notice, lapse of time or both would constitute an
Event of Default.
“Defaulting Lender” shall mean any Revolving Credit Lender, as
determined by the Administrative Agent, that has (a) failed to fund any portion of its Revolving Loans or participations in N.Z. Swingline Loans or Letters of Credit within three Business Days of the date required to be funded by it hereunder
(unless (i) such Revolving Credit Lender and at least one other unaffiliated Revolving Credit Lender shall have notified the Administrative Agent and the U.S. Borrower in writing of their good faith determination that a condition to their
obligation to fund Revolving Loans or participations in N.Z. Swingline Loans or Letters of Credit shall not have been satisfied and (ii) Revolving Credit Lenders representing a majority in interest of the Commitments of the applicable Class
shall not have advised the
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Administrative Agent in writing of their determination that such condition has been satisfied), (b) notified Holdings, any Borrower, the Administrative Agent, any Issuing Bank or any
Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under
other agreements in which it commits to extend credit, (c) failed, within three Business Days after request by the Administrative Agent, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund
prospective Revolving Loans and participations in then outstanding N.Z. Swingline Loans or Letters of Credit, (d) otherwise failed to pay over to the Administrative Agent or any other Lender any amount required to be paid by it hereunder within
three Business Days of the date when due, unless the subject of a good-faith dispute or (e) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has consented
to, approved of or acquiesced 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
consented to, approved of or acquiesced in any such proceeding or appointment; provided that (i) if a Lender would be a “Defaulting Lender” solely by reason of events relating to a parent company of such Lender as described in
clause (e) above, the Administrative Agent may, in its discretion, determine that such Lender is not a “Defaulting Lender” if and for so long as the Administrative Agent is satisfied that such Lender will continue to perform its
funding obligations hereunder, (ii) the Administrative Agent may, by notice to Holdings and the Lenders, declare that a Defaulting Lender is no longer a “Defaulting Lender” if the Administrative Agent determines, in its discretion,
that the circumstances that resulted in such Lender becoming a “Defaulting Lender” no longer apply and (iii) a Revolving Credit Lender shall not be a “Defaulting Lender” solely by virtue of the ownership or acquisition of
any equity interest in such Revolving Credit Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in enforcement of judgments or writs of attachment on its assets or
permit such Revolving Credit Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Revolving Credit Lender.
“Deferred Compensation Plan” shall mean the Deferred Compensation Plan for employees of the U.S.
Borrower and the Subsidiaries and any successor plan thereto, the 401(k) Restoration Plan of Insignia and any successor plan thereto and the Trammell Crow Company Deferred Compensation Plan and any successor thereto.
“Designated Non-Cash Consideration” shall mean the fair market value of non-cash consideration received
by Holdings or a Subsidiary in connection with an Asset Sale pursuant to Section 6.04(b)(i) that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of Holdings, setting forth the basis of such
valuation (which amount will be reduced by the fair market value of the portion of the non-cash consideration converted to cash within 180 days following the consummation of the applicable Asset Sale).
“Discount Proceeds” shall mean for any B/A (or, as applicable, any B/A Equivalent Loan), an amount
(rounded to the nearest whole cent, and with one-half of one cent being rounded up) calculated on the applicable Borrowing date by multiplying:
| |
(a) |
the face amount of the B/A (or, as applicable, any B/A Equivalent Loan); by |
| |
(b) |
the quotient of one divided by the sum of one plus the product of: |
| |
(i) |
the Discount Rate (expressed as a decimal) applicable to such B/A (or, as applicable, any B/A Equivalent Loan), and |
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| |
(ii) |
a fraction, the numerator of which is the number of days in the Contract Period of the B/A (or, as applicable, any B/A Equivalent Loan) and the denominator of which is 365, |
with such quotient being rounded up or down to the fifth decimal place and .000005 being rounded up.
“Discount Rate” shall mean: (a) with respect to any Lender that is a Schedule I Bank, as
applicable to a B/A being purchased by such Lender on any day, the CDOR Rate; and (b) with respect to any Lender that is not a Schedule I Bank, as applicable to a B/A being purchased by such Lender on any day, the greater of (i) the
CDOR Rate plus 10 basis points (0.10%) and (ii) the percentage discount rate (expressed to two decimal places and rounded upward, if not in an increment of 1/100th of 1%, to the nearest
0.01%) quoted by the Administrative Agent as the percentage discount rate at which the Administrative Agent would, in accordance with its normal market practice, at or about 10:00 a.m. (Toronto time) on such date, be prepared to purchase
bankers’ acceptances accepted by the Administrative Agent having a face amount and term comparable to the face amount and term of such B/A.
“Disqualified Stock” shall mean any Equity Interest 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, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, or requires the payment of any cash dividend or any other scheduled payment constituting a return of capital, in each case at any time
on or prior to the 180th day following the latest final maturity date for any of the Loans, or (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Equity
Interest referred to in clause (a) above, in each case at any time prior to 180th day following the latest final maturity date for any of the Loans; provided, however, that
Equity Interests that were not Disqualified Stock when issued shall not become Disqualified Stock solely as a result of the subsequent extension of the final maturity date of any of the Loans pursuant to Section 9.20.
“Dollar Equivalent” shall mean, on any date of determination, with respect to any amount denominated in
any currency other than dollars, the equivalent in dollars of such amount, determined by the Administrative Agent pursuant to Section 1.05 using the applicable Exchange Rate with respect to such currency at the time in effect.
“Dollar Loan” shall mean a Loan denominated in dollars.
“dollars” or “$” shall mean lawful money of the United States of
America.
“Domestic L/C Disbursement” shall mean a payment or disbursement made by any
Issuing Bank pursuant to a Domestic Letter of Credit.
“Domestic L/C Exposure” shall
mean, at any time, the sum of (a) the aggregate undrawn and unexpired amount of all outstanding Domestic Letters of Credit at such time and (b) the aggregate principal amount of all Domestic L/C Disbursements that have not yet been
reimbursed at such time. The Domestic L/C Exposure of any Domestic Revolving Credit Lender at any time shall equal its Pro Rata Percentage of the aggregate Domestic L/C Exposure at such time.
“Domestic Letter of Credit” shall mean any letter of credit issued (or deemed issued) pursuant to
Section 2.23 and designated (or deemed designated) as such.
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“Domestic Obligations” shall have the
meaning assigned to such term in the Guarantee and Pledge Agreement.
“Domestic
Revolving Credit Borrowing” shall mean a Borrowing comprised of Domestic Revolving Loans.
“Domestic Revolving Credit Commitment” shall mean, with respect to each Lender, the commitment of such
Lender to make Domestic Revolving Loans hereunder as set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender assumed its Domestic Revolving Credit Commitment, as applicable, as the same may be
(a) reduced from time to time pursuant to Section 2.09, (b) increased from time to time pursuant to Section 2.25 and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04.
“Domestic Revolving Credit Exposure” shall mean, with respect to
any Lender at any time, the aggregate principal amount at such time of all outstanding Domestic Revolving Loans of such Lender, plus the aggregate principal amount at such time of all Domestic L/C Exposure of such
Lender.
“Domestic Revolving Credit Lender” shall mean a Lender with a Domestic
Revolving Credit Commitment or outstanding Domestic Revolving Credit Exposure.
“Domestic Revolving
Loans” shall mean the revolving loans made by the Domestic Revolving Credit Lenders to the U.S. Borrower pursuant to clause (ii) of Section 2.01.
“Domestic Subsidiaries” shall mean all Subsidiaries incorporated or organized under the laws of the
United States of America, any State thereof or the District of Columbia.
“ECF
Prepayment Amount” shall have the meaning assigned to such term in Section 2.13(d).
“ECF Prepayment Date” shall have the meaning assigned to such term in Section
2.13(d).
“Employee Performance Payments” shall mean payments to employees of
Holdings, the U.S. Borrower or any Subsidiary pursuant to the “CBREI UK MAG scheme” or similar plans designed to pay employees amounts reflecting the creation of value or in recognition of other performance thresholds achieved by such
employees; provided that the aggregate amount of such payments made after the date hereof shall not exceed $20,000,000.
“Environmental Laws” shall mean all former, current and future Federal, state, local and foreign laws
(including common law), treaties, regulations, rules, ordinances, codes, decrees, judgments, directives, orders (including consent orders), and binding agreements in each case, relating to protection of the environment, natural resources, human
health and safety (to the extent relating to exposure to Hazardous Materials) or the presence, Release of, or exposure to, Hazardous Materials, or the generation, manufacture, processing, distribution, use, treatment, storage, transport, recycling
or handling of, or the arrangement for such activities with respect to, Hazardous Materials.
“Environmental Liability” shall mean all liabilities, obligations, damages, losses, claims, actions,
suits, judgments, orders, fines, penalties, fees, expenses and costs (including administrative oversight costs, natural resource damages and remediation costs), whether contingent or otherwise, arising out of or relating to (a) compliance or non-compliance with any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
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“Equity Interests” shall mean shares of capital stock,
partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity interests in any person.
“Equity Issuance” shall mean any issuance or sale by Holdings, the U.S. Borrower or any of their
respective subsidiaries of any Equity Interests or any obligations convertible into or exchangeable for, or giving any person a right, option or warrant to acquire such Equity Interests or such convertible or exchangeable obligations, as applicable,
except in each case for (a) any issuance or sale to any Permitted Investor (other than any such person acting in the capacity of an underwriter or placement agent with regard to such Equity Issuance), Holdings, the U.S. Borrower or any
Subsidiary, (b) any issuance of directors’ qualifying shares and (c) sales or issuances of common stock of Holdings or stock fund units in the Deferred Compensation Plan to management, employees or consultants of Holdings, the
U.S. Borrower or any Subsidiary under the Deferred Compensation Plan or any employee stock option or stock purchase plan or employee benefit plan in existence from time to time.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same may
be amended from time to time.
“ERISA Affiliate” shall mean any trade or business
(whether or not incorporated) that, together with the U.S. Borrower, is treated as a single employer under Section 414(b) or (c) of the Code, or solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated
as a single employer under Section 414 of the Code.
“ERISA Event” shall mean
(a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder, with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) a failure by any Plan to
satisfy the minimum funding standard (as defined in Section 412 of the Code or Section 302 of ERISA) applicable to such Plan, in each instance, whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or
Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) a determination that any Plan is or, is expected to be, in “at risk” status (as defined in
Section 430(i)(4) of the Code or Section 303(i)(4) of ERISA); (e) the incurrence by the U.S. Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan (other than
a standard termination pursuant to Section 4041(b) of ERISA) or the withdrawal or partial withdrawal of the U.S. Borrower or any of its ERISA Affiliates from any Plan or Multiemployer Plan; (f) the receipt by the U.S. Borrower or
any of its ERISA Affiliates from the PBGC or a plan administrator of any notice relating to the intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (g) the receipt by the U.S. Borrower or any of its
ERISA Affiliates of any intent to withdraw from a Multiemployer Plan, or the receipt by any Multiemployer Plan from the U.S. Borrower or any of its ERISA Affiliates of any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, or is in “endangered” or “critical” status within the meaning of Section 305 of
ERISA; (h) the occurrence of a nonexempt “prohibited transaction” with respect to which the U.S. Borrower or any of the Subsidiaries is a “disqualified person” (within the meaning of Section 4975 of the Code or
Section 406 of ERISA) or a “party of interest” (within the meaning of Section 3(14) of ERISA) or with respect to which the U.S. Borrower or any such Subsidiary could otherwise be liable; (i) any other event or condition
with respect to a Plan or Multiemployer Plan that could result in liability of the U.S. Borrower or any Subsidiary; or (j) any Foreign Benefit Event.
“Euro” or “€” shall mean the single
currency of the European Union as constituted by the Treaty on European Union as adopted as lawful currency by certain member states under legislation of the European Union for European Monetary Union.
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“Eurocurrency”, when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted LIBO Rate.
“Event of Default” shall have the meaning assigned to such term in
Article VII.
“Excess Cash Flow” shall mean, for any period of four consecutive quarters ending
on June 30 of any year, the excess of (a) the sum, without duplication, of (i) Consolidated EBITDA for such period and (ii) reductions to noncash working capital of Holdings and the Subsidiaries for such period (i.e., the
decrease, if any, in Current Assets minus Current Liabilities from the beginning to the end of such period) minus (b) the sum, without duplication, of (i) the amount of any Taxes paid in cash by Holdings and the Subsidiaries with
respect to such period, (ii) Consolidated Interest Expense for such period paid in cash, (iii) Capital Expenditures made in cash during such period, except to the extent financed with the proceeds of Indebtedness, equity issuances,
casualty proceeds, condemnation proceeds or other proceeds that would not be included in Consolidated EBITDA, (iv) permanent repayments of Indebtedness (other than (x) mandatory prepayments of Loans under Section 2.13 (other than
Section 2.13(a) and (e)), (y) Voluntary Prepayments and (z) Purchased Loans) made by Holdings and the Subsidiaries during such period, but only to the extent that such prepayments by their terms cannot be reborrowed or redrawn and
(except for the prepayment of Term Loans with the Net Cash Proceeds of Junior Capital) do not occur in connection with a refinancing of all or any portion of such Indebtedness, (v) the amount of net investments (which, for purposes of this
definition, shall not be a negative number, regardless of returns of principal or capital) made in cash in accordance with Section 6.03(g), (m), (p) or (r) during such period to the extent not financed with the proceeds of any
Indebtedness or equity issuances or other proceeds that would not be included in Consolidated EBITDA, (vi) the amount of Restricted Payments made in cash by Holdings in accordance with Section 6.05(a) during such period, (vii) any
non-recurring fees, expenses or charges in connection with the consummation of the Transactions, any Auction or any Loan Modification Offer, to the extent added back in the determination of Consolidated EBITDA with respect to such period pursuant to
clause (iv) of the definition of Consolidated EBITDA, (viii) any other non-recurring fees payable to financial institutions in connection with any issuance of Indebtedness, Equity Issuances or amendments to this Agreement, (ix) any
payments in respect of restructuring expenses and the amount of any pro forma cost savings permitted to be added to Consolidated EBITDA with respect to such period pursuant to clause (a)(vi) or the last sentence, respectively, of the definition of
Consolidated EBITDA and (x) additions to noncash working capital of Holdings and the Subsidiaries for such period (i.e., the increase, if any, in Current Assets minus Current Liabilities from the beginning to the end of such period).
“Exchange Rate” shall mean, on any day, with respect to any currency other than dollars (for
purposes of determining the Dollar Equivalent) or dollars (for purposes of determining the Alternative Currency Equivalent), the rate at which such currency may be exchanged into dollars or the applicable Alternative Currency, as the case may be, as
set forth at approximately 11:00 a.m., Local Time, on such date on the applicable Bloomberg Key Cross Currency Rates Page. In the event that any such rate does not appear on any Bloomberg Key Cross Currency Rates Page, the Exchange Rate shall
be determined by reference to such other publicly available service for displaying exchange rates selected by the Administrative Agent for such purpose, or, at the discretion of the Administrative Agent, such Exchange Rate shall instead be the
arithmetic average of the spot rates of exchange of the Administrative Agent in the market where its foreign currency exchange operations in respect of such currency are then being conducted, at or about 10:00 a.m., Local Time, on such date for
the purchase of dollars or the applicable Alternative Currency, as the case may be, for delivery two Business Days later; provided that, if at the time of any such determination, for any reason, no such spot rate
is being quoted, the Administrative Agent may use any other reasonable method it deems appropriate to determine such rate, and such determination shall be presumed correct absent manifest error.
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“Excluded Subordinated Indebtedness” shall mean Subordinated Indebtedness
incurred after the Second Restatement Date in an aggregate principal amount outstanding at any time not to exceed $350,000,000.
“Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender, any Issuing
Bank or any other recipient of any payment to be made by or on account of any obligation of a Borrower hereunder, (a) income or franchise Taxes imposed on (or measured by) its net income by (i) any Governmental Authority of the United
States of America (or any political subdivision or taxing authority thereof or therein), or the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its
applicable lending office is located, or (ii) as a result of a present or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such Tax (or any political subdivision or
taxing authority thereof or therein) other than a connection arising solely as a result of entering into any Loan Document; (b) any branch profits Taxes imposed by any Governmental Authority of the United States of America (or any political
subdivision or taxing authority thereof or therein) or any similar Tax imposed by any other jurisdiction described in clause (a) above, (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by a Borrower under
Section 2.21(a)), any withholding Tax that is imposed on amounts payable to such Foreign Lender resulting from any requirement of law in effect at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending
office), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from such Borrower with respect to such withholding Tax
pursuant to Section 2.20(a); (d) any withholding Tax that is attributable to such Lender’s failure to comply with Section 2.20(g) and (e) any U.S. Federal withholding Taxes imposed under FATCA; provided that,
notwithstanding any of the other provisions of this definition, in the event that, following an Event of Default, the N.Z. Swingline Lender gives written notice requiring the Multicurrency Revolving Credit Lenders to acquire participations in all or
a portion of the outstanding N.Z. Swingline Loans pursuant to Section 2.22(e), any withholding Tax that is imposed on amounts payable to the Multicurrency Revolving Credit Lenders in respect of such N.Z. Swingline Loans after the date of such
notice shall not be an Excluded Tax; provided further that, notwithstanding any of the other provisions of this definition, in the event that the Multicurrency Revolving Credit Lenders acquire participations in a Letter of Credit pursuant to
Section 2.23(d), any withholding Tax that is imposed on amounts payable by the N.Z. Borrower to the Multicurrency Revolving Credit Lenders in respect of such Letter of Credit after the time such participations are acquired shall not be an
Excluded Tax.
“Exempt Construction Loan” shall mean any interim construction loan (or
Guarantee thereof) (a) that is subject to or backed by an Approved Take Out Commitment or (b) in which the D&I Subsidiary that is the obligor of such construction loan has entered into a Qualifying Lease of the property securing such
Exempt Construction Loan (or Guarantee thereof) and such lease supports a refinancing of the entire interim construction loan amount based upon prevailing permanent loan terms at the time the interim construction loan is closed. Notwithstanding
the foregoing, construction loans (and Guarantees thereof) shall cease to be treated as Exempt Construction Loans in the event that any of the following occur: (i) the obligor of such Exempt Construction Loan is in default beyond any
applicable notice and cure periods of any obligations under the credit agreement relating to such Exempt Construction Loan; or (ii) the underlying real property securing such Exempt Construction Loan has not been sold by a date which is no
later than 15 months (unless subject to or backed by an Approved Take Out Commitment, in which case no deadline for the sale of such real property shall apply) after completion of construction.
“Existing Credit Agreement” shall have the meaning assigned to such term in the introductory statement
to this Agreement.
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“Existing Letter of Credit” shall mean each Letter of
Credit previously issued or deemed issued under the Existing Credit Agreement that (a) is outstanding on the date hereof and (b) is listed on Schedule 1.01(d).
“Existing Tranche A Loan Refinancing” shall mean the repayment in full, on the Second Restatement
Date, of the Tranche A Loans (as defined in the Existing Credit Agreement).
“Existing
Tranche B Loan Repayment” shall mean the repayment in full, on or prior to the Second Restatement Date, of the Tranche B Loans (as defined in the Existing Credit Agreement).
“Facility Fees” shall have the meaning assigned to such term in
Section 2.05(a).
“FATCA” shall mean Sections 1471 through 1474 of the Code, as
of the date of this Agreement or any amended or successor version that is substantively comparable and not materially more onerous to comply with, any current or future regulations or official interpretations thereof, any agreements entered into
pursuant to Section 1471(b)(1) of the Code and any intergovernmental agreements in respect thereof (and any legislation, regulations or other official guidance pursuant to, or in respect of, such intergovernmental agreements).
“Federal Funds Effective Rate” shall mean, for any day, the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day that is a Business Day, the average of the quotations for the day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
“Fees” shall mean the Facility Fees, the Administrative Agent Fees, the L/C Participation Fees and the
Issuing Bank Fees.
“FHA Loans” shall mean commercial or multi-housing mortgage loans
originated by Melody (or any other Mortgage Banking Subsidiary) and insured by the Federal Housing Administration or any other governmental entity.
“Financial Officer” of any person shall mean the chief financial officer, principal accounting officer,
Treasurer or Controller of such person.
“First Lien Intercreditor
Agreement” shall have the meaning assigned to such term in Section 6.02(q).
“Fitch” shall mean Fitch Ratings or any successor to the ratings agency business
thereof.
“Fixed Rate”, when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted LIBO Rate, the Discount Rate or the Bank Bill Rate.
“Flat Rate”, when used in reference to any Competitive Loan or Competitive Borrowing, refers to whether such
Competitive Loan, or the Competitive Loans comprising such Competitive Borrowing, are bearing interest at a fixed rate of interest per annum, as specified by the Lender making such Competitive Loan in its related Competitive Bid.
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“Foreign Base Rate” shall mean, with respect to any Alternative Currency
(other than Canadian Dollars) in any jurisdiction, the rate of interest per annum determined by the Administrative Agent to be the rate of interest (in the absence of a Fixed Rate) charged by it to borrowers of similar quality as the applicable
Borrower for short-term loans in such Alternative Currency in such jurisdiction. Notwithstanding anything to the contrary contained herein, Loans may be made or maintained as Foreign Base Rate Loans only to the extent specified in Section 2.08
or 2.15.
“Foreign Benefit Event” shall mean, with respect to any Foreign Pension Plan,
(a) the existence of unfunded liabilities in excess of the amount permitted under any applicable law, or in excess of the amount that would be permitted absent a waiver from a Governmental Authority, (b) the failure to make the required
contributions or payments, under any applicable law, on or before the due date for such contributions or payments, (c) the receipt of a notice by a Governmental Authority relating to the intention to terminate any such Foreign Pension Plan or
to appoint a trustee or similar official to administer any such Foreign Pension Plan, or alleging the insolvency of any such Foreign Pension Plan and (d) the incurrence of any liability in excess of $5,000,000 (or the equivalent thereof in
another currency) by Holdings, the U.S. Borrower or any of its Subsidiaries under applicable law on account of the complete or partial termination of such Foreign Pension Plan or the complete or partial withdrawal of any participating employer
therein or (e) the occurrence of any transaction that is prohibited under any applicable law and could reasonably be expected to result in the incurrence of any liability by Holdings, the U.S. Borrower or any of its Subsidiaries, or the
imposition on Holdings, the U.S. Borrower or any of its Subsidiaries of any fine, excise tax or penalty resulting from any noncompliance with any applicable law, in each case in excess of $5,000,000 (or the equivalent thereof in another
currency).
“Foreign Lender” shall mean, with respect to any Borrower, any Lender that
is organized under the laws of a jurisdiction other than that in which such Borrower is located. For purposes of this definition, the United States of America, each State thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.
“Foreign Pension Plan” shall mean any plan that under applicable law of
any jurisdiction other than the United States of America is required to be funded through a trust or other funding vehicle other than a trust or funding vehicle maintained exclusively by a Governmental Authority.
“Foreign Restructuring Transaction” shall mean the direct or indirect contribution or other transfer by
the U.S. Borrower or any of its Subsidiaries of the Equity Interests or assets (including intercompany debt obligations) of one or more Foreign Subsidiaries, or of one or more other persons not organized under the laws of the United States of
America, any State thereof or the District of Columbia, in one or more steps (including by way or merger, consolidation, liquidation or dissolution), to a Foreign Subsidiary of the U.S. Borrower.
“Foreign Subsidiary” shall mean any Subsidiary that is not a Domestic Subsidiary.
“GAAP” shall mean United States generally accepted accounting principles
applied on a consistent basis.
“Governmental Authority” shall mean any Federal,
state, local or foreign court or governmental agency, authority, instrumentality or regulatory body.
“Granting Lender” shall have the meaning assigned to such term in
Section 9.04(j).
“Guarantee” of or by any person shall mean any obligation,
contingent or otherwise, of such person guaranteeing or having the economic effect of guaranteeing any Indebtedness of any other person (the “primary obligor”) in any manner, whether directly or indirectly, and including any
obligation of such person, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the
26
purchase of) any security for the payment of such Indebtedness or other obligation, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment of such Indebtedness or other obligation or (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or other obligation; provided, however, that the term “Guarantee” shall not include (i) endorsements for collection or deposit in the ordinary course of business,
(ii) customary environmental indemnities and non-recourse carve-out guarantees requested by Lenders in financing transactions secured by real property, (iii) guarantees in respect of Exempt Construction Loans or (iv) completion and
budget guarantees.
“Guarantee and Pledge Agreement” shall mean the Amended and Restated
Guarantee and Pledge Agreement dated as of the Second Restatement Date, substantially in the form attached hereto as Exhibit G, among the Borrowers, Holdings, the Subsidiary Guarantors and the Collateral Agent for the benefit of the Secured Parties,
together with each supplement thereto.
“Guarantee Release Date” shall
have the meaning assigned to such term in Section 9.25(a).
“Guarantors” shall mean Holdings and the Subsidiary Guarantors.
“Hazardous Materials” shall mean (a) any petroleum products or byproducts and all other petroleum
hydrocarbons, coal ash, radon gas, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, chlorofluorocarbons and all other ozone-depleting substances and (b) any chemical, material, substance or waste that is prohibited,
limited or regulated by or pursuant to any Environmental Law.
“Hedging Agreement”
shall mean any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement.
“HMRC” shall mean HM Revenue & Customs.
“Immaterial Subsidiary” shall mean (a) each Subsidiary that is formed for the purpose of allowing
employees to participate in the economic returns of certain investments or investment programs and does not engage in any other business activities or have any outstanding Indebtedness and (b) each other Subsidiary that has consolidated
total assets of less than $5,000,000.
“Incremental Assumption Agreement” shall mean
an Incremental Assumption Agreement among, and in form and substance satisfactory to, the applicable Borrowers, the Administrative Agent and one or more Incremental Revolving Credit Lenders or Incremental Term Lenders, as the case may be.
“Incremental Revolving Credit Commitment” shall mean the commitment of any Lender,
established pursuant to Section 2.25, to make Incremental Revolving Loans to one or more Borrowers.
“Incremental Revolving Credit Lender” shall mean a Lender with an Incremental Revolving Credit
Commitment or an outstanding Revolving Loan of any Class as a result of an Incremental Revolving Credit Commitment.
“Incremental Revolving Loans” shall mean Revolving Loans made by one or more Lenders to one or more Borrowers pursuant
to clause (b) of Section 2.01. Incremental Revolving Loans may be made in the form of additional Revolving Loans or, to the extent permitted by Section 2.25 and provided for in the relevant Incremental Assumption Agreement, Specified
Incremental Revolving Loans. Unless the context clearly indicates otherwise, the term “Incremental Revolving Loans” shall include Specified Incremental Revolving Loans.
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“Incremental Term Lender” shall mean a Lender with an Incremental Term
Loan Commitment or an outstanding Term Loan of any Class as a result of an Incremental Term Loan Commitment.
“Incremental Term
Loan Commitment” shall mean the commitment of any Lender, established pursuant to Section 2.26, to make Incremental Term Loans to one or more Borrowers.
“Incremental Term Loan Maturity Date” shall mean the final maturity date of any Incremental Term Loan,
as set forth in the applicable Incremental Assumption Agreement.
“Incremental Term Loan Repayment
Date” shall mean each date on which the principal of any Incremental Term Loan is scheduled to be repaid, as set forth in the applicable Incremental Assumption Agreement.
“Incremental Term Loans” shall mean Term Loans made by one or more Lenders to one or more Borrowers
pursuant to clause (b) of Section 2.01. Incremental Term Loans may be made in the form of additional Term Loans or, to the extent permitted by Section 2.26 and provided for in the relevant Incremental Assumption Agreement, Specified
Incremental Term Loans. Unless the context clearly indicates otherwise, the term “Incremental Term Loans” shall include Specified Incremental Term Loans.
“Indebtedness” of any person shall mean, without duplication, (a) all obligations of such person for borrowed
money or with respect to deposits or advances of any kind, (b) all obligations of such person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such person upon which interest charges are customarily
paid, (d) all obligations of such person under conditional sale or other title retention agreements relating to property or assets purchased by such person, (e) all obligations of such person issued or assumed as the deferred purchase
price of property or services (excluding (i) with respect to clause (e), trade accounts payable and accrued obligations incurred in the ordinary course of business and (ii) only with respect to clauses (a) through (e), accrued
obligations in respect of the Deferred Compensation Plan), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such person, whether or not the obligations secured thereby have been assumed, (g) all Guarantees by such person of Indebtedness of others (other than Guarantees by an Investment Subsidiary of any Indebtedness of any Co-investment
Vehicle; provided that neither such Guarantee nor the related Indebtedness is recourse to Holdings, the U.S. Borrower or any other Subsidiary (other than an Investment Subsidiary)), (h) all Capital Lease Obligations of such person,
(i) all obligations of such person as an account party in respect of letters of credit, (j) all obligations of such person in respect of bankers’ acceptances, (k) all obligations of such person pursuant to any Permitted
Receivables Securitization to the extent such obligations are reflected as indebtedness on the balance sheet of Holdings and (l) the aggregate liquidation preference of all outstanding Disqualified Stock issued by such person. The Indebtedness
of any person shall include all Indebtedness of any partnership, or other entity in which such person is a general partner, or other equity holder with unlimited liability other than (x) Indebtedness which by its terms is expressly non-recourse to such person (subject to customary environmental indemnities or completion or budget guarantees, and subject to customary exclusions from liability by lenders in non-recourse financing transactions
secured by real property (including by means of separate indemnification agreements or carve-out guarantees)) and (y) if such person is an Investment Subsidiary, the Indebtedness of a related
Co-investment Vehicle. Notwithstanding the foregoing, in connection with the purchase of any business, Indebtedness shall not include post-closing payment adjustments to which the seller may become entitled so
long as (i) such payment is to be determined by a final closing balance sheet or depends on the performance of such business after the closing of the purchase, (ii) at the time of closing, the amount of any such payment is not determinable
and (iii) to the extent such payment thereafter becomes fixed and determined, the amount is paid within 60 days thereafter.
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“Indemnified Taxes” shall mean Taxes other than Excluded
Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document.
“Insignia” shall mean Insignia Financial Group, Inc., a Delaware corporation.
“Interest Coverage Ratio” shall mean, for any period, the ratio of (a) Consolidated
EBITDA (less the amount, if any, thereof consisting of interest or investment income on the deployment of the proceeds of Melody Permitted Indebtedness or loans under the CBRE Loan Arbitrage Facility) for such period to (b) Consolidated
Interest Expense for such period.
“Interest Payment Date” shall mean (a) with
respect to any Daily Rate Loan, the last Business Day of each March, June, September and December and (b) with respect to any Eurocurrency Loan or Flat Rate Loan, the last day of the Interest Period applicable to the Borrowing of which such
Loan is a part and, in the case of a Eurocurrency Borrowing with an Interest Period of more than three months’ duration or a Flat Rate Loan with an Interest Period of more than 90 days duration, each day that would have been an Interest Payment
Date had successive Interest Periods of three months’ or 90 days’, as the case may be, duration been applicable to such Borrowing.
“Interest Period” shall mean, (a) with respect to any Eurocurrency Borrowing or Bank Bill Rate
Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day (or, if there is no numerically corresponding day, on the last day) in the calendar month that is 1, 2, 3 or 6 months thereafter (or
(x) with respect to any Eurocurrency Borrowing, 12 months thereafter and (y) with respect to any Bank Bill Rate Borrowing, 9 or 12 months thereafter, in each case if, at the time of the relevant Borrowing, all Lenders participating
therein agree to make an interest period of such duration available), as the applicable Borrower may elect, and (b) with respect to any Flat Rate Competitive Borrowing, the period commencing on the date of such Borrowing and ending on the date
specified in the Competitive Bids in which the offers to make Flat Rate Competitive Loans comprising such Borrowing were extended; provided, however, that if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on
the next preceding Business Day. Interest shall accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which
such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
“Investment Grade Status” shall mean, at any time, that at least two of the following Credit Ratings
shall be in effect at such time: (1) BBB- or above by S&P, (2) Baa3 or above by Moody’s, and (3) BBB- or better by Fitch, in each case with no negative outlook.
“Investment Subsidiary” shall mean (a) any Subsidiary engaged principally in the business of buying
and holding real estate related assets in anticipation of selling such assets or transferring such assets, which assets may include securities of companies engaged principally in such business, (b) any Subsidiary engaged principally in the
business of investing in and/or managing Co-investment Vehicles and (c) any D&I Subsidiary.
“IRS” means the United States Internal Revenue Service.
“Issuing Bank” shall mean, as the context may require, (a) Credit Suisse AG, JPMorgan Chase Bank,
N.A. and Bank of America, N.A., each in its capacity as an issuer of Letters of Credit hereunder,
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(b) with respect to each Existing Letter of Credit, the Lender that issued such Existing Letter of Credit and (c) any other Lender that may become an Issuing Bank pursuant to
Section 2.23(i) or (k), with respect to Letters of Credit issued by such Lender. Any 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 Affiliate with respect to Letters of Credit issued by such Affiliate.
“Issuing Bank Fees” shall have the meaning assigned to such term in
Section 2.05(d).
“Jerseyco” shall mean CBRE Limited Partnership, a Jersey
limited partnership and an indirect wholly owned Subsidiary of the U.S. Borrower.
“Junior Capital” shall mean Qualified Capital Stock of Holdings or Subordinated
Indebtedness.
“L/C Commitment” shall mean the commitment of each Issuing Bank to
issue Letters of Credit pursuant to Section 2.22 up to an aggregate amount with respect to each Issuing Bank set forth in Schedule 2.01(a).
“L/C Disbursement” shall mean a payment or disbursement made by any Issuing Bank
pursuant to a Letter of Credit.
“L/C Exposure” shall mean at any time the sum of
(a) the Domestic L/C Exposure, (b) the Multicurrency L/C Exposure and (c) the U.K. L/C Exposure.
“L/C Participation Fees” shall mean the fees provided for in Section 2.05(d).
“Lead Arrangers” shall mean Merrill Lynch, Pierce, Fenner & Smith Incorporated,
J.P. Morgan Securities LLC, Credit Suisse Securities (USA) LLC, The Bank of Nova Scotia, HSBC Bank USA, N.A., The Bank of Tokyo-Mitsubishi UFJ, Ltd., The Royal Bank of Scotland PLC and Wells Fargo Securities, and in their respective capacities as
joint lead arrangers of the Credit Facilities.
“Lenders” shall mean (a) the
persons listed on Schedule 2.01 (other than any such person that has ceased to be a party hereto pursuant to an Assignment and Acceptance) and (b) any person that has become a party hereto pursuant to an Assignment and Acceptance, an
Incremental Assumption Agreement or a N.Z. Swingline Lender Designation Agreement. Unless the context clearly indicates otherwise, the term “Lenders” shall include the N.Z. Swingline Lender.
“Letter of Credit” shall mean (a) any letter of credit issued pursuant to Section 2.23 and
(b) any Existing Letter of Credit. A Letter of Credit shall be a “Domestic Letter of Credit” if an Existing Letter of Credit and listed on Schedule 1.01(d) as a Domestic Letter of Credit or if issued or deemed
issued under the Domestic Revolving Credit Commitments, a “Multicurrency Letter of Credit” if an Existing Letter of Credit and listed on Schedule 1.01(d) as a Multicurrency Letter of Credit or issued or deemed issued
under the Multicurrency Revolving Credit Commitments or a “U.K. Letter of Credit” if issued or deemed issued under the U.K. Revolving Credit Commitments.
“Leverage Ratio” shall mean, on any date, the ratio of Total Debt less Available Cash on such date to
Consolidated EBITDA for the period of four consecutive fiscal quarters most recently ended on or prior to such date.
“LIBO Rate” shall mean, with respect to any Eurocurrency Borrowing for any Interest Period, the rate per
annum determined by the Administrative Agent at approximately 11:00 a.m., London time, on the date that is two Business Days prior to or, with respect to Eurocurrency Borrowings denominated in Pounds, at approximately 11:00 a.m. (London
time) on the same day as, the commencement of such
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Interest Period by reference to the ICE Benchmark Administration Interest Settlement Rates for deposits in dollars, Pounds or Euro, as applicable (as set forth by the Bloomberg Information
Service or any successor thereto or any other service selected by the Administrative Agent which has been nominated by the ICE Benchmark Administration Limited (or any person which takes over the administration of that rate) as an authorized
information vendor for the purpose of displaying such rates), for a period equal to such Interest Period; provided that, to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the
“LIBO Rate” shall be the interest rate per annum determined by the Administrative Agent to be the average of the rates per annum at which deposits in dollars, Pounds or Euro, as applicable, are offered for such relevant Interest Period to
major banks in the London interbank market in London, England by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is two Business Days prior to or, with respect to Eurocurrency Borrowings denominated in
Pounds, at approximately 11:00 a.m. (London time) on the same day as, the beginning of such Interest Period.
“Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
encumbrance, charge or security interest in or on such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such asset. For the avoidance of doubt, the grant by any person of a license to use intellectual property owned by, licensed to or developed by such person and such licensing activity shall not
constitute a grant by such person of a Lien on such intellectual property.
“Loan
Documents” shall mean this Agreement, the Letters of Credit, the Security Documents, each Incremental Assumption Agreement, each Loan Modification Agreement, the First Lien Intercreditor Agreement (if applicable) and the Second Lien
Intercreditor Agreement (if applicable).
“Loan Modification Agreement” shall mean a
Loan Modification Agreement in form and substance reasonably satisfactory to the Administrative Agent and the U.S. Borrower, among the U.S. Borrower, the other Loan Parties and one or more Accepting Lenders.
“Loan Modification Offer” shall have the meaning assigned to such term in
Section 9.20(a).
“Loan Parties” shall mean the Borrowers and the
Guarantors.
“Loans” shall mean the Revolving Loans, the Term Loans, the Competitive
Loans and the N.Z. Swingline Loans. Unless the context clearly indicates otherwise, the term “Loans” shall include any Incremental Revolving Loans, Incremental Term Loans, Other Revolving Loans and Other Term Loans.
“Local Time” shall mean, in relation to any Borrowing by (a) the U.S. Borrower, New York time,
(b) the Canadian Borrower, Toronto time, (c) the U.K. Borrower, London time, (d) the Australian Borrower, Melbourne time, and (e) the New Zealand Borrower, Auckland time.
“Luxco” shall mean CBRE Global Holdings SARL, an indirect wholly owned Subsidiary of the
U.S. Borrower.
“Management Subscription Agreements” shall mean (a) each
Management Subscription Agreement among CBRE Clarion, the executives party thereto and the other parties thereto and (b) contracts, agreements or other consensual arrangements between Holdings, CBRE Clarion or any of their respective Affiliates
and directors or employees of CBRE Clarion or its subsidiaries, pursuant to which the parties thereto may be permitted or required, on terms substantially similar to the terms of the agreements described in clause (a) above, to purchase or
otherwise acquire CBRE Clarion Units.
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“Margin Stock” shall have the meaning
assigned to such term in Regulation U.
“Material Adverse Effect” shall mean a
materially adverse effect on (a) the business, assets, operations or financial condition of the U.S. Borrower and the Subsidiaries, taken as a whole, (b) the ability of the U.S. Borrower or any other Loan Party to perform any of
its obligations under any Loan Document to which it is or will be a party or (c) the rights of or benefits available to the Lenders under any Loan Document.
“Material Indebtedness” shall mean Indebtedness (other than the Loans, Letters of Credit and
Non-Recourse Indebtedness), or obligations in respect of one or more Hedging Agreements, of any one or more of Holdings, the U.S. Borrower and the Subsidiaries in an aggregate principal amount exceeding $100,000,000. For purposes of determining
Material Indebtedness, the “principal amount” of the obligations of Holdings, the U.S. Borrower or any Subsidiary in respect of any Hedging Agreement at any time shall be the maximum aggregate amount (giving effect to any netting
agreements) that Holdings, the U.S. Borrower or such Subsidiary would be required to pay if such Hedging Agreement were terminated at such time.
“Melody” shall mean, collectively, (a) CBRE Capital Markets, Inc., a Texas corporation (formerly
known as CBRE Melody & Company) and (b) CBRE Capital Markets of Texas, L.P., a limited partnership under the laws of the State of Texas.
“Melody Lending Program Securities” shall mean mortgage-backed securities or bonds issued by Melody or
any other Mortgage Banking Subsidiary supported by FHA Loans and Guaranteed by the Government National Mortgage Association or any other quasi-federal governmental agency or enterprise or government-sponsored
entity, the proceeds of which securities or bonds are applied by Melody or any other Mortgage Banking Subsidiary to refinance Indebtedness under a Melody Mortgage Warehousing Facility.
“Melody Loan Arbitrage Facility” shall mean a credit facility provided to Melody by any depository bank
in which a Melody entity makes deposits, so long as (a) such Melody entity applies all proceeds of loans made under such credit facility to purchase certain highly-rated debt instruments considered to be permitted short-term investments under
such credit facility and (b) all such permitted short-term investments purchased by such Melody entity with the proceeds of loans thereunder (and proceeds thereof and distributions thereon) are pledged to the depository bank providing such
credit facility, and such bank has a first priority perfected security interest therein, to secure loans made under such credit facility.
“Melody Loan Securitization Funds” shall mean one or more special purpose investment funds formed by
Melody solely for the purpose of originating, securitizing and selling investment tranches of commercial real estate loans.
“Melody Mortgage Warehousing Facility” shall mean (a) a credit facility provided by any bank or
other financial institution extended to Melody or any other Mortgage Banking Subsidiary in connection with any Mortgage Banking Activities, pursuant to which such lender makes loans to Melody or any other Mortgage Banking Subsidiary, the proceeds of
which loans are applied by Melody (or any other Mortgage Banking Subsidiary) to fund commercial mortgage loans originated and owned by Melody (or any other Mortgage Banking Subsidiary) subject to a commitment (subject to customary exceptions) to
purchase such mortgage loans or mortgage-backed securities in respect thereof by (a) the Federal Home Loan Mortgage Corporation, the Federal National Mortgage Association or any other quasi-federal
governmental agency or enterprise or government-sponsored entity or its seller servicer or (b) any other commercial conduit lender, in each case so long as (i) loans made by such lender to Melody (or any other Mortgage Banking Subsidiary)
thereunder are secured by a pledge of commercial mortgage loans made
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by Melody (or any other Mortgage Banking Subsidiary) with the proceeds of such loans, and such lender has a perfected first priority security interest therein, to secure loans made under such
credit facility and (ii) in the case of loans to be sold to a commercial conduit lender, the related Indebtedness of the Mortgage Banking Subsidiary does not exceed a term of 120 days or a loan to value of 80% and (b) any other credit
facility provided by any bank or other financial institution extended to Melody or any other Mortgage Banking Subsidiary pursuant to which such lender makes loans to Melody or any other Mortgage Banking Subsidiary, the proceeds of which loans are
applied by Melody (or any other Mortgage Banking Subsidiary) to fund FHA Loans, so long as such loans to Melody (or any other Mortgage Banking Subsidiary) are repaid by Melody (or any other Mortgage Banking Subsidiary) to such lender with the
proceeds of the sale or issuance of Melody Lending Program Securities.
“Melody Permitted
Indebtedness” shall mean Indebtedness of Melody under the Melody Loan Arbitrage Facility, a Melody Mortgage Warehousing Facility, the Melody Working Capital Facility, the Melody Repo Arrangement and Melody Lending Program Securities,
and Indebtedness of any Mortgage Banking Subsidiary under a Melody Mortgage Warehousing Facility that is, in all cases, non-recourse to the U.S. Borrower or any of the other Subsidiaries.
“Melody Repo Arrangement” shall mean an arrangement whereby mortgage loans originated by Melody are
funded by a third party lender or financial institution (a “Melody Repo Party”) pursuant to an agreement whereby the Melody Repo Party funds and purchases from Melody such mortgage loans upon origination and sells such loans
to Melody prior to Melody’s sale of such loans to the Federal Home Loan Mortgage Corporation or another counterparty.
“Melody Working Capital Facility” shall mean a credit facility provided by a financial institution to
Melody, so long as (a) the proceeds of loans thereunder are applied only to provide working capital to Melody, (b) loans under such credit facility are unsecured and (c) the aggregate principal amount of loans outstanding under such
credit facility at no time exceeds $1,000,000.
“Moody’s” shall
mean Moody’s Investors Service, Inc., or any successor to the ratings agency business thereof.
“Mortgage Banking Activities” shall mean (a) the origination of mortgage loans in respect of
commercial and multi-family residential real property, and the sale or assignment of such mortgage loans and the related mortgages to another person (other than the U.S. Borrower or any Subsidiary) within 120 days after the origination thereof
(or thereafter, so long as the purchaser thereof is a quasi-federal governmental agency or enterprise or government-sponsored entity that shall have confirmed in writing its obligation to purchase such loans
prior to such 120th day), provided, however, that in each case prior to origination of any mortgage loan, the U.S. Borrower or a Mortgage Banking Subsidiary, as the case may be, shall have entered into a
legally binding and enforceable agreement with respect to such mortgage loan with a person that purchases such loans in the ordinary course of business, (b) the origination of FHA Loans and (c) servicing activities related to the
activities described in clauses (a) and (b) above.
“Mortgage Banking
Subsidiary” shall mean Melody and its subsidiaries that are engaged in Mortgage Banking Activities.
“Multicurrency L/C Disbursement” shall mean a payment or disbursement made by any Issuing Bank pursuant
to a Multicurrency Letter of Credit.
“Multicurrency L/C Exposure” shall mean, at any
time, the sum of (a) the aggregate undrawn and unexpired amount of all outstanding Multicurrency Letters of Credit at such time denominated in Dollars, plus the Dollar Equivalent of the aggregate undrawn and unexpired amount of all outstanding
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Multicurrency Letters of Credit at such time denominated in Alternative Currencies and (b) the aggregate principal amount of all Multicurrency L/C Disbursements denominated in dollars that
have not yet been reimbursed at such time, plus the Dollar Equivalent of the aggregate principal amount of all Multicurrency L/C Disbursements denominated in Alternative Currencies that have not been reimbursed at such time. The Multicurrency L/C
Exposure of any Multicurrency Revolving Credit Lender at any time shall equal its Pro Rata Percentage of the aggregate Multicurrency L/C Exposure at such time.
“Multicurrency Letter of Credit” shall mean any letter of credit issued (or deemed issued) pursuant to
Section 2.23 and designated (or deemed designated) as such.
“Multicurrency
Revolving Credit Borrowing” shall mean a Borrowing comprised of Multicurrency Revolving Loans.
“Multicurrency Revolving Credit Commitment” shall mean, with respect to each Lender, the commitment of
such Lender to make Multicurrency Revolving Loans hereunder as set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender assumed its Multicurrency Revolving Credit Commitment, as applicable, as the same may
be (a) reduced from time to time pursuant to Section 2.09, (b) increased from time to time pursuant to Section 2.25 and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04.
“Multicurrency Revolving Credit Exposure” shall mean, with respect
to any Lender at any time, the aggregate principal amount at such time of all outstanding Multicurrency Revolving Loans of such Lender denominated in dollars, plus the Dollar Equivalent of the aggregate principal
amount at such time of all outstanding Multicurrency Revolving Loans of such Lender denominated in Alternative Currencies, plus the aggregate amount at such time of such Lender’s Multicurrency L/C Exposure,
plus the aggregate amount at such time of such Lender’s N.Z. Swingline Exposure.
“Multicurrency Revolving Credit Lender” shall mean a Lender with a Multicurrency Revolving Credit
Commitment or outstanding Multicurrency Revolving Credit Exposure.
“Multicurrency Revolving
Loans” shall mean the revolving loans made by the Multicurrency Revolving Credit Lenders to the Borrowers pursuant to clause (iii) of Section 2.01.
“Multiemployer Plan” shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
“Net Cash Proceeds” shall mean (a) with
respect to any Asset Sale (other than the sale of Receivables pursuant to a Receivables Securitization Transaction), the cash proceeds (including cash proceeds subsequently received (as and when received) in respect of noncash consideration
initially received), net of (i) selling expenses (including reasonable broker’s fees or commissions, warranty reserves relating to condominium sales, legal fees, transfer and similar Taxes and the U.S. Borrower’s good faith estimate
of Taxes paid or reasonably estimated to be payable in connection with such sale), (ii) amounts provided as a reserve, in accordance with GAAP, against any liabilities under any indemnification obligations or purchase price adjustment
associated with such Asset Sale (provided that, to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Cash Proceeds) and (iii) the principal amount,
premium or penalty, if any, interest and other amounts on any Indebtedness for borrowed money which is secured by the asset sold in such Asset Sale and which is required to be repaid with such proceeds (other than any such Indebtedness assumed by
the purchaser of such asset); provided, however, that, if (x) the U.S. Borrower shall deliver a certificate of a Financial Officer to the Administrative Agent at the time of
receipt thereof setting forth the U.S. Borrower’s intent to reinvest such proceeds in assets of a kind then used or usable in the business of the U.S. Borrower and its Subsidiaries or in the Equity Interests of a person engaged in the same or
related
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business as that of the U.S. Borrower or any Subsidiary within 365 days of receipt of such proceeds and (y) no Default or Event of Default shall have occurred and shall be continuing at the
time of such certificate or at the proposed time of the application of such proceeds, such proceeds shall not constitute Net Cash Proceeds except to the extent not so used or contractually committed to be used at the end of such 365-day period, at
which time such proceeds shall be deemed to be Net Cash Proceeds; and (b) with respect to any incurrence or disposition of Indebtedness or any Equity Issuance, the cash proceeds thereof, net of all Taxes and customary fees, commissions, costs
and other expenses incurred in connection therewith.
“New Zealand Dollars” or
“NZ$” shall mean lawful currency of New Zealand.
“Non-Guarantor Subsidiary” shall mean any subsidiary of Holdings that is not a Loan
Party.
“Non-Recourse Indebtedness” shall mean Indebtedness of, or Guarantees by, an
Investment Subsidiary; provided that (a) such Indebtedness is incurred solely in relation to the permitted investment or real estate development activities of such Investment Subsidiary and (b) such
Indebtedness is not Guaranteed by, or otherwise recourse to, Holdings, the U.S. Borrower or any Subsidiary other than an Investment Subsidiary (subject to customary environmental indemnities or completion or budget guarantees, and subject to
customary exclusions from liability by lenders in non-recourse financing transactions secured by real property (including by means of separate indemnification agreements or carve-out guarantees)); provided further
that, if any such Indebtedness is partially Guaranteed by or otherwise recourse to Holdings, the U.S. Borrower or any Subsidiary other than an Investment Subsidiary, the portion of such Indebtedness not so Guaranteed or recourse shall be
“Non-Recourse Indebtedness” hereunder.
“Notice of Competitive Bid Request” shall mean a
notification made pursuant to Section 2.27 in the form of Exhibit J-2, or another form approved by the Advance Agent.
“N.Z. Swingline Commitment” shall mean the commitment of the N.Z. Swingline Lender to make N.Z.
Swingline Loans to the New Zealand Borrower pursuant to Section 2.22, as the same may be reduced from time to time pursuant to Section 2.09.
“N.Z. Swingline Exposure” shall mean at any time the aggregate principal amount at such time of all
outstanding N.Z. Swingline Loans. The N.Z. Swingline Exposure of any Multicurrency Revolving Credit Lender at any time shall equal its Pro Rata Percentage of the aggregate N.Z. Swingline Exposure at such time.
“N.Z. Swingline Lender” shall mean any Lender or any of its Affiliates that may become a N.Z. Swingline
Lender pursuant to Section 2.22(f).
“N.Z. Swingline Lender Designation Agreement”
shall mean (a) the N.Z. Swingline Lender Designation Agreement dated as of January 9, 2015, among the U.S. Borrower, the New Zealand Borrower, the Administrative Agent and The Hongkong and Shanghai Banking Corporation Limited, New Zealand
Branch, as N.Z. Swingline Lender and (b) any N.Z. Swingline Lender Designation Agreement among, and in a form and substance satisfactory to, the New Zealand Borrower, the U.S. Borrower and the Administrative Agent.
“N.Z. Swingline Loan” shall mean any loan made by the N.Z. Swingline Lender to the New Zealand
Borrower pursuant to Section 2.22.
“Obligations” shall have the meaning assigned
to such term in the Guarantee and Pledge Agreement.
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“Other Revolving Credit Borrowing” shall
mean a Borrowing comprised of Other Revolving Loans.
“Other Revolving Credit
Commitments” shall mean one or more Classes of revolving credit commitments that result from a modification of the Revolving Credit Commitments pursuant to a Loan Modification Offer.
“Other Revolving Loans” shall mean the revolving loans made pursuant to an Other
Revolving Credit Commitment.
“Other Taxes” shall mean any and all present or future
stamp, court or documentary intangible, recording, filing or similar Taxes or any other similar excise or property Taxes, charges or levies arising from any payment made under any Loan Document or from the execution, delivery, performance,
enforcement or registration of, from the receipt or perfection of a security interest under or otherwise with respect to, any Loan Document.
“Other Term Borrowing” shall mean a Borrowing comprised of Other Term Loans.
“Other Term Loan Maturity Date” shall mean the final maturity date of any Other Term Loan,
as set forth in the applicable Loan Modification Agreement.
“Other Term Loan Repayment
Date” shall mean each date on which the principal of any Other Term Loan is scheduled to be repaid, as set forth in the applicable Loan Modification Agreement.
“Other Term Loans” shall mean one or more Classes of term loans that result from a Permitted Amendment
effected pursuant to a Loan Modification Offer.
“Participant
Register” shall have the meaning assigned to such term in Section 9.04(g).
“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any
successor entity performing similar functions.
“Perfection Certificate” shall mean a
Perfection Certificate substantially in the form of Exhibit B to the Guarantee and Pledge Agreement.
“Performance Bond” shall mean any letter of credit, bond, or similar security device securing
(a) the obligation of the U.S. Borrower or any Subsidiary to complete construction of improvements to real property or (b) the obligations of the U.S. Borrower or any Subsidiary under the terms of a client contract.
“Permitted Acquisition” shall have the meaning assigned to such term in
Section 6.03(g).
“Permitted Amendments” shall have the meaning
assigned to such term in Section 9.20(c).
“Permitted Co-investment” shall mean
(a) any investment by the U.S. Borrower or any Subsidiary in, loans or advances by the U.S. Borrower or any Subsidiary to, or any Guarantee by the U.S. Borrower or any Subsidiary of the Indebtedness of, a Co-investment Vehicle or separate
account or investment program managed, operated or sponsored by an Investment Subsidiary, or loans or advances to employees of the U.S. Borrower or any Subsidiary to finance such employees’ co-investments (which loans or advances are secured by
such employees’ co-investment interest); provided, however, that if the aggregate commitments of all investors in a Co-investment Vehicle or separate account or investment
program is (i) $50,000,000 or less, (x) the total of such investments, loans and advances shall not be greater than 10% of the aggregate commitment of such Co-investment Vehicle or separate account or investment program and (y) such
Guarantee shall not be greater than 10% of the aggregate committed
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Indebtedness of such Co-investment Vehicle or separate account or investment program and (ii) greater than $50,000,000, (x) the total of such investments, loans and advances shall
not be greater than 6% of the aggregate commitment of such Co-investment Vehicle or separate account or investment program and (y) such Guarantee shall not be greater than 6% of the aggregate committed Indebtedness of such Co-investment Vehicle
or separate account or investment program, (b) any Guarantee of Indebtedness of a Co-investment Vehicle managed, operated or sponsored by an Investment Subsidiary; provided that the other investors in such Co-investment Vehicle provide
Approved Credit Support for their pro rata share of such Guarantee and (c) any investment in which an Approved Take Out Party provides an Approved Take Out Commitment in respect of such investment (it being understood that any particular
investment or Guarantee may be allocated to one or more categories specified in clauses (a), (b) and (c) above).
“Permitted Investments” shall mean:
(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the
United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such
date of acquisition, a rating of at least A-2 from S&P or P-2 from Moody’s;
(c) investments in certificates of deposit, banker’s acceptances and time deposits maturing within one year from the
date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, the Administrative Agent or any domestic office of any commercial bank organized under the laws of the United States of
America or any State thereof that has a combined capital and surplus and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in
clause (a) above and entered into with a financial institution satisfying the criteria of clause (c) above;
(e) investments in “money market funds” within the meaning of
Rule 2a-7 of the Investment Company Act of 1940, as amended, substantially all of whose assets are invested in investments of the type described in clauses (a) through (d) above; and
(f) other short-term investments utilized by Foreign Subsidiaries in accordance with normal investment practices for cash
management in investments of a type analogous to the foregoing.
“Permitted Investors” shall mean
(a) the Sponsors and any other person who is an Affiliate of any of the foregoing and (b) any member of senior management of the U.S. Borrower on the date hereof.
“Permitted Receivables Securitization” shall have the meaning assigned to such term in
Section 6.04(b)(iii).
“person” shall mean any natural person, corporation, business
trust, joint venture, association, company, limited liability company, partnership, Governmental Authority or other entity.
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“Plan” shall mean any employee pension benefit plan (other
than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA sponsored, maintained or contributed to by the U.S. Borrower or any ERISA Affiliate.
“Platform” shall have the meaning assigned to such term in Section 9.01.
“Pounds” or “£” shall mean lawful currency
for the time being of the United Kingdom.
“Prime Rate” shall mean the rate of
interest per annum determined from time to time by Credit Suisse AG as its prime rate in effect at its principal office in New York City and notified to the U.S. Borrower.
“Pro Forma Basis” shall mean, with respect to compliance with any test or covenant hereunder, in
connection with or after the occurrence of any Permitted Acquisition or Significant Asset Sale, compliance with such covenant or test after giving effect to any such proposed Permitted Acquisition or Significant Asset Sale (including pro forma
adjustments determined, except as otherwise permitted by the last sentence of the definition of Consolidated EBITDA, on a basis consistent with Article 11 of Regulation S-X of the Securities Act of
1933, as amended, and as interpreted by the staff of the Securities and Exchange Commission using, for purposes of determining such compliance, the historical financial statements of all entities or assets so acquired or to be acquired or sold or to
be sold and the consolidated financial statements of the U.S. Borrower and the Subsidiaries which shall be reformulated as if such Permitted Acquisition or Significant Asset Sale, and any other Permitted Acquisitions or Significant Asset Sales that
have been consummated during or after the end of the relevant period, and any Indebtedness or other liabilities incurred or repaid in connection with any such Permitted Acquisitions or Significant Asset Sale or otherwise after the end of the
relevant period had been consummated or incurred or repaid, as the case may be, at the beginning of such period and assuming that any such Indebtedness so incurred bears interest during any portion of the applicable measurement period prior to the
relevant acquisition at the weighted average of the interest rates applicable to outstanding Loans during such period).
“Pro Forma Compliance” shall mean, at any date of determination, that Holdings shall be in pro forma
compliance with the covenants set forth in Sections 6.08 and 6.09 as of the last day of the most recent fiscal quarter-end (computed on the basis of (a) balance sheet amounts as of the most recently completed fiscal quarter and
(b) income statement amounts for the most recently completed period of four consecutive fiscal quarters, in each case, for which financial statements shall have been delivered to the Administrative Agent and calculated on a Pro Forma
Basis).
“Pro Rata Percentage” of any Domestic Revolving Credit Lender, Multicurrency Revolving
Credit Lender or U.K. Revolving Credit Lender at any time shall mean the percentage of the Total Domestic Revolving Credit Commitment, Total Multicurrency Revolving Credit Commitments or Total U.K. Revolving Credit Commitment, respectively,
represented by such Lender’s Domestic Revolving Credit Commitment, Multicurrency Revolving Credit Commitment or U.K. Revolving Credit Commitment, respectively; provided that in the case of Section 2.17(i) only, when a Defaulting
Lender under a Class of Revolving Credit Commitments shall exist, the “Pro Rata Percentage” of any Revolving Credit Lender under such Class shall mean the percentage of the Total Domestic Revolving Credit Commitment, Total Multicurrency
Revolving Credit Commitment or Total U.K. Revolving Credit Commitment, as the case may be (in each case disregarding any Defaulting Lender’s Revolving Credit Commitment of such Class) represented by such Lender’s Domestic Revolving Credit
Commitment, Multicurrency Revolving Credit Commitment or U.K. Revolving Credit Commitment, as the case may be. In the event that the Domestic Revolving Credit Commitments, Multicurrency Revolving Credit Commitments or U.K. Revolving Credit
Commitments shall have expired or been terminated, the Pro Rata Percentages shall be determined on the basis of the Domestic Revolving Credit Commitments, Multicurrency Revolving Credit Commitments or U.K. Revolving Credit Commitments, as the case
may be, most recently in effect.
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“Public Lender” shall have the meaning
assigned to such term in Section 9.01.
“Purchase” shall mean the purchase of a
Purchased Loan by a Borrower (a) pursuant to an Auction or (b) in the open market; provided that no Default or Event of Default shall have occurred and be continuing.
“Purchased Loan” shall mean each Term Loan purchased by a Borrower pursuant to an Auction or in the open
market, which Purchased Loan shall automatically be retired and not outstanding for any purposes of this Agreement or the other Loan Documents.
“Qualified Capital Stock” of any person shall mean any Equity Interest of such person
that is not Disqualified Stock.
“Qualifying Lease” shall mean a lease agreement
entered into by a D&I Subsidiary, as lessor, to lease the real property owned by such D&I Subsidiary upon completion of construction thereof to the extent that (a) the senior unsecured non-credit-enhanced long-term debt of the tenant or
the guarantor of the tenant’s obligations under such lease is rated BBB- or higher by S&P or Baa3 or higher by Moody’s, (b) the obligation of such tenant to accept possession of such real property and begin paying rent under such
lease is not subject to any material condition other than (i) completion of construction in accordance with all requirements of applicable law and approved plans and specifications and on or before a date certain and (ii) issuance of a
certificate of occupancy, (c) such lease has a non-cancelable primary term of 10 years or more and (d) such tenant has not failed or refused to perform under such lease agreement or notified TCC or the applicable D&I Subsidiary of its
intention to not perform under such lease agreement (provided that the failure of one (but not more than one) tenant under a Qualifying Lease to meet the ratings criteria set forth in clause (a) above shall
not result in the disqualification of such lease as a Qualifying Lease so long as, at the time such lease was entered into, such ratings criteria were satisfied, and such tenant only fails to satisfy such ratings criteria due to subsequent rating
downgrades).
“Receivables” shall mean a right to receive payment arising from a sale
or lease of goods or the performance of services by a person pursuant to an arrangement with another person by which such other person is obligated to pay for goods or services under terms that permit the purchase of such goods and services on
credit, and all proceeds thereof and rights (contractual or other) and collateral related thereto, and shall include, in any event, any items of property that would be classified as accounts receivable on the balance sheet of Holdings or any of the
Subsidiaries prepared in accordance with GAAP or an “account”, “chattel paper”, an “instrument”, a “general intangible” or a “payment intangible” under the Uniform Commercial Code as in effect in the
State of New York and any “supporting obligations” or “proceeds” (as so defined) of any such items.
“Receivables Securitization” shall mean, with respect to the U.S. Borrower and/or any of the
Subsidiaries, any transaction or series of transactions of securitizations involving Receivables pursuant to which the U.S. Borrower or any Subsidiary may sell, convey or otherwise transfer to a Securitization Subsidiary (or, in the case of a
Foreign Subsidiary, may factor), and may grant a corresponding security interest in, any Receivables (whether now existing or arising in the future) of the U.S. Borrower or any Subsidiary, and any assets related thereto including collateral securing
such Receivables, contracts and all Guarantees or other obligations in respect of such Receivables, the proceeds of such Receivables and other assets which are customarily transferred, or in respect of which security interests are customarily
granted, in connection with securitizations involving Receivables.
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“Receivables Securitization Amount” shall mean, with
respect to any Receivables Securitization, the amount of obligations outstanding under the legal documents entered into as part of such Receivables Securitization on any date of determination that would be characterized as principal if such
Receivables Securitization were structured as a secured lending transaction rather than as a purchase.
“Register” shall have the meaning assigned to such term in Section 9.04(d).
“Regulation T” shall mean Regulation T of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
“Regulation U” shall mean Regulation U of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
“Regulation X” shall
mean Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“Related Fund” shall mean, with respect to any Lender, any other person that (a) invests in bank
loans and (b) is advised or managed by the same investment advisor as such Lender, by an Affiliate of such investment advisor or by such Lender.
“Related Parties” shall mean, with respect to any specified person, such person’s Affiliates and
the respective directors, trustees, officers, employees, agents and advisors of such person and such person’s Affiliates.
“Release” shall mean any release, spill, emission, leaking, dumping, injection, pouring, deposit,
disposal, discharge, dispersal, leaching or migration into or through the indoor or outdoor environment or within or upon any building or fixture.
“Repayment Date” shall mean a Tranche A Repayment Date, an Incremental Term Loan Repayment Date or an
Other Term Loan Repayment Date.
“Required Lenders” shall mean, at any time, Lenders having Loans
(excluding N.Z. Swingline Loans and Competitive Bid Loans), L/C Exposure, N.Z. Swingline Exposure, unused Revolving Credit Commitments and Term Loan Commitments (if any) representing at least a majority of the sum of all Loans outstanding (excluding
N.Z. Swingline Loans and Competitive Bid Loans), L/C Exposure, N.Z. Swingline Exposure, unused Revolving Credit Commitments and Term Loan Commitments (if any) at such time; provided that the Loans, L/C Exposure, N.Z. Swingline Exposure,
unused Revolving Credit Commitments and Term Loan Commitments (if any) of any Defaulting Lender shall be disregarded (in both the numerator and the denominator) in the determination of the Required Lenders at any time; provided further that,
for purposes of declaring the Loans to be due and payable pursuant to Article VII, and for all purposes after the loans become due and payable pursuant to Article VII or the Domestic Revolving Credit Commitments shall have expired or
terminated, the Competitive Loans of the Lenders shall be included in their respective Loans in determining the Required Lenders.
“Responsible Officer” of any person shall mean any executive officer or Financial Officer of such person
and any other officer or similar official thereof responsible for the administration of the obligations of such person in respect of this Agreement.
“Restricted Payment” shall mean (a) any dividend or other distribution (whether in cash, securities
or other property other than Qualified Capital Stock) with respect to any Equity Interests in Holdings, the U.S. Borrower or any Subsidiary, or any payment (whether in cash, securities or other property other than Qualified Capital Stock),
including any sinking fund or similar deposit, on account of
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the purchase, redemption, retirement, acquisition, cancelation or termination of any Equity Interests in Holdings, the U.S. Borrower or any Subsidiary or any option, warrant or other
right to acquire any such Equity Interests in Holdings, the U.S. Borrower or any Subsidiary and (b) the consideration payable by or on behalf of a Borrower in connection with a Purchase; provided, however, that neither Employee
Performance Payments nor the payment to employees of Holdings, the U.S. Borrower or any Subsidiary of “co-investment return” or “carried interest” or any distribution of an equity interest in respect thereof, or any other
incentive distributions from Investment Subsidiaries or distributions contemplated by the definition of the term “Foreign Restructuring Transaction” in connection with the consummation thereof or distributions which constitute a Specified
Restructuring Transaction shall be deemed to be Restricted Payments.
“Revolving Credit
Borrowing” shall mean a Domestic Revolving Credit Borrowing, a Multicurrency Revolving Credit Borrowing or a U.K. Revolving Credit Borrowing.
“Revolving Credit Commitment” shall mean a Domestic Revolving Credit Commitment, a Multicurrency
Revolving Credit Commitment or a U.K. Revolving Credit Commitment.
“Revolving Credit
Exposure” shall mean, with respect to any Lender at any time, the sum of such Lender’s Domestic Revolving Credit Exposure, Multicurrency Revolving Credit Exposure and U.K. Revolving Credit Exposure.
“Revolving Credit Lender” shall mean a Domestic Revolving Credit Lender, a Multicurrency Revolving
Credit Lender or a U.K. Revolving Credit Lender.
“Revolving Credit Maturity
Date” shall mean January 9, 2020.
“Revolving Loans” shall mean the
Domestic Revolving Loans, the Multicurrency Revolving Loans and the U.K. Revolving Loans. Unless the context clearly indicates otherwise, the term “Revolving Loans” shall include any Incremental Revolving Loans and Other Revolving
Loans.
“S&P” shall mean Standard & Poor’s Ratings
Service or any successor to the ratings agency business thereof.
“Schedule I
Bank” shall mean a bank that is a Canadian chartered bank listed on Schedule I under the Bank Act (Canada).
“SEC” shall mean the Securities and Exchange Commission, or any Governmental Authority succeeding to any
or all of its functions.
“Second Lien Intercreditor Agreement” shall
have the meaning assigned to such term in Section 6.02(q).
“Second Restatement
Date” shall mean January 9, 2015.
“Secured Parties”
shall have the meaning assigned to such term in the Guarantee and Pledge Agreement.
“Securitization Subsidiary” shall mean any Subsidiary formed solely for the purpose of engaging, and
that engages only, in one or more Permitted Receivables Securitizations; provided that, prior to the Security Release Date, all the Equity Interests of any such Subsidiary shall be pledged to the Collateral Agent
for the ratable benefit of the Secured Parties pursuant to the Guarantee and Pledge Agreement.
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“Security Documents” shall mean the Guarantee and Pledge
Agreement and each of the security agreements and other instruments and documents executed and delivered pursuant thereto or pursuant to Section 5.09 or Section 9.19(c).
“Security Release Date” shall have the meaning assigned to such term in
Section 9.19(c).
“Senior Secured Debt” shall mean, at any time,
the Total Debt that is secured by a Lien.
“Senior Secured Leverage Ratio” shall mean,
on any date, the ratio of Senior Secured Debt less Available Cash on such date to Consolidated EBITDA for the period of four consecutive fiscal quarters most recently ended on or prior to such date.
“Significant Asset Sale” shall mean the sale, transfer, lease or other disposition (whether in one
transaction or a series of related transactions, but in each case only if the aggregate fair market value of the assets so sold exceeds 5% of Total Assets at the time of such sale, transfer, lease or other disposition) by Holdings, the
U.S. Borrower or any Subsidiary to any person other than Holdings, the U.S. Borrower or any Subsidiary of all or substantially all of the assets of, or a majority of the Equity Interests in, a person, or a division or line of business or
business unit of a person.
“Significant Domestic Subsidiary” shall mean each Domestic
Subsidiary (a) that has consolidated total assets of more than $15,000,000 and (b) of which securities or other ownership interests representing more than 80% of the equity or more than 80% of the ordinary voting power or more than 80% of
the general partnership interests are, at the time any determination is being made, owned, Controlled or held, directly or indirectly, by the U.S. Borrower.
“SPC” shall have the meaning assigned to such term in Section 9.04(j).
“Specified D&I Investments” shall mean such Investments described as “Specified
D&I Investments” in a certificate dated on or shortly prior to the Second Restatement Date and signed by a Responsible Officer of the U.S. Borrower.
“Specified Incremental Revolving Credit Commitments” shall have the meaning assigned to
such term in Section 2.25(a).
“Specified Incremental Revolving Loans”
shall have the meaning assigned to such term in Section 2.25(a).
“Specified
Incremental Term Loan Commitments” shall have the meaning assigned to such term in Section 2.26(a).
“Specified Incremental Term Loans” shall have the meaning assigned to such term in
Section 2.26(a).
“Specified Investments” shall mean such Investments described as
“Specified Investments” in a certificate dated on or shortly prior to the Second Restatement Date and signed by a Responsible Officer of the U.S. Borrower.
“Specified Restructuring Transactions” shall mean such transactions described as “Specified
Restructuring Transactions” in a certificate dated on or shortly prior to the Second Restatement Date and signed by a Responsible Officer of the U.S. Borrower.
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“Specified Subsidiary” shall mean (a) CBRE Multifamily
Capital, Inc., (b) CBRE HMF, Inc., (c) any other entity formed or acquired, directly or indirectly, by Melody or by a Borrower for the primary purpose of engaging in Mortgage Banking Activities and (d) CBRE Capital Advisors,
Inc.
“Sponsors” shall mean Blum Strategic Partners, L.P. and Freeman
Spogli & Co. Incorporated.
“Statutory Reserves” shall mean a fraction
(expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board and any other banking authority, domestic or foreign, to which the Administrative Agent or any Lender (including any branch, Affiliate, or other fronting office making or holding a Loan) is subject for
Eurocurrency Liabilities (as defined in Regulation D of the Board). Eurocurrency Loans shall be deemed to constitute Eurocurrency Liabilities (as defined in Regulation D of the Board) and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D. Statutory Reserves shall be adjusted automatically on and as of the effective date of any change in any
reserve percentage.
“Subordinated Indebtedness” shall mean unsecured Indebtedness of
Holdings or the U.S. Borrower, which may be Guaranteed on a subordinated basis by Holdings, the U.S. Borrower or one or more Subsidiary Guarantors, that (a) is expressly subordinated to the prior payment in full in cash of the Obligations, on
terms and conditions reasonably satisfactory to the Administrative Agent, (b) contains no financial “maintenance” covenants, (c) matures on or after the 180th day following the latest final maturity date for any of the Loans and
has no scheduled amortization, payments of principal, sinking fund payments or similar scheduled payments (other than regularly scheduled payments of interest) prior to the 180th day following the latest final maturity date for any of the Loans;
provided, however, that Indebtedness that was Subordinated Indebtedness when issued shall not cease to be Subordinated Indebtedness solely as a result of the subsequent extension
of the final maturity date of any of the Loans pursuant to Section 9.20, and (d) in the case of any such Subordinated Indebtedness incurred after the Second Restatement Date, provides that any such Guarantee by a Subsidiary shall be
released automatically upon the Guarantee Release Date.
“subsidiary” shall mean, with
respect to any person (herein referred to as the “parent”), any corporation, partnership, association or other business entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more than 50% of the general partnership interests (other than the general partnership interests or similar interests owned, Controlled or held by the U.S. Borrower or any
Subsidiary in any Co-investment Vehicle) are, at the time any determination is being made, owned, Controlled or held or (b) that is, at the time any determination is being made, otherwise consolidated in the financial statements of the parent
in accordance with GAAP.
“Subsidiary” shall mean any subsidiary of Holdings;
provided, however, that no Melody Loan Securitization Fund shall be deemed to be a Subsidiary for purposes of this Agreement or the other Loan Documents.
“Subsidiary Guarantor” shall mean each Domestic Subsidiary listed on Schedule 1.01(a) and each
other Subsidiary that is or becomes a party to the Guarantee and Pledge Agreement, in each case for so long as such Subsidiary Guarantees the Obligations.
“Synthetic Purchase Agreement” shall mean any swap, derivative or other agreement or combination of
agreements pursuant to which Holdings, the U.S. Borrower or any Subsidiary is or may become obligated to make (a) any payment in connection with a purchase by any third party from a
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person other than Holdings, the U.S. Borrower or any Subsidiary of any Equity Interest or (b) any payment (other than on account of a permitted purchase by it of any Equity Interest) the
amount of which is determined by reference to the price or value at any time of any Equity Interest; provided that no phantom stock or similar plan providing for payments only to current or former directors, officers, employees or consultants
of Holdings, the U.S. Borrower or the Subsidiaries (or to their heirs or estates) shall be deemed to be a Synthetic Purchase Agreement.
“Take Out Commitment” shall mean a written obligation of a person either (a) to purchase real
property and the improvements thereon for an amount sufficient to repay the interim construction loan used to acquire and construct such real property and improvements or (b) to provide debt and/or equity financing the proceeds of which are to
be used to repay the interim construction loan used to acquire and construct real property and improvements thereon.
“Taxes” shall mean any and all present or future taxes, levies, imposts, duties, deductions, charges,
liabilities or withholdings imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“TCC” shall mean Trammell Crow Company.
“Term Borrowing” shall mean a Borrowing comprised of Tranche A Loans, Incremental Term
Loans or Other Term Loans.
“Term Lender” shall mean a Lender with an
outstanding Term Loan.
“Term Loan Commitments” shall mean the Tranche A Commitments.
Unless the context clearly indicates otherwise, the term “Term Loan Commitments” shall include any Incremental Term Loan Commitments.
“Term Loans” shall mean the Tranche A Loans. Unless the context clearly indicates otherwise, the term
“Term Loans” shall include any Incremental Term Loans and Other Term Loans.
“Total
Assets” shall mean, at any date of determination, the total consolidated assets of the U.S. Borrower and its consolidated Subsidiaries at such date determined on a consolidated basis in accordance with GAAP, but excluding the
consolidated assets of any Subsidiary with Non-Recourse Indebtedness.
“Total
Debt” shall mean, at any time, the total Indebtedness of Holdings and its consolidated subsidiaries at such time, determined on a consolidated basis in accordance with GAAP, excluding (a) Melody Permitted Indebtedness,
(b) Non-Recourse Indebtedness, (c) Indebtedness of the type described in clause (i) of the definition of such term (and any Guarantee of such Indebtedness) and Indebtedness under Performance Bonds, in each case, except to the extent
of any unreimbursed drawings thereunder, (d) Exempt Construction Loans of any D&I Subsidiary, (e) the amount of any Indebtedness supported by Approved Credit Support, (f) Indebtedness under the CBRE Loan Arbitrage Facility, and
(g) any Permitted Receivables Securitization; provided that, at the election of the Borrower, Excluded Subordinated Indebtedness may also be excluded so long as the proceeds of such Excluded Subordinated
Indebtedness are used to prepay Senior Secured Debt.
“Total Domestic Revolving Credit
Commitment” shall mean, at any time, the aggregate amount of the Domestic Revolving Credit Commitments, as in effect at such time. The Total Domestic Revolving Credit Commitment in effect on the Second Restatement Date is
$2,100,000,000.
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“Total Multicurrency Revolving Credit Commitment” shall
mean, at any time, the aggregate amount of the Multicurrency Revolving Credit Commitments, as in effect at such time. The Total Multicurrency Revolving Credit Commitment in effect on the Second Restatement Date is $200,000,000.
“Total U.K. Revolving Credit Commitment” shall mean, at any time, the aggregate amount of the U.K.
Revolving Credit Commitments, as in effect at such time. The Total U.K. Revolving Credit Commitment in effect on the Second Restatement Date is $300,000,000.
“Tranche A Borrowing” shall mean a Borrowing comprised of Tranche A Loans.
“Tranche A Commitment” shall mean, with respect to each Lender, the commitment of such
Lender to make Tranche A Loans hereunder as set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender assumed its Tranche A Commitment, as applicable, as the same may be (a) reduced from time to time
pursuant to Section 2.09, (b) increased from time to time pursuant to Section 2.26 and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.
“Tranche A Lender” shall mean a Lender with a Tranche A Commitment or an outstanding
Tranche A Loan.
“Tranche A Loans” shall mean the term loans made by the Lenders to
the U.S. Borrower pursuant to clause (a)(i) of Section 2.01 of this Agreement. Unless the context clearly indicates otherwise, the term “Tranche A Loans” shall include any Incremental Term Loans that are designated as such in the
applicable Incremental Assumption Agreement and that are made on terms identical to the Tranche A Loans.
“Tranche A Maturity Date” shall mean January 9, 2020.
“Tranche A Repayment Date” shall have the meaning assigned to such term in
Section 2.11(a)(i).
“Transactions” shall mean, collectively, (a) the
execution, delivery and performance of this Agreement and the making of the Borrowings hereunder, (b) the execution and delivery of the Guarantee and Pledge Agreement and any other Security Documents required to be executed and delivered
pursuant to Section 5.09, (c) the Existing Tranche A Loan Refinancing, (d) the Existing Tranche B Loan Repayment and (e) the payment of all fees and expenses to be paid on or prior to the Second Restatement Date and owing in
connection with the foregoing.
“Type”, when used in respect of any Loan or Borrowing,
shall refer to the Rate by reference to which interest on such Loan or on the Loans comprising such Borrowing is determined. For purposes hereof, the term “Rate” shall include the Adjusted LIBO Rate, the Alternate Base Rate,
the Bank Bill Rate, the Canadian Prime Rate, the U.S. Base Rate, the Foreign Base Rate, each Flat Rate and the Discount Rate applicable to Bankers’ Acceptances and B/A Equivalent Loans.
“U.K. Borrowing Entity” shall mean the U.K. Borrower or any Borrower that is incorporated or otherwise
organized under the laws of the United Kingdom or any political subdivision thereof.
“U.K. L/C
Disbursement” shall mean a payment or disbursement made by any Issuing Bank pursuant to a U.K. Letter of Credit.
“U.K. L/C Exposure” shall mean, at any time, the sum of (a) the aggregate undrawn and unexpired
amount of all outstanding U.K. Letters of Credit at such time denominated in dollars, plus the Dollar Equivalent of the aggregate undrawn and unexpired amount of all outstanding U.K. Letters of
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Credit at such time denominated in Alternative Currencies and (b) the aggregate principal amount of all U.K. L/C Disbursements denominated in dollars that have not yet been reimbursed at
such time, plus the Dollar Equivalent of the aggregate principal amount of all U.K. L/C Disbursements denominated in Alternative Currencies that have not been reimbursed at such time. The U.K. L/C Exposure of any U.K. Revolving Credit Lender at any
time shall equal its Pro Rata Percentage of the aggregate U.K. L/C Exposure at such time.
“U.K. Letter of
Credit” shall mean any letter of credit issued (or deemed issued) pursuant to Section 2.23 and designated (or deemed designated) as such.
“U.K. Revolving Credit Borrowing” shall mean a Borrowing comprised of U.K. Revolving
Loans.
“U.K. Revolving Credit Commitment” shall mean, with respect to each Lender,
the commitment of such Lender to make U.K. Revolving Loans hereunder as set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender assumed its U.K. Revolving Credit Commitment, as applicable, as the same may
be (a) reduced from time to time pursuant to Section 2.09, (b) increased from time to time pursuant to Section 2.25 and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04.
“U.K. Revolving Credit Exposure” shall mean, with respect to any
Lender at any time, the aggregate principal amount at such time of all outstanding U.K. Revolving Loans of such Lender denominated in dollars, plus the Dollar Equivalent of the aggregate principal amount at such
time of all outstanding U.K. Revolving Loans of such Lender denominated in Alternative Currencies, plus the aggregate amount at such time of such Lender’s U.K. L/C Exposure.
“U.K. Revolving Credit Lender” shall mean a Lender with a U.K. Revolving Credit Commitment or
outstanding U.K. Revolving Credit Exposure.
“U.K. Revolving Loans” shall mean the
revolving loans made by the Lenders to the U.S. Borrower or the U.K. Borrower pursuant to clause (iv) of Section 2.01.
“USA PATRIOT Act” shall mean the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law on October 26, 2001)).
“U.S. Base Rate” shall mean, for any day, a rate per annum equal to the greater of (a) the rate of
interest per annum determined from time to time by the Administrative Agent as its base rate in effect at its principal office in Toronto, Ontario for determining interest rates on U.S. dollar-denominated commercial loans made in Canada and
(b) the Federal Funds Effective Rate in effect on such day plus 1⁄2 of 1%.
“U.S. Person” shall mean any person that is a “United States Person” as
defined in Section 7701(a)(30) of the Code.
“U.S. Tax Compliance
Certificate” shall have the meaning assigned to such term in Section 2.20(g)(ii)(B)(iii).
“Voluntary Prepayment” shall mean a prepayment of principal of Term Loans pursuant to Section 2.12 in any period
of four consecutive quarters ending on June 30 of any year (other than any such prepayment made with the proceeds of Indebtedness, equity issuances, casualty proceeds, condemnation proceeds or other proceeds that would not be included in
Consolidated EBITDA) to the extent that such prepayment reduces the scheduled installments of principal due in respect of Term Loans as set forth in Section 2.11(a) or (b), as the case may be, in any subsequent period.
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“wholly owned Subsidiary” of any person shall mean a
subsidiary of such person of which securities (except for directors’ qualifying shares) or other ownership interests representing 100% of the Equity Interests are, at the time any determination is being made, owned, controlled or held by such
person or one or more wholly owned Subsidiaries of such person or by such person and one or more wholly owned Subsidiaries of such person; provided that, if required by applicable law, ownership of up to 2% of the
shares of a Foreign Subsidiary by a third party will not cause such subsidiary to cease to be a “wholly owned Subsidiary”.
“Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall apply equally to both the singular and
plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to
be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”; and the words “asset” and “property” shall be construed as
having the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights. All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context clearly indicates otherwise. Except as otherwise expressly provided herein, (a) any reference in this Agreement to any Loan Document
shall mean such document as amended, restated, supplemented or otherwise modified from time to time and (b) all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time;
provided, however, that (i) if the U.S. Borrower notifies the Administrative Agent that the U.S. Borrower wishes to amend any covenant in Article VI or any related
definition to eliminate the effect of any change in GAAP occurring after the date of this Agreement on the operation of such covenant (or if the Administrative Agent notifies the U.S. Borrower that the Required Lenders wish to amend Article VI
or any related definition for such purpose), then the U.S. Borrower’s compliance with such covenant shall be determined on the basis of GAAP in effect immediately before the relevant change in GAAP became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the U.S. Borrower and the Required Lenders and (ii) whenever in this Agreement it is necessary to determine whether a lease is a capital lease or an operating lease, such
determination shall be made on the basis of GAAP as in effect on the date hereof.
SECTION 1.03.
Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Domestic Revolving Loan”) or by Type
(e.g., a “Eurocurrency Loan”) or by Class and Type (e.g., a “Domestic Eurocurrency Revolving Loan”). Borrowings also may be classified and referred to by Class
(e.g., a “Domestic Revolving Credit Borrowing”) or by Type (e.g., a “Eurocurrency Borrowing”) or by Class and Type (e.g., a
“Domestic Eurocurrency Revolving Credit Borrowing”).
SECTION 1.04. Pro Forma
Calculations. With respect to any period during which any Permitted Acquisition or Significant Asset Sale occurs as permitted pursuant to the terms hereof, for purposes of (a) calculating the Interest Coverage Ratio under
Section 6.08 or the Leverage Ratio under Section 6.09 at the end of any fiscal quarter, (b) determining whether any proposed incurrence of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments pursuant to
Section 2.25 or Section 2.26, respectively, is permitted, (c) determining whether any issuance of
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Additional Secured Indebtedness is permitted under Section 6.02(q), any proposed Permitted Acquisition is permitted under Section 6.03(g), any proposed investment in a joint venture is
permitted under Section 6.03(y), or any proposed Restricted Payment is permitted under Section 6.05(b), or (d) for the purpose of determining Pro Forma Compliance, the Interest Coverage Ratio, the Leverage Ratio and the Senior Secured
Leverage Ratio, as applicable, shall be calculated on a Pro Forma Basis, in the case of clause (a) above, for the four fiscal quarter period ending on such date and, in all other cases, for the four fiscal quarter period most recently ended on
or prior to the date of such calculation.
SECTION 1.05. Exchange Rate Calculations. On each Calculation Date,
the Administrative Agent shall (a) determine the Exchange Rate as of such Calculation Date and (b) give notice thereof to the Borrowers and to any Lender that shall have requested a copy of such notice (it being understood that a Lender
shall not have the right to independently request a determination of the Exchange Rate). The Exchange Rate so determined shall become effective on such Calculation Date and shall remain effective until the next succeeding Calculation Date, and shall
for all purposes of this Agreement (other than any other provision expressly requiring the use of a current Exchange Rate) be the Exchange Rate employed in converting amounts between dollars and Alternative Currencies.
ARTICLE II
The Credits
SECTION 2.01. Commitments. (a) On the terms and subject to the conditions set forth herein and in
reliance upon the representations and warranties set forth herein and in the other Loan Documents, each Lender agrees severally and not jointly to make (i) Tranche A Loans to the U.S. Borrower, in dollars, on the Second Restatement Date, in an
aggregate principal amount for all such Tranche A Loans not to exceed its Tranche A Commitment, (ii) Domestic Revolving Loans to the U.S. Borrower, in dollars, at any time and from time to time on or after the Second Restatement Date and
prior to the earlier of the Revolving Credit Maturity Date and the termination of the Domestic Revolving Credit Commitment of such Lender in accordance with the terms hereof, in an aggregate principal amount at any time outstanding that will not
result in such Lender’s Domestic Revolving Credit Exposure (plus its Pro Rata Percentage of the Aggregate Competitive Loan Exposures) exceeding such Lender’s Domestic Revolving Credit Commitment, (iii) Multicurrency Revolving Loans to
the U.S. Borrower in dollars, Canadian Dollars or Australian Dollars, the Canadian Borrower in dollars or Canadian Dollars, or the Australian Borrower in Australian Dollars, at any time and from time to time on or after the Second Restatement
Date and prior to the earlier of the Revolving Credit Maturity Date and the termination of the Multicurrency Revolving Credit Commitment of such Lender in accordance with the terms hereof, in an aggregate principal amount at any time outstanding
that will not result in (x) such Lender’s Multicurrency Revolving Credit Exposure exceeding such Lender’s Multicurrency Revolving Credit Commitment or (y) the Aggregate Multicurrency Revolving Credit Exposure attributable to
Loans to, and Letters of Credit issued for the account of, (A) the U.S. Borrower in Australian Dollars, the Australian Borrower and the New Zealand Borrower exceeding the ANZ Sublimit or (B) the U.S. Borrower in Canadian Dollars and the
Canadian Borrower exceeding the Canadian Sublimit and (iv) U.K. Revolving Loans to the U.S. Borrower in dollars, Pounds or Euros or the U.K. Borrower in Pounds or Euro, at any time and from time to time on or after the Second Restatement
Date and prior to the earlier of the Revolving Credit Maturity Date and the termination of the U.K. Revolving Credit Commitment of such Lender in accordance with the terms hereof, in an aggregate principal amount at any time outstanding that will
not result in such Lender’s U.K. Revolving Credit Exposure exceeding such Lender’s U.K. Revolving Credit Commitment. Within the limits set forth in the first sentence of this Section 2.01 and subject to the terms, conditions and
limitations set forth herein, the Borrowers may borrow, pay or prepay and reborrow Revolving Loans. Amounts paid or prepaid in respect of Term Loans may not be reborrowed.
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(b) Each Lender having an Incremental Revolving Credit Commitment or an Incremental Term Loan
Commitment, severally and not jointly, hereby agrees, on the terms and subject to the conditions set forth herein and in the applicable Incremental Assumption Agreement and in reliance on the representations and warranties set forth herein and in
the other Loan Documents, to make Incremental Revolving Loans or Incremental Term Loans, as applicable, to the Borrowers, in an aggregate principal amount not to exceed its Incremental Revolving Credit Commitment or Incremental Term Loan Commitment,
as applicable. Amounts paid or prepaid in respect of Incremental Term Loans may not be reborrowed.
SECTION 2.02.
Loans. (a) Each Loan (other than N.Z. Swingline Loans and Competitive Loans) shall be made as part of a Borrowing consisting of Loans made by the Lenders ratably in accordance with their respective applicable
Commitments; provided, however, that the failure of any Lender to make any Loan shall not in itself relieve any other Lender of its obligation to lend hereunder (it being understood, however, that no Lender shall be responsible for the
failure of any other Lender to make any Loan required to be made by such other Lender). Except for Loans deemed made pursuant to Section 2.02(f) and Competitive Loans, the Loans comprising any Borrowing shall be in an aggregate principal amount
that is (i) an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum (except with respect to any Borrowing of Incremental Revolving Loans, Incremental Term Loans, Other Revolving Loans or Other Term Loans, to the
extent otherwise provided in the related Incremental Assumption Agreement or Loan Modification Agreement, as applicable, or (ii) equal to the remaining available balance of the applicable Commitments.
(b) Subject to Sections 2.08 and 2.15, each Borrowing (other than a Competitive Borrowing) shall be comprised entirely of Daily
Rate Loans or Fixed Rate Loans as the applicable Borrower may request pursuant to Section 2.03. Each Lender may at its option make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided
that any exercise of such option shall not affect the obligation of the applicable Borrower to repay such Loan in accordance with the terms of this Agreement. Borrowings of more than one Type may be outstanding at the same time; provided,
however, that the Borrowers shall not be entitled to request any Borrowing that, if made, would result in (i) more than (x) ten Fixed Rate Borrowings of Domestic Revolving Loans or (y) ten Fixed Rate Borrowings of Tranche A
Loans being outstanding hereunder at any time or (ii) more than five Fixed Rate Borrowings of any other Class being outstanding hereunder at any time. For purposes of the foregoing, Borrowings having different Interest Periods or Contract
Periods, regardless of whether they commence on the same date, shall be considered separate Borrowings.
(c) Except with respect to
Loans deemed made pursuant to Section 2.02(f), each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds to such account as the Administrative Agent may designate
not later than 4:00 p.m., Local Time, and the Administrative Agent shall promptly credit the amounts so received to an account in the name of the applicable Borrower, designated by such Borrower in the applicable Borrowing Request, or, if a
Borrowing shall not occur on such date because any condition precedent herein specified shall not have been met, return the amounts so received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender’s portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with
paragraph (c) above and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower on such date a corresponding amount. If the Administrative Agent shall have so made funds available then, to the
extent that such Lender shall not have made such portion available to the Administrative Agent, such Lender and the applicable Borrower severally agree to repay to the
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Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such
amount is repaid to the Administrative Agent at (i) in the case of such Borrower, the interest rate applicable at the time to the Loans comprising such Borrowing and (ii) in the case of such Lender for the first three days, a rate
determined by the Administrative Agent to represent its cost of overnight or short-term funds for the applicable currency and for each day thereafter, the higher of such rate and the applicable Daily Rate
(which determination shall be conclusive absent manifest error). If such Lender shall repay to the Administrative Agent such corresponding amount, such amount shall constitute such Lender’s Loan as part of such Borrowing for purposes of this
Agreement.
(e) Notwithstanding any other provision of this Agreement, no Borrower shall be entitled to request any Revolving Credit
Borrowing if the Interest Period or Contract Period, as the case may be, requested with respect thereto would end after the Revolving Credit Maturity Date.
(f) If any Issuing Bank shall not have received from the applicable Borrower the payment required to be made by Section 2.23(e) within
the time specified in such Section, such Issuing Bank will promptly notify the Administrative Agent of the L/C Disbursement and the Administrative Agent will promptly notify each applicable Revolving Credit Lender of such L/C Disbursement and its
Pro Rata Percentage thereof. Each Domestic Revolving Credit Lender (in respect of a Domestic L/C Disbursement), Multicurrency Revolving Credit Lender (in respect of a Multicurrency L/C Disbursement) and U.K. Revolving Credit Lender (in respect of a
U.K. L/C Disbursement) shall pay by wire transfer of immediately available funds to the Administrative Agent not later than 2:00 p.m., Local Time, on such date (or, if such Revolving Credit Lender shall have received such notice later than
12:00 (noon), Local Time, on any day, not later than 10:00 a.m., Local Time, on the immediately following Business Day), an amount equal to such Revolving Credit Lender’s Pro Rata Percentage of such L/C Disbursement (it being understood
that such amount shall be deemed to constitute an ABR Revolving Loan (if denominated in dollars), a Canadian Prime Rate Revolving Loan (if denominated in Canadian Dollars) or a Fixed Rate Loan with a one-month Interest Period or Contract Period, as
the case may be (if denominated in any other Alternative Currency), of such Revolving Credit Lender and such payment shall be deemed to have reduced the applicable L/C Exposure), and the Administrative Agent will promptly pay to such Issuing Bank
the amounts so received by it from such Revolving Credit Lenders. The Administrative Agent will promptly pay to the applicable Issuing Bank any amount received by it from a Borrower pursuant to Section 2.23(e) prior to the time that any
Revolving Credit Lender makes any payment pursuant to this paragraph (f); any such amounts received by the Administrative Agent thereafter will be promptly remitted by the Administrative Agent to the Revolving Credit Lenders that shall have
made such payments and to such Issuing Bank, as their interests may appear. If any Revolving Credit Lender shall not have made its applicable Pro Rata Percentage of such L/C Disbursement available to the Administrative Agent as provided above, such
Revolving Credit Lender and the applicable Borrower severally agree to pay interest on such amount, for each day from and including the date such amount is required to be paid in accordance with this paragraph to but excluding the date such amount
is paid, to the Administrative Agent for the account of the applicable Issuing Bank at (i) in the case of such Borrower, a rate per annum equal to the interest rate applicable to Revolving Loans pursuant to Section 2.06(a) and (ii) in
the case of such Revolving Credit Lender, for the first such day, a rate determined by such Issuing Bank to represent its cost of overnight or short-term funds for the applicable currency, and for each day thereafter, the higher of such rate and the
applicable Daily Rate.
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing (other than a N.Z.
Swingline Loan, a Competitive Loan or a deemed Borrowing pursuant to Section 2.02(f), as to which this Section 2.03 shall not apply), the applicable Borrower shall hand deliver or fax to the Administrative Agent a duly completed Borrowing
Request (a) in the case of a Fixed Rate Borrowing, not later than 1:00 p.m., Local Time, three Business Days before a proposed Borrowing, and (b) in the case of a Daily
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Rate Borrowing, not later than 12:00 noon, Local Time, on the Business Day of a proposed Borrowing. Each Borrowing Request shall be irrevocable, shall be signed by or on behalf of the
applicable Borrower and shall specify the following information: (i) the currency and Class of such Borrowing and whether such Borrowing is to be a Fixed Rate Borrowing or a Daily Rate Borrowing; (ii) the date of such Borrowing (which
shall be a Business Day); (iii) the number and location of the account to which funds are to be disbursed (which shall be an account that complies with the requirements of Section 2.02(c)); (iv) the amount of such Borrowing; and
(v) if such Borrowing is to be a Fixed Rate Borrowing, the Interest Period or Contract Period with respect thereto; provided, however, that, notwithstanding any contrary specification in any Borrowing Request, (x) each
requested Borrowing shall comply with the requirements set forth in Section 2.02 and (y) except as expressly provided in Section 2.08 or 2.15, no Borrower may request a Daily Rate Borrowing that is a Foreign Base Rate Borrowing. If no
election as to the Type of Borrowing is specified in any such notice, then the requested Borrowing shall be a Daily Rate Borrowing if denominated in dollars or Canadian Dollars, and a Fixed Rate Borrowing with a one-month Interest Period or Contract
Period otherwise. If no election as to the Class of any Revolving Credit Borrowing by the U.S. Borrower is received, then, to the extent of the available Domestic Revolving Credit Commitments, such Borrowing shall be a Domestic Revolving Credit
Borrowing. If no Interest Period or Contract Period with respect to any Fixed Rate Borrowing is specified in any such notice, then the applicable Borrower shall be deemed to have selected an Interest Period or Contract Period of one month’s
duration. The Administrative Agent shall promptly advise the applicable Lenders of any notice given pursuant to this Section 2.03 (and the contents thereof), and of each Lender’s portion of the requested Borrowing.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The U.S. Borrower
hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender the principal amount of each Term Loan of such Lender as provided in Section 2.11. Each Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender on the Revolving Credit Maturity Date the then unpaid principal amount of each Revolving Loan of such Lender made to such Borrower. The New Zealand Borrower hereby promises to pay to the N.Z.
Swingline Lender the then unpaid principal amount of each N.Z. Swingline Loan on the Revolving Credit Maturity Date. The U.S. Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of the applicable Lender the
principal amount of each Competitive Loan made by such Lender on the last day of the Interest Period applicable to such Loan.
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of each 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 under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will record (i) the amount of each Loan made hereunder, the Class and
Type thereof and the Interest Period or Contract Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from each Borrower to each Lender hereunder and (iii) the amount of any
sum received by the Administrative Agent hereunder from any Borrower or any Guarantor and each Lender’s share thereof.
(d)
The entries made in the accounts maintained pursuant to paragraphs (b) and (c) above shall be prima facie evidence of the existence and amounts of the obligations therein recorded; provided, however, that the failure
of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligations of any Borrower to repay the Loans in accordance with their terms.
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(e) Any Lender may request that Loans made by it hereunder be evidenced by a promissory note. In
such event, each applicable Borrower shall execute and deliver to such Lender a promissory note payable to such Lender and its registered assigns and in a form and substance reasonably acceptable to the Administrative Agent and such Borrower.
Notwithstanding any other provision of this Agreement, in the event any Lender shall request and receive such a promissory note, the interests represented by such note shall at all times (including after any assignment of all or part of such
interests pursuant to Section 9.04) be represented by one or more promissory notes payable to the payee named therein or its registered assigns.
SECTION 2.05. Fees. (a) The U.S. Borrower agrees to pay to each Domestic Revolving Credit Lender,
through the Administrative Agent, on the last Business Day of March, June, September and December in each year and on each date on which the Domestic Revolving Credit Commitment of such Lender shall expire or be terminated as provided herein, a
facility fee equal to the Applicable Percentage per annum in effect from time to time on the daily amount (whether used or unused) of the Domestic Revolving Credit Commitment of such Lender during the preceding quarter (or other period commencing on
the Second Restatement Date or ending with the Revolving Credit Maturity Date or the date on which the Domestic Revolving Credit Commitment of such Lender shall expire or be terminated). The U.S. Borrower and the U.K. Borrower jointly and
severally agree to pay to each U.K. Lender, through the Administrative Agent, on the last Business Day of March, June, September and December in each year and on each date on which the U.K. Revolving Credit Commitment of such Lender shall expire or
be terminated as provided herein, a facility fee equal to the Applicable Percentage per annum in effect from time to time on the daily amount (whether used or unused) of the U.K. Revolving Credit Commitment of such Lender during the preceding
quarter (or other period commencing on the Second Restatement Date or ending with the Revolving Credit Maturity Date or the date on which the U.K. Revolving Credit Commitment of such Lender shall expire or be terminated). The U.S. Borrower, the
Canadian Borrower, the Australian Borrower and the New Zealand Borrower jointly and severally agree to pay to each Multicurrency Revolving Credit Lender, through the Administrative Agent, on the last Business Day of March, June, September and
December in each year and on each date on which the Multicurrency Revolving Credit Commitment of such Lender shall expire or be terminated as provided herein, a facility fee (together with the facility fees provided for in the preceding two
sentences, the “Facility Fees”) equal to the Applicable Percentage per annum in effect from time to time on the daily amount (whether used or unused) of the Multicurrency Revolving Credit Commitment of such Lender during the
preceding quarter (or other period commencing on the Second Restatement Date or ending with the Revolving Credit Maturity Date or the date on which the Multicurrency Revolving Credit Commitment of such Lender shall expire or be terminated).
Notwithstanding the foregoing, if any Revolving Credit Exposure remains outstanding following any expiration or termination of the Revolving Credit Commitments as contemplated by the three preceding sentences, the Facility Fees shall continue to
accrue on such Revolving Credit Exposure for so long as such Revolving Credit Exposure remains outstanding and shall be payable on demand. In addition, the Facility Fees otherwise payable to any Defaulting Lender in respect of the unused portion of
such Defaulting Lender’s Revolving Credit Commitments shall not be payable for so long as, and with respect to the period during which, such Lender is a Defaulting Lender. All Facility Fees shall be computed on the basis of the actual number of
days elapsed in a year of 360 days. The Facility Fee due to each Lender shall commence to accrue on and including the Second Restatement Date and shall cease to accrue on the date on which the applicable Revolving Credit Commitment of such
Lender shall expire or be terminated as provided herein and there is not any remaining Revolving Credit Exposure of such Lender.
(b) [Reserved]
(c) The Borrowers agree to pay to the Administrative Agent, for its own account, the administrative fees at the times and in the
amounts agreed to by the U.S. Borrower and the Administrative Agent from time to time (the “Administrative Agent Fees”).
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(d) Each Borrower agrees to pay to each Domestic Revolving Credit Lender (in the
case of Domestic L/C Exposure), each U.K. Revolving Credit Lender (in the case of U.K. L/C Exposure) and each Multicurrency Revolving Credit Lender (in the case of Multicurrency L/C Exposure) (in each case, other than a Defaulting Lender), through
the Administrative Agent, on the last Business Day of March, June, September and December of each year and on the date on which the applicable Revolving Credit Commitment of such Lender shall expire or be terminated as provided herein, a fee
calculated on such Lender’s Pro Rata Percentage of the daily aggregate L/C Exposure in respect of such Borrower (excluding the portion thereof attributable to unreimbursed L/C Disbursements) during the preceding quarter (or shorter period
commencing on the Second Restatement Date or ending with the Revolving Credit Maturity Date or the date on which all Letters of Credit of the applicable Class have been canceled or have expired and the applicable Revolving Credit Commitments of all
Lenders shall have been terminated) at a rate per annum equal to the Applicable Percentage from time to time used to determine the interest rate on Revolving Credit Borrowings of the applicable Class comprised of Fixed Rate Loans pursuant to
Section 2.06 (the “L/C Participation Fees”). If the L/C Exposure of a Defaulting Lender is reallocated pursuant to Section 2.17(i), then the L/C Participation Fee payable to the Lenders pursuant to this
Section 2.05(d) shall be adjusted in accordance with such allocation. If the applicable Borrower cash collateralizes any portion of such Defaulting Lender’s L/C Exposure pursuant to Section 2.17(ii), such Borrower shall not be
required to pay any L/C Participation Fees with respect to that portion of such Defaulting Lender’s L/C Exposure during the period in which such L/C Exposure is cash collateralized. If all or any portion of such Defaulting Lender’s L/C
Exposure is neither reallocated nor cash collateralized pursuant to Section 2.17(i) or (ii), then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all L/C Participation Fees with respect to such
L/C Exposure shall be payable to the applicable Issuing Banks until and to the extent that such L/C Exposure is reallocated and/or cash collateralized.
(e) Each Borrower agrees to pay to each Issuing Bank with respect to each Letter of Credit issued by such Issuing Bank the
standard fronting, issuance and drawing fees as agreed by each Issuing Bank and such Borrower (the “Issuing Bank Fees”).
(f) 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 Lenders, except that the Issuing Bank Fees shall be paid directly to the applicable Issuing Bank. All L/C Participation Fees and Issuing Bank Fees shall be computed on the basis of the actual number of days elapsed in a year
of 360 days. Once paid, none of the Fees shall be refundable under any circumstances.
SECTION 2.06. Interest on
Loans. (a) Subject to the provisions of Section 2.07, the Loans comprising each ABR Borrowing shall bear interest (computed on the basis of the actual number of days elapsed over a year of 365 or 366 days, as the case may
be) at a rate per annum equal to the Alternate Base Rate plus the Applicable Percentage in effect from time to time.
(b)
Subject to the provisions of Section 2.07, the Loans comprising each Eurocurrency Borrowing shall bear interest (computed on the basis of the actual number of days elapsed over a year of 360 days or, in the case of a Eurocurrency Loan
denominated in Pounds, 365 days) at a rate per annum equal to (i) in the case of a Eurocurrency Competitive Borrowing, the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus or minus (as the case may be) the
Competitive Loan Margin offered by the Lender making such Loan and accepted by the U.S. Borrower in the Competitive Bid Accept/Reject Letter, and (ii) in the case of all other Eurocurrency Borrowings, the Adjusted LIBO Rate for the Interest
Period in effect for such Borrowing plus the Applicable Percentage in effect from time to time.
(c) Subject to the provisions of
Section 2.07, the Loans comprising each Canadian Prime Rate Borrowing shall bear interest (computed on the basis of the actual number of days elapsed over a year of 365 or 366 days, as the case may be) at a rate per annum equal to the Canadian
Prime Rate plus the Applicable Percentage in effect from time to time.
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(d) Subject to the provisions of Section 2.07, the Loans comprising each B/A Borrowing shall
be subject to an Acceptance Fee, payable by the Canadian Borrower on the date of acceptance of the relevant B/A and calculated as set forth in the definition of the term “Acceptance Fee” in Section 1.01.
(e) Subject to the provisions of Section 2.07, the Loans comprising each Bank Bill Rate Borrowing, including each N.Z. Swingline Loan,
shall bear interest (computed on the basis of the actual number of days elapsed over a year of 365 or 366 days, as the case may be), at a rate per annum equal to the Bank Bill Rate plus the Applicable Percentage in effect from time to time.
(f) Subject to the provisions of Section 2.07, the Loans comprising each Foreign Base Rate Borrowing shall bear interest (computed on the
basis of the actual number of days elapsed over a year of 365 or 366 days, as the case may be) at a rate per annum equal to the sum of the Foreign Base Rate and the Applicable Percentage in effect from time to time.
(g) Subject to the provisions of Section 2.07, each Flat Rate Competitive Loan shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 365 or 366 days, as the case may be, or such other computational basis as may be set forth in the applicable Competitive Bid) at the rate per annum equal to the fixed rate of interest offered by the Lender
making such Loan and accepted by the U.S. Borrower in the Competitive Bid Accept/Reject Letter.
(h) Interest on each Loan (other than
pursuant to B/A Borrowings) shall be payable on the Interest Payment Dates applicable to such Loan except as otherwise provided in this Agreement. The applicable Alternate Base Rate, Adjusted LIBO Rate, Discount Rate or Bank Bill Rate, as the case
may be, shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error. Notwithstanding anything to the contrary in this Agreement, if any Fixed Rate shall be less than zero, such rate shall be
deemed zero for purposes of this Agreement.
(i) For the purposes of the Interest Act (Canada) and disclosure thereunder, whenever any
interest or fee to be paid hereunder or in connection herewith is to be calculated on the basis of any period of time that is less than a calendar year, the yearly rate of interest to which the rate used in such calculation is equivalent is the rate
so used multiplied by the actual number of days in the calendar year in which the same is to be ascertained and divided by 360, 365 or 366, as applicable. The rates of interest under this Agreement are nominal rates, and not effective rates or
yields. The principal of deemed reinvestment of interest does not apply to any interest calculation under this Agreement.
SECTION 2.07. Default Interest. If any Borrower shall default in the payment of the principal of or interest on
any Loan or any other amount becoming due hereunder, by acceleration or otherwise, or under any other Loan Document, such Borrower shall on demand from time to time pay interest, to the extent permitted by law, on such defaulted amount to but
excluding the date of actual payment (after as well as before judgment) (a) in the case of overdue principal, at the rate otherwise applicable to such Loan pursuant to Section 2.06 plus 2.00% per annum and (b) in all other cases,
at a rate per annum (computed on the basis of the actual number of days elapsed over a year of (i) 365 or 366 days, as the case may be, when determined by reference to the Prime Rate, (ii) 365 days, in the case of a Eurocurrency
Loan denominated in Pounds and (iii) 360 days at all other times) equal to the rate that would be applicable to a Daily Rate Revolving Loan in the applicable currency plus 2.00%.
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SECTION 2.08. Alternate Rate of Interest. In the event, and on each occasion, that
on the day two Business Days prior to the commencement of any Interest Period for a Eurocurrency Borrowing the Administrative Agent shall have determined that deposits in the applicable currency in the principal amounts of the Loans comprising such
Borrowing are not generally available in the applicable interbank market, or that the rates at which such deposits are being offered will not adequately and fairly reflect the cost to a majority in interest of the applicable Lenders of making or
maintaining their Eurocurrency Loans during such Interest Period, or that reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the Administrative Agent shall, as soon as practicable thereafter, give written or fax notice of such
determination to the applicable Borrowers and the applicable Lenders. In the event of any such determination, until the Administrative Agent shall have advised the applicable Borrowers and the applicable Lenders that the circumstances giving rise to
such notice no longer exist, any request by a Borrower for a Eurocurrency Borrowing in the affected currency pursuant to Section 2.03 or 2.10 shall be deemed to be a request for a Daily Rate Borrowing in such currency. Each determination
by the Administrative Agent under this Section 2.08 shall be conclusive absent manifest error.
SECTION 2.09.
Termination and Reduction of Commitments. (a) The Tranche A Commitments (other than any Incremental Term Loan Commitments, which shall terminate as provided in the related Incremental Assumption Agreement) shall automatically
terminate upon the making of the Tranche A Loans on the Second Restatement Date. The Revolving Credit Commitments (other than any Incremental Revolving Credit Commitments, which shall terminate as provided in the related Incremental Assumption
Agreement) and the N.Z. Swingline Commitments shall automatically terminate on the Revolving Credit Maturity Date. The L/C Commitments shall automatically terminate on the earlier to occur of (i) the termination of the Revolving Credit
Commitments and (ii) the date 30 days prior to the Revolving Credit Maturity Date.
(b) Upon at least three
Business Days’ prior written or fax notice (or telephone notice promptly confirmed by a written notice) to the Administrative Agent, a Borrower may, without premium or penalty, at any time in whole permanently terminate, or from time to time in
part permanently reduce, the Term Loan Commitments or the Revolving Credit Commitments of any Class; provided, however, that (i) each partial reduction of the Term Loan Commitments or the Revolving Credit Commitments of any Class shall
be in an integral multiple of the Borrowing Multiple and in a minimum amount equal to the Borrowing Minimum, (ii) the Total Domestic Revolving Credit Commitment shall not be reduced to an amount that is less than the sum of the Aggregate
Domestic Revolving Credit Exposure and the Aggregate Competitive Loan Exposure at the time, (iii) the Total U.K. Revolving Credit Commitment shall not be reduced to an amount that is less than the Aggregate U.K. Revolving Credit Exposure at the
time and (iv) the Total Multicurrency Revolving Credit Commitment shall not be reduced to an amount that is less than the Aggregate Multicurrency Revolving Credit Exposure at the time. Each notice delivered by a Borrower pursuant to this
Section 2.09(b) shall be irrevocable; provided that a notice of termination of the Term Loan Commitments or the Revolving Credit Commitments delivered by a Borrower may state that such notice is conditioned upon the effectiveness of
other credit facilities, in which case such notice may be revoked by such Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.
(c) Each reduction in the Term Loan Commitments or the Revolving Credit Commitments of any Class hereunder shall be made ratably among the
Lenders in accordance with their respective applicable Commitments. The applicable Borrowers shall pay to the Administrative Agent for the account of the applicable Lenders, on the date of each termination or reduction, the Facility Fees on the
amount of the Commitments so terminated or reduced accrued to but excluding the date of such termination or reduction.
(d) Reductions and
terminations of any Other Revolving Credit Commitments shall be as provided for in the applicable Loan Modification Agreement.
55
SECTION 2.10. Conversion and Continuation of Borrowings. Each
Borrower shall have the right at any time upon prior irrevocable notice to the Administrative Agent (a) not later than 1:00 p.m., Local Time, two Business Days prior to conversion, to convert any Eurocurrency Borrowing denominated in dollars
into an ABR Borrowing or to convert any B/A Borrowing into a Canadian Prime Rate Borrowing, (b) not later than 1:00 p.m., Local Time, three Business Days prior to conversion or continuation, to convert any ABR Borrowing into a Eurocurrency
Borrowing denominated in dollars, to convert any Canadian Prime Rate Borrowing into a B/A Borrowing or to continue any Eurocurrency Borrowing as a Eurocurrency Borrowing for an additional Interest Period and (c) not later than 1:00 p.m.,
Local Time, three Business Days prior to conversion, to convert the Interest Period with respect to any Eurocurrency Borrowing to another permissible Interest Period, subject in each case to the following:
(i) each conversion or continuation shall be made pro rata among the Lenders in accordance with the respective principal
amounts of the Loans comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal
amount of any Borrowing shall be converted or continued, then each resulting Borrowing shall satisfy the limitations specified in Sections 2.02(a) and 2.02(b) regarding the principal amount and maximum number of Borrowings of the relevant Type;
(iii) each conversion shall be effected by each Lender and the Administrative Agent by recording for the account of such
Lender the new Loan of such Lender resulting from such conversion and reducing the Loan (or portion thereof) of such Lender being converted by an equivalent principal amount; accrued interest on any Eurocurrency Loan (or portion thereof) being
converted shall be paid by the applicable Borrower at the time of conversion;
(iv) if any Eurocurrency Borrowing is
converted at a time other than the end of the Interest Period applicable thereto, the applicable Borrower shall pay, upon demand, any amounts due to the Lenders pursuant to Section 2.16;
(v) any portion of a Borrowing maturing or required to be repaid in less than one month may not be converted into or continued
as a Eurocurrency Borrowing or a B/A Borrowing;
(vi) any portion of a Eurocurrency Borrowing or a B/A Borrowing that
cannot be converted into or continued as a Eurocurrency Borrowing or a B/A Borrowing by reason of the immediately preceding clause shall be automatically converted at the end of the Interest Period in effect for such Borrowing into an
ABR Borrowing or a Canadian Prime Rate Borrowing, as the case may be;
(vii) no Interest Period may be selected for
any Eurocurrency Term Borrowing that would end later than a Repayment Date occurring on or after the first day of such Interest Period if, after giving effect to such selection, the aggregate outstanding amount of (x) the Eurocurrency Term
Borrowings comprised of Tranche A Loans, Specified Incremental Term Loans or Other Term Loans, as applicable, with Interest Periods ending on or prior to such Repayment Date and (y) the ABR Term Borrowings comprised of Tranche A Loans,
Specified Incremental Term Loans or Other Term Loans, as applicable, would not be at least equal to the principal amount of Term Borrowings to be paid on such Repayment Date;
(viii) no B/A Borrowing may be converted or continued other than at the end of the Contract Period applicable thereto; and
56
(ix) upon notice to the applicable Borrower from the Administrative Agent given
at the request of the Required Lenders, after the occurrence and during the continuance of a Default or Event of Default, no outstanding Loan may be converted into, or continued as, a Eurocurrency Loan or a B/A Loan and any outstanding Eurocurrency
Borrowing or B/A Borrowing shall, at the end of the Interest Period or Contract Period applicable thereto (unless repaid pursuant to the terms hereof), automatically be converted to an ABR Borrowing or a Canadian Prime Rate Borrowing, as the case
may be.
Each notice pursuant to this Section 2.10 shall be irrevocable and shall refer to this Agreement and specify (a) the
identity, amount and Class of the Borrowing that the applicable Borrower requests be converted or continued, (b) whether such Borrowing is to be converted to or continued as a Eurocurrency Borrowing, an ABR Borrowing, a B/A Borrowing or a
Canadian Prime Rate Borrowing, (c) if such notice requests a conversion, the date of such conversion (which shall be a Business Day) and (d) if such Borrowing is to be converted to or continued as a Eurocurrency Borrowing or a B/A
Borrowing, the Interest Period or Contract Period with respect thereto. If no Interest Period or Contract Period is specified in any such notice with respect to any conversion to or continuation as a Eurocurrency Borrowing or a B/A Borrowing, the
applicable Borrower shall be deemed to have selected an Interest Period or Contract Period of one month’s duration. The Administrative Agent shall advise the applicable Lenders of any notice given pursuant to this Section 2.10 and of each
Lender’s portion of any converted or continued Borrowing. If a Borrower shall not have given notice in accordance with this Section 2.10 to continue any Borrowing into a subsequent Interest Period or Contract Period (and shall not
otherwise have given notice in accordance with this Section 2.10 to convert such Borrowing), such Borrowing shall, at the end of the Interest Period or Contract Period applicable thereto (unless repaid pursuant to the terms hereof),
automatically be converted to an ABR Borrowing or a Canadian Prime Rate Borrowing, as applicable. The U.S. Borrower shall not have the right to convert or continue the Interest Period with respect to any Competitive Loan pursuant to this
Section 2.10.
SECTION 2.11. Repayment of Term Borrowings. (a) (i) The U.S. Borrower shall pay
to the Administrative Agent, for the account of the Tranche A Lenders, on the dates set forth below, or if any such date is not a Business Day, on the next preceding Business Day (each such date being a “Tranche A Repayment
Date”), a principal amount of the Tranche A Loans (as adjusted from time to time pursuant to Sections 2.11(d), 2.12, 2.13(f) and 2.26(d)) equal to the percentage set forth below for such date of the aggregate principal amount of
the Tranche A Loans outstanding on the Second Restatement Date, together in each case with accrued but unpaid interest on the principal amount to be paid to but excluding the date of such payment:
|
|
|
|
|
| Date |
|
Scheduled Tranche A Term Loan
Repayments |
|
| June 30, 2015 |
|
|
0.625 |
% |
| September 30, 2015 |
|
|
0.625 |
% |
| December 31, 2015 |
|
|
0.625 |
% |
| March 31, 2016 |
|
|
0.625 |
% |
57
|
|
|
|
|
| Date |
|
Scheduled Tranche A Term Loan
Repayments |
|
| June 30, 2016 |
|
|
1.25 |
% |
| September 30, 2016 |
|
|
1.25 |
% |
| December 31, 2016 |
|
|
1.25 |
% |
| March 31, 2017 |
|
|
1.25 |
% |
| June 30, 2017 |
|
|
1.25 |
% |
| September 30, 2017 |
|
|
1.25 |
% |
| December 31, 2017 |
|
|
1.25 |
% |
| March 31, 2018 |
|
|
1.25 |
% |
| June 30, 2018 |
|
|
1.875 |
% |
| September 30, 2018 |
|
|
1.875 |
% |
| December 31, 2018 |
|
|
1.875 |
% |
| March 31, 2019 |
|
|
1.875 |
% |
| June 30, 2019 |
|
|
3.333 |
% |
| September 30, 2019 |
|
|
3.333 |
% |
| December 31, 2019 |
|
|
3.333 |
% |
| Tranche A Maturity Date |
|
|
70 |
% |
(ii) [Reserved].
(iii) The applicable Borrowers shall pay to the Administrative Agent, for the account of the Incremental Term Lenders, on each
Incremental Term Loan Repayment Date, a principal amount of the Incremental Term Loans equal to the amount set forth for such date in the applicable Incremental Assumption Agreement (as adjusted from time to time to give effect to prepayments as
provided for in the applicable Incremental Assumption Agreement), together in each case with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment.
58
(iv) The applicable Borrowers shall pay to the Administrative Agent, for the
account of the applicable Accepting Lenders, on each Other Term Loan Repayment Date, a principal amount of the Other Term Loans equal to the amount set forth for such date in the applicable Loan Modification Agreement (as adjusted from time to time
to give effect to prepayments as provided for in the applicable Loan Modification Agreement), together in each case with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment.
(b) To the extent not previously paid, all Tranche A Loans, Specified Incremental Term Loans and Other Term Loans shall be due and payable on
the Tranche A Maturity Date, the applicable Incremental Term Loan Maturity Date and the applicable Other Term Loan Maturity Date, respectively, together with accrued and unpaid interest on the principal amount to be paid to but excluding the date of
payment.
(c) All repayments pursuant to this Section 2.11 shall be subject to Section 2.16, but shall otherwise be without
premium or penalty.
(d) Following any conversion or exchange of any Affected Class of Term Loans pursuant to Section 9.20, the
amortization schedule set forth above for such Affected Class will be deemed modified by eliminating pro rata from each of the remaining scheduled amortization payments for such Class an aggregate amount equal to the principal amount of Term Loans
of Accepting Lenders of such Affected Class that accepted the related Loan Modification Offer.
SECTION 2.12.
Prepayment. (a) Each Borrower shall have the right at any time and from time to time to prepay any Borrowing (other than (x) Bankers’ Acceptances or B/A Equivalent Loans, which may, however, be defeased as
provided below and (y) Competitive Borrowings, which may be prepaid only with the consent of the applicable Lender), in whole or in part, upon at least three Business Days’ prior written or fax notice (or telephone notice promptly
confirmed by written or fax notice) in the case of Fixed Rate Loans, or written or fax notice (or telephone notice promptly confirmed by written or fax notice) on the Business Day of prepayment in the case of Daily Rate Loans, to the Administrative
Agent before 1:00 p.m., Local Time; provided, however, that each partial prepayment shall be in an amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum; and provided further
that the Canadian Borrower may defease any B/A or B/A Equivalent Loan by depositing with the Administrative Agent an amount that, together with Acceptance Fees accruing on such amount to the end of the Contract Period for such B/A or B/A Equivalent
Loan at such rate as the Administrative Agent shall specify upon receipt of such amount, is sufficient to pay such maturing B/A or B/A Equivalent Loan when due.
(b) Optional prepayments of Term Loans shall be applied as directed by the U.S. Borrower.
(c) Each notice of prepayment shall specify the prepayment date and the principal amount of each Borrowing (or portion thereof) to be
prepaid, shall be irrevocable and shall commit the applicable Borrower to prepay such Borrowing by the amount stated therein on the date stated therein; provided that a notice of optional prepayment delivered by a Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities, in which case such notice may be revoked by such Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied. All prepayments under this Section 2.12 shall be subject to Section 2.16 but otherwise without premium or penalty. All prepayments under this Section 2.12 shall be accompanied by accrued and unpaid interest on the principal
amount to be prepaid to but excluding the date of payment.
59
SECTION 2.13. Mandatory Prepayments. (a) In the event of any
termination of all the Revolving Credit Commitments of a Class, the applicable Borrowers shall, on the date of such termination, repay or prepay all their respective outstanding Revolving Credit Borrowings (and N.Z. Swingline Borrowings (in the case
of a termination of the Multicurrency Revolving Credit Commitments) of such Class, and replace all outstanding Letters of Credit of the applicable Class and/or deposit an amount equal to the L/C Exposure of the applicable Class in cash in a cash
collateral account established with the Collateral Agent for the benefit of the Secured Parties. If as a result of any partial reduction of the Revolving Credit Commitments of a Class, the Aggregate Domestic Revolving Credit Exposure (plus the
Aggregate Competitive Loan Exposure), Aggregate Multicurrency Revolving Credit Exposure or Aggregate U.K. Revolving Credit Exposure would exceed the Total Domestic Revolving Credit Commitment, Total Multicurrency Revolving Credit Commitment or Total
U.K. Revolving Credit Commitment, respectively, after giving effect thereto, then the applicable Borrowers shall, on the date of such reduction, repay or prepay Revolving Credit Borrowings (and/or N.Z. Swingline Loans (in the case of the
Multicurrency Revolving Credit Commitments) and/or, subject to Section 2.12(d), Competitive Loans (in the case of Domestic Revolving Credit Commitments)) and/or cash collateralize Letters of Credit of the applicable Class in an amount
sufficient to eliminate such excess.
(b) If as a result of fluctuations in exchange rates, on any Calculation Date,
(i) the Aggregate Multicurrency Revolving Credit Exposure would exceed 105% of the Total Multicurrency Revolving Credit Commitment, (ii) the Aggregate U.K. Revolving Credit Exposure would exceed 105% of the Total U.K. Revolving Credit
Commitment, (iii) the portion of the Multicurrency Revolving Credit Exposure represented by Loans to or Letters of Credit issued for the account of the Canadian Borrower would exceed 105% of the Canadian Sublimit or (iv) the portion of the
Multicurrency Revolving Credit Exposure represented by Loans to or Letters of Credit issued for the account of the Australian Borrower and the New Zealand Borrower would exceed 105% of the ANZ Sublimit, then, in each case, the applicable Borrowers
shall, within three Business Days of such Calculation Date, prepay Revolving Loans (or N.Z. Swingline Loans, in the case of the Multicurrency Revolving Credit Commitments) and/or cash collateralize Letters of Credit such that the applicable exposure
does not exceed the applicable commitment or sublimit set forth above without giving effect to the words “105% of”.
(c) Not
later than the fifth Business Day following the completion of any Asset Sale, the U.S. Borrower shall apply 100% of the Net Cash Proceeds received with respect thereto to prepay outstanding Term Loans in accordance with Section 2.13(f).
(d) No later than the earlier of (i) 45 days after June 30 of each year (commencing with June 30, 2015) and (ii) the date
on which Holdings delivers its financial statements with respect to the period of four consecutive quarters then ended pursuant to Section 5.04(b) (each such date, an “ECF Prepayment Date”), the U.S. Borrower shall
prepay outstanding Term Loans in accordance with Section 2.13(f) in an aggregate principal amount (the “ECF Prepayment Amount”) equal to (x) if the Leverage Ratio at the end of such period shall have been greater
than or equal to 3.00 to 1.00, 50% of Excess Cash Flow for such period and (y) if the Leverage Ratio at the end of such period shall have been greater than or equal to 2.50 to 1.00 but less than 3.00 to 1.00, 25% of Excess Cash Flow for such
period; provided that no such prepayment shall be required pursuant to this paragraph (d) in respect of any period if the Leverage Ratio at the end of such period shall have been less than 2.5 to 1.00; provided further that any
Voluntary Prepayments made during such period shall be deducted from any amounts payable by the U.S. Borrower pursuant to this paragraph (d).
(e) In the event that Holdings or any Subsidiary shall receive Net Cash Proceeds from the issuance or incurrence of any Indebtedness for money
borrowed of Holdings or any Subsidiary (other than any Indebtedness permitted pursuant to the provisions of this Agreement), the U.S. Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next
following) the receipt of such Net Cash Proceeds by Holdings or such Subsidiary, apply an amount equal to 100% of such Net Cash Proceeds to prepay outstanding Term Loans in accordance with Section 2.13(f).
60
(f) Mandatory prepayments of outstanding Term Loans under this Agreement shall be allocated pro
rata among the then outstanding Tranche A Loans, Specified Incremental Term Loans and Other Term Loans and applied in direct order of maturity against the remaining scheduled installments of principal due in respect of Tranche A Loans,
Specified Incremental Term Loans and Other Term Loans under Sections 2.11(a)(i), (iii) and (iv), respectively.
(g) The U.S.
Borrower shall deliver to the Administrative Agent, (i) at the time of each prepayment required under this Section 2.13, a certificate signed by a Financial Officer of the U.S. Borrower setting forth in reasonable detail the calculation of
the amount of such prepayment and (ii) to the extent practicable, at least three Business Days’ prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date, the Class of each Loan being prepaid and
the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings under this Section 2.13 shall be subject to Section 2.16, but shall otherwise be without premium or penalty.
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other provision of this
Agreement, if any Change in Law shall
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of or credit extended by any Lender or any Issuing Bank except any such reserve requirement that is reflected in the Adjusted LIBOR Rate, the Discount Rate or the Bank Bill
Rate);
(ii) subject any Lender or any Issuing Bank to any Taxes (other than (A) Indemnified Taxes and
(B) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) shall impose on such Lender of the Issuing Bank or any applicable interbank market any other condition affecting this
Agreement or Fixed Rate Loans made by such Lender or any Letter of Credit or participation therein (other than any change to the basis or rate of taxation applicable to any Lender),
and the result of any of the foregoing shall be to increase the cost to such Lender or such Issuing Bank of making or maintaining any
Fixed Rate Loan or increase the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the amount of any sum received or receivable by such Lender or such Issuing Bank
hereunder (whether of principal, interest or otherwise) by an amount deemed by such Lender or such Issuing Bank to be material (after taking into account the last sentence of the definition of the term “Adjusted LIBO Rate”, if applicable),
then the applicable Borrowers will pay to such Lender or such Issuing Bank, as the case may be, upon demand such additional amount or amounts (without duplication of amounts paid by the Borrowers pursuant to Section 2.20) as will compensate
such Lender or such Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered; provided that such amounts shall be proportionate and non-discriminatory relative to the amounts that such Lender charges
borrowers or account parties for such additional amounts incurred in connection with substantially similar facilities as determined by such Lender acting in good faith exercising reasonable credit judgment.
(b) If any Lender or any Issuing Bank shall have determined that any Change in Law regarding capital adequacy or liquidity requirements has or
would have the effect of reducing the rate of return on such Lender’s or such Issuing Bank’s capital or on the capital of such Lender’s or such Issuing Bank’s holding company, if any, as a consequence of this Agreement or the
Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by such Issuing Bank pursuant hereto to a level below that which such Lender or such Issuing Bank or such Lender’s or
61
the Issuing Bank’s holding company could have achieved but for such Change in Law (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 requirements) by an amount deemed by such Lender or such Issuing Bank to be material (after taking into account the last sentence of the
definition of the term “Adjusted LIBO Rate”, if applicable), then from time to time the applicable Borrower shall pay to such Lender or such Issuing Bank, as the case may be, 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.
(c) A certificate
of a Lender or any Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or such Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, and setting forth in reasonable
detail the basis on which such amount or amounts were calculated shall be delivered to the U.S. Borrower and shall be conclusive absent manifest error. The applicable Borrower shall pay such Lender or such Issuing Bank the amount shown as due
on any such certificate delivered by it within 20 days after its receipt of the same.
(d) Failure or delay on the part of any
Lender or such Issuing Bank to demand compensation for any increased costs or reduction in amounts received or receivable or reduction in return on capital shall not constitute a waiver of such Lender’s or such Issuing Bank’s right to
demand such compensation; provided that the Borrowers shall not be under any obligation to compensate any Lender or such Issuing Bank under paragraph (a) or (b) above with respect to increased costs or reductions with respect to any
period prior to the date that is 120 days prior to such request if such Lender or such Issuing Bank knew or could reasonably have been expected to know of the circumstances giving rise to such increased costs or reductions and of the fact that
such circumstances would result in a claim for increased compensation by reason of such increased costs or reductions; provided further that the foregoing limitation shall not apply to any increased costs or reductions arising out of the
retroactive application of any Change in Law within such 120-day period. The protection of this Section shall be available to each Lender and each Issuing Bank regardless of any possible contention of the
invalidity or inapplicability of the Change in Law that shall have occurred or been imposed.
(e) For the avoidance of doubt, this
Section 2.14 shall apply to all requests, rules, guidelines or directives concerning capital adequacy or liquidity requirements issued in connection with the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules,
guidelines or directives concerning capital adequacy or liquidity requirements promulgated by the Bank for International Settlements, the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar authority) or
United States financial regulatory authorities, regardless of the date adopted, issued, promulgated or implemented.
SECTION
2.15. Change in Legality. (a) Notwithstanding any other provision of this Agreement, if any Change in Law shall make it unlawful for any Lender to make or maintain any Eurocurrency Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurocurrency Loan, then, by written notice to the applicable Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurocurrency Loans will not thereafter (for the duration of such unlawfulness) be made by such
Lender hereunder (or be continued for additional Interest Periods and Daily Rate Loans will not thereafter (for such duration) be converted into Eurocurrency Loans), whereupon any request for a Eurocurrency Borrowing (or to convert an ABR Borrowing
to a Eurocurrency Borrowing or to continue a Eurocurrency Borrowing for an additional Interest Period) shall, as to such Lender only, be deemed a request for a Daily Rate Loan (or a request to continue a Daily Rate Loan as such or to convert a
Eurocurrency Loan into a Daily Rate Loan, as the case may be), unless such declaration shall be subsequently withdrawn; and
62
(ii) such Lender may require that all outstanding Eurocurrency Loans made by it
be converted to Daily Rate Loans, in which event all such Eurocurrency Loans shall be automatically converted to Daily Rate Loans as of the effective date of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all payments and prepayments of principal that would otherwise have been
applied to repay the Eurocurrency Loans that would have been made by such Lender or the converted Eurocurrency Loans of such Lender shall instead be applied to repay the Daily Rate Loans made by such Lender in lieu of, or resulting from the
conversion of, such Eurocurrency Loans.
(b) For purposes of this Section 2.15, a notice to the applicable Borrower by any Lender
shall be effective as to each Eurocurrency Loan made by such Lender, if lawful, on the last day of the Interest Period then applicable to such Eurocurrency Loan; in all other cases such notice shall be effective on the date of receipt by the
applicable Borrower.
(c) Notwithstanding the foregoing provisions of this Section, a Lender shall not be entitled to compensation
pursuant to this Section in respect of any Competitive Loan if the Change in Law that would otherwise entitle it to such compensation shall have been publicly announced prior to submission of the Competitive Bid pursuant to which such Loan was made.
SECTION 2.16. Indemnity. The Borrowers shall indemnify each Lender against any loss or expense that such
Lender may sustain or incur as a consequence of (a) any event, other than a default by such Lender in the performance of its obligations hereunder, which results in (i) such Lender receiving or being deemed to receive any amount on account
of the principal of any Fixed Rate Loan prior to the end of the Interest Period or Contract Period in effect therefor, (ii) the conversion of any Fixed Rate Loan to a Daily Rate Loan, or the conversion of the Interest Period or Contract Period
with respect to any Fixed Rate Loan, in each case other than on the last day of the Interest Period or Contract Period in effect therefor or (iii) any Fixed Rate Loan to be made by such Lender (including any Fixed Rate Loan to be made pursuant
to a conversion or continuation under Section 2.10) not being made after notice of such Loan shall have been given by the Borrowers hereunder (any of the events referred to in this clause (a) being called a “Breakage
Event”) or (b) any default in the making of any payment or prepayment of any Eurocurrency Loan required to be made hereunder. In the case of any Breakage Event, such loss shall include an amount equal to the excess, as reasonably
determined by such Lender, of (i) its cost of obtaining funds for the Fixed Rate Loan that is the subject of such Breakage Event for the period from the date of such Breakage Event to the last day of the Interest Period in effect (or that would
have been in effect) for such Loan over (ii) the amount of interest likely to be realized by such Lender in redeploying the funds released or not utilized by reason of such Breakage Event for such period. A certificate of any Lender setting
forth any amount or amounts which such Lender is entitled to receive pursuant to this Section 2.16, and setting forth in reasonable detail the basis on which such amount or amounts were calculated, shall be delivered to the applicable Borrowers
and shall be conclusive absent manifest error.
SECTION 2.17. Pro Rata Treatment. Subject to the express
provisions of this Agreement which require, or permit, different payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and except as provided below in this Section 2.17 and Section 2.15, each Borrowing, each
payment or prepayment of principal of any Borrowing, each payment of interest on the Loans, each payment of the Facility Fees, each reduction of the Term Loan Commitments or the Revolving Credit Commitments and each conversion of any Borrowing to or
continuation of any Borrowing as a Borrowing
63
of any Type shall be allocated pro rata among the Lenders in accordance with their respective applicable Commitments (or, if such Commitments shall have expired or been terminated, in accordance
with the respective principal amounts of their outstanding Loans). For purposes of determining the available Domestic Revolving Credit Commitments or Multicurrency Revolving Credit Commitments of the Lenders at any time, each outstanding Competitive
Loan or N.Z. Swingline Loan shall be deemed to have utilized the Domestic Revolving Credit Commitments (in the case of a Competitive Loan) or Multicurrency Revolving Credit Commitments (in the case of a N.Z. Swingline Loan) of the Lenders (including
those Lenders which shall not have made Competitive Loans or N.Z. Swingline Loans, as the case may be) pro rata in accordance with such respective Domestic Revolving Credit Commitments or Multicurrency Revolving Credit Commitments. Each Lender
agrees that in computing such Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing to the next higher or lower whole dollar amount.
Notwithstanding the foregoing, (a) if Letters of Credit are requested to be issued or N.Z. Swingline Loans are requested to be made under the Revolving Credit Commitments of a Class at any time that there exists a Defaulting Lender under the
Revolving Credit Commitments of such Class then, unless a Default or an Event of Default shall have occurred and be continuing, (i) all or any part of such Defaulting Lender’s aggregate L/C Exposure or N.Z. Swingline Exposure under such
Class shall be reallocated among the non-Defaulting Lenders in accordance with their respective Pro Rata Percentages, but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposure under such Class plus such Defaulting
Lender’s aggregate principal amount of all L/C Exposure and N.Z. Swingline Exposure, as the case may be under such Class, does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments of such Class, and (ii) if
the reallocation described in clause (i) cannot, or can only partially, be effected, the applicable Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such N.Z. Swingline Exposure under
such Class and (y) second, cash collateralize for the benefit of each applicable Issuing Bank only such Borrower’s obligations corresponding to such Defaulting Lender’s aggregate L/C Exposure under such Class (after giving effect to
any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.23(j) for so long as such L/C Exposure is outstanding, and (b) unless an Event of Default shall have occurred and be
continuing, a Borrower may elect that voluntary prepayments of Revolving Loans made pursuant to Section 2.12(a) not be applied to the Revolving Loans of a Defaulting Lender. For the avoidance of doubt, neither this Section 2.17 nor
Section 2.18 shall limit the ability of any Borrower to (i) make a Purchase of and retire Purchased Loans or (ii) pay fees and interest with respect to Other Revolving Loans or Other Term Loans following the effectiveness of any Loan
Modification Offer on a basis different from the Loans of such Class that will continue to be held by Lenders that were not Accepting Lenders.
SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall, through the exercise of a right of banker’s lien,
setoff or counterclaim against a Borrower or any other Loan Party, or pursuant 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,
received by such Lender under any applicable bankruptcy, insolvency or other similar law or otherwise, or by any other means other than as a result of non-pro rata payments expressly permitted hereunder (including under Sections 2.15 and 2.17),
obtain payment (voluntary or involuntary) in respect of any Loan or Loans or L/C Disbursement as a result of which the unpaid principal portion of its Loans and participations in L/C Disbursements shall be proportionately less than the unpaid
principal portion of the Loans and participations in L/C Disbursements of any other Lender, it shall be deemed simultaneously to have purchased from such other Lender at face value, and shall promptly pay to such other Lender the purchase price for,
a participation in the Loans and L/C Exposure of such other Lender, so that the aggregate unpaid principal amount of the Loans and L/C Exposure and participations in Loans and L/C Exposure held by each Lender shall be in the same proportion to the
aggregate unpaid principal amount of all Loans and L/C Exposure then outstanding as the principal amount of its Loans and L/C Exposure prior to such exercise of banker’s lien, setoff or
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counterclaim or other event was to the principal amount of all Loans and L/C Exposure outstanding prior to such exercise of banker’s lien, setoff or counterclaim or other event;
provided, however, that if any such purchase or purchases or adjustments shall be made pursuant to this Section 2.18 and the payment giving rise thereto shall thereafter be recovered, such purchase or purchases or adjustments
shall be rescinded to the extent of such recovery and the purchase price or prices or adjustment restored without interest. The Borrowers and Holdings expressly consent to the foregoing arrangements and agree that any Lender holding a participation
in a Loan or L/C Disbursement deemed to have been so purchased may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to any and all moneys owing by any Borrower and Holdings to such Lender by reason thereof as
fully as if such Lender had made a Loan directly to a Borrower in the amount of such participation. For the avoidance of doubt, this Section 2.18 shall not apply to any assignment of any Purchased Loan by any Lender to a Borrower.
SECTION 2.19. Payments. (a) Each Borrower shall make each payment (including principal of or interest on any
Borrowing or any L/C Disbursement or any Fees or other amounts) hereunder and under any other Loan Document not later than 2:00 p.m., Local Time, on the date when due in immediately available funds, without setoff, defense or counterclaim. Each such
payment (other than (i) Issuing Bank Fees, which shall be paid directly to the applicable Issuing Bank, and (ii) principal of and interest on Competitive Loans and N.Z. Swingline Loans, which shall be paid directly to the applicable
Domestic Revolving Credit Lender or N.Z. Swingline Lender except as otherwise provided in Section 2.22(e)) shall be made to the Administrative Agent at its offices at Eleven Madison Avenue, New York, NY 10010 to such account or
accounts as may be specified by the Administrative Agent. The Administrative Agent will promptly distribute to each Lender its pro rata share (or other applicable share as provided herein) of such payment.
(b) Except as otherwise expressly provided herein, whenever any payment (including principal of or interest on any Borrowing or any Fees or
other amounts) hereunder or under any other Loan Document shall become due, or otherwise would occur, on a day that is not a Business Day, such payment may be made on the next succeeding Business Day, and such extension of time shall in such case be
included in the computation of interest or Fees, if applicable.
(c) Unless the Administrative Agent shall have received notice from a
Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or any Issuing Bank hereunder that such Borrower will not make such payment, the Administrative Agent may assume that such Borrower has
made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or such Issuing Bank, as the case may be, the amount due. In such event, if such Borrower does not in fact make such payment,
then each of the Lenders or such Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such Issuing Bank, as the case may be, and to pay interest
thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at a rate determined by the Administrative Agent to represent its cost of overnight or short-term
funds (which determination shall be conclusive absent manifest error) in the applicable currency.
SECTION 2.20. Taxes.
(a) Any and all payments by or on account of any obligation of any Borrower or any Loan Party hereunder or under any other Loan Document shall be made free and clear of and without deduction for any Taxes; provided that if any Borrower
or any Loan Party shall be required by applicable law to deduct or withhold any Taxes from such payments, then (i) only in the case of Indemnified Taxes and Other Taxes, the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to Indemnified Taxes and Other Taxes payable under this Section) the Administrative Agent or such Lender (as the case may be) receives an amount equal to the sum it would have received had no such
deductions or withholdings been made, (ii) such Borrower or such Loan Party shall make such deductions or withholdings and (iii) such Borrower or such Loan Party shall pay the full amount deducted or withheld to the relevant Governmental
Authority in accordance with applicable law.
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(b) In addition, the Borrowers shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.
(c) Each Borrower shall indemnify the Administrative Agent and each Lender, within 15 days after
written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent or such Lender (whether directly or pursuant to Section 2.20(d)), as the case may be, on or with respect to any payment by or
on account of any obligation of such Borrower or any Loan Party hereunder or under any other Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) and any reasonable
expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the applicable Borrower by a Lender, or by the Administrative Agent on its behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(d) Each Lender shall severally indemnify the Administrative Agent, within 15 days after written demand therefor, for the full amount of
(i) any Indemnified Taxes or Other Taxes attributable to such Lender (but only to the extent that no Loan Party has already indemnified the Administrative Agent for such Indemnified Taxes or Other Taxes and without limiting the obligation of
the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.04(g) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to
such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed
or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the
Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative
Agent under this Section 2.20(d).
(e) If a Borrower determines in good faith that a reasonable basis exists for contesting a
Tax, the relevant Lender (or participant), or the Administrative Agent, as applicable, shall cooperate with such Borrower in challenging such Tax at such Borrower’s expense if requested by such Borrower. If a Lender (or participant) or the
Administrative Agent receives a refund (including pursuant to a claim for refund made pursuant to the preceding sentence) in respect of any Indemnified Taxes or Other Taxes as to which it has been indemnified by a Borrower or with respect to which a
Borrower has paid additional amounts pursuant to this Section 2.20, it shall within 30 days from the date of such receipt pay over such refund to such Borrower (but only to the extent of indemnity payments made, or additional amounts paid,
by such Borrower under this Section 2.20 with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of such Lender (or participant) or the Administrative Agent (together with any interest
paid by the relevant Governmental Authority with respect to such refund); provided, however, that such Borrower, upon the request of such Lender (or participant) or the Administrative Agent, agrees to repay the amount paid over to such
Borrower (plus penalties, interest or other charges) to such Lender (or participant) or the Administrative Agent in the event such Lender (or participant) or the Administrative Agent is required to repay such refund to such Governmental
Authority.
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(f) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by a Borrower or
any other Loan Party to a Governmental Authority, such Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting
such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(g) (i) Any Foreign
Lender that is entitled to an exemption from or reduction of withholding Tax under the law of the jurisdiction in which a Borrower is located, or pursuant to any treaty to which such jurisdiction is a party, with respect to payments under this
Agreement shall deliver to such Borrower (with a copy to the Administrative Agent), at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by
such Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate and shall deliver to such Borrower and the Administrative Agent two further copies of any such form or certification (or any
applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to such Borrower. Each
Lender that shall become a participant or a Lender pursuant to Section 9.04 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 2.20(g)
provided that in the case of a participant such participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased.
Notwithstanding the foregoing, after a request by the Borrower or Administrative Agent pursuant to (g)(i), in the case of an applicable
Borrower that is not a U.S. Person, such Borrower will use reasonable efforts, if requested by the applicable Lender, to provide to such Lender all applicable documentation (together, if requested, with any English translations thereof, to the
extent available) required to be completed by such Lender in order to receive any exemption or reduction of withholding Tax under the laws of the jurisdiction in which such Borrower is located, and such Lender shall not be required to complete,
execute or submit any such documentation if such Lender is not reasonably satisfied that it is legally able to do so.
(ii) Without
limiting the generality of the foregoing, in the event that a Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall
deliver to such Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of such Borrower or the Administrative Agent),
executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. Federal backup withholding Tax;
(B) any Foreign Lender
shall, to the extent it is legally entitled to do so, deliver to such Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under
this Agreement (and from time to time thereafter upon the reasonable request of such Borrower or the Administrative Agent), whichever of the following is applicable:
(i) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party
(x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E (or any successor form) establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the
“interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E (or any successor form) establishing an exemption from, or reduction of, U.S.
Federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
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(ii) executed originals of IRS Form W-8ECI;
(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c)
of the Code, (x) a certificate substantially in the form of Exhibit I-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the
Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and
(y) executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E (or any successor form); or
(iv) to the extent a
Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E (or any successor form), a U.S. Tax Compliance Certificate substantially in the form of Exhibit
I-2 or Exhibit I-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are
claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit I-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to such Borrower and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of such Borrower or the Administrative
Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. Federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by
applicable law to permit such Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D)
if a payment made to a Lender under any Loan Document would be subject to U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in
Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to such Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by such Borrower or the
Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by such Borrower or the Administrative Agent as may be
necessary for such Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold
from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it
shall update such form or certification or promptly notify the applicable Borrower and the Administrative Agent in writing of its legal inability to do so.
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(h) For purposes of determining withholding Taxes imposed under FATCA, from and after the Second
Restatement Date, the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) the Credit Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation
Section 1.1471-2(b)(2)(i).
(i) (i) Subject to paragraphs (ii) and (iii) below, each U.K. Borrowing Entity shall, at
the request of any Lender or the Administrative Agent, assist such Lender in timely completing any procedural formalities incumbent upon such U.K. Borrowing Entity (as may be applicable in the United Kingdom at the applicable time) necessary for
such Lender to receive payments under this Agreement or under any other Loan Document without withholding or deduction for Taxes imposed under the laws of the United Kingdom.
(ii) Each Lender that is entitled to an exemption from or reduction of withholding Tax on interest under any applicable double
taxation treaty to which the United Kingdom is a party, and that holds a passport number under the HMRC Double Taxation Treaty Passport Scheme and wishes that scheme to apply to this Agreement and the other Loan Documents, shall include an
indication of such choice by providing to the Administrative Agent and each applicable U.K. Borrowing Entity such Lender’s scheme reference number as soon as reasonably practicable and in any event within 10 Business Days of making or acquiring
a Loan with the applicable U.K. Borrowing Entity.
(iii) Without limiting paragraph (i) above, when a Lender provides
the applicable scheme reference number to the Administrative Agent and each U.K. Borrowing Entity in accordance with paragraph (ii) above, each U.K. Borrowing Entity shall file with HMRC a duly completed HMRC Form DTTP-2 with respect to such
Lender within 30 “working” days (as such term is used in the terms and conditions of the HMRC Double Taxation Treaty Passport Scheme) of the date such Lender makes or acquires a Loan owing by such U.K. Borrowing Entity, and in each case
each U.K. Borrowing Entity shall promptly provide such Lender and the Administrative Agent with a proof of, and a copy of, such filing. Unless impracticable, such filing shall be made by electronic online submission.
SECTION 2.21. Assignment of Commitments Under Certain Circumstances; Duty to Mitigate. (a) In the event (i) any Lender
or any Issuing Bank delivers a certificate requesting compensation pursuant to Section 2.14, (ii) any Lender or any Issuing Bank delivers a notice described in Section 2.15, (iii) any Borrower is required to pay any additional
amount to any Lender or any Issuing Bank or any Governmental Authority on account of any Lender or any Issuing Bank pursuant to Section 2.20, (iv) any Lender refuses to consent to a proposed amendment, waiver, consent or other modification
of this Agreement or any other Loan Document which has been approved by the Required Lenders and which additionally requires the consent of such Lender for approval pursuant to Section 9.08(b), (v) any Revolving Credit Lender refuses to
consent to a proposed Loan Modification Offer with respect to its Revolving Credit Commitments, (vi) any Term Lender refuses to consent to a proposed Loan Modification Offer with respect to its Term Loans or (vii) any Lender becomes a
Defaulting Lender, the U.S. Borrower may, at its sole expense and effort, upon notice to such Lender or such Issuing Bank and the Administrative Agent, require such Lender or such Issuing Bank to transfer and assign, without recourse (in
accordance with and subject to the restrictions contained in Section 9.04), all of its interests, rights and obligations under this Agreement (or, in the case of clause (iv), (v) or (vi) above, all its interests, rights and
obligations with respect to the Class of Loans or Commitments that is the subject of the related consent, amendment, waiver or other modification or that has ongoing funding requirements) to an assignee that shall assume such assigned obligations
(which assignee may be another Lender, if a Lender accepts such assignment); provided that (x) such assignment shall not conflict with any law, rule or regulation or order of any court or other Governmental Authority having jurisdiction,
(y) the
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U.S. Borrower shall have received the prior written consent of the Administrative Agent (and, if a Revolving Credit Commitment is being assigned, of each Issuing Bank and the N.Z. Swingline
Lender (in the case of a Multicurrency Revolving Credit Commitment)), which consent shall not unreasonably be withheld, and (z) the applicable Borrower or such assignee shall have paid to the affected Lender or affected Issuing Bank in
immediately available funds an amount equal to the sum of the principal of and interest accrued to the date of such payment on the outstanding Loans or L/C Disbursements of such Lender or such Issuing Bank, respectively, plus all Fees and other
amounts accrued for the account of such Lender or such Issuing Bank hereunder (including any amounts under Section 2.14, Section 2.16 and Section 2.20), in each case with respect to the Loans or Commitments subject to such assignment;
provided further that, if prior to any such transfer and assignment the circumstances or event that resulted in such Lender’s or such Issuing Bank’s claim for compensation under Section 2.14 or notice under Section 2.15 or
the amounts paid pursuant to Section 2.20, as the case may be, cease to cause such Lender or such Issuing Bank to suffer increased costs or reductions in amounts received or receivable or reduction in return on capital, or cease to have the
consequences specified in Section 2.15, or cease to result in amounts being payable under Section 2.20, as the case may be (including as a result of any action taken by such Lender or such Issuing Bank pursuant to paragraph (b)
below), or if such Lender or such Issuing Bank shall waive its right to claim further compensation under Section 2.14 in respect of such circumstances or event or shall withdraw its notice under Section 2.15 or shall waive its right to
further payments under Section 2.20 in respect of such circumstances or event or shall consent to the proposed amendment, waiver, consent or other modification, as the case may be, then such Lender or such Issuing Bank shall not thereafter be
required to make any such transfer and assignment hereunder.
(b) If (i) any Lender or any Issuing Bank shall request compensation
under Section 2.14, (ii) any Lender or the Issuing Bank delivers a notice described in Section 2.15 or (iii) any Borrower is required to pay any additional amount to any Lender or any Issuing Bank or any Governmental Authority on
account of any Lender or any Issuing Bank, pursuant to Section 2.20, then such Lender or such Issuing Bank shall use reasonable efforts (which shall not require such Lender or such Issuing Bank to incur an unreimbursed loss or unreimbursed cost
or expense or otherwise take any action inconsistent with its internal policies or legal or regulatory restrictions or suffer any disadvantage or burden deemed by it to be significant) (x) to file any certificate or document reasonably
requested in writing by a Borrower or (y) to assign its rights and delegate and transfer its obligations hereunder to another of its offices, branches or affiliates, if such filing or assignment would reduce its claims for compensation under
Section 2.14 or enable it to withdraw its notice pursuant to Section 2.15 or would reduce amounts payable pursuant to Section 2.20, as the case may be, in the future. The Borrowers hereby agree to pay all reasonable costs and expenses
incurred by any Lender or any Issuing Bank in connection with any such filing or assignment, delegation and transfer.
SECTION 2.22.
N.Z. Swingline Loans. (a) N.Z. Swingline Commitments. Subject to the terms and conditions and relying upon the representations and warranties herein set forth, the N.Z. Swingline Lender agrees to make N.Z. Swingline
Loans to the New Zealand Borrower, in New Zealand Dollars, at any time and from time to time on and after the Second Restatement Date and until the earlier of the Revolving Credit Maturity Date and the termination of the Multicurrency
Revolving Credit Commitments in accordance with the terms hereof, in an aggregate principal amount at any time outstanding that will not result in (x) the aggregate principal amount of all N.Z. Swingline Loans exceeding $20,000,000 in the
aggregate (such amount to be increased and/or decreased from time to time as mutually agreed between the New Zealand Borrower and the N.Z. Swingline Lender (but not to exceed $50,000,000 in any event) in a supplement to the applicable N.Z. Swingline
Lender Designation Agreement that is delivered to the Administrative Agent), (y) the Aggregate Multicurrency Revolving Credit Exposure attributable to Loans to, and Letters of Credit issued for the account of, the Australian Borrower, the New
Zealand Borrower and the U.S. Borrower in Australian Dollars exceeding the ANZ Sublimit or (z) the Aggregate Multicurrency Revolving Credit Exposure, after giving effect to any N.Z. Swingline Loan, exceeding the Total Multicurrency
Revolving Credit Commitment. Each N.Z. Swingline Commitment may be
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terminated or reduced from time to time as provided herein. Within the foregoing limits, the New Zealand Borrower may borrow, pay or prepay and reborrow N.Z. Swingline Loans hereunder, subject to
the terms, conditions and limitations set forth herein. Notwithstanding anything to the contrary herein, the N.Z. Swingline Lender shall not be required to make N.Z. Swingline Loans at any time that there exists a Defaulting Lender under the
Multicurrency Revolving Credit Commitments.
(b) N.Z. Swingline Loans. The New Zealand Borrower shall notify the N.Z.
Swingline Lender and the Administrative Agent by fax, or by telephone (confirmed by fax), not later than 12:00 noon, Auckland time, three Business Days prior to the day of a proposed N.Z. Swingline Loan. Such notice shall be delivered on a
Business Day, shall be irrevocable and shall refer to this Agreement and shall specify the requested date (which shall be a Business Day) and the amount of such N.Z. Swingline Loan. The N.Z. Swingline Lender shall make each N.Z. Swingline Loan
available to the New Zealand Borrower by means of a credit to an account in the name of the New Zealand Borrower as designated by the New Zealand Borrower in such notice. Notwithstanding anything to the contrary set forth in
Section 9.08(b), the borrowing mechanics in respect of the N.Z. Swingline Loans may be modified from time to time by the agreement of the Administrative Agent, the U.S. Borrower and the N.Z. Swingline Lender.
(c) Prepayment. The New Zealand Borrower shall have the right at any time and from time to time to prepay any
N.Z. Swingline Loan, in whole or in part, upon giving written or fax notice (or telephone notice promptly confirmed by written or fax notice) to the N.Z. Swingline Lender and to the Administrative Agent before 12:00 noon, Auckland time, three
Business Days prior to the date of prepayment at the N.Z. Swingline Lender’s address for notices specified in Section 9.01 or in the applicable N.Z. Swingline Lender Designation Agreement. All principal payments of N.Z. Swingline Loans
shall be accompanied by accrued interest on the principal amount being repaid to the date of payment and shall be subject to Section 2.16.
(d) Interest. Each N.Z. Swingline Loan shall be a Bank Bill Rate Loan (except to the extent required to be a Foreign Base Rate
Loan as provided for herein) and, subject to the provisions of Section 2.07, shall bear interest as provided in Section 2.06(e).
(e) Participations. If an Event of Default shall have occurred and be continuing, the N.Z. Swingline Lender may by written
notice given to the Administrative Agent not later than 10:00 a.m., Auckland time, on any Business Day require the Multicurrency Revolving Credit Lenders to acquire participations on the next Business Day in all or a portion of the outstanding
N.Z. Swingline Loans. Each notice shall specify the aggregate amount of N.Z. Swingline Loans in which such Revolving Credit Lenders will participate. The principal amount of any N.Z. Swingline Loans subject to any such notice, together with all
accrued and unpaid interest thereon, shall immediately upon delivery of such notice be converted to Dollar Loans and obligations to pay interest in dollars, respectively, at the Exchange Rate prevailing on the date of such notice. The Administrative
Agent will, promptly upon receipt of such notice, give notice to each Multicurrency Revolving Credit Lender specifying in such notice such Revolving Credit Lender’s Pro Rata Percentage in dollars of such N.Z. Swingline Loan or Loans. In
furtherance of the foregoing, each Multicurrency Revolving Credit Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the N.Z. Swingline Lender, such
Lender’s Pro Rata Percentage in dollars of such N.Z. Swingline Loans. Each Multicurrency Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations in N.Z. Swingline Loans pursuant to this paragraph is
absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default, and that each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever. Each Multicurrency Revolving Credit Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.02(c) with respect to Loans made
by such Revolving Credit
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Lender (and Section 2.02(c) shall apply, mutatis mutandis, to the payment obligations of the Revolving Credit Lenders) and the Administrative Agent shall promptly pay to
the N.Z. Swingline Lender the amounts so received by it from the Revolving Credit Lenders. The Administrative Agent shall notify the New Zealand Borrower of any participations in any N.Z. Swingline Loan of such Borrower acquired pursuant to
this paragraph and thereafter payments in respect of such Swingline Loan shall be made in dollars and to the Administrative Agent and not to a N.Z. Swingline Lender. Any amount received by a Swingline Lender from the applicable Borrower (or other
party on behalf of such Borrower) in respect of a Swingline Loan of such Swingline Lender after receipt by such N.Z. Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any
such amount received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Credit Lenders that shall have made their payments pursuant to this paragraph and to the applicable N.Z. Swingline Lender, as
their interests may appear. The purchase of participations in a N.Z. Swingline Loan pursuant to this paragraph shall not relieve the applicable Borrower (or other party liable for obligations of such Borrower) of any default in the payment
thereof.
(f) Designation of N.Z. Swingline Lender. The New Zealand Borrower may, at any time and from time to time,
with the consent of such Lender or Lenders, designate one or more Lenders or their Affiliates to act as a N.Z. Swingline Lender under the terms of this Agreement; provided that the Administrative Agent shall be reasonably satisfied that such
N.Z. Swingline Lender may make loans and other extensions of credit to the New Zealand Borrower in compliance with applicable laws and regulations and without being subject to any unreimbursed or unindemnified Tax or other expenses. Upon the receipt
by the Administrative Agent of a N.Z. Swingline Lender Designation Agreement executed by a N.Z. Swingline Lender, the New Zealand Borrower, the U.S. Borrower and the Administrative Agent and setting forth the amount of the New Zealand Swingline
Commitment of such N.Z. Swingline Lender, such N.Z. Swingline Lender shall be a “N.Z. Swingline Lender” and a party to this Agreement. At any time that there shall be more than one N.Z. Swingline Lender under this Agreement, borrowings and
repayments of N.Z. Swingline Loans shall be made ratably in accordance with the N.Z. Swingline Commitments of the N.Z. Swingline Lenders.
SECTION 2.23. Letters of Credit. (a) General. Any Borrower may request
from any Issuing Bank the issuance of a Letter of Credit for its own account or for the account of any of its Subsidiaries (in which case such Borrower and such Subsidiary shall be co-applicants with respect to such Letter of Credit), in a form
reasonably acceptable to the Administrative Agent and such Issuing Bank, at any time and from time to time while the L/C Commitments to any Borrower remain in effect. This Section shall not be construed to impose an obligation upon (i) any
Issuing Bank to issue any Letter of Credit that is inconsistent with the terms and conditions of this Agreement or (ii) Credit Suisse AG or any of its Affiliates to issue any “documentary” or “trade” Letter of Credit (as
opposed to a “standby” Letter of Credit), in each case as determined by such Issuing Bank or Credit Suisse AG in its sole discretion.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. In order to request the issuance of a Letter of
Credit (or to amend, renew or extend an existing Letter of Credit), a Borrower shall hand deliver or fax to the Administrative Agent and the applicable Issuing Bank (reasonably in advance of the requested date of issuance, amendment, renewal or
extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, the date of issuance, amendment, renewal or extension, the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) below), the amount of such Letter of Credit, the name and address of the beneficiary thereof, whether such Letter of Credit is to be a Domestic Letter of Credit, a Multicurrency Letter of Credit or a
U.K. Letter of Credit and such other information as shall be necessary to prepare such Letter of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if, and upon issuance, amendment, renewal or extension of each Letter
of Credit the applicable Borrower shall be deemed to represent and warrant that, after giving effect to such issuance, amendment, renewal or
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extension (i) the L/C Exposure shall not exceed $200,000,000, and the L/C Exposure attributable to all Letters of Credit issued by any Issuing Bank at any time shall not exceed the L/C
Commitment of such Issuing Bank at such time, (ii) the sum of the Aggregate Domestic Revolving Credit Exposure and the Aggregate Competitive Loan Exposure shall not exceed the Total Domestic Revolving Credit Commitment, (iii) the Aggregate
Multicurrency Revolving Credit Exposure shall not exceed the Total Multicurrency Revolving Credit Commitment, and the Aggregate Multicurrency Revolving Credit Exposure attributable to Loans to, and Letters of Credit issued for the account of,
(x) the U.S. Borrower in Australian Dollars, the Australian Borrower and the New Zealand Borrower shall not exceed the ANZ Sublimit and (y) the Canadian Borrower and the U.S. Borrower borrowing Multicurrency Revolving Loans in Canadian
Dollars shall not exceed the Canadian Sublimit and (iv) the Aggregate U.K. Revolving Credit Exposure shall not exceed the Total U.K. Revolving Credit Commitment. In addition, no Issuing Bank shall be required to issue any Letter of
Credit if, immediately after giving effect thereto, the Domestic Revolving Credit Exposure, Multicurrency Revolving Credit Exposure or U.K. Revolving Credit Exposure of such Issuing Bank would exceed the Domestic Revolving Credit Commitment,
Multicurrency Revolving Credit Commitment or U.K. Revolving Credit Commitment, as the case may be, of such Issuing Bank (with, for purposes of this sentence only, the Domestic L/C Exposure, Multicurrency L/C Exposure or U.K. L/C Exposure of any
Issuing Bank being deemed to be the aggregate face amount of each Domestic Letter of Credit, Multicurrency Letter of Credit or U.K. Letter of Credit issued by such Issuing Bank and outstanding at such time); provided that the limitation in
this sentence shall not apply to amendments, extensions or renewals of any Letter of Credit to the extent that the face amount of such Letter of Credit is not increased thereby.
(c) Expiration Date. Each Letter of Credit shall expire at the close of business on the earlier of the date that is one year
after the date of the issuance of such Letter of Credit and the date that is five Business Days prior to the Revolving Credit Maturity Date, unless such Letter of Credit expires by its terms on an earlier date; provided, however, that a
Letter of Credit may, upon the request of a Borrower, include a provision whereby such Letter of Credit shall be renewed automatically for additional consecutive periods of 12 months or less (but not beyond the date that is five Business Days
prior to the Revolving Credit Maturity Date) unless the Issuing Bank notifies the beneficiary thereof at least 30 days prior to the then applicable expiration date that such Letter of Credit will not be renewed.
(d) Participations. By the issuance of a Domestic Letter of Credit and without any further action on the part of any Issuing
Bank or the Lenders, the Issuing Bank with respect to such Letter of Credit hereby grants to each Domestic Revolving Credit Lender, and each such Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such
Lender’s Pro Rata Percentage of the aggregate amount available to be drawn under such Letter of Credit, effective upon the issuance of such Letter of Credit (or, in the case of the Existing Letters of Credit, upon the Second Restatement Date).
By the issuance of a Multicurrency Letter of Credit and without any further action on the part of any Issuing Bank or the Lenders, the Issuing Bank with respect to such Letter of Credit hereby grants to each Multicurrency Revolving Credit Lender,
and each such Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Pro Rata Percentage of the aggregate amount available to be drawn under such Letter of Credit, effective upon the
issuance of such Letter of Credit. By the issuance of a U.K. Letter of Credit and without any further action on the part of any Issuing Bank or the Lenders, the Issuing Bank with respect to such Letter of Credit hereby grants to each U.K. Revolving
Credit Lender, and each such Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Pro Rata Percentage of the aggregate amount available to be drawn under such Letter of Credit, effective
upon the issuance of such Letter of Credit. In consideration and in furtherance of the foregoing, each Domestic Revolving Credit Lender, each Multicurrency Revolving Credit Lender and each U.K. Revolving Credit Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of the applicable Issuing Bank, such Lender’s Pro Rata Percentage of each Domestic L/C Disbursement, Multicurrency L/C Disbursement or U.K. L/C
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Disbursement, respectively, made by such Issuing Bank and not reimbursed by the applicable Borrower (or, if applicable, another party pursuant to its obligations under any other Loan
Document) forthwith on the date due as provided in Section 2.02(e). Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default, and that each such payment shall be made without any offset, abatement, withholding or reduction
whatsoever.
(e) Reimbursement. If any Issuing Bank shall make any L/C Disbursement in respect of a Letter of Credit,
the applicable Borrower shall pay to such Issuing Bank an amount equal to such L/C Disbursement on or prior to the Business Day following the day on which such Borrower shall have received notice from such Issuing Bank that payment of such draft
will be made; provided that to satisfy its reimbursement obligation under this paragraph (e), a Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 or 2.22 an ABR Revolving
Loan (in the case of a Domestic Letter of Credit), a Canadian Prime Rate Loan (in the case of a Multicurrency Letter of Credit denominated in Canadian Dollars), a N.Z. Swingline Loan (in the case of a Multicurrency Letter of Credit denominated in
New Zealand Dollars) or a Fixed Rate Loan (in the case of a U.K. Letter of Credit or a Multicurrency Letter of Credit denominated in a currency other than Canadian Dollars or New Zealand Dollars) to be made by the applicable Revolving
Credit Lenders or the applicable N.Z. Swingline Lender, as the case may be, in the aggregate amount of any such L/C Disbursement.
(f) Obligations Absolute. Each Borrower’s obligations to reimburse L/C Disbursements as provided in paragraph (e)
above shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement, under any and all circumstances whatsoever, and irrespective of:
(i) any lack of validity or enforceability of any Letter of Credit or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure from all or any of the provisions of any Letter of Credit or any
Loan Document;
(iii) the existence of any claim, setoff, defense or other right that any Borrower, any other party
guaranteeing, or otherwise obligated with, any Borrower, any Subsidiary or other Affiliate thereof or any other person may at any time have against the beneficiary under any Letter of Credit, any Issuing Bank, the Administrative Agent or any Lender
or any other person, whether in connection with this Agreement, any other Loan Document or any other related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any respect;
(v) payment by the Issuing Bank under a
Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of any Issuing Bank, the Lenders, the Administrative Agent or any
other person or any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of a Borrower’s obligations hereunder.
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Without limiting the generality of the foregoing, it is expressly understood and agreed that the
absolute and unconditional obligation of the Borrowers hereunder to reimburse L/C Disbursements will not be excused by the gross negligence or wilful misconduct of any Issuing Bank. However, the foregoing shall not be construed to excuse any Issuing
Bank from liability to the Borrowers to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrowers to the extent permitted by applicable law) suffered by the Borrowers that
are caused by such Issuing Bank’s gross negligence or wilful misconduct in determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof; it is understood that any Issuing Bank may accept
documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary and, in making any payment under any Letter of Credit (i) such Issuing Bank’s
exclusive reliance on the documents presented to it under such Letter of Credit as to any and all matters set forth therein, including reliance on the amount of any draft presented under such Letter of Credit, whether or not the amount due to the
beneficiary thereunder equals the amount of such draft and whether or not any document presented pursuant to such Letter of Credit proves to be insufficient in any respect, if such document on its face appears to be in order, and whether or not any
other statement or any other document presented pursuant to such Letter of Credit proves to be forged or invalid or any statement therein proves to be inaccurate or untrue in any respect whatsoever and (ii) any noncompliance in any immaterial
respect of the documents presented under such Letter of Credit with the terms thereof shall, in each case, be deemed not to constitute wilful misconduct or gross negligence of such Issuing Bank.
(g) Disbursement Procedures. Any Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under such Letter of Credit. Such Issuing Bank shall as promptly as possible give telephonic notification, confirmed by fax, to the Administrative Agent and the applicable Borrower of such demand for payment and
whether such Issuing Bank has made or will make an L/C Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve such Borrower of its obligation to reimburse such Issuing Bank or the Revolving
Credit Lenders with respect to any such L/C Disbursement. The Administrative Agent shall promptly give each applicable Revolving Credit Lender notice thereof.
(h) Interim Interest. If any Issuing Bank shall make any L/C Disbursement in respect of a Letter of Credit, then, unless the
applicable Borrower shall reimburse such L/C Disbursement in full on such date, the unpaid amount thereof shall bear interest for the account of such Issuing Bank, for each day from and including the date of such L/C Disbursement, to but excluding
the earlier of the date of payment by such Borrower or the date on which interest shall commence to accrue thereon as provided in Section 2.02(f), at the rate per annum that would apply to such amount if such amount were a Daily Rate Revolving
Loan.
(i) Resignation or Removal of the Issuing Bank. Any Issuing Bank may resign at any time by giving 30
days’ prior written notice to the Administrative Agent, the Lenders and the U.S. Borrower, and may be removed at any time by the U.S. Borrower by notice to any Issuing Bank, the Administrative Agent and the Lenders. Upon the
acceptance of any appointment as an Issuing Bank hereunder by a Lender that shall agree to serve as successor Issuing Bank, such successor shall succeed to and become vested with all the interests, rights and obligations of the retiring Issuing Bank
and the retiring Issuing Bank shall be discharged from its obligations to issue additional Letters of Credit hereunder. At the time such removal or resignation shall become effective, the Borrowers shall pay all accrued and unpaid fees pursuant to
Section 2.05(d). The acceptance of any appointment as an Issuing Bank hereunder by a successor Lender shall be evidenced by an agreement entered into by such successor, in a form satisfactory to the U.S. Borrower and the Administrative
Agent, and, from and after the effective date of such agreement, (i) such successor Lender shall have all the rights and obligations of the previous Issuing Bank under this Agreement and the other Loan Documents and (ii) references herein
and in the other Loan
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Documents 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 resignation or removal of an Issuing Bank hereunder, the retiring Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement and the other Loan
Documents with respect to Letters of Credit issued by it prior to such resignation or removal, but shall not be required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be continuing, the Borrowers shall, on the Business Day they
receive notice from the Administrative Agent or the Required Lenders (or, if the maturity of the Loans has been accelerated, Revolving Credit Lenders holding participations in outstanding Letters of Credit representing greater than 50% of the
aggregate undrawn amount of all outstanding Letters of Credit) thereof and of the amount to be deposited, deposit in an account with the Collateral Agent, for the benefit of the Revolving Credit Lenders, an amount in cash equal to the L/C Exposure
as of such date. Such deposit shall be held by the Collateral Agent as collateral for the payment and performance of the Obligations. The Collateral Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over
such account. Other than any interest earned on the investment of such deposits in Permitted Investments, which investments shall be made at the option and sole discretion of the Collateral Agent, such deposits shall not bear interest. Interest or
profits, if any, on such investments shall accumulate in such account. Moneys in such account shall (i) automatically be applied by the Administrative Agent to reimburse any Issuing Bank for L/C Disbursements for which such Issuing Bank has not
been reimbursed, (ii) be held for the satisfaction of the reimbursement obligations of the Borrowers for the L/C Exposure and (iii) if the maturity of the Loans has been accelerated (but subject to the consent of Revolving Credit Lenders
holding participations in outstanding Letters of Credit representing greater than 50% of the aggregate undrawn amount of all outstanding Letters of Credit), be applied to satisfy the Obligations. If the Borrowers are required to provide an amount of
cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers within three Business Days after all Events of Default have been cured or
waived.
(k) Additional Issuing Banks. The U.S. Borrower may, at any time and from time to time with the consent
of the Administrative Agent (which consent shall not be unreasonably withheld) and such Lender, designate one or more additional Lenders to act as an issuing bank under the terms of this Agreement. Any Lender designated as an issuing bank pursuant
to this paragraph (k) shall be deemed (in addition to being a Lender) to be the Issuing Bank with respect to Letters of Credit issued or to be issued by such Lender, and all references herein and in the other Loan Documents to the term
“Issuing Bank” shall, with respect to such Letters of Credit, be deemed to refer to such Lender in its capacity as Issuing Bank, as the context shall require. Each Lender acting as an Issuing Bank hereunder shall promptly provide to the
Administrative Agent such information with respect to the Letters of Credit issued by such Lender as the Administrative Agent may reasonably request to allow the Administrative Agent to calculate the L/C Exposure of any Class, the L/C Participation
Fees and the other Obligations with respect to outstanding Letters of Credit.
SECTION 2.24. Bankers’
Acceptances. (a) Subject to the terms and conditions of this Agreement, the Canadian Borrower may request a Multicurrency Revolving Credit Borrowing denominated in Canadian Dollars by presenting drafts for acceptance and purchase as
B/As by the Multicurrency Revolving Credit Lenders.
(b) No Contract Period with respect to a B/A to be accepted and, if
applicable, purchased as a Multicurrency Revolving Loan shall extend beyond the Revolving Credit Maturity Date. All B/As and B/A Loans shall be denominated in Canadian Dollars.
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(c) To facilitate availment of B/A Loans, the Canadian Borrower hereby appoints each
Multicurrency Revolving Credit Lender as its attorney to sign and endorse on its behalf (in accordance with a Borrowing Request relating to a B/A Loan pursuant to Section 2.03 or 2.10), in handwriting or by facsimile or mechanical signature as
and when deemed necessary by such Multicurrency Revolving Credit Lender, blank forms of B/As in the form requested by such Multicurrency Revolving Credit Lender. The Canadian Borrower recognizes and agrees that all B/As signed and/or endorsed by a
Multicurrency Revolving Credit Lender on behalf of the Canadian Borrower shall bind the Canadian Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper signing officers of the Canadian Borrower. Each
Multicurrency Revolving Credit Lender is hereby authorized (in accordance with a Borrowing Request relating to a B/A Loan) to issue such B/As endorsed in blank in such face amounts as may be determined by such Multicurrency Revolving Credit Lender;
provided that the aggregate amount thereof is equal to the aggregate amount of B/As required to be accepted and purchased by such Multicurrency Revolving Credit Lender. No Multicurrency Revolving Credit Lender shall be liable for any damage,
loss or other claim arising by reason of any loss or improper use of any such instrument except for the gross negligence or wilful misconduct of such Multicurrency Revolving Credit Lender or its officers, employees, agents or representatives. Each
Multicurrency Revolving Credit Lender shall maintain a record, which shall be made available to the Canadian Borrower upon its request, with respect to B/As (i) received by it in blank hereunder, (ii) voided by it for any reason,
(iii) accepted and purchased by it hereunder and (iv) canceled at their respective maturities. On request by or on behalf of the Canadian Borrower, a Multicurrency Revolving Credit Lender shall cancel all forms of B/As which have been
pre-signed or pre-endorsed on behalf of the Canadian Borrower and that are held by such Multicurrency Revolving Credit Lender and are not required to be issued in accordance with the Canadian Borrower’s irrevocable notice. Alternatively, the
Canadian Borrower agrees that, at the request of the Administrative Agent, the Canadian Borrower shall deliver to the Administrative Agent a “depository note” which complies with the requirements of the Depository Bills and Notes Act
(Canada), and consents to the deposit of any such depository note in the book-based debt clearance system maintained by the Canadian Depository for Securities.
(d) Drafts of the Canadian Borrower to be accepted as B/As hereunder shall be signed as set forth in this Section 2.24. Notwithstanding
that any person whose signature appears on any B/A may no longer be an authorized signatory for any Multicurrency Revolving Credit Lender or the Canadian Borrower at the date of issuance of a B/A, such signature shall nevertheless be valid and
sufficient for all purposes as if such authority had remained in force at the time of such issuance and any such B/A so signed shall be binding on the Canadian Borrower.
(e) Promptly following the receipt of a Borrowing Request specifying a Multicurrency Revolving Credit Borrowing by way of B/A, the
Administrative Agent shall so advise the Multicurrency Revolving Credit Lenders and shall advise each Multicurrency Revolving Credit Lender of the aggregate face amount of the B/A to be accepted by it and the applicable Contract Period (which shall
be identical for all Multicurrency Revolving Credit Lenders). In the case of Multicurrency Revolving Loans comprised of B/A Loans, the aggregate face amount of the B/A to be accepted by a Multicurrency Revolving Credit Lender shall be in a minimum
aggregate amount of C$100,000 and shall be a whole multiple of C$100,000, and such face amount shall be in the Multicurrency Revolving Credit Lenders’ pro rata portions of such Multicurrency Revolving Credit Borrowing, provided that the
Administrative Agent may in its sole discretion increase or reduce any Multicurrency Revolving Credit Lender’s portion of such B/A Loan to the nearest C$100,000 without reducing the aggregate Multicurrency Revolving Credit Commitments.
(f) The Canadian Borrower may specify in a Borrowing Request pursuant to Section 2.03 or 2.10 that it desires that any B/A requested by
such Borrowing Request be purchased by the Multicurrency Revolving Credit Lenders, in which case the Multicurrency Revolving Credit Lenders shall, upon
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acceptance of a B/A by a Multicurrency Revolving Credit Lender, purchase each B/A from the Canadian Borrower at the Discount Rate for such Multicurrency Revolving Credit Lender applicable to such
B/A accepted by it and provide to the Administrative Agent the Discount Proceeds for the account of the Canadian Borrower. The Acceptance Fee payable by the Canadian Borrower to a Multicurrency Revolving Credit Lender under Section 2.06(d) in
respect of each B/A accepted by such Multicurrency Revolving Credit Lender shall be set off against and deducted from the Discount Proceeds payable by such Multicurrency Revolving Credit Lender under this Section 2.24.
(g) Each Multicurrency Revolving Credit Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all
B/As accepted and purchased by it.
(h) If a Multicurrency Revolving Credit Lender is not a chartered bank under the Bank
Act (Canada) or if a Multicurrency Revolving Credit Lender notifies the Administrative Agent in writing that it is otherwise unable to accept Bankers’ Acceptances, such Multicurrency Revolving Credit Lender will, instead of accepting and
purchasing Bankers’ Acceptances, make an advance (a “B/A Equivalent Loan”) to the Canadian Borrower in the amount and for the same term as the draft that such Multicurrency Revolving Credit Lender would otherwise have
been required to accept and purchase hereunder. Each such Multicurrency Revolving Credit Lender will provide to the Administrative Agent the Discount Proceeds of such B/A Equivalent Loan for the account of the Canadian Borrower. Each such B/A
Equivalent Loan will bear interest at the same rate that would result if such Multicurrency Revolving Credit Lender had accepted (and been paid an Acceptance Fee) and purchased (on a discounted basis at the Discount Rate) a Bankers’ Acceptance
for the relevant Contract Period (it being the intention of the parties that each such B/A Equivalent Loan shall have the same economic consequences for the Multicurrency Revolving Credit Lenders and the Canadian Borrower as the Bankers’
Acceptance which such B/A Equivalent Loan replaces). All such interest shall be paid in advance on the date such B/A Equivalent Loan is made, and will be deducted from the principal amount of such B/A Equivalent Loan in the same manner in which the
deduction based on the Discount Rate and the applicable Acceptance Fee of a Bankers’ Acceptance would be deducted from the face amount of the Bankers’ Acceptance.
(i) The Canadian Borrower waives presentment for payment and any other defense to payment of any amounts due to a Multicurrency Revolving
Credit Lender in respect of a B/A accepted and purchased by it pursuant to this Agreement which might exist solely by reason of such B/A being held, at the maturity thereof, by such Multicurrency Revolving Credit Lender in its own right, and the
Canadian Borrower agrees not to claim any days of grace if such Multicurrency Revolving Credit Lender, as holder, claims payment from or sues the Canadian Borrower on the B/A for payment of the amount payable by the Canadian Borrower thereunder. On
the last day of the Contract Period of a B/A, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Canadian Borrower shall pay the Multicurrency Revolving Credit Lender that has accepted and
purchased a B/A or advanced a B/A Equivalent Loan the full face amount of such B/A or B/A Equivalent Loan, as the case may be, and, after such payment, the Canadian Borrower shall have no further liability in respect of such B/A and such
Multicurrency Revolving Credit Lender shall be entitled to all benefits of, and be responsible for all payments due to third parties under, such B/A.
(j) Except as required by any Multicurrency Revolving Credit Lender upon the occurrence of an Event of Default, no B/A Loan may be
repaid by the Canadian Borrower prior to the expiry date of the Contract Period applicable to such B/A Loan; provided, however, that any B/A Loan may be defeased as provided in Section 2.12(a).
SECTION 2.25. Incremental Revolving Credit Commitments. (a) One or more Borrowers may, by written notice to
the Administrative Agent from time to time, request Incremental Revolving Credit Commitments from one or more Incremental Revolving Credit Lenders, which may include any
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existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion); provided that each Incremental Revolving
Credit Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent, each Issuing Bank and, in the case of Incremental Multicurrency Revolving Credit Commitments, the applicable N.Z. Swingline Lender (which
approvals shall not be unreasonably withheld). Such written notice shall set forth (i) the identity of the Borrower or Borrowers to which the Incremental Revolving Credit Commitments shall be extended, (ii) the amount of the Incremental
Revolving Credit Commitments being requested, (iii) the date on which such Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date
of such notice, unless otherwise agreed to by the Administrative Agent) and (iv) whether such Incremental Revolving Credit Commitments are to be Domestic Revolving Credit Commitments, Multicurrency Revolving Credit Commitments, U.K. Revolving
Credit Commitments or commitments to make revolving loans on terms different from the then existing Revolving Loans (such loans, “Specified Incremental Revolving Loans” and, such commitments, “Specified Incremental
Revolving Credit Commitments”).
(b) The applicable Borrower or Borrowers and each Incremental Revolving
Credit Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such
Incremental Revolving Credit Lender. Each Incremental Assumption Agreement shall specify the terms of the Incremental Revolving Credit Commitment and the Incremental Revolving Loans to be made thereunder; provided that (i) without the
prior written consent of the Required Lenders, the final maturity date of any Specified Incremental Revolving Credit Commitments shall be no earlier than the Revolving Credit Maturity Date under this Agreement and (ii) terms of any Specified
Incremental Revolving Credit Commitments and the Specified Incremental Revolving Loans to be made thereunder, to the extent not consistent with the Revolving Credit Commitments and the Revolving Loans extended under this Agreement, shall be
reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness
of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Revolving Credit Commitment and the Incremental Revolving Loans
evidenced thereby, and the Administrative Agent and the Borrowers may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, no Incremental Revolving Credit Commitment shall become effective under this Section 2.25
unless, (i) on the date of such effectiveness, the conditions set forth in clauses (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and
executed by a Responsible Officer of the U.S. Borrower, (ii) at the time of, and after giving effect to, the incurrence of the Incremental Revolving Loans to be made under such Incremental Revolving Credit Commitment (assuming the full
amount thereof was drawn at such time), Holdings would be in Pro Forma Compliance, (iii) if such Incremental Revolving Loans are to be secured, at the time of the effectiveness of such Incremental Revolving Commitments, the aggregate principal
amount of Incremental Revolving Credit Commitments (assuming the full amount thereof was drawn at such time), when aggregated with (A) the then outstanding principal amount of all Revolving Credit Commitments (including Incremental Revolving
Credit Commitments) and Other Revolving Credit Commitments, in each case, assuming the full amount thereof was drawn at such time and (B) the aggregate outstanding principal amount of all Term Loans, shall not exceed $3,950,000,000;
provided, however, that the Borrowers may incur additional Incremental Revolving Credit Commitments so long as, after giving pro forma effect to such incurrence (assuming the full amount thereof was drawn at such time), the Senior Secured
Leverage Ratio would not exceed 2.75 to 1.00; provided, further, that the Borrowers may incur Incremental Revolving Credit Commitments pursuant to clause (iii) above and the immediately preceding proviso substantially simultaneously
and/or on the same day without giving pro
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forma effect to Incremental Revolving Credit Commitments incurred in reliance on such clause (iii) (and not the immediately preceding proviso) for purposes of calculating compliance with
the required Senior Secured Leverage Ratio and (iv) the Administrative Agent shall have received legal opinions, board resolutions and an officer’s certificate consistent with those delivered on the Second Restatement Date pursuant to
Section 4.02 and such other documents as the Administrative Agent may reasonably request.
(d) Each of the parties hereto
hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Revolving Loans (other than Specified Incremental Revolving Loans), when originally made, are included in each
Borrowing of outstanding Revolving Loans of the applicable Class on a pro rata basis. This may be accomplished (i) by requiring the outstanding Revolving Loans of the affected Class to be prepaid with the proceeds of a new Revolving Credit
Borrowing of such Class, (ii) by causing Lenders of the affected Class to assign portions of their outstanding Revolving Loans of such Class to Incremental Revolving Credit Lenders or (iii) by any combination of the foregoing. Any
conversion of Fixed Rate Loans to Daily Rate Loans contemplated in the preceding sentence shall be subject to Section 2.16. If any Incremental Revolving Loan is to be allocated to an existing Interest Period for a Eurocurrency Revolving Credit
Borrowing of a Class then, subject to Section 2.07, the interest rate applicable to such Incremental Revolving Loan for the remainder of such Interest Period and the other economic consequences thereof shall be as set out in the applicable
Incremental Assumption Agreement.
SECTION 2.26. Incremental Term Loan Commitments. (a) One or more
Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments from one or more Incremental Term Lenders, which may include any existing Lender (each of which shall be entitled to agree or
decline to participate in its sole discretion); provided that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not
be unreasonably withheld). Such notice shall set forth (i) the identity of the Borrower or Borrowers to which the Incremental Term Loan Commitments shall be extended, (ii) the amount of the Incremental Term Loan Commitments being
requested, (iii) if the Incremental Term Loan Commitments are requested in an Alternative Currency, the applicable currency, (iv) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not
be less than 10 Business Days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (v) whether such Incremental Term Loan Commitments are commitments to make additional
Tranche A Loans or commitments to make term loans with terms different from the Tranche A Loans (such loans, “Specified Incremental Term Loans” and, such commitments, “Specified Incremental Term Loan
Commitments”).
(b) The applicable Borrower or Borrowers and each Incremental Term Lender shall execute
and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each
Incremental Assumption Agreement shall specify the terms of the Incremental Term Loan, to be made thereunder, provided that (i) without the prior written consent of the Required Lenders, the final maturity date of any Specified
Incremental Term Loans shall be no earlier than the Tranche A Maturity Date under this Agreement and the weighted average life to maturity of such Specified Incremental Term Loans shall be no shorter than the weighted average life to maturity of the
Tranche A Loans, (ii) in connection with any incurrence of additional Tranche A Loans, the amounts payable on each Tranche A Repayment Date may be adjusted to reflect the incurrence of such additional Tranche A Loans; provided that such
adjustment shall not decrease the amounts payable to the Tranche A Lenders in any period after the incurrence of such additional Tranche A Loans and (iii) the other terms of any Specified Incremental Term Loans, to the extent not consistent
with the Term Loans extended under this Agreement, shall be reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement.
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Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent)
necessary to reflect the existence and terms of the Incremental Term Loan Commitment and the Incremental Term Loans evidenced thereby, and the Administrative Agent and the Borrowers may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.26 unless,
(i) on the date of such effectiveness, the conditions set forth in clauses (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed
by a Responsible Officer of the U.S. Borrower, (ii) at the time of, and after giving effect to, the incurrence of the Incremental Term Loans under such Incremental Term Loan Commitments, Holdings would be in Pro Forma Compliance,
(iii) if such Incremental Term Loans are to be secured, at the time of, and after giving effect to, the incurrence of such Incremental Term Loans, the aggregate principal amount of Incremental Term Loans, when aggregated with (A) the then
outstanding principal amount of all Revolving Credit Commitments (including Incremental Revolving Credit Commitments) and Other Revolving Credit Commitments, in each case, assuming the full amount thereof was drawn at such time and (B) the
aggregate outstanding principal amount of all Term Loans, shall not exceed $3,950,000,000; provided, however, that the Borrowers may incur additional Incremental Term Loans so long as, after giving pro forma effect to such incurrence, the
Senior Secured Leverage Ratio would not exceed 2.75 to 1.00; provided, further, that the Borrowers may incur Incremental Term Loans pursuant to clause (iii) above and the immediately preceding proviso substantially simultaneously and/or
on the same day without giving pro forma effect to Incremental Term Loans incurred in reliance on such clause (iii) (and not the immediately preceding proviso) for purposes of calculating compliance with the required Senior Secured Leverage
Ratio and (iv) the Administrative Agent shall have received legal opinions, board resolutions and an officer’s certificate consistent with those delivered on the Second Restatement Date pursuant to Section 4.02 and such other
documents as the Administrative Agent may reasonably request.
(d) Each of the parties hereto hereby agrees that the Administrative
Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Specified Incremental Term Loans), when originally made, are included in each Borrowing of outstanding Tranche A Loans on a pro
rata basis. This may be accomplished at the discretion of the Administrative Agent by requiring each Borrowing of outstanding Fixed Rate Term Loans to be converted into a Borrowing of Daily Rate Term Loans on the date of each Incremental Term Loan,
or by allocating a portion of each Incremental Term Loan to each Borrowing of outstanding Fixed Rate Term Loans on a pro rata basis, even though as a result thereof such Incremental Term Loan may effectively have a shorter Interest Period than the
Term Loans included in the Borrowing of which they are a part (and notwithstanding any other provision of this Agreement that would prohibit such an initial Interest Period). Any conversion of Fixed Rate Term Loans to Daily Rate Term Loans required
by the preceding sentence shall be subject to Section 2.16. If any Incremental Term Loan is to be allocated to an existing Interest Period for a Fixed Rate Term Borrowing then, subject to Section 2.07, the interest rate applicable to such
Incremental Term Loan for the remainder of such Interest Period and the other economic consequences thereof shall be as set out in the applicable Incremental Assumption Agreement. In addition, to the extent that any Incremental Term Loans are
Tranche A Loans, the scheduled amortization payments under Section 2.11(a)(i) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
SECTION 2.27. Competitive Bid Procedure. (a) Subject to the terms and conditions set forth herein, from time to time from
and after the Second Restatement Date and until the earlier of the Revolving Credit Maturity Date and the termination of the Domestic Revolving Credit Commitments in accordance with the terms hereof, so long as the U.S. Borrower has obtained and
maintains Investment
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Grade Status, the U.S. Borrower may request Competitive Bids and the U.S. Borrower may (but shall not have any obligation to) accept Competitive Bids and borrow Competitive Loans; provided
that (i) the Aggregate Competitive Loan Exposures shall not exceed 50% of the Total Domestic Revolving Credit Commitment and (ii) the sum of the Aggregate Domestic Revolving Credit Exposures plus the Aggregate Competitive Loan Exposures
shall not exceed the Total Domestic Revolving Credit Commitment. To request Competitive Bids, the U.S. Borrower shall hand deliver or fax to the Advance Agent a duly completed Competitive Bid Request, to be received by the Advance Agent, not later
than 10:00 a.m., New York City time, five Business Days before the date of the proposed Competitive Borrowing. A Competitive Bid Request that does not conform substantially to Exhibit J-1 may be
rejected in the Advance Agent’s sole discretion. Each Competitive Bid Request shall specify the following information in compliance with Section 2.02:
(1) the aggregate amount of the requested Competitive Borrowing;
(2) the date of such Competitive Borrowing, which shall be a Business Day;
(3) whether such Competitive Borrowing is to be a Eurocurrency Competitive Borrowing or a Flat Rate Competitive Borrowing;
(4) the Interest Period to be applicable to such Competitive Borrowing, which shall be a period contemplated by the definition
of the term “Interest Period”; and
(5) the location and number of the account of the U.S. Borrower to which
funds are to be disbursed.
Promptly following receipt of a Competitive Bid Request in accordance with this Section, the Advance Agent shall deliver to
the Domestic Revolving Credit Lenders a Notice of Competitive Bid Request, inviting the Domestic Revolving Credit Lenders to submit Competitive Bids.
(b) Each Domestic Revolving Credit Lender may (but shall not have any obligation to) make one or more Competitive Bids to the U.S. Borrower in
response to a Competitive Bid Request. Each Competitive Bid by a Domestic Revolving Credit Lender must be received by the Advance Agent by hand delivery or fax, not later than 9:30 a.m., New York City time, four Business Days before the
proposed date of such Competitive Borrowing. Competitive Bids that do not conform substantially to the format of Exhibit J-3 may be rejected by the Advance Agent, and the Advance Agent shall notify the
applicable Domestic Revolving Credit Lender as promptly as practicable. Each Competitive Bid shall specify (i) the principal amount of the Competitive Loan or Loans that the Domestic Revolving Credit Lender is willing to make (which shall be a
minimum of the Borrowing Minimum and an integral multiple of the Borrowing Multiple, and which may equal the entire principal amount of the Competitive Bid Request by the U.S. Borrower), (ii) the Competitive Bid Rate or Rates at which the
Domestic Revolving Credit Lender is prepared to make such Competitive Loan or Loans (expressed as a percentage rate per annum in the form of a decimal to no more than four decimal places) and (iii) the Interest Period applicable to each such
Competitive Loan and the last day thereof (which shall be a period contemplated by the definition of the term “Interest Period”).
(c) The Advance Agent shall promptly notify the U.S. Borrower by fax of the Competitive Bid Rate and the principal amount specified in each
Competitive Bid and the identity of the Domestic Revolving Credit Lender that shall have made such Competitive Bid.
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(d) Subject only to the provisions of this paragraph, the U.S. Borrower may accept or reject any
Competitive Bid. The U.S. Borrower shall notify the Advance Agent by telephone, confirmed by fax in the form of a Competitive Bid Accept/Reject Letter, whether and to what extent it has decided to accept or reject each Competitive Bid, not later
than 2:00 p.m., New York City time, three Business Days before the date of the proposed Competitive Borrowing; provided that (i) the failure of the U.S. Borrower to give such notice shall be deemed to be a rejection of each
Competitive Bid, (ii) the U.S. Borrower shall not accept a Competitive Bid made at a particular Competitive Bid Rate if the U.S. Borrower rejects a Competitive Bid made at a lower Competitive Bid Rate, (iii) the aggregate amount of the
Competitive Bids accepted by such Borrower shall not exceed the aggregate amount of the requested Competitive Borrowing specified in the related Competitive Bid Request and (iv) the U.S. Borrower may accept Competitive Bids at the same
Competitive Bid Rate in part, which acceptance, in the case of multiple Competitive Bids at such Competitive Bid Rate, shall be made pro rata in accordance with the amount of each such Competitive Bid, provided that no Competitive Loan may be
in an amount less than the Borrowing Minimum and amounts subject to pro rata allocation shall be rounded to integral multiples of the Borrowing Multiple in a manner which shall be in the discretion of the U.S. Borrower. A notice given by the U.S.
Borrower pursuant to this paragraph (d) shall be irrevocable.
(e) The Advance Agent shall promptly notify each bidding Domestic
Revolving Credit Lender by fax whether or not its Competitive Bid has been accepted (and, if so, the amount and Competitive Bid Rate so accepted), and each successful bidder will thereupon become bound, subject to the terms and conditions hereof, to
make the Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the Advance Agent shall elect to submit a
Competitive Bid in its capacity as a Domestic Revolving Credit Lender, it shall submit such Competitive Bid directly to the U.S. Borrower at least one quarter of an hour earlier than the time by which the other Domestic Revolving Credit Lenders are
required to submit their Competitive Bids to the Advance Agent pursuant to paragraph (b) of this Section 2.27.
ARTICLE III
Representations and Warranties
Each of Holdings and each Borrower, with respect to itself and the Subsidiaries, represents and warrants to the Administrative Agent, the
Collateral Agent, each Issuing Bank and each of the Lenders that:
SECTION 3.01. Organization; Powers. Each of
Holdings, each Borrower and the Subsidiaries (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) has all requisite power and authority to own its property and assets and
to carry on its business as now conducted and as proposed to be conducted, (c) is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required, except where the failure so to qualify could not
reasonably be expected to result in a Material Adverse Effect and (d) has the power and authority to execute, deliver and perform its obligations under each of the Loan Documents and each other agreement or instrument contemplated thereby to
which it is or will be a party and, in the case of the Borrowers, to borrow hereunder.
SECTION 3.02.
Authorization. The execution, delivery and performance by the Loan Parties of the Loan Documents to which each is or will be a party and the consummation by the Loan Parties of the Transactions (including the borrowings by the
Borrowers hereunder) (a) have been duly authorized by all requisite corporate, partnership and, if required, stockholder and partner action and (b) will not (i) violate (x) any provision of law, statute, rule or regulation in any
material respect, or of the certificate or articles of incorporation, partnership agreements or other constitutive documents or by-laws of Holdings, any Borrower or any Subsidiary, (y) any order of any Governmental Authority or (z) any
provision of any
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indenture, agreement or other instrument to which Holdings, any Borrower or any Subsidiary is a party or by which any of them or any of their property is or may be bound in any material
respect, (ii) or give rise to any right to accelerate or to require the prepayment, repurchase or redemption of any obligation under any such indenture, agreement or other instrument or (iii) result in the creation or imposition of any
Lien upon or with respect to any property or assets now owned or hereafter acquired by Holdings, any Borrower or any Subsidiary (other than any Lien created hereunder or under the Security Documents).
SECTION 3.03. Enforceability. This Agreement has been duly executed and delivered by Holdings and each Borrower
and constitutes, and each other Loan Document when executed and delivered by each Loan Party party thereto will constitute, a legal, valid and binding obligation of such Loan Party enforceable against such Loan Party in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance, moratorium and other similar laws relating to or affecting creditors’ rights generally and to general equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing.
SECTION 3.04. Governmental
Approvals. No action, consent or approval of, registration or filing with or any other action by any Governmental Authority is or will be required in connection with the Transactions, except (a) for the filing of Uniform Commercial Code
financing statements, (b) for such as have been made or obtained and are in full force and effect and (c) where the failure to obtain such consent or approval to make such registration or filing or other action, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
SECTION 3.05. Financial Statements.
The U.S. Borrower has heretofore furnished to the Lenders (a) its consolidated balance sheets and statements of income, stockholder’s equity and cash flows as of and for the fiscal year ended December 31, 2013, audited by and
accompanied by the opinion of KPMG LLP, independent public accountants and (b) its unaudited consolidated balance sheets and statements of income, stockholder’s equity and cash flows as of and for the fiscal quarters ended March 31,
2014, June 30, 2014 and September 30, 2014. Such financial statements present fairly the financial condition and results of operations and cash flows of the U.S. Borrower and its consolidated Subsidiaries as of such date and for
such period. Such balance sheets and the notes thereto disclose all material liabilities, direct or contingent, of the U.S. Borrower and its consolidated Subsidiaries as of the date thereof. Such financial statements were prepared in accordance
with GAAP applied on a consistent basis, subject to normal year-end audit adjustments and the absence of footnotes in the case of the statements referred to in clause (b) above.
SECTION 3.06. No Material Adverse Change. No event, change or condition has occurred that has had a material
adverse effect on the business, assets, operations or financial condition, of Holdings, the U.S. Borrower and the Subsidiaries, taken as a whole, since December 31, 2013.
SECTION 3.07. Title to Properties. Each of Holdings, each Borrower and the Subsidiaries has good and marketable
title to, or valid leasehold interests in, all its material properties and assets necessary for the conduct of its business, except for minor defects in title that do not interfere in any material respect with its ability to conduct its business as
currently conducted or to utilize such properties and assets for their intended purposes. All such material properties and assets are free and clear of Liens, other than Liens expressly permitted by Section 6.02.
SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the date hereof a list of all Investment
Subsidiaries. The shares of capital stock or other ownership interests of the Subsidiaries of Holdings and the U.S. Borrower are fully paid and non-assessable and are owned by Holdings or the U.S. Borrower, directly or indirectly, free and
clear of all Liens (other than Liens created under the Security Documents).
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SECTION 3.09. Litigation; Compliance with Laws. (a) Except as
set forth on Schedule 3.09, there are not any actions, suits or proceedings at law or in equity or by or before any Governmental Authority now pending or, to the knowledge of Holdings or any Borrower, threatened against or affecting Holdings or
any Borrower or any Subsidiary or any business, property or rights of any such person (i) that involve any Loan Document or the Transactions or (ii) that could reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect.
(b) Since the date hereof, there has been no change in the status of the matters disclosed on
Schedule 3.09 that, individually or in the aggregate, has resulted in, or materially increased the likelihood of, a Material Adverse Effect.
(c) None of Holdings, the U.S. Borrower or any of the Subsidiaries or any of their respective material properties or assets is in
violation of, nor will the continued operation of their material properties and assets as currently conducted violate, any law, rule or regulation, or is in default with respect to any judgment, writ, injunction, decree or order of any Governmental
Authority, where such violation or default could reasonably be expected to result in a Material Adverse Effect.
SECTION
3.10. Agreements. None of Holdings, the U.S. Borrower or any of the Subsidiaries is in default in any manner under any provision of any indenture or other agreement or instrument evidencing Material Indebtedness, or any other
material agreement or instrument to which it is a party or by which it or any of its properties or assets are or may be bound, where such default could reasonably be expected to result in a Material Adverse Effect.
SECTION 3.11. Federal Reserve Regulations. (a) None of Holdings, the U.S. Borrower or any of the
Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit will be used, whether directly or indirectly, and whether immediately,
incidentally or ultimately, for any purpose that entails a violation of the provisions of Regulation T, U or X.
SECTION 3.12. Investment Company Act. None of Holdings, the U.S. Borrower or any Subsidiary (other than any
Investment Subsidiary) is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.
SECTION 3.13. Patriot Act; FCPA; OFAC.
(a) Holdings, the U.S. Borrower and the Subsidiaries are, and except as otherwise disclosed in Holdings’ Amendment
No. 1 on Form 10-K/A for the fiscal year ended December 31, 2013, in compliance, in all material respects, with (i) (x) 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 those administered by the U.S. Department of State and any other enabling legislation or executive order relating thereto and (y) the economic or financial sanctions or
trade embargoes imposed, administered or enforced from time to time by United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom (collectively, “Sanctions”), and any other
enabling legislation or executive order relating thereto, and (ii) the USA PATRIOT Act. No part of the proceeds of the Loans will be used by Holdings, the U.S. Borrower or any of the Subsidiaries, directly or indirectly, for any payments to any
governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in
violation of the United States Foreign Corrupt Practices Act of 1977, as amended, or any other law, rule, or regulation of any jurisdiction applicable to Holdings or its subsidiaries from time to time concerning or relating to bribery,
corruption or money laundering (collectively, the “Anti-Corruption Laws”).
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(b) None of Holdings, the U.S. Borrower or any Subsidiary or, to the knowledge of Holdings
or the U.S. Borrower, any director, officer, agent, employee or Affiliate of Holdings, the Borrower or any Subsidiary as of the Second Restatement Date, (i) is a person on the list of “Specially Designated Nationals and Blocked
Persons” or any other Sanctions-related list of designated persons maintained by the United States Treasury Department or the U.S. Department of State or by the United Nations Security Council, the European Union or any EU member state,
(ii) is operating, organized or resident in a country or territory which is itself the target of Sanctions, (iii) is any person 50% or more owned or otherwise controlled by any such person or persons or (iv) is the subject of any
Sanctions; and none of Holdings, the U.S. Borrower or any Subsidiary will use the proceeds of the Loans for the purpose of financing the activities of any person, or in any country or territory, at the time of such financing, that is the subject of
any Sanctions.
(c) Holdings and the U.S. Borrower, except as otherwise disclosed in Holdings’ Amendment No. 1 on Form 10-K/A
for the fiscal year ended December 31, 2013, have implemented and maintain in effect policies and procedures designed to ensure compliance by Holdings, the U.S. Borrower, the Subsidiaries and their respective directors, officers, employees and
agents with Anti-Corruption Laws and applicable Sanctions.
SECTION 3.14. Use of Proceeds. The Borrowers will
use the proceeds of the Loans (other than Incremental Revolving Loans, Other Revolving Loans and Incremental Term Loans) and will request the issuance of Letters of Credit only for the purposes specified in the preliminary statement to this
Agreement.
SECTION 3.15. Tax Returns. Each of Holdings, the U.S. Borrower and the
Subsidiaries has filed or caused to be filed all Federal and all material state, local and foreign Tax returns or materials required to have been filed by it and has paid or caused to be paid all material Taxes due and payable by it and all material
assessments received by it, except Taxes that are being contested in good faith by appropriate proceedings and for which Holdings, the U.S. Borrower or such Subsidiary, as applicable, shall have set aside on its books adequate reserves.
SECTION 3.16. No Material Misstatements. None of (a) the Confidential Information Memorandum or
(b) any other information, report, financial statement, exhibit or schedule furnished in writing by or on behalf of Holdings or any Borrower to the Administrative Agent or any Lender in connection with the negotiation of any Loan Document or
included therein or delivered pursuant thereto contained, contains or will contain any material misstatement of fact or omitted, omits or will omit to state any material fact necessary to make the statements therein, in the light of the
circumstances under which they were, are or will be made, not materially misleading as of the time when made or delivered; provided that to the extent any such information, report, financial statement, exhibit or
schedule was based upon or constitutes a forecast or projection, each of Holdings and each Borrower represents only that it acted in good faith and utilized reasonable assumptions and due care in the preparation of such information, report,
financial statement, exhibit or schedule.
SECTION 3.17. Employee Benefit Plans. (a) Each
of the U.S. Borrower and its ERISA Affiliates is in compliance in all material respects with the applicable provisions of ERISA and the Code and the regulations and published interpretations thereunder except for such non compliance as could
not reasonably be expected to result in a Material Adverse Effect. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events, could reasonably be expected to result in a Material
Adverse Effect. The present value of all benefit liabilities under all underfunded Plans (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the last annual valuation
dates applicable thereto, exceed the fair market value of the assets of all such underfunded Plans by an amount that could reasonably be expected to result in a Material Adverse Effect.
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(b) Each Foreign Pension Plan is in compliance in all material respects with all requirements of
law applicable thereto and the respective requirements of the governing documents for such plan except to the extent such non compliance could not reasonably be expected to result in a Material Adverse Effect. With respect to each Foreign Pension
Plan, none of Holdings, the U.S. Borrower, the Subsidiaries or any of their respective directors, officers, employees or agents has engaged in a transaction that would subject Holdings, the U.S. Borrower or any of the Subsidiaries, directly or
indirectly, to a tax or civil penalty that could reasonably be expected to result in a Material Adverse Effect. With respect to each Foreign Pension Plan, reserves have been established in the financial statements furnished to Lenders in respect of
any unfunded liabilities in accordance with applicable law and prudent business practice or, where required, in accordance with ordinary accounting practices in the jurisdiction in which such Foreign Pension Plan is maintained, except for such
failure as could not reasonably be expected to result in a Material Adverse Effect. The aggregate unfunded liabilities, with respect to such Foreign Pension Plans could not reasonably be expected to result in a Material Adverse Effect. There are no
actions, suits or claims (other than routine claims for benefits) pending or threatened against Holdings or any of its Affiliates with respect to any Foreign Pension Plan which could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect.
SECTION 3.18. Insurance. The U.S. Borrower and its Subsidiaries
have insurance in such amounts and covering such risks and liabilities as are in accordance with normal industry practice.
SECTION 3.19. Security Documents. At any time prior to such time as the Collateral has been released and not
re-pledged in accordance with Section 9.19, the Guarantee and Pledge Agreement creates in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral (as
defined in the Guarantee and Pledge Agreement) and the proceeds thereof and (a) assuming the Collateral Agent has possession of the Pledged Stock (as defined in the Guarantee and Pledge Agreement), the Lien created under Guarantee and Pledge
Agreement shall constitute a fully perfected first priority Lien on, and security interest in, all right, title and interest of the Loan Parties in such Pledged Stock, in each case prior and superior in right to any other person, and
(b) assuming financing statements in appropriate form have been filed in the offices specified on Schedule 3.19(a), the Lien created under the Guarantee and Pledge Agreement will constitute a fully perfected Lien on, and security interest
in, all right, title and interest of the Loan Parties in the Collateral other than the Pledged Stock, in each case prior and superior in right to any other person, other than with respect to Liens expressly permitted by Section 6.02.
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Credit Events. The obligations of the Lenders (including the N.Z. Swingline Lenders) to make
Loans and of the Issuing Banks to issue, amend, extend or renew any Letter of Credit (each such event being called a “Credit Event”) are subject to the satisfaction of the following conditions on the date of each Credit
Event:
(a) The Administrative Agent shall have received a notice of such Borrowing as required by Section 2.03 (or such
notice shall have been deemed given in accordance with Section 2.03) or, in the case of the issuance, amendment, extension or renewal of a Letter of Credit, the applicable Issuing Bank and the Administrative Agent shall have received a notice
requesting the issuance, amendment, extension or renewal of such Letter of Credit as required by Section 2.23(b) or, in the case of the Borrowing of a N.Z. Swingline Loan, the applicable N.Z. Swingline Lender shall have received a notice
requesting such N.Z. Swingline Loan as required by Section 2.22(b).
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(b) The representations and warranties set forth in Article III hereof and in each other
Loan Document shall be true and correct in all material respects on and as of the date of such Credit Event with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an
earlier date.
(c) At the time of and immediately after such Credit Event, no Event of Default or Default shall have occurred and be
continuing.
Each Credit Event shall be deemed to constitute a representation and warranty by each Borrower and Holdings on the date of
such Credit Event as to the matters specified in paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02.
Second Restatement Date. The amendment and restatement of the Existing Credit Agreement in the form of this Agreement is subject to the satisfaction of the following conditions:
(a) The Administrative Agent shall have received, on behalf of itself, the Lenders and each Issuing Bank, a favorable written opinion of
(i) the General Counsel or Deputy General Counsel of the U.S. Borrower, in form and substance reasonably satisfactory to the Administrative Agent, (ii) Simpson Thacher & Bartlett LLP, counsel for Holdings and the Borrowers,
in form and substance reasonably satisfactory to the Administrative Agent and (iii) each foreign counsel listed on Schedule 4.02(a), in form and substance reasonably satisfactory to the Administrative Agent, in each case (x) dated on
the Second Restatement Date, (y) addressed to the Issuing Banks, the Administrative Agent and the Lenders and (z) covering such matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably
request, and Holdings and the Borrowers hereby request such counsel to deliver such opinions.
(b) The Administrative Agent shall have
received (i) a copy of the certificate, articles of incorporation or partnership agreement (or comparable organizational document), including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State
(or comparable entity) of the jurisdiction of its organization, and a certificate as to the good standing (where such concept is applicable) of each Loan Party as of a recent date, from such Secretary of State (or comparable entity); (ii) a
certificate of the Secretary or Assistant Secretary of each Loan Party dated on the Second Restatement Date and certifying (w) that attached thereto is a true and complete copy of the by-laws (or comparable organizational document) of such Loan
Party as in effect on the Second Restatement Date and at all times since a date prior to the date of the resolutions described in clause (x) below, (x) that attached thereto is a true and complete copy of resolutions duly adopted by the
Board of Directors or partners (or comparable governing body) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of the Borrowers, the borrowings hereunder,
and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (y) that the certificate, articles of incorporation or partnership agreement (or comparable organizational document) of such Loan Party
have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above and (z) as to the incumbency and specimen signature of each officer executing any Loan
Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate
pursuant to clause (ii) above; and (iv) such other documents as the Administrative Agent may reasonably request.
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(c) The Administrative Agent shall have received a certificate, dated on or shortly prior to the
Second Restatement Date and signed by a Responsible Officer of the U.S. Borrower, confirming compliance with the conditions precedent set forth in paragraph (f) of this Section 4.02.
(d) The Administrative Agent shall have received a certificate of a Financial Officer of Holdings, in form and substance reasonably
satisfactory to the Administrative Agent, to the effect that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions and the other transactions contemplated hereby, are solvent.
(e) The Administrative Agent shall have received all Fees, and other amounts due and payable on or prior to the Second Restatement Date,
including, to the extent invoiced two days prior to the Second Restatement Date, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrowers hereunder or under any other Loan Document.
(f) (i) The representations and warranties set forth in Article III shall be true and correct in all material respects on the Second
Restatement Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date and (ii) no Default or Event of Default shall have occurred and be
continuing.
(g) The Existing Tranche A Loan Refinancing and the Existing Tranche B Loan Repayment shall have occurred (or shall occur
substantially concurrently with the Second Restatement Date).
(h) The Administrative Agent and the Lenders shall have received, at least
five Business Days prior to the Second Restatement Date, all documentation and other information reasonably requested by them that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules
and regulations, including the USA PATRIOT Act.
(i) The Guarantee and Pledge Agreement and all other documents required by
Section 5.09, shall have been duly executed by each Loan Party that is to be a party thereto and shall be in full force and effect on the Second Restatement Date, and all Collateral shall have been duly and validly pledged thereunder, to the
extent required thereby, to the Collateral Agent for the ratable benefit of the Secured Parties, and certificates representing such Collateral, to the extent such Collateral is evidenced by certificated securities, accompanied by instruments of
transfer and stock powers endorsed in blank, shall be in the actual possession of the Collateral Agent. The Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each
Security Document upon completion of the filings or other actions referred to therein.
(j) The Collateral Agent shall have received a
Perfection Certificate with respect to the Loan Parties dated the Second Restatement Date and duly executed by a Responsible Officer of Holdings, and shall have received the results of a search of the Uniform Commercial Code filings (or equivalent
filings) made with respect to Holdings, the U.S. Borrower and the Subsidiary Guarantors in the states of organization of such persons as indicated on such Perfection Certificate, together with copies of the financing statements (or similar
documents) disclosed by such search, and accompanied by evidence reasonably satisfactory to the Collateral Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 6.02 or have been
or will be contemporaneously released or terminated.
(k) The Administrative Agent shall have received counterparts of this Agreement
that, when taken together, bear the signatures of Holdings, the Borrowers, each Revolving Credit Lender set forth on Schedule 2.01, each Term Lender set forth on Schedule 2.01 and each Issuing Bank set forth on Schedule 2.01(a).
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ARTICLE V
Affirmative Covenants
Each of Holdings and each Borrower covenants and agrees with each Lender that so long as this Agreement shall remain in effect and until the
Commitments have been terminated and the principal of and interest on each Loan, all Fees and all other expenses or amounts payable under any Loan Document shall have been paid in full and all Letters of Credit have been canceled or have expired and
all amounts drawn thereunder have been reimbursed in full, unless the Required Lenders shall otherwise consent in writing, each of Holdings and each Borrower will, and will cause each of the Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its legal existence, except as otherwise expressly permitted under Section 6.04.
(b) Except as could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect: (i) do or cause
to be done all things necessary to obtain, preserve, renew, extend and keep in full force and effect the rights, licenses, permits, franchises, authorizations, patents, copyrights, trademarks and trade names necessary to the conduct of its business;
(ii) comply in all material respects with all applicable laws, rules, regulations and decrees and orders of any Governmental Authority, including Environmental Laws, whether now in effect or hereafter enacted; and (iii) at all times
maintain and preserve all property necessary to the conduct of such business and keep such property in good repair, working order and condition and from time to time make, or cause to be made, all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business carried on in connection therewith may be properly conducted at all times.
SECTION 5.02. Insurance. Keep its insurable properties adequately insured at all times by financially sound and
reputable insurers; maintain such other insurance, to such extent and against such risks, including fire and other risks insured against by extended coverage, as is customary with companies in the same or similar businesses operating in the same or
similar locations, including public liability insurance against claims for personal injury or death or property damage occurring upon, in, about or in connection with the use of any properties owned, occupied or controlled by it; and maintain such
other insurance as may be required by law.
SECTION 5.03. Obligations and Taxes. Pay its
Material Indebtedness and other material obligations promptly and in accordance with their terms and pay and discharge promptly when due all material Taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits
or in respect of its property, before the same shall become delinquent or in default, as well as all lawful material claims for labor, materials and supplies or otherwise that, if unpaid, might give rise to a Lien upon such properties or any part
thereof; provided, however, that such payment and discharge shall not be required with respect to any such Tax, assessment, charge, levy or claim so long as the validity or amount
thereof shall be contested in good faith by appropriate proceedings and the U.S. Borrower shall have set aside on its books adequate reserves with respect thereto in accordance with GAAP and such contest operates to suspend collection of the
contested obligation, Tax, assessment or charge and enforcement of a Lien.
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SECTION 5.04. Financial Statements, Reports, etc. In the case of
Holdings, furnish to the Administrative Agent (which shall furnish such statements, certificates or other documents received pursuant to this Section 5.04 to each Lender and Issuing Bank):
(a) within 90 days after the end of each fiscal year, its consolidated balance sheet and related statements of income, stockholders’
equity and cash flows showing the financial condition of Holdings and its consolidated subsidiaries as of the close of such fiscal year and the results of its operations and the operations of such consolidated subsidiaries during such year, together
with comparative figures for the immediately preceding fiscal year, all audited by KPMG LLP or other independent public accountants of recognized national standing and accompanied by an opinion of such accountants (which shall not be qualified in
any material respect) to the effect that such consolidated financial statements fairly present the financial condition and results of operations of Holdings and its consolidated subsidiaries on a consolidated basis in accordance with GAAP
consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, its
consolidated balance sheet and related statements of income, stockholders’ equity and cash flows showing the financial condition of Holdings and its consolidated subsidiaries as of the close of such fiscal quarter and the results of its
operations and the operations of such consolidated subsidiaries during such fiscal quarter and the then elapsed portion of the fiscal year, and comparative figures for the same periods in the immediately preceding fiscal year, all certified by one
of its Financial Officers as fairly presenting the financial condition and results of operations of Holdings and its consolidated subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit
adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a certificate of a
Financial Officer (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with
respect thereto, (ii) setting forth the calculation and uses of the Available Investment Amount for the fiscal period then ended and (iii) setting forth computations in reasonable detail satisfactory to the Administrative Agent
demonstrating compliance with the covenants contained in Sections 6.08 and 6.09 and, in the case of a certificate delivered with the financial statements required by paragraph (b) above for the period ending on June 30 of each year,
setting forth Holdings’ calculation of Excess Cash Flow;
(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default or Event of Default
(which certificate may be limited to the extent required by accounting rules or guidelines);
(e) no later than 60 days after the end
of each fiscal year of Holdings, a detailed consolidated budget for the then current fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flows as of the end of and for such fiscal
year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(f) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by
Holdings, the U.S. Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed to
its shareholders, as the case may be;
(g) promptly, following a request by any Lender, provide all documentation and other information
that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; and
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(h) promptly, from time to time, such other information regarding the operations, business
affairs and financial condition of Holdings, the U.S. Borrower or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request.
The U.S. Borrower and Holdings hereby acknowledge and agree that all financial statements and certificates furnished pursuant to paragraphs
(a), (b), (c) and (d) above are hereby deemed to be Borrower Materials suitable for distribution, and to be made available, to Public Lenders as contemplated by Section 9.01(c) and may be treated by the Administrative Agent and the
Lenders as if the same had been marked “PUBLIC” in accordance with such section.
SECTION 5.05. Litigation
and Other Notices. Furnish to the Administrative Agent (which shall furnish such notice to each Lender and Issuing Bank) prompt written notice of the following:
(a) any Event of Default or Default, specifying the nature and extent thereof and the corrective action (if any) taken or proposed to be taken
with respect thereto;
(b) the filing or commencement of, or any written threat or notice of intention of any person to file or commence,
any action, suit or proceeding, whether at law or in equity or by or before any Governmental Authority, against Holdings, the U.S. Borrower or any Subsidiary that could reasonably be expected to result in a Material Adverse Effect; and
(c) the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to
result in liability of Holdings, the U.S. Borrower and the Subsidiaries in an aggregate amount exceeding $15,000,000; and
(d) any
other development that has resulted in, or could reasonably be expected to result in, a Material Adverse Effect.
SECTION 5.06.
Information Regarding Collateral. Furnish to the Administrative Agent prompt written notice of any change (i) in any Loan Party’s corporate name, (ii) in the jurisdiction of organization or formation of any Loan Party,
(iii) in any Loan Party’s identity or corporate structure or (iv) in any Loan Party’s Federal Taxpayer Identification Number. Holdings and the U.S. Borrower agree not to effect or permit any change referred to in the preceding
sentence unless all actions required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral have been taken.
SECTION 5.07. Maintaining Records; Access to Properties and Inspections. Keep proper books of record and account
in which full, true and correct entries in conformity with GAAP and all material requirements of law are made of all dealings and transactions in relation to its business and activities. Each Loan Party will, and will cause each of its Subsidiaries
to, permit any representatives designated by the Administrative Agent or any Lender to visit and inspect the financial records and the properties of Holdings, the U.S. Borrower or any Subsidiary at reasonable times and as often as reasonably
requested and to make extracts from and copies of such financial records, and permit any representatives designated by the Administrative Agent or any Lender to discuss the affairs, finances and condition of Holdings, the U.S. Borrower or any
Subsidiary with the officers thereof and independent accountants therefor. Without limiting the foregoing, Holdings and the U.S. Borrower agree to discuss their affairs, finances and condition in conference calls with Lenders at such times and
at such intervals (but no more frequently than on a quarterly basis within one week after the date of delivery of financial statements required by Sections 5.04(a) and (b)) as shall be requested in writing by the Administrative Agent or the
Required Lenders.
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SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans and
request the issuance of Letters of Credit only for the purposes described in Section 3.14, in any Incremental Assumption Agreement (with respect to Incremental Revolving Loans and Incremental Term Loans) or in any Loan Modification Agreement
(with respect to Other Revolving Loans), and in ease case for purposes that are not prohibited by Section 3.13.
SECTION 5.09. Further Assurances. (a) Execute any and all further documents, financing statements, agreements
and instruments, and take all further action (including filing Uniform Commercial Code and other financing statements) that may be required under applicable law, or that the Required Lenders, the Administrative Agent or the Collateral Agent may
reasonably request, (i) in order to effectuate the transactions contemplated by the Loan Documents and (ii) in order to grant, preserve, protect and perfect the validity and priority of the security interests created or intended to be
created by the Security Documents. The U.S. Borrower will cause any subsequently acquired or organized Significant Domestic Subsidiary (other than an Immaterial Subsidiary, an Investment Subsidiary, a Securitization Subsidiary and a Specified
Subsidiary), or any Domestic Subsidiary that ceases to be an Immaterial Subsidiary, an Investment Subsidiary or a Specified Subsidiary and qualifies as a Significant Domestic Subsidiary, to become party to the Guarantee and Pledge Agreement and each
other applicable Loan Document; provided that no such Significant Domestic Subsidiary that is not “100% owned” (as defined in Rule 3-10(h)(i) of Regulation S-X of Securities Act of 1933) shall be required
at any time to Guarantee any of the Obligations to the extent that such a Guarantee would, directly or indirectly, result in Holdings or the U.S. Borrower being required to file separate financial statements of each of the Subsidiary Guarantors with
the SEC and such separate financial statements are not otherwise being provided to the SEC at such time; provided, further, that the Guarantee of any Obligations by any such
Significant Domestic Subsidiary shall be automatically released if such release is necessary to comply with the immediately preceding proviso.
(b) Within five Business Days (or such later time as may be agreed to by the Administrative Agent) after the consummation of any
Foreign Restructuring Transaction that results in a Foreign Subsidiary other than Luxco or Jerseyco being the principal Foreign Subsidiary holding company for the non-U.S. businesses of Holdings, cause such Foreign Subsidiary to Guarantee the
Obligations of the Borrowers (other than any Borrower that is a U.S. Person), on terms and conditions reasonably satisfactory to the Administrative Agent; provided that upon any such Guarantee by a Foreign Subsidiary of the Obligations of the
Borrowers (other than any Borrower that is a U.S. Person), the Guarantee of Luxco or Jerseyco, as the case may be, shall be released.
(c) Notwithstanding the foregoing, (i) at any time following the Guarantee Release Date and until such time as Holdings and the Borrowers
shall be required to reinstate the Guarantees as provided in Section 9.25, and (ii) at any time following the Security Release Date and until such time as Holdings and the Borrowers shall be required to reinstate the Collateral as provided
in Section 9.19, neither Holdings, the U.S. Borrower nor any other Subsidiary shall be required to take any action pursuant to the foregoing provisions of this Section 5.09.
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ARTICLE VI
Negative Covenants
Each
of Holdings and each Borrower covenants and agrees with each Lender that, so long as this Agreement shall remain in effect and until the Commitments have been terminated and the principal of and interest on each Loan, all Fees and all other expenses
or amounts payable under any Loan Document have been paid in full and all Letters of Credit have been cancelled or have expired and all amounts drawn thereunder have been reimbursed in full, unless the Required Lenders shall otherwise consent in
writing:
SECTION 6.01. Indebtedness. Holdings and the Borrowers will not cause or permit any of the
Non-Guarantor Subsidiaries to incur, create, assume or permit to exist any Indebtedness, except:
(a) Indebtedness existing
on the date hereof and set forth in Schedule 6.01(a) and any extensions, renewals or replacements of such Indebtedness to the extent the principal amount of such Indebtedness is not increased and neither the final maturity nor the weighted
average life to maturity of such Indebtedness is shortened;
(b) intercompany Indebtedness of the Non-Guarantor Subsidiaries;
(c) Indebtedness under Performance Bonds or with respect to workers’ compensation claims, in each case incurred in the ordinary course of
business;
(d) Melody Permitted Indebtedness, Indebtedness under the CBRE Loan Arbitrage Facility, Exempt Construction Loans, Indebtedness
in respect of any Permitted Receivables Securitization and Non-Recourse Indebtedness;
(e) Indebtedness of any person existing at the time
such person is acquired by the U.S. Borrower or a Subsidiary in connection with a Permitted Acquisition and not incurred in anticipation or contemplation thereof and any extensions, renewals or replacements of such Indebtedness to the extent the
principal amount of such Indebtedness is not increased and neither the final maturity nor the weighted average life to maturity of such Indebtedness is shortened; and
(f) Non-Guarantor Subsidiaries may incur Indebtedness at any time if, after giving effect thereto, the aggregate principal amount of all
Indebtedness incurred by Non-Guarantor Subsidiaries pursuant to this paragraph (f) and outstanding at such time does not exceed 7.5% of Total Assets at such time (after giving pro forma effect to any assets to be acquired in connection with the
incurrence of such Indebtedness), except that at any time the U.S. Borrower has Investment Grade Status, such percentage shall be increased to 15%; provided that any Indebtedness incurred in reliance upon such increased percentage (and any
extensions, renewals or replacements of such Indebtedness to the extent the principal amount of such Indebtedness is not increased and neither the final maturity nor the weighted average life to maturity of such Indebtedness is shortened) shall be
permitted to exist notwithstanding that the U.S. Borrower may, as of any later time, no longer have Investment Grade Status; provided further that in any case, the aggregate principal amount of all Indebtedness of any Non-Guarantor Subsidiary
does not exceed 10% of Total Assets at the time of any incurrence pursuant to this paragraph (f) (after giving pro forma effect to any assets to be acquired in connection with the incurrence of such Indebtedness).
SECTION 6.02. Liens. Holdings and the Borrowers will not, nor will they cause or permit any of the Subsidiaries
to, create, incur, assume or permit to exist any Lien on any property or assets (including Equity Interests or other securities of any person, including any Subsidiary) now owned or hereafter acquired by it or on any income or revenues or rights in
respect of any thereof, except:
(a) Liens on property or assets of the U.S. Borrower and its Subsidiaries
existing on the date hereof and (i) set forth in Schedule 6.02(a) or (ii) encumbering property or assets with a fair market value on the date hereof of less than $5,000,000; provided that such Liens shall secure only those
obligations which they secure on the date hereof and extensions, renewals and replacements thereof permitted hereunder;
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(b) any Lien created under the Loan Documents;
(c) any Lien existing on any property or asset prior to the acquisition thereof by the U.S. Borrower or any Subsidiary;
provided that (i) such Lien is not created in contemplation of or in connection with such acquisition and (ii) such Lien does not apply to any other property or assets of the U.S. Borrower or any Subsidiary;
(d) Liens for Taxes, fees, assessments or other governmental charges not yet due, or if material, which are being contested in compliance with
Section 5.03;
(e) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business and securing obligations that are not due and payable, or if material, which are being contested in compliance with Section 5.03;
(f) pledges and deposits made in the ordinary course of business in compliance with workmen’s compensation, unemployment insurance and
other social security laws or regulations;
(g) deposits to secure the performance of bids, trade contracts (other than for Indebtedness),
leases (other than Capital Lease Obligations), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(h) zoning restrictions, easements, rights-of-way, restrictions on use of real property and other similar encumbrances incurred in the
ordinary course of business which, in the aggregate, are not substantial in amount and do not materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of the U.S. Borrower or any of its
Subsidiaries;
(i) Liens arising out of judgments or awards in respect of which Holdings, the U.S. Borrower or any of the
Subsidiaries shall in good faith be prosecuting an appeal or proceedings for review in respect of which there shall be secured a subsisting stay of execution pending such appeal or proceedings;
(j) Liens on investments made by Melody in connection with the Melody Loan Arbitrage Facility to secure Indebtedness under the Melody Loan
Arbitrage Facility, if such investments were acquired by Melody with the proceeds of such Indebtedness;
(k) Liens on investments made by
the U.S. Borrower or CBRE, Inc. in connection with the CBRE Loan Arbitrage Facility to secure Indebtedness under the CBRE Loan Arbitrage Facility, if such investments were acquired by the U.S. Borrower or CBRE, Inc., as the case may be, with the
proceeds of such Indebtedness;
(l) Liens on mortgage loans originated and owned or held by Melody or any Mortgage Banking Subsidiary
pursuant to any Melody Mortgage Warehousing Facility or the Melody Repo Arrangement, and Liens in connection with Melody Lending Program Securities;
(m) Liens on Receivables securing any Permitted Receivables Securitization;
(n) any Lien existing on any property or asset of any person that exists at the time such person becomes a Subsidiary; provided
that (i) such Lien was not created in contemplation of or in connection with such acquisition and (ii) such Lien does not apply to any property or assets of the U.S. Borrower or any other Subsidiary;
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(o) Liens arising solely by virtue of any statutory, common law or contractual provision relating
to bankers’ liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution or relating to Liens on brokerage accounts;
(p) Liens on the assets or Equity Interests of an Investment Subsidiary to secure Exempt Construction Loans, Non-Recourse Indebtedness and
Guarantees thereof;
(q) at any time that the Obligations are secured (and only for so long as they are secured), Liens on
the Collateral securing Indebtedness otherwise permitted to be incurred under this Agreement (such Indebtedness being referred to herein as “Additional Secured Indebtedness”), which Liens may be pari
passu with, or junior to, the Liens granted to the Secured Parties under the Security Documents, pursuant to an intercreditor agreement entered into by the holders of such Additional Secured Indebtedness, or a trustee or other
representative on their behalf, the Administrative Agent and the Collateral Agent for the benefit of the Secured Parties, which shall be substantially in the form of (i) in the case of Liens intended to rank pari
passu with the Liens securing the Obligations, Exhibit H-1 or such other form as shall be approved by the Administrative Agent (the “First Lien Intercreditor Agreement”) or (ii) in the case of Liens
intended to rank junior to the Liens securing the Obligations, Exhibit H-2 or such other form as shall be approved by the Administrative Agent (the “Second Lien Intercreditor Agreement”); provided
that such Liens shall be permitted only if (i) such Additional Secured Indebtedness is used to prepay Term Loans of any Class pursuant to Section 2.12 or, if, after giving effect thereto, the Senior Secured Leverage Ratio
would be less than 2.75 to 1.00 and (ii) such Additional Secured Indebtedness (x) matures on or after the 180th day following the latest final maturity date for any of the Term Loans, (y) has no scheduled amortization, payments of
principal, sinking fund payments or similar scheduled payments (other than regularly scheduled payments of interest) prior to the 180th day following the latest final maturity date for any of the Term Loans and (z) contains no financial
“maintenance” covenants;
(r) any Lien in relation to personal property acquired by the New Zealand
Borrower in the ordinary course of its normal business; provided that such Lien shall be permitted only if (i) it is given by the New Zealand Borrower (as buyer) in favor of a seller of the personal property, (ii) it secures (and
only secures) all or part of the purchase price for the personal property and (iii) it is discharged within 60 days of its creation;
(s) any security in relation to personal property acquired by the New Zealand Borrower that is created or provided for by (i) a transfer
of an account receivable or chattel paper, (ii) a lease for a term of more than 1 year, or (iii) a commercial consignment, that does not secure payment or performance of an obligation (all terms used in paragraphs (r) and (s) of
this Section 6.02 and not defined in this Agreement have the meaning specified thereto in the New Zealand Personal Property Securities Act 1999); and
(t) other Liens not permitted by the foregoing; provided that, at the time of the incurrence thereof, neither the obligations
secured thereby nor the aggregate fair market value of the assets subject thereto shall exceed 5% of Total Assets at the time.
SECTION 6.03. Investments, Loans and Advances. Holdings and the Borrowers will not, nor will they cause or permit
any of the Subsidiaries to, purchase, hold or acquire any Equity Interests, evidences of indebtedness or other securities of, make or permit to exist any loans or advances to, or make or permit to exist any investment or any other interest in, any
other person (other than investments in insurance contracts pursuant to the Deferred Compensation Plan), except:
(a)
(i) investments by Holdings, the U.S. Borrower and the Subsidiaries existing on the date hereof in the Equity Interests of the U.S. Borrower and the Subsidiaries (other than D&I Subsidiaries, except to the extent permitted under clause
(p) of this Section), (ii) additional investments by Holdings, the
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U.S. Borrower and the Subsidiaries in the Equity Interests of the Loan Parties (other than Melody or any Investment Subsidiary, except to the extent such investments are made in the ordinary
course of business or are being made through Melody or such Investment Subsidiary as part of a series of substantially concurrent transactions involving an investment in another person that is separately permitted by this Section 6.03);
provided that, any such Equity Interests held by Holdings, the U.S. Borrower or any Subsidiary Guarantor shall be pledged pursuant to the Guarantee and Pledge Agreement to the extent required hereby and thereby (provided that no Loan
Party shall be required to pledge more than 65% of the voting Equity Interests of any Foreign Subsidiary to secure Domestic Obligations); (iii) the transfers of Equity Interests contemplated by the definition of the term “Foreign
Restructuring Transaction” and related intercompany loans made in connection with the consummation thereof and (iv) the Specified Restructuring Transactions.
(b) Permitted Investments;
(c) investments, loans or advances made by (i) any Loan Party in or to any other Loan Party or (ii) any Non-Guarantor
Subsidiary in or to any other Non-Guarantor Subsidiary or any Loan Party; provided, however, that no Loan Party shall make any investment, loan or advance in or to Melody or any Investment Subsidiary, except (x) investments, loans and
advances (including pursuant to intercompany cash management arrangements) made in the ordinary course of business), and (y) investments, loans or advances made through Melody or such Investment Subsidiary as part of a series of substantially
concurrent transactions involving an investment in another person that is separately permitted by this Section 6.03;
(d)
investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(e) Holdings, the U.S. Borrower and the Subsidiaries may make loans and advances in the ordinary course of business to their respective
employees for moving, arrival, promotion or retention incentives, entertainment and travel expenses, drawing accounts and similar expenditures;
(f) the Borrowers and the Subsidiaries may enter into Hedging Agreements that are not speculative in nature;
(g) the U.S. Borrower or any Subsidiary may acquire all or substantially all the assets of a person or line of business of
such person, or all or substantially all of the Equity Interests of a person that as a result becomes a wholly owned Subsidiary (referred to herein as the “Acquired Entity”, which, in the case of an acquired entity engaged in
the investment management business, asset management or a real estate related business, shall be deemed to include the acquisition of any direct or indirect investments (including co-investments) in any funds, public or private investment vehicles
and separate accounts (“Acquired Investment Entities”), directly or indirectly managed by such Acquired Entity, the U.S. Borrower or any of their respective subsidiaries regardless of the Acquired Entity’s, the U.S.
Borrower’s or subsidiary’s percentage ownership interest in such Acquired Investment Entities); provided that (i) such acquisition was not preceded by an unsolicited tender offer for such Equity
Interests by, or proxy contest initiated by, Holdings, the U.S. Borrower or any Subsidiary, (ii) the Acquired Entity shall be a going concern and shall be in a similar or complementary line of business as that of the U.S. Borrower and
the Subsidiaries as conducted during the current and most recent calendar year and (iii) at the time of such transaction (x) both before and after giving effect thereto, no Event of Default or Default shall have occurred and be continuing
and (y) after giving effect thereto Holdings would be in Pro Forma Compliance (any acquisition of an Acquired Entity meeting all the criteria of this Section 6.03(g) being referred to herein as a “Permitted
Acquisition”);
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(h) investments made by CBRE, Inc., Melody and its subsidiaries in connection with the Melody
Loan Arbitrage Facility, any Melody Mortgage Warehousing Facility, the Melody Repo Arrangement or Melody Lending Program Securities;
(i)
investments made by the U.S. Borrower and CBRE, Inc. in connection with the CBRE Loan Arbitrage Facility;
(j) investments to the extent
consisting of noncash consideration received in connection with a sale of assets permitted by Section 6.04;
(k) Specified
Investments by Holdings, the U.S. Borrower and the Subsidiaries existing on the date hereof;
(l) extensions of credit in the nature of
accounts receivable or notes receivable arising from the sale or lease of goods and services in the ordinary course of business;
(m)
investments in, and loans and advances to, a Specified Subsidiary in an aggregate amount (determined without regard to any write-downs or write-offs of such investments, loans and advances) not to exceed $100,000,000 in the aggregate outstanding at
any time;
(n) advances made by Melody, by an Affiliate of Melody or on behalf of Melody, or through Melody’s servicing joint
venture, in each case in such person’s role as “master servicer” with respect to certain collateralized mortgage-backed securities or collateralized debt obligations (“CMBS”), so long as (i) such advances
are funded by drawings under a Melody Mortgage Warehousing Facility (as amended for this purpose) or other similar lending facilities established for such purposes and (ii) the repayment of such advances and the practices and protections
afforded in connection therewith are consistent with market terms typically applicable to such master servicer advances (including superpriority of payment and/or guarantees applicable to such CMBS);
(o) investments arising in connection with any Permitted Receivables Securitization;
(p) investments in, and loans and advances to, the D&I Subsidiaries so long as the aggregate amount of investments, loans and advances
made (whether before, on or after the date hereof) in or to the D&I Subsidiaries and outstanding under this paragraph (p) at any time (determined without regard to any write-downs or write-offs thereof, but net of all returns of capital or
principal thereon) does not exceed the sum of (i) the aggregate amount of Specified D&I Investments and (ii) $275,000,000;
(q) investments in, and loans and advances to, a Non-Guarantor Subsidiary, the proceeds of which are used to provide the funding for a
substantially concurrent Permitted Acquisition by such Non-Guarantor Subsidiary or one of its Subsidiaries;
(r) Permitted Co-investments;
(s) Investments existing at the time any person is acquired in connection with a Permitted Acquisition and not created in contemplation
of such Permitted Acquisition;
(t) Investments in the form of mergers and other transactions permitted by Section 6.04;
(u) so long as no Default or Event of Default shall have occurred and be continuing or result therefrom, investments in, and loans and
advances to CBRE Clarion, the proceeds of which are used by CBRE Clarion substantially concurrently to purchase or otherwise acquire CBRE Clarion Units, pursuant to, and on the terms and conditions of, the Management Subscription Agreements;
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(v) so long as no Default or Event of Default shall have occurred and be continuing or
result therefrom, loans and advances to directors and employees of CBRE Clarion or its subsidiaries, the proceeds of which are used by such directors and employees substantially concurrently to purchase CBRE Clarion Units from CBRE Clarion or its
subsidiaries, pursuant to, and on the terms and conditions of, the Management Subscription Agreements or similar arrangements related to other transactions; provided that the aggregate principal amount of such loans and advances outstanding
at any time shall not exceed $50,000,000;
(w) so long as no Default or Event of Default shall have occurred and be continuing or
result therefrom, any investment from time to time by the U.S. Borrower or any Subsidiary in, loans or advances by the U.S. Borrower or any Subsidiary to, or any Guarantee by the U.S. Borrower or any Subsidiary of the Indebtedness of, a
Co-investment Vehicle or separate account or investment program managed, operated or sponsored by an Investment Subsidiary, and loans and advances to employees of the U.S. Borrower or any Subsidiary to finance such employees’ co-investments
(which loans or advances are secured by such employees’ co-investment interest), in an aggregate amount at any time outstanding (determined without regard to any write-downs or write-offs of such investments, loans or advances, but not of all
returns of capital or principal thereon) not to exceed $150,000,000;
(x) so long as no Default or Event of Default shall have
occurred and be continuing or result therefrom, any investment from time to time by the U.S. Borrower and the Subsidiaries in joint ventures; provided that (i) at any time the Obligations are secured, the Senior Secured Leverage Ratio
(after giving pro forma effect to such investment) would be less than 2.75 to 1.00 and (ii) any such joint venture is engaged in any business in which the U.S. Borrower and the Subsidiaries were engaged on the Second Restatement Date or any
business related, ancillary or complementary to any business in which U.S. Borrower and the Subsidiaries were engaged on the Second Restatement Date;
(y) in addition to investments permitted by paragraphs (a) through (w) above, additional investments, loans and advances by the
U.S. Borrower and the Subsidiaries so long as the aggregate amount invested, loaned or advanced pursuant to this paragraph (y) on or after the date hereof (determined without regard to any write-downs or write-offs of such investments,
loans and advances, but net of all returns of capital or principal thereon) does not exceed the sum of (i) $250,000,000 and (ii) the Available Investment Amount; and
(z) other investments, loans and advances made on or after the Guarantee Release Date and prior to the date on which the Guarantees are
required to be reinstated.
SECTION 6.04. Mergers, Consolidations, Sales of Assets and Acquisitions.
(a) Holdings and the Borrowers will not, nor will they cause or permit any of the Subsidiaries to, merge into or consolidate with any other person, or permit any other person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the U.S. Borrower, or purchase, lease or otherwise acquire (in one transaction or a series
of transactions) all or substantially all of the assets of any other person, except that if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall have occurred and be continuing (i) any Subsidiary
may (x) merge into the U.S. Borrower in a transaction in which the U.S. Borrower is the surviving corporation, (y) liquidate or dissolve into the U.S. Borrower or (z) dispose of all or substantially all its assets to the
U.S. Borrower, in each case, so long as no person other than the U.S. Borrower or a wholly owned Subsidiary of any Borrower receives any consideration, (ii) any Subsidiary may (x) merge into or consolidate with any other Subsidiary in
a
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transaction in which the surviving entity is a Subsidiary, (y) liquidate or dissolve into any other Subsidiary or (z) dispose of all or substantially all of its assets to any
other Subsidiary, in each case, so long as no person other than the U.S. Borrower or a wholly owned Subsidiary receives any consideration (provided that, if any party to any such transaction is a Loan Party, the surviving entity of, or
transferee in, such transaction shall be a Loan Party, and provided further that, if both parties to any such transaction are Loan Parties, but one is Melody or an Investment Subsidiary, the surviving entity of, or transferee in, such
transaction may not be Melody or such Investment Subsidiary), (iii) any Immaterial Subsidiary may be liquidated or dissolved and (iv) the U.S. Borrower and the Subsidiaries may make Permitted Acquisitions.
(b) Holdings and the Borrowers will not, nor will they cause or permit any of the Subsidiaries to, engage in any other Asset Sale except:
(i) (x) any such Asset Sale the consideration for which is at least 75% cash and (y) such consideration is at least
equal to the fair market value of the assets being sold, transferred, leased or disposed of; provided, however, that any Designated Non-Cash Consideration received by Holdings, the Borrowers or such Subsidiaries in respect of such Asset Sale having
an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this proviso that is at that time outstanding, not in excess of $100,000,000 at the time of the receipt of such Designated Non-Cash
Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash;
(ii) sales by the U.S. Borrower or the Subsidiaries of brokerage offices, or transfers of the assets of brokerage offices
and related assets, to joint ventures in the ordinary course of business;
(iii) sales of Receivables pursuant to a
Receivables Securitization; provided that (x) the material terms and conditions and the structure of such Receivables Securitization have been approved by the Administrative Agent (such approval not to be unreasonably withheld or
delayed), (y) the aggregate Receivables Securitization Amount outstanding at any time in respect of all Receivables Securitizations entered into by the U.S. Borrower and the Domestic Subsidiaries does not exceed $125,000,000 and (z) the
aggregate Receivables Securitization Amount outstanding at any time in respect of all Receivables Securitizations entered into exclusively by the Foreign Subsidiaries does not exceed $125,000,000 (any Receivables Securitization meeting the criteria
of this Section 6.04(b)(iii) being referred to herein as a “Permitted Receivables Securitization”); and
(iv) sales by Holdings, the U.S. Borrower and the Subsidiaries to the extent constituting investments permitted under
Section 6.03.
SECTION 6.05. Restricted Payments; Restrictive Agreements. (a) Holdings and the
Borrowers will not, nor will they cause or permit any of the Subsidiaries to, declare or make, or agree to declare or make, directly or indirectly, any Restricted Payment (including pursuant to any Synthetic Purchase Agreement), or incur any
obligation (contingent or otherwise) to do so; provided, however, that (i) any Subsidiary may declare and pay dividends or make other distributions ratably to its equity
holders, (ii) the U.S. Borrower may make Restricted Payments to Holdings (x) in an amount not to exceed $1,000,000 in any fiscal year, to the extent necessary to pay actual out-of-pocket general corporate and overhead expenses
incurred by Holdings in the ordinary course of business and (y) in an amount necessary to pay Tax liabilities directly attributable to (or arising as a result of) the U.S. Borrower and the Subsidiaries, so long as such Restricted Payments
will be used by Holdings for such purposes within 10 Business Days of
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the receipt thereof or returned to the U.S. Borrower and (iii) so long as no Default or Event of Default shall have occurred and be continuing or result therefrom, Holdings,
CBRE Clarion or any of their respective Subsidiaries may make Restricted Payments consisting of the purchase of CBRE Clarion Units.
(b) Notwithstanding paragraph (a) above, Holdings may make Restricted Payments, and the Borrowers may make Restricted Payments to
Holdings to fund such Restricted Payments by Holdings (and Holdings and the Subsidiaries may agree or incur an obligation to do so), in an aggregate amount not to exceed the sum of (i) $400,000,000 and (ii) the Available Restricted Payment
Amount; provided, however, that at the time thereof and after giving effect thereto, (x) no Default or Event of Default shall have occurred and be continuing, (y) Holdings would be in Pro Forma Compliance and (z) except with
respect to a Purchase, at any time the Obligations are secured, in the case of any Restricted Payments made using the Available Restricted Payment Amount referred to in clause (ii) above, the Senior Secured Leverage Ratio would be less than or
equal to 2.75 to 1.00.
(c) Holdings and the Borrowers will not, nor will they cause or permit any of the Subsidiaries to,
enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of Holdings, the U.S. Borrower or any Subsidiary to create, incur or permit to exist any Lien
upon any of its property or assets to secure the Obligations or (ii) the ability of any Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the
U.S. Borrower or any other Subsidiary or to Guarantee Indebtedness of the U.S. Borrower or any other Subsidiary; provided that (A) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan
Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary pending such sale, provided such restrictions and conditions apply only to the Subsidiary
that is to be sold and such sale is permitted hereunder, (C) the foregoing shall not apply to restrictions and conditions imposed on any Foreign Subsidiary by the terms of any Indebtedness of such Foreign Subsidiary permitted to be incurred
hereunder, (D) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness, (E) the foregoing shall not apply to restrictions and conditions existing on the date hereof and identified on Schedule 6.05(c), (F) the foregoing shall not apply to customary restrictions on or
customary conditions to the payment of dividends or other distributions on, or the creation of Liens on, Equity Interests owned by the U.S. Borrower or any Subsidiary in any joint venture or similar enterprise contained in the constitutive
documents, including shareholders’ or similar agreements, of such joint venture or enterprise, (G) clause (i) of the foregoing shall not apply to customary provisions in leases and other contracts restricting the assignment thereof,
(H) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to any Permitted Receivables Securitization; provided such restrictions and conditions apply solely to (i) the Receivables
involved in such Permitted Receivables Securitization and (ii) any applicable Securitization Subsidiary and (I) the foregoing shall not apply to restrictions and conditions in any Additional Secured Indebtedness.
SECTION 6.06. Transactions with Affiliates. Holdings and the Borrowers will not, nor will they cause or permit any of the
Subsidiaries to, except for transactions by or among Loan Parties, sell or transfer any property or assets to, or purchase or acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates;
provided that the foregoing restrictions shall not apply to (a) reasonable and customary fees paid to members of the board of directors of Holdings or any of its Subsidiaries, (b) Restricted Payments permitted under
Section 6.05, (c) transactions arising in connection with any Permitted Receivables Securitization or permitted under Section 6.03 or Section 6.04 (except with respect to clause (b)(i) thereof); (d) the performance by
Holdings and the Subsidiaries of their obligations pursuant to the Management Subscription Agreements and (e) at any time from and after the
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Security Release Date to any time the Obligations are subsequently secured, transactions by or among Holdings and its Subsidiaries; provided further that Holdings, the U.S. Borrower
or any Subsidiary may engage in any of the foregoing transactions at prices and on terms and conditions not less favorable to Holdings, the U.S. Borrower or such Subsidiary than could be obtained on an arm’s-length basis from unrelated
third parties.
SECTION 6.07. Business of Holdings, U.S. Borrower and Subsidiaries. (a) Holdings will not engage in any
business activities or have any assets or liabilities other than its ownership of the Equity Interests of the U.S. Borrower, its activities as a holding company, the provision of certain administrative services for its subsidiaries in the ordinary
course of business, and liabilities reasonably related thereto, including its liabilities pursuant to the Guarantee and Pledge Agreement; provided, however, that Holdings shall be permitted to guarantee Additional Secured Indebtedness,
Subordinated Indebtedness and ordinary course obligations of its subsidiaries and to perform its obligations under the Management Subscription Agreements, including its performance guarantees thereunder.
(b) The U.S. Borrower will not, nor will it cause or permit any of the Subsidiaries to, engage at any time in any business or business
activity other than the businesses and business activities currently conducted by the U.S. Borrower or any of the Subsidiaries and businesses and business activities ancillary or complementary and reasonably related thereto.
SECTION 6.08. Interest Coverage Ratio. Holdings and the Borrowers will not, nor will they cause or permit any of
the Subsidiaries to, permit the Interest Coverage Ratio for any period of four consecutive fiscal quarters, in each case taken as one accounting period, to be less than 2.00 to 1.00.
SECTION 6.09. Maximum Leverage Ratio. Holdings and the Borrowers will not, nor will they cause or permit any of
the Subsidiaries to, permit the Leverage Ratio on the last day of any fiscal quarter to be greater than 4.25 to 1.00.
SECTION 6.10. Fiscal Year. Holdings and the U.S. Borrower will not change their fiscal year-end to a date other
than December 31.
ARTICLE VII
Events of Default
In case
of the happening of any of the following events (“Events of Default”):
(a) any representation or
warranty made or deemed made in or in connection with any Loan Document or the borrowings or issuances of Letters of Credit hereunder, or any representation, warranty, statement or information contained in any report, certificate, financial
statement or other instrument furnished in connection with or pursuant to any Loan Document, shall prove to have been false or misleading in any material respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any principal of any Loan or the reimbursement with respect to any L/C Disbursement when and as
the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan or L/C Disbursement or any Fee or any other amount (other than an amount
referred to in (b) above) due under any Loan Document, when and as the same shall become due and payable, and such default shall continue unremedied for a period of three Business Days;
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(d) default shall be made in the due observance or performance by Holdings, any Borrower or any
Subsidiary of any covenant, condition or agreement contained in Section 5.01(a), 5.05(a) or 5.08 or in Article VI;
(e) default
shall be made in the due observance or performance by Holdings, any Borrower or any Subsidiary of any covenant, condition or agreement contained in any Loan Document (other than those specified in (b), (c) or (d) above) and such default
shall continue unremedied for a period of 30 days after notice thereof from the Administrative Agent or any Lender to the U.S. Borrower;
(f) (i) Holdings, any Borrower or any Subsidiary shall fail to pay any principal or interest, regardless of amount, due in
respect of any Material Indebtedness, when and as the same shall become due and payable, or (ii) any other event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (ii) shall not apply to (x) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of
the property or assets securing such Indebtedness and (y) Indebtedness existing on the Second Restatement Date which by its terms provides for an option by the payee thereof to require repayment prior to the scheduled maturity thereof;
(g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction
seeking (i) relief in respect of Holdings, any Borrower or any Subsidiary (other than an Immaterial Subsidiary), or of a substantial part of the property or assets of Holdings, any Borrower or a Subsidiary (other than an Immaterial Subsidiary),
under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for Holdings, any Borrower or any Subsidiary (other than an Immaterial Subsidiary) or for a substantial part of the property or assets of Holdings, any Borrower or any Subsidiary (other than an
Immaterial Subsidiary) or (iii) the winding-up or liquidation of Holdings, any Borrower or any Subsidiary (other than an Immaterial Subsidiary); and such proceeding or petition shall continue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered;
(h) Holdings, any Borrower or any Subsidiary (other than an Immaterial
Subsidiary) shall (i) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal, state or foreign bankruptcy, insolvency,
receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in (g) above, (iii) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official for Holdings, any Borrower or any Subsidiary (other than an Immaterial Subsidiary) or for a substantial part of the property or assets of Holdings, any Borrower or any
Subsidiary (other than an Immaterial Subsidiary), (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) become
unable, admit in writing its inability or fail generally to pay its debts as they become due or (vii) take any action for the purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an aggregate amount in excess of $100,000,000 shall be rendered against Holdings, any
Borrower, any Subsidiary or any combination thereof, which judgment is not fully covered by insurance of an independent, third-party insurance company that has been notified of such judgment and has not
disputed coverage, and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon assets or properties
of Holdings, any Borrower or any Subsidiary to enforce any such judgment;
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(j) an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken
together with all other such ERISA Events, could reasonably be expected to result in a Material Adverse Effect;
(k) any Guarantee under
the Guarantee and Pledge Agreement for any reason shall cease to be in full force and effect (other than in accordance with its terms or the terms of this Agreement), or any Guarantor shall deny in writing that it has any further liability under the
Guarantee and Pledge Agreement (other than as a result of the discharge of such Guarantor in accordance with the terms of the Loan Documents);
(l) any security interest purported to be created by any Security Document shall cease to be, or shall be asserted by any Borrower or any
other Loan Party not to be, a valid, perfected, first priority (except as otherwise expressly provided in this Agreement or such Security Document) security interest in the securities, assets or properties covered thereby, except to the extent that
any such loss of perfection or priority results from (i) the sale or other disposition of Collateral in a transaction permitted by any Loan Document, (ii) any action taken by the Collateral Agent to release any such Lien in compliance with
the provisions of this Agreement or any other Loan Document or (iii) the failure of the Collateral Agent to maintain possession of certificates representing the Pledged Stock delivered to it under the Guarantee and Pledge Agreement or to file
continuation statements under the Uniform Commercial Code; or
(m) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to Holdings or the U.S. Borrower described in paragraph (g) or (h) above), and
at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrowers, take either or both of the following actions, at the same or different times:
(i) terminate forthwith the Commitments and (ii) declare the Loans then outstanding to be forthwith due and payable in whole or in part, whereupon the principal of the Loans so declared to be due and payable, together with accrued interest
thereon and any unpaid accrued Fees and all other liabilities of the Borrowers accrued hereunder and under any other Loan Document, shall become forthwith due and payable, without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived by the Borrowers, anything contained herein or in any other Loan Document to the contrary notwithstanding; and in any event with respect to Holdings or the U.S. Borrower described in paragraph (g) or
(h) above, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and any unpaid accrued Fees and all other liabilities of the Borrowers accrued hereunder and under
any other Loan Document, shall automatically become due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrowers, anything contained herein or in any other Loan
Document to the contrary notwithstanding.
ARTICLE VIII
The Administrative Agent and the Collateral Agent
Each of the Lenders and each Issuing Bank hereby irrevocably appoints the Administrative Agent and the Collateral Agent (for
purposes of this Article VIII, the Administrative Agent and the Collateral Agent are referred to collectively as the “Agents”) its agent and authorizes the Agents to take such actions on its behalf and to exercise such
powers as are delegated to such Agent by the terms of the Loan
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Documents, together with such actions and powers as are reasonably incidental thereto. Without limiting the generality of the foregoing, the Agents are hereby expressly authorized to
execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security
Documents.
The bank serving as the Administrative Agent and/or the Collateral Agent hereunder shall have the same rights
and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Holdings,
any Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent hereunder.
Neither Agent shall have any duties or
obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) neither Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and
is continuing, (b) neither Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that such Agent is required to exercise in writing
by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.08), and (c) except as expressly set forth in the Loan Documents, neither Agent shall have
any duty to disclose, nor shall it be liable for the failure to disclose, any information relating to Holdings, any Borrower or any of the Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent and/or Collateral
Agent or any of its Affiliates in any capacity. Neither Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 9.08) or in the absence of its own gross negligence or wilful misconduct. Neither Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such
Agent by Holdings, a Borrower or a Lender, and neither Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document,
(iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document,
other than to confirm receipt of items expressly required to be delivered to such Agent.
Each Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper person. Each Agent may also rely
upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for a Borrower),
independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it.
Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to
the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the Credit Facilities as well as activities as Agent.
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Subject to the appointment and acceptance of a successor Agent as provided below, either Agent
may resign at any time by notifying the Lenders, the Issuing Banks and the U.S. Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the U.S. Borrower and, unless an Event of Default shall
have occurred and be continuing, with the consent of the U.S. Borrower (which shall not be unreasonably withheld), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Agent which shall be a bank with an office in New York,
New York, or an Affiliate of any such bank. If no successor Agent has been appointed pursuant to the immediately preceding sentence by the 30th day after the date such notice of resignation was given by such Agent, such Agent’s resignation
shall become effective and the Required Lenders shall thereafter perform all the duties of such Agent hereunder and/or under any other Loan Document until such time, if any, as the Required Lenders appoint a successor Administrative Agent and/or
Collateral Agent, as the case may be.
If any person serving as an Agent is a Defaulting Lender pursuant to clause (e) of the
definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the U.S. Borrower and such person remove such person as Administrative Agent and/or Collateral Agent, as the case may be, and, in
consultation with the U.S. Borrower and, unless an Event of Default shall have occurred and be continuing, with the consent of the U.S. Borrower (which shall not be unreasonably withheld), appoint a successor. If no such successor shall have
been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders), then such removal shall nonetheless become effective and the Required Lenders shall
thereafter perform all the duties of such Agent hereunder and/or under any other Loan Document until such time, if any, as the Required Lenders appoint a successor Administrative Agent and/or Collateral Agent, as the case may be.
Any such resignation by or removal of such Agent hereunder shall also constitute, to the extent applicable, its resignation as an Issuing
Bank, in which case such resigning Agent or such Agent subject to removal (a) shall not be required to issue any further Letters of Credit hereunder and (b) shall maintain all of its rights as Issuing Bank with respect to any Letters of
Credit issued by it prior to the date of such resignation or removal. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrowers to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between
the U.S. Borrower and such successor. After an Agent’s resignation or removal hereunder, the provisions of this Article and Section 9.05 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be taken by any of them while acting as Agent.
Each Lender
acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or
not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder.
No Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Obligations, it
being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Agents on behalf of the Secured
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Parties in accordance with the terms thereof. In the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale or other disposition, any Lender
may be the purchaser of any or all of such Collateral at any such sale or other disposition, and the Collateral Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual
capacities) 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 sale, to use and apply any of the Obligations as a credit on account of the
purchase price for any Collateral payable by such Collateral Agent on behalf of the Secured Parties at such sale or other disposition. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the
Collateral and of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the foregoing provisions. The provisions of this paragraph are for the sole benefit of the Lenders and shall not afford any right to, or
constitute a defense available to, any Loan Party.
None of the Lenders or other persons identified on the facing page of this Agreement
as a “syndication agent” or “documentation agent” shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders. Without limiting the foregoing, none of
the Lenders or other persons so identified shall have or be deemed to have any fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders or other persons so identified in
deciding to enter into this Agreement or in taking or not taking action hereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. 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 fax, as follows:
(a) if to
a Borrower or Holdings, to it in care of the U.S. Borrower at CBRE Services, Inc., 400 South Hope Street, 25th Floor, Los Angeles, CA 90071, Attention of Deputy Chief Financial Officer (Fax No. (213) 613 3735) with a copy to be sent to 2929
Arch Street, Suite 1500, Philadelphia, PA 19104, Attention of Jim Groch, Chief Financial Officer (Fax No. (215) 921 7401); at CBRE Services, Inc., 400 South Hope Street, 25th Floor, Los Angeles, CA 90071, Attention of Deputy General Counsel
(Fax No. (213) 613 3735); and at CBRE Services, Inc., 100 N. Sepulveda Blvd., Suite 1100, El Segundo, CA 90245, Attention of Treasurer (Fax No. (310) 606 5035);
(b) if to Credit Suisse AG as Administrative Agent, to Credit Suisse AG, Eleven Madison Avenue, 23rd Floor, New York, NY 10010,
Attention of Sean Portrait—Agency Manager (Fax No. (212) 322 2291), Email: agency.loanops@credit-suisse.com;
(c) if to Credit
Suisse AG as Collateral Agent, to Credit Suisse AG, Eleven Madison Avenue, 23rd Floor, New York, NY 10010, Attention of Loan Operations – Boutique Management (Fax No. (212) 325 8315), Email: ops-collateral@credit-suisse.com;
(d) if to Credit Suisse AG as Issuing Bank, to Credit Suisse AG, Eleven Madison Avenue, 23rd Floor, New York, NY 10010, Fax
No. (212) 325 8315, Email: list.ib-letterofcredit@credit-suisse.com;
(e) if to JPMorgan Chase Bank, N.A. as Issuing Bank, to
JPMorgan Chase Bank, N.A., Attention: Standby LC Department, 10420 Highland Manor Drive, Floor 04, Tampa, FL 33610-9128, Fax No. (813) 432 5161, Email: GTS.IB.Standby@jpmchase.com;
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(f) if to Bank of America, N.A. as Issuing Bank, to Bank of America, N.A., Global Trade
Operations, One Fleet Way, 2nd Floor, Mail Code PA6-580-02-30, Scranton, PA 18507, Telephone 1 800 370 7519, General Fax No. 1 800 755 8743, Client Servicing E-mail Address: scranton_standby_lc@bankofamerica.com, SWIFT Address: BOFAUS;
(g) if to a Lender, to it at its address (or fax number or e-mail address) set forth in its Administrative Questionnaire or in the Assignment
and Acceptance pursuant to which such Lender shall have become a party hereto; and
(h) if to The Hongkong and Shanghai Banking
Corporation Limited, New Zealand Branch as N.Z. Swingline Lender, to The Hongkong and Shanghai Banking Corporation Limited, New Zealand Branch, HSBC House, Level 9, 1 Queen Street, Auckland (attention Relationship Manager), Fax No. +649 368
8799.
All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier service or sent by fax or on the date five Business Days after dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to
such party as provided in this Section 9.01 or in accordance with the latest unrevoked direction from such party given in accordance with this Section 9.01. As agreed to among Holdings, the U.S. Borrower, the Administrative Agent and the
applicable Lenders from time to time, notices and other communications may also be delivered to Holdings or any Borrower at the e-mail address provided from time to time by such person to the Administrative Agent. Holdings and any Borrower may each
change the address or e-mail address for service of notice and other communications by a notice in writing to the other parties hereto.
Holdings hereby agrees, unless directed otherwise by the Administrative Agent or unless the electronic mail address referred to
below has not been provided by the Administrative Agent to Holdings, that it will, or will cause its Subsidiaries to, provide to the Administrative Agent all information, documents and other materials that it is obligated to furnish to the
Administrative Agent pursuant to the Loan Documents or to the Lenders under Article V, including all notices, requests, financial statements, financial and other reports, certificates and other information materials, but excluding any such
communication that (i) is or relates to a Borrowing Request, a Competitive Bid Request, a notice pursuant to Section 2.10 or a notice requesting the issuance, amendment, extension or renewal of a Letter of Credit pursuant to
Section 2.23, (ii) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor, (iii) provides notice of any Default or Event of Default under this Agreement or any other Loan
Document or (iv) is required to be delivered to satisfy any condition precedent to the effectiveness of this Agreement and/or any Borrowing or other extension of credit hereunder (all such non-excluded communications being referred to herein
collectively as “Communications”), by transmitting the Communications in an electronic/soft medium that is properly identified in a format acceptable to the Administrative Agent to an electronic mail address as directed by
the Administrative Agent. In addition, Holdings and the U.S. Borrower agree, and agree to cause the Subsidiaries, to continue to provide the Communications to the Administrative Agent or the Lenders, as the case may be, in the manner specified in
the Loan Documents but only to the extent requested by the Administrative Agent.
Holdings and the U.S.
Borrower hereby acknowledge that (i) the Administrative Agent will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of Holdings and the U.S. Borrower hereunder (collectively, the
“Borrower Materials”) by posting the Borrower Materials on Intralinks or another similar electronic system (the “Platform”) and (ii) certain of the Lenders may be “public-side” Lenders
(i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”). Holdings and the
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U.S. Borrower hereby agree that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a
minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” Holdings and the U.S. Borrower shall be deemed to have authorized the Administrative
Agent and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to Holdings or its securities for purposes of United States federal and state securities laws (provided, however, that
to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.16); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform
designated as “Public Investor;” and (z) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as
“Public Investor.”
Each Public Lender agrees to cause at least one individual at or on behalf of such Public
Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public
Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to Communications that are not made available through the “Public Side Information” portion of the
Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States Federal or state securities laws.
THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES
WARRANTS THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH THE
COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY LOAN PARTY, ANY LENDER OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND
INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY LOAN PARTY’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH
THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent at its e-mail address set forth above shall
constitute effective delivery of the Communications to the Administrative Agent for purposes of the Loan Documents. Each Lender agrees that receipt of notice to it (as provided in the next sentence) specifying that the Communications have been
posted to the Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents. Each Lender agrees to notify the Administrative Agent in writing (including by electronic communication) from time to
time of such Lender’s e-mail address to which the foregoing notice may be sent by electronic transmission and that the foregoing notice may be sent to such e-mail address.
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SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrowers or Holdings herein and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been
relied upon by the Lenders and the Issuing Banks and shall survive the making by the Lenders of the Loans and the issuance of Letters of Credit by the Issuing Banks, regardless of any investigation made by the Lenders or the Issuing Banks or on
their behalf, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any Fee or any other amount payable under this Agreement or any other Loan Document is outstanding and unpaid or any Letter
of Credit is outstanding and so long as the Commitments have not been terminated. The provisions of Sections 2.14, 2.16, 2.20 and 9.05 shall remain operative and in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Loans, the expiration of the Commitments, the expiration of any Letter of Credit, the invalidity or unenforceability of any term or provision of this
Agreement or any other Loan Document, or any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender or any Issuing Bank.
SECTION 9.03. Binding Effect. This Agreement shall become effective when it shall have been executed by the
Borrowers, Holdings and the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of all the Lenders.
SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to include the permitted successors and assigns of such party; and all covenants, promises and agreements by or on behalf of the Borrowers, Holdings, the Administrative Agent, the Collateral
Agent, the Issuing Banks or the Lenders that are contained in this Agreement shall bind and inure to the benefit of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of its interests, rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to it); provided, however, that (i) except in the case of an assignment by a Lender to a Lender or an Affiliate or Related Fund of a Lender which does
not result in any increased costs or other additional amounts being paid by a Borrower, (x) the U.S. Borrower and the Administrative Agent (and, in the case of any assignment of a Revolving Credit Commitment, each Issuing Bank (and in the
case of a Multicurrency Revolving Credit Commitment, the applicable N.Z. Swingline Lender)) must give their prior written consent to such assignment (which consents shall not be unreasonably withheld or delayed and shall be deemed given by the U.S.
Borrower unless the U.S. Borrower shall have objected to such assignment by written notice to the Administrative Agent within 10 Business Days after having received notice thereof), provided, however, that the consent of the U.S.
Borrower shall not be required to any such assignment during the continuance of any Event of Default, and (y) (i) the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $1,000,000 (or, if less, the entire remaining amount of such Lender’s Commitment or Loans), provided that such
minimum amount shall be aggregated for two or more simultaneous assignments to or by two or more Related Funds, (ii) the parties to each such assignment shall (x) electronically execute and deliver to the Administrative Agent an Assignment
and Acceptance via an electronic settlement system acceptable to the Administrative Agent (which initially shall be ClearPar, LLC) or (y) manually execute and deliver to the Administrative Agent an Assignment and Acceptance and, except in the
case of an assignment by a Lender to an Affiliate or Related Fund of such Lender, pay to the Administrative Agent a processing and recordation fee of $3,500 (which fee may be waived or reduced at the discretion of the Administrative Agent),
provided that only one such fee shall be payable in the case of concurrent assignments to persons that, after giving effect thereto, will be Related Funds and (iii) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire and any
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applicable tax forms. Upon acceptance and recording pursuant to paragraph (e) of this Section 9.04, from and after the effective date specified in each Assignment and Acceptance,
(A) the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement and (B) the assigning Lender thereunder
shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning
Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.14, 2.16, 2.20 and 9.05, as well as to any Fees accrued for its account and
not yet paid).
(c) By executing and delivering an Assignment and Acceptance (including a Borrower Repurchase Assignment and
Acceptance), the assigning Lender thereunder and the assignee thereunder shall be deemed to confirm to and agree with each other and the other parties hereto as follows: (i) such assigning Lender warrants that it is the legal and beneficial
owner of the interest being assigned thereby free and clear of any adverse claim and that its Domestic Revolving Credit Commitment, Multicurrency Revolving Credit Commitment and U.K. Revolving Credit Commitment, and the outstanding balances of
its Term Loans, Domestic Revolving Loans, Multicurrency Revolving Loans and U.K. Revolving Loans, in each case without giving effect to assignments thereof which have not become effective, are as set forth in such Assignment and Acceptance,
(ii) except as set forth in (i) above, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement, or
the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto, or the financial condition of Holdings, any Borrower or
any Subsidiary or the performance or observance by Holdings, any Borrower or any Subsidiary of any of its obligations under this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto; (iii) such
assignee represents and warrants that it is legally authorized to enter into such Assignment and Acceptance; (iv) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements
referred to in Section 3.05 or delivered pursuant to Section 5.04 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance;
(v) such assignee will independently and without reliance upon the Administrative Agent, the Collateral Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under this Agreement; (vi) such assignee appoints and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to the Administrative Agent and the Collateral Agent, respectively, by the terms hereof, together with such powers as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of the Borrowers, shall maintain at one of its offices in The
City of New York a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount of the Loans owing to, each Lender pursuant to
the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive and the Borrowers, the Administrative Agent, the Issuing Banks, the Collateral Agent and the Lenders may treat each person
whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrowers, the Issuing Banks,
the Collateral Agent and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
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(e) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning
Lender and an assignee, an Administrative Questionnaire (including any tax documentation required therein) completed in respect of the assignee (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) above, if any, and, if required, the written consent of the U.S. Borrower, a N.Z. Swingline Lender, the Issuing Banks and the Administrative Agent to such assignment, the Administrative Agent shall (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the U.S. Borrower, the Issuing Banks and the N.Z. Swingline Lenders. No assignment shall be effective
unless it has been recorded in the Register as provided in this paragraph (e), and it shall be the sole responsibility of each assignee to confirm such recordation.
(f) Each Lender may without the consent of any Borrower, a N.Z. Swingline Lender, any Issuing Bank or the Administrative Agent sell
participations to one or more banks or other entities in all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it); provided, however, that
(i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or
other entities shall be entitled to the benefit of the cost protection provisions contained in Sections 2.14, 2.16 and 2.20 to the same extent as if they were Lenders (but, with respect to any particular participant, to no greater extent than
the Lender that sold the participation to such participant and solely to the extent that such participant agrees to comply with the requirements of Section 2.20(g) as though it were a Lender) and (iv) the Borrowers, the Administrative
Agent, the Issuing Banks and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Borrowers relating to the Loans or L/C Disbursements and to approve any amendment, modification or waiver of any provision of this Agreement (other than amendments, modifications or waivers decreasing any fees payable to such
participants hereunder or the amount of principal of or the rate at which interest is payable on the Loans in which such participant has an interest, extending any scheduled principal payment date or date fixed for the payment of interest on the
Loans in which such participant has an interest, increasing or extending the Commitments in which such participant has an interest or release all or substantially all of the value of the Guarantees or all or substantially all of the Collateral).
(g) Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the
Borrowers, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the loans or other obligations under this Agreement (the
“Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to the Borrowers, the Administrative Agent, or any other
person (including the identity of any participant or any information relating to a participant’s interest in the Commitments, Loans, or other Obligations) except to the extent necessary to establish that such Commitments, Loans, or other
Obligations are in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each person whose name is
recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent)
shall have no responsibility for maintaining a Participant Register.
(h) Any Lender or participant may, in
connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.04, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrowers
furnished to such Lender by or on behalf of a Borrower; provided that, prior to any such disclosure of information designated by a Borrower as confidential, each such assignee or participant or proposed assignee or participant shall
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execute an agreement whereby such assignee or participant shall agree (subject to customary exceptions) to preserve the confidentiality of such confidential information on terms no less
restrictive than those applicable to the Lenders pursuant to Section 9.16.
(i) Any Lender may at any time assign all
or any portion of its rights under this Agreement to secure extensions of credit to such Lender or in support of obligations owed by such Lender; provided that no such assignment shall release a Lender from any of its obligations hereunder or
substitute any such assignee for such Lender as a party hereto.
(j) Notwithstanding anything to the contrary
contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the U.S. Borrower, the option to provide to a Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to such Borrower pursuant to this Agreement;
provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan,
the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting
Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it
will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition,
notwithstanding anything to the contrary contained in this Section 9.04, any SPC may (i) with notice to, but without the prior written consent of, the U.S. Borrower and the Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by the U.S. Borrower and Administrative Agent) providing liquidity and/or credit support to or for the account
of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit
or liquidity enhancement to such SPC, subject to an agreement to preserve the confidentiality of such non-public information.
(k) Neither Holdings nor any Borrower shall assign or delegate any of its rights or duties hereunder without the prior written consent of the
Administrative Agent, each Issuing Bank and each Lender, and any attempted assignment without such consent shall be null and void.
(l) In the event that S&P, Moody’s, and Thompson’s BankWatch (or InsuranceWatch Ratings Service, in the case of Lenders
that are insurance companies (or Best’s Insurance Reports, if such insurance company is not rated by Insurance Watch Ratings Service)) shall, after the date that any Lender becomes a Revolving Credit Lender, downgrade the long-term certificate
of deposit ratings of such Lender, and the resulting ratings shall be below BBB-, Baa3 and C (or BB, in the case of a Lender that is an insurance company (or B, in the case of an insurance company not rated by InsuranceWatch Ratings Service)), then
any Issuing Bank shall have the right, but not the obligation, at its own expense, upon notice to such Lender and the Administrative Agent, to replace (or to request the U.S. Borrower to use its reasonable efforts to replace) such Lender with
an assignee (in accordance with and subject to the restrictions contained in paragraph (b) above), and such Lender hereby agrees to transfer and assign without recourse (in accordance with and subject to the restrictions contained in
paragraph (b) above) all its interests, rights and obligations in respect of its Revolving Credit Commitments to such assignee; provided, however, that (i) no such assignment shall conflict with any law, rule and regulation
or order of
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any Governmental Authority and (ii) the Issuing Banks or such assignee, as the case may be, shall pay to such Lender in immediately available funds on the date of such assignment the
principal of and interest accrued to the date of payment on the Loans made by such Lender hereunder and all other amounts accrued for such Lender’s account or owed to it hereunder.
(m) Notwithstanding anything to the contrary, this Section 9.04 shall not prohibit the Lenders from assigning Term Loans pursuant
to, and in accordance with the provisions of, the Auction Procedures by executing and delivering a Borrower Repurchase Assignment and Acceptance.
SECTION 9.05. Expenses; Indemnity. (a) The Borrowers and Holdings agree, jointly and severally, to pay all
reasonable out-of-pocket expenses incurred by the Administrative Agent, the Collateral Agent, the Issuing Banks and the N.Z. Swingline Lenders in connection with the syndication of the Credit Facilities and the preparation and administration of this
Agreement and the other Loan Documents or in connection with any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions hereby or thereby contemplated shall be consummated) or incurred by the
Administrative Agent, the Collateral Agent or any Lender in connection with the enforcement or protection of its rights in connection with this Agreement and the other Loan Documents or in connection with the Loans made or Letters of Credit issued
hereunder, including the reasonable and documented fees, charges and disbursements of Cravath, Swaine & Moore LLP, counsel for the Administrative Agent and the Collateral Agent, and, in connection with any such enforcement or protection,
the reasonable and documented fees, charges and disbursements of any other counsel for the Administrative Agent, the Collateral Agent or any Lender.
(b) The Borrowers and Holdings agree, jointly and severally, to indemnify the Administrative Agent, the Collateral Agent, each
Lender, each Issuing Bank, each Lead Arranger, the Advance Agent and each Related Party of any of the foregoing persons (each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any
and all losses, claims, damages, liabilities and related expenses (other than Excluded Taxes), including reasonable counsel fees, charges and disbursements, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or
as a result of (i) the execution or delivery of this Agreement or any other Loan Document or any agreement or instrument contemplated thereby, the performance by the parties thereto of their respective obligations thereunder or the consummation
of the Transactions and the other transactions contemplated thereby, (ii) the use of the proceeds of the Loans or issuance of Letters of Credit, (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by a Borrower, any other Loan Party or any of their respective Affiliates) or (iv) any actual or alleged presence or
Release of Hazardous Materials on any property owned or operated by any Borrower or any of the Subsidiaries, or any Environmental Liability to the extent related in any way to any Borrower or the Subsidiaries;
provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or wilful misconduct of such Indemnitee, (y) result from a claim brought by a Borrower or any of its Subsidiaries against an Indemnitee for material
breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if such Borrower or such Subsidiary has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction or (z) result from disputes solely among Indemnitees that do not involve an act or omission by Holdings, the Borrowers or any of their Affiliates except that the Administrative Agent, the Collateral Agent, each Lender,
each Issuing Bank, each Lead Arranger and the Advance Agent shall be indemnified in their capacities as such to the extent that none of the exceptions set forth in clause (x) or (y) applies to such Indemnitee at such time.
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(c) To the extent that Holdings and the Borrowers fail to pay any amount required to be
paid by them to the Administrative Agent, the Collateral Agent, the Issuing Banks or the N.Z. Swingline Lenders under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the Administrative Agent, the Collateral
Agent, the Issuing Banks or the N.Z. Swingline Lenders, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided
that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent, the Collateral Agent, the applicable Issuing Bank or the applicable
N.Z. Swingline Lender in its capacity as such. For purposes hereof, a Lender’s “pro rata share” shall be determined based upon its share of the sum of the Aggregate Domestic Revolving Credit Exposure, Aggregate Multicurrency Revolving
Credit Exposure, Aggregate U.K. Revolving Credit Exposure, outstanding Term Loans and unused Commitments at the time.
(d) To
the extent permitted by applicable law, neither Holdings nor any Borrower shall assert, and each hereby waives, any claim against any Indemnitee, 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 Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.
(e) The provisions of this Section 9.05 shall remain operative and in full force and effect regardless of the expiration of the term of
this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the Loans, the expiration of the Commitments, the expiration of any Letter of Credit, the invalidity or unenforceability of any term or provision of
this Agreement or any other Loan Document, or any investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any Lender or any Issuing Bank. All amounts due under this Section 9.05 shall be payable on written demand
therefor.
SECTION 9.06. Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender is hereby authorized at any time and from time to time, except to the extent prohibited by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Lender to or for the credit or the account of any Borrower or Holdings against any of and all the obligations of the Borrowers or Holdings now or hereafter existing under this Agreement and other Loan Documents (to the extent
such obligations of Holdings or the Borrowers are then due and payable (by acceleration or otherwise)) held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement or such other Loan Document and
although such obligations may be unmatured. The rights of each Lender under this Section 9.06 are in addition to other rights and remedies (including other rights of setoff) which such Lender may have.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS
EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES
DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS MOST RECENTLY PUBLISHED AND IN EFFECT, ON THE DATE SUCH LETTER OF CREDIT WAS ISSUED, BY THE INTERNATIONAL
CHAMBER OF COMMERCE (THE “UNIFORM CUSTOMS”) AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW YORK.
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SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent, the Collateral Agent, any Lender or any Issuing Bank in exercising any power or right hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Collateral
Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan
Document or consent to any departure by a Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No notice or demand on a Borrower or Holdings in any case shall entitle any Borrower or Holdings to any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement, nor any other Loan Document, nor any provision hereof or thereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrowers, Holdings and the Required Lenders; provided, however, that no such agreement shall (i) decrease the principal amount of, or extend the maturity
of or any scheduled principal payment date or date for the payment of any interest on any Loan or any date for reimbursement of an L/C Disbursement, or waive or excuse any such payment or any part thereof, or decrease the rate of interest on any
Loan or L/C Disbursement, without the prior written consent of each Lender directly adversely affected thereby, (ii) increase or extend the Commitment or decrease or extend the date for payment of any Fees of any Lender without the prior
written consent of such Lender, (iii) amend or modify the pro rata requirements of Section 2.17, the provisions of Section 9.04(k) or the provisions of this Section 9.08 or release all or substantially all the value of the
Guarantees or all or substantially all of the Collateral, without the prior written consent of each Lender, (iv) change the provisions of any Loan Document in a manner that by its terms adversely affects the rights in respect of payments due to
Lenders holding Loans of one Class differently from the rights of Lenders holding Loans of any other Class without the prior written consent of Lenders holding a majority in interest of the outstanding Loans and unused Commitments of the adversely
affected Class (or, if more than one Class is substantially similarly adversely affected, all such substantially similarly adversely affected Classes, voting as a single class), (v) modify the definition of “Alternative Currency”
without the prior written consent of all Multicurrency Lenders, (vi) modify the protections afforded to an SPC pursuant to the provisions of Section 9.04(j) without the written consent of such SPC, (vii) reduce the percentage
contained in the definition of the term “Required Lenders” without the consent of each Lender (it being understood that with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in
the determination of the Required Lenders on substantially the same basis as the Commitments are included on the date hereof), or (viii) reduce the number or percentage of the Lenders required to consent, approve or otherwise take any action
under the Loan Documents without the prior written consent of each Lender affected thereby; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, the Collateral
Agent, any Issuing Bank or a N.Z. Swingline Lender hereunder or under any other Loan Document without the prior written consent of the Administrative Agent, the Collateral Agent, such Issuing Bank or such N.Z. Swingline Lender, as the case may
be.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any
time the interest rate applicable to any Loan or participation in any L/C Disbursement, together with all fees, charges and other amounts which are treated as interest on such Loan or participation in such L/C Disbursement under applicable law
(collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan or
participation in accordance with applicable law, the rate of interest payable in
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respect of such Loan or participation hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and
Charges that would have been payable in respect of such Loan or participation but were not payable as a result of the operation of this Section 9.09 shall be cumulated and the interest and Charges payable to such Lender in respect of other
Loans or participations or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by
such Lender.
SECTION 9.10. Entire Agreement. This Agreement, the Fee Letter dated
October 30, 2006, between the U.S. Borrower and the Administrative Agent, and the other Loan Documents constitute the entire contract between the parties relative to the subject matter hereof. Any other previous agreement among the
parties with respect to the subject matter hereof is superseded by this Agreement and the other Loan Documents. Nothing in this Agreement or in the other Loan Documents, expressed or implied, is intended to confer upon any person (other than the
parties hereto and thereto, their respective successors and assigns permitted hereunder (including any Affiliate of any Issuing Bank that issues any Letter of Credit) and, to the extent expressly contemplated hereby, the Related Parties of each of
the Administrative Agent, the Collateral Agent, the Issuing Banks and the Lenders) any rights, remedies, obligations or liabilities under or by reason of this Agreement or the other Loan Documents.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. Severability. In the event any one or more of the provisions contained in this Agreement or in any
other Loan Document should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby (it being
understood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 9.13. Counterparts. This Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract, and shall become effective as provided in Section 9.03. Delivery of an executed signature page to this
Agreement by facsimile or other customary means of electronic transmission (e.g., “pdf”) shall be as effective as delivery of a manually signed counterpart of this Agreement.
SECTION 9.14. Headings. Article and Section headings and the Table of Contents used herein are for
convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.
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SECTION 9.15. Jurisdiction; Consent to Service of Process.
(a) Each of Holdings and each Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in
New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the other Loan Documents, or for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or the other Loan Documents against the Borrowers, Holdings or their respective properties in
the courts of any jurisdiction.
(b) Each of Holdings and each Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the other Loan Documents in any New
York State or Federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
SECTION 9.16. Confidentiality. (a) Each of the Administrative Agent, the Collateral Agent, the Issuing Banks
and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (i) to its and its Affiliates’ officers, directors, trustees, employees, insurers, reinsurers and
agents, including accountants, legal counsel and other advisors (it being understood that the persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information
confidential), (ii) to the extent requested or required by any regulatory authority or quasi-regulatory authority (such as the National Association of Insurance Commissioners), (iii) to the extent required by applicable laws or regulations
or by any subpoena or similar legal process, (iv) in connection with the exercise of any remedies hereunder or under the other Loan Documents or any suit, action or proceeding relating to the enforcement of its rights hereunder or thereunder,
(v) subject to an agreement containing provisions substantially the same as those of this Section 9.16, to (y) any actual or prospective assignee of or participant in any of its rights or obligations under this Agreement and the other
Loan Documents or (z) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to a Borrower or any Subsidiary or any of their respective obligations, (vi) with the consent of the
U.S. Borrower, (vii) to any nationally recognized rating agency that requires access to information about a Lender’s investment portfolio in connection with ratings issued with respect to such Lender or (viii) to the extent such
Information becomes publicly available other than as a result of a breach of this Section 9.16. For the purposes of this Section, “Information” shall mean all information received from a Borrower or Holdings and related
to a Borrower or Holdings or their business, other than any such information that was available to the Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender on a nonconfidential basis prior to its disclosure by a Borrower or
Holdings. Any person required to maintain the confidentiality of Information as provided in this Section 9.16 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 its own confidential information.
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(b) Notwithstanding anything herein to the contrary, any party subject to confidentiality
obligations hereunder or otherwise (and any Affiliate thereof and any employee, representative or other agent of such party or such Affiliate) may disclose to any and all persons, without limitation of any kind, the U.S. federal income tax treatment
and the U.S. federal income tax structure of the transactions contemplated hereby and all materials of any kind (including opinions or other tax analyses) that are provided to it relating to such tax treatment and tax structure. For this purpose,
the tax treatment of the transactions contemplated hereby is the purported or claimed U.S. federal income tax treatment of such transactions and the tax structure of such transactions is any fact that may be relevant to understanding the purported
or claimed U.S. federal income tax treatment of such transactions.
SECTION 9.17. Conversion of Currencies.
(a) If, for the purpose of obtaining judgment in any court, it is necessary to convert a sum owing hereunder in one currency into another currency, each party hereto agrees, to the fullest extent that it may effectively do so, that the rate of
exchange used shall be that at which in accordance with normal banking procedures in the relevant jurisdiction the first currency could be purchased with such other currency on the Business Day immediately preceding the day on which final judgment
is given.
(b) The obligations of each party in respect of any sum due to any other party hereto or any holder
of the obligations owing hereunder (the “Applicable Creditor”) shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than the currency in which such sum is stated to be due
hereunder (the “Agreement Currency”), be discharged only to the extent that, on the Business Day following receipt by the Applicable Creditor of any sum adjudged to be so due in the Judgment Currency, the Applicable Creditor
may in accordance with normal banking procedures in the relevant jurisdiction purchase the Agreement Currency with the Judgment Currency; if the amount of the Agreement Currency so purchased is less than the sum originally due to the Applicable
Creditor in the Agreement Currency, such party agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Applicable Creditor against such loss. The obligations of the Loan Parties contained in this Section 9.17
shall survive the termination of this Agreement and the payment of all other amounts owing hereunder.
SECTION
9.18. Additional Borrowers. The U.S. Borrower may designate any wholly owned Subsidiary as a Borrower under any of the Commitments; provided that (x) the Administrative
Agent (and in the case of any Foreign Subsidiary so designated, each applicable Lender) shall be reasonably satisfied that the applicable Lenders may make loans and other extensions of credit to such person in the applicable currency or currencies
in such person’s jurisdiction in compliance with applicable laws and regulations and without being subject to any unreimbursed or unindemnified Tax or other expense and (y) the Administrative Agent and each applicable Lender shall have
received any and all documentation and other information with respect to such person that it reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and
regulations, including the USA PATRIOT Act. Upon the receipt by the Administrative Agent of a Borrowing Subsidiary Agreement executed by such a wholly owned Subsidiary, Holdings and the U.S. Borrower, such wholly owned Subsidiary shall be a
Borrower and a party to this Agreement. A Subsidiary shall cease to be a Borrower hereunder at such time as no Loans, Fees or any other amounts due in connection therewith pursuant to the terms hereof shall be outstanding by such Subsidiary, no
Letters of Credit issued for the account of such Subsidiary shall be outstanding and such Subsidiary and the U.S. Borrower shall have executed and delivered to the Administrative Agent a Borrowing Subsidiary Termination;
provided that, notwithstanding anything herein to the contrary, no Subsidiary shall cease to be a Borrower solely because it no longer is a wholly owned Subsidiary.
SECTION 9.19. Release of Collateral. (a) If any of the Collateral shall be sold, transferred or otherwise
disposed of by Holdings, any Borrower or any other Loan Party in a transaction permitted by this Agreement (including by way of merger, consolidation or in connection with the sale of a Subsidiary
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permitted hereunder), then the Collateral Agent, at the request of Holdings, any such Borrower or such other Loan Party, as the case may be, shall execute and deliver all releases or
other documents necessary or desirable to evidence the release of the Liens created by any of the Security Documents on such Collateral.
(b) Without limiting the foregoing, upon the consummation of a Foreign Restructuring Transaction, the Equity Interests of any Foreign
Subsidiary that would no longer be directly owned by Holdings, the U.S. Borrower or any Domestic Subsidiary, to the extent then constituting Collateral for the Obligations of the U.S. Borrower, shall be automatically released from the Liens created
under the Guarantee and Pledge Agreement, in each case without representation, warranty or recourse of any nature; provided, however, that this provision shall not be construed to limit the obligations of Holdings and the Borrowers
pursuant to Section 5.09(b).
(c) Notwithstanding any other provision of this Agreement or any Security Document, any
Collateral held under the Security Documents (other than a Lien that continues to secure any other Indebtedness of Holdings or its Subsidiaries if such Lien would not then be permitted by this Agreement after giving effect to the release provided
for in this Section, assuming for all purposes hereof that such Lien were incurred by Holdings or the applicable Subsidiary on the Security Release Date referred to below) shall be released from the Liens created under the Security Documents on a
Business Day specified by Holdings (a “Security Release Date”), upon satisfaction of the following conditions precedent:
(1) Holdings shall have given written notice to the Administrative Agent at least five Business Days prior to such Security
Release Date, specifying the proposed Security Release Date and the proposed Collateral to be released;
(2) as of such
Security Release Date, the U.S. Borrower shall have obtained, and for a period of not less than 90 consecutive days, maintained Investment Grade Status;
(3) no Default or Event of Default shall have occurred and be continuing as of such Security Release Date; and
(4) on such Security Release Date, the Collateral Agent shall have received a certificate, dated such Security Release Date and
executed on behalf of Holdings by a Responsible Officer of Holdings, confirming the satisfaction of the conditions set forth in clauses (2) and (3) above;
provided, however, that if on any date after any Security Release Date, Investment Grade Status ceases to be maintained, then, promptly upon the
request of the Collateral Agent (but in no event later than 45 days from the date of such request), the Loan Parties (including the Subsidiaries that execute Guarantees in accordance with the proviso to Section 9.25(a)) shall re-pledge such of
the assets of the Loan Parties as would have been required to have been pledged as Collateral immediately prior to the initial Security Release Date, in each case, pursuant to a supplement to the Guarantee and Pledge Agreement in the form of Exhibit
A thereto (or an amended and restated guarantee and pledge agreement as agreed between the U.S. Borrower and the Collateral Agent) and execute and deliver to the Collateral Agent all such other instruments and documents as the Collateral Agent may
reasonably request to effectuate, evidence or confirm such pledge of Collateral.
(d) The Lenders hereby expressly authorize the
Collateral Agent to, and the Collateral Agent hereby agrees to, execute and deliver to the Loan Parties all such instruments and documents as the Loan Parties may reasonably request to effectuate, evidence or confirm any release provided for in this
Section 9.19, all at the sole cost and expense of the Loan Parties. Any execution and delivery of documents pursuant to this Section 9.19 shall be without recourse to or representation or warranty by the Collateral Agent.
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(e) Without limiting the provisions of Section 9.05, Holdings and the Borrowers shall
reimburse the Administrative Agent and the Collateral Agent upon demand for all costs and expenses, including fees, disbursements and other charges of counsel, incurred by any of them in connection with any action contemplated by this
Section 9.19.
SECTION 9.20. Loan Modification Offers. (a) Holdings and the U.S. Borrower may, by
written notice to the Administrative Agent from time to time, make one or more offers (each, a “Loan Modification Offer”) to all the Lenders of one or more Classes of Loans and/or Commitments (each Class subject to such a
Loan Modification Offer, an “Affected Class”) to make one or more Permitted Amendments (as defined in paragraph (c) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable
to Holdings or the U.S. Borrower, as the case may be. Such notice shall set forth (i) the terms and conditions of the requested Permitted Amendment and (ii) the date on which such Permitted Amendment is requested to become effective (which
shall not be less than 10 Business Days nor more than 30 Business Days after the date of such notice, unless otherwise agreed to by the Administrative Agent). Permitted Amendments shall become effective only with respect to the Loans and
Commitments of the Lenders of the Affected Class that accept the applicable Loan Modification Offer (such Lenders, the “Accepting Lenders”) and, in the case of any Accepting Lender, only with respect to such Lender’s
Loans and Commitments of such Affected Class as to which such Lender’s acceptance has been made.
(b) Holdings, the
U.S. Borrower and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the
Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness
of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and
Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit
Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective under this Section 9.20 unless the Administrative Agent, to the extent so reasonably requested by the Administrative Agent, shall have received legal
opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Second Restatement Date under Section 4.02(a) and (b).
(c) “Permitted Amendments” shall be (i) an extension of the final maturity date of the applicable
Loans and/or Commitments of the Accepting Lenders (provided that such extensions may not result in having more than one additional final maturity date under this Agreement in any year without the consent of the
Administrative Agent), (ii) a reduction or elimination of the scheduled amortization of the applicable Loans of the Accepting Lenders, (iii) change in the Applicable Percentage with respect to the applicable Loans and/or Commitments of the
Accepting Lenders (including by implementation of a “LIBOR floor”) and the payment of additional fees to the Accepting Lenders (any such increase and/or payments to be in the form of cash, Equity Interests or other property to the extent
not prohibited by this Agreement) and (iv) the conversion of Revolving Loans to Term Loans or Term Loans to Revolving Loans.
SECTION 9.21. Effect of Certain Inaccuracies. In the event that any financial statement or certificate delivered
pursuant to Section 5.04(a), (b) or (c) is inaccurate (regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy,
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if corrected, would have led to the application of a higher Applicable Percentage for any period (an “Applicable Period”) than the Applicable Percentage actually
used to determine interest rates and Fees for such Applicable Period, then (a) Holdings shall promptly deliver to the Administrative Agent a corrected financial statement and a corrected certificate for such Applicable Period, (b) the
Applicable Percentage shall be determined based on the corrected certificate for such Applicable Period and (c) the applicable Borrowers shall promptly pay to the Administrative Agent (for the account of the Lenders during the Applicable Period
or their successors and assigns) the accrued additional interest and/or Fees owing as a result of such increased Applicable Percentage for such Applicable Period. This Section 9.21 shall not limit the rights of the Administrative Agent or the
Lenders under Section 2.07 or Article VII, and shall survive the termination of this Agreement.
SECTION 9.22. USA PATRIOT Act Notice. Each Lender and the Administrative Agent (for itself
and not on behalf of any Lender) hereby notifies Holdings and each Borrower that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies Holdings and each Borrower, which
information includes the name and address of Holdings and each Borrower and other information that will allow such Lender or the Administrative Agent, as applicable, to identify Holdings and each Borrower in accordance with the USA PATRIOT
Act.
SECTION 9.23. No Advisory or Fiduciary Responsibility. Holdings and the Borrowers
acknowledge and agree, and acknowledge the understanding of the other Loan Parties and the respective Affiliates of each of the foregoing, that (a) the Credit Facilities and any related arranging or other services in connection therewith
(including in connection with any amendment, waiver or other modification hereof or of any other Loan Document) constitute an arm’s-length commercial transaction between Holdings, the Borrowers, the other Loan Parties and their respective
Affiliates, on the one hand, and the Administrative Agent, the Collateral Agent, the Issuing Banks, the Lenders and the Lead Arrangers, on the other hand, and Holdings, each Borrower and each other Loan Party is capable of evaluating and
understanding and understands and accepts the terms, risks and conditions of the Transactions and the transactions contemplated by the other Loan Documents (including any amendment, waiver or other modification hereof or thereof), (b) in
connection with the process leading to the Transactions, each of the Administrative Agent, the Collateral Agent, the Issuing Banks, the Lenders and the Lead Arrangers is and has been acting solely as a principal and is not the financial advisor,
agent or fiduciary for Holdings, any Borrower, any other Loan Party or any of their respective Affiliates, stockholders, creditors or employees or any other person, (c) none of the Administrative Agent, the Collateral Agent, any Issuing Banks,
the Lenders and the Lead Arrangers has assumed or will assume an advisory, agency or fiduciary responsibility in favor of Holdings, any Borrower or any other Loan Party with respect to any of the Transactions or the process leading thereto,
including with respect to any amendment, waiver or other modification hereof or of any other Loan Document (irrespective of whether the Administrative Agent, the Collateral Agent, any Issuing Bank, any Lender or either Lead Arranger has advised or
is currently advising Holdings, any Borrower, any other Loan Party or any of their respective Affiliates on other matters) and none of the Administrative Agent, the Collateral Agent, the Issuing Banks, the Lenders and the Lead Arrangers has any
obligation to Holdings, any Borrower, any other Loan Party or any of their respective Affiliates with respect to the Transactions except those obligations expressly set forth herein and in the other Loan Documents, (d) the Administrative Agent,
the Collateral Agent, the Issuing Banks, the Lenders and the Lead Arrangers and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of Holdings, the Borrowers, the other Loan
Parties and their respective Affiliates, and none of the Administrative Agent, the Collateral Agent, the Issuing Banks, the Lenders and the Lead Arrangers has any obligation to disclose any such interest by virtue of any advisory, agency or
fiduciary relationship and (e) the Administrative Agent, the Collateral Agent, the Issuing Banks, the Lenders and the Lead Arrangers have not provided and will not provide any legal, accounting, regulatory or tax advice with respect to any of
the Transactions (including any amendment, waiver or other modification hereof or of any other Loan Document) and each of Holdings, the Borrowers and the other Loan Parties has consulted its own legal, accounting, regulatory and tax
advisors to the extent it has deemed appropriate.
122
SECTION 9.24. Effect of Restatement. This Agreement shall, except as
otherwise expressly set forth herein, supersede the Existing Credit Agreement from and after the Second Restatement Date with respect to the transactions hereunder and with respect to the Loans and Letters of Credit outstanding under the Existing
Credit Agreement as of the Second Restatement Date. The parties hereto acknowledge and agree, however, that (a) this Agreement and all other Loan Documents executed and delivered herewith do not constitute a novation, payment and reborrowing or
termination of the Obligations under the Existing Credit Agreement (except as otherwise expressly provided with respect to the Existing Term Loan Refinancing) and the other Loan Documents as in effect prior to the Second Restatement Date,
(b) such Obligations (except as otherwise expressly provided with respect to the Existing Term Loan Refinancing) are in all respects continuing with only the terms being modified as provided in this Agreement and the other Loan Documents,
(c) the liens and security interests in favor of the Agent for the benefit of the Secured Parties securing payment of such Obligations are in all respects continuing and in full force and effect with respect to all Obligations (except as
otherwise expressly provided with respect to the Existing Term Loan Refinancing) and (d) all references in the other Loan Documents to the Credit Agreement shall be deemed to refer without further amendment to this Agreement.
SECTION 9.25. Release of Guarantees. (a) Notwithstanding any other provision of this Agreement or any
Security Document, any Guarantees made by any Subsidiary Guarantor (other than a Subsidiary Guarantor that continues to Guarantee or is obligated on any Indebtedness of Holdings or its Subsidiaries if such Guarantee or Indebtedness would not then be
permitted by this Agreement after giving effect to the release provided for in this Section, assuming for all purposes hereof that such Guarantee or Indebtedness were incurred by such Subsidiary on the Guarantee Release Date referred to below) under
the Guarantee and Pledge Agreement shall be released on a Business Day specified by Holdings (a “Guarantee Release Date”), upon satisfaction of the following conditions precedent:
(1) Holdings shall have given written notice to the Administrative Agent at least five Business Days prior to such Guarantee
Release Date, specifying the proposed Guarantee Release Date and the Subsidiary Guarantors to be released;
(2) as of such
Guarantee Release Date, the U.S. Borrower shall have obtained, and for a period of not less than 90 consecutive days, maintained Investment Grade Status;
(3) no Default or Event of Default shall have occurred and be continuing as of such Guarantee Release Date; and
(4) on such Guarantee Release Date, the Collateral Agent shall have received a certificate, dated such Guarantee Release Date
and executed on behalf of Holdings by a Responsible Officer of Holdings, confirming the satisfaction of the conditions set forth in clauses (2) and (3) above;
provided, however, that if on any date after any Guarantee Release Date, Investment Grade Status ceases to be maintained, then, promptly upon
the request of the Collateral Agent, each Subsidiary of Holdings that would have been required to be a Subsidiary Guarantor but for the operation of the foregoing release provision shall make or re-make the Guarantees pursuant to a supplement to the
Guarantee and Pledge Agreement in the form of Exhibit A thereto (or an amended and restated guarantee and pledge agreement as agreed between the U.S. Borrower and the Collateral Agent) and execute and deliver to the Collateral Agent all such other
instruments and documents as the Collateral Agent may reasonably request to effectuate, evidence or confirm such Guarantee.
123
(b) The Lenders hereby expressly authorize the Collateral Agent to, and the Collateral Agent
hereby agrees to, execute and deliver to the Loan Parties all such instruments and documents as the Loan Parties may reasonably request to effectuate, evidence or confirm any release provided for in this Section 9.25, all at the sole cost and
expense of the Loan Parties. Any execution and delivery of documents pursuant to this Section 9.25 shall be without recourse to or representation or warranty by the Collateral Agent.
(c) Without limiting the provisions of Section 9.05, Holdings and the Borrowers shall reimburse the Administrative Agent and the
Collateral Agent upon demand for all costs and expenses, including fees, disbursements and other charges of counsel, incurred by any of them in connection with any action contemplated by this Section 9.25.
[The remainder of this page is intentionally left blank]
124
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above
written.
|
|
|
| CBRE SERVICES, INC. |
|
|
| by |
|
/s/ DEBERA FAN |
| Name: |
|
Debera Fan |
| Title: |
|
Senior Vice President and Treasurer |
|
|
|
| CBRE GROUP, INC. |
|
|
| by |
|
/s/ DEBERA FAN |
| Name: |
|
Debera Fan |
| Title: |
|
Senior Vice President and Treasurer |
|
|
|
| CBRE LIMITED, a limited company organized under the laws of England and Wales, |
|
|
| by |
|
/s/ P. EMBLREY |
| Name: |
|
P. Emblery |
| Title: |
|
Director |
|
|
| by |
|
/s/ M. LEWIS |
| Name: |
|
M. Lewis |
| Title: |
|
Director |
|
|
|
| CBRE LIMITED, a limited company organized under the laws of the province of New Brunswick, |
|
|
| by |
|
/s/ JEFF COOK |
| Name: |
|
Jeff Cook |
| Title: |
|
SVP Finance |
[Signature page to Second Amended and Restated Credit Agreement]
125
|
|
|
| CBRE PTY LIMITED, a company organized under the laws of Australia, |
|
|
| by |
|
/s/ JAMES W. PATTERSON |
| Name: |
|
James Winston Patterson |
| Title: |
|
Director |
|
|
| by |
|
/s/ NATALIE MARIE CRAIG |
| Name: |
|
Natalie Marie Craig |
| Title: |
|
Company Secretary |
|
|
|
| CBRE LIMITED, a company organized under the laws of New Zealand, |
|
|
| by |
|
/s/ BRENT DAVID MCGREGOR |
| Name: |
|
Brent David McGregor |
| Title: |
|
Director |
|
|
| by |
|
/s/ THOMAS JACKSON SOUTHERN |
| Name: |
|
Thomas Jackson Southern |
| Title: |
|
Director |
[Signature page to Second Amended and Restated Credit Agreement]
126
|
|
|
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Administrative Agent, Collateral Agent, Issuing Bank and Lender, |
|
|
| by |
|
/s/ BILL O’DALY |
| Name: |
|
Bill O’Daly |
| Title: |
|
Authorized Signatory |
|
|
| by |
|
/s/ D. ANDREW MALETTA |
| Name: |
|
D. Andrew Maletta |
| Title: |
|
Authorized Signatory |
|
|
|
| BANK OF AMERICA, N.A., as Issuing Bank and Lender, |
|
|
| by |
|
/s/ ROBERT ODLOZIL |
| Name: |
|
Robert Odlozil |
| Title: |
|
Senior Vice President |
|
|
|
| JPMORGAN CHASE BANK, N.A., as Issuing Bank and Lender, |
|
|
| by |
|
/s/ CHIARA CARTER |
| Name: |
|
Chiara Carter |
| Title: |
|
Vice President |
[Signature page to Second Amended and Restated Credit Agreement]
127
|
|
|
|
|
SIGNATURE PAGE TO THE CBRE SERVICES, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF THE DATE FIRST ABOVE WRITTEN |
Name of Institution: HSBC Bank USA, National Association
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ DAVID A MACDONALD |
| Name: |
|
David A Macdonald |
| Title: |
|
Regional Commercial Executive |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
|
| Name: |
|
|
| Title: |
|
|
Name of Institution: THE BANK OF NOVA SCOTIA
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ WINSTON LUA |
| Name: |
|
Winston Lua |
| Title: |
|
Director |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
|
| Name: |
|
|
| Title: |
|
|
[Signature page to Second Amended and Restated Credit Agreement]
128
|
|
|
|
|
SIGNATURE PAGE TO THE CBRE SERVICES, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF THE DATE FIRST ABOVE WRITTEN |
Name of Institution: Scotiabanc Inc.
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ J.F. TODD |
| Name: |
|
J.F. Todd |
| Title: |
|
Managing Director |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
/s/ K. ZHOU |
| Name: |
|
K. Zhou |
| Title: |
|
Director |
Name of Institution: Scotiabank Europe plc
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ JOHN O’CONNOR |
| Name: |
|
John O’Connor |
| Title: |
|
Director, Credit Risk Control |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
/s/ STEVE CALLER |
| Name: |
|
Steve Caller |
| Title: |
|
Manager, Credit Risk Control |
[Signature page to Second Amended and Restated Credit Agreement]
129
|
|
|
|
|
SIGNATURE PAGE TO THE CBRE SERVICES, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF THE DATE FIRST ABOVE WRITTEN |
Name of Institution: The Bank of Tokyo-Mitsubishi UFJ, Ltd.
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ SUSAN J. SWERDLOFF |
| Name: |
|
Susan J. Swerdloff |
| Title: |
|
Managing Director |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
|
| Name: |
|
|
| Title: |
|
|
Name of Institution: MUFG Union Bank, N.A.
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ SUSAN J. SWERDLOFF |
| Name: |
|
Susan J. Swerdloff |
| Title: |
|
Managing Director |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
|
| Name: |
|
|
| Title: |
|
|
[Signature page to Second Amended and Restated Credit Agreement]
130
|
|
|
|
|
SIGNATURE PAGE TO THE CBRE SERVICES, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF THE DATE FIRST ABOVE WRITTEN |
Name of Institution: WELLS FARGO BANK, N.A.
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ PATRICK DRUM |
| Name: |
|
Patrick Drum |
| Title: |
|
Senior Relationship Manager |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
/s/ HAROLD LIM |
| Name: |
|
Harold Lim |
| Title: |
|
Assistant Vice President |
Name of Institution: The Royal Bank of Scotland Plc
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ CIAN MCCARRICK |
| Name: |
|
Cian McCarrick |
| Title: |
|
Director |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
|
| Name: |
|
|
| Title: |
|
|
[Signature page to Second Amended and Restated Credit Agreement]
131
|
|
|
|
|
SIGNATURE PAGE TO THE CBRE SERVICES, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF THE DATE FIRST ABOVE WRITTEN |
Name of Institution: Barclays Bank PLC
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ NYAGAKA ONGERI |
| Name: |
|
Nyagaka Ongeri |
| Title: |
|
Managing Director |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
|
| Name: |
|
|
| Title: |
|
|
Name of Institution: SANTANDER BANK, N.A.
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ PEDRO BELL ASTORZA |
| Name: |
|
PEDRO BELL ASTORZA |
| Title: |
|
SVP – Corporate Banking |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
|
| Name: |
|
|
| Title: |
|
|
[Signature page to Second Amended and Restated Credit Agreement]
132
|
|
|
|
|
SIGNATURE PAGE TO THE CBRE SERVICES, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF THE DATE FIRST ABOVE WRITTEN |
Name of Institution: Australia and New Zealand Banking Group Limited
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ ROBERT GRILLO |
| Name: |
|
Robert Grillo |
| Title: |
|
Director |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
|
| Name: |
|
|
| Title: |
|
|
Name of Institution: THE BANK OF NEW YORK MELLON
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ HELGA BLUM |
| Name: |
|
Helga Blum |
| Title: |
|
Managing Director |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
|
| Name: |
|
|
| Title: |
|
|
[Signature page to Second Amended and Restated Credit Agreement]
133
|
|
|
|
|
SIGNATURE PAGE TO THE CBRE SERVICES, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF THE DATE FIRST ABOVE WRITTEN |
Name of Institution: Branch Banking and Trust Company
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ ROBERT BESSER |
| Name: |
|
Robert Besser |
| Title: |
|
Senior Vice President |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
|
| Name: |
|
|
| Title: |
|
|
Name of Institution: PNC Bank, N.A.
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ KENYA WILLIAMS |
| Name: |
|
Kenya Williams |
| Title: |
|
Senior Vice President |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
|
| Name: |
|
|
| Title: |
|
|
[Signature page to Second Amended and Restated Credit Agreement]
134
|
|
|
|
|
SIGNATURE PAGE TO THE CBRE SERVICES, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF THE DATE FIRST ABOVE WRITTEN |
Name of Institution: Societe Generale
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ RICHARD BERNAL |
| Name: |
|
Richard Bernal |
| Title: |
|
Managing Director |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
|
| Name: |
|
|
| Title: |
|
|
Name of Institution: Mizuho Bank, Ltd.
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ NOEL PURCELL |
| Name: |
|
Noel Purcell |
| Title: |
|
Authorized Signatory |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
|
| Name: |
|
|
| Title: |
|
|
[Signature page to Second Amended and Restated Credit Agreement]
135
|
|
|
|
|
SIGNATURE PAGE TO THE CBRE SERVICES, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF THE DATE FIRST ABOVE WRITTEN |
Name of Institution: US BANK NATIONAL ASSOCIATION
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ CONAN SCHLEICHER |
| Name: |
|
Conan Schleicher |
| Title: |
|
Vice President |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
|
| Name: |
|
|
| Title: |
|
|
Name of Institution: Comerica Bank
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ MARK C. SKRZYNSKI JR. |
| Name: |
|
Mark C. Skrzynski Jr. |
| Title: |
|
Vice President |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
|
| Name: |
|
|
| Title: |
|
|
[Signature page to Second Amended and Restated Credit Agreement]
136
|
|
|
|
|
SIGNATURE PAGE TO THE CBRE SERVICES, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF THE DATE FIRST ABOVE WRITTEN |
Name of Institution: First Commercial Bank, New York Branch
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ JASON LEE |
| Name: |
|
Jason Lee |
| Title: |
|
SVP & General Manager |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
|
| Name: |
|
|
| Title: |
|
|
Name of Institution: Associated Bank, N.A.
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ EDWARD U. NOTZ, JR. |
| Name: |
|
Edward U. Notz, Jr. |
| Title: |
|
Senior Vice President |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
|
| Name: |
|
|
| Title: |
|
|
[Signature page to Second Amended and Restated Credit Agreement]
137
|
|
|
|
|
SIGNATURE PAGE TO THE CBRE SERVICES, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF THE DATE FIRST ABOVE WRITTEN |
Name of Institution: BANK OF HAWAII
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ ANNA HU |
| Name: |
|
Anna Hu |
| Title: |
|
Vice President |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
|
| Name: |
|
|
| Title: |
|
|
Name of Institution: Mega International Commercial Bank Co., Ltd. New York Branch
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ ANGELA CHEN |
| Name: |
|
Angela Chen |
| Title: |
|
VP & DGM |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
|
| Name: |
|
|
| Title: |
|
|
[Signature page to Second Amended and Restated Credit Agreement]
138
|
|
|
|
|
SIGNATURE PAGE TO THE CBRE SERVICES, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF THE DATE FIRST ABOVE WRITTEN |
Name of Institution: First Tennessee Bank National Association
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ JOSEPH M. EVANGELISTI |
| Name: |
|
Joseph M. Evangelisti |
| Title: |
|
Executive Vice President |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
|
| Name: |
|
|
| Title: |
|
|
Name of Institution: KeyBank National Association
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ GEOFF SMITH |
| Name: |
|
Geoff Smith |
| Title: |
|
Senior Vice President |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
|
| Name: |
|
|
| Title: |
|
|
[Signature page to Second Amended and Restated Credit Agreement]
139
|
|
|
|
|
SIGNATURE PAGE TO THE CBRE SERVICES, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF THE DATE FIRST ABOVE WRITTEN |
Name of Institution: HUA NAN COMMERCIAL BANK, LTD., LOS ANGELES BRANCH
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ DING-JONG CHEN |
| Name: |
|
DING-JONG CHEN |
| Title: |
|
VP & GENERAL MANAGER |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
|
| Name: |
|
|
| Title: |
|
|
Name of Institution: HUA NAN COMMERCIAL BANK, LTD., NEW YORK AGENCY
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ SHU-FEI LIN |
| Name: |
|
Shu-Fei Lin |
| Title: |
|
General Manager & Vice President |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
|
| Name: |
|
|
| Title: |
|
|
[Signature page to Second Amended and Restated Credit Agreement]
140
|
|
|
|
|
SIGNATURE PAGE TO THE CBRE SERVICES, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF THE DATE FIRST ABOVE WRITTEN |
Name of Institution: Chang Hwa Commercial Bank, Ltd., New York Branch
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ JANE S.C. YANG |
| Name: |
|
Jane S.C. Yang |
| Title: |
|
V.P. & General Manager |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
|
| Name: |
|
|
| Title: |
|
|
Name of Institution: E.Sun Commercial Bank, Ltd., Los Angeles Branch
|
|
|
| To execute this Agreement as a Lender: |
|
|
| by |
|
/s/ EDWARD CHEN |
| Name: |
|
Edward Chen |
| Title: |
|
Senior VP and GM |
|
| For any Lender requiring a second signature line: |
|
|
| by |
|
|
| Name: |
|
|
| Title: |
|
|
[Signature page to Second Amended and Restated Credit Agreement]
141
|
|
|
|
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SIGNATURE PAGE TO THE CBRE SERVICES, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF THE DATE FIRST ABOVE WRITTEN |
Name of Institution: Bank of America Merrill Lynch International Limited
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| To execute this Agreement as a Lender: |
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/s/ GARY SAINT |
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Gary Saint |
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Director |
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| For any Lender requiring a second signature line: |
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| by |
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| Name: |
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BANK OF AMERICA, N.A. (CANADA BRANCH), as a Multicurrency Revolving Credit Lender (for funding the Canadian Borrower and Canadian Dollars to the U.S. Borrower) |
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/s/ MEDINA SALES DE ANDRADE |
| Name: |
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Medina Sales de Andrade |
| Title: |
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Vice President |
[Signature page to Second Amended and Restated Credit Agreement]
142
EXHIBIT A
[FORM OF]
ADMINISTRATIVE
QUESTIONNAIRE
SECTION 1.01. CBRE SERVICES, INC.
TRADING COMPANY
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| Agent Information Credit-Suisse AG
Eleven Madison Avenue 23rd Floor
New York, NY 10010
Agent Wire Instructions Bank of New York
ABA XXXXXXX Account Name: XXXXXXXX
Account Number: XXXXXXX |
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Agent Closing Contact Fax:
212-322-2291 E-Mail: agency.loanops@credit-suisse.com
Attention of Sean Portrait Agency Manager |
It is very important that all of the requested information be completed accurately and that
this questionnaire be returned promptly. If your institution is sub-allocating its allocation, please fill out an administrative questionnaire for each legal entity.
Legal Name of Lender to appear in Documentation:
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| Signature Block Information: |
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Signing Credit Agreement ¨ ¨ Yes No |
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Coming in via Assignment ¨ ¨ Yes No |
(Bank, Asset Manager, Broker/Dealer, CLO/CDO; Finance Company, Hedge Fund, Insurance, Mutual Fund, Pension Fund, Other
Regulated Investment Fund, Special Purpose Vehicle, Other — please specify)
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| Lender Domestic Address |
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Lender Eurodollar Address |
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| Contacts/Notification Methods: Borrowings, Paydowns, Interest, Fees, etc. |
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Primary Credit Contact |
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Secondary Credit Contact |
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Primary Operations Contact |
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Secondary Operations Contact |
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| Lender’s Domestic Wire Instructions |
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| FFC Account Name: |
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| FFC Account No.: |
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| Attention: |
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144
Tax Documents
NON-U.S. LENDER INSTITUTIONS:
I.
Corporations:
If your institution is incorporated outside of the United States for U.S. Federal income tax purposes, and is the
beneficial owner of the interest and other income it receives, you must complete one of the following three tax forms, as applicable to your institution: a.) Form W-8BEN or W-8BEN-E (Certificate of Foreign Status of
Beneficial Owner), b.) Form W-8ECI (Income Effectively Connected to a U.S. Trade or Business), or c.) Form W-8EXP (Certificate of Foreign Government or Governmental Agency).
A U.S. taxpayer identification number is required for any institution submitting Form W-8ECI. It is also required on Form W-8BEN and W-8BEN-E for certain
institutions claiming the benefits of a tax treaty with the U.S. Please refer to the instructions when completing the form applicable to your institution. In addition, please be advised that U.S. tax regulations do not permit the acceptance of faxed
forms. An original tax form must be submitted.
II. Flow-Through Entities:
If your institution is organized outside the U.S., and is classified for U.S. Federal income tax purposes as either a Partnership, Trust, Qualified or
Non-Qualified Intermediary, or other non-U.S. flow-through entity, an original Form W-8IMY (Certificate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain U.S. Branches for United States Tax Withholding) must be
completed by the intermediary together with a withholding statement. Flow-through entities other than Qualified Intermediaries are required to include tax forms for each of the underlying beneficial owners.
Please refer to the instructions when completing this form. In addition, please be advised that U.S. tax regulations do not permit the acceptance of faxed
forms. Original tax form(s) must be submitted.
U.S. LENDER INSTITUTIONS:
If your institution is incorporated or organized within the United States, you must complete and return Form W-9
(Request for Taxpayer Identification Number and Certification). Please be advised that we request that you submit an original Form W-9.
Pursuant to the language contained in the tax section of the Second Amended and Restated Credit Agreement, the applicable tax form for
your institution must be completed and returned prior to the first payment of income. Failure to provide the proper tax form when requested may subject your institution to U.S. tax withholding.
145
EXHIBIT B
[FORM OF]
ASSIGNMENT AND
ACCEPTANCE
Reference is made to the Second Amended and Restated Credit Agreement dated as of January 9, 2015 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among CBRE Services, Inc., a Delaware corporation, CBRE Limited, a limited company organized under the laws of England and
Wales, CBRE Limited, a corporation organized under the laws of the province of New Brunswick, CBRE Pty Limited, a company organized under the laws of Australia and registered in New South Wales, CBRE Limited, a company organized under the laws of
New Zealand, CBRE Group, Inc., a Delaware corporation, the lenders from time to time party thereto (the “Lenders”) and Credit Suisse AG, as administrative agent (in such capacity, the “Administrative
Agent”) and collateral agent for the Lenders. Terms defined in the Credit Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse to the Assignor, to the Assignee, and the Assignee hereby purchases
and assumes, without recourse to the Assignor, from the Assignor, effective as of the Effective Date set forth below (but not prior to the registration of the information contained herein in the Register pursuant to Section 9.04(e) of the
Credit Agreement), the interests set forth below (the “Assigned Interest”) in the Assignor’s rights and obligations under the Credit Agreement and the other Loan Documents, including, without limitation, the amounts and
percentages set forth below of (i) the Commitments of the Assignor on the Effective Date set forth below (the “Effective Date”), (ii) the Loans owing to the Assignor which are outstanding on the Effective Date and
(iii) participations in Letters of Credit and N.Z. Swingline Loans which are outstanding on the Effective Date. Each of the Assignor and the Assignee hereby makes and agrees to be bound by all the representations, warranties and agreements set
forth in Section 9.04(c) of the Credit Agreement, a copy of which has been received by each such party. From and after the Effective Date (i) the Assignee shall be a party to and be bound by the provisions of the Credit Agreement and, to
the extent of the interests assigned by this Assignment and Acceptance, have the rights and obligations of a Lender thereunder and under the Loan Documents and (ii) the Assignor shall, to the extent of the interests assigned by this Assignment
and Acceptance, relinquish its rights and be released from its obligations under the Credit Agreement; provided that the obligations of the Assignor under Section 9.16 of the Credit Agreement shall survive the
execution of this Assignment and Acceptance and the assignment of interests effected hereby.
2. This Assignment and
Acceptance is being delivered to the Administrative Agent together with (i) if the Assignee is organized under the laws of a jurisdiction outside the United States, any forms referred to in Section 2.20(g) of the Credit Agreement, duly
completed and executed by such Assignee, (ii) if the Assignee is not already a Lender under the Credit Agreement, a completed Administrative Questionnaire in the form of Exhibit A to the Credit Agreement and (iii) if required by
Section 9.04(b) of the Credit Agreement, a processing and recordation fee of $3,500.
3. This Assignment and Acceptance shall be
governed by and construed in accordance with the laws of the State of New York.
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| Date of Assignment: |
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| Legal Name of Assignor (“Assignor”): |
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| Legal Name of Assignee (“Assignee”): |
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| Effective Date of Assignment (“Effective Date”): |
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Principal Amount
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Percentage Assigned of
Facility/Commitment1 (set forth, to at least
8 decimals, as a percentage of the Facility
and the aggregate Loans or Commitments
of all Lenders thereunder) |
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Amount of Commitments and/or Loans assigned is governed by Section 9.04(b) of the Credit Agreement. |
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| The terms set forth above are
hereby agreed to: |
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Accepted: |
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CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Administrative Agent [and Issuing Bank]2 |
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by: |
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by: |
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Name: |
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Title: |
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CBRE SERVICES, INC. |
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by: |
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[THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED, NEW ZEALAND BRANCH, as N.Z. Swingline Lender,]3 |
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by: |
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[ISSUING BANK,]4 |
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To the extent such consents are required under Section 9.04(b) of the Credit Agreement. |
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To the extent such consents are required under Section 9.04(b) of the Credit Agreement |
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To the extent such consents are required under Section 9.04(b) of the Credit Agreement |
3
EXHIBIT C
[FORM OF]
BORROWER REPURCHASE
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Second Amended and Restated Credit Agreement dated as of January 9,
2015 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among CBRE Services, Inc., a Delaware corporation (the “U.S. Borrower”), CBRE Limited, a
limited company organized under the laws of England and Wales (the “U.K. Borrower”), CBRE Limited, a corporation organized under the laws of the province of New Brunswick (the “Canadian Borrower”),
CBRE Pty Limited, a company organized under the laws of Australia and registered in New South Wales (the “Australian Borrower”), CBRE Limited, a company organized under the laws of New Zealand (the “New Zealand
Borrower” and, together with the U.S. Borrower, the U.K. Borrower, the Canadian Borrower and the Australian Borrower, the “Borrowers”), CBRE Group, Inc., a Delaware corporation
(“Holdings”), the lenders from time to time party thereto (the “Lenders”), and Credit Suisse AG, as administrative agent (in such capacity, the “Administrative Agent”) and
collateral agent for the Lenders. Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Credit Agreement and, to the extent applicable, the Auction Procedures set forth in Exhibit D thereto.
1. The Assignor hereby sells and assigns, without recourse, to the Borrower set forth below, and such Borrower
hereby purchases and assumes, without recourse, from the Assignor, effective as of the Effective Date set forth below (but not prior to the registration of the information contained herein in the Register pursuant to Section 9.04(e) of the
Credit Agreement), the interests set forth below (the “Assigned Interest”) in the Assignor’s rights and obligations under the Credit Agreement and the other Loan Documents, including, without
limitation, the amounts and percentages set forth below of the Loans owing to the Assignor which are outstanding on the Effective Date. From and after the Effective Date the Assignor shall, to the extent of the interests assigned by this Borrower
Repurchase Assignment and Acceptance, relinquish its rights and be released from its obligations under the Credit Agreement; provided that the obligations of the Assignor under Section 9.16 of the Credit
Agreement shall survive the execution of this Borrower Repurchase Assignment and Acceptance and the assignment of interests effected hereby. On the Effective Date, the Assigned Interest shall automatically be retired and not outstanding for any
purpose of the Credit Agreement or the other Loan Documents.
2. Each of the Assignor and the applicable
Borrower hereby makes and agrees to be bound by all the representations, warranties and agreements set forth in Section 9.04(c) of the Credit Agreement, a copy of which has been received by each such party. In addition, the Assignor
acknowledges that: (i) such Borrower has access to all information concerning itself, Holdings, the other Borrowers and the Subsidiaries and may possess material, non public, confidential information concerning itself, Holdings, the other
Borrowers or any of the Subsidiaries, as the case may be, and/or the Assigned Interest which may be material regarding itself, Holdings or the other Borrowers, or any of the Subsidiaries, as the case may be, their respective financial conditions,
results of operations, businesses, properties, assets, liabilities, management, projections, appraisals, plans or prospects (the “Confidential Information”), (ii) such Borrower may not have disclosed all such
Confidential Information to the Assignor, (iii) the Confidential Information may be material to a determination of a fair value for the Assigned Interest and that value may be substantially different than the agreed consideration, (iv) the
Assignor is experienced, sophisticated and knowledgeable in the trading of syndicated loans and other obligations of private and public companies and understands the disadvantage that may result from purchasing or selling the Assigned Interest
without knowledge of the Confidential Information, (v) the Assignor believes, by reason of its business or financial experience or its own independent investigation, that it is capable of evaluating the merits and risks of the assignment of the
Assigned Interest and the transactions contemplated thereby and of protecting its own interest in connection with the assignment of the Assigned
Interest and the transactions contemplated thereby, (vi) the Assignor has determined to assign its Assigned Interest notwithstanding its lack of knowledge of the Confidential Information and
(vii) the Assignor expressly irrevocably releases such Borrower from any and all liabilities arising from its inability to review the Confidential Information and agrees to make no claim against such Borrower or any of its Affiliates or their
respective officers, employees, agents and Controlling persons in respect of the assignment and assumption of the Assigned Interest and the transactions contemplated thereby based on the failure to disclose the Confidential Information. The Assignor
further acknowledges that the Confidential Information may not be available to the Administrative Agent or the other Lenders.
3. This
Borrower Repurchase Assignment and Acceptance shall be governed by and construed in accordance with the laws of the State of New York.
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Date of Assignment:
Legal Name of Assignor (“Assignor”):
Effective Date of Assignment (“Effective Date”):1
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Principal Amount
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Percentage Assigned of Facility1
(set forth, to at least 8 decimals, as
a
percentage of the Facility and the
aggregate Loans of all Lenders
thereunder) |
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To be inserted by the Administrative Agent and which shall be the effective date of recordation of the transfer in the Register therefor. |
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If Term Loans assigned hereby are assigned pursuant to an Auction, amount to be inserted by the Manager as part of the acceptance procedures upon the completion of a successful Auction. If Term Loans are assigned hereby
pursuant to a purchase in the open market, amount to be inserted by the parties hereto, with the amount of Loans assigned hereby being subject to Section 9.04(b) of the Credit Agreement. |
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| [BORROWER], as Assignee |
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4
EXHIBIT D
AUCTION PROCEDURES
Summary. Each Borrower may conduct one or more Auctions in order to purchase, for cash or shares of Common Stock (the
“Auction Consideration”), at such Borrower’s option, Tranche A Loans and/or Other Term Loans (each, an “Applicable Loan”) at any time on or after the Second Restatement Date pursuant to the
procedures described in this Exhibit D. Each Applicable Loan purchased by a Borrower shall automatically be retired and not outstanding for any purpose of the Credit Agreement or the other Loan Documents (each term as defined below). The
aggregate amount of any cash used to purchase Purchased Loans by a Borrower shall not exceed the amount of Restricted Payments then available under Section 6.05(b) of the Second Amended and Restated Credit Agreement dated as of January 9,
2015 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among CBRE Services, Inc., a Delaware corporation, CBRE Limited, a limited company organized under the laws of England
and Wales, CBRE Limited, a corporation organized under the laws of the province of New Brunswick, CBRE Pty Limited, a company organized under the laws of Australia and registered in New South Wales, CBRE Limited, a company organized under the laws
of New Zealand, CBRE Group, Inc., a Delaware corporation, the lenders from time to time party thereto (the “Lenders”), and Credit Suisse AG, as Administrative Agent and Collateral Agent for the Lenders. Capitalized terms used
but not defined herein shall have the meanings assigned to them in the Credit Agreement.
Notice Procedures. In
connection with an Auction, a Borrower will engage a dealer manager (the “Manager”) and will provide notification to such Manager and the Administrative Agent, for distribution to the Lenders, of the Class or Classes of
Applicable Loans that will be the subject of the Auction (an “Auction Notice”, substantially in the form attached hereto as Annex A with such changes therein as such Borrower, the Manager and the Administrative Agent may
agree). With respect to any Auction Notice, a Borrower may elect in its sole discretion either to limit such Auction Notice to any one of the Classes of Term Loans as it may elect or to include any combination of Classes in such Auction Notice. Each
Auction Notice shall contain, for each Class included in such Auction Notice, (i) an aggregate bid amount, which may be expressed at the election of such Borrower as either the total par principal amount of Term Loans offered to be purchased or
the total cash amount offered to be paid pursuant to the Auction (each, an “Auction Amount”), (ii) the discount to par, which shall be a range to be specified by such Borrower (the “Discount
Range”), representing percentages of par of the principal amount of the Applicable Loans at issue expressed as a price per $1,000 that represents the range of purchase prices that could be paid in the Auction and (iii) whether the
Auction Consideration will be cash or shares of Common Stock or, if both, the amount of each; provided that the par principal amount of the Applicable Loans offered to be purchased in each Auction shall be in a minimum aggregate amount of
$10,000,000 in each case, or such lesser amount for which funds are then available under Section 6.05(b) of the Credit Agreement, and with minimum increments of $100,000 (it being understood that the par principal amount of Applicable Loans
actually purchased may be less than such minimum amounts in the event that the aggregate par principal amount of Applicable Loans actually offered by Lenders in such Auction is less than the applicable minimum amounts). For purposes of the
foregoing, different Discount Ranges and Auction Amounts may apply to different Classes of Applicable Loans.
Reply
Procedures. In connection with any Auction, each Lender holding Applicable Loans subject to such Auction may provide the Manager with a notice of participation (the “Return Bid”, substantially in the form attached hereto
as Annex B with such changes therein as the Borrower, the Manager and the Administrative Agent may agree) which shall specify (i) a discount to par that must be expressed as a price per $1,000 (the “Reply Price”),
which must be
within the applicable Discount Range and (ii) a principal amount of Applicable Loans (specifying the identity of each) which must be in increments of $100,000 (subject to rounding
requirements specified by the Manager and the Administrative Agent) (the “Reply Amount”). The foregoing minimum increment amount condition shall not apply if a Lender submits a Reply Amount equal to such Lender’s entire
remaining amount of the Applicable Loans. Lenders may only submit one Return Bid with respect to each Class per Auction (unless the Borrower and the Manager elect to permit multiple bids, in which case the Borrower and the Manager may agree to
establish procedures under which each Return Bid may contain up to three bids with respect to each Class, only one of which can result in a Qualifying Bid (as defined below) with respect to such Class). Lenders may not submit a Reply Amount in
excess of the aggregate principal amount of Applicable Loans of such Lender. In addition to the Return Bid, the participating Lender must execute and deliver, to be held in escrow by the Manager, the Auction Form of Assignment and Acceptance. Upon
consummation of an Auction, the Manager will complete the Auction Form of Assignment and Acceptance of each Lender whose Applicable Loan will be purchased in such Auction and deliver the same to the Administrative Agent for execution by the Borrower
and recordation in the Register by the Administrative Agent.
Acceptance Procedures. If more than one Class is
included in an Auction, the following procedures will apply separately for each such Class. Based on the Reply Prices and Reply Amounts received by the Manager , the Manager, in consultation with the Borrower, will determine the applicable
discounted price (the “Applicable Discounted Price”) for the Auction, which will be the lower of (i) the lowest Reply Price for which the Borrower can complete the Auction at the Auction Amount that is within the
Discount Range specified by the Borrower and (ii) in the event that the aggregate amount of the Reply Amounts relating to such Auction Notice are insufficient to allow the Borrower to complete a purchase of the entire Auction Amount, the
highest Reply Price that is within the Discount Range so that the Borrower can complete the Auction at such aggregate amount of Reply Amounts. The Borrower shall purchase the Applicable Loans (or the respective portions thereof) from each Lender
with a Reply Price that is equal to or less than the Applicable Discounted Price (“Qualifying Bids”) at the Applicable Discounted Price; provided that if the aggregate amount required to purchase Qualifying Bids (or,
in the case of an Auction Amount expressed as a total par principal amount, if the aggregate par principal amounts of the Qualifying Bids) would exceed the Auction Amount for such Auction, the Borrower shall purchase such Qualifying Bids at the
Applicable Discounted Price ratably based on the respective principal amounts of such Qualifying Bids (subject to rounding requirements specified by the Manager and the Administrative Agent). In any Auction for which the Borrower and the Manager
have elected to permit multiple bids, if a Lender has submitted a Return Bid containing multiple bids at different Reply Prices, only the bid with the highest Reply Price that is equal to or less than the Applicable Discounted Price will be deemed
the Qualifying Bid of such Lender. Each participating Lender will receive notice of a Qualifying Bid as soon as reasonably practicable but in no case later than five Business Days from the date the Return Bid was due.
Additional Procedures. No Borrower is required to undertake any Auction, but once initiated by an Auction Notice, a Borrower may not
withdraw an Auction. Furthermore, in connection with any Auction, upon submission by a Lender of a Return Bid, such Lender will be obligated to sell the entirety or its pro rata portion of the Reply Amount at the Applicable Discounted Price. The
Borrower will not have any obligation to purchase any Applicable Loans outside of the applicable Discount Range nor will any Return Bids outside such applicable Discount Range be considered in any calculation of the Applicable Discounted Price or
satisfaction of the Auction Amount. Each purchase of Applicable Loans in an Auction shall be consummated pursuant to procedures (including as to response deadlines, rounding amounts, type
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and Interest Period of accepted Applicable Loans, settlement procedures (including, to the extent Common Stock is used as Auction Consideration, the calculation of the number of shares of Common
Stock to be received by Lenders with a Qualifying Bid) and calculation of Applicable Discounted Price referred to above) established jointly by the Manager, the Administrative Agent and the Borrower. To the extent that no Lenders have validly
tendered any Applicable Loans of a Class requested in an Auction Notice, the Borrower may amend such Auction Notice for such Applicable Loans at least 24 hours before the then-scheduled expiration time for such Auction. In addition, the Borrower may
extend the expiration time of an Auction at least 24 hours before such expiration time. The provisions of this Exhibit D shall not limit or restrict the Borrowers from making voluntary prepayments of any Applicable Loans in accordance with the
provisions of the Credit Agreement.
3
Annex A
FORM OF
AUCTION NOTICE
[Borrower Letterhead]
[Manager]
[Address]
Attention:
[ ]
Credit Suisse AG, as Administrative Agent
Eleven Madison Avenue
New York, New York 10010
Attention: [ ]
Re: Auction
Ladies and Gentlemen:
Reference is made to the Second Amended and Restated Credit Agreement dated as of January 9, 2015 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among CBRE Services, Inc., a Delaware corporation, CBRE Limited, a limited company organized under the laws of England and Wales, CBRE Limited, a
corporation organized under the laws of the province of New Brunswick, CBRE Pty Limited, a company organized under the laws of Australia and registered in New South Wales, CBRE Limited, a company organized under the laws of New Zealand, CBRE Group,
Inc., a Delaware corporation, the lenders from time to time party thereto (the “Lenders”), and Credit Suisse AG, as Administrative Agent and Collateral Agent for the Lenders. Capitalized terms used but not otherwise defined
herein shall have the meanings set forth in the Credit Agreement and the Auction Procedures set forth as Exhibit D thereto.
The undersigned Borrower hereby gives notice to the holders of the [Tranche A] [Other Term] Loans that it desires to conduct the
following Auction:
| |
• |
|
Auction Amount: $[ ] [Tranche A] [Other Term] Loans, representing [the total par principal amount of such Term Loans offered to be
purchased] [the total cash amount offered to be paid pursuant to the Auction] |
| |
• |
|
Discount Range: Not less than $[ ] nor greater than $[ ] per
$1,000 principal amount of [Tranche A] [Other Term] Loans |
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• |
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Auction Consideration: [$[ ] in cash] [$[ in shares of Common
Stock] |
The undersigned Borrower acknowledges that this Auction Notice may not be withdrawn. The Auction shall be consummated in accordance
with the Auction Procedures with each Return Bid due by [ ].
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| Very truly yours, |
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| [BORROWER] |
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| By: |
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Name: |
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Title: |
2
Annex B
FORM OF RETURN BID
[Lender
Letterhead]
[Manager]
[Address]
Attention: [ ]
Re: Auction
Ladies and Gentlemen:
Reference is made to the Second Amended and Restated Credit Agreement, dated as of January 9, 2015 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among CBRE Services, Inc., a Delaware corporation, CBRE Limited, a limited company organized under the laws of England and Wales, CBRE Limited, a
corporation organized under the laws of the province of New Brunswick, CBRE Pty Limited, a company organized under the laws of Australia and registered in New South Wales, CBRE Limited, a company organized under the laws of New Zealand, CBRE Group,
Inc., a Delaware corporation, the lenders from time to time party thereto (the “Lenders”), and Credit Suisse AG, as Administrative Agent and Collateral Agent for the Lenders. Capitalized terms used but not otherwise defined
herein shall have the meanings set forth in the Credit Agreement and the Auction Procedures set forth as Exhibit D thereto.
The undersigned Lender hereby gives notice of its participation in the Auction by submitting the following Return Bid:1
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| Applicable Loan |
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Reply Price
(price per $1,000) |
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Reply Amount |
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| Tranche A Loans |
|
$ |
[ |
] |
|
$ |
[ |
] |
| Other Term Loans |
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$ |
[ |
] |
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$ |
[ |
] |
The undersigned Lender acknowledges that the submission of this Return Bid along with an executed Auction
Assignment and Acceptance, to be held in escrow by the Manager until released in accordance with the Auction Procedures, obligates the Lender to sell the entirety or its pro rata portion of the Reply Amount at the Applicable Discounted Price, and
that this Return Bid may not be withdrawn.
| 1 |
To be revised as appropriate to accommodate more than one bid if elected by the Borrower and the Manager in accordance with the Auction Procedures. |
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| Very truly yours, |
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| [LENDER] |
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| By: |
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Name: |
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Title: |
2
EXHIBIT E
[FORM OF]
BORROWING REQUEST
Credit Suisse AG, as Administrative Agent
Eleven Madison Avenue
New York, New York 10010
ATTN: Agency Group
[DATE]1
Ladies and Gentlemen:
Reference
is made to the Second Amended and Restated Credit Agreement dated as of January 9, 2015 (as amended, restated, supplemented and/or otherwise modified from time to time, the “Credit Agreement”), among CBRE Services, Inc.,
a Delaware corporation (the “U.S. Borrower”), CBRE Limited, a limited company organized under the laws of England and Wales (the “U.K. Borrower”), CBRE Limited, a corporation organized under the laws
of the province of New Brunswick (the “Canadian Borrower”), CBRE Pty Limited, a company organized under the laws of Australia and registered in New South Wales (the “Australian Borrower”), CBRE
Limited, a company organized under the laws of New Zealand (the “New Zealand Borrower”), CBRE Group, Inc., a Delaware corporation, the lenders from time to time party thereto (the “Lenders”) and
Credit Suisse AG, as administrative agent (in such capacity, the “Administrative Agent”) and as collateral agent for the Lenders. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned
to such terms in the Credit Agreement.
[DEFINED NAME OF BORROWER] hereby gives you notice pursuant to Section 2.03 of
the Credit Agreement that it requests a Borrowing under the Credit Agreement, and in that connection sets forth below the terms on which such Borrowing is requested to be made:
(A) Type of Borrowing:2
(B) Currency of Borrowing:3
(C) Class of Borrowing:4
| 1 |
Signed Borrowing Request must be delivered irrevocably by hand or fax (a) in the case of a Fixed Rate Borrowing, not later than 1:00 p.m., Local Time, three Business Days before a proposed Borrowing, and
(b) in the case of a Daily Rate Borrowing, not later than 12:00 noon, Local Time, on the Business Day of a proposed Borrowing. |
| 2 |
Specify Fixed Rate Borrowing or Daily Rate Borrowing. |
| 3 |
Specify dollars, Pounds, Euro, Australian Dollars, Canadian Dollars, or New Zealand Dollars. |
| 4 |
Specify Domestic Revolving Credit Borrowing, Multicurrency Revolving Credit Borrowing, U.K. Revolving Credit Borrowing or N.Z. Swingline Borrowing. |
(D) Date of
Borrowing:5
(E) Account Number and
Location:6
(F) Principal Amount of
Borrowing:
[(G) Interest Period:
]7
[DEFINED NAME OF BORROWER] hereby represents and warrants to the Administrative Agent and the Lenders that, on the date of this Borrowing
Request and on the date of the related Borrowing, the conditions to lending specified in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement have been satisfied.
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| [NAME OF BORROWER], |
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| by |
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Name: |
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Title: |
| 5 |
Date of Borrowing must be a Business Day. |
| 6 |
Such account shall comply with Section 2.02(c). |
| 7 |
If such Borrowing is to be a Fixed Rate Borrowing, the Interest Period or Contract Period with respect thereto. |
2
EXHIBIT F-1
[FORM OF]
BORROWING SUBSIDIARY
AGREEMENT
BORROWING SUBSIDIARY AGREEMENT dated as of
[ ], 201[ ] (this “Agreement”), among CBRE SERVICES, INC., a Delaware Corporation (the “U.S. Borrower”),
CBRE GROUP, INC., a Delaware corporation (“Holdings”), [NAME OF BORROWING SUBSIDIARY], a [ ] corporation (the “New Borrowing Subsidiary”), and CREDIT SUISSE AG, as administrative
agent (the “Administrative Agent”).
Reference is hereby made to the Second Amended and Restated
Credit Agreement dated as of January 9, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the U.S. Borrower, CBRE Limited, a limited company organized under
the laws of England and Wales, CBRE Limited, a corporation organized under the laws of the province of New Brunswick, CBRE Pty Limited, a company organized under the laws of Australia and registered in New South Wales, CBRE Limited, a company
organized under the laws of New Zealand, Holdings, the lenders from time to time party thereto (the “Lenders”) and Credit Suisse AG, as Administrative Agent and collateral agent for the Lenders. Capitalized terms used herein
but not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.
Pursuant to
Section 9.18 under the Credit Agreement, the Lenders have agreed, upon the terms and subject to the conditions therein set forth, to make Revolving Loans to any wholly owned Subsidiary that the U.S. Borrower shall designate as a Borrower under
any of the Revolving Credit Commitments, and the U.S. Borrower and the New Borrowing Subsidiary desire that the New Borrowing Subsidiary become a Borrower under the [Domestic Revolving Credit Commitments] [Multicurrency Revolving Credit Commitments]
[U.K. Revolving Credit Commitments]. The U.S. Borrower represents and warrants that the New Borrowing Subsidiary is a wholly owned Subsidiary. Each of the U.S. Borrower and the New Borrowing Subsidiary represent and warrant that the representations
and warranties of the U.S. Borrower in the Credit Agreement relating to the New Borrowing Subsidiary and this Agreement are true and correct on and as of the date hereof. The U.S. Borrower agrees that the Guarantee of the U.S. Borrower contained in
the Collateral Agreement will apply to the Obligations of the New Borrowing Subsidiary. Upon execution of this Agreement by each of the U.S. Borrower, Holdings, the New Borrowing Subsidiary and the Administrative Agent, the New Borrowing Subsidiary
shall be a party to the Credit Agreement and shall constitute a “Borrower” for all purposes thereof, and the New Borrowing Subsidiary hereby agrees to be bound by all provisions of the Credit Agreement.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
authorized officers as of the date first appearing above.
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| CBRE GROUP, INC., |
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| by |
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Name: |
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Title: |
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| CBRE SERVICES, INC., |
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| by |
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Name: |
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Title: |
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| [NAME OF NEW BORROWING SUBSIDIARY], |
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| by |
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Name: |
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Title: |
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| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Administrative Agent, |
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| by |
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Name: |
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Title: |
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| by |
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Name: |
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Title: |
2
EXHIBIT F-2
[FORM OF]
BORROWING SUBSIDIARY
TERMINATION
[DATE]
Credit Suisse AG, as Administrative
Agent
Eleven Madison Avenue
New York, New York 10010
ATTN: Agency Group
Ladies and Gentlemen:
Reference is made to the Second Amended and Restated Credit Agreement dated as of January 9, 2015 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among CBRE Services, Inc., a Delaware corporation (the “U.S. Borrower”), CBRE Limited, a limited company organized under
the laws of England and Wales, CBRE Limited, a corporation organized under the laws of the province of New Brunswick, CBRE Pty Limited, a company organized under the laws of Australia and registered in New South Wales, CBRE Limited, a company
organized under the laws of New Zealand, CBRE Group, Inc., a Delaware corporation, the lenders from time to time party thereto (the “Lenders”) and Credit Suisse AG, as administrative agent (in such capacity, the
“Administrative Agent”) and collateral agent (in such capacity, the “Collateral Agent”) for the Lenders. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to such
terms in the Credit Agreement.
Pursuant Section 9.18 under the Credit Agreement, the U.S. Borrower
hereby terminates the status of [NAME OF TERMINATED BORROWING SUBSIDIARY] (the “Terminated Borrowing Subsidiary”) as a Borrower. The U.S. Borrower and Holdings represent and warrant that (a) no Loans made to the
Terminated Borrowing Subsidiary are outstanding as of the date hereof, (b) no Letters of Credit issued for the account of the Terminated Borrowing Subsidiary are outstanding as of the date hereof and (c) all amounts payable by the
Terminated Borrowing Subsidiary in respect of interest and/or Fees (and, to the extent notified by the Administrative Agent or any Lender, any other amounts payable under the Credit Agreement) pursuant to the Credit Agreement have been paid in full
on or prior to the date hereof.
This instrument shall be construed in accordance with and governed by the laws of the State of
New York.
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| CBRE SERVICES, INC.,
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| by |
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Name: |
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Title: |
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| [NAME OF TERMINATED BORROWING SUBSIDIARY], |
| by |
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Name: |
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Title: |
2
EXHIBIT G
GUARANTEE AND PLEDGE AGREEMENT
(filed as Exhibit 10.2 to this Form 8-K)
EXHIBIT H-1
[FORM OF]
FIRST LIEN
INTERCREDITOR AGREEMENT
Among
CBRE SERVICES, INC.,
CBRE GROUP,
INC.,
the other Grantors party hereto,
CREDIT SUISSE AG,
as Collateral
Agent for the First Lien Secured Parties and
as Authorized Representative for the Credit Agreement Secured Parties
[ ]
as the Initial Additional Authorized Representative
and
each additional Authorized
Representative from time to time party hereto
dated as of [ ], 20[ ]
FIRST LIEN INTERCREDITOR AGREEMENT dated as of
[ ], 20[ ] (as amended, supplemented or otherwise modified from time to time, this “Agreement”), among CBRE SERVICES, INC., a
Delaware corporation (the “U.S. Borrower”), CBRE GROUP, INC., a Delaware corporation (“Holdings”), the other Grantors (as defined herein) party hereto, CREDIT SUISSE AG, as collateral agent for the
First Lien Secured Parties (as defined herein) (in such capacity, the “Collateral Agent”) and as Authorized Representative for the Credit Agreement Secured Parties (in such capacity, the “Administrative
Agent”), [INSERT NAME AND CAPACITY], as Authorized Representative for the Initial Additional First Lien Secured Parties (in such capacity and together with its successors in such capacity, the “Initial Additional Authorized
Representative”) and each additional Authorized Representative from time to time party hereto for the Additional First Lien Secured Parties of the Series with respect to which it is acting in such capacity.
In consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Collateral Agent, the Administrative Agent (for itself and on behalf of the Credit Agreement Secured Parties), the Initial Additional Authorized Representative (for itself and on behalf of the Initial Additional First Lien
Secured Parties) and each additional Authorized Representative (for itself and on behalf of the Additional First Lien Secured Parties of the applicable Series) agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Certain Defined Terms. Capitalized terms used but not otherwise defined herein have the meanings set
forth in the Credit Agreement or, if defined in the New York UCC, the meanings specified therein. As used in this Agreement, the following terms have the meanings specified below:
“Additional First Lien Documents” shall mean, with respect to any Series of First Lien Obligations, the loan
agreements, notes, indentures, security documents and other operative agreements evidencing or governing such Indebtedness, including the Initial Additional First Lien Agreement and each other agreement entered into for the purpose of securing any
Series of Additional First Lien Obligations.
“Additional First Lien Obligations” shall mean, with respect to any
Series of Additional First Lien Obligations, (a) all principal of, and interest (including, without limitation, any interest which accrues after the commencement of any Bankruptcy Case, whether or not allowed or allowable as a claim in any such
proceeding) payable with respect to, such Additional First Lien Obligations, (b) all other amounts payable to the related Additional First Lien Secured Parties under the related Additional First Lien Documents and (c) any renewals of
extensions of the foregoing.
“Additional First Lien Secured Party” shall mean the holders of any Additional First
Lien Obligations and any Authorized Representative with respect thereto and shall include the Initial Additional First Lien Secured Parties.
“Administrative Agent” shall have the meaning assigned to such term in
the introductory paragraph of this Agreement.
“Agreement” shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
“Applicable Authorized Representative” shall mean, with respect to any
Shared Collateral, (i) until the earlier of (x) the Discharge of Credit Agreement Obligations and (y) the Non-Controlling Authorized Representative Enforcement Date, the Administrative Agent and (ii) from and after the earlier of
(x) the Discharge of Credit Agreement Obligations and (y) the Non-Controlling Authorized Representative Enforcement Date, the Major Non-Controlling Authorized Representative.
“Authorized Representative” shall mean (i) in the case of any Credit Agreement Obligations or the Credit
Agreement Secured Parties, the Administrative Agent, (ii) in the case of the Initial Additional First Lien Obligations or the Initial Additional First Lien Secured Parties, the Initial Additional Authorized Representative and (iii) in the
case of any Series of Additional First Lien Obligations or Additional First Lien Secured Parties that become subject to this Agreement after the date hereof, the Authorized Representative named for such Series in the applicable Joinder Agreement.
“Bankruptcy Case” shall have the meaning assigned to such term in Section 2.05(b).
“Bankruptcy Code” shall mean Title 11 of the United States Code, as amended.
“Bankruptcy Law” shall mean the Bankruptcy Code and any similar Federal, state or foreign law for the relief of
debtors.
“Borrowers” shall have the meaning assigned to such term in the Credit Agreement.
“Collateral” shall mean all assets and properties subject to Liens created pursuant to any First Lien Security
Document to secure one or more Series of First Lien Obligations.
“Collateral Agent” shall have the meaning
assigned to such term in the introductory paragraph hereof.
“Controlling Secured Parties” shall mean, with
respect to any Shared Collateral, the Series of First Lien Secured Parties whose Authorized Representative is the Applicable Authorized Representative for such Shared Collateral.
“Credit Agreement” shall mean that certain Second Amended and Restated Credit Agreement dated as of January 9,
2015 (as amended, restated, supplemented or otherwise modified, refinanced or replaced from time to time), among the U.S. Borrower, Holdings, certain subsidiaries of Holdings, the lenders from time to time party thereto, the issuing banks from time
to time party thereto and Credit Suisse AG, as administrative agent and collateral agent.
“Credit Agreement
Obligations” shall mean the “Obligations” as defined in the Guarantee and Pledge Agreement.
2
“Credit Agreement Secured Parties” shall mean the “Secured
Parties” as defined in the Guarantee and Pledge Agreement.
“DIP Financing” shall have the meaning assigned
to such term in Section 2.05(b).
“DIP Financing Liens” shall have the meaning assigned to such term in
Section 2.05(b).
“DIP Lenders” shall have the meaning assigned to such term in Section 2.05(b).
“Discharge” shall mean, with respect to any Shared Collateral and any Series of First Lien Obligations, the date on
which such Series of First Lien Obligations is no longer secured by such Shared Collateral. The term “Discharged” shall have a corresponding meaning.
“Discharge of Credit Agreement Obligations” shall mean, with respect to any Shared Collateral, the Discharge of the
Credit Agreement Obligations with respect to such Shared Collateral; provided that the Discharge of Credit Agreement Obligations shall not be deemed to have occurred in connection with a Refinancing of such Credit Agreement Obligations with
additional First Lien Obligations secured by such Shared Collateral under an Additional First Lien Document which has been designated in writing by the Administrative Agent (under the Credit Agreement so Refinanced) to the Collateral Agent and each
other Authorized Representative as the “Credit Agreement” for purposes of this Agreement.
“Event of
Default” shall mean an “Event of Default” as defined in any Secured Credit Document.
“First Lien
Obligations” shall mean, collectively, (i) the Credit Agreement Obligations and (ii) each Series of Additional First Lien Obligations.
“First Lien Secured Parties” shall mean (a) the Credit Agreement Secured Parties and (ii) the Additional
First Lien Secured Parties with respect to each Series of Additional First Lien Obligations.
“First Lien Security
Documents” shall mean the Guarantee and Pledge Agreement and each other agreement entered into in favor of the Collateral Agent for the purpose of securing any Series of First Lien Obligations and, if executed and delivered, the Second
Lien Intercreditor Agreement.
“Grantors” shall mean Holdings, the U.S. Borrower and each other Subsidiary which
has granted a security interest pursuant to any First Lien Security Document to secure any Series of First Lien Obligations. The Grantors existing on the date hereof are set forth in Annex I hereto.
“Guarantee and Pledge Agreement” shall mean that certain Amended and Restated Guarantee and Pledge Agreement dated as
of January 9, 2015 (as amended, restated, supplemented or modified from time to time), among the U.S. Borrower, Holdings, the subsidiaries of Holdings from time to time party thereto and Credit Suisse AG, as collateral agent.
“Impairment” shall have the meaning assigned to such term in Section 1.03.
3
“Initial Additional Authorized Representative” shall have the meaning
assigned to such term in the introductory paragraph to this Agreement.
“Initial Additional First Lien Documents”
shall mean that certain [ ] dated as of [ ], 20[ ], among the
[ ] and any notes, security documents and other operative agreements evidencing or governing such Indebtedness, including any agreement entered into for the purpose of securing
the Initial Additional First Lien Obligations.
“Initial Additional First Lien Obligations” shall mean the
Additional First Lien Obligations pursuant to the Initial Additional First Lien Documents.
“Initial Additional First Lien
Secured Parties” shall mean the holders of any Initial Additional First Lien Obligations and the Initial Additional Authorized Representative.
“Insolvency or Liquidation Proceeding” shall mean:
(1) any case commenced by or against Holdings or any Borrower or other Grantor under any Bankruptcy Law, any other proceeding
for the reorganization, recapitalization or adjustment or marshalling of the assets or liabilities of Holdings or any Borrower or other Grantor, any receivership or assignment for the benefit of creditors relating to Holdings or any Borrower or
other Grantor or any similar case or proceeding relative to Holdings or any Borrower or other Grantor or its creditors, as such, in each case whether or not voluntary;
(2) any liquidation, dissolution, marshalling of assets or liabilities or other winding up of or relating to Holdings or any
Borrower or other Grantor, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency; or
(3) any other proceeding of any type or nature in which substantially all claims of creditors of Holdings or any Borrower or
other Grantor are determined and any payment or distribution is or may be made on account of such claims.
“Intervening
Creditor” shall have the meaning assigned to such term in Section 2.01(a).
“Joinder Agreement”
shall mean a supplement to this Agreement in the form of Annex III hereof required to be delivered by an Authorized Representative to the Collateral Agent pursuant to Section 5.14 hereof in order to establish an additional Series of
Additional First Lien Obligations and become Additional First Lien Secured Parties hereunder.
“Lien” shall mean,
with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest in or on such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or
title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.
“Major Non-Controlling Authorized Representative” shall mean, with respect to any Shared Collateral, the Authorized
Representative of the Series of Additional First Lien Obligations that constitutes the largest outstanding principal amount of any then outstanding Series of First Lien Obligations with respect to such Shared Collateral.
4
“New York UCC” shall mean the Uniform Commercial Code as from time to
time in effect in the State of New York.
“Non-Controlling Authorized Representative” shall mean, at any time with
respect to any Shared Collateral, any Authorized Representative that is not the Applicable Authorized Representative at such time with respect to such Shared Collateral.
“Non-Controlling Authorized Representative Enforcement Date” shall mean, with respect to any Non-Controlling
Authorized Representative, the date which is 90 days (throughout which 90 day period such Non-Controlling Authorized Representative was the Major Non-Controlling Authorized Representative) after the occurrence of both (i) an Event of
Default (under and as defined in the Additional First Lien Document under which such Non-Controlling Authorized Representative is the Authorized Representative) and (ii) the Collateral Agent’s and each other Authorized
Representative’s receipt of written notice from such Non-Controlling Authorized Representative certifying that (x) such Non-Controlling Authorized Representative is the Major Non-Controlling Authorized Representative and that an Event of
Default (under and as defined in the Additional First Lien Document under which such Non-Controlling Authorized Representative is the Authorized Representative) has occurred and is continuing and (y) the First Lien Obligations of the Series
with respect to which such Non-Controlling Authorized Representative is the Authorized Representative are currently due and payable in full (whether as a result of acceleration thereof or otherwise) in accordance with the terms of the applicable
Additional First Lien Document; provided that the Non-Controlling Authorized Representative Enforcement Date shall be stayed and shall not occur and shall be deemed not to have occurred with respect to any Shared Collateral (1) at any
time the Administrative Agent or the Collateral Agent has commenced and is diligently pursuing any enforcement action with respect to such Shared Collateral or (2) at any time the Grantor which has granted a security interest in such Shared
Collateral is then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding.
“Non-Controlling Secured Parties” shall mean, with respect to any Shared Collateral, the First Lien Secured Parties
which are not Controlling Secured Parties with respect to such Shared Collateral.
“Possessory Collateral” shall
mean any Shared Collateral in the possession of the Collateral Agent (or its agents or bailees), to the extent that possession thereof perfects a Lien thereon under the Uniform Commercial Code of any jurisdiction. Possessory Collateral includes any
Certificated Securities delivered to or in the possession of the Collateral Agent under the terms of the First Lien Security Documents.
“Proceeds” shall have the meaning assigned to such term in Section 2.01 hereof.
“Refinance” shall mean, in respect of any indebtedness, to refinance, extend, renew, defease, amend, increase, modify,
supplement, restructure, refund, replace or repay, or to issue other indebtedness or enter alternative financing arrangements, in exchange or replacement for such indebtedness (in whole or in part), including by adding or replacing lenders,
creditors, agents, borrowers and/or guarantors, and including in each case, but not limited to, after the original instrument giving rise to such indebtedness has been terminated and including, in each case, through any credit agreement, indenture
or other agreement. “Refinanced” and “Refinancing” have correlative meanings.
5
“Second Lien Intercreditor Agreement” shall mean the Second Lien
Intercreditor Agreement substantially in the form of Exhibit H-2 to the Credit Agreement (as amended, restated, supplemented or otherwise modified or replaced from time to time), among the U.S. Borrower, Holdings, the Subsidiaries party thereto,
Credit Suisse AG, as collateral agent for the First Lien Secured Parties and representative for the Credit Agreement Secured Parties, the Initial Second Priority Representative (as defined therein) and each additional Representative (as defined
therein) from time to time party thereto.
“Secured Credit Documents” shall mean (i) the Credit Agreement and
each other Loan Document, (ii) each Initial Additional First Lien Document and (iii) each Additional First Lien Document.
“Senior Class Debt” shall have the meaning assigned to such term in Section 5.14.
“Senior Class Debt Parties” shall have the meaning assigned to such term in Section 5.14.
“Senior Class Debt Representative” shall have the meaning assigned to such term in Section 5.14.
“Senior Lien” shall mean the Liens on the Collateral in favor of the First Lien Secured Parties under the First Lien
Security Documents.
“Series” shall mean (a) with respect to the First Lien Secured Parties, each of
(i) the Credit Agreement Secured Parties (in their capacities as such), (ii) the Initial Additional First Lien Secured Parties (in their capacity as such) and (iii) the Additional First Lien Secured Parties that become subject to this
Agreement after the date hereof that are represented by a common Authorized Representative (in its capacity as such for such Additional First Lien Secured Parties) and (b) with respect to any First Lien Obligations, each of (i) the Credit
Agreement Obligations, (ii) the Initial Additional First Lien Obligations and (iii) the Additional First Lien Obligations incurred pursuant to any Additional First Lien Document, which pursuant to any Joinder Agreement, are to be
represented hereunder by a common Authorized Representative (in its capacity as such for such Additional First Lien Obligations).
“Shared Collateral” shall mean, at any time, Collateral in which the holders of two or more Series of First Lien
Obligations (or their respective Authorized Representatives) hold a valid and perfected security interest at such time. If more than two Series of First Lien Obligations are outstanding at any time and the holders of less than all Series of First
Lien Obligations hold a valid and perfected security interest in any Collateral at such time, then such Collateral shall constitute Shared Collateral for those Series of First Lien Obligations that hold a valid security interest in such Collateral
at such time and shall not constitute Shared Collateral for any Series which does not have a valid and perfected security interest in such Collateral at such time.
“Subsidiary” shall have the meaning assigned to such term in the Credit Agreement.
SECTION 1.02. Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words
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“include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to
have the same meaning and effect as the word “shall”. Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument, other document, statute or regulation herein shall be construed as referring
to such agreement, instrument, other document, statute or regulation as from time to time amended, supplemented or otherwise modified, (ii) any reference herein to any person shall be construed to include such person’s successors and
assigns, but shall not be deemed to include the subsidiaries of such person unless express reference is made to such subsidiaries, (iii) the words “herein”, “hereof and “hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular provision hereof, (iv) all references herein to Articles, Sections and Annexes shall be construed to refer to Articles, Sections and Annexes of this Agreement,
(v) unless otherwise expressly qualified herein, the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights and (vi) the term “or” is not exclusive.
SECTION 1.03.
Impairments. It is the intention of the First Lien Secured Parties of each Series that the holders of First Lien Obligations of such Series (and not the First Lien Secured Parties of any other Series) bear the risk of (i) any
determination by a court of competent jurisdiction that (x) any of the First Lien Obligations of such Series are unenforceable under applicable law or are subordinated to any other obligations (other than another Series of First Lien
Obligations), (y) any of the First Lien Obligations of such Series do not have an enforceable security interest in any of the Collateral securing any other Series of First Lien Obligations and/or (z) any intervening security interest
exists securing any other obligations (other than another Series of First Lien Obligations) on a basis ranking prior to the security interest of such Series of First Lien Obligations but junior to the security interest of any other Series of First
Lien Obligations or (ii) the existence of any Collateral for any other Series of First Lien Obligations that is not Shared Collateral (any such condition referred to in the foregoing clauses (i) or (ii) with respect to any Series of
First Lien Obligations, an “Impairment” of such Series). In the event of any Impairment with respect to any Series of First Lien Obligations, the results of such Impairment shall be borne solely by the holders of such Series
of First Lien Obligations, and the rights of the holders of such Series of First Lien Obligations (including, without limitation, the right to receive distributions in respect of such Series of First Lien Obligations pursuant to Section 2.01)
set forth herein shall be modified to the extent necessary so that the effects of such Impairment are borne solely by the holders of the Series of such First Lien Obligations subject to such Impairment. Additionally, in the event the First Lien
Obligations of any Series are modified pursuant to applicable law (including, without limitation, pursuant to Section 1129 of the Bankruptcy Code), any reference to such First Lien Obligations or the First Lien Documents governing such First
Lien Obligations shall refer to such obligations or such documents as so modified.
ARTICLE II
Priorities and Agreements with Respect to Shared Collateral
SECTION 2.01. Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary
notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Collateral Agent or any First Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any
distribution is made in respect of any Shared Collateral in any Bankruptcy Case of Holdings or any Borrower or other Grantor or any First Lien Secured Party receives any payment pursuant to
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any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First Lien
Secured Party or received by the Collateral Agent or any First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such
distribution, to the sentence immediately following) to which the First Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all
proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to the Collateral Agent (in its capacity as such) pursuant to the terms of
any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First Lien Obligations of each Series on a ratable basis in accordance with the terms of the applicable Secured Credit Documents and
(iii) THIRD, after payment of all First Lien Obligations, to Holdings or the Borrowers or other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same pursuant to the
Second Lien Intercreditor Agreement, if applicable, or otherwise, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First Lien Secured
Party) has a lien or security interest that is junior in priority to the security interest of any Series of First Lien Obligations, after giving effect to the Second Lien Intercreditor Agreement, if applicable, but senior (as determined by
appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First Lien Obligations (such third party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds
which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First Lien Obligations with respect to which such Impairment exists.
(b) It is acknowledged that the First Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured
Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in
Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First Lien Secured Parties of any Series.
(c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First Lien
Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the
First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First Lien Secured Party hereby agrees that the Liens securing each Series of First Lien Obligations on any Shared
Collateral shall be of equal priority and, with respect to that portion of the Shared Collateral securing the Existing Notes Obligations pursuant to any First Lien Security Document, the Liens securing each Series of First Liens Obligations shall be
of equal priority.
(d) Notwithstanding anything in this Agreement or any other First Lien Security Documents to the contrary, cash
deposited with the Collateral Agent to secure Credit Agreement Obligations consisting of reimbursement obligations in respect of Letters of Credit pursuant to Section 2.23(j) of the Credit Agreement (or any equivalent successor provision) shall
be applied as specified in such Section of the Credit Agreement and will not constitute Shared Collateral.
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SECTION 2.02. Actions with Respect to Shared Collateral; Prohibition on
Contesting Liens. (a) With respect to any Shared Collateral, (i) only the Collateral Agent shall act or refrain from acting with respect to the Shared Collateral (including with respect to any intercreditor agreement with respect
to any Shared Collateral), and then only on the instructions of the Applicable Authorized Representative, (ii) the Collateral Agent shall not follow any instructions with respect to such Shared Collateral (including with respect to any
intercreditor agreement with respect to any Shared Collateral) from any Non-Controlling Authorized Representative (or any other First Lien Secured Party other than the Applicable Authorized Representative) and (iii) no Non-Controlling
Authorized Representative or other First Lien Secured Party (other than the Applicable Authorized Representative) shall or shall instruct the Collateral Agent to, commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to
have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its security interest in or
realize upon, or take any other action available to it in respect of, any Shared Collateral (including with respect to any intercreditor agreement with respect to any Shared Collateral), whether under any First Lien Security Document, applicable law
or otherwise, it being agreed that only the Collateral Agent, acting on the instructions of the Applicable Authorized Representative and in accordance with the applicable First Lien Security Documents, shall be entitled to take any such actions or
exercise any such remedies with respect to Shared Collateral. Notwithstanding the equal priority of the Liens, the Collateral Agent (acting on the instructions of the Applicable Authorized Representative) may deal with the Shared Collateral as if
such Applicable Authorized Representative had a senior Lien on such Collateral. No Non-Controlling Authorized Representative or Non-Controlling Secured Party will contest, protest or object to any foreclosure proceeding or action brought by the
Collateral Agent, Applicable Authorized Representative or Controlling Secured Party or any other exercise by the Collateral Agent, Applicable Authorized Representative or Controlling Secured Party of any rights and remedies relating to the Shared
Collateral, or to cause the Collateral Agent to do so. The foregoing shall not be construed to limit the rights and priorities of any First Lien Secured Party, Collateral Agent or Authorized Representative with respect to any collateral not
constituting Shared Collateral.
(b) Each of the Authorized Representatives agrees that it will not accept
any Lien on any Collateral for the benefit of any Series of First Lien Obligations (other than funds deposited for the discharge or defeasance of any Additional First Lien Agreement) other than pursuant to the First Lien Security Documents and by
executing this Agreement (or a Joinder Agreement), each Authorized Representative and the Series of First Lien Secured Parties for which it is acting hereunder agree to be bound by the provisions of this Agreement and the other First Lien Security
Documents applicable to it.
(c) Each of the First Lien Secured Parties agrees that it will not (and hereby waives any
right to) question or contest or support any other person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), the perfection, priority, validity, attachment or enforceability of a Lien held by or on behalf of any
of the First Lien Secured Parties in all or any part of the Collateral, or the provisions of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any of the Collateral Agent or any Authorized
Representative to enforce this Agreement.
SECTION 2.03. No Interference; Payment Over. (a) Each First
Lien Secured Party agrees that (i) it will not challenge or question in any proceeding the validity or enforceability of any First Lien Obligations of any Series or any First Lien Security Document or the validity, attachment, perfection or
priority of any Lien under any First Lien Security
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Document or the validity or enforceability of the priorities, rights or duties established by or other provisions of this Agreement; (ii) it will not take or cause to be taken any action the
purpose or intent of which is, or could be, to interfere, hinder or delay, in any manner, whether by judicial proceedings or otherwise, any sale, transfer or other disposition of the Shared Collateral by the Collateral Agent, (iii) except as
provided in Section 2.02, it shall have no right to (A) direct the Collateral Agent or any other First Lien Secured Party to exercise any right, remedy or power with respect to any Shared Collateral (including pursuant to any intercreditor
agreement) or (B) consent to the exercise by the Collateral Agent or any other First Lien Secured Party of any right, remedy or power with respect to any Shared Collateral, (iv) it will not institute any suit or assert in any suit,
bankruptcy, insolvency or other proceeding any claim against the Collateral Agent or any other First Lien Secured Party seeking damages from or other relief by way of specific performance, instructions or otherwise with respect to any Shared
Collateral, and none of the Collateral Agent, any Applicable Authorized Representative or any other First Lien Secured Party shall be liable for any action taken or omitted to be taken by the Collateral Agent, such Applicable Authorized
Representative or other First Lien Secured Party with respect to any Shared Collateral in accordance with the provisions of this Agreement, (v) it will not seek, and hereby waives any right, to have any Shared Collateral or any part thereof
marshaled upon any foreclosure or other disposition of such Collateral and (vi) it will not attempt, directly or indirectly, whether by judicial proceedings or otherwise, to challenge the enforceability of any provision of this Agreement;
provided that nothing in this Agreement shall be construed to prevent or impair the rights of any of the Collateral Agent or any other First Lien Secured Party to enforce this Agreement.
(b) Each First Lien Secured Party hereby agrees that if it shall obtain possession of any Shared Collateral or shall realize
any proceeds or payment in respect of any such Shared Collateral, pursuant to any First Lien Security Document or by the exercise of any rights available to it under applicable law or in any Insolvency or Liquidation Proceeding or through any other
exercise of remedies (including pursuant to any intercreditor agreement), at any time prior to the Discharge of each of the First Lien Obligations, then it shall hold such Shared Collateral, proceeds or payment in trust for the other First Lien
Secured Parties and promptly transfer such Shared Collateral, proceeds or payment, as the case may be, to the Collateral Agent, to be distributed in accordance with the provisions of Section 2.01 hereof.
SECTION 2.04. Automatic Release of Liens; Amendments to First Lien Security Documents. (a) If at any time the
Collateral Agent forecloses upon or otherwise exercises remedies against any Shared Collateral resulting in a sale or disposition thereof, then (whether or not any Insolvency or Liquidation Proceeding is pending at the time) the Liens in favor of
the Collateral Agent for the benefit of each Series of First Lien Secured Parties upon such Shared Collateral will automatically be released and discharged; provided that any proceeds of any Shared Collateral
realized therefrom shall be applied pursuant to Section 2.01 hereof.
(b) Each First Lien Secured Party
agrees that the Collateral Agent may enter into any amendment (and, upon request by the Collateral Agent, each Authorized Representative shall sign a consent to such amendment) to any First Lien Security Document, so long as the Collateral Agent
receives a certificate of the U.S. Borrower stating that such amendment is permitted by the terms of each then extant Secured Credit Document. Additionally, each First Lien Secured Party agrees that the Collateral Agent may enter into any amendment
(and, upon request by the Collateral Agent, each Authorized Representative shall sign a consent to such amendment) to any First Lien Security Document solely as such First Lien Security Document relates to a particular Series of First Lien
Obligations so long as (x) such amendment is in accordance with the Secured Credit Document pursuant to which such Series of First Lien Obligations was incurred and (y) such amendment does not adversely affect the First Lien Secured
Parties of any other Series.
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(c) Each Authorized Representative agrees to execute and deliver (at the sole
cost and expense of the Grantors) all such authorizations and other instruments as shall reasonably be requested by the Collateral Agent to evidence and confirm any release of Shared Collateral or amendment to any First Lien Security Document
provided for in this Section.
SECTION 2.05. Certain Agreements with Respect to Bankruptcy or Insolvency
Proceedings. (a) This Agreement shall continue in full force and effect notwithstanding the commencement of any proceeding under the Bankruptcy Code or any other Federal, state or foreign bankruptcy, insolvency, receivership or similar
law by or against Holdings or any Borrower or other Subsidiary.
(b) If Holdings or any Borrower or other
Grantor shall become subject to a case (a “Bankruptcy Case”) under the Bankruptcy Code and shall, as debtor(s)-in-possession, move for approval of financing (“DIP Financing”) to be provided by one or
more lenders (the “DIP Lenders”) under Section 364 of the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law or the use of cash collateral under Section 363 of the Bankruptcy Code or any
equivalent provision of any other Bankruptcy Law, each First Lien Secured Party (other than a Controlling Secured Party) agrees that it will raise no objection to any such financing or to the Liens on the Shared Collateral securing the same
(“DIP Financing Liens”) or to any use of cash collateral that constitutes Shared Collateral, unless an Authorized Representative of any Controlling Secured Party shall then oppose or object to such DIP Financing or such DIP
Financing Liens or use of cash collateral (and (i) to the extent that such DIP Financing Liens are senior to the Liens on any such Shared Collateral for the benefit of the Controlling Secured Parties, each Non-Controlling Secured Party will
subordinate its Liens with respect to such Shared Collateral on the same terms as the Liens of the Controlling Secured Parties (other than any Liens of any First Lien Secured Parties constituting DIP Financing Liens) are subordinated thereto, and
(ii) to the extent that such DIP Financing Liens rank pari passu with the Liens on any such Shared Collateral granted to secure the First Lien Obligations of the Controlling Secured Parties, each Non-Controlling Secured Party will
confirm the priorities with respect to such Shared Collateral as set forth herein), in each case so long as (A) the First Lien Secured Parties of each Series retain the benefit of their Liens on all such Shared Collateral pledged to the DIP
Lenders, including proceeds thereof arising after the commencement of such proceeding, with the same priority vis-a-vis all the other First Lien Secured Parties (other than any Liens of the First Lien Secured Parties constituting DIP Financing
Liens) as existed prior to the commencement of the Bankruptcy Case, (B) the First Lien Secured Parties of each Series are granted Liens on any additional collateral pledged to any First Lien Secured Parties as adequate protection or otherwise
in connection with such DIP Financing or use of cash collateral, with the same priority vis-a-vis the First Lien Secured Parties as set forth in this Agreement, (C) if any amount of such DIP Financing or cash collateral is applied to repay any
of the First Lien Obligations, such amount is applied pursuant to Section 2.01 of this Agreement, and (D) if any First Lien Secured Parties are granted adequate protection, including in the form of periodic payments, in connection with
such DIP Financing or use of cash collateral, the proceeds of such adequate protection are applied pursuant to Section 2.01 of this Agreement; provided that the First Lien Secured Parties of each Series shall have a right to object to
the grant of a Lien to secure the DIP Financing over any Collateral subject to Liens in favor of the First Lien Secured Parties of such Series or its Authorized Representative that shall not constitute Shared Collateral; and provided,
further, that the First Lien Secured Parties receiving adequate protection shall not object to any other First Lien Secured Party receiving adequate protection comparable to any adequate protection granted to such First Lien Secured Parties
in connection with a DIP Financing or use of cash collateral.
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SECTION 2.06. Reinstatement. In the event that any of the First Lien Obligations
shall be paid in full and such payment or any part thereof shall subsequently, for whatever reason (including an order or judgment for disgorgement of a preference under Title 11 of the United Stated Code, or any similar law, or the settlement of
any claim in respect thereof), be required to be returned or repaid, the terms and conditions of this Article II shall be fully applicable thereto until all such First Lien Obligations shall again have been paid in full in cash.
SECTION 2.07. [INTENTIONALLY OMITTED]
SECTION 2.08. Refinancings. The First Lien Obligations of any Series may be Refinanced, in whole or in part, in each case,
without notice to, or the consent (except to the extent a consent is otherwise required to permit the refinancing transaction under any Secured Credit Document) of any First Lien Secured Party of any other Series, all without affecting the
priorities provided for herein or the other provisions hereof; provided that the Authorized Representative of the holders of any such Refinancing indebtedness shall have executed a Joinder Agreement on behalf of the holders of such
Refinancing indebtedness.
SECTION 2.09. Possessory Collateral Agent as Gratuitous Bailee for Perfection. (a) The
Collateral Agent agrees to hold any Shared Collateral constituting Possessory Collateral that is part of the Collateral in its possession or control (or in the possession or control of its agents or bailees) as gratuitous bailee for the benefit of
each other First Lien Secured Party and any assignee solely for the purpose of perfecting the security interest granted in such Possessory Collateral, if any, pursuant to the applicable First Lien Security Documents, in each case, subject to the
terms and conditions of this Section 2.09. Pending delivery to the Collateral Agent, each other Authorized Representative agrees to hold any Shared Collateral constituting Possessory Collateral, from time to time in its possession, as
gratuitous bailee for the benefit of each other First Lien Secured Party and any assignee, solely for the purpose of perfecting the security interest granted in such Possessory Collateral, if any, pursuant to the applicable First Lien Security
Documents, in each case, subject to the terms and conditions of this Section 2.09.
(b) The duties or responsibilities
of the Collateral Agent and each other Authorized Representative under this Section 2.09 shall be limited solely to holding any Shared Collateral constituting Possessory Collateral as gratuitous bailee for the benefit of each other First Lien
Secured Party for purposes of perfecting the Lien held by such First Lien Secured Parties therein.
ARTICLE III
Existence and Amounts of Liens and Obligations
SECTION 3.01. Determinations with Respect to Amounts of Liens and Obligations. Whenever the Collateral Agent or any Authorized
Representative shall be required, in connection with the exercise of its rights or the performance of its obligations hereunder, to determine the existence or amount of any First Lien Obligations of any Series, or the Shared Collateral subject to
any Lien securing the First Lien Obligations of any Series, it may request that such information be furnished to it in writing by each other Authorized Representative and shall be entitled to make such determination on the basis of the information
so furnished;
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provided, however, that if an Authorized Representative shall fail or refuse reasonably promptly to provide the requested information, the requesting Collateral Agent or
Authorized Representative shall be entitled to make any such determination by such method as it may, in the exercise of its good faith judgment, determine, including by reliance upon a certificate of the U.S. Borrower. The Collateral Agent and each
Authorized Representative may rely conclusively, and shall be fully protected in so relying, on any determination made by it in accordance with the provisions of the preceding sentence (or as otherwise directed by a court of competent jurisdiction)
and shall have no liability to any Grantor, any First Lien Secured Party or any other person as a result of such determination.
ARTICLE
IV
The Collateral Agent
SECTION 4.01. Appointment and Authority. (a) Each of the First Lien Secured Parties hereby irrevocably appoints Credit
Suisse AG to act on its behalf as the Collateral Agent hereunder and under each of the other First Lien Security Documents and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the
Collateral Agent by the terms hereof or thereof, including for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by Holdings or any Borrower or other Grantor to secure any of the First Lien Obligations, together
with such powers and discretion as are reasonably incidental thereto. Each of the First Lien Secured Parties also authorizes Credit Suisse AG, at the request of the U.S. Borrower, to execute and deliver the Second Lien Intercreditor Agreement in the
capacity as “Senior Collateral Agent”, or the equivalent agent, however referred to for the First Lien Secured Parties under such agreement (the “Senior Collateral Agent”) and authorizes the Collateral Agent, in
accordance with the provisions of this Agreement, to take such actions on its behalf and to exercise such powers as are delegated to, or otherwise given to, the Senior Collateral Agent by the terms of the Second Lien Intercreditor Agreement,
together with such powers and discretion as are reasonably incidental thereto. In this connection, the Collateral Agent and any co-agents, sub-agents and attorneys-in-fact appointed by the Collateral Agent pursuant to Section 4.05 for purposes
of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under any of the First Lien Security Documents, or for exercising any rights and remedies thereunder or under the Second Lien Intercreditor Agreement at the
direction of the Applicable Authorized Representative, shall be entitled to the benefits of all provisions of this Article IV and Article VIII of the Credit Agreement and the equivalent provision of any Additional First Lien Agreement (as
though such co-agents, sub-agents and attorneys-in-fact were the “Collateral Agent” named therein) as if set forth in full herein with respect thereto.
(b) Each Non-Controlling Secured Party acknowledges and agrees that the Collateral Agent shall be entitled, for the benefit of
the First Lien Secured Parties, to sell, transfer or otherwise dispose of or deal with any Shared Collateral as provided herein and in the First Lien Security Documents, without regard to any rights to which the holders of the Non-Controlling
Secured Obligations would otherwise be entitled as a result of such Non-Controlling Secured Obligations. Without limiting the foregoing, each Non-Controlling Secured Party agrees that none of the Collateral Agent, the Applicable Authorized
Representative or any other First Lien Secured Party shall have any duty or obligation first to marshal or realize upon any type of Shared Collateral (or any other Collateral securing any of the First Lien Obligations), or to sell, dispose of or
otherwise liquidate all or any portion of such Shared Collateral (or any other Collateral securing any First Lien Obligations), in any manner that would maximize the return to the Non-Controlling Secured Parties,
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notwithstanding that the order and timing of any such realization, sale, disposition or liquidation may affect the amount of proceeds actually received by the Non-Controlling Secured Parties from
such realization, sale, disposition or liquidation. Each of the First Lien Secured Parties waives any claim it may now or hereafter have against the Collateral Agent or the Authorized Representative of any other Series of First Lien Obligations or
any other First Lien Secured Party of any other Series arising out of (i) any actions which the Collateral Agent, any Authorized Representative or any First Lien Secured Party takes or omits to take (including, actions with respect to the
creation, perfection or continuation of Liens on any Collateral, actions with respect to the foreclosure upon, sale or release, or failure to realize upon, any of the Collateral and actions with respect to the collection of any claim for all or any
part of the First Lien Obligations from any guarantor or any other party) in accordance with the First Lien Security Documents or any other agreement related thereto or to the collection of the First Lien Obligations or the valuation, use,
protection or release of any security for the First Lien Obligations, (ii) any election by any Applicable Authorized Representative or any holders of First Lien Obligations, in any proceeding instituted under the Bankruptcy Code, of the
application of Section 1111(b) of the Bankruptcy Code or (iii) subject to Section 2.05, any borrowing by, or grant of a security interest or administrative expense priority under Section 364 of the Bankruptcy Code or any
equivalent provision of any other Bankruptcy Law by, Holdings or any Borrower or other Subsidiary, as debtor-in-possession. Notwithstanding any other provision of this Agreement, the Collateral Agent shall not accept any Shared Collateral in full or
partial satisfaction of any First Lien Obligations pursuant to Section 9-620 of the Uniform Commercial Code of any jurisdiction, without the consent of each Authorized Representative representing holders of First Lien Obligations for whom such
Collateral constitutes Shared Collateral.
(c) Each Authorized Representative acknowledges and agrees that upon execution
and delivery of a Joinder Agreement substantially in the form of Annex III by an additional Senior Class Debt Representative, the Collateral Agent and each Grantor in accordance with Section 5.14, the Collateral Agent will continue to act in
its capacity as Collateral Agent in respect of the then existing Authorized Representatives and such additional Authorized Representative.
SECTION 4.02. Rights as a First Lien Secured Party. (a) The person serving as the Collateral Agent hereunder
shall have the same rights and powers in its capacity as a First Lien Secured Party under any Series of First Lien Obligations that it holds as any other First Lien Secured Party of such Series and may exercise the same as though it were not the
Collateral Agent and the term “First Lien Secured Party” or “First Lien Secured Parties” or (as applicable) “Credit Agreement Secured Party”, “Credit Agreement Secured Parties”, “Additional First Lien
Secured Party” or “Additional First Lien Secured Parties” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the person serving as the Collateral Agent hereunder in its individual capacity.
Such person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings or any Subsidiary or other Affiliate thereof as if
such person were not the Collateral Agent hereunder and without any duty to account therefor to any other First Lien Secured Party.
SECTION 4.03. Exculpatory Provisions. The Collateral Agent shall not have any duties or obligations except those
expressly set forth herein and in the other First Lien Security Documents. Without limiting the generality of the foregoing, the Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and
is continuing;
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(ii) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other First Lien Security Documents that the Collateral Agent is required to exercise as directed in writing by the Applicable Authorized
Representative; provided that the Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any First Lien Security
Document or applicable law;
(iii) shall not, except as expressly set forth herein and in the other First Lien Security
Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Holdings, the Borrowers or any of their Affiliates that is communicated to or obtained by the person serving as the Collateral
Agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it
(i) with the consent or at the request of the Applicable Authorized Representative or (ii) in the absence of its own gross negligence or willful misconduct or (iii) in reliance on a certificate of an authorized officer of the U.S.
Borrower stating that such action is permitted by the terms of this Agreement. The Collateral Agent shall be deemed not to have knowledge of any Event of Default under any Series of First Lien Obligations unless and until notice describing such
Event Default is given to the Collateral Agent by the Authorized Representative of such First Lien Obligations or the U.S. Borrower; and
(v) shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement or any other First Lien Security Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith,
(iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other First Lien Security Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the First Lien Security Documents, (v) the value or the sufficiency
of any Collateral for any Series of First Lien Obligations, or (v) the satisfaction of any condition set forth in any Secured Credit Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent.
SECTION 4.04. Reliance by Collateral Agent. The Collateral Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be
genuine and to have been signed, sent or otherwise authenticated by the proper person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not
incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken
by it in accordance with the advice of any such counsel, accountants or experts.
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SECTION 4.05. Delegation of Duties. The Collateral Agent may perform
any and all of its duties and exercise its rights and powers hereunder or under any other First Lien Security Document by or through any one or more sub-agents appointed by the Collateral Agent. The Collateral Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or through their respective Affiliates. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Affiliates of the Collateral Agent and any such
sub-agent.
SECTION 4.06. Resignation of Collateral Agent. The Collateral Agent may at any time
give notice of its resignation as Collateral Agent under this Agreement and the other First Lien Security Documents (including, if applicable, as Senior Collateral Agent under the Second Lien Intercreditor Agreement) to each Authorized
Representative and the U.S. Borrower. Upon receipt of any such notice of resignation, the Applicable Authorized Representative shall have the right, in consultation with the U.S. Borrower, to appoint a successor, which shall be a bank with an office
in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Applicable Authorized Representative and shall have accepted such appointment within 30 days
after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the First Lien Secured Parties, appoint a successor Collateral Agent meeting the qualifications set forth above;
provided that if the Collateral Agent shall notify the U.S. Borrower and each Authorized Representative that no qualifying person has accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (a) the retiring Collateral Agent shall be discharged from its duties and obligations hereunder and under the other First Lien Security Documents (except that in the case of any collateral security
held by the Collateral Agent on behalf of the First Lien Secured Parties under any of the First Lien Security Documents, the retiring Collateral Agent shall continue to hold such collateral security solely for purposes of maintaining the perfection
of the security interests of the First Lien Secured Parties therein until such time as a successor Collateral Agent is appointed but with no obligation to take any further action at the request of the Applicable Authorized Representative or any
other First Lien Secured Parties) and (b) all payments, communications and determinations provided to be made by, to or through the Collateral Agent shall instead be made by or to each Authorized Representative directly, until such time as the
Applicable Authorized Representative appoints a successor Collateral Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Collateral Agent hereunder and under the First Lien Security Documents
(including, if applicable, acting as Senior Collateral Agent under the Second Lien Intercreditor Agreement), such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired)
Collateral Agent, and the retiring Collateral Agent shall be discharged from all of its duties and obligations hereunder or under the other First Lien Security Documents (if not already discharged therefrom as provided above in this Section). After
the retiring Collateral Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Article VIII of the Credit Agreement and the equivalent provision of any Additional First Lien Agreement shall continue
in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective related parties in respect of any actions taken or omitted to be taken by any of them while the retiring Collateral Agent was acting as Collateral
Agent. Upon any notice of resignation of the Collateral Agent hereunder and under the other First Lien Security Documents, Holdings and the U.S. Borrower agree to use commercially reasonable efforts to transfer (and maintain the validity and
priority of) the Liens in favor of the retiring Collateral Agent under the First Lien Security Documents to the successor Collateral Agent.
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SECTION 4.07. Non-Reliance on Collateral Agent and Other First Lien Secured
Parties. Each First Lien Secured Party acknowledges that it has, independently and without reliance upon the Collateral Agent, any Authorized Representative or any other First Lien Secured Party or any of their Affiliates and based on such
documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and the other Secured Credit Documents. Each First Lien Secured Party also acknowledges that it will, independently and
without reliance upon the Collateral Agent, any Authorized Representative or any other First Lien Secured Party or any of their Affiliates and based on such documents and information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this Agreement, any other Secured Credit Document or any related agreement or any document furnished hereunder or thereunder.
SECTION 4.08. Collateral and Guaranty Matters. Each of the First Lien Secured Parties irrevocably authorizes the
Collateral Agent, at its option and in its discretion:
(i) to release any Lien on any property granted to or
held by the Collateral Agent under any First Lien Security Document in accordance with Section 2.04 or upon receipt of a written request from the U.S. Borrower stating that the releases of such Lien is permitted by the terms of each then extant
Secured Credit Document;
(ii) to release any Grantor from its obligations under the First Lien Security Documents upon
receipt of a written request from the U.S. Borrower stating that such release is permitted by the terms of each then extant Secured Credit Document.
ARTICLE V
Miscellaneous
SECTION 5.01. Notices. All notices and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to Holdings or any Borrower or other Grantor, to the U.S. Borrower at
[ ];
(b) if to the
Collateral Agent or the Administrative Agent, to it at [ ];
(c) if to the Initial Additional Authorized Representative, to it at
[ ];
(d) if to any other
Additional Authorized Representative, to it at the address set forth in the applicable Joinder Agreement.
Any party hereto may change its address or
telecopy number for notices and other communications hereunder by notice to the other parties hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt (if a Business Day) and on the next Business Day thereafter (in all other cases) if delivered by hand or overnight courier service or sent by telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in this Section 5.01 or in accordance with the latest unrevoked direction from such party given in
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accordance with this Section 5.01. As agreed to in writing among the Collateral Agent and each Authorized Representative from time to time, notices and other communications may also be
delivered by e-mail to the e-mail address of a representative of the applicable person provided from time to time by such person.
SECTION 5.02. Waivers; Amendment; Joinder Agreements. (a) No failure or delay on the part of any party hereto
in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties hereto are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this
Agreement or consent to any departure by any party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. No notice or demand on any party hereto in any case shall entitle such party to any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be terminated, waived, amended or modified (other than pursuant to any
Joinder Agreement) except pursuant to an agreement or agreements in writing entered into by each Authorized Representative and the Collateral Agent (and with respect to any such termination, waiver, amendment or modification which by the terms of
this Agreement requires Holdings’ or a Borrower’s or other Grantor’s consent or which increases the obligations or reduces the rights of Holdings or any Borrower or other Grantor, with the consent of Holdings or such Borrower or other
Grantor).
(c) Notwithstanding the foregoing, without the consent of any First Lien Secured Party, any Authorized
Representative may become a party hereto by execution and delivery of a Joinder Agreement in accordance with Section 5.14 of this Agreement and upon such execution and delivery, such Authorized Representative and the Additional First Lien
Secured Parties and Additional First Lien Obligations of the Series for which such Authorized Representative is acting shall be subject to the terms hereof and the terms of the other First Lien Security Documents applicable thereto.
(d) Notwithstanding the foregoing, without the consent of any other Authorized Representative or First Lien Secured Party, the
Collateral Agent may effect amendments and modifications to this Agreement to the extent necessary to reflect any incurrence of any Additional First Lien Obligations in compliance with the Credit Agreement.
SECTION 5.03. Parties in Interest. This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, as well as the other First Lien Secured Parties, all of whom are intended to be bound by, and to be third party beneficiaries of, this Agreement.
SECTION 5.04. Survival of Agreement. All covenants, agreements, representations and warranties made by any party
in this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement.
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SECTION 5.05. Counterparts. This Agreement may be executed in counterparts, each of
which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by facsimile or other electronic transmission shall be as effective as delivery of a
manually signed counterpart of this Agreement.
SECTION 5.06. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining
provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 5.07. Governing Law; Jurisdiction. This Agreement shall be construed in accordance with and governed by
the law of the State of New York.
SECTION 5.08. Submission to Jurisdiction Waivers; Consent to Service
of Process. The Collateral Agent and each Authorized Representative, on behalf of itself and the First Lien Secured Parties of the Series for whom it is acting, irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to this Agreement and the First Lien
Security Documents, or for recognition and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in New York City, and any appellate court
from any thereof;
(b) consents that any such action or proceeding may be brought in such courts and waives any objection
that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage prepaid, to such person (or its Authorized Representative) at the address referred to in 5.01;
(d) agrees that nothing herein shall affect the right of any other party hereto (or any First Lien Secured Party) to effect
service of process in any other manner permitted by law or shall limit the right of any party hereto (or any First Lien Secured Party) to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or
proceeding referred to in this Section 5.08 any special, exemplary, punitive or consequential damages.
SECTION 5.09. WAIVER OF
JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
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REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5.09.
SECTION 5.10. Headings. Article, Section and Annex headings used herein are for convenience of reference only, are not part of
this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.
SECTION
5.11. Conflicts. In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of any of the other First Lien Security Documents or Additional First Lien Agreements the provisions of this
Agreement shall control.
SECTION 5.12. Provisions Solely to Define Relative Rights. The provisions of this
Agreement are and are intended solely for the purpose of defining the relative rights of the First Lien Secured Parties in relation to one another. None of Holdings or the Borrowers or other Grantors or any other creditor thereof shall have any
rights or obligations hereunder, except as expressly provided in this Agreement (provided that nothing in this Agreement (other than Section 2.04, 2.05, 2.08, 2.09 or Article V) is intended to or will
amend, waive or otherwise modify the provisions of the Credit Agreement or any Additional First Lien Agreements), and none of Holdings or the Borrowers or other Grantors may rely on the terms hereof (other than Sections 2.04, 2.05, 2.08, 2.09
and Article V). Nothing in this Agreement is intended to or shall impair the obligations of any Grantor, which are absolute and unconditional, to pay the First Lien Obligations as and when the same shall become due and payable in accordance
with their terms.
SECTION 5.13. Additional Grantors. Holdings and the U.S. Borrower agree that,
if any Subsidiary shall become a Grantor after the date hereof, it will promptly cause such Subsidiary to become party hereto by executing and delivering an instrument in the form of Annex II. Upon such execution and delivery, such Subsidiary will
become a Grantor hereunder with the same force and effect as if originally named as a Grantor herein. The execution and delivery of such instrument shall not require the consent of any other party hereunder, and will be acknowledged by the
Applicable Authorized Representative and the Collateral Agent. The rights and obligations of each Grantor hereunder shall remain in full force and effect notwithstanding the addition of any new Grantor as a party to this Agreement.
SECTION 5.14. Additional Senior Debt. To the extent, but only to the extent permitted by the
provisions of the Credit Agreement and the Additional First Lien Agreements, Holdings or any Borrower or other Subsidiary may incur Additional First Lien Obligations. Any such Additional First Lien Obligations (the “Senior Class
Debt”) may be secured by a Lien on a senior basis pursuant to the First Lien Documents, if and subject to the condition that the Authorized Representative of any such Senior Class Debt (each, a “Senior Class Debt
Representative”), acting on behalf of the holders of such Senior Class Debt (such Authorized Representative and holders in respect of any Senior Class Debt being referred to as the “Senior Class Debt Parties”),
becomes a party to this Agreement by satisfying the conditions set forth in clauses (i) through (v) of the immediately succeeding paragraph.
In order for a Senior Class Debt Representative to become a party to this Agreement,
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(i) such Senior Class Debt Representative, the Collateral Agent and each Grantor
shall have executed and delivered an instrument substantially in the form of Annex III (with such changes as may be reasonably approved by the Collateral Agent and such Senior Class Representative) pursuant to which such Senior Class Debt
Representative becomes an Authorized Representative hereunder, and the Senior Class Debt in respect of which such Senior Class Debt Representative is the Representative and the related Senior Class Debt Parties become subject hereto and bound
hereby;
(ii) the U.S. Borrower shall have delivered to the Collateral Agent true and complete copies of each of the
Additional First Lien Documents relating to such Senior Class Debt, certified as being true and correct by a Responsible Officer of the U.S. Borrower;
(iii) all filings, recordations and/or amendments or supplements to the First Lien Security Documents necessary or desirable in
the reasonable judgment of the Collateral Agent to confirm and perfect the Liens securing the relevant obligations relating to such Senior Class Debt shall have been made, executed and/or delivered (or, with respect to any such filings or
recordations, acceptable provisions to perform such filings or recordings have been taken in the reasonable judgment of the Collateral Agent), and all fees and taxes in connection therewith shall have been paid (or acceptable provisions to make such
payments have been taken in the reasonable judgment of the Collateral Agent); and
(iv) the Additional First Lien
Documents, as applicable, relating to such Senior Class Debt shall provide, in a manner reasonably satisfactory to the Collateral Agent, that each Senior Class Debt Party with respect to such Senior Class Debt will be subject to and bound by the
provisions of this Agreement in its capacity as a holder of such Senior Class Debt.
SECTION 5.15. Integration. This
Agreement together with the other Secured Credit Documents and the First Lien Security Documents represents the agreement of each of the Grantors and the First Lien Secured Parties with respect to the subject matter hereof and there are no promises,
undertakings, representations or warranties by any Grantor, the Collateral Agent, any or any other First Lien Secured Party relative to the subject matter hereof not expressly set forth or referred to herein or in the other Secured Credit Documents
or the First Lien Security Documents.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
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| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, |
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| THE GRANTORS LISTED ON ANNEX I HERETO, |
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ANNEX I
Grantors
[ ]
ANNEX II
SUPPLEMENT NO. [ ] dated as of
[ ], 20[ ] to the FIRST LIEN INTERCREDITOR AGREEMENT dated as of [ ],
20[ ] (the “First Lien Intercreditor Agreement”), among CBRE Services, Inc., a Delaware corporation (the “U.S. Borrower”), CBRE Group, Inc., a Delaware corporation
(“Holdings”), certain subsidiaries of Holdings (each a “Grantor”), Credit Suisse AG, as Collateral Agent for the First Lien Secured Parties under the First Lien Security Documents (in such capacity, the
“Collateral Agent”), [ ], as Initial Additional Authorized Representative, and the additional Authorized Representatives from time to time a party
thereto.
A. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the First
Lien Intercreditor Agreement.
B. The Grantors have entered into the First Lien Intercreditor Agreement. Pursuant to the
Credit Agreement and certain Additional First Lien Documents, certain newly acquired or organized Subsidiaries are required to enter into the First Lien Intercreditor Agreement. Section 5.13 of the First Lien Intercreditor Agreement provides
that such Subsidiaries may become party to the First Lien Intercreditor Agreement by execution and delivery of an instrument in the form of this Supplement. The undersigned Subsidiary (the “New Grantor”) is executing this
Supplement in accordance with the requirements of the Credit Agreement and the Additional First Lien Documents.
Accordingly, the Collateral Agent and the New Grantor agree as follows:
SECTION 1. In accordance with Section 5.13 of the First Lien Intercreditor Agreement, the New Grantor by its signature below becomes a
Grantor under the First Lien Intercreditor Agreement with the same force and effect as if originally named therein as a Grantor, and the New Grantor hereby agrees to all the terms and provisions of the First Lien Intercreditor Agreement applicable
to it as a Grantor thereunder. Each reference to a “Grantor” in the First Lien Intercreditor Agreement shall be deemed to include the New Grantor. The First Lien Intercreditor Agreement is hereby incorporated herein by reference.
SECTION 2. The New Grantor represents and warrants to the Collateral Agent and the other First Lien Secured Parties that this Supplement has
been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts, each of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Supplement shall become effective when the Collateral Agent shall have received a counterpart of this Supplement that bears the signature of the New Grantor. Delivery of an executed signature page to this
Supplement by facsimile or other electronic transmission shall be as effective as delivery of a manually signed counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the First Lien Intercreditor Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF
THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this Supplement should be held invalid,
illegal or unenforceable in any respect, no party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal or unenforceable, but the validity, legality and enforceability of the remaining
provisions contained herein and in the First Lien Intercreditor Agreement shall not in any way be affected or impaired. The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing and given as provided in Section 5.01 of the First Lien
Intercreditor Agreement. All communications and notices hereunder to the New Grantor shall be given to it in care of the U.S. Borrower as specified in the First Lien Intercreditor Agreement.
SECTION 8. The U.S. Borrower agrees to reimburse the Collateral Agent for its reasonable out-of-pocket expenses in connection with this
Supplement, including the reasonable fees, other charges and disbursements of counsel for the Collateral Agent.
IN WITNESS WHEREOF, the New Grantor and the Collateral Agent have duly executed this Supplement
to the First Lien Intercreditor Agreement as of the day and year first above written.
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Acknowledged by:
CREDIT
SUISSE AG, CAYMAN ISLANDS BRANCH, as Collateral Agent,
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[ ], as
Applicable Authorized Representative,
ANNEX III
[FORM OF] REPRESENTATIVE SUPPLEMENT NO. [ ] dated as of
[ ], 20[ ] to the FIRST LIEN INTERCREDITOR AGREEMENT dated as of [ ],
20[ ] (the “First Lien Intercreditor Agreement”), among CBRE Services, Inc., a Delaware corporation (the “U.S. Borrower”), CBRE Group, Inc., a Delaware corporation
(“Holdings”), certain subsidiaries of Holdings (each a “Grantor”), Credit Suisse AG, as Collateral Agent for the First Lien Secured Parties under the First Lien Security Documents (in such capacity,
the “Collateral Agent”) and as Authorized Representative under the Credit Agreement, [ ], as Initial Additional Authorized Representative, and the
additional Authorized Representatives from time to time a party thereto.
A. Capitalized terms used herein but not otherwise defined
herein shall have the meanings assigned to such terms in the First Lien Intercreditor Agreement.
B. As a condition to the
ability of Holdings or any Borrower or other Subsidiary to incur Additional First Lien Obligations and to secure such Senior Class Debt with the Senior Lien pursuant to the First Lien Security Documents, the Senior Class Debt Representative in
respect of such Senior Class Debt is required to become an Authorized Representative under, and such Senior Class Debt and the Senior Class Debt Parties in respect thereof are required to become subject to and bound by, the First Lien Intercreditor
Agreement. Section 5.14 of the First Lien Intercreditor Agreement provides that such Senior Class Debt Representative may become an Authorized Representative under, and such Senior Class Debt and such Senior Class Debt Parties may become
subject to and bound by, the First Lien Intercreditor Agreement, pursuant to the execution and delivery by the Senior Class Representative of an instrument in the form of this Supplement and the satisfaction of the other conditions set forth in
Section 5.14 of the Senior Lien Intercreditor Agreement. The undersigned Senior Class Debt Representative (the “New Representative”) is executing this Representative Supplement in accordance with the requirements of the
First Lien Intercreditor Agreement and the First Lien Security Documents.
Accordingly, the Collateral Agent and the New
Representative agree as follows:
SECTION 1. In accordance with Section 5.14 of the First Lien Intercreditor Agreement,
the New Representative by its signature below becomes an Authorized Representative under, and the related Senior Class Debt and Senior Class Debt Parties become subject to and bound by, the First Lien Intercreditor Agreement with the same force and
effect as if the New Representative had originally been named therein as an Authorized Representative, and the New Representative, on behalf of itself and such Senior Class Debt Parties, hereby agrees to all the terms and provisions of the First
Lien Intercreditor Agreement applicable to it as an Authorized Representative and to the Senior Class Debt Parties that it represents as Additional First Lien Secured Parties. Each reference to a “Authorized Representative”
in the First Lien Intercreditor Agreement shall be deemed to include the New Representative. The First Lien Intercreditor Agreement is hereby incorporated herein by reference.
SECTION 2. The New Representative represents and warrants to the Collateral Agent and the other First Lien Secured Parties that (i) it
has full power and authority to enter into this Representative Supplement, in its capacity as [agent] [trustee], (ii) this Representative Supplement has been duly authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with the terms of such Agreement and (iii) the Additional First Lien Documents relating to such Senior Class Debt provide that, upon the New Representative’s entry into this
Agreement, the Senior Class Debt Parties in respect of such Senior Class Debt will be subject to and bound by the provisions of the First Lien Intercreditor Agreement as Additional First Lien Secured Parties.
SECTION 3. This Representative Supplement may be executed in counterparts, each of which shall
constitute an original, but all of which when taken together shall constitute a single contract. This Representative Supplement shall become effective when the Collateral Agent shall have received a counterpart of this Representative Supplement that
bears the signature of the New Representative. Delivery of an executed signature page to this Representative Supplement by facsimile or other electronic transmission shall be effective as delivery of a manually signed counterpart of this
Representative Supplement.
SECTION 4. Except as expressly supplemented hereby, the First Lien Intercreditor Agreement shall remain in
full force and effect.
SECTION 5. THIS REPRESENTATIVE SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this Representative Supplement should be
held invalid, illegal or unenforceable in any respect, no party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal or unenforceable, but the validity, legality and enforceability of
the remaining provisions contained herein and in the First Lien Intercreditor Agreement shall not in any way be affected or impaired. The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing and given as provided in Section 5.01 of the First Lien
Intercreditor Agreement. All communications and notices hereunder to the New Representative shall be given to it at the address set forth below its signature hereto.
SECTION 8. The U.S. Borrower agrees to reimburse the Collateral Agent for its reasonable out-of-pocket expenses in connection with this
Representative Supplement, including the reasonable fees, other charges and disbursements of counsel for the Collateral Agent.
IN WITNESS
WHEREOF, the New Representative and the Collateral Agent have duly executed this Representative Supplement to the First Lien Intercreditor Agreement as of the day and year first above written.
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2
Acknowledged by:
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
as Collateral Agent,
CBRE SERVICES, INC.
CBRE GROUP, INC.
THE GRANTORS
LISTED ON SCHEDULE
I HERETO,
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Grantors
[
]
EXHIBIT H-2
[FORM OF]
SECOND LIEN
INTERCREDITOR AGREEMENT
Among
CBRE SERVICES, INC.,
CBRE GROUP,
INC.,
the other Grantors party hereto,
CREDIT SUISSE AG,
as Collateral
Agent for the First Lien Secured Parties and
as Representative for the Credit Agreement Secured Parties
[ ]
as the Initial Additional Second Priority Representative
and
each additional Representative
from time to time party hereto
dated as of [ ], 20[ ]
SECOND LIEN INTERCREDITOR AGREEMENT dated as of
[ ], 20[ ] (as amended, supplemented or otherwise modified from time to time, this “Agreement”), among CBRE SERVICES, INC., a
Delaware corporation (the “U.S. Borrower”), CBRE GROUP, INC., a Delaware corporation (“Holdings”), the other Grantors (as defined herein) party hereto, CREDIT SUISSE AG, as collateral agent for the
Senior Secured Parties (as defined herein) (in such capacity, the “Senior Collateral Agent”) and as Representative for the Credit Agreement Secured Parties (in such capacity, the “Administrative
Agent”), [INSERT NAME AND CAPACITY], as Representative for the Initial Second Priority Debt Parties (in such capacity and together with its successors in such capacity, the “Initial Second Priority
Representative”) and each additional Second Priority Representative and Senior Representative that from time to time becomes a party hereto pursuant to Section 8.09.
In consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Senior Collateral Agent, the Administrative Agent (for itself and on behalf of the Credit Agreement Secured Parties), the Initial Second Priority Representative (for itself and on behalf of the Initial Second Priority Debt
Parties) and each additional Senior Representative (for itself and on behalf of the Additional Senior Debt Parties under the applicable Senior Debt Facility) and each additional Second Priority Representative (for itself and on behalf of the Second
Priority Debt Parties under the applicable Second Priority Debt Facility) agree as follows:
ARTICLE VI
Definitions
SECTION 6.01. Certain Defined Terms. Capitalized terms used but not otherwise defined herein have the meanings set
forth in the Credit Agreement or, if defined in the New York UCC, the meanings specified therein. As used in this Agreement, the following terms have the meanings specified below:
“Additional Senior Debt” shall mean any Indebtedness of Holdings or any Borrower or other Subsidiary
(other than Indebtedness constituting Credit Agreement Obligations) secured by the Senior Collateral (or a portion thereof) on a pari passu basis (but without regard to control of remedies) with the Credit
Agreement Obligations (and not secured by Liens on any other assets of Holdings or any Borrower or other Subsidiary); provided, however, that, (i) such Indebtedness is permitted to be incurred and secured on
such basis by each Senior Debt Document and Second Priority Debt Document and (ii) the Representative for the holders of such Indebtedness shall have become party to (A) this Agreement pursuant to, and by satisfying the conditions set
forth in, Section 8.09 hereof and (B) the First Lien Intercreditor Agreement pursuant to, and by satisfying the conditions set forth in, Section 5.14 thereof, provided further that, if such
Indebtedness will be the initial Additional Senior Debt incurred by Holdings or any Borrower or other Subsidiary after the date hereof, then Holdings, the U.S. Borrower, the other Grantors, the Senior Collateral Agent and the Representative for such
Indebtedness shall have executed and delivered the First Lien Intercreditor Agreement.
“Additional
Senior Debt Documents” shall mean, with respect to any incurrence or issuance of Additional Senior Debt, the loan agreements, indentures, Collateral Documents or other operative agreements governing or evidencing such Indebtedness,
including the Senior Collateral Documents.
“Additional Senior Debt Facility” shall mean each loan
agreement, indenture or other governing agreement with respect to any Additional Senior Debt.
“Additional Senior Debt Obligations” shall mean, with respect to any incurrence or issuance of
Additional Senior Debt, (a) all principal of, and interest (including any interest which accrues after the commencement of any Bankruptcy Case, whether or not allowed or allowable as a claim in any such proceeding) payable with respect to, such
Additional Senior Debt, (b) all other amounts payable to the related Additional Senior Debt Parties under the related Additional Senior Debt Documents and (c) any renewals or extensions of the foregoing.
“Additional Senior Debt Parties” shall mean, with respect to any incurrence or issuance of Additional
Senior Debt, the holders of such Indebtedness, the Representative with respect thereto, any trustee or agent therefor under any related Additional Senior Debt Documents and the beneficiaries of each indemnification obligation undertaken by Holdings
or any Borrower or other Subsidiary under any related Additional Senior Debt Documents.
“Administrative Agent” shall have the meaning assigned to such term in the introductory paragraph of
this Agreement.
“Agreement” shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
“Bankruptcy Case” shall mean a case under
the Bankruptcy Code or any other Bankruptcy Law.
“Bankruptcy Code” shall mean Title
11 of the United States Code, as amended.
“Bankruptcy Law” shall mean the Bankruptcy
Code and any similar Federal, state or foreign law for the relief of debtors.
“Borrowers” shall have the meaning assigned to such term in the Credit Agreement.
“Class Debt” shall have the meaning assigned to such term in Section 8.09.
“Class Debt Parties” shall have the meaning assigned to such term in Section 8.09.
“Class Debt Representatives” shall have the meaning assigned to such term in Section
8.09.
“Collateral” shall mean the Senior Collateral and the Second Priority
Collateral.
“Collateral Documents” shall mean the Senior Collateral Documents and the
Second Priority Collateral Documents.
“Credit Agreement” shall mean that certain
Second Amended and Restated Credit Agreement dated as of January 9, 2015 (as amended, restated, supplemented or otherwise modified, refinanced or replaced from time to time), among the U.S. Borrower, Holdings, certain subsidiaries of Holdings,
the lenders from time to time party thereto, the issuing banks from time to time party thereto and Credit Suisse AG, as administrative agent and collateral agent.
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“Credit Agreement Loan Documents” shall mean the Credit
Agreement and the other Loan Documents.
“Credit Agreement Obligations” shall mean the
“Obligations” as defined in the Guarantee and Pledge Agreement.
“Credit Agreement
Secured Parties” shall mean the “Secured Parties” as defined in the Guarantee and Pledge Agreement.
“Debt Facility” shall mean any Senior Facility and any Second Priority Debt Facility.
“Designated Second Priority Representative” shall mean (i) the Initial Second Priority
Representative, until such time as the Second Priority Debt Facility under the Initial Second Priority Debt Documents ceases to be the only Second Priority Debt Facility under this Agreement and (ii) thereafter, the Second Priority
Representative designated from time to time by the Second Priority Instructing Group, in a notice to the Designated Senior Representative and the U.S. Borrower hereunder, as the “Designated Second Priority Representative” for purposes
hereof.
“Designated Senior Representative” shall mean (i) if at any time there
is only one Senior Representative for a Senior Facility with respect to which the Discharge of Senior Obligations has not occurred, such Senior Representative and (ii) at any time when clause (i) does not apply, the Applicable Authorized
Representative (as defined in the First Lien Intercreditor Agreement) at such time.
“DIP
Financing” shall have the meaning assigned to such term in Section 6.01.
“Discharge” shall mean, with respect to any Shared Collateral and any Debt Facility, the date on which
such Debt Facility and the Senior Obligations or Second Priority Debt Obligations thereunder, as the case may be, are no longer secured by such Shared Collateral. The term “Discharged” shall have a corresponding
meaning.
“Discharge of Credit Agreement Obligations” shall mean, with respect to any
Shared Collateral, the Discharge of the Credit Agreement Obligations with respect to such Shared Collateral; provided that the Discharge of Credit Agreement Obligations shall not be deemed to have occurred in
connection with a Refinancing of such Credit Agreement Obligations with an Additional Senior Debt Facility secured by such Shared Collateral under one or more Additional Senior Debt Documents which has been designated in writing by the
Administrative Agent (under the Credit Agreement so Refinanced) to the Designated Senior Representative as the “Credit Agreement” for purposes of this Agreement.
“Discharge of Senior Obligations” shall mean the date on which the Discharge of Credit Agreement
Obligations and the Discharge of each Additional Senior Debt Facility has occurred.
“Event of
Default” shall mean an “Event of Default” as defined in any Secured Credit Document.
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“First Lien Intercreditor Agreement” shall mean the First
Lien Intercreditor Agreement substantially in the form of Exhibit H-1 to the Credit Agreement (as amended, restated, supplemented or otherwise modified or replaced from time to time), among the U.S. Borrower, Holdings, the Subsidiaries party
thereto, Credit Suisse AG, as collateral agent and authorized representative for the Credit Agreement Secured Parties, the Initial Additional Authorized Representative (as defined therein) and each additional Authorized Representative (as defined
therein) from time to time party thereto.
“Grantors” shall mean Holdings, the U.S. Borrower and
each Subsidiary which has granted a security interest pursuant to any Collateral Document to secure any Secured Obligations.
“Guarantee and Pledge Agreement” shall mean that certain Amended and Restated Guarantee and Pledge
Agreement dated as of January 9, 2015 (as amended, restated, supplemented or modified from time to time), among the U.S. Borrower, Holdings, the subsidiaries of Holdings from time to time party thereto and Credit Suisse AG, as collateral
agent.
“Initial Second Priority Debt Documents” shall mean that certain
[ ] dated as of [ ], 20[ ], among [ ] and any notes,
security documents and other operative agreements evidencing or governing such Indebtedness, including any agreement entered into for the purpose of securing the Initial Second Priority Debt Obligations.
“Initial Second Priority Debt Obligations” shall mean the Second Priority Debt Obligations arising
pursuant to the Initial Second Priority Debt Documents.
“Initial Second Priority
Debt” shall mean the Second Priority Debt incurred pursuant to the Initial Second Priority Debt Documents.
“Initial Second Priority Debt Parties” shall mean the holders of any Initial Second Priority Debt
Obligations and the Initial Second Priority Representative.
“Initial Second Priority
Representative” shall have the meaning assigned to such term in the introductory paragraph to this Agreement.
“Insolvency or Liquidation Proceeding” shall mean:
(1) any case commenced by or against Holdings or any Borrower or other Grantor under any Bankruptcy Law, any other proceeding
for the reorganization, recapitalization or adjustment or marshalling of the assets or liabilities of Holdings or any Borrower or other Grantor, any receivership or assignment for the benefit of creditors relating to Holdings or any Borrower or
other Grantor or any similar case or proceeding relative to Holdings or any Borrower or other Grantor or its creditors, as such, in each case whether or not voluntary;
(2) any liquidation, dissolution, marshalling of assets or liabilities or other winding up of or relating to Holdings or any
Borrower or other Grantor, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency; or
(3) any other proceeding of any type or nature in which substantially all claims of creditors of Holdings or any Borrower or
other Grantor are determined and any payment or distribution is or may be made on account of such claims.
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“Joinder Agreement” shall mean a supplement to this
Agreement in the form of Annex III or Annex IV hereof required to be delivered by a Representative to the Designated Senior Representative pursuant to Section 8.09 hereof in order to include an additional Debt Facility hereunder and to
become the Representative hereunder for the Senior Secured Parties or Second Priority Secured Parties, as the case may be, under such Debt Facility.
“Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
encumbrance, charge or security interest in or on such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such asset.
[“Major Second Priority
Representative” shall mean, with respect to any Shared Collateral, the Second Priority Representative of the series of Second Priority Debt that (a) constitutes the largest outstanding principal amount of any then outstanding
series of Second Priority Debt with respect to such Shared Collateral and (b) is larger than the largest outstanding principal amount of any then outstanding series of Indebtedness constituting Senior Obligations with respect to such Shared
Collateral.]15
“New York UCC” shall mean the
Uniform Commercial Code as from time to time in effect in the State of New York.
“Officer’s
Certificate” shall have the meaning assigned to such term in Section 8.08.
“Pledged
or Controlled Collateral” shall have the meaning assigned to such term in Section 5.05(a).
“Proceeds” shall mean the proceeds of any sale, collection or other liquidation of Shared Collateral,
any payment or distribution made in respect of Shared Collateral in a Bankruptcy Case and any amounts received by any Senior Representative or any Senior Secured Party from a Second Priority Debt Party in respect of Shared Collateral pursuant to
this Agreement.
“Recovery” shall have the meaning assigned to such term in Section
6.04.
“Refinance” shall mean, in respect of any indebtedness, to refinance, extend,
renew, defease, amend, increase, modify, supplement, restructure, refund, replace or repay, or to issue other indebtedness or enter alternative financing arrangements, in exchange or replacement for such indebtedness (in whole or in part), including
by adding or replacing lenders, creditors, agents, borrowers and/or guarantors, and including in each case, but not limited to, after the original instrument giving rise to such indebtedness has been terminated and including, in each case, through
any credit agreement, indenture or other agreement. “Refinanced” and “Refinancing” have correlative meanings.
| 15 |
Bracketed language may be included if Second Priority Debt is in the form of bank or mezzanine loans. |
5
“Representatives” shall mean the Senior Representatives and
the Second Priority Representatives.
“Second Priority Class Debt” shall have the
meaning assigned to such term in Section 8.09.
“Second Priority Class Debt Parties”
shall have the meaning assigned to such term in Section 8.09.
“Second Priority Class Debt
Representative” shall have the meaning assigned to such term in Section 8.09.
“Second
Priority Collateral” shall mean any “Collateral” as defined in any Second Priority Debt Document or any other assets of Holdings, any Borrower or any other Grantor with respect to which a Lien is granted or purported to be
granted pursuant to a Second Priority Collateral Document as security for any Second Priority Debt Obligation.
“Second Priority Collateral Documents” shall mean the Initial Second Priority Collateral Documents and
each of the security agreements and other instruments and documents executed and delivered by Holdings or any Borrower or other Grantor for purposes of providing collateral security for any Second Priority Debt Obligation.
“Second Priority Debt” shall mean any Indebtedness of Holdings or any Borrower or other Subsidiary,
including the Initial Second Priority Debt, which Indebtedness is secured by the Second Priority Collateral on a pari passu basis (but without regard to control of remedies, other than as provided by the terms of
the applicable Second Priority Debt Documents) with any other Second Priority Debt Obligations and the applicable Second Priority Debt Documents which provide that such Indebtedness is to be secured by such Second Priority Collateral on a
subordinate basis to the Senior Debt Obligations (and which is not secured by Liens on any assets of Holdings or any Borrower or other Subsidiary other than the Second Priority Collateral or which are not included in the Senior Collateral);
provided, however, that (i) such Indebtedness is permitted to be incurred and secured on such basis by each Senior Debt Document and Second Priority Debt Document and (ii) except in the case of the
Initial Second Priority Debt hereunder, the Representative for the holders of such Indebtedness shall have become party to this Agreement pursuant to, and by satisfying the conditions set forth in, Section 8.09 hereof.
“Second Priority Debt Documents” shall mean the Initial Second Priority Debt Documents and, with respect
to any incurrence or issuance of Second Priority Debt, the loan agreements, promissory notes, indentures, Collateral Documents or other operative agreements evidencing or governing such Indebtedness, including the Second Priority Collateral
Documents.
“Second Priority Debt Facility” shall mean each loan agreement, indenture
or other governing agreement with respect to any Second Priority Debt.
“Second Priority Debt
Obligations” shall mean the Initial Second Priority Debt Obligations and, with respect to any incurrence or issuance of Second Priority Debt, (a) all principal of, and interest (including any interest which accrues after the
commencement of any Bankruptcy Case, whether or not allowed or allowable as a claim in any such proceeding) payable with respect to, such Second Priority Debt, (b) all other amounts payable to the related Second Priority Debt Parties under the
related Second Priority Debt Documents and (c) any renewals or extensions of the foregoing.
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“Second Priority Debt Parties” shall mean the Initial
Second Priority Debt Parties and, with respect to any incurrence or issuance of Second Priority Debt, the holders of such Indebtedness, the Representative with respect thereto, any trustee or agent therefor under any related Second Priority Debt
Documents and the beneficiaries of each indemnification obligation undertaken by Holdings or any Borrower or other Subsidiary under any related Second Priority Debt Documents.
[“Second Priority Enforcement Date” shall mean, with respect to any Second Priority Representative, the date which is
180 days (through which 180 day period such Second Priority Representative was the Major Second Priority Representative) after the occurrence of both (i) an Event of Default (under and as defined in the Second Priority Debt Document for which
such Second Priority Representative has been named as Representative) and (ii) the Designated Senior Representative’s and each other Representative’s receipt of written notice from such Second Priority Representative that
(x) such Second Priority Representative is the Major Second Priority Representative and that an Event of Default (under and as defined in the Second Priority Debt Document for which such Second Priority Representative has been named as
Representative) has occurred and is continuing and (y) the Second Priority Debt Obligations of the series with respect to which such Second Priority Representative is the Second Priority Representative are currently due and payable in full
(whether as a result of acceleration thereof or otherwise) in accordance with the terms of the applicable Second Priority Debt Document; provided that the Second Priority Enforcement Date shall be stayed and shall not occur and shall be
deemed not to have occurred with respect to any Shared Collateral (1) at any time the Designated Senior Representative has commenced and is diligently pursuing any enforcement action with respect to such Shared Collateral or (2) at any
time the Grantor which has granted a security interest in such Shared Collateral is then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding.]16
“Second Priority Instructing Group” shall mean Second Priority Representatives representing at
least a majority of the then aggregate amount of Second Priority Debt Obligations outstanding that agree to vote together.
“Second Priority Lien” shall mean the Liens on the Second Priority Collateral in favor of Second
Priority Debt Parties under Second Priority Collateral Documents.
“Second Priority
Representative” shall mean (i) in the case of the Initial Second Priority Debt Obligations covered hereby, the Initial Second Priority Representative and (ii) in the case of any Second Priority Debt Facility and the Second
Priority Debt Parties thereunder the trustee, administrative agent, collateral agent, security agent or similar agent under such Second Priority Debt Facility that is named as the Representative in respect of such Second Priority Debt Facility in
the applicable Joinder Agreement.
| 16 |
Bracketed language may be included if Second Priority Debt is in the form of bank or mezzanine loans. |
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“Secured Obligations” shall mean the Senior Obligations and
the Second Priority Debt Obligations.
“Secured Parties” shall mean the Senior Secured
Parties and the Second Priority Debt Parties.
“Senior Class Debt” shall have the
meaning assigned to such term in Section 8.09.
“Senior Class Debt Parties” shall
have the meaning assigned to such term in Section 8.09.
“Senior Class Debt
Representative” shall have the meaning assigned to such term in Section 8.09.
“Senior Collateral” shall mean any “Collateral” as defined in any Credit Agreement Loan
Document or any other Senior Debt Document or any other assets of Holdings or any Borrower or other Grantor with respect to which a Lien is granted or purported to be granted pursuant to a Senior Collateral Document as security for any Senior Debt
Obligation.
“Senior Collateral Agent” shall mean Credit Suisse AG, in its capacity as
collateral agent under the Senior Collateral Documents, and any successor thereof or replacement senior collateral agent appointed in accordance with the terms of the Credit Agreement and, if it is then in effect, the First Lien Intercreditor
Agreement.
“Senior Collateral Documents” shall mean the Guarantee and Pledge
Agreement and the other Security Documents, the First Lien Intercreditor Agreement (upon and after the initial execution and delivery thereof by the initial parties thereto) and each of the security agreements and other instruments and documents
executed and delivered by Holdings or any Borrower or other Grantor for purposes of providing collateral security for any Senior Obligation.
“Senior Debt Documents” shall mean (a) the Credit Agreement Loan Documents and (b) any
Additional Senior Debt Documents.
“Senior Facilities” shall mean the Credit Agreement
and any Additional Senior Debt Facilities.
“Senior Lien” shall mean the Liens on the
Senior Collateral in favor of the Senior Secured Parties under the Senior Collateral Documents.
“Senior Obligations” shall mean the Credit Agreement Obligations and any Additional Senior Debt
Obligations.
“Senior Representative” shall mean (i) in the case of any Credit
Agreement Obligations or the Credit Agreement Secured Parties, the Administrative Agent, (ii) in the case of any Additional Senior Debt Facility and the Additional Senior Debt Parties thereunder (including with respect to any Additional Senior
Debt Facility initially covered hereby on the date of this Agreement) the trustee, administrative agent, collateral agent, security agent or similar agent under such Additional Senior Debt Facility that is named as the Representative in respect of
such Additional Senior Debt Facility hereunder or in the applicable Joinder Agreement.
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“Senior Secured Parties” shall mean the Credit Agreement
Secured Parties and any Additional Senior Debt Parties.
“Shared Collateral” shall
mean, at any time, Collateral in which the holders of Senior Obligations under at least one Senior Facility and the holders of Second Priority Debt Obligations under at least one Second Priority Debt Facility (or their Representatives) hold a
security interest at such time (or, in the case of the Senior Facilities, are deemed pursuant to Article II to hold a security interest). If, at any time, any portion of the Senior Collateral under one or more Senior Facilities does not constitute
Second Priority Collateral under one or more Second Priority Debt Facilities, then such portion of such Senior Collateral shall constitute Shared Collateral only with respect to the Second Priority Debt Facilities for which it constitutes Second
Priority Collateral and shall not constitute Shared Collateral for any Second Priority Debt Facility which does not have a security interest in such Collateral at such time.
“Subsidiary” shall have the meaning assigned to such term in the Credit Agreement.
“Uniform Commercial Code” or “UCC” shall mean, unless otherwise specified, the
Uniform Commercial Code as from time to time in effect in the State of New York.
SECTION 6.02. Terms
Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The
words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word
“shall”. Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument, other document, statute or regulation herein shall be construed as referring to such agreement, instrument, other
document, statute or regulation as from time to time amended, supplemented or otherwise modified, (ii) any reference herein to any person shall be construed to include such person’s successors and assigns, but shall not be deemed to
include the subsidiaries of such person unless express reference is made to such subsidiaries, (iii) the words “herein”, “hereof and “hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (iv) all references herein to Articles, Sections and Annexes shall be construed to refer to Articles, Sections and Annexes of this Agreement, (v) unless otherwise
expressly qualified herein, the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts
and contract rights and (vi) the term “or” is not exclusive.
ARTICLE VII
Priorities and Agreements with Respect to Shared Collateral
SECTION 7.01. Subordination. Notwithstanding the date, time, manner or order of filing or recordation of any document or
instrument or grant, attachment or perfection of any Liens granted to any Second Priority Representative or any Second Priority Debt Parties on the Shared Collateral or of any Liens granted to any Senior Representative or any other Senior Secured
Party on the Shared Collateral (or any actual or alleged defect in any of the foregoing) and notwithstanding any provision of the UCC, any Bankruptcy Law, any other applicable law, any Second Priority Debt Document or any Senior Debt Document or any
other circumstance whatsoever, each Second Priority Representative, on behalf of itself and each Second Priority
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Debt Party under its Second Priority Debt Facility, hereby agrees that (a) any Lien on the Shared Collateral securing any Senior Obligations now or hereafter held by or on behalf of any
Senior Representative, any other Senior Secured Party or other agent or trustee therefor, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall have priority over and be senior in all respects and
prior to any Lien on the Shared Collateral securing any Second Priority Debt Obligations and (b) any Lien on the Shared Collateral securing any Second Priority Debt Obligations now or hereafter held by or on behalf of any Second Priority
Representative, any Second Priority Debt Parties or any Second Priority Representative or other agent or trustee therefor, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be junior and
subordinate in all respects to all Liens on the Shared Collateral securing any Senior Obligations. All Liens on the Shared Collateral securing any Senior Obligations shall be and remain senior in all respects and prior to all Liens on the Shared
Collateral securing any Second Priority Debt Obligations for all purposes, whether or not such Liens securing any Senior Obligations are subordinated to any Lien securing any other obligation of Holdings or any Borrower or other Grantor or any other
person or otherwise subordinated, voided, avoided, invalidated or lapsed.
SECTION 7.02. Nature of Senior Lender
Claims. Each Second Priority Representative, on behalf of itself and each Second Priority Debt Party under its Second Priority Debt Facility, acknowledges that (a) a portion of the Senior Obligations is revolving in nature and that the
amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed, (b) the terms of the Senior Debt Documents and the Senior Obligations may be amended, supplemented or otherwise
modified, and the Senior Obligations, or a portion thereof, may be Refinanced from time to time and (c) the aggregate amount of the Senior Obligations may be increased, in each case, without notice to or consent by the Second Priority
Representatives or the Second Priority Debt Parties and without affecting the provisions hereof. The Lien priorities provided for in Section 2.01 shall not be altered or otherwise affected by any amendment, supplement or other modification, or
any Refinancing, of either the Senior Obligations or the Second Priority Debt Obligations, or any portion thereof. As between Holdings, the Borrowers and the other Grantors and the Second Priority Debt Parties, the foregoing provisions will not
limit or otherwise affect the obligations of Holdings, the Borrowers and the other Grantors contained in any Second Priority Debt Document with respect to the incurrence of additional Senior Obligations.
SECTION 7.03. Prohibition on Contesting Liens. Each of the Second Priority Representatives, for itself and on
behalf of each Second Priority Debt Party under its Second Priority Debt Facility, agrees that it shall not (and hereby waives any right to) contest or support any other person in contesting, in any proceeding (including any Insolvency or
Liquidation Proceeding), the validity, extent, perfection, priority or enforceability of any Lien securing any Senior Obligations held (or purported to be held) by or on behalf of any Senior Representative or any of the other Senior Secured Parties
or other agent or trustee therefor in any Senior Collateral, and each Senior Representative, for itself and on behalf of each Senior Secured Party under its Senior Facility, agrees that it shall not (and hereby waives any right to) contest or
support any other person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), the validity, extent, perfection, priority or enforceability of any Lien securing any Second Priority Debt Obligations held (or purported
to be held) by or on behalf of any of any Second Priority Representative or any of the Second Priority Debt Parties in the Second Priority Collateral. Notwithstanding the foregoing, no provision in this Agreement shall be construed to prevent or
impair the rights of any Senior Representative to enforce this Agreement (including the priority of the Liens securing the Senior Obligations as provided in Section 2.01) or any of the Senior Debt Documents.
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SECTION 7.04. No New Liens. The parties hereto agree that, so long as the Discharge
of Senior Obligations has not occurred (a) none of the Grantors shall grant or permit any additional Liens on any asset or property of any Grantor to secure any Second Priority Debt Obligation unless it has granted, or concurrently therewith
grants, a Lien on such asset or property of such Grantor to secure the Senior Obligations; and (b) if any Second Priority Representative or any Second Priority Debt Party shall hold any Lien on any assets or property of any Grantor securing any
Second Priority Obligations that are not also subject to the first-priority Liens securing Senior Obligations under the Senior Collateral Documents, such Second Priority Representative or Second Priority Debt Party (i) shall notify the
Designated Senior Representative promptly upon becoming aware thereof and, unless such Grantor shall promptly grant a similar Lien on such assets or property to each Senior Representative as security for the Senior Obligations, shall assign such
Lien to the Designated Senior Representative as security for the Senior Obligations for the benefit of the Senior Secured Parties (but may retain a junior lien on such assets or property subject to the terms hereof) and (ii) until such
assignment or such grant of a similar Lien to each Senior Representative, shall be deemed to hold and have held such Lien for the benefit of each Senior Representative and the other Senior Secured Parties as security for the Senior Obligations.
SECTION 7.05. Perfection of Liens. Except for the agreements of the Senior Representatives pursuant to
Section 5.05 hereof, none of the Senior Representatives or the Senior Secured Parties shall be responsible for perfecting and maintaining the perfection of Liens with respect to the Shared Collateral for the benefit of the Second Priority
Representatives or the Second Priority Debt Parties. The provisions of this Agreement are intended solely to govern the respective Lien priorities as between the Senior Secured Parties and the Second Priority Debt Parties and shall not impose on the
Senior Representatives, the Senior Secured Parties, the Second Priority Representatives, the Second Priority Debt Parties or any agent or trustee therefor any obligations in respect of the disposition of Proceeds of any Shared Collateral which would
conflict with prior perfected claims therein in favor of any other person or any order or decree of any court or governmental authority or any applicable law.
SECTION 7.06. Certain Cash Collateral. Notwithstanding anything in this Agreement or any other Senior Debt
Documents or Second Priority Debt Documents to the contrary, collateral consisting of cash and cash equivalents pledged to secure Credit Agreement Obligations consisting of reimbursement obligations in respect of Letters of Credit or otherwise held
by the Administrative Agent pursuant to Section 2.23(j) of the Credit Agreement (or any equivalent successor provision) shall be applied as specified in such Section of the Credit Agreement and will not constitute Shared Collateral.
ARTICLE VIII
Enforcement
SECTION 8.01.
Exercise of Remedies. (a) So long as the Discharge of Senior Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against Holdings or any Borrower or other
Grantor, (i) neither any Second Priority Representative nor any Second Priority Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Second
Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the
Shared Collateral or any other Senior Collateral by any Senior Representative or any Senior Secured Party in respect of the Senior Obligations,
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any exercise of any right by any Senior Representative or any Senior Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Obligations under any lockbox agreement,
control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any Senior Representative or any Senior Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by
any such party of any rights and remedies relating to the Shared Collateral under the Senior Debt Documents or otherwise in respect of the Senior Collateral or the Senior Obligations, or (z) object to the forbearance by the Senior Secured
Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Shared Collateral in respect of Senior Obligations and (ii) except as otherwise provided herein, the Senior
Representatives and the Senior Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions
with respect to the Shared Collateral without any consultation with or the consent of any Second Priority Representative or any Second Priority Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced
by or against Holdings or any Borrower or other Grantor, any Second Priority Representative may file a claim or statement of interest with respect to the Second Priority Debt Obligations under its Second Priority Debt Facility, (B) any Second
Priority Representative may take any action (not adverse to the prior Liens on the Shared Collateral securing the Senior Obligations or the rights of the Senior Representatives or the Senior Secured Parties to exercise remedies in respect thereof)
in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Shared Collateral, (C) any Second Priority Representative and the Second Priority Secured Parties may
exercise their rights and remedies as unsecured creditors, as provided in Section 5.04, [and] (D) any Second Priority Representative may exercise the rights and remedies provided for in Section 6.03 [and (E) from and after the
Second Priority Enforcement Date, the Major Second Priority Representative may exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Second Priority Debt Obligations, or
institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), but only so long as (1) the Designated Senior Representative has not commenced and is not diligently pursuing any enforcement
action with respect to such Shared Collateral or (2) the Grantor which has granted a security interest in such Shared Collateral is not then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding]17. In exercising rights and remedies with respect to the Senior Collateral, the Senior Representatives and the Senior Secured Parties may enforce the provisions of the Senior Debt Documents and
exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of
Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured
creditor under Bankruptcy Laws of any applicable jurisdiction.
| 17 |
Bracketed language may be included if Second Priority Debt is in the form of bank or mezzanine loans. |
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(b) So long as the Discharge of Senior Obligations has not occurred, each Second Priority
Representative, on behalf of itself and each Second Priority Debt Party under its Second Priority Debt Facility, agrees that it will not, in the context of its role as secured creditor, take or receive any Shared Collateral or any Proceeds of Shared
Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Shared Collateral in respect of Second Priority Debt Obligations. Without limiting the generality of the foregoing, unless and until the
Discharge of Senior Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.01(a), the sole right of the Second Priority Representatives and the Second Priority Debt Parties with respect to the
Shared Collateral is to hold a Lien on the Shared Collateral in respect of Second Priority Debt Obligations pursuant to the Second Priority Debt Documents for the period and to the extent granted therein and to receive a share of the Proceeds
thereof, if any, after the Discharge of Senior Obligations has occurred.
(c) Subject to the proviso in clause (ii) of
Section 3.01(a), (i) each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, agrees that neither such Second Priority Representative nor any such Second
Priority Debt Party will take any action that would hinder any exercise of remedies undertaken by any Senior Representative or any Senior Secured Party with respect to the Shared Collateral under the Senior Debt Documents, including any sale,
exchange, transfer or other disposition of the Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt
Facility, hereby waives any and all rights it or any such Second Priority Debt Party may have as a junior lien creditor or otherwise to object to the manner in which the Senior Representatives or the Senior Secured Parties seek to enforce or collect
the Senior Obligations or the Liens granted on any of the Senior Collateral, regardless of whether any action or failure to act by or on behalf of any Senior Representative or any other Senior Secured Party is adverse to the interests of the Second
Priority Debt Parties.
(d) Each Second Priority Representative hereby acknowledges and agrees that no covenant, agreement or restriction
contained in any Second Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the Senior Representatives or the Senior Secured Parties with respect to the Senior Collateral as set forth in this Agreement and the
Senior Debt Documents.
(e) Until the Discharge of Senior Obligations, the Designated Senior Representative shall have the exclusive right
to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto.
Following the Discharge of Senior Obligations, the Designated Second Priority Representative, who may be instructed by the Second Priority Instructing Group, shall have the exclusive right to exercise any right or remedy with respect to the
Collateral, and the Designated Second Priority Representative, who may be instructed by the Second Priority Instructing Group, shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the
exercise of any right or remedy available to the Second Priority Debt Parties with respect to the Collateral, or of exercising or directing the exercise of any trust or power conferred on the Second Priority Representatives, or for the taking of any
other action authorized by the Second Priority Collateral Documents; provided, however, that nothing in this Section shall impair the right of any Second Priority Representative or other agent or trustee acting on behalf of the Second Priority Debt
Parties to take such actions with respect to the Collateral after the Discharge of Senior Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Second Priority Debt Parties or the Second
Priority Debt Obligations.
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SECTION 8.02. Cooperation. Subject to the proviso in clause (ii) of
Section 3.01(a), each Second Priority Representative, on behalf of itself and each Second Priority Debt Party under its Second Priority Debt Facility, agrees that, unless and until the Discharge of Senior Obligations has occurred, it will not
commence, or join with any person (other than the Senior Secured Parties and the Senior Representatives upon the request of the Designated Senior Representative) in commencing, any enforcement, collection, execution, levy or foreclosure action or
proceeding with respect to any Lien held by it in the Shared Collateral under any of the Second Priority Debt Documents or otherwise in respect of the Second Priority Debt Obligations.
SECTION 8.03. Actions upon Breach. Should any Second Priority Representative or any Second Priority Debt Party,
contrary to this Agreement, in any way take, attempt to take or threaten to take any action with respect to the Shared Collateral (including any attempt to realize upon or enforce any remedy with respect to this Agreement) or fail to take any action
required by this Agreement, any Senior Representative or other Senior Secured Party (in its or their own name or in the name of Holdings or any Borrower or other Grantor) or the U.S. Borrower may obtain relief against such Second Priority
Representative or such Second Priority Debt Party by injunction, specific performance or other appropriate equitable relief. Each Second Priority Representative, on behalf of itself and each Second Priority Debt Party under its Second Priority
Facility, hereby (i) agrees that the Senior Secured Parties’ damages from the actions of the Second Priority Representatives or any Second Priority Debt Party may at that time be difficult to ascertain and may be irreparable and waives any
defense that Holdings or any Borrower or other Grantor or the Senior Secured Parties cannot demonstrate damage or be made whole by the awarding of damages and (ii) irrevocably waives any defense based on the adequacy of a remedy at law and any
other defense that might be asserted to bar the remedy of specific performance in any action that may be brought by any Senior Representative or any other Senior Secured Party.
ARTICLE IX
Payments
SECTION 9.01. Application of Proceeds. After an event of default under any Senior Debt Document has
occurred and until such event of default is cured or waived, so long as the Discharge of Senior Obligations has not occurred, the Shared Collateral or Proceeds thereof received in connection with the sale or other disposition of, or collection on,
such Shared Collateral upon the exercise of remedies shall be applied by the Designated Senior Representative to the Senior Obligations in such order as specified in the relevant Senior Debt Documents until the Discharge of Senior Obligations has
occurred. Upon the Discharge of Senior Obligations, each applicable Senior Representative shall deliver promptly to the Designated Second Priority Representative any Shared Collateral or Proceeds thereof held by it in the same form as received, with
any necessary endorsements, or as a court of competent jurisdiction may otherwise direct, to be applied by the Designated Second Priority Representative to the Second Priority Debt Obligations in such order as specified in the relevant Second
Priority Debt Documents.
SECTION 9.02. Payments Over. Unless and until the Discharge of Senior Obligations
has occurred, any Shared Collateral or Proceeds thereof received by any Second Priority Representative or any Second Priority Debt Party in connection with the exercise of any right or remedy (including setoff) relating to the Shared Collateral
shall be segregated and held in trust for the benefit of and forthwith paid over to the Designated Senior Representative for the benefit of the Senior Secured Parties in the same form as received, with any necessary endorsements, or as a court of
competent jurisdiction may otherwise direct. The Designated Senior Representative is hereby authorized to make any such endorsements as agent for each of the Second Priority Representatives or any such Second Priority Debt Party. This authorization
is coupled with an interest and is irrevocable.
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ARTICLE X
Other Agreements
SECTION
10.01. Releases. (a) Each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of
any specified item of Shared Collateral (including all or substantially all of the equity interests of any Subsidiary) (i) in connection with the exercise of remedies in respect of Collateral or (ii) if not in connection with the exercise
of remedies in respect of Collateral, so long as an Event of Default (as defined in and under any Second Lien Debt Document) has not occurred and is continuing, Liens granted to the Second Priority Representatives and the Second Priority Debt
Parties upon such Shared Collateral to secure Second Priority Debt Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared
Collateral to secure Senior Obligations. Upon delivery to a Second Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become
effective concurrently with such termination and release of the Liens granted to the Second Priority Debt Parties and the Second Priority Representatives) and any necessary or proper instruments of termination or release prepared by Holdings or any
Borrower or other Grantor, such Second Priority Representative will promptly execute, deliver or acknowledge, at Holdings’ or the Borrower’s or the other Grantor’s sole cost and expense, such instruments to evidence such termination
and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Second Priority Representative, for itself and on behalf of the Second Priority Debt Parties under its Second Priority Debt Facility, to
release the Liens on the Second Priority Collateral as set forth in the relevant Second Priority Debt Documents.
(b) Each Second Priority
Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior
Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Second Priority Representative or such Second Priority Debt Party or in the Designated
Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all
documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each, Second Priority Representative, for itself and on behalf of each
Second Priority Debt Party under its Second Priority Debt Facility, hereby consents to the application, whether prior to or after an event of default under any Senior Debt Document, of proceeds of Shared Collateral to the repayment of Senior
Obligations pursuant to the Senior Debt Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representatives or the Second Priority Debt Parties to receive proceeds
in connection with the Second Priority Debt Obligations not otherwise in contravention of this Agreement.
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(d) Notwithstanding anything to the contrary in any Second Priority Collateral Document, in the
event the terms of a Senior Collateral Document and a Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared
Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause
any securities intermediary, commodity intermediary or other person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared
Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law) or (vi) obtain the agreement of a
bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of, in any case, both the Designated Senior Representative
and any Second Priority Representative or Second Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the Second Priority Collateral Document as it relates to
such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
SECTION 10.02. [INTENTIONALLY OMITTED]
SECTION 10.03. Amendments to Second Priority Collateral Documents. (a) Except to the extent not prohibited by
any Senior Debt Document, no Second Priority Collateral Document may be amended, supplemented or otherwise modified or entered into to the extent such amendment, supplement or modification, or the terms of any new Second Priority Collateral
Document, would be prohibited by or inconsistent with any of the terms of this Agreement. The U.S. Borrower agrees to deliver to the Designated Senior Representative copies of (i) any amendments, supplements or other modifications to the Second
Priority Collateral Documents and (ii) any new Second Priority Collateral Documents promptly after effectiveness thereof. Each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority
Debt Facility, agrees that each Second Priority Collateral Document under its Second Priority Debt Facility (other than any account control or similar agreement with third parties) shall include the following language (or language to similar effect
reasonably approved by the Designated Senior Representative):
“Notwithstanding anything herein to the contrary,
(i) the liens and security interests granted to the [Second Priority Representative] pursuant to this Agreement are expressly subject and subordinate to the liens and security interests granted in favor of the Senior Secured Parties (as defined
in the Intercreditor Agreement referred to below), including liens and security interests granted to Credit Suisse AG, as collateral agent, pursuant to or in connection with the Second Amended and Restated Credit Agreement dated as of
January 9, 2015 (as amended, restated, supplemented or otherwise modified from time to time), among CBRE Services, Inc., a Delaware corporation (the “U.S. Borrower”), CBRE Limited, a limited company organized under the laws of England
and Wales (the “U.K. Borrower”), CBRE Limited, a corporation organized under the laws of the province of New Brunswick (the “Canadian Borrower”), CBRE Pty Limited, a company organized under the laws of Australia and registered in
New South Wales (the “Australian Borrower”), CBRE Limited, a company organized under the laws of New Zealand (the “New Zealand Borrower”), CBRE Group, Inc., a Delaware corporation (“Holdings”),
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the lenders party thereto, the issuing banks party thereto and Credit Suisse AG, as administrative agent and as collateral agent, and (ii) the exercise of any right or remedy by the [Second
Priority Representative] hereunder is subject to the limitations and provisions of the Intercreditor Agreement dated as of [ ], 20[ ] (as amended, restated, supplemented or otherwise modified from time
to time, the “Intercreditor Agreement”), among Credit Suisse AG, as the Senior Collateral Agent, the U.S. Borrower, Holdings and the subsidiaries of Holdings party thereto. In the event of any conflict between the terms of the
Intercreditor Agreement and the terms of this Agreement, the terms of the Intercreditor Agreement shall govern.”
(b) In the
event that each applicable Senior Representative and/or the Senior Secured Parties enter into any amendment, waiver or consent in respect of or replace any of the Senior Collateral Documents for the purpose of adding to or deleting from, or waiving
or consenting to any departures from any provisions of, any Senior Collateral Document or changing in any manner the rights of the Senior Representatives, the Senior Secured Parties, Holdings or any Borrower or other Grantor thereunder (including
the release of any Liens in Senior Collateral) in a manner that is applicable to all Senior Facilities, then such amendment, waiver or consent shall apply automatically to any comparable provision of each comparable Second Priority Collateral
Document without the consent of any Second Priority Representative or any Second Priority Debt Party and without any action by any Second Priority Representative, Holdings or any Borrower or other Grantor; provided, however, that
written notice of such amendment, waiver or consent shall have been given to each Second Priority Representative within 10 Business Days after the effectiveness of such amendment, waiver or consent; provided, further, that the failure
to give such notice shall not affect the effectiveness of such amendment, waiver or consent with respect to the provisions of any Second Priority Collateral Documents as set forth in this Section 5.03(b).
SECTION 10.04. Rights as Unsecured Creditors. Notwithstanding anything to the contrary in this Agreement, the
Second Priority Representatives and the Second Priority Debt Parties may exercise rights and remedies as unsecured creditors against Holdings or any Borrower or other Grantor in accordance with the terms of the Second Priority Debt Documents and
applicable law so long as such rights and remedies do not violate any express provision of this Agreement. Nothing in this Agreement shall prohibit the receipt by any Second Priority Representative or any Second Priority Debt Party of the required
payments of principal, premium, interest, fees and other amounts due under the Second Priority Debt Documents so long as such receipt is not the direct or indirect result of the exercise by a Second Priority Representative or any Second Priority
Debt Party of rights or remedies as a secured creditor in respect of Shared Collateral. In the event any Second Priority Representative or any Second Priority Debt Party becomes a judgment lien creditor in respect of Shared Collateral as a result of
its enforcement of its rights as an unsecured creditor in respect of Second Priority Debt Obligations, such judgment lien shall be subordinated to the Liens securing Senior Obligations on the same basis as the other Liens securing the Second
Priority Debt Obligations are so subordinated to such Liens securing Senior Obligations under this Agreement. Nothing in this Agreement shall impair or otherwise adversely affect any rights or remedies the Senior Representatives or the Senior
Secured Parties may have with respect to the Senior Collateral.
SECTION 10.05. Gratuitous Bailee for
Perfection. (a) Each Senior Representative acknowledges and agrees that if it shall at any time hold a Lien securing any Senior Obligations on any Shared Collateral that can be perfected by the possession or control of such
Shared Collateral or of any account in which such Shared Collateral is held, and if such
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Shared Collateral or any such account is in fact in the possession or under the control of such Senior Representative, or of agents or bailees of such person (such Shared Collateral being
referred to herein as the “Pledged or Controlled Collateral”), the applicable Senior Representative shall also hold such Pledged or Controlled Collateral as sub-agent or gratuitous bailee for the relevant Second Priority
Representatives, in each case solely for the purpose of perfecting the Liens granted under the relevant Second Priority Collateral Documents and subject to the terms and conditions of this Section 5.05.
(b) Except as otherwise specifically provided herein, until the Discharge of Senior Obligations has occurred, the Senior Representatives and
the Senior Secured Parties shall be entitled to deal with the Pledged or Controlled Collateral in accordance with the terms of the Senior Debt Documents as if the Liens under the Second Priority Collateral Documents did not exist. The rights of the
Second Priority Representatives and the Second Priority Debt Parties with respect to the Pledged or Controlled Collateral shall at all times be subject to the terms of this Agreement.
(c) The Senior Representatives and the Senior Secured Parties shall have no obligation whatsoever to the Second Priority Representatives or
any Second Priority Debt Party to assure that any of the Pledged or Controlled Collateral is genuine or owned by the Grantors or to protect or preserve rights or benefits of any person or any rights pertaining to the Shared Collateral, except as
expressly set forth in this Section 5.05. The duties or responsibilities of the Senior Representatives under this Section 5.05 shall be limited solely to holding or controlling the Shared Collateral and the related Liens referred to in
paragraphs (a) and (b) of this Section 5.05 as subagent and gratuitous bailee for the relevant Second Priority Representative for purposes of perfecting the Lien held by such Second Priority Representative.
(d) The Senior Representatives shall not have by reason of the Second Priority Collateral Documents or this Agreement, or any other document,
a fiduciary relationship in respect of any Second Priority Representative or any Second Priority Debt Party, and each, Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt
Facility, hereby waives and releases the Senior Representatives from all claims and liabilities arising pursuant to the Senior Representatives’ roles under this Section 5.05 as sub-agents and gratuitous bailees with respect to the Shared
Collateral.
(e) Upon the Discharge of Senior Obligations, each applicable Senior Representative shall, at the Grantors’ sole cost
and expense, (i) deliver to the Designated Second Priority Representative, to the extent that it is legally permitted to do so, all Shared Collateral, including all proceeds thereof, held or controlled by such Senior Representative or any of
its agents or bailees, including the transfer of possession and control, as applicable, of the Pledged or Controlled Collateral, together with any necessary endorsements and notices to securities intermediaries and commodities intermediaries or
(ii) direct and deliver such Shared Collateral as a court of competent jurisdiction may otherwise direct. The Grantors shall take such further action as is required to effectuate the transfer contemplated hereby and shall indemnify each Senior
Representative for loss or damage suffered by such Senior Representative as a result of such transfer, except for loss or damage suffered by any such person as a result of its own wilful misconduct, gross negligence or bad faith. The Senior
Representatives have no obligations to follow instructions from any Second Priority Representative or any other Second Priority Debt Party in contravention of this Agreement.
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(f) None of the Senior Representatives nor any of the other Senior Secured Parties shall be
required to marshal any present or future collateral security for any obligations of Holdings or any Borrower or other Subsidiary to any Senior Representative or any Senior Secured Party under the Senior Debt Documents or any assurance of payment in
respect thereof, or to resort to such collateral security or other assurances of payment in any particular order, and all of their rights in respect of such collateral security or any assurance of payment in respect thereof shall be cumulative and
in addition to all other rights, however existing or arising.
SECTION 10.06. When Discharge of Senior Obligations
Deemed to Not Have Occurred. If, at any time after the Discharge of Senior Obligations has occurred, Holdings or any Borrower or other Subsidiary incurs any Senior Obligations (other than in respect of the payment of indemnities surviving
the Discharge of Senior Obligations), then such Discharge of Senior Obligations shall automatically be deemed not to have occurred for all purposes of this Agreement (other than with respect to any actions taken prior to the date of such designation
as a result of the occurrence of such first Discharge of Senior Obligations) and the applicable agreement governing such Senior Obligations shall automatically be treated as a Senior Debt Document for all purposes of this Agreement, including for
purposes of the Lien priorities and rights in respect of Shared Collateral set forth herein and the granting by the applicable Senior Representative of amendments, waivers and consents hereunder and the agent, representative or trustee for the
holders of such Senior Obligations shall be a Senior Representative for all purposes of this Agreement. Upon receipt of notice of such incurrence (including the identity of the new Senior Representative), each Second Priority Representative
(including the Designated Second Priority Representative) shall promptly (a) enter into such documents and agreements (at the sole expense of the U.S. Borrower), including amendments or supplements to this Agreement, as the U.S. Borrower or
such new Senior Representative shall reasonably request in writing in order to provide the new Senior Representative the rights of a Senior Representative contemplated hereby and (b) deliver to such Senior Representative, to the extent that it
is legally permitted to do so, all Shared Collateral, including all proceeds thereof, held or controlled by such Second Priority Representative or any of its agents or bailees, including the transfer of possession and control, as applicable, of the
Pledged or Controlled Collateral, together with any necessary endorsements and notices to securities intermediaries and commodities intermediaries.
ARTICLE XI
Insolvency
or Liquidation Proceedings.
SECTION 11.01. Financing Issues. Until the Discharge of Senior Obligations has occurred, if
Holdings or any Borrower or other Grantor shall be subject to any Insolvency or Liquidation Proceeding and any Senior Representative or any Senior Secured Party shall desire to consent (or not object) to the sale or use of collateral or to consent
(or not object) to Holdings’ or any Borrower’s or other Grantor’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Code or any similar provision of any other Bankruptcy Law
(“DIP Financing”), then each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, agrees that it will raise no (a) objection to and will not
otherwise contest such sale or use of collateral or such DIP Financing and, except to the extent permitted by the proviso in clause (ii) of Section 3.01(a) and Section 6.03, will not request adequate protection or any other relief in
connection therewith and, to the extent the Liens securing any Senior Obligations are subordinated or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral
to (x) such DIP Financing (and all obligations relating thereto) on the same basis as the Liens securing the Second Priority Debt Obligations are so subordinated to Liens securing Senior Obligations under this Agreement and (y) to any
“carve-out” for professional and United States Trustee fees agreed to by the Senior Representatives, (b) objection to (and will not
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otherwise contest) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of Senior Obligations made by any Senior Representative or
any other Senior Secured Party, (c) objection to (and will not otherwise contest) any lawful exercise by any Senior Secured Party of the right to credit bid Senior Obligations at any sale in foreclosure of Senior Collateral, (d) objection
to (and will not otherwise contest) any other request for judicial relief made in any court by any Senior Secured Party relating to the lawful enforcement of any Lien on Senior Collateral or (e) objection to (and will not otherwise contest or
oppose) any order relating to a sale or other disposition of assets of any Grantor for which any Senior Representative has consented that provides, to the extent such sale or other disposition is to be free and clear of Liens, that the Liens
securing the Senior Obligations and the Second Priority Debt Obligations will attach to the proceeds of the sale on the same basis of priority as the Liens on the Shared Collateral securing the Senior Obligations rank to the Liens on the Shared
Collateral securing the Second Priority Debt Obligations pursuant to this Agreement. Each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, agrees that notice
received two Business Days prior to the entry of an order approving such usage of cash or other collateral or approving such financing shall be adequate notice.
SECTION 11.02. Relief from the Automatic Stay. Until the Discharge of Senior Obligations has occurred, each Second
Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, agrees that none of them shall seek relief from the automatic stay or any other stay in any Insolvency or Liquidation
Proceeding or take any action in derogation thereof, in each case in respect of any Shared Collateral, without the prior written consent of the Designated Senior Representative.
SECTION 11.03. Adequate Protection. Each Second Priority Representative, for itself and on behalf of each Second
Priority Debt Party under its Second Priority Debt Facility, agrees that none of them shall object, contest or support any other person objecting to or contesting (a) any request by any Senior Representative or any Senior Secured Parties for
adequate protection, (b) any objection by any Senior Representative or any Senior Secured Parties to any motion, relief, action or proceeding based on any Senior Representative’s or Senior Secured Party’s claiming a lack of adequate
protection or (c) the payment of interest, fees, expenses or other amounts of any Senior Representative or any other Senior Secured Party under Section 506(b) or 506(c) of Title 11 of the United States Code or any similar provision of any
other Bankruptcy Law. Notwithstanding anything contained in this Section 6.03 or in Section 6.01, in any Insolvency or Liquidation Proceeding, (i) if the Senior Secured Parties (or any subset thereof) are granted adequate protection
in the form of additional collateral in connection with any DIP Financing or use of cash collateral under Section 363 or 364 of Title 11 of the United States Code or any similar provision of any other Bankruptcy Law, then each Second Priority
Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility (x) may seek or request adequate protection in the form of a replacement Lien on such additional collateral, which Lien is
subordinated to the Liens securing the Senior Obligations and such DIP Financing (and all obligations relating thereto) on the same basis as the other Liens securing the Second Priority Debt Obligations are so subordinated to the Liens securing
Senior Obligations under this Agreement and (y) agrees that it will not seek or request, and will not accept, adequate protection in any other form and (ii) in the event any Second Priority Representatives, for themselves and on behalf of
the Second Priority Debt Parties under their Second Priority Debt Facilities, seek or request adequate protection and such adequate protection is granted in the form of additional collateral, then such Second Priority Representatives, for themselves
and on behalf of each Second Priority Debt Party under their Second Priority Debt Facilities, agree that each Senior Representative shall also be granted a
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senior Lien on such additional collateral as security for the Senior Obligations and any such DIP Financing and that any Lien on such additional collateral securing the Second Priority Debt
Obligations shall be subordinated to the Liens on such collateral securing the Senior Obligations and any such DIP Financing (and all obligations relating thereto) and any other Liens granted to the Senior Secured Parties as adequate protection on
the same basis as the other Liens securing the Second Priority Debt Obligations are so subordinated to such Liens securing Senior Obligations under this Agreement.
SECTION 11.04. Preference Issues. If any Senior Secured Party is required in any Insolvency or Liquidation
Proceeding or otherwise to disgorge, turn over or otherwise pay any amount to the estate of Holdings or any Borrower or other Grantor (or any trustee, receiver or similar person therefor), because the payment of such amount was declared to be
fraudulent or preferential in any respect or for any other reason, any amount (a “Recovery”), whether received as proceeds of security, enforcement of any right of setoff or otherwise, then the Senior Obligations shall be
reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred and the Senior Secured Parties shall be entitled to the benefits of this Agreement until a Discharge of Senior Obligations with respect to all
such recovered amounts. If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect
the obligations of the parties hereto. Each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby agrees that none of them shall be entitled to benefit from any
avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with this Agreement, whether by preference or otherwise, it being understood and agreed that the benefit of such avoidance action otherwise
allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreement.
SECTION 11.05. Separate Grants of Security and Separate Classifications. Each Second Priority Representative, for
itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, acknowledges and agrees that (a) the grants of Liens pursuant to the Senior Collateral Documents and the Second Priority Collateral Documents
constitute two separate and distinct grants of Liens and (b) because of, among other things, their differing rights in the Shared Collateral, the Second Priority Debt Obligations are fundamentally different from the Senior Obligations and must
be separately classified in any plan of reorganization proposed or adopted in an Insolvency or Liquidation Proceeding. To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held that any claims
of the Senior Secured Parties and the Second Priority Debt Parties in respect of the Shared Collateral constitute only a single class of claims (rather than separate classes of senior and junior secured claims), then each Second Priority
Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility, hereby acknowledges and agrees that all distributions shall be made as if there were separate classes of senior and junior secured
claims against the Grantors in respect of the Shared Collateral (with the effect being that, to the extent that the aggregate value of the Shared Collateral is sufficient (for this purpose ignoring all claims held by the Second Priority Debt
Parties), the Senior Secured Parties shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest and other claims, all amounts owing in respect of post-petition interest (whether or not
allowed or allowable) before any distribution is made in respect of the Second Priority Debt Obligations, with each Second Priority Representative, for itself and on behalf of each Second Priority Debt Party under its Second Priority Debt Facility,
hereby acknowledging and agreeing to turn over to the Designated Senior Representative amounts otherwise received or receivable by them to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of
reducing the claim or recovery of the Second Priority Debt Parties.
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SECTION 11.06. No Waivers of Rights of Senior Secured Parties.
Nothing contained herein shall, except as expressly provided herein, prohibit or in any way limit any Senior Representative or any other Senior Secured Party from objecting in any Insolvency or Liquidation Proceeding or otherwise to any action taken
by any Second Priority Debt Party, including the seeking by any Second Priority Debt Party of adequate protection or the asserting by any Second Priority Debt Party of any of its rights and remedies under the Second Priority Debt Documents or
otherwise.
SECTION 11.07. Application. This Agreement, which the parties hereto expressly acknowledge is a
“subordination agreement” under Section 510(a) of Title 11 of the United States Code or any similar provision of any other Bankruptcy Law, shall be effective before, during and after the commencement of any Insolvency or Liquidation
Proceeding. The relative rights as to the Shared Collateral and proceeds thereof shall continue after the commencement of any Insolvency or Liquidation Proceeding on the same basis as prior to the date of the petition therefor, subject to any court
order approving the financing of, or use of cash collateral by, any Grantor. All references herein to any Grantor shall include such Grantor as a debtor-in-possession and any receiver or trustee for such Grantor.
SECTION 11.08. Other Matters. To the extent that any Second Priority Representative or any Second Priority Debt Party has or
acquires rights under Section 363 or Section 364 of Title 11 of the United States Code or any similar provision of any other Bankruptcy Law with respect to any of the Shared Collateral, such Second Priority Representative, on behalf of
itself and each Second Priority Debt Party under its Second Priority Debt Facility, agrees not to assert any such rights without the prior written consent of the Designated Senior Representative, provided that if requested by the Designated Senior
Representative, such Second Priority Representative shall timely exercise such rights in the manner requested by the Designated Senior Representative, including any rights to payments in respect of such rights.
SECTION 11.09. 506(c) Claims. Until the Discharge of Senior Obligations has occurred, each Second Priority Representative, on
behalf of itself and each Second Priority Debt Party under its Second Priority Debt Facility, agrees that it will not assert or enforce any claim under Section 506(c) of Title 11 of the United States Code or any similar provision of any other
Bankruptcy Law senior to or on a parity with the Liens securing the Senior Obligations for costs or expenses of preserving or disposing of any Shared Collateral.
SECTION 11.10. Reorganization Securities. If, in any Insolvency or Liquidation Proceeding, debt obligations of the reorganized
debtor secured by Liens upon any property of the reorganized debtor are distributed, pursuant to a plan of reorganization or similar dispositive restructuring plan, on account of both the Senior Obligations and the Second Priority Debt Obligations,
then, to the extent the debt obligations distributed on account of the Senior Obligations and on account of the Second Priority Debt Obligations are secured by Liens upon the same assets or property, the provisions of this Agreement will survive the
distribution of such debt obligations pursuant to such plan and will apply with like effect to the Liens securing such debt obligations.
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ARTICLE XII
Reliance; etc.
SECTION
12.01. Reliance. The consent by the Senior Secured Parties to the execution and delivery of the Second Priority Debt Documents to which the Senior Secured Parties have consented and all loans and other extensions of credit made or
deemed made on and after the Closing Date by the Senior Secured Parties to Holdings or any Borrower or other Subsidiary shall be deemed to have been given and made in reliance upon this Agreement. Each Second Priority Representative, on behalf of
itself and each Second Priority Debt Party under its Second Priority Debt Facility, acknowledges that it and such Second Priority Debt Parties have, independently and without reliance on any Senior Representative or other Senior Secured Party, and
based on documents and information deemed by them appropriate, made their own credit analysis and decision to enter into the Second Priority Debt Documents to which they are party or by which they are bound, this Agreement and the transactions
contemplated hereby and thereby, and they will continue to make their own credit decisions in taking or not taking any action under the Second Priority Debt Documents or this Agreement.
SECTION 12.02. No Warranties or Liability. Each Second Priority Representative, on behalf of itself and each
Second Priority Debt Party under its Second Priority Debt Facility, acknowledges and agrees that neither any Senior Representative nor any other Senior Secured Party has made any express or implied representation or warranty, including with respect
to the execution, validity, legality, completeness, collectibility or enforceability of any of the Senior Debt Documents, the ownership of any Shared Collateral or the perfection or priority of any Liens thereon. The Senior Secured Parties will be
entitled to manage and supervise their respective loans and extensions of credit under the Senior Debt Documents in accordance with law and as they may otherwise, in their sole discretion, deem appropriate, and the Senior Secured Parties may manage
their loans and extensions of credit without regard to any rights or interests that the Second Priority Representatives and the Second Priority Debt Parties have in the Shared Collateral or otherwise, except as otherwise provided in this Agreement.
Neither any Senior Representative nor any other Senior Secured Party shall have any duty to any Second Priority Representative or Second Priority Debt Party to act or refrain from acting in a manner that allows, or results in, the occurrence or
continuance of an event of default or default under any agreement with Holdings or any Borrower or other Subsidiary (including the Second Priority Debt Documents), regardless of any knowledge thereof that they may have or be charged with. Except as
expressly set forth in this Agreement, the Senior Representatives, the Senior Secured Parties, the Second Priority Representatives and the Second Priority Debt Parties have not otherwise made to each other, nor do they hereby make to each other, any
warranties, express or implied, nor do they assume any liability to each other with respect to (a) the enforceability, validity, value or collectibility of any of the Senior Obligations, the Second Priority Debt Obligations or any guarantee or
security which may have been granted to any of them in connection therewith, (b) any Grantor’s title to or right to transfer any of the Shared Collateral or (c) any other matter except as expressly set forth in this Agreement.
SECTION 12.03. Obligations Unconditional. All rights, interests, agreements and obligations of the Senior
Representatives, the Senior Secured Parties, the Second Priority Representatives and the Second Priority Debt Parties hereunder shall remain in full force and effect irrespective of:
(a) any lack of validity or enforceability of any Senior Debt Document or any Second Priority Debt Document;
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(b) any change in the time, manner or place of payment of, or in any other terms of, all or any
of the Senior Obligations or Second Priority Debt Obligations, or any amendment or waiver or other modification, including any increase in the amount thereof, whether by course of conduct or otherwise, of the terms of the Credit Agreement or any
other Senior Debt Document or of the terms of any Second Priority Debt Document;
(c) any exchange of any security interest in any Shared
Collateral or any other collateral or any amendment, waiver or other modification, whether in writing or by course of conduct or otherwise, of all or any of the Senior Obligations or Second Priority Debt Obligations or any guarantee thereof;
(d) the commencement of any Insolvency or Liquidation Proceeding in respect of Holdings or any Borrower or other Grantor; or
(e) any other circumstances that otherwise might constitute a defense available to, or a discharge of, (i) any Grantor in respect of the
Senior Obligations or (ii) any Second Priority Representative or Second Priority Debt Party in respect of this Agreement.
ARTICLE
XIII
Miscellaneous
SECTION 13.01. Conflicts. Subject to Section 8.18, in the event of any conflict between the provisions of this Agreement
and the provisions of any Senior Debt Document or any Second Priority Debt Document, the provisions of this Agreement shall govern.
SECTION 13.02. Continuing Nature of this Agreement; Severability. Subject to Section 6.04, this Agreement
shall continue to be effective until the Discharge of Senior Obligations shall have occurred. This is a continuing agreement of Lien subordination, and the Senior Secured Parties may continue, at any time and without notice to the Second Priority
Representatives or any Second Priority Debt Party, to extend credit and other financial accommodations and lend monies to or for the benefit of Holdings or any Borrower or other Subsidiary constituting Senior Obligations in reliance hereon. The
terms of this Agreement shall survive and continue in full force and effect in any Insolvency or Liquidation Proceeding. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall not invalidate the remaining
provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 13.03. Amendments; Waivers. (a) No failure or delay on the part of any party hereto in exercising any right or
power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the parties hereto are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any
departure by any party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on any party hereto in any case shall entitle such party to any other or further notice or demand in similar or other circumstances.
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(b) This Agreement may be amended in writing signed by each Representative (in each case, acting
in accordance with the documents governing the applicable Debt Facility); provided that any such amendment, supplement or waiver which by the terms of this Agreement requires Holdings’ or any Borrower’s or other Grantor’s
consent or which increases the obligations or reduces the rights of Holdings or any Borrower or other Grantor shall require the consent of Holdings or such Borrower or other Grantor. Any such amendment, supplement or waiver shall be in writing and
shall be binding upon the Senior Secured Parties and the Second Priority Debt Parties and their respective successors and assigns.
(c)
Notwithstanding the foregoing, without the consent of any Secured Party, any Representative may become a party hereto by execution and delivery of a Joinder Agreement in accordance with Section 8.09 of this Agreement and upon such execution and
delivery, such Representative and the Secured Parties and Senior Obligations or Second Priority Debt Obligations of the Debt Facility for which such Representative is acting shall be subject to the terms hereof.
SECTION 13.04. Information Concerning Financial Condition of Holdings, the Borrowers and the other Subsidiaries.
The Senior Representatives, the Senior Secured Parties, the Second Priority Representatives and the Second Priority Secured Parties shall each be responsible for keeping themselves informed of (a) the financial condition of Holdings, the
Borrowers and the other Subsidiaries and all endorsers or guarantors of the Senior Obligations or the Second Priority Debt Obligations and (b) all other circumstances bearing upon the risk of nonpayment of the Senior Obligations or the Second
Priority Debt Obligations. The Senior Representatives, the Senior Secured Parties, the Second Priority Representatives and the Second Priority Secured Parties shall have no duty to advise any other party hereunder of information known to it or them
regarding such condition or any such circumstances or otherwise. In the event that any Senior Representative, any Senior Secured Party, any Second Priority Representative or any Second Priority Debt Party, in its sole discretion, undertakes at any
time or from time to time to provide any such information to any other party, it shall be under no obligation to (i) make, and the Senior Representatives, the Senior Secured Parties, the Second Priority Representatives and the Second Priority
Debt Parties shall not make or be deemed to have made, any express or implied representation or warranty, including with respect to the accuracy, completeness, truthfulness or validity of any such information so provided, (ii) provide any
additional information or to provide any such information on any subsequent occasion, (iii) undertake any investigation or (iv) disclose any information that, pursuant to accepted or reasonable commercial finance practices, such party
wishes to maintain confidential or is otherwise required to maintain confidential.
SECTION 13.05.
Subrogation. Each Second Priority Representative, on behalf of itself and each Second Priority Debt Party under its Second Priority Debt Facility, hereby waives any rights of subrogation it may acquire as a result of any payment
hereunder until the Discharge of Senior Obligations has occurred.
SECTION 13.06. Application of Payments.
Except as otherwise provided herein, all payments received by the Senior Secured Parties may be applied, reversed and reapplied, in whole or in part, to such part of the Senior Obligations as the Senior Secured Parties, in their sole discretion,
deem appropriate, consistent with the terms of the Senior Debt Documents. Except as otherwise provided herein, each Second Priority Representative, on behalf
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of itself and each Second Priority Debt Party under its Second Priority Debt Facility, assents to any such extension or postponement of the time of payment of the Senior Obligations or
any part thereof and to any other indulgence with respect thereto, to any substitution, exchange or release of any security that may at any time secure any part of the Senior Obligations and to the addition or release of any other person primarily
or secondarily liable therefor.
SECTION 13.07. Additional Grantors. Holdings and the U.S.
Borrower agree that, if any Subsidiary shall become a Grantor after the date hereof, it will promptly cause such Subsidiary to become party hereto by executing and delivering an instrument in the form of Annex II. Upon such execution and delivery,
such Subsidiary will become a Grantor hereunder with the same force and effect as if originally named as a Grantor herein. The execution and delivery of such instrument shall not require the consent of any other party hereunder, and will be
acknowledged by the Designated Second Priority Representative and the Designated Senior Representative. The rights and obligations of each Grantor hereunder shall remain in full force and effect notwithstanding the addition of any new Grantor as a
party to this Agreement.
SECTION 13.08. Dealings with Grantors. Upon any application or demand
by Holdings or any Borrower or other Grantor to any Representative to take or permit any action under any of the provisions of this Agreement or under any Collateral Document (if such action is subject to the provisions hereof), Holdings or such
Borrower or other Grantor, as appropriate, shall furnish to such Representative a certificate of an appropriate officer ( an “Officer’s Certificate”) stating that all conditions precedent, if any, provided for in this
Agreement or such Collateral Document, as the case may be, relating to the proposed action have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required by
any provision of this Agreement or any Collateral Document relating to such particular application or demand, no additional certificate or opinion need be furnished.
SECTION 13.09. Additional Debt Facilities. To the extent, but only to the extent, permitted by the provisions of
the Senior Debt Documents and the Second Priority Debt Documents, Holdings or any Borrower or other Subsidiary may incur or issue and sell Second Priority Debt and Additional Senior Debt. Any such Second Priority Debt (the “Second
Priority Class Debt”) may be secured by a second priority, subordinated Lien on Shared Collateral, in each case under and pursuant to the relevant Second Priority Collateral Documents for such Second Priority Class Debt, if and subject
to the condition that the Representative of any such Second Priority Class Debt (each, a “Second Priority Class Debt Representative”), acting on behalf of the holders of such Second Priority Class Debt (such Representative
and holders in respect of any Second Priority Class Debt being referred to as the “Second Priority Class Debt Parties”), becomes a party to this Agreement by satisfying conditions (i) through (vi), as applicable, of the
immediately succeeding paragraph. Any such Additional Senior Debt (the “Senior Class Debt”, and the Senior Class Debt and Second Priority Class Debt, collectively, the “Class Debt”) may be secured by a
senior Lien on Shared Collateral, in each case under and pursuant to the Senior Collateral Documents, if and subject to the condition that the Representative of any such Senior Class Debt (each, a “Senior Class Debt
Representative”, and the Senior Class Debt Representatives and Second Priority Class Debt Representatives, collectively, the “Class Debt Representatives”), acting on behalf of the holders of such Senior
Class Debt (such Representative and holders in respect of any such Senior Class Debt being referred to as the “Senior Class Debt Parties”, and the Senior Class Debt
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Parties and Second Priority Class Debt Parties, collectively, the “Class Debt Parties”), becomes a party to this Agreement by satisfying the conditions set forth
in clauses (i) through (vi), as applicable, of the immediately succeeding paragraph. In order for a Class Debt Representative to become a party to this Agreement:
(i) such Class Debt Representative shall have executed and delivered a Joinder Agreement substantially in the form of Annex III
(if such Representative is a Second Priority Class Debt Representative) or Annex IV (if such Representative is a Senior Class Debt Representative) (with such changes as may be reasonably approved by the Designated Senior Representative and such
Class Debt Representative) pursuant to which it becomes a Representative hereunder, and the Class Debt in respect of which such Class Debt Representative is the Representative and the related Class Debt Parties become subject hereto and bound
hereby;
(ii) the U.S. Borrower shall have delivered to the Designated Senior Representative an Officer’s Certificate
stating that the conditions set forth in this Section 8.09 are satisfied with respect to such Class Debt and, if requested, true and complete copies of each of the Second Priority Debt Documents or Senior Debt Documents, as applicable, relating
to such Class Debt, certified as being true and correct by a Responsible Officer of the U.S. Borrower;
(iii) in the case
of any Second Priority Class Debt, all filings, recordations and/or amendments or supplements to the Second Priority Collateral Documents necessary or desirable in the opinion of the Designated Second Priority Representative to confirm and perfect
the second priority Liens securing the relevant Second Priority Debt Obligations relating to such Class Debt shall have been made, executed and/or delivered (or, with respect to any such filings or recordations, acceptable provisions to perform such
filings or recordings have been taken in the reasonable judgment of the Designated Second Priority Representative), and all fees and taxes in connection therewith shall have been paid (or acceptable provisions to make such payments have been taken
in the reasonable judgment of the Designated Senior Representative);
(iv) in the case of any Senior Class Debt, all
filings, recordations and/or amendments or supplements to the Senior Collateral Documents necessary or desirable in the opinion of the Designated Senior Representative to confirm and perfect the senior Liens securing the relevant Senior Obligations
relating to such Class Debt shall have been made, executed and/or delivered (or, with respect to any such filings or recordations, acceptable provisions to perform such filings or recordings have been taken in the reasonable judgment of the
Designated Senior Representative), and all fees and taxes in connection therewith shall have been paid; and
(v) the Second
Priority Debt Documents or Senior Debt Documents, as applicable, relating to such Class Debt shall provide, in a manner reasonably satisfactory to the Designated Senior Representative and the Designated Second Priority Representative, that each
Class Debt Party with respect to such Class Debt will be subject to and bound by the provisions of this Agreement in its capacity as a holder of such Class Debt.
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SECTION 13.10. Consent to Jurisdiction; Waivers. Each Representative,
on behalf of itself and the Secured Parties of the Debt Facility for which it is acting, irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to this Agreement and the Collateral
Documents, or for recognition and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of the courts of the State of New York, the courts of the United States of America for the Southern District of New York, and appellate
courts from any thereof;
(b) consents that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage prepaid, to such person (or its Representative) at the address referred to in Section 8.11;
(d) agrees that nothing herein shall affect the right of any other party hereto (or any Secured Party) to effect service of
process in any other manner permitted by law or shall limit the right of any party hereto (or any Secured Party) to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or
proceeding referred to in this Section 8.10 any special, exemplary, punitive or consequential damages.
SECTION 13.11.
Notices. All notices, requests, demands and other communications provided for or permitted hereunder shall be in writing and shall be sent:
(i) if to Holdings or any Borrower or other Grantor, to the U.S. Borrower, at its address at:[ ],
Attention of [ ], telecopy [ ];
(ii) if to the Initial Second Priority
Representative to it at [ ] Attention of [ ], telecopy [ ];
(iii) if to the original Senior Collateral Agent or the Administrative Agent, to it at:[ ], Attention of
[ ], telecopy [ ];
(iv) if to any other Second Priority Representative or
Senior Representative, to it at the address specified by it in the Joinder Agreement delivered by it pursuant to Section 8.09.
Unless otherwise
specifically provided herein, any notice or other communication herein required or permitted to be given shall be in writing and, may be personally served, telecopied, electronically mailed or sent by courier service or U.S. mail and shall be deemed
to have been given when delivered in person or by courier service, upon receipt of a telecopy or electronic mail or upon receipt via U.S. mail (registered or certified, with postage prepaid and properly addressed). For the purposes hereof, the
addresses of the parties hereto shall be as set forth above or, as to each party, at such other address as may be designated by such party in a written notice to all of the other parties. As agreed to in writing among each Representative from time
to time, notices and other communications may also be delivered by e-mail to the e-mail address of a representative of the applicable person provided from time to time by such person.
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SECTION 13.12. Further Assurances. Each Senior Representative, on
behalf of itself and each Senior Secured Party under the Senior Debt Facility for which it is acting, and each Second Priority Representative, on behalf of itself and each Second Priority Debt Party under its Second Priority Debt Facility, agrees
that it will take such further action and shall execute and deliver such additional documents and instruments (in recordable form, if requested) as the other parties hereto may reasonably request to effectuate the terms of, and the Lien priorities
contemplated by, this Agreement.
SECTION 13.13. GOVERNING LAW; WAIVER OF JURY TRIAL.
(A) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
(B) EACH PARTY
HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO
(1) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (2) ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.13.
SECTION 13.14. Binding on Successors and Assigns. This Agreement shall be binding upon the Senior Collateral
Agent, the Senior Representatives, the Senior Secured Parties, the Second Priority Representatives, the Second Priority Debt Parties, the Grantors party hereto and their respective successors and assigns.
SECTION 13.15. Section Titles. The section titles contained in this Agreement are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of this Agreement.
SECTION 13.16. Counterparts. This Agreement may be
executed in one or more counterparts, including by means of facsimile or other electronic transmission, each of which shall be an original and all of which shall together constitute one and the same document. Delivery of an executed signature page
to this Agreement by facsimile or other electronic transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.
SECTION 13.17. Authorization. By its signature, each person executing this Agreement on behalf of a party hereto represents and
warrants to the other parties hereto that it is duly authorized to execute this Agreement. The Administrative Agent represents and warrants that this Agreement is binding upon the Credit Agreement Secured Parties. The Initial Second Priority
Representative represents and warrants that this Agreement is binding upon the Initial Second Priority Debt Parties.
SECTION 13.18. No Third Party Beneficiaries; Successors and Assigns. The Lien priorities set forth in this
Agreement and the rights and benefits hereunder in respect of such Lien priorities shall inure solely to the benefit of the Senior Representatives, the Senior Secured Parties, the Second Priority Representatives and the Second Priority Debt Parties,
and their respective permitted successors and assigns, and no other person (including the Grantors, or any trustee, receiver, debtor in possession or bankruptcy estate in a bankruptcy or like proceeding) shall have or be entitled to
assert such rights.
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SECTION 13.19. Effectiveness. This Agreement shall become effective when executed
and delivered by the parties hereto. This Agreement shall be effective both before and after the commencement of any Insolvency or Liquidation Proceeding. All references to the Grantors shall include each Grantor as debtor and debtor-in-possession
and any receiver or trustee for such Grantor (as the case may be) in any Insolvency or Liquidation Proceeding.
SECTION
13.20. Senior Collateral Agent. It is understood and agreed that the Senior Collateral Agent is entering into this Agreement in (a) its capacities as Administrative Agent and Collateral Agent under the Credit Agreement and the
provisions of Article VIII of the Credit Agreement applicable to it as administrative agent and collateral agent thereunder shall also apply to it as Senior Collateral Agent hereunder and (b) its capacity as Collateral Agent under the First
Lien Intercreditor Agreement (if applicable), and the provisions of Article IV of the First Lien Intercreditor Agreement applicable to it as collateral agent thereunder shall also apply to it as Senior Collateral Agent hereunder.
SECTION 13.21. Relative Rights. Notwithstanding anything in this Agreement to the contrary (except to the extent contemplated by
Section 5.01(a), 5.01(d) or 5.03(b)), nothing in this Agreement is intended to or will (a) amend, waive or otherwise modify the provisions of the Credit Agreement, any other Senior Debt Document or any Second Priority Debt Documents, or
permit Holdings or any Borrower or other Grantor to take any action, or fail to take any action, to the extent such action or failure would otherwise constitute a breach of, or default under, the Credit Agreement or any other Senior Debt Document or
any Second Priority Debt Documents, (b) change the relative priorities of the Senior Obligations or the Liens granted under the Senior Collateral Documents on the Shared Collateral (or any other assets) as among the Senior Secured Parties,
(c) otherwise change the relative rights of the Senior Secured Parties in respect of the Shared Collateral as among such Senior Secured Parties or (d) obligate Holdings or any Borrower or other Grantor to take any action, or fail to take
any action, that would otherwise constitute a breach of, or default under, the Credit Agreement or any other Senior Debt Document or any Second Priority Debt Document.
SECTION 13.22. Survival of Agreement. All covenants, agreements, representations and warranties made by any party
in this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
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ANNEX I
Grantors
[ ]
ANNEX II
SUPPLEMENT NO. [ ] dated as of , to the SECOND LIEN INTERCREDITOR AGREEMENT dated as of
[ ], 20[ ] (the “Second Lien Intercreditor Agreement”), among CBRE Services, Inc., a Delaware corporation (the “U.S.
Borrower”), CBRE Group, Inc., a Delaware corporation (“Holdings”), certain subsidiaries of Holdings (each a “Grantor”), Credit Suisse AG, as Senior Collateral Agent for the Senior Secured
Parties under the Senior Collateral Documents (in such capacity, the “Senior Collateral Agent”) and as Designated Senior Representative [ ], as Initial
Second Priority Representative, and the additional Representatives from time to time a party thereto.
A. Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Second Lien Intercreditor Agreement.
B. The Grantors have entered into the Second Lien Intercreditor Agreement. Pursuant to the Credit Agreement, certain Additional
Senior Debt Documents and certain Second Priority Debt Documents, certain newly acquired or organized Subsidiaries are required to enter into the Second Lien Intercreditor Agreement. Section 8.07 of the Second Lien Intercreditor Agreement
provides that such Subsidiaries may become party to the Second Lien Intercreditor Agreement by execution and delivery of an instrument in the form of this Supplement. The undersigned Subsidiary (the “New Grantor”) is
executing this Supplement in accordance with the requirements of the Credit Agreement, the Second Priority Debt Documents and Additional Senior Debt Documents.
Accordingly, the Designated Senior Representative and the New Grantor agree as follows:
SECTION 1. In accordance with Section 8.07 of the Second Lien Intercreditor Agreement, the New Grantor by its signature below becomes a
Grantor under the Second Lien Intercreditor Agreement with the same force and effect as if originally named therein as a Grantor, and the New Grantor hereby agrees to all the terms and provisions of the Second Lien Intercreditor Agreement applicable
to it as a Grantor thereunder. Each reference to a “Grantor” in the Second Lien Intercreditor Agreement shall be deemed to include the New Grantor. The Second Lien Intercreditor Agreement is hereby incorporated herein by reference.
SECTION 2. The New Grantor represents and warrants to the Designated Senior Representative and the other Secured Parties that this Supplement
has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts, each of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Supplement shall become effective when the Designated Senior Representative shall have received a counterpart of this Supplement that bears the signature of the New Grantor. Delivery of an executed signature
page to this Supplement by facsimile or other electronic transmission shall be as effective as delivery of a manually signed counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Second Lien Intercreditor Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this Supplement should be held invalid,
illegal or unenforceable in any respect, no party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal or unenforceable, but the validity, legality and enforceability of the remaining
provisions contained herein and in the Second Lien Intercreditor Agreement shall not in any way be affected or impaired. The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing and given as provided in Section 8.11 of the Second Lien
Intercreditor Agreement. All communications and notices hereunder to the New Grantor shall be given to it in care of the U.S. Borrower as specified in the Second Lien Intercreditor Agreement.
SECTION 8. The U.S. Borrower agrees to reimburse the Designated Senior Representative for its reasonable out-of-pocket expenses in connection
with this Supplement, including the reasonable fees, other charges and disbursements of counsel for the Designated Senior Representative.
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IN WITNESS WHEREOF, the New Grantor, and the Designated Senior Representative have duly executed
this Supplement to the Second Lien Intercreditor Agreement as of the day and year first above written.
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Acknowledged by:
CREDIT
SUISSE AG, CAYMAN ISLANDS BRANCH, as Designated Senior Representative,
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ANNEX III
[FORM OF] REPRESENTATIVE SUPPLEMENT NO. [ ] dated as of
[ ], 20[ ] to the SECOND LIEN INTERCREDITOR AGREEMENT dated as of [ ],
20[ ] (the “Second Lien Intercreditor Agreement”), among CBRE Services, Inc., a Delaware corporation (the “U.S. Borrower”), CBRE Group, Inc., a Delaware corporation
(“Holdings”), certain subsidiaries of Holdings (each a “Grantor”), Credit Suisse AG, as Senior Collateral Agent for the Senior Secured Parties under the Senior Collateral Documents (in such capacity,
the “Senior Collateral Agent”) and as Designated Senior Representative [ ], as Initial Second Priority Representative, and the additional Representatives
from time to time a party thereto.
A. Capitalized terms used herein but not otherwise defined herein shall have the
meanings assigned to such terms in the Second Lien Intercreditor Agreement.
B. As a condition to the ability of Holdings or
any Borrower or other Subsidiary to incur Second Priority Debt and to secure such Second Priority Class Debt with the Second Priority Lien pursuant to the Second Priority Collateral Documents, the Second Priority Class Representative in respect of
such Second Priority Class Debt is required to become a Representative under, and such Second Priority Class Debt and the Second Priority Class Debt Parties in respect thereof are required to become subject to and bound by, the Second Lien
Intercreditor Agreement. Section 8.09 of the Second Lien Intercreditor Agreement provides that such Second Priority Class Debt Representative may become a Representative under, and such Second Priority Class Debt and such Second Priority Class
Debt Parties may become subject to and bound by, the Second Lien Intercreditor Agreement, pursuant to the execution and delivery by the Second Priority Class Debt Representative of an instrument in the form of this Representative Supplement and the
satisfaction of the other conditions set forth in Section 8.09 of the Second Lien Intercreditor Agreement. The undersigned Second Priority Class Debt Representative (the “New Representative”) is executing this Supplement
in accordance with the requirements of the Senior Debt Documents and the Second Priority Debt Documents.
Accordingly, the
Designated Senior Representative and the New Representative agree as follows:
SECTION 1. In accordance with
Section 8.09 of the Second Lien Intercreditor Agreement, the New Representative by its signature below becomes a Representative under, and the related Second Priority Class Debt and Second Priority Class Debt Parties become subject to and bound
by, the Second Lien Intercreditor Agreement with the same force and effect as if the New Representative had originally been named therein as a Representative, and the New Representative, on behalf of itself and such Second Priority Class Debt
Parties, hereby agrees to all the terms and provisions of the Second Lien Intercreditor Agreement applicable to it as a Second Priority Representative and to the Second Priority Class Debt Parties that it represents as Second Priority Debt Parties.
Each reference to a “Representative” or “Second Priority Representative” in the Second Lien Intercreditor Agreement shall be deemed to include the New Representative. The Second Lien Intercreditor
Agreement is hereby incorporated herein by reference.
SECTION 2. The New Representative represents and warrants to the
Designated Senior Representative and the other Secured Parties that (i) it has full power and authority to enter into this Representative Supplement, in its capacity as [agent] [trustee], (ii) this Representative Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid
and binding obligation, enforceable against it in accordance with the terms of such Agreement and (iii) the Second Priority Debt Documents relating to such Second Priority Class Debt provide
that, upon the New Representative’s entry into this Agreement, the Second Priority Class Debt Parties in respect of such Second Priority Class Debt will be subject to and bound by the provisions of the Second Lien Intercreditor Agreement as
Second Priority Debt Parties.
SECTION 3. This Representative Supplement may be executed in counterparts, each of which shall constitute
an original, but all of which when taken together shall constitute a single contract. This Representative Supplement shall become effective when the Designated Senior Representative shall have received a counterpart of this Representative Supplement
that bears the signature of the New Representative. Delivery of an executed signature page to this Representative Supplement by facsimile or other electronic transmission shall be effective as delivery of a manually signed counterpart of this
Representative Supplement.
SECTION 4. Except as expressly supplemented hereby, the Second Lien Intercreditor Agreement shall remain in
full force and effect.
SECTION 5. THIS REPRESENTATIVE SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this Representative Supplement should be
held invalid, illegal or unenforceable in any respect, no party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal or unenforceable, but the validity, legality and enforceability of
the remaining provisions contained herein and in the Second Lien Intercreditor Agreement shall not in any way be affected or impaired. The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing and given as provided in Section 8.11 of the Second Lien
Intercreditor Agreement. All communications and notices hereunder to the New Representative shall be given to it at the address set forth below its signature hereto.
SECTION 8. The U.S. Borrower agrees to reimburse the Designated Senior Representative for its reasonable out-of-pocket expenses in connection
with this Representative Supplement, including the reasonable fees, other charges and disbursements of counsel for the Designated Senior Representative.
IN WITNESS WHEREOF, the New Representative and the Designated Senior Representative have duly executed this Representative Supplement to the
Second Lien Intercreditor Agreement as of the day and year first above written.
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attention
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| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Designated
Senior Representative, |
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CBRE SERVICES, INC., |
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Schedule I to the
Representative Supplement to the
Second Lien Intercreditor Agreement
Grantors
[ ]
ANNEX IV
[FORM OF] REPRESENTATIVE SUPPLEMENT NO. [ ] dated as of
[ ], 20[ ] to the SECOND LIEN INTERCREDITOR AGREEMENT dated as of [ ],
20[ ] (the “Second Lien Intercreditor Agreement”), among CBRE Services, Inc., a Delaware corporation (the “U.S. Borrower”), CBRE Group, Inc., a Delaware corporation
(“Holdings”), certain subsidiaries of Holdings (each a “Grantor”), Credit Suisse AG, as Senior Collateral Agent for the Senior Secured Parties under the Senior Collateral Documents (in such capacity,
the “Senior Collateral Agent”) and as Designated Senior Representative, [ ], as Initial Second Priority Representative, and the additional Representatives
from time to time a party thereto.
A. Capitalized terms used herein but not otherwise defined herein shall have the
meanings assigned to such terms in the Second Lien Intercreditor Agreement.
B. As a condition to the ability of Holdings or any Borrower
or other Subsidiary to incur Senior Class Debt after the date of the Second Lien Intercreditor Agreement and to secure such Senior Class Debt with the Senior Lien pursuant to the Senior Collateral Documents, the Senior Class Debt Representative in
respect of such Senior Class Debt is required to become a Representative under, and such Senior Class Debt and the Senior Class Debt Parties in respect thereof are required to become subject to and bound by, the Second Lien Intercreditor Agreement.
Section 8.09 of the Second Lien Intercreditor Agreement provides that such Senior Class Debt Representative may become a Representative under, and such Senior Class Debt and such Senior Class Debt Parties may become subject to and bound by, the
Second Lien Intercreditor Agreement, pursuant to the execution and delivery by the Senior Class Debt Representative of an instrument in the form of this Representative Supplement and the satisfaction of the other conditions set forth in
Section 8.09 of the Second Lien Intercreditor Agreement. The undersigned Senior Class Debt Representative (the “New Representative”) is executing this Supplement in accordance with the requirements of the Senior Debt
Documents and the Second Priority Debt Documents.
Accordingly, the Designated Senior Representative and the New Representative agree as
follows:
SECTION 1. In accordance with Section 8.09 of the Second Lien Intercreditor Agreement, the New Representative by its
signature below becomes a Representative under, and the related Senior Class Debt and Senior Class Debt Parties become subject to and bound by, the Second Lien Intercreditor Agreement with the same force and effect as if the New Representative had
originally been named therein as a Representative, and the New Representative, on behalf of itself and such Senior Class Debt Parties, hereby agrees to all the terms and provisions of the Second Lien Intercreditor Agreement applicable to it as a
Senior Representative and to the Senior Class Debt Parties that it represents as Senior Debt Parties. Each reference to a “Representative” or “Senior Representative” in the Second Lien Intercreditor
Agreement shall be deemed to include the New Representative. The Second Lien Intercreditor Agreement is hereby incorporated herein by reference.
SECTION 2. The New Representative represents and warrants to the Designated Senior Representative and the other Secured Parties that
(i) it has full power and authority to enter into this Representative Supplement, in its capacity as [agent] [trustee], (ii) this Representative Supplement has been duly authorized, executed and delivered by it and constitutes its legal,
valid
and binding obligation, enforceable against it in accordance with the terms of such Agreement and (iii) the Senior Debt Documents relating to such Senior Class Debt provide that, upon the
New Representative’s entry into this Agreement, the Senior Class Debt Parties in respect of such Senior Class Debt will be subject to and bound by the provisions of the Second Lien Intercreditor Agreement as Senior Secured Parties.
SECTION 3. This Representative Supplement may be executed in counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Representative Supplement shall become effective when the Designated Senior Representative shall have received a counterpart of this Representative Supplement that bears the signature of the
New Representative. Delivery of an executed signature page to this Representative Supplement by facsimile or other electronic transmission shall be effective as delivery of a manually signed counterpart of this Representative Supplement.
SECTION 4. Except as expressly supplemented hereby, the Second Lien Intercreditor Agreement shall remain in full force and effect.
SECTION 5. THIS REPRESENTATIVE SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this Representative Supplement should be held invalid, illegal or
unenforceable in any respect, no party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal or unenforceable, but the validity, legality and enforceability of the remaining provisions
contained herein and in the Second Lien Intercreditor Agreement shall not in any way be affected or impaired. The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION
7. All communications and notices hereunder shall be in writing and given as provided in Section 8.11 of the Second Lien Intercreditor Agreement. All communications and notices hereunder to the New Representative shall be given to it at the
address set forth below its signature hereto.
SECTION 8. The U.S. Borrower agrees to reimburse the Designated Senior Representative for
its reasonable out-of-pocket expenses in connection with this Representative Supplement, including the reasonable fees, other charges and disbursements of counsel for the Designated Senior Representative.
IN WITNESS WHEREOF, the New Representative and the Designated Senior Representative have duly executed this Representative Supplement to the
Second Lien Intercreditor Agreement as of the day and year first above written.
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THE GRANTORS
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EXHIBIT H-2
Grantors
[
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EXHIBIT I-1
FORM OF
U.S. TAX COMPLIANCE
CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to the Second Amended and Restated Credit Agreement dated as of January 9, 2015 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among CBRE Services, Inc., a Delaware corporation (the “U.S. Borrower”), CBRE Limited, a limited company organized under
the laws of England and Wales, CBRE Limited, a corporation organized under the laws of the province of New Brunswick, CBRE Pty Limited, a company organized under the laws of Australia and registered in New South Wales, CBRE Limited, a company
organized under the laws of New Zealand, CBRE Group, Inc., a Delaware corporation, the lenders from time to time party thereto (the “Lenders”) and Credit Suisse AG, as administrative agent (in such capacity, the
“Administrative Agent”) and collateral agent for the Lenders.
Pursuant to the provisions of
Section 2.20 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any note(s) evidencing such Loan(s)) in respect of which it is providing this
certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the U.S. Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is
not a controlled foreign corporation related to the U.S. Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned
has furnished the Administrative Agent and the U.S. Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E (or successor form), as applicable. By executing this certificate, the undersigned agrees that
(1) if the information provided on this certificate changes, the undersigned shall promptly so inform the U.S. Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the U.S. Borrower and the
Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
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EXHIBIT I-2
FORM OF
U.S. TAX COMPLIANCE
CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to the Second Amended and Restated Credit Agreement dated as of January 9, 2015 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among CBRE Services, Inc., a Delaware corporation (the “U.S. Borrower”), CBRE Limited, a limited company organized under
the laws of England and Wales, CBRE Limited, a corporation organized under the laws of the province of New Brunswick, CBRE Pty Limited, a company organized under the laws of Australia and registered in New South Wales, CBRE Limited, a company
organized under the laws of New Zealand, CBRE Group, Inc., a Delaware corporation, the lenders from time to time party thereto (the “Lenders”) and Credit Suisse AG, as administrative agent and collateral agent for the
Lenders.
Pursuant to the provisions of Section 2.20 of the Credit Agreement, the undersigned hereby certifies that
(i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent
shareholder of the U.S. Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the U.S. Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form
W-8BEN-E (or successor form), as applicable. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and
(2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar
years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.
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EXHIBIT I-3
FORM OF
U.S. TAX COMPLIANCE
CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to the Second Amended and Restated Credit Agreement dated as of January 9, 2015 (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), among CBRE Services, Inc., a Delaware corporation (the “U.S. Borrower”), CBRE Limited, a limited company organized under the laws of
England and Wales, CBRE Limited, a corporation organized under the laws of the province of New Brunswick, CBRE Pty Limited, a company organized under the laws of Australia and registered in New South Wales, CBRE Limited, a company organized under
the laws of New Zealand, CBRE Group, Inc., a Delaware corporation, the lenders from time to time party thereto (the “Lenders”) and Credit Suisse AG, as administrative agent and collateral agent for the Lenders.
Pursuant to the provisions of Section 2.20 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record
owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the
undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code,
(iv) none of its direct or indirect partners/members is a ten percent shareholder of the U.S. Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled
foreign corporation related to the U.S. Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its
participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E (or successor form), as
applicable, or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E (or successor form), as applicable, from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest
exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times
furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
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EXHIBIT I-4
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to the Second Amended and Restated Credit Agreement dated as of January 9, 2015 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among CBRE Services, Inc., a Delaware corporation (the “U.S. Borrower”), CBRE Limited, a limited company organized under
the laws of England and Wales, CBRE Limited, a corporation organized under the laws of the province of New Brunswick, CBRE Pty Limited, a company organized under the laws of Australia and registered in New South Wales, CBRE Limited, a company
organized under the laws of New Zealand, CBRE Group, Inc., a Delaware corporation, the lenders from time to time party thereto (the “Lenders”) and Credit Suisse AG, as administrative agent (in such capacity, the
“Administrative Agent”) and collateral agent for the Lenders.
Pursuant to the provisions of
Section 2.20 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its
direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document,
neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the
Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the U.S. Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a
controlled foreign corporation related to the U.S. Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has
furnished the Administrative Agent and the U.S. Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form
W-8BEN-E (or successor form), as applicable, or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E (or successor form), as applicable, from each of such partner’s/member’s beneficial owners that is claiming
the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the U.S. Borrower and the Administrative Agent,
and (2) the undersigned shall have at all times furnished the U.S. Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the
undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have
the meanings given to them in the Credit Agreement.
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2
EXHIBIT J-1
FORM OF COMPETITIVE BID REQUEST
Credit Suisse
AG, as Advance Agent
for the Lenders referred to below,
c/o
Credit Suisse AG
Eleven Madison Avenue
New York, NY 10010
Attention: [ ]
[Date]
Ladies and Gentlemen:
The
undersigned, CBRE Services, Inc., a Delaware corporation (the “U.S. Borrower”), refers to the Second Amended and Restated Credit Agreement, dated as of January 9, 2015 (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), among the U.S. Borrower, the other Borrowers identified therein, Holdings, the Lenders party thereto and Credit Suisse AG, as Administrative Agent, among others.
Capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.
The U.S. Borrower hereby gives you notice pursuant to Section 2.27(a) of the Credit Agreement that the U.S. Borrower requests a
Competitive Borrowing under the Credit Agreement, and in that connection sets forth below the terms on which such Competitive Borrowing is requested to be made:
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|
|
| (a) |
|
Date of Competitive Borrowing (which is a Business Day) |
|
|
|
|
|
| (b) |
|
Principal amount of Competitive Borrowing1 |
|
|
|
|
|
| (c) |
|
Interest rate basis2 |
|
|
|
|
|
| (d) |
|
Interest Period and the last day thereof3 |
|
|
| 1 |
Not less than the Borrowing Minimum (in integral multiples of the Borrowing Multiple) and not more than an amount such that (i) the Aggregate Competitive Loan Exposure (after giving effect to this Competitive
Borrowing) shall not exceed 50% of the Total Domestic Revolving Credit Commitment and (ii) the sum of the Aggregate Domestic Revolving Credit Exposure plus the Aggregate Competitive Loan Exposure (after giving effect to this Competitive
Borrowing) shall not exceed the Total Domestic Revolving Credit Commitment then available. |
| 2 |
Eurocurrency Loan or Flat Rate Loan. |
| 3 |
Which shall be subject to the definition of “Interest Period” and end no later than the Revolving Credit Maturity Date. |
Upon acceptance of any or all of the Loans offered by the Domestic Revolving Credit Lenders in
response to this request by the U.S. Borrower, the U.S. Borrower shall be deemed to have represented and warranted that the conditions to lending specified in Section 4.01(b) and (c) of the Credit Agreement have been satisfied. Any amounts
borrowed shall be deposited in [ ] account number
[ ].
|
|
|
| Very truly yours, |
|
| CBRE SERVICES, INC., |
|
|
| By: |
|
|
|
|
Name: |
|
|
Title: |
2
EXHIBIT J-2
FORM OF NOTICE OF COMPETITIVE BID REQUEST
[Name
of Domestic Revolving Credit Lender]
[Address]
[Date]
Attention: [ ]
Ladies and Gentlemen:
Reference is made to the
Second Amended and Restated Credit Agreement, dated as of January 9, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among CBRE Services, Inc., a Delaware
corporation (the “U.S. Borrower”), the other Borrowers identified therein, Holdings, the Lenders party thereto and Credit Suisse AG, as Administrative Agent, among others. Capitalized terms used and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The U.S. Borrower made a Competitive Bid Request on
[ ], 20[ ], pursuant to Section 2.27(a) of the Credit Agreement,
and in that connection you are invited to submit a Competitive Bid by [Date]/[Time].1 Your Competitive Bid must comply with Section 2.27(b) of the Credit Agreement and the terms set forth
below on which the Competitive Bid Request was made:
|
|
|
|
|
| (a) |
|
Date of Competitive Borrowing (which is a Business Day) |
|
|
|
|
|
| (b) |
|
Principal amount of Competitive Borrowing2 |
|
|
|
|
|
| (c) |
|
Interest rate basis3 |
|
|
|
|
|
| (d) |
|
Interest Period and the last day thereof4 |
|
|
| 1 |
The Competitive Bid must be received by the Advance Agent not later than 9:30 a.m., New York City time, four Business Days before the proposed date of such Competitive Borrowing. |
| 2 |
Not less than the Borrowing Minimum (in integral multiples of the Borrowing Multiple) and not more than an amount such that (i) the Aggregate Competitive Loan Exposure (after giving effect to this Competitive
Borrowing) shall not exceed 50% of the Total Domestic Revolving Credit Commitment and (ii) the sum of the Aggregate Domestic Revolving Credit Exposure plus the Aggregate Competitive Loan Exposure (after giving effect to this Competitive
Borrowing) shall not exceed the Total Domestic Revolving Credit Commitment then available. |
| 3 |
Eurocurrency Loan or Flat Rate Loan. |
| 4 |
Which shall be subject to the definition of “Interest Period” and end no later than the Revolving Credit Maturity Date. |
|
|
|
| Very truly yours, |
|
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Advance Agent |
|
|
| By: |
|
|
|
|
Name: |
|
|
Title: |
2
EXHIBIT J-3
FORM OF COMPETITIVE BID
Credit Suisse AG, as
Advance Agent
for the Lenders referred to below,
c/o Credit
Suisse AG
Eleven Madison Avenue
New York, NY 10010
Attention: [ ]
[Date]
Ladies and Gentlemen:
The undersigned, [Name of Domestic Revolving Credit Lender], refers to the Second Amended and Restated Credit Agreement, dated as
of January 9, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among CBRE Services, Inc., a Delaware corporation (the “U.S. Borrower”),
the other Borrowers identified therein, Holdings, the Lenders party thereto and Credit Suisse AG, as Administrative Agent, among others. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement.
The undersigned hereby makes a Competitive Bid pursuant to Section 2.27(b) of the Credit Agreement,
in response to the Competitive Bid Request made by the U.S. Borrower on [ ],
20[ ], and in that connection sets forth below the terms on which such Competitive Bid is made:
|
|
|
| Principal Amount1 |
|
|
|
|
| Competitive Bid Rate2 |
|
|
|
|
| Interest Period and last day thereof3 |
|
|
The undersigned hereby confirms that it is prepared, subject to the conditions set forth in the Credit
Agreement, to extend credit to the U.S. Borrower upon acceptance by the U.S. Borrower of this bid in accordance with Section 2.27(e) of the Credit Agreement.
| 1 |
Not less than the Borrowing Minimum (in integral multiples of the Borrowing Multiple) and not more than the principal amount set forth in the applicable Competitive Bid Request. Multiple bids will be accepted by the
Advance Agent. |
| 2 |
i.e., Eurocurrency Rate + or - [ ]%, in the case of Eurocurrency Competitive Loans, or [ ]%, in the case of Flat Rate Loans. |
| 3 |
Which shall be subject to the definition of “Interest Period” and end no later than the Revolving Credit Maturity Date. |
|
|
|
| Very truly yours, |
|
| [NAME OF DOMESTIC REVOLVING CREDIT LENDER] |
|
|
| By: |
|
|
|
|
Name: |
|
|
Title: |
2
EXHIBIT J-4
FORM OF COMPETITIVE BID ACCEPT/REJECT LETTER
Credit Suisse AG, as Advance Agent
for the Lenders referred to
below,
c/o Credit Suisse AG
Eleven Madison Avenue
New York, NY 10010
Attention:
[ ]
[Date]
Ladies and Gentlemen:
The
undersigned, CBRE Services, Inc., a Delaware corporation (the “U.S. Borrower”), refers to the Second Amended and Restated Credit Agreement, dated as of January 9, 2015 (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), among the U.S. Borrower, the other Borrowers identified therein, Holdings, the Lenders party thereto and Credit Suisse AG, as Administrative Agent, among others.
Capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.
In accordance with Section 2.27(c) of the Credit Agreement, we have received a summary of bids in connection with our Competitive Bid
Request dated [ ], 20[ ], and in accordance with Section 2.27(d)
of the Credit Agreement, we hereby irrevocably accept the following bids for maturity on [date]:
|
|
|
|
|
| Principal Amount |
|
Fixed Rate/Margin |
|
Lender |
| $ |
|
[%]/[+/-[ ]%] |
|
|
| $ |
|
[%]/[+/-[ ]%] |
|
|
We hereby irrevocably reject the following bids:
|
|
|
|
|
| Principal Amount |
|
Fixed Rate/Margin |
|
Lender |
| $ |
|
[%]/[+/-[ ]%] |
|
|
| $ |
|
[%]/[+/-[ ]%] |
|
|
The $[ ] should be deposited in
[ ] account number
[ ] on [date].
|
|
|
| Very truly yours, |
|
| CBRE SERVICES, INC., |
|
|
| By: |
|
|
|
|
Name: |
|
|
Title: |
2
Schedule 2.01 – Lenders
Schedule 1.01(a) – Subsidiary Guarantors
CBRE, Inc.
CBRE Global Investors, Inc.
CBRE Global Investors, LLC
CB/TCC Global Holdings Limited
CBRE Capital Markets of Texas, LP
CBRE Capital Markets, Inc.
CBRE Clarion CRA Holdings, Inc.
CBRE Clarion REI Holding,
Inc.
CBRE Government Services, LLC
CBRE/LJM –
Nevada, Inc.
CBRE Partner, Inc.
CBRE Technical Services,
LLC
CB/TCC, LLC
Trammell Crow Company, LLC
Guarantors for Foreign Obligation Only
CBRE
Global Holdings SARL
CBRE Limited (a corporation organized under the laws of England and Wales)
CBRE Limited (a corporation organized under the laws of the province of New Brunswick)
CBRE Limited Partnership
Relam Amsterdam Holdings B.V.
Schedule 1.01(c) – Approved Take Out Parties
| • |
|
Industrial Developments International, Inc. and the Special Situation Property Fund of JP Morgan Chase Bank, N.A. |
Schedule 1.01(d) – Existing Letter of Credit
|
|
|
|
|
|
|
| Letter of Credit # |
|
Beneficiary |
|
Amount |
|
|
|
|
| TS-07004899 |
|
Ontario Infrastructure and Lands Corporation |
|
CAD |
2,500,000 |
|
|
|
|
| TS-07005368 |
|
200 Park LP |
|
USD |
1,998,100 |
|
|
|
|
| TS-07004692 |
|
Zurich American Insurance Company |
|
USD |
3,181,000 |
|
|
|
|
| TS-07006393 |
|
Internet Corporation of Assigned Name |
|
USD |
26,000 |
|
Schedule 2.01 – Lenders
DOMESTIC REVOLVING CREDIT COMMITMENTS
|
|
|
|
|
| LENDER |
|
COMMITMENT |
|
|
|
| BANK OF AMERICA, N.A. |
|
$ |
179,325,928.58 |
|
|
|
| JPMORGAN CHASE BANK, N.A. |
|
$ |
179,325,928.58 |
|
|
|
| HSBC BANK USA, NATIONAL ASSOCIATION |
|
$ |
179,325,928.58 |
|
|
|
| THE BANK OF NOVA SCOTIA |
|
$ |
179,325,928.57 |
|
|
|
| THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. |
|
$ |
179,325,928.57 |
|
|
|
| WELLS FARGO BANK, N.A. |
|
$ |
179,325,928.57 |
|
|
|
| THE ROYAL BANK OF SCOTLAND PLC |
|
$ |
182,747,437.30 |
|
|
|
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH |
|
$ |
130,418,857.19 |
|
|
|
| BARCLAYS BANK PLC |
|
$ |
97,814,142.85 |
|
|
|
| SANTANDER BANK, N.A. |
|
$ |
91,293,200.00 |
|
|
|
| AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED |
|
$ |
58,688,485.71 |
|
|
|
| THE BANK OF NEW YORK MELLON |
|
$ |
65,209,428.57 |
|
|
|
| BRANCH BANKING AND TRUST COMPANY |
|
$ |
48,907,071.44 |
|
|
|
| PNC BANK, NATIONAL ASSOCIATION |
|
$ |
32,604,714.28 |
|
|
|
| SOCIETE GENERALE |
|
$ |
32,604,714.28 |
|
|
|
| MIZUHO BANK, LTD. |
|
$ |
19,562,828.56 |
|
|
|
| US BANK NATIONAL ASSOCIATION |
|
$ |
62,903,225.81 |
|
|
|
| COMERICA BANK |
|
$ |
22,645,161.29 |
|
|
|
| FIRST COMMERCIAL BANK, NEW YORK BRANCH |
|
$ |
16,774,193.55 |
|
|
|
| ASSOCIATED BANK, N.A. |
|
$ |
25,161,290.32 |
|
|
|
| BANK OF HAWAII |
|
$ |
12,580,645.16 |
|
|
|
| MEGA INTERNATIONAL COMMERCIAL BANK CO., LTD. NEW YORK BRANCH |
|
$ |
15,096,774.19 |
|
|
|
| FIRST TENNESSEE BANK NATIONAL ASSOCIATION |
|
$ |
25,161,290.32 |
|
|
|
| KEYBANK NATIONAL ASSOCIATION |
|
$ |
41,935,483.87 |
|
|
|
| HUA NAN COMMERCIAL BANK, LTD., LOS ANGELES BRANCH |
|
$ |
12,580,645.16 |
|
|
|
| HUA NAN COMMERCIAL BANK, LTD., NEW YORK AGENCY |
|
$ |
12,580,645.16 |
|
|
|
| CHANG HWA COMMERCIAL BANK, LTD., NEW YORK BRANCH |
|
$ |
8,387,096.77 |
|
|
|
| E. SUN COMMERCIAL BANK, LTD., LOS ANGELES BRANCH |
|
$ |
8,387,096.77 |
|
|
|
|
|
|
| TOTAL: |
|
$ |
2,100,000,000.00 |
|
MULTICURRENCY REVOLVING CREDIT COMMITMENTS
|
|
|
|
|
| LENDER |
|
COMMITMENT |
|
|
|
| BANK OF AMERICA, N.A. |
|
$ |
21,696,252.47 |
|
|
|
| JPMORGAN CHASE BANK, N.A. |
|
$ |
21,696,252.47 |
|
|
|
| HSBC BANK USA, NATIONAL ASSOCIATION |
|
$ |
21,696,252.47 |
|
|
|
| SCOTIABANC INC. |
|
$ |
21,696,252.47 |
|
|
|
| THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. |
|
$ |
21,696,252.47 |
|
|
|
| WELLS FARGO BANK, N.A. |
|
$ |
21,696,252.47 |
|
|
|
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH |
|
$ |
15,779,092.66 |
|
|
|
| BARCLAYS BANK PLC |
|
$ |
11,834,319.53 |
|
|
|
| SANTANDER BANK, N.A. |
|
$ |
11,045,364.89 |
|
|
|
| AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED |
|
$ |
7,100,591.72 |
|
|
|
| THE BANK OF NEW YORK MELLON |
|
$ |
7,889,546.35 |
|
|
|
| BRANCH BANKING AND TRUST COMPANY |
|
$ |
5,917,159.76 |
|
|
|
| PNC BANK, NATIONAL ASSOCIATION |
|
$ |
3,944,773.18 |
|
|
|
| SOCIETE GENERALE |
|
$ |
3,944,773.18 |
|
|
|
| MIZUHO BANK, LTD. |
|
$ |
2,366,863.91 |
|
|
|
|
|
|
| TOTAL: |
|
$ |
200,000,000.00 |
|
U.K. REVOLVING CREDIT COMMITMENTS
|
|
|
|
|
| LENDER |
|
COMMITMENT |
|
|
|
| BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED |
|
$ |
29,622,980.25 |
|
|
|
| JPMORGAN CHASE BANK, N.A. |
|
$ |
29,622,980.25 |
|
|
|
| HSBC BANK USA, NATIONAL ASSOCIATION |
|
$ |
29,622,980.25 |
|
|
|
| SCOTIABANC EUROPE PLC |
|
$ |
29,622,980.25 |
|
|
|
| THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. |
|
$ |
29,622,980.25 |
|
|
|
| WELLS FARGO BANK, N.A. |
|
$ |
29,622,980.25 |
|
|
|
| THE ROYAL BANK OF SCOTLAND PLC |
|
$ |
26,929,982.05 |
|
|
|
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH |
|
$ |
21,543,985.63 |
|
|
|
| BARCLAYS BANK PLC |
|
$ |
16,157,989.23 |
|
|
|
| SANTANDER BANK, N.A. |
|
$ |
15,080,789.95 |
|
|
|
| AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED |
|
$ |
9,694,793.54 |
|
|
|
| THE BANK OF NEW YORK MELLON |
|
$ |
10,771,992.82 |
|
|
|
| BRANCH BANKING AND TRUST COMPANY |
|
$ |
8,078,994.61 |
|
|
|
| PNC BANK, NATIONAL ASSOCIATION |
|
$ |
5,385,996.41 |
|
|
|
| SOCIETE GENERALE |
|
$ |
5,385,996.41 |
|
|
|
| MIZUHO BANK, LTD. |
|
$ |
3,231,597.85 |
|
|
|
|
|
|
| TOTAL: |
|
$ |
300,000,000.00 |
|
TRANCHE A COMMITMENTS
|
|
|
|
|
| LENDER |
|
COMMITMENT |
|
|
|
| BANK OF AMERICA, N.A. |
|
$ |
44,354,838.70 |
|
|
|
| JPMORGAN CHASE BANK, N.A. |
|
$ |
44,354,838.70 |
|
|
|
| HSBC BANK USA, NATIONAL ASSOCIATION |
|
$ |
44,354,838.70 |
|
|
|
| THE BANK OF NOVA SCOTIA |
|
$ |
44,354,838.71 |
|
|
|
| MUFG UNION BANK, N.A. |
|
$ |
44,354,838.71 |
|
|
|
| WELLS FARGO BANK, N.A. |
|
$ |
44,354,838.71 |
|
|
|
| THE ROYAL BANK OF SCOTLAND PLC |
|
$ |
40,322,580.65 |
|
|
|
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH |
|
$ |
32,258,064.52 |
|
|
|
| BARCLAYS BANK PLC |
|
$ |
24,193,548.39 |
|
|
|
| SANTANDER BANK, N.A. |
|
$ |
22,580,645.16 |
|
|
|
| AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED |
|
$ |
14,516,129.03 |
|
|
|
| THE BANK OF NEW YORK MELLON |
|
$ |
16,129,032.26 |
|
|
|
| BRANCH BANKING AND TRUST COMPANY |
|
$ |
12,096,774.19 |
|
|
|
| PNC BANK, NATIONAL ASSOCIATION |
|
$ |
8,064,516.13 |
|
|
|
| SOCIETE GENERALE |
|
$ |
8,064,516.13 |
|
|
|
| MIZUHO BANK, LTD. |
|
$ |
4,838,709.68 |
|
|
|
| US BANK NATIONAL ASSOCIATION |
|
$ |
12,096,774.19 |
|
|
|
| COMERICA BANK |
|
$ |
4,354,838.71 |
|
|
|
| FIRST COMMERCIAL BANK, NEW YORK BRANCH |
|
$ |
3,225,806.45 |
|
|
|
| ASSOCIATED BANK, N.A. |
|
$ |
4,838,709.68 |
|
|
|
| BANK OF HAWAII |
|
$ |
2,419,354.84 |
|
|
|
| MEGA INTERNATIONAL COMMERCIAL BANK CO., LTD. NEW YORK BRANCH |
|
$ |
2,903,225.81 |
|
|
|
| FIRST TENNESSEE BANK NATIONAL ASSOCIATION |
|
$ |
4,838,709.68 |
|
|
|
| KEYBANK NATIONAL ASSOCIATION |
|
$ |
8,064,516.13 |
|
|
|
| HUA NAN COMMERCIAL BANK, LTD., LOS ANGELES BRANCH |
|
$ |
2,419,354.84 |
|
|
|
| HUA NAN COMMERCIAL BANK, LTD., NEW YORK AGENCY |
|
$ |
2,419,354.84 |
|
|
|
| CHANG HWA COMMERCIAL BANK, LTD., NEW YORK BRANCH |
|
$ |
1,612,903.23 |
|
|
|
| E. SUN COMMERCIAL BANK, LTD., LOS ANGELES BRANCH |
|
$ |
1,612,903.23 |
|
|
|
|
|
|
| TOTAL: |
|
$ |
500,000,000.00 |
|
Schedule 2.01(a) – Issuing Bank Commitments
ISSUING BANK COMMITMENTS
|
|
|
|
|
| ISSUING BANK |
|
L/C COMMITMENT |
|
|
|
| BANK OF AMERICA, N.A. |
|
$ |
73,333,333.33 |
|
|
|
| JPMORGAN CHASE BANK, N.A. |
|
$ |
73,333,333.33 |
|
|
|
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH |
|
$ |
53,333,333.34 |
|
|
|
|
|
|
| TOTAL: |
|
$ |
200,000,000.00 |
|
Schedule 3.08 Investment Subsidiaries
Development Services Entities
|
|
|
|
|
|
|
|
|
|
|
|
|
| Name of TCC Subsidiary |
|
Country of
Incorporation |
|
Parent |
|
Total TCC
Ownership |
|
|
For 50% or less owned
subs, mark
if
consolidated |
|
Investment
Subsidiary |
| Corporation |
|
|
|
|
|
|
|
|
|
|
|
|
| Environmental Asset Services, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| Fairway Centre, Inc. |
|
United States |
|
TC Houston Retail Development, Inc. |
|
|
100 |
|
|
|
|
X |
| High Street Arizona, Inc. |
|
United States |
|
Trammell Crow Arizona Development, Inc. |
|
|
100 |
|
|
|
|
X |
| High Street Clarkson Warranty, Inc. |
|
United States |
|
Trammell Crow Development & Investment, Inc. |
|
|
100 |
|
|
|
|
X |
| High Street Columbia, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| High Street Crestview Station GP, Inc. |
|
United States |
|
Trammell Crow Central Texas Development, Inc. |
|
|
100 |
|
|
|
|
X |
| High Street Denver, Inc. |
|
United States |
|
Trammell Crow Denver Development, Inc. |
|
|
100 |
|
|
|
|
X |
| High Street NE Metro, Inc. |
|
United States |
|
TC NE Metro Development, Inc. |
|
|
100 |
|
|
|
|
X |
| High Street Rainey GP, Inc. |
|
United States |
|
TCCT Development, Inc. |
|
|
100 |
|
|
|
|
X |
| High Street Residential, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| NE Metro Development 2, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| Northfield Company, Ltd. |
|
Canada |
|
Trammell Crow Company (Canada), Ltd. |
|
|
100 |
|
|
|
|
X |
| Partners Health Realty Holdings, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| South Kitchener Holdings, ULC |
|
Canada |
|
South Kitchener Holdings, LP |
|
|
5 |
|
|
|
|
X |
| TC Acquisitions, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TC Atlanta Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TC Austin Development, Inc. |
|
United States |
|
Trammell Crow Development & Investment, Inc. |
|
|
100 |
|
|
|
|
X |
| TC Austin Industrial Development, Inc. |
|
United States |
|
Trammell Crow Development & Investment, Inc. |
|
|
100 |
|
|
|
|
X |
| TC Austin Office Development, Inc. |
|
United States |
|
Trammell Crow Development & Investment, Inc. |
|
|
100 |
|
|
|
|
X |
| TC CS, Inc. |
|
United States |
|
Trammell Crow Portland Development, Inc. |
|
|
100 |
|
|
|
|
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
| TC Denver Development, Inc. |
|
United States |
|
Trammell Crow Development & Investment, Inc. |
|
|
100 |
|
|
|
|
X |
| TC DUHS, Inc. |
|
United States |
|
Trammell Crow Carolinas Development, Inc. |
|
|
100 |
|
|
|
|
X |
| TC Fort Lincoln Retail Manager, Inc. |
|
United States |
|
TC MidAtlantic Development IV, Inc. |
|
|
100 |
|
|
|
|
X |
| TC Grand Parkway GP, Inc. |
|
United States |
|
Trammell Crow Houston Development, Inc. |
|
|
100 |
|
|
|
|
X |
| TC Houston Industrial Development, Inc. |
|
United States |
|
Trammell Crow Development & Investment, Inc. |
|
|
100 |
|
|
|
|
X |
| TC Houston Katy GP, Inc. |
|
United States |
|
PHT Investment Holdings II, LLC |
|
|
1 |
|
|
|
|
X |
| TC Houston MOB Development, Inc. |
|
United States |
|
Trammell Crow Development & Investment, Inc. |
|
|
100 |
|
|
|
|
X |
| TC Houston Office Development, Inc. |
|
United States |
|
Trammell Crow Development & Investment, Inc. |
|
|
100 |
|
|
|
|
X |
| TC Houston Retail Development, Inc. |
|
United States |
|
Trammell Crow Development & Investment, Inc. |
|
|
100 |
|
|
|
|
X |
| TC Houston Sugar Land GP, Inc. |
|
United States |
|
PHT Investment Holdings II, LLC |
|
|
1 |
|
|
|
|
X |
| TC Industrial Associates, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TC Industrial, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TC LA Development, Inc. |
|
United States |
|
Trammell Crow Development & Investment, Inc. |
|
|
100 |
|
|
|
|
X |
| TC LA Industrial Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TC LA MF Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TC LA Office Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TC LA Retail Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TC Maryland Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TC MidAtlantic Development II, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TC MidAtlantic Development III, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TC MidAtlantic Development IV, Inc. |
|
United States |
|
Trammell Crow Development & Investment, Inc. |
|
|
100 |
|
|
|
|
X |
| TC MidAtlantic Development V, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TC MidAtlantic Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TC MidAtlantic Properties, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
| TC NE Metro Development, Inc. |
|
United States |
|
Trammell Crow Development & Investment, Inc. |
|
|
100 |
|
|
|
|
X |
| TC No. Cal. Development, Inc. |
|
United States |
|
Trammell Crow Development & Investment, Inc. |
|
|
100 |
|
|
|
|
X |
| TC NorCal Office, Inc. |
|
United States |
|
TC No. Cal. Development, Inc. |
|
|
100 |
|
|
|
|
X |
| TC Northwest Development, Inc. |
|
United States |
|
Trammell Crow Development & Investment, Inc. |
|
|
100 |
|
|
|
|
X |
| TC Oak Park, Inc. |
|
United States |
|
Trammell Crow Development & Investment, Inc. |
|
|
100 |
|
|
|
|
X |
| TC Office Associates Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TC Office Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TC Oklahoma Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TC Premier Row Holding, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TC Retail Acquisitions, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TC Sierra Corporate Center, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TC West Houston, Inc. |
|
United States |
|
TC Houston Office Development, Inc. |
|
|
100 |
|
|
|
|
X |
| TCC Florida Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TCC Investors, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TCC North Florida Development #1, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TCC South Florida Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TCC West Plano GP, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TCCNV, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TCCT Development, Inc. |
|
United States |
|
TC Austin Development, Inc. |
|
|
100 |
|
|
|
|
X |
| TCCT San Antonio Investments, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TCDFW Development, Inc. |
|
United States |
|
Trammell Crow Development & Investment, Inc. |
|
|
100 |
|
|
|
|
X |
| TCDFW Industrial Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TCDFW Investment and Development, Inc. |
|
United States |
|
TCDFW Development, Inc. |
|
|
100 |
|
|
|
|
X |
| TCDFW MF Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TCDFW Office Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TCDFW Quest, Inc. |
|
United States |
|
TCDFW Investment and Development, Inc. |
|
|
100 |
|
|
|
|
X |
| TCDFW Retail Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
| TCGKRS Associates, Inc. |
|
United States |
|
Trammell Crow Development & Investment, Inc. |
|
|
100 |
|
|
|
|
X |
| TCH CBD, Inc. |
|
United States |
|
Trammell Crow Development & Investment, Inc. |
|
|
100 |
|
|
|
|
X |
| TCNE Atwater 12, Inc. |
|
United States |
|
NE Metro Development 2, Inc. |
|
|
100 |
|
|
|
|
X |
| TCNE Atwater Land GP, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| TCNE Development, Inc. |
|
United States |
|
NE Metro Development 2, Inc. |
|
|
100 |
|
|
|
|
X |
| Trammell Crow Acquisitions I-II, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| Trammell Crow Arizona Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| Trammell Crow Atlanta Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| Trammell Crow Brokerage, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| Trammell Crow Carolinas Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| Trammell Crow Central Texas Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| Trammell Crow Chicago Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| Trammell Crow Company (Canada), Ltd. |
|
Canada |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| Trammell Crow Denver Development II, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| Trammell Crow Denver Development III, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| Trammell Crow Denver Development IV, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| Trammell Crow Denver Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| Trammell Crow Detroit Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| Trammell Crow Development & Investment, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| Trammell Crow Houston Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| Trammell Crow Investments V, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| Trammell Crow Kansas City Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| Trammell Crow New England Development, Inc. |
|
United States |
|
Trammell Crow Development & Investment, Inc. |
|
|
100 |
|
|
|
|
X |
| Trammell Crow NW Development, Inc. |
|
United States |
|
Trammell Crow Development & Investment, Inc. |
|
|
100 |
|
|
|
|
X |
| Trammell Crow Portland Development II, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| Trammell Crow Portland Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
| Trammell Crow San Diego Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
|
100 |
|
|
|
|
X |
|
|
|
|
|
|
|
|
|
|
|
| Trammell Crow So. Cal. Development Services, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
100 |
|
|
|
X |
| Trammell Crow So. Cal. Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
100 |
|
|
|
X |
| Trammell Crow So. Cal. Properties, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
100 |
|
|
|
X |
| Trammell Crow Tulsa Development, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
100 |
|
|
|
X |
| USREA, Inc. |
|
United States |
|
Trammell Crow Company, LLC |
|
100 |
|
|
|
X |
| Limited Liability Company |
|
|
|
|
|
|
|
|
|
|
| 1 Bond Tower, LLC |
|
United States |
|
TC Bond Tower Member, LLC |
|
7.5 |
|
|
|
X |
| 301 Ocean Development, LLC |
|
United States |
|
Trammell Crow Santa Monica Development, LLC |
|
4.38302 |
|
X |
|
X |
| 90 K Street LLC |
|
United States |
|
TC 90 K Street LLC |
|
10 |
|
|
|
X |
| AMHIP ATL II, LLC |
|
United States |
|
TCC-Huntington Fairburn, LLC |
|
5 |
|
|
|
X |
| Braddock Gateway, LLC |
|
United States |
|
TC Braddock Member, LLC |
|
5 |
|
|
|
X |
| Century Technology Campus, LLC |
|
United States |
|
TC CTC, LLC |
|
20 |
|
|
|
X |
| Consortium America, LLC |
|
United States |
|
TC MidAtlantic Development, Inc. |
|
57.145 |
|
|
|
X |
| Cranberry Woods Apartments, LLC |
|
United States |
|
TC Cranberry Woods Apartments, LLC |
|
25 |
|
|
|
X |
| Crestview Station Commercial, LLC |
|
United States |
|
Trammell Crow Central Texas Development, Inc. |
|
10 |
|
|
|
X |
| Crestview Station Management, L.L.C. |
|
United States |
|
Trammell Crow Central Texas Development, Inc. |
|
50 |
|
|
|
X |
| Crestview Station Phase I, LLC |
|
United States |
|
High Street Crestview Station GP, Inc. |
|
10 |
|
|
|
X |
| Crestview Station Phase II, LLC |
|
United States |
|
High Street Crestview Station GP, Inc. |
|
10 |
|
|
|
X |
| CRP/TCC Junction Flats Venture, L.L.C. |
|
United States |
|
TC Junction Flats Member, LLC |
|
10 |
|
|
|
X |
| CRP/TCC Park Ridge Venture, L.L.C. |
|
United States |
|
TC Park Ridge Member, LLC |
|
10 |
|
|
|
X |
| CTMC, LLC |
|
United States |
|
TC LA Development, Inc. |
|
10 |
|
|
|
X |
| FAA DFW Associates, LLC |
|
United States |
|
TC FAA Member, LLC |
|
5 |
|
|
|
X |
| FAA SEA Associates, LLC |
|
United States |
|
TC FAA SEA Member, LLC |
|
5 |
|
|
|
X |
| Fort Lincoln Retail Owner, LLC |
|
United States |
|
TC Fort Lincoln LLC |
|
29 |
|
|
|
X |
| Gateway Commerce Center IV LLC |
|
United States |
|
TC Gateway Commerce, LLC |
|
10 |
|
|
|
X |
| Gateway Commerce Center LLC |
|
United States |
|
TC Gateway Commerce, LLC |
|
10 |
|
|
|
X |
| GW Apartments LLC |
|
United States |
|
THC/TCC GW Development LLC |
|
5 |
|
|
|
X |
| GW Block 23 Office, LLC |
|
United States |
|
TC GW Block 23 MM, LLC |
|
10 |
|
|
|
X |
| High Street At Lowry, LLC |
|
United States |
|
High Street Siena Denver, LLC |
|
100 |
|
|
|
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
| High Street Crestview Station, LLC |
|
United States |
|
High Street Crestview Station GP, Inc. |
|
|
10 |
|
|
|
|
X |
| High Street CWH, LLC |
|
United States |
|
High Street Columbia, Inc. |
|
|
100 |
|
|
|
|
X |
| High Street Mockingbird Venture Partners, LLC |
|
United States |
|
High Street West Love, LLC |
|
|
10 |
|
|
|
|
X |
| Inverness Associates, LLC |
|
United States |
|
TC Inverness MM, LLC |
|
|
50 |
|
|
|
|
X |
| Kearny Point, LLC |
|
United States |
|
NE Metro Development 2, Inc. |
|
|
5 |
|
|
|
|
X |
| LA Brickyard, LLC |
|
United States |
|
TC Brickyard Associates, LLC |
|
|
10 |
|
|
|
|
X |
| LA Plaza Partners, LLC |
|
United States |
|
TC LA Development, Inc. |
|
|
75 |
|
|
|
|
X |
| Lion-TCC Development II, LLC |
|
United States |
|
TC Industrial Associates, Inc. |
|
|
7.5 |
|
|
|
|
X |
| LIT-RPC JJ Lemmon Industrial, LLC |
|
United States |
|
TC Industrial Associates, Inc. |
|
|
7.5 |
|
|
|
|
X |
| LIT-RPC Trade Center, LLC |
|
United States |
|
TC Industrial Associates, Inc. |
|
|
7.5 |
|
|
|
|
X |
| Livermore Oaks Joint Venture LLC |
|
United States |
|
TC LOM, LLC |
|
|
5 |
|
|
|
|
X |
| Lowry Condos, LLC |
|
United States |
|
High Street At Lowry, LLC |
|
|
6 |
|
|
|
|
X |
| Midtown Square Associates, LLC |
|
United States |
|
Midtown Square Associates Member, LLC |
|
|
5 |
|
|
|
|
X |
| MROTC Holdings LLC |
|
United States |
|
TC Oklahoma Development, Inc. |
|
|
80 |
|
|
|
|
X |
| North First Developers, LLC |
|
United States |
|
TC Alviso Business Center, LLC |
|
|
10 |
|
|
|
|
X |
| Oak Park Associates, LLC |
|
United States |
|
TC Oak Park, Inc. |
|
|
75 |
|
|
|
|
X |
| Ontario Innovation Center I, LLC |
|
United States |
|
Trammell Crow So. Cal. Development, Inc. |
|
|
5 |
|
|
|
|
X |
| Ontario Innovation Center II, LLC |
|
United States |
|
Trammell Crow So. Cal. Development, Inc. |
|
|
5 |
|
|
|
|
X |
| PHT Investment Holdings II, LLC |
|
United States |
|
Partners Health Realty Holdings, Inc. |
|
|
1 |
|
|
|
|
X |
| PHT Investment Holdings, LLC |
|
United States |
|
Partners Health Realty Holdings, Inc. |
|
|
1 |
|
|
|
|
X |
| PHT Katy POB II, LLC |
|
United States |
|
TC Katy POB II Member, LLC |
|
|
10.9 |
|
|
|
|
X |
| PHT Princeton MOB, LLC |
|
United States |
|
PHT Investment Holdings, LLC |
|
|
0.9704 |
|
|
|
|
X |
| PHT Sugar Land POB II, LLC |
|
United States |
|
TC Sugar Land POB II Member, LLC |
|
|
10.9 |
|
|
|
|
X |
| PHT Westover Hills MOB III, LLC |
|
United States |
|
TC Westover Hills MOB III Member, LLC |
|
|
10.9 |
|
|
|
|
X |
| PR III/Crow GC Office Holdings, LLC |
|
United States |
|
TCH Grand Crossing, LLC |
|
|
50 |
|
|
|
|
X |
| PR III/Crow Mach One Holdings, LLC |
|
United States |
|
TC Mach One, LLC |
|
|
50 |
|
|
|
|
X |
| Sentinel Square II, LLC |
|
United States |
|
TC 1050 1st Street, LLC |
|
|
5 |
|
|
|
|
X |
| Spectrum Ridge Industrial, LLC |
|
United States |
|
TC Spectrum Ridge Member, LLC |
|
|
10 |
|
|
|
|
X |
| SW Industrial Park, LLC |
|
United States |
|
TC SW Industrial, LLC |
|
|
4 |
|
|
|
|
X |
| TC BV Libertyville, LLC |
|
United States |
|
TC Libertyville Member, LLC |
|
|
10 |
|
|
|
|
X |
| TC Central Associates, LLC |
|
United States |
|
TC Central Associates Member, LLC |
|
|
5 |
|
|
|
|
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
| TC Columbia Associates, LLC |
|
United States |
|
TC Columbia Member, LLC |
|
|
10 |
|
|
|
|
X |
| TC Oaklawn, LLC |
|
United States |
|
TC Oaklawn Investor, LLC |
|
|
50 |
|
|
|
|
X |
| TC Uptown Associates, LLC |
|
United States |
|
TC Uptown Associates Member, LLC |
|
|
10 |
|
|
|
|
X |
| TC/P 3118 W Lake, LLC |
|
United States |
|
TC 3118 Member, LLC |
|
|
10 |
|
|
|
|
X |
| TC/P Island Venture, LLC |
|
United States |
|
TC Island Member, LLC |
|
|
10 |
|
|
|
|
X |
| TC/P Legacy Tower I, LLC |
|
United States |
|
TC Legacy Tower I Member, LLC |
|
|
10 |
|
|
|
|
X |
| TC/P Legacy Tower II, LLC |
|
United States |
|
TC Legacy Tower I Member, LLC |
|
|
10 |
|
|
|
|
X |
| TCC/AMB Aviation IAH Venture LLC |
|
United States |
|
Trammell Crow Company, LLC |
|
|
5 |
|
|
|
|
X |
| TC-CH Realty IV Canadian Venture GP, LLC |
|
United States |
|
TCGKRS Associates, Inc. |
|
|
5 |
|
|
|
|
X |
| TC-CH Realty IV Venture, LLC |
|
United States |
|
TCGKRS Associates, Inc. |
|
|
10 |
|
|
|
|
X |
| TCC-Huntington Fairburn, LLC |
|
United States |
|
TC Fairburn Member, LLC |
|
|
50 |
|
|
|
|
X |
| TCC-Lion Industrial, LLC |
|
United States |
|
TC Industrial GP, LLC |
|
|
50 |
|
|
|
|
X |
| TCH DT II, LLC |
|
United States |
|
TCH CBD, Inc. |
|
|
40 |
|
|
|
|
X |
| TCH Energy Center Four, LLC |
|
United States |
|
TC West Houston, Inc. |
|
|
10 |
|
|
|
|
X |
| TCH Energy Center Three, LLC |
|
United States |
|
TC West Houston, Inc. |
|
|
10 |
|
|
|
|
X |
| TCH Energy Corridor Venture, LLC |
|
United States |
|
TC West Houston, Inc. |
|
|
10 |
|
|
|
|
X |
| TCH Northwest Associates Phase II, LLC |
|
United States |
|
TC Houston Office Development, Inc. |
|
|
5 |
|
|
|
|
X |
| TC-MetLife Retail, LLC |
|
United States |
|
TC Retail Acquisitions, Inc. |
|
|
10 |
|
|
|
|
X |
| THC/TCC GW Development LLC |
|
United States |
|
TC Green Water 1, LLC |
|
|
50 |
|
|
|
|
X |
| TPRF III/TCC I-10 West, LLC |
|
United States |
|
Trammell Crow Arizona Development, Inc. |
|
|
5 |
|
|
|
|
X |
| Washington Square Associates, LLC |
|
United States |
|
TC Washington Square, LLC |
|
|
10 |
|
|
|
|
X |
| Limited Liability Partnership |
|
|
|
|
|
|
|
|
|
|
|
|
| Posner Park Retail, LLP |
|
United States |
|
TCC North Florida Development #1, Inc. |
|
|
50 |
|
|
|
|
X |
| Limited Partnership |
|
|
|
|
|
|
|
|
|
|
|
|
| Atascocita Commons Associates II, LP |
|
United States |
|
TC Houston Retail Development, Inc. |
|
|
100 |
|
|
|
|
X |
| Atwater 12 LP |
|
United States |
|
TCNE Atwater 12, Inc. |
|
|
30 |
|
|
|
|
X |
| Carlyle/High Street Ocean City, L.P. |
|
United States |
|
High Street Maryland, LLC |
|
|
10 |
|
|
|
|
X |
| Cascade Station Corporate Center I, L.P. |
|
United States |
|
TC CS, Inc. |
|
|
10 |
|
|
|
|
X |
| Crestview Station DS Land, LP |
|
United States |
|
Crestview Station DS, LLC |
|
|
50 |
|
|
|
|
X |
| Crestview Station LLR Land, LP |
|
United States |
|
Crestview Station LLR, LLC |
|
|
50 |
|
|
|
|
X |
| Crestview Station RTB Land, LP |
|
United States |
|
Crestview Station RTB, LLC |
|
|
50 |
|
|
|
|
X |
| Crestview Station, L.P. |
|
United States |
|
Crestview Station Management, L.L.C. |
|
|
50 |
|
|
|
|
X |
| Fairway Centre Associates, L.P. |
|
United States |
|
Fairway Centre, Inc. |
|
|
100 |
|
|
|
|
X |
|
|
|
|
|
|
|
|
|
|
|
| Grand Parkway/I-10 Associates, L.P. |
|
United States |
|
TC Grand Parkway GP, Inc. |
|
30 |
|
|
|
X |
| High Street Rainey, LP |
|
United States |
|
High Street Rainey GP, Inc. |
|
23.31259 |
|
X |
|
X |
| I-30 Distribution, LP |
|
United States |
|
I-30 Distribution GP, LLC |
|
50 |
|
|
|
X |
| Katy POB I, L.P. |
|
United States |
|
TC Houston Katy GP, Inc. |
|
0.6657 |
|
|
|
X |
| Lakeview BP Land, LP |
|
United States |
|
Lakeview BP Land GP, LLC |
|
10 |
|
|
|
X |
| Park Lucero I, LP |
|
United States |
|
Thurca, LLC |
|
10 |
|
|
|
X |
| Park Lucero II, LP |
|
United States |
|
Thurca, LLC |
|
10 |
|
|
|
X |
| PR III/Crow 35 Eagle, LP |
|
United States |
|
PR III/Crow 35 Eagle GP, LLC |
|
20 |
|
|
|
X |
| PR III/Crow Building B & D, LP |
|
United States |
|
PR III/Crow Building B & D GP, LLC |
|
8 |
|
|
|
X |
| PR III/Crow GC Office, LP |
|
United States |
|
PR III/Crow GC Office GP, LLC |
|
1 |
|
|
|
X |
| SA Crossroads Retail II, L.P. |
|
United States |
|
TCCT San Antonio Investments, Inc. |
|
35.97893 |
|
X |
|
X |
| South Kitchener Holdings, LP |
|
United States |
|
South Kitchener Holdings GP, LLC |
|
5 |
|
|
|
X |
| Sugar Land POB I, L.P. |
|
United States |
|
TC Houston Sugar Land GP, Inc. |
|
0.6637 |
|
|
|
X |
| TC Atwater Land General Partner LP |
|
United States |
|
TCNE Atwater Land GP, Inc. |
|
100 |
|
|
|
X |
| TC Atwater Land LP |
|
United States |
|
TC Atwater Land General Partner LP |
|
100 |
|
|
|
X |
| TC Dallas/Fort Worth Investment and Development, LP |
|
United States |
|
TCDFW Investment and Development, Inc. |
|
100 |
|
|
|
X |
| TC Knox Heights, LP |
|
United States |
|
TC Knox Member, LLC |
|
9.99 |
|
|
|
X |
| TCC West Plano Limited Partnership |
|
United States |
|
TCC West Plano GP, Inc. |
|
100 |
|
|
|
X |
| TCC/AMB Aviation IAH LP |
|
United States |
|
Trammell Crow Company, LLC |
|
5 |
|
|
|
X |
| TC-CH Realty IV Canadian Venture, LP |
|
United States |
|
TC-CH Realty IV Canadian Venture GP, LLC |
|
5 |
|
|
|
X |
| TCDFW Acquisitions LP |
|
United States |
|
TCDFW Quest, Inc. |
|
100 |
|
|
|
X |
| Trammell Crow Acquisitions I-II GP, L.P. |
|
United States |
|
Trammell Crow Acquisitions I-II, Inc. |
|
100 |
|
|
|
X |
| Trammell Crow Co-Investment Acquisitions I-II, L.P. |
|
United States |
|
Trammell Crow Acquisitions I-II, Inc. |
|
0.002 |
|
X |
|
X |
| Trammell Crow Company Acquisitions I, L.P. |
|
United States |
|
Trammell Crow Acquisitions I-II GP, L.P. |
|
6.74922 |
|
X |
|
X |
| Trammell Crow Company Acquisitions II, L.P. |
|
United States |
|
Trammell Crow Acquisitions I-II GP, L.P. |
|
8.76603 |
|
X |
|
X |
| Trammell Crow Company IAH International Air Cargocentre II, L.P. |
|
United States |
|
TCC Air GP, LLC |
|
50 |
|
|
|
X |
| Trammell Crow Individual Investment Fund 2003 L.P. |
|
United States |
|
Trammell Crow Investments V, Inc. |
|
1.0004 |
|
X |
|
X |
| Trammell Crow Investment Fund V, L.P. |
|
United States |
|
Trammell Crow Investments V, Inc. |
|
19.92977 |
|
X |
|
X |
| Trammell Crow Limited Partner Acquisitions I-II, L.P. |
|
United States |
|
Trammell Crow Acquisitions I-II, Inc. |
|
96.416 |
|
|
|
X |
| West Plano Land Company, LP |
|
United States |
|
West Plano Land Company-GP LLC |
|
10 |
|
|
|
X |
|
|
|
|
|
|
|
|
|
|
|
| West Plano Land Investments Holding LP |
|
United States |
|
TCC West Plano Limited Partnership |
|
10 |
|
|
|
X |
| WP Land Sub, L.P. |
|
United States |
|
West Plano Land Company-GP LLC |
|
10 |
|
|
|
X |
| Single Member Limited Liability Company |
|
|
|
|
|
|
|
|
|
|
| 45 L Holding LLC |
|
United States |
|
90 K Street LLC |
|
10 |
|
|
|
X |
| 90 K Holding LLC |
|
United States |
|
90 K Street LLC |
|
10 |
|
|
|
X |
| CBP TCMA Associates, LLC |
|
United States |
|
TC MidAtlantic Development V, Inc. |
|
100 |
|
|
|
X |
| Centre Point Commons, LLC |
|
United States |
|
TCC North Florida Development #1, Inc. |
|
100 |
|
|
|
X |
| CG Sunland LLC |
|
United States |
|
Trammell Crow Investment Fund V, L.P. |
|
19.92977 |
|
X |
|
X |
| Colwood Industrial Park, LLC |
|
United States |
|
Lion-TCC Development II, LLC |
|
7.5 |
|
|
|
X |
| Crestview Station DS, LLC |
|
United States |
|
Crestview Station Management, L.L.C. |
|
50 |
|
|
|
X |
| Crestview Station LLR, LLC |
|
United States |
|
Crestview Station Management, L.L.C. |
|
50 |
|
|
|
X |
| Crestview Station RTB, LLC |
|
United States |
|
Crestview Station Management, L.L.C. |
|
50 |
|
|
|
X |
| CRP/TCC Junction Flats, L.L.C. |
|
United States |
|
CRP/TCC Junction Flats Venture, L.L.C. |
|
10 |
|
|
|
X |
| CRP/TCC Park Ridge, L.L.C. |
|
United States |
|
CRP/TCC Park Ridge Venture, L.L.C. |
|
10 |
|
|
|
X |
| EXPO GLO LLC |
|
United States |
|
TCC-Lion Industrial, LLC |
|
50 |
|
|
|
X |
| Expo LIT Associates, LLC |
|
United States |
|
TCC-Lion Industrial, LLC |
|
50 |
|
|
|
X |
| Fairburn 85, LLC |
|
United States |
|
AMHIP ATL II, LLC |
|
10 |
|
|
|
X |
| Fallbrook Industrial Associates, LLC |
|
United States |
|
Lion-TCC Development II, LLC |
|
7.5 |
|
|
|
X |
| Fallbrook Pines Phase I, LLC |
|
United States |
|
Lion-TCC Development II, LLC |
|
7.5 |
|
|
|
X |
| Fort Lincoln Retail, LLC |
|
United States |
|
Fort Lincoln Retail Owner, LLC |
|
29 |
|
|
|
X |
| Foster City MOB, LLC |
|
United States |
|
PHT Investment Holdings, LLC |
|
1 |
|
|
|
X |
| High Street Carrollton, LLC |
|
United States |
|
Trammell Crow Development & Investment, Inc. |
|
100 |
|
|
|
X |
| High Street Cleveland Lakefront, LLC |
|
United States |
|
TCDFW MF Development, Inc. |
|
100 |
|
|
|
X |
| High Street Maryland, LLC |
|
United States |
|
TC MidAtlantic Development II, Inc. |
|
100 |
|
|
|
X |
| High Street Siena Denver, LLC |
|
United States |
|
Trammell Crow Denver Development II, Inc. |
|
100 |
|
|
|
X |
| High Street West Love, LLC |
|
United States |
|
TCDFW Development, Inc. |
|
100 |
|
|
|
X |
| Houston Greenway Associates LLC |
|
United States |
|
Trammell Crow Houston Development, Inc. |
|
100 |
|
|
|
X |
| I-30 Distribution GP, LLC |
|
United States |
|
TCC-Lion Industrial, LLC |
|
50 |
|
|
|
X |
| I-78 Industrial, LLC |
|
United States |
|
TC NE Metro Development, Inc. |
|
100 |
|
|
|
X |
| Industrial NV, LLC |
|
United States |
|
TCC-Lion Industrial, LLC |
|
50 |
|
|
|
X |
|
|
|
|
|
|
|
|
|
|
|
| Jekyll - CY, LLC |
|
United States |
|
Trammell Crow Company Acquisitions I, L.P. |
|
6.74922 |
|
X |
|
X |
| Jekyll - SH, LLC |
|
United States |
|
Trammell Crow Company Acquisitions I, L.P. |
|
6.74922 |
|
X |
|
X |
| Jekyll Leaseholding, LLC |
|
United States |
|
Trammell Crow Company Acquisitions I, L.P. |
|
6.74922 |
|
X |
|
X |
| KCI Logistics II, LLC |
|
United States |
|
Lion-TCC Development II, LLC |
|
7.5 |
|
|
|
X |
| Kenswick Industrial Center GP, LLC |
|
United States |
|
TCC-Lion Industrial, LLC |
|
50 |
|
|
|
X |
| Knox Logistics LLC |
|
United States |
|
Lion-TCC Development II, LLC |
|
7.5 |
|
|
|
X |
| Lakeview BP Land GP, LLC |
|
United States |
|
TC-CH Realty IV Venture, LLC |
|
10 |
|
|
|
X |
| LIT-RPC Trade Center IX, LLC |
|
United States |
|
LIT-RPC Trade Center, LLC |
|
7.5 |
|
|
|
X |
| LIT-RPC Trade Center VI, LLC |
|
United States |
|
LIT-RPC Trade Center, LLC |
|
7.5 |
|
|
|
X |
| LIT-RPC Trade Center VII, LLC |
|
United States |
|
LIT-RPC Trade Center, LLC |
|
7.5 |
|
|
|
X |
| Livermore Oaks Land Venture, LLC |
|
United States |
|
TC LOM, LLC |
|
100 |
|
|
|
X |
| LVIP Lot 61 Owner, LLC |
|
United States |
|
LVIP Lot 61 Venture, LLC |
|
7.5 |
|
|
|
X |
| LVIP Lot 61 Venture, LLC |
|
United States |
|
Lion-TCC Development II, LLC |
|
7.5 |
|
|
|
X |
| Madison Industrial Associates II, LLC |
|
United States |
|
TCC-Lion Industrial, LLC |
|
50 |
|
|
|
X |
| Midtown Square Associates Member, LLC |
|
United States |
|
Trammell Crow Chicago Development, Inc. |
|
100 |
|
|
|
X |
| MROTC Development Partners LLC |
|
United States |
|
MROTC Holdings LLC |
|
80 |
|
|
|
X |
| Pasadena Gateway, LLC |
|
United States |
|
TC LA Development, Inc. |
|
100 |
|
|
|
X |
| Perimeter West Associates, LLC |
|
United States |
|
TCC-Lion Industrial, LLC |
|
50 |
|
|
|
X |
| PHT Bolingbrook MOB, LLC |
|
United States |
|
PHT Investment Holdings, LLC |
|
1 |
|
|
|
X |
| PHT Care Group, LLC |
|
United States |
|
PHT Investment Holdings, LLC |
|
1 |
|
|
|
X |
| PHT Duke MOB, LLC |
|
United States |
|
PHT Investment Holdings, LLC |
|
1 |
|
|
|
X |
| PHT Health Pavilion CRH, LLC |
|
United States |
|
PHT Investment Holdings, LLC |
|
1 |
|
|
|
X |
| PHT Henrico MOB, LLC |
|
United States |
|
PHT Investment Holdings, LLC |
|
1 |
|
|
|
X |
| PHT Hinsdale MOBs, LLC |
|
United States |
|
PHT Investment Holdings, LLC |
|
1 |
|
|
|
X |
| PHT Lakeview, LLC |
|
United States |
|
PHT Investment Holdings, LLC |
|
1 |
|
|
|
X |
| PHT Memorial Hermann LP, LLC |
|
United States |
|
PHT Investment Holdings II, LLC |
|
1 |
|
|
|
X |
| PHT Middletown, LLC |
|
United States |
|
PHT Investment Holdings, LLC |
|
1 |
|
|
|
X |
| PHT Mooresville, LLC |
|
United States |
|
PHT Investment Holdings, LLC |
|
1 |
|
|
|
X |
| PHT St. Francis Professional II, LLC |
|
United States |
|
PHT Investment Holdings, LLC |
|
1 |
|
|
|
X |
|
|
|
|
|
|
|
|
|
|
|
| PHT St. Vincent, LLC |
|
United States |
|
PHT Investment Holdings, LLC |
|
1 |
|
|
|
X |
| PHT Westover Hills MOB I, LLC |
|
United States |
|
PHT Investment Holdings, LLC |
|
1 |
|
|
|
X |
| PHT Westover Hills MOB II, LLC |
|
United States |
|
PHT Investment Holdings, LLC |
|
1 |
|
|
|
X |
| PHT Women’s, LLC |
|
United States |
|
PHT Investment Holdings, LLC |
|
1 |
|
|
|
X |
| PR III/Crow 35 Eagle GP, LLC |
|
United States |
|
PR III/Crow 35 Eagle Holdings, LLC |
|
20 |
|
|
|
X |
| PR III/Crow Building B & D GP, LLC |
|
United States |
|
PR III/Crow Buildings B & D Holdings, LLC |
|
8 |
|
|
|
X |
| PR III/Crow GC Office GP, LLC |
|
United States |
|
PR III/Crow GC Office Holdings, LLC |
|
50 |
|
|
|
X |
| Princeton Medical Arts Pavilion Urban Renewal, LLC |
|
United States |
|
PHT Princeton MOB, LLC |
|
0.9704 |
|
|
|
X |
| Sierra Lakes Commerce, LLC |
|
United States |
|
Lion-TCC Development II, LLC |
|
7.5 |
|
|
|
X |
| South Kitchener Holdings GP, LLC |
|
United States |
|
TC-CH Realty IV Canadian Venture, LP |
|
5 |
|
|
|
X |
| South Washington Park, LLC |
|
United States |
|
Lion-TCC Development II, LLC |
|
7.5 |
|
|
|
X |
| TC 1050 1st Street, LLC |
|
United States |
|
TC MidAtlantic Development V, Inc. |
|
100 |
|
|
|
X |
| TC 3118 Member, LLC |
|
United States |
|
Trammell Crow Chicago Development, Inc. |
|
100 |
|
|
|
X |
| TC 90 K Street LLC |
|
United States |
|
TC MidAtlantic Development III, Inc. |
|
100 |
|
|
|
X |
| TC Alviso Business Center, LLC |
|
United States |
|
TC No. Cal. Development, Inc. |
|
100 |
|
|
|
X |
| TC Bingen, LLC |
|
United States |
|
Trammell Crow Portland Development, Inc. |
|
100 |
|
|
|
X |
| TC Block 188 Development, LLC |
|
United States |
|
TC Austin Development, Inc. |
|
100 |
|
|
|
X |
| TC Bond Tower Member, LLC |
|
United States |
|
TC Northwest Development, Inc. |
|
100 |
|
|
|
X |
| TC Bordentown Associates, LLC |
|
United States |
|
TCC-Lion Industrial, LLC |
|
50 |
|
|
|
X |
| TC Braddock Member, LLC |
|
United States |
|
TC MidAtlantic Development IV, Inc. |
|
100 |
|
|
|
X |
| TC Brickyard Associates, LLC |
|
United States |
|
TC LA Development, Inc. |
|
100 |
|
|
|
X |
| TC BV 1800 Industrial, LLC |
|
United States |
|
TC BV Libertyville, LLC |
|
10 |
|
|
|
X |
| TC Central Associates Member, LLC |
|
United States |
|
TCDFW Development, Inc. |
|
100 |
|
|
|
X |
| TC Columbia Member, LLC |
|
United States |
|
TC Northwest Development, Inc. |
|
100 |
|
|
|
X |
| TC Corridors Industrial, LLC |
|
United States |
|
Trammell Crow Arizona Development, Inc. |
|
100 |
|
|
|
X |
| TC Cranberry Woods Apartments, LLC |
|
United States |
|
High Street NE Metro, Inc. |
|
100 |
|
|
|
X |
| TC CTC, LLC |
|
United States |
|
TC MidAtlantic Development V, Inc. |
|
100 |
|
|
|
X |
| TC Eagle B&D Development, LLC |
|
United States |
|
TCDFW Industrial Development, Inc. |
|
100 |
|
|
|
X |
| TC Eagle Land, LLC |
|
United States |
|
TCDFW Industrial Development, Inc. |
|
100 |
|
|
|
X |
|
|
|
|
|
|
|
|
|
|
|
| TC FAA Member, LLC |
|
United States |
|
TCDFW Investment and Development, Inc. |
|
100 |
|
|
|
X |
| TC FAA SEA Member, LLC |
|
United States |
|
TC Northwest Development, Inc. |
|
100 |
|
|
|
X |
| TC Fairburn Member, LLC |
|
United States |
|
TC Atlanta Development, Inc. |
|
100 |
|
|
|
X |
| TC Fort Lincoln LLC |
|
United States |
|
TC Fort Lincoln Retail Manager, Inc. |
|
100 |
|
|
|
X |
| TC Fort Meade Technology Center, LLC |
|
United States |
|
TC MidAtlantic Development III, Inc. |
|
100 |
|
|
|
X |
| TC Gateway Commerce, LLC |
|
United States |
|
Trammell Crow Chicago Development, Inc. |
|
100 |
|
|
|
X |
| TC Green Water 1, LLC |
|
United States |
|
TC Austin Development, Inc. |
|
100 |
|
|
|
X |
| TC Green Water Master Developer, LLC |
|
United States |
|
TC Austin Development, Inc. |
|
100 |
|
|
|
X |
| TC Greenbelt, LLC |
|
United States |
|
TC MidAtlantic Development V, Inc. |
|
100 |
|
|
|
X |
| TC GW Block 23 MM, LLC |
|
United States |
|
TC Austin Development, Inc. |
|
100 |
|
|
|
X |
| TC Harmans Road, LLC |
|
United States |
|
TC MidAtlantic Development V, Inc. |
|
100 |
|
|
|
X |
| TC Industrial GP, LLC |
|
United States |
|
TC Industrial, Inc. |
|
100 |
|
|
|
X |
| TC Inverness MM, LLC |
|
United States |
|
TC Houston Office Development, Inc. |
|
100 |
|
|
|
X |
| TC Island Member, LLC |
|
United States |
|
Trammell Crow Chicago Development, Inc. |
|
100 |
|
|
|
X |
| TC Junction Flats Member, LLC |
|
United States |
|
Trammell Crow Chicago Development, Inc. |
|
100 |
|
|
|
X |
| TC Katy POB II Member, LLC |
|
United States |
|
TC Houston MOB Development, Inc. |
|
100 |
|
|
|
X |
| TC Knox Investor, LLC |
|
United States |
|
TCDFW MF Development, Inc. |
|
100 |
|
|
|
X |
| TC Knox Member, LLC |
|
United States |
|
TCDFW MF Development, Inc. |
|
100 |
|
|
|
X |
| TC Legacy Tower I Member, LLC |
|
United States |
|
TCDFW Development, Inc. |
|
100 |
|
|
|
X |
| TC Legacy Tower II Member, LLC |
|
United States |
|
TCDFW Development, Inc. |
|
100 |
|
|
|
X |
| TC Libertyville Member, LLC |
|
United States |
|
Trammell Crow Chicago Development, Inc. |
|
100 |
|
|
|
X |
| TC LOM, LLC |
|
United States |
|
TC No. Cal. Development, Inc. |
|
100 |
|
|
|
X |
| TC LVTC, LLC |
|
United States |
|
TC NE Metro Development, Inc. |
|
100 |
|
|
|
X |
| TC Mach One, LLC |
|
United States |
|
Trammell Crow Arizona Development, Inc. |
|
100 |
|
|
|
X |
| TC Oak Brook, LLC |
|
United States |
|
TC OB, LLC |
|
8.76603 |
|
X |
|
X |
| TC Oaklawn Investor, LLC |
|
United States |
|
TC MidAtlantic Development V, Inc. |
|
100 |
|
|
|
X |
| TC Oaklawn Mezz, LLC |
|
United States |
|
TC Oaklawn, LLC |
|
50 |
|
|
|
X |
| TC Oaklawn Owner, LLC |
|
United States |
|
TC Oaklawn Mezz, LLC |
|
50 |
|
|
|
X |
| TC OB, LLC |
|
United States |
|
Trammell Crow Company Acquisitions II, L.P. |
|
8.76603 |
|
X |
|
X |
| TC Paoli, LLC |
|
United States |
|
TC NE Metro Development, Inc. |
|
100 |
|
|
|
X |
|
|
|
|
|
|
|
|
|
|
|
| TC Park Ridge Member, LLC |
|
United States |
|
Trammell Crow Chicago Development, Inc. |
|
100 |
|
|
|
X |
| TC Penn Development, LLC |
|
United States |
|
TCDFW Development, Inc. |
|
100 |
|
|
|
X |
| TC Santa Monica Manager, LLC |
|
United States |
|
Trammell Crow Company Acquisitions II, L.P. |
|
8.76603 |
|
X |
|
X |
| TC Spectrum Ridge Member, LLC |
|
United States |
|
Trammell Crow Arizona Development, Inc. |
|
100 |
|
|
|
X |
| TC Sugar Land POB II Member, LLC |
|
United States |
|
TC Houston MOB Development, Inc. |
|
100 |
|
|
|
X |
| TC SW Industrial, LLC |
|
United States |
|
Trammell Crow Portland Development II, Inc. |
|
100 |
|
|
|
X |
| TC Tigard, LLC |
|
United States |
|
Trammell Crow Portland Development II, Inc. |
|
100 |
|
|
|
X |
| TC Uptown Associates Member, LLC |
|
United States |
|
TCDFW Office Development, Inc. |
|
100 |
|
|
|
X |
| TC Washington Square, LLC |
|
United States |
|
TC Northwest Development, Inc. |
|
100 |
|
|
|
X |
| TC Westover Hills MOB III Member, LLC |
|
United States |
|
TC Austin Development, Inc. |
|
100 |
|
|
|
X |
| TCC Air GP, LLC |
|
United States |
|
TCC-Lion Industrial, LLC |
|
50 |
|
|
|
X |
| TCC High Street Development, LLC |
|
United States |
|
Trammell Crow Development & Investment, Inc. |
|
100 |
|
|
|
X |
| TCDFW Acquisitions, LLC |
|
United States |
|
TCDFW Development, Inc. |
|
100 |
|
|
|
X |
| TCDFW Penn Development, LLC |
|
United States |
|
TCDFW Development, Inc. |
|
100 |
|
|
|
X |
| TCEP LLC |
|
United States |
|
TC Austin Development, Inc. |
|
100 |
|
|
|
X |
| TCH Grand Crossing, LLC |
|
United States |
|
TC Houston Office Development, Inc. |
|
100 |
|
|
|
X |
| TC-Met Orlando, LLC |
|
United States |
|
TC-MetLife Retail, LLC |
|
10 |
|
|
|
X |
| TCNE Acquisition I, LLC |
|
United States |
|
TC NE Metro Development, Inc. |
|
100 |
|
|
|
X |
| Thurca, LLC |
|
United States |
|
Trammell Crow Arizona Development, Inc. |
|
100 |
|
|
|
X |
| Trammell Crow Santa Monica Development, LLC |
|
United States |
|
TC Santa Monica Manager, LLC |
|
8.76603 |
|
X |
|
X |
| Triangle Associates, LLC |
|
United States |
|
TC MidAtlantic Development V, Inc. |
|
100 |
|
|
|
X |
| USA Parkway Retail, LLC |
|
United States |
|
TCC-Lion Industrial, LLC |
|
50 |
|
|
|
X |
| West Love Land Owner, LLC |
|
United States |
|
High Street Mockingbird Venture Partners, LLC |
|
10 |
|
|
|
X |
| West Plano Land Company-GP LLC |
|
United States |
|
West Plano Land Investments Holding LP |
|
10 |
|
|
|
X |
Investment Management Entities
|
|
|
|
|
|
|
|
|
|
|
| State/Country of
Incorporation |
|
Subsidiary |
|
Ownership |
|
Percent
Owned |
|
|
Investment
Subsidiary
(Check if
Applicable) |
| California - United States |
|
CBRE Global Investors, Inc. |
|
CBRE, Inc. |
|
|
100.0 |
% |
|
X |
| Delaware - United States |
|
CBRE Global Investors, LLC |
|
CBRE, Inc. |
|
|
100.0 |
% |
|
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
| State/Country of
Incorporation |
|
Name of CBREGI Consolidated
Subsidiary |
|
CBREGI Consolidated Entity
Equityholders |
|
Security Held |
|
Percent
Owned
of
Security
Class |
|
|
Investment
Subsidiary
(Check if
Applicable) |
| Delaware - United States |
|
615 North 48th Street HoldCo LLC |
|
CBRE Global Investors, LLC |
|
Percentage Ownership
Interest |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
Beheermaatschappij W.T.C. Amsterdam B.V. |
|
CBRE Global Investors (NL) B.V. |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Jersey |
|
CB Richard Ellis Alpha Plus Warehousing Limited |
|
CBRE Luxembourg Holdings Sarl |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| Delaware - United States |
|
CB Richard Ellis CR Carryco, LLC |
|
CBRE Investors Executive Holding Company, LLC |
|
Percentage Ownership
Interest |
|
|
97.3 |
% |
|
|
|
|
|
|
CBRE Investors GLT Carryco,
LLC |
|
Percentage
Ownership Interest |
|
|
2.7 |
% |
|
X |
|
|
|
|
|
|
| Delaware - United States |
|
CB Richard Ellis DH CarryCo LLC |
|
CBRE Global Investors, Inc. |
|
Class A Member
Units |
|
|
100.0 |
% |
|
X |
|
|
|
|
CBRE Investors Executive
Holding Company, LLC |
|
Class B
Member Percentage |
|
|
97.3 |
% |
|
|
|
|
|
|
CBRE Investors GLT Carryco,
LLC |
|
Class B
Member Percentage |
|
|
2.7 |
% |
|
|
| Luxembourg |
|
CB Richard Ellis European Warehousing S.à r.l. |
|
CBRE Global Investors Asia Holdings B.V. |
|
Common Equity |
|
|
100.0 |
% |
|
X |
| Luxembourg |
|
CB Richard Ellis Global Alpha Series Sarl |
|
CBRE Global Investors Asia Holdings B.V. |
|
Shares |
|
|
100.0 |
% |
|
X |
|
|
|
|
|
|
| Delaware - United States |
|
CB Richard Ellis Global Real Estate Securities, LLC |
|
CBRE Clarion Securities LLC |
|
Common Equity |
|
|
100.0 |
% |
|
X |
| England |
|
CB Richard Ellis Investor Partner Limited |
|
CBRE Global Investors Europe Holdings Limited |
|
Ordinary |
|
|
100.0 |
% |
|
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
| Delaware - United States |
|
CB Richard Ellis Investors Funds PEC Carryco, LLC |
|
CBRE Global Investors, LLC |
|
Class A Member |
|
|
100.0 |
% |
|
X |
|
|
|
|
CBRE Global Investors, LLC |
|
Class B Member |
|
|
20.0 |
% |
|
|
| Hong Kong |
|
CB Richard Ellis Investors Limited |
|
CBRE Global Investors Asia Holdings B.V. |
|
Common Equity |
|
|
100.0 |
% |
|
X |
|
|
|
|
|
|
| Delaware - United States |
|
CB Richard Ellis Investors SP Asia, LLC |
|
CBRE Global Investors, LLC |
|
Common Equity |
|
|
100.0 |
% |
|
X |
|
|
|
|
|
|
| Delaware - United States |
|
CB Richard Ellis Investors/U.S. Advisor, LLC |
|
CBRE Global Investors, LLC |
|
Common Equity |
|
|
100.0 |
% |
|
X |
|
|
|
|
|
|
| Delaware - United States |
|
CB Richard Ellis Partners III, L.L.C. |
|
CBRE Global Investors, LLC |
|
Capital Units |
|
|
59.9 |
% |
|
|
|
|
|
|
CBRE Investors Executive Holding Company, LLC |
|
Capital Units |
|
|
0.001 |
% |
|
X |
| Delaware - United States |
|
CB Richard Ellis Partners U.S. IV, L.L.C. |
|
CBRE Global Investors, LLC |
|
Class B Units |
|
|
38.7 |
% |
|
X |
|
|
|
|
CBRE Strategic Investors U.S. IV, L.L.C. |
|
Class A Units |
|
|
100.0 |
% |
|
|
|
|
|
|
|
|
| Delaware - United States |
|
CB Richard Ellis Partners U.S. Opportunity 5 GP, L.L.C. |
|
CBRE Global Investors, LLC |
|
Class B Units |
|
|
80.4 |
% |
|
X |
|
|
|
|
CBRE Strategic Investors U.S. Opportunity 5, L.L.C. |
|
Class A Member |
|
|
100.0 |
% |
|
|
|
|
|
|
|
|
| Delaware - United States |
|
CB Richard Ellis Partners U.S. Value 5 GP, L.L.C. |
|
CBRE Global Investors, LLC |
|
Class B Units |
|
|
80.6 |
% |
|
X |
|
|
|
|
CBRE Strategic Investors U.S. Value 5, L.L.C. |
|
Class A Member |
|
|
100.0 |
% |
|
|
|
|
|
|
|
|
| Delaware - United States |
|
CB Richard Ellis SPA II GP, LLC |
|
CBRE Global Investors, LLC |
|
Common Equity |
|
|
100.0 |
% |
|
X |
|
|
|
|
|
|
| Delaware - United States |
|
CB Richard Ellis SPE II Carryco, LLC |
|
CBRE Global Investors, Inc. |
|
A Shares |
|
|
87.9 |
% |
|
X |
|
|
|
|
CBRE Global Investors, Inc. |
|
B Shares |
|
|
33.3 |
% |
|
|
|
|
|
|
CBRE Investors Executive Holding Company, LLC |
|
B Shares |
|
|
33.3 |
% |
|
|
|
|
|
|
CBRE Investors GLT Carryco, LLC |
|
B Shares |
|
|
33.3 |
% |
|
|
|
|
|
|
|
|
| Delaware - United States |
|
CB Richard Ellis SPE II G.P., LLC |
|
CBRE Global Investors, Inc. |
|
Common Equity |
|
|
81.5 |
% |
|
X |
|
|
|
|
|
|
| Delaware - United States |
|
CB Richard Ellis SPE III CarryCo LLC |
|
CBRE Global Investors, Inc. |
|
A Shares |
|
|
87.9 |
% |
|
X |
|
|
|
|
CBRE Global Investors, Inc. |
|
B Shares |
|
|
33.3 |
% |
|
|
|
|
|
|
CBRE Investors Executive Holding Company, LLC |
|
B Shares |
|
|
33.3 |
% |
|
|
|
|
|
|
CBRE Investors GLT Carryco, LLC |
|
B Shares |
|
|
33.3 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Luxembourg |
|
CB Richard Ellis SPE III Co-Invest 1 S.a r.l. |
|
CB Richard Ellis European Warehousing S.à r.l. |
|
Class A Shares |
|
|
12.8 |
% |
|
X |
|
|
|
|
CB Richard Ellis European Warehousing S.à r.l. |
|
Class B Shares |
|
|
12.8 |
% |
|
|
|
|
|
|
CB Richard Ellis European Warehousing S.à r.l. |
|
Class C Shares |
|
|
12.8 |
% |
|
|
|
|
|
|
CB Richard Ellis European Warehousing S.à r.l. |
|
Class D Shares |
|
|
12.8 |
% |
|
|
|
|
|
|
CB Richard Ellis SPE III CarryCo LLC |
|
Class A Shares |
|
|
65.4 |
% |
|
|
|
|
|
|
CB Richard Ellis SPE III CarryCo LLC |
|
Class B Shares |
|
|
65.4 |
% |
|
|
|
|
|
|
CB Richard Ellis SPE III CarryCo LLC |
|
Class C Shares |
|
|
65.4 |
% |
|
|
|
|
|
|
CB Richard Ellis SPE III CarryCo LLC |
|
Class D Shares |
|
|
65.4 |
% |
|
|
|
|
|
|
CBRE Global Investors, Inc. |
|
Class A Shares |
|
|
10.0 |
% |
|
|
|
|
|
|
CBRE Global Investors, Inc. |
|
Class B Shares |
|
|
10.0 |
% |
|
|
|
|
|
|
CBRE Global Investors, Inc. |
|
Class C Shares |
|
|
10.0 |
% |
|
|
|
|
|
|
CBRE Global Investors, Inc. |
|
Class D Shares |
|
|
10.0 |
% |
|
|
|
|
|
|
|
|
| Delaware - United States |
|
CB Richard Ellis SPE III GP, LLC |
|
CBRE Global Investors, Inc. |
|
Common Equity |
|
|
100.0 |
% |
|
X |
|
|
|
|
|
|
| Delaware - United States |
|
CB Richard Ellis SPUK G.P. II, LLC |
|
CBRE Global Investors, Inc. |
|
Shares |
|
|
87.7 |
% |
|
X |
|
|
|
|
|
|
| Delaware - United States |
|
CB Richard Ellis SPUK G.P. III, LLC |
|
CBRE Global Investors, Inc. |
|
Shares |
|
|
84.0 |
% |
|
X |
|
|
|
|
|
|
| Delaware - United States |
|
CB Richard Ellis Venture Investors, LLC |
|
CBRE Global Investors, LLC |
|
Common Equity |
|
|
77.0 |
% |
|
X |
| Jersey |
|
CB SPUK Carry Co 1 Limited |
|
CBRE Global Investors, Inc. |
|
Ordinary Shares |
|
|
78.0 |
% |
|
X |
|
|
|
|
CBRE Investors Executive Holding Company, LLC |
|
Ordinary Shares |
|
|
22.0 |
% |
|
|
|
|
|
|
CB-Spuk Investment Adviser Limited |
|
Special Shares |
|
|
100.0 |
% |
|
|
| Jersey |
|
CB SPUK Carry Co. 2 Limited |
|
CBRE Global Investors, Inc. |
|
Ordinary B |
|
|
47.5 |
% |
|
X |
|
|
|
|
CBRE Global Investors, Inc. |
|
Ordinary Shares |
|
|
52.5 |
% |
|
|
|
|
|
|
CBRE Global Investors, Inc. |
|
Special Shares |
|
|
100.0 |
% |
|
|
|
|
|
|
CBRE Global Investors, LLC |
|
Ordinary B |
|
|
0.2 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CBRE Global Investors, LLC |
|
Ordinary Shares |
|
|
0.2 |
% |
|
|
|
|
|
|
CBRE Investors Executive Holding Company, LLC |
|
Ordinary B |
|
|
15.0 |
% |
|
|
|
|
|
|
CBRE Investors Executive Holding Company, LLC |
|
Ordinary Shares |
|
|
15.0 |
% |
|
|
|
|
|
|
CBRE Investors Partners Pool I 04, LLC |
|
Ordinary B |
|
|
2.0 |
% |
|
|
|
|
|
|
CBRE Investors Partners Pool I 04, LLC |
|
Ordinary Shares |
|
|
2.0 |
% |
|
|
|
|
|
|
|
|
| Delaware - United States |
|
CBRE Advisors LLC |
|
CBRE Global Investors, LLC |
|
Distributable Cash
Percentage Interest |
|
|
100.0 |
% |
|
X |
|
|
|
|
CBRE Global Investors,
LLC |
|
Sale Event
Percentage Interest |
|
|
35.1 |
% |
|
|
|
|
|
|
CBRE Investors Executive
Holding Company, LLC |
|
Sale Event
Percentage Interest |
|
|
47.8 |
% |
|
|
|
|
|
|
CBRE Investors Partners Pool I
04, LLC |
|
Sale Event
Percentage Interest |
|
|
2.3 |
% |
|
|
| Cayman Islands |
|
CBRE AVF Management Limited |
|
CBRE Global Investors Asia Holdings B.V. |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE AZL Management BV |
|
CBRE Global Investors (NL) B.V. |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Delaware -
United States |
|
CBRE Capital Partners
Co-Investment I GP, LLC |
|
CBRE Capital Partners U.S. I
GP, LLC |
|
Percentage
Ownership Interest |
|
|
56.0 |
% |
|
X |
|
|
|
|
CBRE Capital Partners U.S.
Special Situations I GP, LLC |
|
Percentage
Ownership Interest |
|
|
44.0 |
% |
|
|
|
|
|
|
|
|
| Delaware - United States |
|
CBRE Capital Partners Co-Investment I SLP, LLC |
|
CBRE Capital Partners U.S. I GP, LLC |
|
Percentage Ownership
Interest |
|
|
56.0 |
% |
|
X |
|
|
|
|
CBRE Capital Partners U.S.
Special Situations I GP, LLC |
|
Percentage
Ownership Interest |
|
|
44.0 |
% |
|
|
|
|
|
|
|
|
| Delaware - United States |
|
CBRE Capital Partners Co-Investment Management I, LLC |
|
CBRE Capital Partners U.S. I Management, LLC |
|
Percentage Ownership
Interest |
|
|
56.0 |
% |
|
X |
|
|
|
|
CBRE Capital Partners U.S.
Special Situations I Management, LLC |
|
Percentage
Ownership Interest |
|
|
44.0 |
% |
|
|
|
|
|
|
|
|
| Delaware - United States |
|
CBRE Capital Partners U.S. Holdco, LLC |
|
CBRE Global Investors, LLC |
|
LLC Interest |
|
|
60.0 |
% |
|
X |
|
|
|
|
|
|
| Delaware - United States |
|
CBRE Capital Partners U.S. I GP, LLC |
|
CBRE Capital Partners U.S. Holdco, LLC |
|
Percentage Ownership
Interest |
|
|
88.6 |
% |
|
X |
|
|
|
|
CBRE Global Investors,
LLC |
|
Percentage
Ownership Interest |
|
|
0.2 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Delaware - United States |
|
CBRE Capital Partners U.S. I Management, LLC |
|
CBRE Capital Partners U.S. Holdco, LLC |
|
Percentage Ownership
Interest |
|
|
88.6 |
% |
|
X |
|
|
|
|
CBRE Global Investors,
LLC |
|
Percentage
Ownership Interest |
|
|
0.2 |
% |
|
|
|
|
|
|
|
|
| Delaware - United States |
|
CBRE Capital Partners U.S. Manager, LLC |
|
CBRE Global Investors, LLC |
|
Common Equity |
|
|
100.0 |
% |
|
X |
|
|
|
|
|
|
| Delaware - United States |
|
CBRE Capital Partners U.S. Special Situations I GP, LLC |
|
CBRE Capital Partners U.S. Holdco, LLC |
|
Percentage Ownership
Interest |
|
|
88.6 |
% |
|
X |
|
|
|
|
CBRE Global Investors,
LLC |
|
Percentage
Ownership Interest |
|
|
0.2 |
% |
|
|
|
|
|
|
|
|
| Delaware - United States |
|
CBRE Capital Partners U.S. Special Situations I Management, LLC |
|
CBRE Capital Partners U.S. Holdco, LLC |
|
Percentage Ownership
Interest |
|
|
88.6 |
% |
|
X |
|
|
|
|
CBRE Global Investors,
LLC |
|
Percentage
Ownership Interest |
|
|
0.2 |
% |
|
|
| Hong Kong |
|
CBRE China Capital Partners Limited |
|
CBRE Global Investors Asia Holdings B.V. |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Cayman Islands |
|
CBRE China Opportunity Fund II L.P. |
|
CBRE COF II Management Limited |
|
General Partner
Interest |
|
|
100.0 |
% |
|
X |
|
|
|
|
CBRE Global Investors, Inc. |
|
Limited Partner
Interest |
|
|
100.0 |
% |
|
|
|
|
|
|
|
|
| Delaware - United States |
|
CBRE Clarion Global Infrastructure Value Fund |
|
CBRE Global Investors, Inc. |
|
Percentage Ownership
Interest |
|
|
50.0 |
% |
|
X |
|
|
|
|
|
|
| Delaware - United States |
|
CBRE Clarion Global Listed Infrastructure Fund LP |
|
CBRE Clarion Securities LLC |
|
General Partner
Interest |
|
|
100.0 |
% |
|
X |
|
|
|
|
CBRE Clarion Securities LLC |
|
Limited Partner
Interest |
|
|
25.0 |
% |
|
|
|
|
|
|
CBRE Global Investors, Inc. |
|
Limited Partner
Interest |
|
|
75.0 |
% |
|
|
|
|
|
|
|
|
| Cayman Islands |
|
CBRE Clarion Global Real Return Ltd. |
|
CBRE Global Investors, Inc. |
|
Class A1 Shares |
|
|
100.0 |
% |
|
X |
| Japan |
|
CBRE Clarion Japan K.K. |
|
CBRE Clarion Securities LLC |
|
Common Equity |
|
|
100.0 |
% |
|
X |
|
|
|
|
|
|
| Delaware - United States |
|
CBRE Clarion MLP Investments, LLC |
|
CBRE Clarion Securities LLC |
|
LLC Interest |
|
|
33.3 |
% |
|
X |
|
|
|
|
CBRE Global Investors, Inc. |
|
LLC Interest |
|
|
66.7 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Hong Kong |
|
CBRE Clarion Securities HKG Limited |
|
CBRE Clarion Securities LLC |
|
Common Equity |
|
|
100.0 |
% |
|
X |
|
|
|
|
|
|
| Delaware - United States |
|
CBRE Clarion Securities Holdings LLC |
|
CBRE Clarion CRA Holdings, Inc. |
|
Class A Units |
|
|
95.3 |
% |
|
X |
|
|
|
|
|
|
| Delaware - United States |
|
CBRE Clarion Securities LLC |
|
CBRE Clarion Securities Holdings LLC |
|
Percentage Ownership
Interest |
|
|
100.0 |
% |
|
X |
| Australia |
|
CBRE Clarion Securities PTY Limited |
|
CBRE Clarion Securities LLC |
|
Common Equity |
|
|
100.0 |
% |
|
X |
| United Kingdom |
|
CBRE Clarion Securities UK Ltd |
|
CBRE Clarion Securities LLC |
|
Common Equity |
|
|
100.0 |
% |
|
X |
| Cayman Islands |
|
CBRE COF II Management Limited |
|
CBRE Global Investors Asia Holdings B.V. |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Cayman Islands |
|
CBRE COF Management Limited |
|
CBRE Global Investors Asia Holdings B.V. |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE Dutch Office Fund Management BV |
|
CBRE Global Investors (NL) B.V. |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE Dutch Residential Fund Management BV |
|
CBRE Global Investors (NL) B.V. |
|
Ordinary |
|
|
20.0 |
% |
|
X |
| Netherlands |
|
CBRE Dutch Retail Fund for Developments Beheer Maatschappij BV |
|
CBRE Global Investors (NL) B.V. |
|
Ordinary |
|
|
20.0 |
% |
|
X |
| Netherlands |
|
CBRE Dutch Retail Fund Management BV |
|
CBRE Global Investors (NL) B.V. |
|
Ordinary |
|
|
20.0 |
% |
|
X |
| Netherlands |
|
CBRE EIF Management BV |
|
CBRE Global Investors Europe BV |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE EOF Management BV |
|
CBRE Global Investors Europe BV |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE ESCF Management BV |
|
CBRE Global Investors Europe BV |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE European Industrial Fund Management B.V. |
|
CBRE Global Investors Europe BV |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE FRF Management BV |
|
CBRE Global Investors Europe BV |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| England and Wales |
|
CBRE GIP London General Partner Limited |
|
CBRE Global Investment Partners Limited |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| Singapore |
|
CBRE Global Investment Partners Asia Pte.Ltd |
|
CBRE Global Investment Partners Holding B.V. |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE Global Investment Partners Continental Europe B.V. |
|
CBRE Global Investment Partners Holding B.V. |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE Global Investment Partners Eurosiris Fund Management B.V. |
|
CBRE Global Investment Partners Holding B.V. |
|
Common Equity |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE Global Investment Partners Holding B.V. |
|
CBRE Global Investors Europe Holdings Limited |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| England |
|
CBRE Global Investment Partners Limited |
|
CBRE Global Investors Europe Holdings Limited |
|
Ordinary |
|
|
100.0 |
% |
|
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
| Delaware - United States |
|
CBRE Global Investment Partners, LLC |
|
CBRE Global Investors, LLC |
|
Percentage Ownership
Interest |
|
|
100.0 |
% |
|
X |
| Hong Kong |
|
CBRE Global Investors (Asia Pacific) Limited |
|
CBRE China Capital Partners Limited |
|
Ordinary Shares |
|
|
100.0 |
% |
|
|
| Hong Kong |
|
CBRE Global Investors (Asia) Limited |
|
CBRE China Capital Partners Limited |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Guernsey |
|
CBRE Global Investors (Guernsey) Limited |
|
CBRE Global Investors (UK) Limited |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Jersey |
|
CBRE Global Investors (Jersey) Ltd |
|
CBRE Global Investors Asia Holdings B.V. |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| South Korea |
|
CBRE Global Investors (Korea) Limited |
|
CBRE Global Investors Asia Holdings B.V. |
|
Ordinary Shares |
|
|
100.0 |
% |
|
|
| Netherlands |
|
CBRE Global Investors (NL) B.V. |
|
CBRE Global Investors Europe BV |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| Singapore |
|
CBRE Global Investors (Singapore) Pte. Ltd |
|
CBRE Global Investors Asia Holdings B.V. |
|
Ordinary Shares |
|
|
100.0 |
% |
|
|
| Hong Kong |
|
CBRE Global Investors (Taiwan) Limited |
|
CBRE Global Investors Asia Holdings B.V. |
|
Ordinary Shares |
|
|
100.0 |
% |
|
|
| Taiwan |
|
CBRE Global Investors (Taiwan) Limited (Taiwan Branch) |
|
CBRE Global Investors (Taiwan) Limited |
|
Percentage Ownership
Interest |
|
|
100.0 |
% |
|
|
| United Kingdom |
|
CBRE Global Investors (UK Funds) Limited |
|
CBRE Global Investors (UK) Limited |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| United Kingdom |
|
CBRE Global Investors (UK Investments) Limited |
|
CBRE Global Investors (UK) Limited |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| United Kingdom |
|
CBRE Global Investors (UK) Limited |
|
CBRE Global Investors Europe Holdings Limited |
|
“D” Ordinary Shares |
|
|
100.0 |
% |
|
|
|
|
|
|
CBRE Global Investors Limited |
|
Ordinary A |
|
|
100.0 |
% |
|
|
|
|
|
|
CBRE Global Investors Limited |
|
Ordinary B |
|
|
100.0 |
% |
|
|
| Delaware - United States |
|
CBRE Global Investors Acquisitions, LLC |
|
CBRE Global Investors, LLC |
|
Common Equity |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE Global Investors Asia Holdings B.V. |
|
Relam Amsterdam Holdings BV |
|
Common Equity |
|
|
100.0 |
% |
|
X |
| Austria |
|
CBRE Global Investors Austria GmbH |
|
CBRE Global Investors Europe BV |
|
Share Capital |
|
|
100.0 |
% |
|
X |
| Belgium |
|
CBRE Global Investors Belgium SA |
|
CBRE Global Investors Europe BV |
|
Common Shares |
|
|
99.0 |
% |
|
|
|
|
|
|
CBRE Global Investors Europe Holdings BV |
|
Common Shares |
|
|
1.0 |
% |
|
|
| Czech Republic |
|
CBRE Global Investors Central Europe s.r.o. |
|
CBRE Global Investors Europe BV |
|
Common Equity |
|
|
95.0 |
% |
|
|
|
|
|
|
CBRE Global Investors Europe Holdings BV |
|
Common Equity |
|
|
5.0 |
% |
|
|
| Czech Republic |
|
CBRE Global Investors Czech Republic s.r.o. |
|
CBRE Global Investors Europe BV |
|
Common Equity |
|
|
95.0 |
% |
|
|
|
|
|
|
CBRE Global Investors Europe Holdings BV |
|
Common Equity |
|
|
5.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Luxembourg |
|
CBRE Global Investors DR Co-Invest S.à r.l. |
|
CBRE Global Investors, LLC |
|
Class A1 Ordinary Shares |
|
|
9.8 |
% |
|
X |
|
|
|
|
CBRE Global Investors, LLC |
|
Class A2 Ordinary Shares |
|
|
100.0 |
% |
|
|
|
|
|
|
CBRE Global Investors, LLC |
|
Class B1 Ordinary Shares |
|
|
62.0 |
% |
|
|
|
|
|
|
CBRE Investors Executive Holding Company, LLC |
|
Class B2 Ordinary Shares |
|
|
96.2 |
% |
|
|
|
|
|
|
CBRE Investors Partners Pool I 04, LLC |
|
Class B2 Ordinary Shares |
|
|
3.1 |
% |
|
|
| Netherlands |
|
CBRE Global Investors EMEA AIFM B.V. |
|
CBRE Global Investors Europe BV |
|
Percentage Ownership Interest |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE Global Investors EMEA MAG B.V. |
|
CBRE Global Investors Europe BV |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE Global Investors Europe BV |
|
CBRE Global Investors Europe Holdings Limited |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE Global Investors Europe Carried Interest BV |
|
CBRE Global Investors Europe BV |
|
Shares A |
|
|
100.0 |
% |
|
X |
|
|
|
|
Stichting Administratiekantoor CBRE Carried Interest |
|
Shares I |
|
|
100.0 |
% |
|
|
| Netherlands |
|
CBRE Global Investors Europe Holdings BV |
|
CBRE Global Investors Europe BV |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| United Kingdom |
|
CBRE Global Investors Europe Holdings Limited |
|
CBRE Limited |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| Japan |
|
CBRE Global Investors Finance Japan KK |
|
CBRE China Capital Partners Limited |
|
Shares |
|
|
100.0 |
% |
|
X |
| Finland |
|
CBRE Global Investors Finland Oy |
|
CBRE Global Investors Europe BV |
|
Ordinary Shares |
|
|
100.0 |
% |
|
|
| France |
|
CBRE Global Investors France |
|
CBRE Global Investors Europe BV |
|
Normal shares |
|
|
5.6 |
% |
|
|
|
|
|
|
CBRE Global Investors Europe Holdings BV |
|
Normal shares |
|
|
0.002 |
% |
|
|
| France |
|
CBRE Global Investors France SGP |
|
CBRE Global Investors France |
|
Common Equity |
|
|
100.0 |
% |
|
X |
| Germany |
|
CBRE Global Investors Germany GmbH |
|
CBRE Global Investors Europe BV |
|
Normal shares |
|
|
100.0 |
% |
|
|
| Germany |
|
CBRE Global Investors GmbH |
|
CBRE Global Investors Asia Holdings B.V. |
|
Common Equity |
|
|
100.0 |
% |
|
|
| United Kingdom |
|
CBRE Global Investors GMM UK Limited |
|
CBRE Global Investors Europe Holdings Limited |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| Delaware - United States |
|
CBRE Global Investors GPIF Management, LLC |
|
CBRE Global Investors, LLC |
|
Percentage Ownership Interest |
|
|
100.0 |
% |
|
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
| United Kingdom |
|
CBRE Global Investors Group (UK) Limited |
|
CBRE Global Investors Europe Holdings Limited |
|
Class A1 Ordinary
Shares |
|
|
100.0 |
% |
|
X |
|
|
|
|
CBRE Global Investors Europe Holdings Limited |
|
Class B1 Ordinary
Shares |
|
|
100.0 |
% |
|
|
|
|
|
|
CBRE Global Investors Europe Holdings Limited |
|
Ordinary A |
|
|
100.0 |
% |
|
|
|
|
|
|
CBRE Global Investors Europe Holdings Limited |
|
Ordinary B |
|
|
100.0 |
% |
|
|
| Delaware - United States |
|
CBRE Global Investors Headway GP, LLC |
|
CBRE Global Investors, LLC |
|
Percentage Ownership
Interest |
|
|
100.0 |
% |
|
X |
| Hungary |
|
CBRE Global Investors Hungary Kft. |
|
CBRE Global Investors Europe BV |
|
Common Equity |
|
|
100.0 |
% |
|
|
| Italy |
|
CBRE Global Investors Italy S.r.l. |
|
CBRE Global Investors Europe BV |
|
Sole Quota |
|
|
100.0 |
% |
|
|
| Japan |
|
CBRE Global Investors Japan KK |
|
CBRE Global Investors Asia Holdings B.V. |
|
Ordinary Shares |
|
|
100.0 |
% |
|
|
| United Kingdom |
|
CBRE Global Investors Limited |
|
CBRE Global Investors Group (UK) Limited |
|
Ordinary |
|
|
100.0 |
% |
|
|
| Netherlands |
|
CBRE Global Investors LPF Management (Netherlands) B.V. |
|
CBRE Global Investors (NL) B.V. |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Luxembourg |
|
CBRE Global Investors Luxembourg AIFM S.à r.l. |
|
CBRE Global Investors Europe BV |
|
Shares |
|
|
100.0 |
% |
|
|
| Luxembourg |
|
CBRE Global Investors Luxembourg Sarl |
|
CBRE Global Investors Asia Holdings B.V. |
|
Common Equity |
|
|
100.0 |
% |
|
|
| Amsterdam |
|
CBRE Global Investors Luxembourg Sarl (Amsterdam Branch) |
|
CBRE Global Investors Luxembourg Sarl |
|
Common Equity |
|
|
100.0 |
% |
|
|
| Brussels |
|
CBRE Global Investors Luxembourg Sarl (Brussels Branch) |
|
CBRE Global Investors Luxembourg Sarl |
|
Common Equity |
|
|
100.0 |
% |
|
|
| Dubai |
|
CBRE Global Investors Middle East Limited |
|
CBRE Global Investors Asia Holdings B.V. |
|
Common Equity |
|
|
100.0 |
% |
|
|
| Sweden |
|
CBRE Global Investors Nordics AB |
|
CBRE Global Investors Europe BV |
|
Ordinary Shares |
|
|
100.0 |
% |
|
|
| Luxembourg |
|
CBRE Global Investors Open-Ended GP S.à r.l |
|
CBRE Global Investors Asia Holdings B.V. |
|
Common Equity |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE Global Investors Personnel Services BV |
|
CBRE Global Investors Europe BV |
|
Ordinary Shares |
|
|
100.0 |
% |
|
|
| Poland |
|
CBRE Global Investors Poland SP. Z.o.o. |
|
CBRE Global Investors Europe BV |
|
Common Equity |
|
|
100.0 |
% |
|
|
| Romania |
|
CBRE Global Investors Romania SRL |
|
CBRE Global Investors Europe BV |
|
Common Equity |
|
|
100.0 |
% |
|
X |
| Italy |
|
CBRE Global Investors SGR p.A. |
|
CBRE Global Investors Asia Holdings B.V. |
|
Ordinary Shares |
|
|
96.0 |
% |
|
|
|
|
|
|
Relam Amsterdam Holdings BV |
|
Ordinary Shares |
|
|
4.0 |
% |
|
|
| PRC |
|
CBRE Global Investors Shanghai Co. Ltd. |
|
CBRE Global Investors Asia Holdings B.V. |
|
Equity Shares |
|
|
100.0 |
% |
|
|
| Slovakia |
|
CBRE Global Investors Slovakia s.r.o. |
|
CBRE Global Investors Europe BV |
|
Common Equity |
|
|
1.5 |
% |
|
X |
|
|
|
|
CBRE Global Investors Europe Holdings BV |
|
Common Equity |
|
|
0.002 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Spain |
|
CBRE Global Investors Southern Europe S.L. |
|
CBRE Global Investors Europe BV |
|
Common Equity |
|
|
100.0 |
% |
|
|
| Netherlands |
|
CBRE Global Investors Sponsor Co-Invest B.V. |
|
CBRE Global Investors Luxembourg Sarl |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| United Kingdom |
|
CBRE Global Investors Trustee Limited |
|
CBRE Global Investors Group (UK) Limited |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| California |
|
CBRE Global Investors, Inc. (1) |
|
CBRE, Inc. |
|
Common |
|
|
100.0 |
% |
|
X |
| Delaware - United States |
|
CBRE Global Investors, LLC (1) |
|
CBRE, Inc. |
|
Percentage Ownership
Interest |
|
|
100.0 |
% |
|
|
|
|
|
|
|
|
| Delaware - United States |
|
CBRE Global Value Investors, LLC |
|
CBRE Global Investors, LLC |
|
Common Equity |
|
|
100.0 |
% |
|
X |
| England and Wales |
|
CBRE GLP China Logistics Feeder GP Limited |
|
CBRE Global Investment Partners Limited |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| England and Wales |
|
CBRE GLP China Logistics Feeder LP |
|
CB Richard Ellis GMM Global Alpha Fund Series FCP-SIF - Global Alpha Open Ended Fund |
|
Limited Partner
Interest |
|
|
38.0 |
% |
|
X |
|
|
|
|
CB Richard Ellis Real Estate Fund of Funds plc for CBRE GMM Asia Alpha Plus Fund III |
|
Limited Partner
Interest |
|
|
16.0 |
% |
|
|
|
|
|
|
CBRE Global Osiris Fund Management BV for CBRE Asia Pacific Fund |
|
Limited Partner
Interest |
|
|
16.0 |
% |
|
|
|
|
|
|
CBRE GLP China Logistics Feeder GP Limited |
|
General Partner
Interest |
|
|
100.0 |
% |
|
|
| England and Wales |
|
CBRE GLP Feeder General Partner Limited |
|
CBRE Global Investment Partners Limited |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| England and Wales |
|
CBRE GMM ASGA GP LTD |
|
CBRE Global Investment Partners Limited |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| Scotland |
|
CBRE GMM Asia Alpha Plus II CarryCo GP Limited |
|
CBRE Global Investors Europe Holdings Limited |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| Scotland |
|
CBRE GMM Asia Alpha Plus II CarryCo LP |
|
CBRE Global Investors, LLC |
|
Carried Interest
Units |
|
|
64.7 |
% |
|
X |
|
|
|
|
CBRE Global Investors, LLC |
|
Limited Partner
Interest |
|
|
18.2 |
% |
|
|
|
|
|
|
CBRE GMM Asia Alpha Plus II CarryCo GP Limited |
|
General Partner
Interest |
|
|
100.0 |
% |
|
|
| Netherlands |
|
CBRE GMM Global Osiris Fund Management B.V. |
|
CBRE Global Investment Partners Holding B.V. |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Luxembourg |
|
CBRE GMM Global Osiris Luxemburg S.a r.l. |
|
CBRE Global Investment Partners Holding B.V. |
|
Common Equity |
|
|
2.0 |
% |
|
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
| Delaware - United States |
|
CBRE Investors Executive Holding Company, LLC |
|
CBRE Global Investors, LLC |
|
Membership Units - Contact CBRE Global Investors LA Legal Dept. for ownership info |
|
|
99.0 |
% |
|
X |
| Netherlands |
|
CBRE IRF Management BV |
|
CBRE Global Investors Europe BV |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE IVAF Management BV |
|
CBRE Global Investors Europe BV |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE Kantoren Management BV |
|
CBRE Global Investors (NL) B.V. |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE LPFE Management BV |
|
CBRE Global Investors Europe BV |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
|
|
|
|
|
|
| Delaware - United States |
|
CBRE Multi-Family Advisor, LLC |
|
CBRE Global Investors, Inc. |
|
Common Equity |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE NPF Management BV |
|
CBRE Global Investors Europe BV |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Guernsey |
|
CBRE PFCE Management Ltd |
|
CBRE Global Investors Europe BV |
|
Common Equity |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE PFCEE Management BV |
|
CBRE Global Investors Europe BV |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Delaware - United States |
|
CBRE REIT Holdings LLC |
|
CBRE Global Investors, LLC |
|
Class A Distribution
Interest |
|
|
100.0 |
% |
|
X |
|
|
|
|
CBRE Global Investors,
LLC |
|
Class B
Distribution Interest and Distribution Percentage |
|
|
0.0007 |
% |
|
|
|
|
|
|
CBRE Investors Executive
Holding Company, LLC |
|
Class B
Distribution Interest and Distribution Percentage |
|
|
46.5 |
% |
|
|
|
|
|
|
CBRE Investors Partners
Pool I 04, LLC |
|
Class B
Distribution Interest and Distribution Percentage |
|
|
2.3 |
% |
|
|
| United Kingdom |
|
CBRE Retail Property Fund (General Partner) Limited |
|
CBRE Global Investors (UK) Limited |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE RPFFB Management BV |
|
CBRE Global Investors Europe BV |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Guernsey |
|
CBRE RPFI Management Ltd |
|
CBRE Global Investors Europe BV |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE RPPSE Management BV |
|
CBRE Global Investors Europe BV |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE Sector Kantoren Management B.V. |
|
CBRE Global Investors (NL) B.V. |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
| Netherlands |
|
CBRE Sector Winkels Management BV |
|
CBRE Global Investors (NL) B.V. |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE Sector Woningen Management BV |
|
CBRE Global Investors (NL) B.V. |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Delaware - United States |
|
CBRE SP U.S. Opportunity 5 Wood Partners GP, L.L.C. |
|
CBRE Strategic Investors U.S. Opportunity 5, L.L.C. |
|
Percentage Ownership
Interest |
|
|
100.0 |
% |
|
X |
| Delaware - United States |
|
CBRE SPA II Co-Investment, LLC |
|
CBRE Global Investors, LLC |
|
Capital Units |
|
|
84.9 |
% |
|
X |
|
|
|
|
CBRE Global Investors, LLC |
|
Carried Interest Units |
|
|
7.7 |
% |
|
|
|
|
|
|
CBRE Global Investors, LLC |
|
Reserve Units |
|
|
1.2 |
% |
|
|
|
|
|
|
CBRE Investors Executive Holding Company, LLC |
|
Carried Interest Units |
|
|
57.7 |
% |
|
|
|
|
|
|
CBRE Investors Executive Holding Company, LLC |
|
Reserve Units |
|
|
96.0 |
% |
|
|
|
|
|
|
CBRE Investors GLT Carryco, LLC |
|
Carried Interest Units |
|
|
1.6 |
% |
|
|
|
|
|
|
CBRE Investors GLT Carryco, LLC |
|
Reserve Units |
|
|
2.8 |
% |
|
|
| Delaware - United States |
|
CBRE Strategic Investors U.S. IV, L.L.C. |
|
CBRE Global Investors, LLC |
|
LLC Interest |
|
|
1.1 |
% |
|
X |
|
|
|
|
CBRE Investors Executive Holding Company, LLC |
|
LLC Interest |
|
|
88.8 |
% |
|
|
|
|
|
|
CBRE Investors Partners Pool 05, LLC |
|
LLC Interest |
|
|
2.5 |
% |
|
|
| Delaware - United States |
|
CBRE Strategic Investors U.S. Opportunity 5, L.L.C. |
|
CBRE Global Investors, LLC |
|
LLC Interest |
|
|
40.0 |
% |
|
X |
|
|
|
|
CBRE Investors Executive Holding Company, LLC |
|
LLC Interest |
|
|
88.8 |
% |
|
|
|
|
|
|
CBRE Investors GLT Carryco, LLC |
|
LLC Interest |
|
|
3.1 |
% |
|
|
| Delaware - United States |
|
CBRE Strategic Investors U.S. Value 5, L.L.C. |
|
CBRE Global Investors, LLC |
|
LLC Interest |
|
|
0.4 |
% |
|
X |
|
|
|
|
CBRE Investors Executive Holding Company, LLC |
|
LLC Interest |
|
|
88.8 |
% |
|
|
|
|
|
|
CBRE Investors GLT Carryco, LLC |
|
LLC Interest |
|
|
3.1 |
% |
|
|
| Delaware - United States |
|
CBRE Strategic Partners U.S. Value 6 Carry, LLC |
|
CBRE Global Investors, LLC |
|
Leadership Distrubution Units |
|
|
80.0 |
% |
|
X |
| Delaware - United States |
|
CBRE Strategic Partners U.S. Value 6 GP, LLC |
|
CBRE Global Investors, LLC |
|
Class B Member |
|
|
4.0 |
% |
|
X |
|
|
|
|
CBRE Strategic Partners U.S. Value 6 Carry, LLC |
|
Class A Member |
|
|
100.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Delaware - United States |
|
CBRE Strategic Partners U.S. Value 7 Carry, LLC |
|
CBRE Global Investors, LLC |
|
Distribution Units |
|
|
50.0 |
% |
|
X |
| Delaware - United States |
|
CBRE Strategic Partners U.S. Value 7 GP, LLC |
|
CBRE Global Investors, LLC |
|
Class A Member |
|
|
100.0 |
% |
|
X |
|
|
|
|
CBRE Global Investors, LLC |
|
Class B Member |
|
|
6.7 |
% |
|
|
| Delaware - United States |
|
CBRE Strategic U.S. IV Blocker GP, L.L.C. |
|
CBRE Global Investors, LLC |
|
Percentage Ownership Interest |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE Tower Beheer BV |
|
CBRE Global Investors (NL) B.V. |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Delaware - United States |
|
CBRE U.S. Core Partners GP, LLC |
|
CBRE Global Investors, LLC |
|
Percentage Ownership Interest |
|
|
100.0 |
% |
|
X |
| United Kingdom |
|
CBRE UK Property Fund (General Partner) Limited |
|
CBRE Global Investors (UK) Limited |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| Guernsey |
|
CBRE UK Property Income (General Partner) Limited |
|
Partnership Shares Limited |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| United Kingdom |
|
CBRE UK Residential (General Partner) Ltd |
|
CBRE UK Property Fund (General Partner) Limited |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE Winkels Beheer Maatschappij BV |
|
CBRE Global Investors (NL) B.V. |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE Winkels Management BV |
|
CBRE Global Investors (NL) B.V. |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE Woningen Beheer Maatschappij BV |
|
CBRE Global Investors (NL) B.V. |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
CBRE Woningen Management BV |
|
CBRE Global Investors (NL) B.V. |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Delaware - United States |
|
CBRE Wood Partners Development Fund 3 Carry, LLC |
|
CBRE Global Investors, LLC |
|
Sponsor Distribution Units |
|
|
100.0 |
% |
|
X |
| Delaware - United States |
|
CBRE Wood Partners Development Fund 3 GP, LLC |
|
CBRE Wood Partners Development Fund 3 Carry, LLC |
|
Class A Units |
|
|
100.0 |
% |
|
X |
| Delaware - United States |
|
CBREI Leaseco Manager 2, LLC |
|
CBRE Global Investors, Inc. |
|
Percentage Ownership Interest |
|
|
100.0 |
% |
|
X |
| Delaware - United States |
|
CBREI Leaseco Manager, LLC |
|
CBRE Global Investors, Inc. |
|
Percentage Ownership Interest |
|
|
100.0 |
% |
|
X |
| Jersey |
|
CB-SPUK Carry Co. 3 Limited |
|
CBRE Global Investors, Inc. |
|
Class A Shares |
|
|
53.5 |
% |
|
X |
|
|
|
|
CBRE Global Investors, Inc. |
|
Class B Shares |
|
|
50.0 |
% |
|
|
|
|
|
|
CBRE Global Investors, Inc. |
|
Special Shares |
|
|
100.0 |
% |
|
|
|
|
|
|
CBRE Investors Executive Holding Company, LLC |
|
Class A Shares |
|
|
13.3 |
% |
|
|
|
|
|
|
CBRE Investors Executive Holding Company, LLC |
|
Class B Shares |
|
|
12.4 |
% |
|
|
|
|
|
|
CBRE Investors GLT Carryco, LLC |
|
Class A Shares |
|
|
2.6 |
% |
|
|
|
|
|
|
CBRE Investors GLT Carryco, LLC |
|
Class B Shares |
|
|
2.4 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| United Kingdom |
|
CB-Spuk Investment Adviser Limited |
|
CBRE Global Investors Europe Holdings Limited |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| Delaware - United States |
|
Global Innovation Advisor, LLC |
|
CBRE Global Investors, LLC |
|
Common Equity |
|
|
100.0 |
% |
|
X |
| Delaware - United States |
|
Global Innovation Manager, LLC |
|
CBRE Investors Executive Holding Company, LLC |
|
Company Interest |
|
|
50.0 |
% |
|
X |
| Netherlands |
|
ING Real Estate FBVAF Management B.V. |
|
CBRE Global Investors Europe BV |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Guernsey |
|
Michael House Limited |
|
CBRE Global Investors (UK) Limited |
|
Ordinary Shares |
|
|
50.0 |
% |
|
X |
| Luxembourg |
|
Miroir Holding S.a r.l. |
|
SPE Office SARL |
|
Common Equity |
|
|
100.0 |
% |
|
X |
| France |
|
Nathan Investissements S.a.r.l. |
|
CBRE Global Investors Asia Holdings B.V. |
|
Common Equity |
|
|
0.5 |
% |
|
X |
| England and Wales |
|
Oxford Property Consultants Limited |
|
CBRE Global Investors Europe Holdings Limited |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| United Kingdom |
|
Partnership Shares Limited |
|
CBRE Global Investors (UK) Limited |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| Cayman Islands |
|
Phoenix Real Estate Fund GP Limited |
|
CBRE Global Investors Asia Holdings B.V. |
|
Ordinary Shares |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
REOFN Fund Management BV |
|
CBRE Global Investors (NL) B.V. |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
RFM Regulated Fund Management BV |
|
RFM Regulated Funds Europe BV |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| Netherlands |
|
RFM Regulated Funds Europe BV |
|
CBRE Global Investors (NL) B.V. |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| Delaware - United States |
|
SP5 Wood Partners Co-Investment Venture 2 GP, L.L.C. |
|
CBRE Global Investors, LLC |
|
Percentage Ownership Interest |
|
|
100.0 |
% |
|
X |
| Delaware - United States |
|
SP5 Wood Partners Development GP, L.L.C. |
|
CBRE Global Investors, LLC |
|
Percentage Ownership Interest |
|
|
100.0 |
% |
|
X |
| Luxembourg |
|
SPE Finance S.à r.l. |
|
CB Richard Ellis European Warehousing S.à r.l. |
|
Normal shares |
|
|
100.0 |
% |
|
X |
| Luxembourg |
|
SPE Office SARL |
|
CB Richard Ellis European Warehousing S.à r.l. |
|
Common Equity |
|
|
100.0 |
% |
|
X |
| United Kingdom |
|
SPUK (GP1) Limited |
|
CBRE Global Investors Europe Holdings Limited |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| Guernsey |
|
UK RF Title Company (Number 1) Limited |
|
CBRE Global Investors (UK) Limited |
|
Ordinary |
|
|
100.0 |
% |
|
X |
| Guernsey |
|
UK RF Title Company (Number 2) Limited |
|
UK RF Title Company (Number 1) Limited |
|
Ordinary |
|
|
50.0 |
% |
|
X |
|
|
|
|
|
|
|
|
|
|
|
|
|
| Delaware - United States |
|
USA 615 North 48th St Management, LLC |
|
CB Richard Ellis Investors/U.S. Advisor, LLC |
|
Percentage Ownership Interest |
|
|
100.0 |
% |
|
X |
| Delaware - United States |
|
USA 615 North 48th St, LLC |
|
615 North 48th Street HoldCo LLC |
|
Percentage Ownership Interest |
|
|
100.0 |
% |
|
X |
| Delaware - United States |
|
USA Bristol Place Leaseco, LLC |
|
CB Richard Ellis Investors/U.S. Advisor, LLC |
|
Membership Interests |
|
|
66.6 |
% |
|
X |
| Delaware - United States |
|
USA Heritage at Lakeside LeaseCo, LLC |
|
CB Richard Ellis Investors/U.S. Advisor, LLC |
|
Membership Interests |
|
|
66.6 |
% |
|
X |
| Delaware - United States |
|
USA Heritage at Lakeside, LLC |
|
CB Richard Ellis Investors/U.S. Advisor, LLC |
|
Membership Interests |
|
|
66.6 |
% |
|
X |
| Delaware - United States |
|
USA Houston Apartments Leaseco, LLC |
|
CB Richard Ellis Investors/U.S. Advisor, LLC |
|
Membership Interests |
|
|
66.6 |
% |
|
X |
| Delaware - United States |
|
USA Midtown Heights Leaseco, LLC |
|
CB Richard Ellis Investors/U.S. Advisor, LLC |
|
Membership Interests |
|
|
66.6 |
% |
|
X |
| Delaware - United States |
|
USA Midtown Heights, LLC |
|
CB Richard Ellis Investors/U.S. Advisor, LLC |
|
Membership Interests |
|
|
66.6 |
% |
|
X |
| Delaware - United States |
|
USA San Miguel Leaseco, LLC |
|
CB Richard Ellis Investors/U.S. Advisor, LLC |
|
Membership Interests |
|
|
66.6 |
% |
|
X |
| Delaware - United States |
|
USA Signature Ridge Leaseco, LLC |
|
CB Richard Ellis Investors/U.S. Advisor, LLC |
|
Membership Interests |
|
|
66.6 |
% |
|
X |
| Delaware - United States |
|
USA Sonterra LeaseCo, LLC |
|
CB Richard Ellis Investors/U.S. Advisor, LLC |
|
Membership Interests |
|
|
66.6 |
% |
|
X |
| Delaware - United States |
|
USA Sonterra, LLC |
|
CB Richard Ellis Investors/U.S. Advisor, LLC |
|
Membership Interests |
|
|
66.6 |
% |
|
X |
| Delaware - United States |
|
USA Tranquility Lake Leaseco, LLC |
|
CB Richard Ellis Investors/U.S. Advisor, LLC |
|
Membership Interests |
|
|
66.6 |
% |
|
X |
| Delaware - United States |
|
USA Tranquility Lake, LLC |
|
CB Richard Ellis Investors/U.S. Advisor, LLC |
|
Membership Interests |
|
|
66.6 |
% |
|
X |
| Delaware - United States |
|
USA View at Encino Commons Leaseco, LLC |
|
CB Richard Ellis Investors/U.S. Advisor, LLC |
|
Membership Interests |
|
|
66.6 |
% |
|
X |
Schedule 3.09 – Litigation: Compliance with Laws
None
Schedule 3.19(a) – UCC Filing Offices
|
|
|
|
|
| Debtor |
|
Secured Party |
|
Filing Office |
| CBRE Group, Inc. |
|
Credit Suisse AG |
|
Delaware Secretary of State |
| CBRE Services, Inc. |
|
Credit Suisse AG |
|
Delaware Secretary of State |
| CBRE, Inc. |
|
Credit Suisse AG |
|
Delaware Secretary of State |
| CB/TCC, LLC |
|
Credit Suisse AG |
|
Delaware Secretary of State |
| CBRE Technical Services, LLC |
|
Credit Suisse AG |
|
Delaware Secretary of State |
| CBRE Partner, Inc. |
|
Credit Suisse AG |
|
Delaware Secretary of State |
| CBRE Clarion CRA Holdings, Inc. |
|
Credit Suisse AG |
|
Delaware Secretary of State |
| CBRE Clarion REI Holding, Inc. |
|
Credit Suisse AG |
|
Delaware Secretary of State |
| CBRE/LJM – Nevada, Inc. |
|
Credit Suisse AG |
|
Nevada Secretary of State |
| CBRE Government Services, LLC |
|
Credit Suisse AG |
|
Delaware Secretary of State |
| Trammell Crow Company, LLC |
|
Credit Suisse AG |
|
Delaware Secretary of State |
Schedule 4.02(a) – Foreign Counsel
CBRE Pty Limited (Australia Borrower) – Allens Arthur Robinson
CBRE Limited (New Zealand Borrower) – Chapman Tripp
CBRE
Limited (Canadian Borrower) – McInnes Cooper
CBRE Limited (U.K. Borrower and CB/TCC Global Holdings Limited) – Wragge & Co LLP
CBRE Global Holdings, S.A.R.L. – AMMC Law
Relam Amsterdam
Holdings, B.V. – AKD N.V.
CBRE Limited Partnership – Bedell Group
Schedule 6.01(a) – Debt
|
|
|
|
|
|
|
|
|
|
|
|
|
| Country |
|
Debtor |
|
Description of Indebtedness |
|
|
|
|
Amount |
|
| Australia |
|
CBRE (C) Pty Ltd |
|
ANZ Bank - Indemnity Guarantee |
|
|
AUD |
|
|
|
9,700,000 |
|
| Australia |
|
CBRE (C) Pty Ltd |
|
ANZ Bank - Credit Card Facility |
|
|
AUD |
|
|
|
400,000 |
|
| Australia |
|
CBRE (C) Pty Ltd |
|
ANZ Bank - Encashment facility |
|
|
AUD |
|
|
|
18,400 |
|
| Australia |
|
CBRE (C) Pty Ltd |
|
ANZ Bank - Key Equipment Finance Australia |
|
|
AUD |
|
|
|
65,000 |
|
| Australia |
|
CBRE (C) Pty Ltd |
|
ANZ Bank Overdraft Facility |
|
|
AUD |
|
|
|
1,000,000 |
|
| Australia |
|
CBRE (C) Pty Ltd |
|
ANZ Bank - Encashment facility |
|
|
AUD |
|
|
|
5,000 |
|
| Australia |
|
CBRE (C) Pty Ltd |
|
ANZ Bank - Corporate Lease Finance Facility |
|
|
AUD |
|
|
|
750,000 |
|
| Australia |
|
CBRE (C) Pty Ltd |
|
ANZ Bank - Electronic Payaway Facility |
|
|
AUD |
|
|
|
650,000 |
|
| Austria |
|
CBRE Gmbh |
|
Unicredit overdraft facility |
|
|
EUR |
|
|
|
26,000 |
|
| Cayman Islands |
|
Raven Insurance Company, Ltd. |
|
Letter of Credit Facility for insurance related letters of credit |
|
|
USD |
|
|
|
35,000,000 |
|
| Canada |
|
CBRE Limited |
|
Scotia Bank Outstanding Letters of Credit |
|
|
CAD |
|
|
|
7,520,000 |
|
| Europe |
|
Various entities in Europe |
|
HSBC Bank Euro Pool overdraft line |
|
|
EUR |
|
|
|
20,000,000 |
|
| France |
|
CBRE Global Investors France SAS |
|
HSBC Bank Overdraft Facility |
|
|
EUR |
|
|
|
5,000,000 |
|
| France |
|
CBRE Holding SAS |
|
HSBC Bank Overdraft Facility |
|
|
EUR |
|
|
|
5,000,000 |
|
| France |
|
CBRE Holding SAS |
|
HSBC Bank Guarantee |
|
|
EUR |
|
|
|
290,000 |
|
| Germany |
|
CBRE GmbH |
|
HSBC Bank Credit Agreement |
|
|
EUR |
|
|
|
1,515,000 |
|
| Hong Kong |
|
CBRE HK Limited |
|
HSBC Bank - Combined Overdraft |
|
|
HKD |
|
|
|
9,000,000 |
|
| India |
|
CBRE South Asia Private Limited |
|
Facility Letter |
|
|
INR |
|
|
|
130,000,000 |
|
| Ireland |
|
CBRE |
|
Bank of Ireland overdraft facility |
|
|
EUR |
|
|
|
100,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Japan |
|
CBRE KK |
|
Mitsubishi Tokyo UFJ Bank |
|
|
JPY |
|
|
|
600,000,000 |
|
| Japan |
|
CBRE KK |
|
Sumitomo Mitsui Banking Corporation |
|
|
JPY |
|
|
|
800,000,000 |
|
| Japan |
|
CBRE KK |
|
Mizuho Bank |
|
|
JPY |
|
|
|
400,000,000 |
|
| New Zealand |
|
CBRE Limited |
|
ANZ Bank - Overdraft |
|
|
NZD |
|
|
|
300,000 |
|
| New Zealand |
|
CBRE Limited |
|
ANZ Bank - Credit Card Facility |
|
|
NZD |
|
|
|
200,000 |
|
| Portugal |
|
CBRE Sociedade de Mediacao Imobillaria |
|
Scotia Bank Letter of Credit |
|
|
EUR |
|
|
|
350,000 |
|
| Russia |
|
CBRE LLC |
|
Raiffesenbank overdraft facility |
|
|
RUB |
|
|
|
1,350,000 |
|
| Singapore |
|
CBRE (Pte) Ltd |
|
HSBC Bank - Combined Overdraft |
|
|
SGD |
|
|
|
1,200,000 |
|
| Spain |
|
CBRE Real Estate S.A. |
|
HSBC Bank Overdraft Facility |
|
|
EUR |
|
|
|
2,000,000 |
|
| Thailand |
|
CB Richard liis (Thailand) Co. Ltd. |
|
HSBC Bank Banking Facility |
|
|
USD |
|
|
|
500,000 |
|
| United States |
|
CBRE Multifamily Capital, Inc. |
|
HSBC Bank Letter of Credit Facility |
|
|
USD |
|
|
|
29,000,000 |
|
| United States |
|
Trammell Crow Company |
|
Scotia Bank Letter of Credit |
|
|
USD |
|
|
|
4,950,000 |
|
| Vietnam |
|
CBRE (Viet Nam) Co., Ltd. |
|
HSBC Bank General Facility |
|
|
VND |
|
|
|
300,000,000 |
|
| Various |
|
Various |
|
Capital Lease Obligation ( in various currencies) |
|
|
USD |
|
|
|
4,201,000 |
|
Schedule 6.01(a) – Guarantees
|
|
|
|
|
|
|
|
|
|
|
|
|
| Country |
|
Debtor |
|
Description of Guarantee |
|
|
|
|
Balance in
functional
currency |
|
| Australia |
|
CBRE (C) Pty Ltd. |
|
ANZ Bank Guarantee - Lease obligations for Level 12 and 13, 14 Moore Street, Canberra ACT |
|
|
AUD |
|
|
|
337,016 |
|
| Australia |
|
CBRE (N2) Pty Ltd |
|
Rent Guarantee for Richard Ellis (New South Wales) Pty Ltd |
|
|
AUD |
|
|
|
32,313 |
|
| Australia |
|
CBRE (C) Pty Ltd. |
|
Rent Guarantee for 8a/11 Lord Street, Botany NSW |
|
|
AUD |
|
|
|
47,557 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Australia |
|
CBRE (P) Pty Ltd. |
|
ANZ Bank Guarantee |
|
|
AUD |
|
|
|
20,693 |
|
| Australia |
|
CBRE (P) Pty Ltd. |
|
ANZ Bank Guarantee |
|
|
AUD |
|
|
|
20,693 |
|
| Australia |
|
CBRE (C) Pty Ltd. |
|
ANZ Bank Guarantee - Lease obligations for 477 Pttwater Rd NSW |
|
|
AUD |
|
|
|
39,964 |
|
| Australia |
|
CBRE (C) Pty Ltd. |
|
ANZ Bank Guarantee - CBRE Lease 363 George St Sydney |
|
|
AUD |
|
|
|
3,200,141 |
|
| Australia |
|
CBRE (C) Pty Ltd. |
|
Fasako Pty Ltd - China Town Centre, 401-411 Sussex Street |
|
|
AUD |
|
|
|
52,000 |
|
| Australia |
|
CBRE Pty Ltd. |
|
ANZ Bank Guarantee - Z2231 ISPT Pty Ltd - L13, 114 William St |
|
|
AUD |
|
|
|
130,086 |
|
| Australia |
|
CBRE (GCS) Pty Ltd. |
|
ANZ Bank Guarantee - Dexus - rent guarantee - Brisbane |
|
|
AUD |
|
|
|
104,033 |
|
| Australia |
|
CBRE (C) Pty Ltd. |
|
ANZ Bank Guarantee - Gold Coast lease - South Sky Invetsments |
|
|
AUD |
|
|
|
69,611 |
|
| Australia |
|
CBRE (C) Pty Ltd. |
|
ANZ Bank Guarantee - Level 3, 1 Eagle Street, Brisbane - Lease Guarantee |
|
|
AUD |
|
|
|
739,200 |
|
| Australia |
|
CBRE (C) Pty Ltd. |
|
ANZ Bank Guarantee - Level 5, 151 Pirie St, Adelaide - Lease Guarantee |
|
|
AUD |
|
|
|
75,364 |
|
| Australia |
|
CBRE (C) Pty Ltd. |
|
Key Equipment finance (fit out for add’l space for North Sydney Office) |
|
|
AUD |
|
|
|
65,000 |
|
| Australia |
|
CBRE (C) Pty Ltd. |
|
ANZ Bank Guarantee - Lease obligations for Lvl 34 and Part Lvl 33, 8 Exhibition St, Melbourne |
|
|
AUD |
|
|
|
4,701,576 |
|
| Australia |
|
CBRE (C) Pty Ltd. |
|
Assumptio of Suite 1-02 14 Martin Place Sydney (Paragon Office) |
|
|
AUD |
|
|
|
58,169 |
|
| Hong Kong |
|
CBRE Limited (HK) |
|
HSBC Bank Guarantees - rental deposit |
|
|
HKD |
|
|
|
1,604,372 |
|
| Singapore |
|
CBRE (Pte) Limited |
|
HSBC Institutional Trust Svcs (S) Ltd (for office rental #33-01A, 6 Battery Road) |
|
|
SGD |
|
|
|
97,978 |
|
| Singapore |
|
CBRE (Pte) Limited |
|
HSBC (Parent Guarantee for Singapore overdraft line) |
|
|
SGD |
|
|
|
1,200,000 |
|
| Singapore |
|
CBRE (Pte) Limited |
|
HSBC Institutional Trust Svcs (S) Ltd (for office rental - #33-01A, 6 Battery Road) |
|
|
SGD |
|
|
|
101,720 |
|
| Singapore |
|
CBRE (Pte) Limited |
|
The Management Corporation Strata Title Plan No. 3129 (for CBREM) |
|
|
SGD |
|
|
|
36,000 |
|
| Singapore |
|
CBRE (Pte) Limited |
|
HSBC Institutional Trust Svcs (S) Ltd (for office rental - #33-02 Corridor Area, 6 Battery Rd) |
|
|
SGD |
|
|
|
10,011 |
|
| Singapore |
|
CBRE (Pte) Limited |
|
HSBC Institutional Trust Svcs (S) Ltd (for office rental - #32-01 & #33-02, 6 Battery Rd) |
|
|
SGD |
|
|
|
469,526 |
|
| Singapore |
|
CBRE (Pte) Limited |
|
Ministry of Trade and Industry - guarantee on service delivery |
|
|
SGD |
|
|
|
26,934 |
|
| Singapore |
|
CBRE (Pte) Limited |
|
Housing & Development Board (for CBRE Realty Associates Pte. Ltd.) |
|
|
SGD |
|
|
|
114,811 |
|
| Singapore |
|
CBRE (Pte) Limited |
|
Singapore Post Limited (Asset Svcs dept) |
|
|
SGD |
|
|
|
38,300 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Singapore |
|
CBRE (Pte) Limited |
|
Singapore Press Holdings (for CRA) - guarantee for CRA advertising vendor |
|
|
SGD |
|
|
|
300,000 |
|
| Thailand |
|
CB Richard Ellis (Thailand) Co., Ltd. |
|
Thai Asset Fund1 (by Phatra Asset Management Co., Ltd. (on behalf of Abdulahim Building) (Asset Service Deprtment) |
|
|
THB |
|
|
|
1,128,636.00 |
|
| India |
|
CBRE S. Asia Private Ltd |
|
BG Exploration and Production India Ltd - Performance Bank Guarantee |
|
|
INR |
|
|
|
210,000 |
|
| India |
|
CBRE S. Asia Private Ltd |
|
The Press Trust of India Limited, 4, Parliament Street, New Delhi-110 001. - ABG (Advance Bank Guarantee for 10% of the Order Value) |
|
|
INR |
|
|
|
650,000.00 |
|
| India |
|
CBRE S. Asia Private Ltd |
|
Foster Wheeler India Private Limited, Infinity Benchmark, 13th Floor, Plot G1, Block EP & GP, Sector V, Salt Lake, Kolkata - 700091. - PBG (Performance Bank Guarantee for 5% of the Order Value) |
|
|
INR |
|
|
|
82,500.00 |
|
| India |
|
CBRE S. Asia Private Ltd |
|
NCAER, National Council of Applied Economic Research - Performance Guarantee |
|
|
INR |
|
|
|
500,000 |
|
| India |
|
CBRE S. Asia Private Ltd |
|
Infosys Limited - Performance Guarantee |
|
|
INR |
|
|
|
1,141,413 |
|
| India |
|
CBRE S. Asia Private Ltd |
|
Maruti Suzuki India Limited - Performance Guarantee |
|
|
INR |
|
|
|
300,000 |
|
| India |
|
CBRE S. Asia Private Ltd |
|
MANGALORE INTERNET CITY PVT. LTD - Performance guarantee |
|
|
INR |
|
|
|
1,825,000 |
|
| India |
|
CBRE S. Asia Private Ltd |
|
Indospace FWS Industrial Park Pvt - Mobilization Advance |
|
|
INR |
|
|
|
2,298,900 |
|
| India |
|
CBRE S. Asia Private Ltd |
|
Wipro Limited - Due performance of the Facility Management Services |
|
|
INR |
|
|
|
2,733,564 |
|
| India |
|
CBRE S. Asia Private Ltd |
|
Infosys Limited - Performance guarantee |
|
|
INR |
|
|
|
1,230,409 |
|
| India |
|
CBRE S. Asia Private Ltd |
|
The Assessing Authority, VAT Department, Gurgaon |
|
|
INR |
|
|
|
50,000 |
|
| India |
|
CBRE S. Asia Private Ltd |
|
The Assessin Authority, CST Department, Gurgaon. |
|
|
INR |
|
|
|
50,000 |
|
| India |
|
CBRE S. Asia Private Ltd |
|
Deputy Commissioner Assessment, Ward 3, Commercial Tax Officer, Noida, VAT |
|
|
INR |
|
|
|
25,000 |
|
| India |
|
CBRE S. Asia Private Ltd |
|
Excise & Taxation Officer, Excise & Taxation Deposrtment, Sector 17, Chandigarh 160017. |
|
|
INR |
|
|
|
50,000 |
|
| India |
|
CBRE S. Asia Private Ltd |
|
Excise & Taxation Officer, Excise & Taxation Deposrtment, Sector 17, Chandigarh 160017. |
|
|
INR |
|
|
|
50,000 |
|
| India |
|
CBRE S. Asia Private Ltd |
|
Foster Wheeler India Private Limited, Infinity Benchmark, 13th Floor, Plot G1, Block EP & GP, Sector V, Salt Lake, Kolkata - 700091 - Advance Bank Guarantee for 10% of the Order Value |
|
|
INR |
|
|
|
165,000 |
|
| India |
|
CBRE S. Asia Private Ltd |
|
The Press Trust of India Limited, 4, Parliament Street, New Delhi-110 001. |
|
|
INR |
|
|
|
650,000 |
|
| India |
|
CBRE S. Asia Private Ltd |
|
Foster Wheeler India Private Limited, Infinity Benchmark, 13th Floor, Plot G1, Block EP & GP, Sector V, Salt Lake, Kolkata - 700091. |
|
|
INR |
|
|
|
82,500 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| India |
|
CBRE S. Asia Private Ltd |
|
Cairn India Ltd. Paras Building, Tower A, Paras Twin Tower, Sector Road, Sector 54, GURGAON - 122 002. |
|
|
INR |
|
|
|
2,063,332 |
|
| Austria |
|
CBRE Gmbh |
|
Rent guarantee to landlord: Generali Versicherung AG for office space Vienna |
|
|
EUR |
|
|
|
25,000 |
|
| Austria |
|
CBRE Gmbh |
|
Rent guarantee to landlord: Generali Versicherungs AG for additional office space Vienna |
|
|
EUR |
|
|
|
48,940 |
|
| Czech |
|
CBRE S.r.o. |
|
Palladium - Palladium Praha s.r.o. |
|
|
EUR |
|
|
|
112,690 |
|
| Czech |
|
CBRE S.r.o. |
|
Lighthouse - WestInvest Waterfront Towers s.r.o. (with HSBC) |
|
|
EUR |
|
|
|
141,489 |
|
| Lux |
|
CBRE S.A. |
|
Rent guarantee LUX office - ING |
|
|
EUR |
|
|
|
15,360 |
|
| Belgium |
|
CBRE S.A. |
|
Fortis Bank - Bank Guarantee for office lease (antwerpen and brussels) |
|
|
EUR |
|
|
|
241,056 |
|
| Belgium |
|
CBRE S.A. |
|
It is a deposit for our new Advisory activity. Belgium had to pay 250K by end of year just to show that CBRE has enough cash and is solid from a financial point of view. This amount will be reimbursed if the activity is
stopped. |
|
|
EUR |
|
|
|
250,000 |
|
| Finland |
|
CBRE Oy |
|
Rent Guarantee to landlord: Suomen Kulttuurirahasto |
|
|
EUR |
|
|
|
12,695 |
|
| Germany |
|
CBRE Gmbh |
|
Rent Guarantee to Versorgungswerk der Rechtsanwalte im Lande Hessen |
|
|
EUR |
|
|
|
48,623 |
|
| Germany |
|
CBRE Gmbh |
|
Rent Guarantee to Versorgungswerk der Rechtsanwalte im Lande Hessen |
|
|
EUR |
|
|
|
23,059 |
|
| Germany |
|
CBRE Gmbh |
|
Rent Guarantee to Versorgungswerk der Rechtsanwalte im Lande Hessen |
|
|
EUR |
|
|
|
9,500 |
|
| Germany |
|
CBRE Gmbh |
|
Rent Guarantee to ING RE WestendDuo GmbH & Co. KG |
|
|
EUR |
|
|
|
434,594 |
|
| Germany |
|
CBRE Gmbh |
|
Rent Guarantee to ING RE WestendDuo GmbH & Co. KG |
|
|
EUR |
|
|
|
115,230 |
|
| Germany |
|
CBRE Investors Gmbh |
|
Rent Guarantee to MEAG Real Estate Munchen GmbH |
|
|
EUR |
|
|
|
75,506 |
|
| Germany |
|
CBRE GmbH |
|
Rent Guarantee to Union Investment Real Estate GmbH |
|
|
EUR |
|
|
|
124,680 |
|
| Germany |
|
CBRE GmbH |
|
Rent Guarantee to Victoria Lebensversicherung |
|
|
EUR |
|
|
|
18,518 |
|
| Germany |
|
CBRE GmbH |
|
Rent Guarantee to Warburg Henderson |
|
|
EUR |
|
|
|
71,322 |
|
| Germany |
|
CBRE GmbH |
|
Rent Guarantee to TLG Immobilien GMbH |
|
|
EUR |
|
|
|
19,448 |
|
| Germany |
|
VALTEQ Gesellschaft mbH |
|
Frankfurt, Rent Guarantee to landlord: Minol GmbH & Co. Messgeräte Handels- und Service KG |
|
|
EUR |
|
|
|
8,820 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Germany |
|
VALTEQ Gesellschaft mbH |
|
Berlin, Rent Guarantee to AV AG & CO |
|
|
EUR |
|
|
|
25,000 |
|
| Germany |
|
VALTEQ Gesellschaft mbH |
|
Nürnberg, Rent Guarantee to RMV, GmbH |
|
|
EUR |
|
|
|
6,544 |
|
| Germany |
|
VALTEQ Gesellschaft mbH |
|
München, Rent Guarantee to Frau Ursula Röschenthaler |
|
|
EUR |
|
|
|
8,000 |
|
| Germany |
|
VALTEQ Gesellschaft mbH |
|
Stuttgart, Rent Guarantee to Bülow AG, Stuttgart |
|
|
EUR |
|
|
|
27,095 |
|
| Germany |
|
Preuss Projektmanagement GmbH |
|
Warranty against defects to MEAG MUNICH ERGO |
|
|
EUR |
|
|
|
16,244 |
|
| Germany |
|
Preuss Projektmanagement GmbH |
|
Warranty against defects to Münchner Rückversicherungs-Gesellschaft AG |
|
|
EUR |
|
|
|
36,518 |
|
| Germany |
|
Preuss Projektmanagement GmbH |
|
Rent Guarantee to ERGONEON |
|
|
EUR |
|
|
|
87,500 |
|
| Germany |
|
Preuss Projektmanagement GmbH |
|
Rent Guarantee to Münchner Rückversicherungs-Gesellschaft AG |
|
|
EUR |
|
|
|
29,780 |
|
| Germany |
|
Preuss Projektmanagement GmbH |
|
Rent Guarantee to Malpica 100, S.L. |
|
|
EUR |
|
|
|
31,500 |
|
| Germany |
|
Preuss Projektmanagement GmbH |
|
Rent Guarantee to Versorgungswerk der Architektenkammer NRW |
|
|
EUR |
|
|
|
30,933 |
|
| Netherlands |
|
CBRE B.V. |
|
F. van Lanschot Bankers - Bank Guarantee for office lease - Hague |
|
|
EUR |
|
|
|
18,683 |
|
| Italy |
|
CBRE Spa |
|
Banca Popolare de Milano - Rent guarantee: Investire Immobiliare SGR SPA - Milan office: Via Del Lauro 7 |
|
|
EUR |
|
|
|
175,000 |
|
| Italy |
|
CBRE Spa |
|
Banca Popolare de Milano - Rent guarantee: Pontificio collegio Armeno - Rome office: Via L Bissolati 20 |
|
|
EUR |
|
|
|
60,000 |
|
| Poland |
|
CBRE SP Z.o.o. |
|
Rent guarantee to Rondo 1 UG (landlord) |
|
|
EUR |
|
|
|
225,185 |
|
| Romania |
|
CBRE Real Estate Consultancy SRL |
|
Rent guarantee to landlord: Victoria International Property SRL. Held with Unicredit bank. |
|
|
EUR |
|
|
|
45,193 |
|
| Romania |
|
CBRE Real Estate Consultancy SRL |
|
Rent guarantee to 2nd landlord: SC Modatim Business Facility SA |
|
|
EUR |
|
|
|
1,497 |
|
| Netherlands |
|
CBRE B.V. |
|
F. van Lanxchot Bankers - Bank Guarantee for office lease - Rotterdam |
|
|
EUR |
|
|
|
27,358 |
|
| Netherlands |
|
CBRE B.V. |
|
Van Lanschot - Bank Guarantee for office lease - Utrecht |
|
|
EUR |
|
|
|
26,370 |
|
| Relam |
|
CBRE B.V. |
|
Parent Guarantee re Dutch office lease |
|
|
EUR |
|
|
|
530,125 |
|
| Portugal |
|
CBRE Sociedade de Mediação Imobiliária, Lda |
|
Client guarantee: DEKA (Asset Services agreement) |
|
|
EUR |
|
|
|
350,000 |
|
| Spain |
|
CBRE S.A. |
|
Rent guarantee to landlord: Altamira Real Estate S.A. |
|
|
EUR |
|
|
|
8,300 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Spain |
|
CBRE S.A. |
|
Rent guarantee to landlord: Testa Inmuebles en Renta |
|
|
EUR |
|
|
|
122,594 |
|
| Spain |
|
Martinez FM Arquitectos |
|
Client guarantee: SANTANDER BANIF INMOBILLIARIO |
|
|
EUR |
|
|
|
23,746 |
|
| Spain |
|
Martinez FM Arquitectos |
|
Client guarantee: REAL COLEGIO DE ESCOCESES |
|
|
EUR |
|
|
|
249,365 |
|
| Spain |
|
Martinez FM Arquitectos |
|
Client guarantee: British Council |
|
|
EUR |
|
|
|
62,629 |
|
| Spain |
|
Martinez FM Arquitectos |
|
Client guarantee: REDEXIS GAS BALERARES S.A. |
|
|
EUR |
|
|
|
40,410 |
|
| Spain |
|
Martinez FM Arquitectos |
|
Client guarantee: REDEXIS GAS ARAGON S.A. |
|
|
EUR |
|
|
|
30,364 |
|
| Spain |
|
Martinez FM Arquitectos |
|
Client guarantee: SAREB |
|
|
EUR |
|
|
|
61,000 |
|
| Spain |
|
Martinez FM Arquitectos |
|
Client guarantee: SAREB |
|
|
EUR |
|
|
|
30,500 |
|
| Spain |
|
Martinez FM Arquitectos |
|
Client guarantee: DU PONT IBERICA S.L. |
|
|
EUR |
|
|
|
60,138 |
|
| Spain |
|
Martinez FM Arquitectos |
|
Client guarantee: 3M ESPANA S.L. |
|
|
EUR |
|
|
|
29,483 |
|
| United Kingdom |
|
CBRE Group, Inc. |
|
For Richard Ellis St. Quintin Trustee Ltd as trustee of the Richard Ellis St. Quintin Retirement Fund |
|
|
GBP |
|
|
|
7,022,017 |
|
| Czech Republic |
|
CBRE s.r.o. |
|
Bank guarantee for operating accounts for recoverable service charges - Florenc Center |
|
|
CZK |
|
|
|
4,170,000 |
|
| Czech Republic |
|
CBRE s.r.o. |
|
Bank guarantee for operating accounts for non-recoverable service charges - Florenc Ctr |
|
|
EUR |
|
|
|
30,000 |
|
| United States |
|
CBRE Group, Inc. |
|
Development and Investment Guarantee - Western Alliance Bank (Park Lucero I) |
|
|
USD |
|
|
|
9,989 |
|
| United States |
|
CBRE Group, Inc. |
|
Development and Investment Guarantee - Texas Capital Bank (PR/Crow Building B&D) |
|
|
USD |
|
|
|
535,537 |
|
| United States |
|
CBRE Group, Inc. |
|
Development and Investment Guarantee - Texas Capital/Comerica Bank (PR/Crow 35 Eagle) |
|
|
USD |
|
|
|
400,000 |
|
| United States |
|
CBRE Group, Inc. |
|
Development and Investment Guarantee - Wells Fargo (Energy Center Three) |
|
|
USD |
|
|
|
862,229 |
|
| United States |
|
CBRE Group, Inc. |
|
Development and Investment Guarantee - Bank of America (South Washington Park) |
|
|
USD |
|
|
|
411,585 |
|
| United States |
|
CBRE Group, Inc. |
|
Development and Investment Guarantee - Wells Fargo Bank (Columbia Associates) |
|
|
USD |
|
|
|
835,907 |
|
| United States |
|
CBRE Group, Inc. |
|
Development and Investment Guarantee-The Bank of Nova Scotia (Ft Lincoln) - letters of credit |
|
|
USD |
|
|
|
4,950,000 |
|
| United States |
|
CBRE Group, Inc. |
|
Development and Investment Guarantee - Bank of America (HP Campus II) |
|
|
USD |
|
|
|
300,910 |
|
| United States |
|
CBRE Group, Inc. |
|
Development and Investment Guarantee - Amegy Bank (LIT-RPC Trade Centers) |
|
|
USD |
|
|
|
186,890 |
|
| United States |
|
CBRE Group, Inc. |
|
Development and Investment Guarantee - Wells Fargo (Knox Logistics) |
|
|
USD |
|
|
|
642,188 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| United States |
|
CBRE Group, Inc. |
|
Development and Investment Guarantee - US Bank (TC Central Associates) |
|
|
USD |
|
|
|
199,650 |
|
| United States |
|
CBRE Group, Inc. |
|
Development and Investment Guarantee - US Bank (Legacy Tower I) |
|
|
USD |
|
|
|
696,828 |
|
| United States |
|
CBRE Group, Inc. |
|
Development and Investment Guarantee - US Bank (Legacy Tower II) |
|
|
USD |
|
|
|
84,570 |
|
| United States |
|
CBRE Services, Inc. |
|
Parent Guarantee to HSBC Bank PLC for Euro overdraft line |
|
|
EUR |
|
|
|
12,000,000 |
|
| United States |
|
CBRE Services, Inc. |
|
Parent Guarantee to HSBC Bank for various Indebtedness facilities |
|
|
USD |
|
|
|
20,000,000 |
|
| United Kingdom |
|
CBRE Group, Inc. |
|
Guarantee by CB/TCC Global Hldgs Ltd with CB Hillier Parker Pension Scheme Trustees Ltd. |
|
|
GBP |
|
|
|
11,441,165 |
|
| United Kingdom |
|
CBRE Group, Inc. |
|
For CB Hillier Parker Pension Scheme Trustee Ltd as trustee of the CB HP Pension Scheme |
|
|
GBP |
|
|
|
20,121,165 |
|
| United States |
|
CBRE Services, Inc. |
|
Guarantee to Fresh Meadows (3) |
|
|
USD |
|
|
|
93,000 |
|
| Belgium |
|
CBRE Global Investors |
|
Rental guarantee office Brussels |
|
|
EUR |
|
|
|
54,240 |
|
| Belgium |
|
CBRE Global Investors |
|
Bank guarantee VAT for Amhem Staete Bv |
|
|
EUR |
|
|
|
24,789 |
|
| Germany |
|
CBRE Global Investors Germany GmbH |
|
Guarantee for rent Peter Helfrich |
|
|
EUR |
|
|
|
11,400 |
|
| UK |
|
CBRE Global Investors Group (UK) Ltd |
|
Guarantee under the lease agreement regarding Unit 53 at St Stephen’s Hull |
|
|
GBP |
|
|
|
2,898,880 |
|
| Italy |
|
CBRE Italy SRL |
|
Depost for office lease |
|
|
EUR |
|
|
|
29,750 |
|
| Italy |
|
CBRE Italy SRL |
|
Depost for new office lease |
|
|
EUR |
|
|
|
20,000 |
|
| Czech |
|
CBRE Global Investor Central Europe |
|
Deposit for flat (Prague) |
|
|
CZK |
|
|
|
85,000 |
|
| Luxembourg |
|
CBRE GI Luxembourg |
|
Office rental guarantee |
|
|
EUR |
|
|
|
89,390 |
|
| Italy |
|
CBRE Italy SRL |
|
Deposit for utilities (power + gas) |
|
|
EUR |
|
|
|
253 |
|
| Italy |
|
CBRE Italy SRL |
|
Deposit for utilities (power + gas) |
|
|
EUR |
|
|
|
286 |
|
| Italy |
|
CBRE Italy SRL |
|
Deposit for utilities (power + gas) |
|
|
EUR |
|
|
|
65 |
|
| Italy |
|
CBRE Italy SRL |
|
Deposit for utilities (power + gas) |
|
|
EUR |
|
|
|
286 |
|
| Italy |
|
SPE Italy |
|
Utilities Guarantee (telephone) |
|
|
EUR |
|
|
|
300 |
|
| Italy |
|
SPE Italy |
|
Rental Guarantee (Magenta) |
|
|
EUR |
|
|
|
12,250 |
|
| Italy |
|
SPE Italy |
|
Utilities Guarantee (power) |
|
|
EUR |
|
|
|
117 |
|
Schedule 6.02(a) – Liens
CBRE Group, Inc. (f/k/a CB Richard Ellis Group, Inc.)
| |
• |
|
Various Liens with respect to CB Richard Ellis Group, Inc. (agreements with Xerox Corporation) – equipment lease |
CBRE, Inc. (f/k/a CB Richard Ellis Inc.)
| |
• |
|
Lien with respect to CB Richard Ellis, Inc. (agreement with Dealers Leasing, Inc.) – equipment |
| |
• |
|
Lien with respect to CB Richard Ellis, Inc. (agreement with First Western Bank & Trust) – equipment |
| |
• |
|
Lien with respect to CB Richard Ellis, Inc. (agreement with HSBC Securities (USA), Inc.) – various receivables |
| |
• |
|
Various liens with respect to CB Richard Ellis, Inc. (agreement with Pitney Bowes Global Financial Services LLC) – financial assets |
| |
• |
|
Lien with respect to CB Richard Ellis, Inc. (agreement with VA&F Financial) – equipment |
| |
• |
|
Lien with respect to CB Richard Ellis, Inc. (agreement with Xerox Corporation) – equipment lease |
| |
• |
|
Lien with respect to CB Richard Ellis, Inc. (agreement with Mart Financial Group, Inc.) – equipment |
| |
• |
|
Various Liens with respect to CB Richard Ellis, Inc. (agreement with General Electric Capital Corporation) – equipment |
| |
• |
|
Various Liens with respect to CB Richard Ellis, Inc. (agreement with IKON Financial Services) – equipment |
| |
• |
|
Lien with respect to CB Richard Ellis, Inc. (agreement with United Rentals (North America), Inc.) – equipment |
| |
• |
|
Various liens with respect to CBRE, Inc (agreement with United Rentals (North America) Inc.) – equipment |
| |
• |
|
Lien with respect to CB Richard Ellis, Inc. (agreement with Wells Fargo Financial Leasing, Inc.) – equipment |
| |
• |
|
Lien with respect to CBRE, Inc. (agreement with Wells Fargo Financial Leasing, Inc.) – equipment |
| |
• |
|
Lien with respect to CB Richard Ellis, Inc. (agreement with GFC Leasing, a division of Gordon Flesch Co., Inc.) – equipment |
| |
• |
|
Lien with respect to CB Richard Ellis, Inc. (agreement with Tygris Vendor Finance, Inc.) – equipment |
| |
• |
|
Lien with respect to CBRE, Inc. (agreement with U.S. Bank Equipment Finance, a division of the U.S. Bank National Association) – equipment |
| |
• |
|
Lien with respect to CBRE, Inc. (agreement with Lease Finance Partners, Inc.) – equipment |
CBRE
Services, Inc. (f/k/a CB Richard Ellis Services, Inc.)
| |
• |
|
Lien with respect to CBRE Services, Inc. (agreement with Bank of America, N.A) – financial assets, financial instruments and collateral accounts |
CBRE Global Investors, LLC (f/k/a CB Richard Ellis Investors, L.L.C.)
| |
• |
|
Lien with respect to CB Richard Ellis Investors, L.L.C. (agreement with Siemens Financial Services, Inc.) – equipment lease |
The Polacheck Company, Inc.
| |
• |
|
Lien with respect to The Polacheck Company, Inc. (agreement with US Bank National Association) – financial assets |
CBRE Technical Services, LLC
Lien with respect to
CBRE Technical Services, LLC (agreement with Siemens Financial Services, Inc.) – equipment
Schedule 6.05(c) – Certain Existing Restrictions
| • |
|
CBRE Capital Markets, Inc. and CBRE Multifamily Capital, Inc. – JPMorgan Chase – 10/12 Senior Secured Credit Agreement, as amended from time to time |
| • |
|
CBRE Capital Markets, Inc. ., CBRE Multifamily Capital, Inc. and CBRE HMF, Inc. – Bank of America, N.A. – Amended and Restated Mortgage Warehousing Credit and Security Agreement, as amended from time to time
|
| • |
|
CBRE Capital Markets, Inc. ., CBRE Multifamily Capital, Inc. and CBRE HMF, Inc. – Capital One Bank, N.A. – Mortgage Warehouse Loan and Security Agreement, as amended from time to time |
| • |
|
CBRE Capital Markets, Inc. ., CBRE Multifamily Capital, Inc. and CBRE HMF, Inc. – TD Bank, N.A. – Mortgage Warehousing Credit and Security Agreement, as amended from time to time |
| • |
|
CBRE Multifamily Capital, Inc. – ASAP Sale Agreement with Fannie Mae, as amended from time to time |
| • |
|
CBRE Services, Inc. Indenture for 5.25% Senior Unsecured Notes due March 15, 2025 |
| • |
|
CBRE Services, Inc. Indenture for 5% Senior Unsecured Notes due March 14, 2023 |
| • |
|
CBRE Services, Inc. and CBRE, Inc. The Bank of Nova Scotia Amended and Restated Reimbursement Agreement and Security Agreement |
| • |
|
Raven Insurance Company, Ltd. – Wells Fargo Bank Standby Letter of Credit Agreement, Security Agreement, Securities Account Control Agreement and Credit Agreement |
Exhibit 10.2
EXECUTION VERSION
AMENDED AND
RESTATED GUARANTEE AND PLEDGE AGREEMENT
dated as of
January 9, 2015,
among
CBRE SERVICES, INC.,
CBRE GROUP,
INC.,
the Subsidiaries of CBRE SERVICES, INC.
from time to time party hereto
and
CREDIT SUISSE AG,
as Collateral Agent
[CS&M Ref.
No. 7865-145]
TABLE OF CONTENTS
|
|
|
|
|
|
|
| |
|
|
|
Page |
|
| ARTICLE I |
|
|
| Definitions |
|
|
|
|
| SECTION 1.01. |
|
Credit Agreement |
|
|
1 |
|
| SECTION 1.02. |
|
Other Defined Terms |
|
|
2 |
|
|
| ARTICLE II |
|
|
| Guarantee |
|
|
|
|
| SECTION 2.01. |
|
Guarantee |
|
|
5 |
|
| SECTION 2.02. |
|
Guarantee of Payment |
|
|
6 |
|
| SECTION 2.03. |
|
No Limitations, etc |
|
|
6 |
|
| SECTION 2.04. |
|
Reinstatement |
|
|
7 |
|
| SECTION 2.05. |
|
Agreement To Pay; Subrogation |
|
|
7 |
|
| SECTION 2.06. |
|
Information |
|
|
8 |
|
|
| ARTICLE III |
|
|
| Pledge of Securities |
|
|
|
|
| SECTION 3.01. |
|
Pledge |
|
|
8 |
|
| SECTION 3.02. |
|
Delivery of the Collateral |
|
|
9 |
|
| SECTION 3.03. |
|
Representations, Warranties and Covenants |
|
|
9 |
|
| SECTION 3.04. |
|
Limited Liability Company Interests and Limited Partnership Interests |
|
|
10 |
|
| SECTION 3.05. |
|
Registration in Nominee Name; Denominations |
|
|
11 |
|
| SECTION 3.06. |
|
Voting Rights; Dividends and Interest, etc |
|
|
11 |
|
|
| ARTICLE IV |
|
|
| [INTENTIONALLY OMITTED] |
|
|
| ARTICLE V |
|
|
| Remedies |
|
|
|
|
| SECTION 5.01. |
|
Remedies Upon Default |
|
|
13 |
|
| SECTION 5.02. |
|
Application of Proceeds |
|
|
14 |
|
| SECTION 5.03. |
|
Securities Act, etc |
|
|
15 |
|
i
|
|
|
|
|
|
|
| ARTICLE VI |
|
|
| Indemnity, Subrogation and Subordination |
|
|
|
|
| SECTION 6.01. |
|
Indemnity and Subrogation |
|
|
16 |
|
| SECTION 6.02. |
|
Contribution and Subrogation |
|
|
16 |
|
| SECTION 6.03. |
|
Subordination |
|
|
16 |
|
|
| ARTICLE VII |
|
|
| Miscellaneous |
|
|
|
|
| SECTION 7.01. |
|
Notices |
|
|
17 |
|
| SECTION 7.02. |
|
Security Interest Absolute |
|
|
17 |
|
| SECTION 7.03. |
|
Survival of Agreement |
|
|
17 |
|
| SECTION 7.04. |
|
Binding Effect; Several Agreement |
|
|
17 |
|
| SECTION 7.05. |
|
Successors and Assigns |
|
|
18 |
|
| SECTION 7.06. |
|
Collateral Agent’s Fees and Expenses; Indemnification |
|
|
18 |
|
| SECTION 7.07. |
|
Collateral Agent Appointed Attorney-in-Fact |
|
|
19 |
|
| SECTION 7.08. |
|
Applicable Law |
|
|
19 |
|
| SECTION 7.09. |
|
Waivers; Amendment |
|
|
20 |
|
| SECTION 7.10. |
|
WAIVER OF JURY TRIAL |
|
|
20 |
|
| SECTION 7.11. |
|
Severability |
|
|
20 |
|
| SECTION 7.12. |
|
Counterparts |
|
|
20 |
|
| SECTION 7.13. |
|
Headings |
|
|
21 |
|
| SECTION 7.14. |
|
Jurisdiction; Consent to Service of Process |
|
|
21 |
|
| SECTION 7.15. |
|
Termination or Release |
|
|
21 |
|
| SECTION 7.16. |
|
Additional Subsidiaries |
|
|
22 |
|
|
|
|
| Schedules |
|
|
|
|
| Schedule I |
|
Subsidiary Guarantors |
| Schedule II |
|
Equity Interests |
|
|
| Exhibits |
|
|
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| Exhibit A |
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Form of Supplement |
| Exhibit B |
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Form of Perfection Certificate |
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AMENDED AND RESTATED GUARANTEE AND PLEDGE AGREEMENT dated as of January 9,
2015 (this “Agreement”), among CBRE SERVICES, INC., a Delaware corporation (the “U.S. Borrower”), CBRE GROUP, INC., a Delaware corporation (“Holdings”), the Subsidiaries of the
U.S. Borrower from time to time party hereto and CREDIT SUISSE AG (“Credit Suisse”), as collateral agent (in such capacity, the “Collateral Agent”) for the Secured Parties (as defined herein).
PRELIMINARY STATEMENT
Reference is made to the Second Amended and Restated Credit Agreement dated as of January 9, 2015 (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), among the U.S. Borrower, CBRE Limited, a limited company organized under the laws of England and Wales (the “U.K. Borrower”), CBRE
Limited, a corporation organized under the laws of the province of New Brunswick (the “Canadian Borrower”), CBRE Pty Ltd, a company organized under the laws of Australia and registered in New South Wales (the
“Australian Borrower”), CBRE Limited, a company organized under the laws of New Zealand (the “New Zealand Borrower”), Holdings, the lenders from time to time party thereto (the
“Lenders”), the Issuing Banks from time to time party thereto and Credit Suisse AG, as administrative agent (in such capacity, the “Administrative Agent”) and Collateral Agent.
The Lenders and the Issuing Banks (such term and each other capitalized term used but not defined in this preliminary statement having the
meaning given or ascribed to it in Article I) have agreed to extend credit to the Borrowers, subject to the terms and conditions set forth in the Credit Agreement. The obligations of the Lenders and the Issuing Banks to extend credit to the
Borrowers are conditioned upon, among other things, the execution and delivery of this Agreement. Holdings and the Subsidiary Guarantors are affiliates of the Borrowers, will derive substantial benefits from the extension of credit to the Borrowers
pursuant to the Credit Agreement and are willing to execute and deliver this Agreement in order to induce the Lenders and the Issuing Banks to extend such credit.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Credit Agreement. (a) Capitalized terms used in this Agreement and not otherwise defined herein have
the meanings specified in the Credit Agreement. All terms defined in the New York UCC (as such term is defined herein) and not defined in this Agreement have the meanings specified therein. All references to the term “instrument” shall
have the meaning specified in Article 9 of the New York UCC.
(b) The rules of construction specified in Section 1.02 of the
Credit Agreement also apply to this Agreement.
SECTION 1.02. Other Defined Terms. As used in this Agreement,
the following terms have the meanings specified below:
“Borrowers” means,
collectively, the U.S. Borrower, the Australian Borrower, the Canadian Borrower, the New Zealand Borrower and the U.K. Borrower and any other wholly owned Subsidiary of the U.S. Borrower that becomes a party to the Credit Agreement as a
Borrower pursuant to Section 9.18 of the Credit Agreement.
“Cash Management
Services” means treasury management services (including controlled disbursements, zero balance arrangements, cash sweeps, automated clearinghouse transactions, return items, overdrafts, temporary advances, interest and fees and
interstate depository network services or similar transactions) provided to any Loan Party.
“Collateral” has the meaning assigned to such term in Section 3.01.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.) and any successor
statute, and any rule, regulation, or order promulgated thereunder, in each case as amended from time to time.
“Domestic Obligations” means all the Obligations that are obligations of Holdings, the U.S. Borrower or
any other Domestic Subsidiary.
“Excluded Equity Interests” means (a) any Equity
Interest in any Immaterial Subsidiary, (b) any Equity Interest in any Investment Subsidiary other than CBRE Global Investors, LLC and CBRE Global Investors, Inc., and (c) any Equity Interests in any person other than a wholly-owned
Subsidiary where the assignment or pledge thereof, or grant of a security interest therein, requires, pursuant to the organizational documents of such person or any related joint venture, shareholder or like agreement binding on any shareholder,
partner or member of such person, the consent of any shareholder, partner or member of such person that is not an Affiliate of Holdings.
“Excluded Swap Obligation” means, with respect to any Grantor, any Swap Obligation if, and to the extent
that, all or a portion of the Loan Documents to which such Grantor is party with respect to, or the grant by such Grantor of a security interest to secure, such Swap Obligation (or any guarantee thereof) is or becomes unlawful under the Commodity
Exchange Act or any rule or regulation promulgated thereunder (or the application or official interpretation of any provision thereof) by virtue of such Grantor’s failure for any reason to constitute an “eligible contract
participant” as defined in the Commodity Exchange Act at the time any such Loan Document becomes effective with respect to such Swap Obligation.
“Federal Securities Laws” has the meaning assigned to such term in Section 5.03.
“Foreign Guarantor” means each Subsidiary Guarantor that is a Foreign Subsidiary.
“Foreign Obligations” means all the Obligations that are obligations of any Foreign Subsidiary.
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“Grantors” means Holdings, the U.S. Borrower and the
Subsidiary Guarantors (other than Melody and any Subsidiary Guarantor that is a Foreign Guarantor or an Investment Subsidiary).
“Guarantors” means Holdings, the Subsidiary Guarantors and, to the extent the U.S. Borrower is not
otherwise liable with respect to any Obligations, the U.S. Borrower.
“Liabilities”
has the meaning assigned to such term in Section 2.01.
“Loan Document Obligations”
means (a) the due and punctual payment of (i) the principal of and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required to be made by any Borrower under the Credit Agreement in
respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of disbursements, interest thereon and obligations to provide cash collateral, and (iii) all other monetary obligations of any Borrower to any of
the Secured Parties under the Credit Agreement and each of the other Loan Documents, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during
the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), (b) the due and punctual performance of all other obligations of each Borrower under or
pursuant to the Credit Agreement and each of the other Loan Documents, and (c) the due and punctual payment and performance of all the obligations of each other Loan Party under or pursuant to this Agreement and each of the other Loan
Documents.
“Luxco” means CBRE Global Holdings, a Luxembourg société à
responsabilité limitée, with a share capital of EUR 122,785,675.-, having its registered office at 6, rue Guillaume Schneider, L-2522 Luxembourg, Grand-Duchy of Luxembourg, and registered with the R.C.S. under number B 150.693, an
indirect wholly owned Subsidiary of the U.S. Borrower.
“Luxco Non-subsidiary Secured Obligor” has
the meaning assigned to such term in Section 2.01.
“Luxembourg Law of 2002” has the
meaning assigned to such term in Section 2.01.
“Maximum Amount” has the meaning
assigned to such term in Section 2.01.
“New York UCC” means the Uniform Commercial
Code as from time to time in effect in the State of New York.
“Obligations” means
(a) the Loan Document Obligations, (b) the Secured Hedging Obligations and (c) the Secured Cash Management Services Obligations. Notwithstanding the foregoing, Obligations shall not include any Excluded Swap Obligations.
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“Perfection Certificate” means a certificate substantially
in the form of Exhibit B, completed and supplemented with the schedules and attachments contemplated thereby, and duly executed by a Responsible Officer of Holdings.
“Pledged Securities” means any stock certificates or other certificated securities now or hereafter
included in the Collateral, including all certificates, instruments or other documents representing or evidencing any Collateral.
“Pledged Stock” has the meaning assigned to such term in Section 3.01.
“Secured Cash Management Services Obligations” means the due and punctual payment of any and all
obligations of the Loan Parties in connection with Cash Management Services that are (a) owed on the Second Restatement Date to a person that is the Administrative Agent or a Lender or an Affiliate of the Administrative Agent or a Lender as of
the Second Restatement Date or (b) owed to a person that is the Administrative Agent or a Lender or an Affiliate of the Administrative Agent or a Lender at the time such obligations are incurred.
“Secured Hedging Obligations” means the due and punctual payment and performance of all obligations of
each Loan Party under each Hedging Agreement that (i) is in effect on the Second Restatement Date with a counterparty that is the Administrative Agent or a Lender or an Affiliate of the Administrative Agent or a Lender as of the Second
Restatement Date or (ii) is entered into after the Second Restatement Date with any counterparty that is the Administrative Agent or a Lender or an Affiliate of the Administrative Agent or a Lender at the time such Hedging Agreement is entered
into. Notwithstanding the foregoing, the Secured Hedging Obligations shall not include any Excluded Swap Obligations.
“Secured Parties” means (a) the Lenders, (b) the Administrative Agent, (c) the Collateral
Agent, (d) each Issuing Bank, (e) each counterparty to any Hedging Agreement with a Loan Party that either (i) is in effect on the Second Restatement Date if such counterparty is the Administrative Agent or a Lender or an Affiliate of
the Administrative Agent or a Lender as of the Second Restatement Date or (ii) is entered into after the Second Restatement Date if such counterparty is the Administrative Agent or a Lender or an Affiliate of the Administrative Agent or a
Lender at the time such Hedging Agreement is entered into, (f) the beneficiaries of each indemnification obligation undertaken by any Grantor under any Loan Document, (g) each person to whom any Secured Cash Management Services Obligations
are owed and (h) the successors and assigns of each of the foregoing.
“Significant
Subsidiary” means each Subsidiary (i) that has consolidated total assets of more than $15,000,000 and (ii) of which securities or other ownership interests representing more than 80% of the equity or more than 80% of the
ordinary voting power or more than 80% of the general partnership interests are, at the time any determination is being made, owned, Controlled or held, directly or indirectly, by the U.S. Borrower.
“Subsidiary Guarantors” means (a) the Subsidiaries identified on Schedule I and (b) each other
Subsidiary that becomes a party to this Agreement as contemplated by Section 7.16.
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“Swap Obligation” means with respect to any Grantor, any
obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Unfunded Advances/Participations” means (a) with respect to the Administrative Agent, the
aggregate amount, if any (i) made available to the Borrowers on the assumption that each Lender has made its portion of the applicable Borrowing available to the Administrative Agent as contemplated by Section 2.02(d) of the Credit
Agreement and (ii) with respect to which a corresponding amount shall not in fact have been returned to the Administrative Agent by the Borrowers or made available to the Administrative Agent by any such Lender, (b) with respect to any
N.Z. Swingline Lender, the aggregate amount, if any, of participations in respect of any outstanding N.Z. Swingline Loan that shall not have been funded by the Revolving Credit Lenders in accordance with Section 2.22(e) of the Credit Agreement
and (c) with respect to any Issuing Bank, the aggregate amount, if any, of participations in respect of any outstanding L/C Disbursement that shall not have been funded by the Revolving Credit Lenders in accordance with Sections 2.23(d)
and 2.02(f) of the Credit Agreement.
ARTICLE II
Guarantee
SECTION 2.01. Guarantee. (a) Each Guarantor unconditionally guarantees, jointly with the other Guarantors and
severally, as a primary obligor and not merely as a surety, the due and punctual payment and performance of the Obligations; provided, however, that the guarantee of the Foreign Guarantors pursuant to this Section 2.01 shall be
limited to the Foreign Obligations. Each of the Guarantors further agrees that the Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any Obligation. Each of the Guarantors waives presentment to, demand of payment from and protest to any Borrower or any other Loan Party of any of the Obligations, and also waives notice of acceptance of
its guarantee and notice of protest for nonpayment.
(b) (i) Notwithstanding any other provisions of this Article II or
the Credit Agreement, the maximum liability of Luxco under this Section 2.01 and the Credit Agreement shall be limited so (x) that the maximum amount payable by Luxco under Section 2.01(a) in respect of Obligations owed by any
Borrower which is not a subsidiary of Luxco (a “Luxco Non-subsidiary Secured Obligor”), shall at no time exceed the Maximum Amount (as defined in clause (ii) below) and (y) shall at all times be subject to clause
(iii) below.
(ii) For purposes of this Section 2.01(b), “Maximum Amount” means
an amount equal to the aggregate (without duplication) of (x) the aggregate principal amount of the outstanding intercompany loans made to Luxco or any Subsidiary which is on the Second Restatement Date (or thereafter becomes) a subsidiary of
Luxco by any Luxco Non-subsidiary Secured Obligor which have been funded directly or indirectly with a Borrowing under the Credit Agreement plus (y) an amount equal to 80% of the greater of (A) the sum of Luxco’s capitaux
propres (own capital) and its dettes subordonnées (subordinated debt) (both as referred to
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in article 34 of the Luxembourg law of 19 December 2002 on the commercial register and annual accounts, as amended (the “Luxembourg Law of 2002”)) as reflected in
Luxco’s then most recent annual financial statements approved by the competent organ of Luxco (as audited by its external auditor (réviseur d’entreprises), if required by law), (B) the sum of Luxco’s capitaux
propres (own capital) and its dettes subordonnées (subordinated debt) (both as referred to in article 34 of the Luxembourg Law of 2002) as reflected in its filed financial statements as at the Second Restatement Date, (C) the
market value of the assets of Luxco as at the time that Luxco is required to make any payment pursuant to Section 2.01(a) less the Liabilities (as defined below) of Luxco as at such time and (D) the market value of the assets of Luxco as
at the Second Restatement Date less the Liabilities (as defined below) of Luxco as at the time that Luxco is required to make any payment pursuant to Section 2.01(a). For purposes of this Section 2.01(b)(ii),
“Liabilities” means all existing liabilities (other than any liabilities owed to the direct or indirect shareholders of Luxco) incurred, from time to time, by Luxco and as reflected, from time to time, in the books of Luxco
as well as provisions for liabilities which are made in the books of Luxco from time to time in accordance with applicable prudent management accounting rules. If the parties hereto fail to reach an agreement as to the market value of the assets of
Luxco as referred to under Section 2.01(b)(ii)(y)(C) or (D) above, such market value shall be determined, at the sole cost of Luxco, by an external auditor (réviseur d’entreprises) appointed for this purpose by the
Collateral Agent.
(iii) The obligations and liabilities of Luxco under Section 2.01(a) shall not include any
obligation which, if incurred, would constitute a breach of the provisions on financial assistance as defined by article 49-6 of the Luxembourg Law on Commercial Companies dated 10 August 1915, as amended, to the extent such provision or an
equivalent provision is applicable to Luxco.
(iv) For the avoidance of doubt, no limitations shall apply to Luxco’s
obligations and liabilities under Section 2.01(a) in respect of any Obligations owed by Subsidiaries which are subsidiaries of Luxco.
SECTION 2.02. Guarantee of Payment. Each of the Guarantors further agrees that its guarantee hereunder
constitutes a guarantee of payment when due and not of collection, and waives any right to require that any resort be had by the Collateral Agent or any other Secured Party to any security held for the payment of the Obligations or to any balance of
any deposit account or credit on the books of the Collateral Agent or any other Secured Party in favor of any Borrower or any other person.
SECTION 2.03. No Limitations, etc. (a) Except for termination of a Guarantor’s obligations hereunder as
expressly provided in Section 7.15, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to any defense or setoff, 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
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hereunder shall not be discharged or impaired or otherwise affected by (i) the failure of the Collateral Agent or any other Secured Party to assert any claim or demand or to enforce any
right or remedy under the provisions of any Loan Document or otherwise; (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Loan Document or any other agreement, including with
respect to any other Guarantor under this Agreement; (iii) the release of, or any impairment of or failure to perfect any Lien on or security interest in, any security held by the Collateral Agent or any other Secured Party for the Obligations
or any of them; (iv) any default, failure or delay, wilful or otherwise, in the performance of the Obligations; (v) any law, regulation, decree or order of any jurisdiction or any other event, to the extent such Guarantor can lawfully
waive application thereof; or (vi) any other act or omission that may or might in any manner or to any extent vary the risk of any Guarantor or otherwise operate as a discharge of any Guarantor as a matter of law or equity (other than the
indefeasible payment in full in cash of all the Obligations). Each Guarantor expressly authorizes the Collateral Agent and the other Secured Parties to take and hold security for the payment and performance of the Obligations, to exchange, waive or
release any or all such security (with or without consideration), to enforce or apply such security and direct the order and manner of any sale thereof in their sole discretion or to release or substitute any one or more other guarantors or obligors
upon or in respect of the Obligations, all without affecting the obligations of any Guarantor hereunder.
(b) To the fullest extent
permitted by applicable law, each Guarantor waives any defense based on or arising out of any defense of any Borrower or any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any
cause of the liability of any Borrower or any other Loan Party, other than the indefeasible payment in full in cash of all the Obligations. The Collateral Agent and the other Secured Parties may, at their election, foreclose on any security held by
one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any Borrower or any other Loan
Party or exercise any other right or remedy available to them against any Borrower or any other Loan Party, without affecting or impairing in any way the liability of any Guarantor hereunder except to the extent the Obligations have been fully and
indefeasibly paid in full in cash. To the fullest extent permitted by applicable law, each Guarantor waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any
right of reimbursement or subrogation or other right or remedy of such Guarantor against any Borrower or any other Loan Party, as the case may be, or any security.
SECTION 2.04. Reinstatement. Each of the Guarantors 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 Collateral Agent or any other Secured Party upon the bankruptcy or reorganization of any Borrower,
any other Loan Party or otherwise.
SECTION 2.05. Agreement To Pay; Subrogation. In furtherance of the foregoing and
not in limitation of any other right that the Collateral Agent or any other Secured Party has at law or in equity against any Guarantor by virtue hereof, upon the failure of any Borrower or any other Loan Party to pay any Obligation when and as the
same shall become due,
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whether at maturity, by acceleration, after notice of prepayment or otherwise, each Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the Collateral Agent for
distribution to the applicable Secured Parties in cash the amount of such unpaid Obligation; provided, however, that the aggregate amount to be paid by the Foreign Guarantors pursuant to this Section 2.05 shall not exceed the
amount of Foreign Obligations then unpaid by the applicable Loan Party. Upon payment by any Guarantor of any sums to the Collateral Agent as provided above, all rights of such Guarantor against any Borrower or any other Guarantor arising as a result
thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subject to Article VI.
SECTION 2.06. Information. Each Guarantor assumes all responsibility for being and keeping itself informed of each
Borrower’s and each other Loan Party’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Obligations and the nature, scope and extent of the risks that such Guarantor assumes and
incurs hereunder, and agrees that neither the Collateral Agent nor any other Secured Party will have any duty to advise such Guarantor of information known to it or any of them regarding such circumstances or risks.
ARTICLE III
Pledge
of Securities
SECTION 3.01. Pledge. As security for the payment or performance, as the case may be, in full
of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the
Secured Parties, a security interest in, all of such Grantor’s right, title and interest in, to and under (a) the shares of capital stock and other Equity Interests owned by such Grantor on the date hereof and listed on Schedule II and any
other Equity Interests in a Significant Subsidiary or another Subsidiary which is a Guarantor hereunder obtained in the future by such Grantor and the certificates representing all such Equity Interests (collectively referred to herein as the
“Pledged Stock”); provided that the Pledged Stock shall not include (i) insofar as they secure Domestic Obligations, more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary
(it being understood and agreed that such limitation shall not apply insofar as any such Pledged Stock secures Foreign Obligations) and (ii) the Excluded Equity Interests; (b) all other property that may be delivered to and held by the
Collateral Agent pursuant to the terms of this Section 3.01; (c) subject to Section 3.06, all dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of, in exchange
for or upon the conversion of, and all other Proceeds received in respect of, the securities referred to in clause (a) or (b) above; (d) subject to Section 3.06, all rights and privileges of such Grantor with respect to the
securities and other property referred to in clause (a), (b) or (c) above; and (e) all Proceeds of any of the foregoing (the items referred to in clauses (a) through (e) above being collectively referred to as the
“Collateral”).
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TO HAVE AND TO HOLD the Collateral, together with all right, title, interest, powers, privileges
and preferences pertaining or incidental thereto, unto the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, forever; subject, however, to the terms, covenants and conditions hereinafter set
forth.
SECTION 3.02. Delivery of the Collateral. (a) Each Grantor agrees promptly to deliver or
cause to be delivered to the Collateral Agent any and all Pledged Securities that are represented in physical form; provided, however, that a Grantor shall not be required to
deliver, or cause to be delivered, to the Collateral Agent such Pledged Securities that are represented in physical form in any Subsidiary if such Grantor’s ownership of the Equity Interests in such Subsidiary is 1% or less of the issued and
outstanding Equity Interests in such Subsidiary.
(b) Upon delivery to the Collateral Agent, any certificate representing
Pledged Securities shall be accompanied by undated stock powers duly executed in blank and such other instruments or documents as the Collateral Agent may reasonably request. Each delivery of Pledged Securities shall be accompanied by a schedule
describing the securities, which schedule shall be attached hereto as Schedule II and made a part hereof; provided that failure to attach any such schedule hereto shall not affect the validity of such pledge of such Pledged Securities. Each
schedule so delivered shall supplement any prior schedules so delivered.
SECTION 3.03. Representations,
Warranties and Covenants. The Grantors jointly and severally represent, warrant and covenant to and with the Collateral Agent, for the benefit of the Secured Parties, that:
(a) Schedule II correctly sets forth the percentage of the issued and outstanding shares of each class of the Equity Interests
of the issuer thereof represented by such Pledged Stock and includes all Equity Interests required to be pledged hereunder;
(b) the Pledged Stock has been duly and validly authorized and issued by the issuers thereof and is fully paid and
nonassessable;
(c) except for the security interests granted hereunder (or otherwise permitted under the Credit
Agreement), each of the Grantors (i) is and, subject to any transfers made in compliance with the Credit Agreement, will continue to be the direct owner, beneficially and of record, of the Pledged Securities indicated on Schedule II as owned by
such Grantor, (ii) holds the same free and clear of all Liens, (iii) will make no assignment, pledge, hypothecation or transfer of, or create or permit to exist any security interest in or other Lien on, the Collateral (other than the Lien
created by this Agreement and other than Liens expressly permitted pursuant to Section 6.02 of the Credit Agreement) and (iv) subject to Section 3.06, will cause any and all Collateral, whether for value paid by the Grantor or
otherwise, to be forthwith deposited with the Collateral Agent and pledged or assigned hereunder;
(d) except for
restrictions and limitations imposed by the Loan Documents or securities laws generally, the Collateral is and will continue to be freely transferable and assignable, and none of the Collateral is or will be subject to any option, right of first
refusal, shareholders agreement, charter or by-law provisions or contractual restriction of any nature that might prohibit, impair, delay or otherwise affect the pledge of such Collateral hereunder, the sale or disposition thereof pursuant hereto or
the exercise by the Collateral Agent of rights and remedies hereunder;
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(e) each of the Grantors (i) has the power and authority to pledge the
Collateral pledged by it hereunder in the manner hereby done or contemplated and (ii) will defend its title or interest thereto or therein against any and all Liens (other than the Lien created by this Agreement and other than Liens expressly
permitted pursuant to Section 6.02 of the Credit Agreement), however arising, of all persons whomsoever;
(f) no
consent or approval of any Governmental Authority, any securities exchange or any other person was or is necessary to the validity of the pledge effected hereby (other than such as have been obtained and are in full force and effect);
(g) by virtue of the execution and delivery by the Grantors of this Agreement, when any Pledged Securities are delivered to the
Collateral Agent in accordance with this Agreement, the Collateral Agent will obtain a legal, valid and perfected first-priority lien upon and security interest in such Pledged Security as security for the
payment and performance of the Obligations;
(h) the pledge effected hereby is effective to vest in the Collateral Agent,
for the benefit of the Secured Parties, the rights of the Collateral Agent in the Collateral as set forth herein;
(i) the
Perfection Certificate (i) has been duly prepared, completed and executed and the information set forth therein is correct and complete in all material respects and (ii) accurately sets forth the complete legal name of each Grantor; and
(j) each Grantor agrees, at its own expense, to execute, acknowledge, deliver and cause to be duly filed all such further
instruments and documents and take all such actions as the Collateral Agent may from time to time reasonably request to better assure, preserve, protect and perfect the security interest in the Collateral and the rights and remedies created hereby,
including the payment of any fees and taxes required in connection with the execution and delivery of this Agreement, the granting of such security interest and the filing of any financing statements or other documents in connection herewith or
therewith.
SECTION 3.04. Limited Liability Company Interests and Limited Partnership Interests. Each
Grantor acknowledges and agrees that (i) each interest in any limited liability company or limited partnership controlled by such Grantor, pledged hereunder and not represented by a certificate, shall not be for purposes of this Agreement and
the other Loan Documents a “security” within the meaning of Article 8 of the New York UCC and shall not be governed by Article 8 of the New York UCC, and (ii) such Grantor shall at no time elect to treat any such interest as
a “security” within the meaning of Article 8 of the New York UCC or issue any certificate representing such interest, unless such Grantor provides prior written notification to the Collateral Agent of such election and promptly
delivers any such certificate to the Collateral Agent pursuant to the terms hereof.
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SECTION 3.05. Registration in Nominee Name; Denominations. The
Collateral Agent, on behalf of the Secured Parties, shall have the right (in its sole and absolute discretion when an Event of Default has occurred and is continuing) to hold the Pledged Securities in its own name as pledgee, the name of its nominee
(as pledgee or as sub-agent) or the name of the applicable Grantor, endorsed or assigned in blank or in favor of the Collateral Agent. Each Grantor will promptly give to the Collateral Agent copies of any notices or other communications received by
it with respect to Pledged Securities registered in the name of such Grantor that is the owner thereof. The Collateral Agent shall at all times have the right to exchange the certificates representing Pledged Securities for certificates of smaller
or larger denominations for any purpose consistent with this Agreement.
SECTION 3.06. Voting
Rights; Dividends and Interest, etc. (a) Unless and until an Event of Default shall have occurred and be continuing and the Collateral Agent shall have notified the Grantors that their rights under this Section are being suspended
(which notice shall be deemed to have been given immediately upon the occurrence of an Event of Default under paragraph (g) or (h) of Article VII of the Credit Agreement):
(i) Each Grantor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner
of any Pledged Security or any part thereof for any purpose consistent with the terms of this Agreement, the Credit Agreement and the other Loan Documents; provided that such rights and powers shall not be exercised in any manner that could
materially and adversely affect the rights inuring to a holder of any Pledged Security or the rights and remedies of any of the Collateral Agent or the other Secured Parties under this Agreement, the Credit Agreement or any other Loan Document or
the ability of the Secured Parties to exercise the same.
(ii) Each Grantor shall be entitled to receive and retain any and
all dividends and other distributions paid on or distributed in respect of the Pledged Securities to the extent and only to the extent that such dividends and other distributions are permitted by, and otherwise paid or distributed in accordance
with, the terms and conditions of the Credit Agreement, the other Loan Documents and applicable laws; provided that any noncash dividends or other distributions that would constitute Pledged Stock, whether resulting from a subdivision,
combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities or received in exchange for Pledged Securities or any part thereof, or in redemption thereof, or as a result of any merger, consolidation,
acquisition or other exchange of assets to which such issuer may be a party or otherwise, shall be and become part of the Collateral, and, if received by any Grantor, shall not be commingled by such Grantor with any of its other funds or property
but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Collateral Agent and shall be forthwith delivered to the Collateral Agent in the same form as so received (with any necessary endorsement).
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(b) Upon the occurrence and during the continuance of an Event of Default, after the Collateral
Agent shall have notified (or shall be deemed to have notified pursuant to Section 3.06(a)) the Grantors of the suspension of their rights under paragraph (a)(ii) of this Section 3.06, then all rights of any Grantor to dividends or other
distributions that such Grantor is authorized to receive pursuant to paragraph (a)(ii) of this Section 3.06 shall cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall have the sole and exclusive
right and authority to receive and retain such dividends or other distributions. All dividends or other distributions received by any Grantor contrary to the provisions of this Section 3.06 shall be held in trust for the benefit of the
Collateral Agent, shall be segregated from other property or funds of such Grantor and shall be forthwith delivered to the Collateral Agent upon demand in the same form as so received (with any necessary endorsement). Any and all money and other
property paid over to or received by the Collateral Agent pursuant to the provisions of this paragraph (b) shall be retained by the Collateral Agent in an account to be established by the Collateral Agent upon receipt of such money or other
property and shall be applied in accordance with the provisions of Section 5.02. After all Events of Default have been cured or waived, the Collateral Agent shall, within five Business Days after all such Events of Default have been cured or
waived, repay to each applicable Grantor (without interest) all dividends or other distributions that such Grantor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(ii) of this Section 3.06 and that remain in such
account.
(c) Upon the occurrence and during the continuance of an Event of Default, after the Collateral Agent shall have notified (or
shall be deemed to have notified pursuant to Section 3.06(a)) the Grantors of the suspension of their rights under paragraph (a)(i) of this Section 3.06, then all rights of any Grantor to exercise the voting and consensual rights and
powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.06 shall cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall have the sole and exclusive right and authority to
exercise such voting and consensual rights and powers; provided that, unless otherwise directed by the Required Lenders, the Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default
to permit the Grantors to exercise such rights.
(d) Any notice given by the Collateral Agent to the Grantors suspending their rights
under paragraph (a) of this Section 3.06 (i) may be given by telephone if promptly confirmed in writing, (ii) may be given to one or more of the Grantors at the same or different times and (iii) may suspend the rights of the
Grantors under paragraph (a)(i) or paragraph (a)(ii) in part without suspending all such rights (as specified by the Collateral Agent in its sole and absolute discretion) and without waiving or otherwise affecting the Collateral Agent’s rights
to give additional notices from time to time suspending other rights so long as an Event of Default has occurred and is continuing.
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ARTICLE IV
[INTENTIONALLY OMITTED]
ARTICLE V
Remedies
SECTION 5.01. Remedies Upon Default. Upon the occurrence and during the continuance of an
Event of Default, each Grantor agrees to deliver each item of Collateral to the Collateral Agent on demand, and it is agreed that the Collateral Agent shall have the right with or without legal process and with or without prior notice or demand for
performance, to take possession of the Collateral and without liability for trespass to enter any premises where the Collateral may be located for the purpose of taking possession of or removing the Collateral and, generally, to exercise any and all
rights afforded to a secured party under the Uniform Commercial Code or other applicable law. Without limiting the generality of the foregoing, each Grantor agrees that the Collateral Agent shall have the right, subject to the mandatory requirements
of applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public or private sale or at any broker’s board or on any securities exchange, for cash, upon credit or for future delivery as the Collateral Agent shall
deem appropriate. The Collateral Agent shall be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for
their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the
Collateral so sold. Each such purchaser at any sale of Collateral shall hold the property sold absolutely, free from any claim or right on the part of any Grantor, and the Grantors hereby waive (to the extent permitted by law) all rights of
redemption, stay and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted.
The Collateral Agent shall give the applicable Grantors 10 days’ written notice (which each Grantor agrees is reasonable notice
within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) of the Collateral Agent’s intention to make any sale of Collateral. Such notice, in the case of a public sale, shall state the time and
place for such sale and, in the case of a sale at a broker’s board or on a securities exchange, shall state the board or exchange at which such sale is to be made and the day on which the Collateral, or portion thereof, will first be offered
for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale,
the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Collateral Agent may (in its sole and absolute discretion) determine. The Collateral Agent shall not be obligated to make any sale of
any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to
be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was
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so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Collateral Agent until the sale price
is paid by the purchaser or purchasers thereof, but the Collateral Agent shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such
Collateral may be sold again upon like notice. At any public (or, to the extent permitted by law, private) sale made pursuant to this Agreement, any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of
redemption, stay, valuation or appraisal on the part of any Grantor (all said rights being also hereby waived and released to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof
by using any claim then due and payable to such Secured Party from any Grantor as a credit against the purchase price, and such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further
accountability to any Grantor therefor. For purposes hereof, a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof; the Collateral Agent shall be free to carry out such sale pursuant to such
agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Collateral Agent shall have entered into such an agreement all Events of Default shall have
been remedied and the Obligations paid in full. As an alternative to exercising the power of sale herein conferred upon it, the Collateral Agent may proceed by a suit or suits at law or in equity to foreclose this Agreement and to sell the
Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver. Any sale pursuant to the provisions of this Section 5.01 shall be
deemed to conform to the commercially reasonable standards as provided in Section 9-610(b) of the New York UCC or its equivalent in other jurisdictions.
SECTION 5.02. Application of Proceeds. The Collateral Agent shall apply the proceeds of any collection,
sale, foreclosure or other realization upon any Collateral, including any Collateral consisting of cash, as follows:
FIRST, to the payment of all costs and expenses incurred by the Administrative Agent or the Collateral Agent (in their
respective capacities as such hereunder or under any other Loan Document) in connection with such collection, sale, foreclosure or realization or otherwise in connection with this Agreement, any other Loan Document or any of the Obligations,
including all court costs and the reasonable fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent or the Administrative Agent hereunder or under any other Loan Document on behalf of any
Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Loan Document;
SECOND, to the payment in full of Unfunded Advances/Participations (the amounts so applied to be distributed between or among
the Administrative Agent, any N.Z. Swingline Lender and any Issuing Bank pro rata in accordance with the amounts of Unfunded Advances/Participations owed to them on the date of any such distribution);
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THIRD, to the payment in full of all other Obligations (the amounts so applied to
be distributed (subject to the first proviso to Section 3.01 and clause (B) of the first proviso to Section 4.01(a)) among the Secured Parties pro rata in accordance with the amounts of the Obligations owed to them on the date of any
such distribution); and
FOURTH, to the Grantors, their successors or assigns, or as a court of competent jurisdiction may
otherwise direct.
The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in
accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale
shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such
officer or be answerable in any way for the misapplication thereof. Notwithstanding the foregoing, the proceeds of any collection, sale, foreclosure or realization upon any Collateral of any Grantor, including any collateral consisting of cash,
shall not be applied to any Excluded Swap Obligation of such Grantor and shall instead be applied to other secured obligations.
SECTION 5.03. Securities Act, etc. In view of the position of the Grantors in relation to the Collateral, or because of
other current or future circumstances, a question may arise under the Securities Act of 1933, as now or hereafter in effect, or any similar statute hereafter enacted analogous in purpose or effect (such Act and any such similar statute as from time
to time in effect being called the “Federal Securities Laws”) with respect to any disposition of the Collateral permitted hereunder. Each Grantor understands that compliance with the Federal Securities Laws might very
strictly limit the course of conduct of the Collateral Agent if the Collateral Agent were to attempt to dispose of all or any part of the Collateral, and might also limit the extent to which or the manner in which any subsequent transferee of any
Collateral could dispose of the same. Similarly, there may be other legal restrictions or limitations affecting the Collateral Agent in any attempt to dispose of all or part of the Collateral under applicable “blue sky” or other state
securities laws or similar laws analogous in purpose or effect. Each Grantor recognizes that in light of such restrictions and limitations the Collateral Agent may, with respect to any sale of the Collateral, limit the purchasers to those who will
agree, among other things, to acquire such Collateral for their own account, for investment, and not with a view to the distribution or resale thereof. Each Grantor acknowledges and agrees that in light of such restrictions and limitations, the
Collateral Agent, in its sole and absolute discretion (a) may proceed to make such a sale whether or not a registration statement for the purpose of registering such Collateral or part thereof shall have been filed under the Federal Securities
Laws and (b) may approach and negotiate with a limited number of potential purchasers (including a single potential purchaser) to effect such sale. Each Grantor acknowledges and agrees that any such sale might result in prices and other terms
less favorable to the seller than if such sale were a public sale without such restrictions. In the event of any such sale, the Collateral Agent shall incur no responsibility or liability for selling all or any part of the Collateral at a price that
the Collateral Agent, in its sole and absolute discretion, may in good faith deem reasonable under the circumstances, notwithstanding the possibility that a substantially higher price might have been realized if the sale were deferred until after
registration as aforesaid or if more than a limited number of purchasers (or a single purchaser) were approached. The provisions of this Section 5.03 will apply notwithstanding the existence of a public or private market upon which the
quotations or sales prices may exceed substantially the price at which the Collateral Agent sells.
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ARTICLE VI
Indemnity, Subrogation and Subordination
SECTION 6.01. 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 6.03), each Borrower agrees that (a) in the event a payment shall be made by any Guarantor under this Agreement, the applicable 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 this Agreement or any other Security Document to satisfy in whole or in part a claim of any Secured Party, the applicable 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 6.02. Contribution and Subrogation. Each Guarantor (a
“Contributing Guarantor”) agrees (subject to Section 6.03) that, in the event a payment shall be made by any other Guarantor on account of its guarantee under this Agreement or assets of any other Guarantor shall be sold
pursuant to any Security 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 applicable Borrower as provided in
Section 6.01, 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 (the
“Indemnified Amount”), 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 pursuant to Section 7.16, the date of the supplement hereto executed and delivered by such Guarantor). Any Contributing Guarantor making
any payment to a Claiming Guarantor pursuant to this Section 6.02 shall be subrogated to the rights of such Claiming Guarantor under Section 6.01 to the extent of such payment. Notwithstanding the foregoing, to the extent that any Claiming
Guarantor’s right to indemnification hereunder arises from a payment or sale of Collateral made to satisfy Obligations constituting Swap Obligations, only those Contributing Guarantors for whom such Swap Obligations do not constitute Excluded
Swap Obligations shall indemnify such Claiming Guarantor, with the fraction set forth in the second preceding sentence being modified as appropriate to provide for indemnification of the entire Indemnified Amount.
SECTION 6.03. Subordination. Notwithstanding any provision of this Agreement to the contrary, all rights of the
Guarantors under Sections 6.01 and 6.02 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 any Borrower or any Guarantor to make the payments required by Sections 6.01 and 6.02 (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 the obligations of such Guarantor hereunder.
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ARTICLE VII
Miscellaneous
SECTION 7.01. Notices. All communications and notices hereunder shall (except as otherwise expressly permitted herein) be
in writing and given as provided in Section 9.01 of the Credit Agreement. All communications and notices hereunder to any Guarantor shall be given to it in care of the U.S. Borrower as provided in Section 9.01 of the Credit Agreement.
SECTION 7.02. Security Interest Absolute. All rights of the Collateral Agent hereunder, the grant of a
security interest in the Collateral and all obligations of each Guarantor and Grantor hereunder shall be absolute and unconditional irrespective of (a) any lack of validity or enforceability of the Credit Agreement, any other Loan Document, any
agreement with respect to any of the Obligations or any other agreement or instrument relating to any of the foregoing, (b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any
other amendment or waiver of or any consent to any departure from the Credit Agreement, any other Loan Document or any other agreement or instrument, (c) any exchange, release or non-perfection of any Lien on other collateral, or any release or
amendment or waiver of or consent under or departure from any guarantee, securing or guaranteeing all or any of the Obligations, or (d) any other circumstance that might otherwise constitute a defense available to, or a discharge of, any
Guarantor or Grantor in respect of the Obligations or this Agreement.
SECTION 7.03. Survival of
Agreement. All covenants, agreements, representations and warranties made by the Loan Parties in the Loan Documents and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement or any
other Loan Document shall be considered to have been relied upon by the Secured Parties and shall survive the execution and delivery of the Loan Documents and the making of any Loans and issuance of any Letters of Credit, regardless of any
investigation made by any Secured Party or on its behalf and notwithstanding that the Collateral Agent, the Issuing Banks or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is
extended under the Credit Agreement, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under any Loan Document is outstanding and unpaid or the
aggregate L/C Exposure does not equal zero and so long as the Commitments have not expired or terminated.
SECTION 7.04. Binding Effect; Several Agreement. This Agreement shall become effective as to any Loan Party
when a counterpart hereof executed on behalf of such Loan Party shall have been delivered to the Collateral Agent and a counterpart hereof shall have been executed on behalf of the Collateral Agent, and thereafter shall be binding upon such Loan
Party and the Collateral Agent and their respective permitted successors and assigns, and shall inure to the benefit of such Loan Party, the Collateral Agent and the other Secured Parties and their respective successors and assigns, except that no
Loan Party shall have the right to assign or
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transfer its rights or obligations hereunder or any interest herein or in the Collateral (and any such assignment or transfer shall be void) except as expressly contemplated by this Agreement or
the Credit Agreement. This Agreement shall be construed as a separate agreement with respect to each Loan Party and may be amended, modified, supplemented, waived or released with respect to any Loan Party without the approval of any other Loan
Party and without affecting the obligations of any other Loan Party hereunder.
SECTION 7.05. Successors and
Assigns. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the permitted successors and assigns of such party; and all covenants, promises and agreements by or on behalf of any
Guarantor, any Grantor or the Collateral Agent that are contained in this Agreement shall bind and inure to the benefit of their respective successors and assigns.
SECTION 7.06. Collateral Agent’s Fees and Expenses; Indemnification. (a) Each Guarantor and
Grantor jointly and severally agrees to pay upon demand to the Collateral Agent the amount of any and all reasonable expenses, including the reasonable fees, disbursements and other charges of its counsel and of any experts or agents, which the
Collateral Agent may incur in connection with (i) the preparation and administration of this Agreement or in connection with any amendments, modifications or waivers of the provisions hereof, (ii) the custody or preservation of, or the
sale of, collection from or other realization upon any of the Collateral, (iii) the exercise, enforcement or protection of any of the rights of the Collateral Agent hereunder or (iv) the failure of any Guarantor or Grantor to perform or
observe any of the provisions hereof.
(b) Without limitation of its indemnification obligations under the other Loan
Documents, each Guarantor and Grantor jointly and severally agrees to indemnify the Collateral Agent and the other Indemnitees (as defined in Section 9.05 of the Credit Agreement) against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of, the execution, delivery
or performance of this Agreement or any agreement or instrument contemplated hereby or any claim, litigation, investigation or proceeding relating to any of the foregoing or to the Collateral, whether or not any Indemnitee is a party thereto (and
regardless of whether such matter is initiated by a third party or by a Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses (i) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or wilful misconduct of such Indemnitee or
(ii) result from a claim brought by a Borrower or any of its Subsidiaries against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if such Borrower or such Subsidiary has
obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction. To the extent permitted by law, no Guarantor or Grantor shall assert, and each Guarantor and Grantor hereby waives any claim
against any Indemnitee, 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 Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or Letter of Credit or the use of proceeds thereof.
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(c) Any such amounts payable as provided hereunder shall be additional Obligations secured hereby
and by the other Security Documents. The provisions of this Section 7.06 shall remain operative and in full force and effect regardless of the termination of this Agreement or any other Loan Document, the consummation of the transactions
contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Collateral Agent or any other
Secured Party. All amounts due under this Section 7.06 shall be payable on written demand therefor.
SECTION
7.07. Collateral Agent Appointed Attorney-in-Fact. Each Guarantor hereby appoints the Collateral Agent the attorney-in-fact of such Guarantor for the purpose of carrying out the provisions of this Agreement and taking any action
and executing any instrument that the Collateral Agent may deem necessary or advisable to accomplish the purposes hereof, which appointment is irrevocable and coupled with an interest. Without limiting the generality of the foregoing, the Collateral
Agent shall have the right, upon the occurrence and during the continuance of an Event of Default after notice to the relevant Guarantor, with full power of substitution either in the Collateral Agent’s name or in the name of such Guarantor
(a) to receive, endorse, assign and/or deliver any and all notes, acceptances, checks, drafts, money orders or other evidences of payment relating to the Collateral or any part thereof; (b) to demand, collect, receive payment of, give
receipt for and give discharges and releases of all or any of the Collateral; (c) to commence and prosecute any and all suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect or otherwise realize on
all or any of the Collateral or to enforce any rights in respect of any Collateral; (d) to settle, compromise, compound, adjust or defend any actions, suits or proceedings relating to all or any of the Collateral; and (e) to use, sell,
assign, transfer, pledge, make any agreement with respect to or otherwise deal with all or any of the Collateral, and to do all other acts and things necessary to carry out the purposes of this Agreement, as fully and completely as though the
Collateral Agent were the absolute owner of the Collateral for all purposes; provided, however, that nothing herein contained shall be construed as requiring or obligating the
Collateral Agent to make any commitment or to make any inquiry as to the nature or sufficiency of any payment received by the Collateral Agent, or to present or file any claim or notice, or to take any action with respect to the Collateral or any
part thereof or the moneys due or to become due in respect thereof or any property covered thereby. The Collateral Agent and the other Secured Parties shall be accountable only for amounts actually received as a result of the exercise of the powers
granted to them herein, and neither they nor their officers, directors, employees or agents shall be responsible to any Guarantor for any act or failure to act hereunder, except for their own gross negligence or wilful misconduct.
SECTION 7.08. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK.
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SECTION 7.09. Waivers; Amendment. (a) No failure or delay by the
Collateral Agent, the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver hereof or thereof, nor shall any single or partial exercise of any such
right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Collateral Agent, the
Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of any Loan Document or
consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 7.09, and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. No notice or demand on any Loan Party in any case shall entitle any Loan Party to any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Collateral Agent and the Loan Party or Loan Parties with respect to which such waiver, amendment or modification is to apply, subject to any consent required in accordance with Section 9.08 of the Credit Agreement.
SECTION 7.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 7.11. Severability. In the event any one or more of the provisions contained in this Agreement should be held
invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions
with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7.12. Counterparts. This Agreement may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract, and shall become effective as provided in Section 7.04. Delivery of an executed signature page to this Agreement
by facsimile transmission or other customary means of electronic transmission (e.g., “pdf”) shall be as effective as delivery of a manually signed counterpart of this Agreement.
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SECTION 7.13. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.
SECTION 7.14. Jurisdiction; Consent to Service of Process. (a) Each of Loan Parties hereby irrevocably
and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the other Loan Documents, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement or any other Loan Document shall affect any right that the Collateral Agent, the Administrative Agent, any Issuing Bank
or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or the other Loan Documents against the Borrowers, Holdings or their respective properties in the courts of any jurisdiction.
(b) Each of the Loan Parties hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in paragraph (a) of this Section 7.14.
Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 7.01. Nothing
in this Agreement or any other Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
SECTION 7.15. Termination or Release. (a) This Agreement, the Guarantees, the security interest in the
Collateral and all other security interests granted hereby shall terminate when all the Loan Document Obligations have been indefeasibly paid in full and the Lenders have no further commitment to lend under the Credit Agreement, the aggregate L/C
Exposure has been reduced to zero and the Issuing Banks have no further obligations to issue Letters of Credit under the Credit Agreement and no payment of any amounts outstanding and due under any Hedging Agreement is in default.
(b) A Subsidiary Guarantor shall automatically be released from its obligations hereunder and the security interest in the Collateral of such
Subsidiary Guarantor shall be automatically released, in the event that all the Equity Interests of such Subsidiary Guarantor shall be sold, transferred or otherwise disposed of to a person that is not Holdings, the U.S. Borrower or an Affiliate of
any of the foregoing in accordance with the terms of the Credit Agreement; provided that the Required Lenders shall have consented to such sale, transfer or other disposition (to the extent required by the Credit Agreement) and the terms of
such consent did not provide otherwise.
21
(c) Upon (i) any sale or other transfer by any Grantor of any Collateral that is permitted
under the Credit Agreement to any person that is not Holdings, the U.S. Borrower or an Affiliate of any of the foregoing, (ii) the effectiveness of any written consent to the release of the security interest granted hereby in any Collateral
pursuant to Section 9.08 of the Credit Agreement or (iii) satisfaction of the conditions set forth in Section 9.19(c) of the Credit Agreement with respect to any Collateral identified in the notice delivered by Holdings to the
Administrative Agent pursuant to clause (1) thereof, the security interest in such Collateral shall be automatically released without any action on the part of the Collateral Agent.
(d) A Subsidiary Guarantor shall automatically be released from its Guarantee hereunder to the extent required by Section 5.09(a) or
Section 9.25(a) of the Credit Agreement.
(e) In connection with any termination or release pursuant to the preceding
paragraphs of this Section, the Collateral Agent shall execute and deliver to any Grantor, at such Grantor’s expense, all documents that such Grantor shall reasonably request to evidence such termination or release. Any execution and
delivery of documents pursuant to this Section 7.15 shall be without recourse to or representation or warranty by the Collateral Agent or any Secured Party.
SECTION 7.16. Additional Subsidiaries. Pursuant to Section 5.09(a) or Section 9.25(a) of the
Credit Agreement, certain Subsidiaries not originally party hereto may be required from time to time to enter into this Agreement. Upon the execution and delivery by the Collateral Agent and a Subsidiary of one or more supplements substantially in
the form of Exhibit A hereto, such Subsidiary shall become a Subsidiary Guarantor and, to the extent applicable, a Grantor hereunder with the same force and effect as if originally named as a Subsidiary Guarantor and a Grantor herein. The execution
and delivery of any such instrument shall not require the consent of any other Loan Party hereunder. The rights and obligations of each Loan Party hereunder shall remain in full force and effect notwithstanding the addition of any new Loan Party as
a party to this Agreement.
[Remainder of this page intentionally left blank]
22
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year
first above written.
|
|
|
| CBRE SERVICES, INC.,
|
| by |
|
/s/ DEBERAH FAN |
|
|
Name: Deberah Fan |
|
|
Title: Senior Vice President and Treasurer |
|
|
|
| CBRE GROUP, INC.,
|
| by |
|
/s/ DEBERAH FAN |
|
|
Name: Deberah Fan |
|
|
Title: Senior Vice President and Treasurer |
|
|
|
| EACH OF THE SUBSIDIARIES LISTED ON SCHEDULE I HERETO,
|
| by |
|
/s/ DEBERAH FAN |
|
|
Name: Deberah Fan |
|
|
Title: Senior Vice President and Treasurer |
[Signature Page to the Amended and Restated CBRE Guarantee and Pledge Agreement]
|
|
|
| CBRE LIMITED, a limited company organized under the laws of England and Wales,
|
| by |
|
/s/ P. EMBUREY |
|
|
Name: Philip Emburey |
|
|
Title: Director |
|
|
|
| by |
|
/s/ M. LEWIS |
|
|
Name: M. Lewis |
|
|
Title: Director |
[Signature Page to the Amended and Restated CBRE Guarantee and Pledge Agreement]
|
|
|
| CBRE LIMITED, a corporation organized under the laws of the province of New Brunswick,
|
| by |
|
/s/ JEFF COOK |
|
|
Name: Jeff Cook |
|
|
Title: SVP Finance |
[Signature Page to the Amended and Restated CBRE Guarantee and Pledge Agreement]
|
|
|
| CBRE LIMITED PARTNERSHIP,
|
| By: CBRE PARTNER, INC., its general partner, |
|
|
/s/ DEBERA FAN |
|
|
Name: Debera Fan |
|
|
Title: Senior Vice President and Treasurer |
[Signature Page to the Amended and Restated CBRE Guarantee and Pledge Agreement]
|
|
|
| RELAM AMSTERDAM HOLDINGS B.V., by
Intertrust Management B.V., as managing director, |
| by |
|
/s/ GERT JAN REITBERG |
|
|
Name: Gert Jan Reitberg |
|
|
Title: Proxy Holder |
|
|
|
| by |
|
/s/ L. KUITERS |
|
|
Name: L. Kuiters |
|
|
Title: Proxy Holder A |
[Signature Page to the Amended and Restated CBRE Guarantee and Pledge Agreement]
|
|
|
| CBRE GLOBAL HOLDINGS, S.A.R.L.,
|
| by |
|
/s/ LAURENCE H. MIDLER |
|
|
Name: Laurence H. Midler |
|
|
Title: Type A Manager |
|
|
|
| CB/TCC GLOBAL HOLDINGS LIMITED
|
| by |
|
/s/ MARCUS SMITH |
|
|
Name: Marcus Smith |
|
|
Title: Director |
|
|
|
| by |
|
/s/ P. EMBUREY |
|
|
Name: Philip Emburey |
|
|
Title: Director |
[Signature Page to the Amended and Restated CBRE Guarantee and Pledge Agreement]
IN WITNESS WHEREOF, the Australian Borrower and the New Zealand Borrower have duly executed this
Agreement, as of the day and year first above written, solely with respect to Article VI of this Agreement.
|
|
|
| CBRE PTY LTD, a company organized under the laws of Australia,
|
| by |
|
/s/ JAMES W. PATTERSON |
|
|
Name: James Winston Patterson |
|
|
Title: Director |
|
|
|
| CBRE LIMITED, a company organized under the laws of New Zealand,
|
| by |
|
/s/ NATALLE MARIE CRAIG |
|
|
Name: Natalle Marie Craig |
|
|
Title: Company Secretary |
[Signature Page to the Amended and Restated CBRE Guarantee and Pledge Agreement]
|
|
|
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Collateral Agent
|
| by |
|
/s/ BILL O’DALY |
|
|
Name: Bill O’Daly |
|
|
Title: Authorized Signatory |
|
|
|
| by |
|
/s/ D. ANDREW MALETTA |
|
|
Name: D. Andrew Maletta |
|
|
Title: Authorized Signatory |
[Signature Page to the Amended and Restated CBRE Guarantee and Pledge Agreement]
Schedule I to the
Amended and Restated
Guarantee and
Pledge Agreement
SUBSIDIARY GUARANTORS
CBRE Global
Investors, Inc.
CBRE Global Investors, LLC
CBRE, Inc.
CB/TCC Global Holdings Limited
CB/TCC, LLC
CBRE Capital Markets of Texas, LP
CBRE Capital Markets, Inc.
CBRE Clarion CRA Holdings, Inc.
CBRE Clarion REI Holding,
Inc.
CBRE Government Services, LLC
CBRE Partner, Inc.
CBRE Technical Services, LLC
CBRE/LJM – Nevada, Inc.
Trammell Crow Company, LLC
GUARANTORS FOR FOREIGN OBLIGATIONS ONLY
CBRE Limited (a corporation organized under the laws of England and Wales)
CBRE Limited (a corporation organized under the laws of the province of New Brunswick)
CBRE Limited Partnership
CBRE Global Holdings SARL
RELAM Amsterdam Holdings B.V.
2
|
|
|
|
|
|
|
|
|
| Schedule II to the
Amended and Restated Guarantee
and Pledge Agreement
DOMESTIC PLEDGED STOCK |
|
|
|
|
|
|
|
|
|
|
|
| Issuer |
|
Number of
Certificate
(if
applicable) |
|
Registered
Owner |
|
Number and
Class of Shares |
|
Percentage of
Ownership
Pledged |
|
| CBRE Services, Inc. |
|
P-3 |
|
CBRE Group,
Inc. |
|
6,250 Series A
Convertible
Participating
Preferred
Stock |
|
|
100 |
% |
| CBRE Services, Inc. |
|
C-3 |
|
CBRE Group,
Inc. |
|
11,493.896
Common
Stock |
|
|
100 |
% |
| CBRE, Inc. |
|
4 |
|
CB/TCC, LLC |
|
100 Common
Stock |
|
|
100 |
% |
| CBRE Capital Markets of Texas, LP |
|
N/A |
|
CBRE/LJM-
Nevada, Inc. |
|
N/A |
|
|
99.99 |
% |
| CBRE Capital Markets, Inc. |
|
9 |
|
CBRE, Inc. |
|
10 |
|
|
100 |
% |
| CBRE Clarion CRA Holdings, Inc. |
|
N/A |
|
CBRE Clarion
REI Holding,
Inc. |
|
N/A |
|
|
100 |
% |
| CBRE Clarion REI Holding, Inc. |
|
N/A |
|
CBRE, Inc. |
|
N/A |
|
|
100 |
% |
| CBRE Consulting, Inc. |
|
21 |
|
CBRE, Inc. |
|
1,108
Common |
|
|
100 |
% |
| CBRE Global Investors, Inc. |
|
5 |
|
CBRE, Inc. |
|
2,000
Common
Stock |
|
|
100 |
% |
| CBRE Global Investors, LLC |
|
N/A |
|
CBRE, Inc. |
|
N/A |
|
|
100 |
% |
| CBRE Government Services, LLC |
|
N/A |
|
CBRE, Inc. |
|
N/A |
|
|
100 |
% |
| CBRE/LJM Mortgage Company, L.L.C. |
|
N/A |
|
CBRE/LJM-
Nevada, Inc. |
|
N/A |
|
|
100 |
% |
| CBRE Partner, Inc. |
|
2 |
|
CBRE, Inc. |
|
98.50
Common
Stock |
|
|
100 |
% |
| CBRE Partner, Inc. |
|
3 |
|
CBRE
Services, Inc. |
|
1.50 Common
Stock |
|
|
100 |
% |
| CBRE Technical Services, LLC |
|
N/A |
|
CBRE, Inc. |
|
N/A |
|
|
100 |
% |
| CB/TCC Holdings LLC |
|
N/A |
|
CBRE
Services, Inc. |
|
N/A |
|
|
100 |
% |
|
|
|
|
|
|
|
|
|
|
|
| CB/TCC, LLC |
|
N/A |
|
CBRE
Services,
Inc. |
|
N/A |
|
|
85.58 |
% |
| CB/TCC, LLC |
|
N/A |
|
CB/TCC
Global
Holdings
Limited |
|
N/A |
|
|
14.42 |
% |
| Insignia/ESG Capital Corporation |
|
2 |
|
CBRE, Inc. |
|
100 Common |
|
|
100 |
% |
| The Polacheck Company, Inc. |
|
108 |
|
CBRE, Inc. |
|
11,683
Common Stock |
|
|
100 |
% |
| The Polacheck Company, Inc. |
|
109 |
|
CBRE, Inc. |
|
393 Preferred
Stock |
|
|
100 |
% |
| Trammell Crow Company, LLC |
|
N/A |
|
CBRE, Inc. |
|
N/A |
|
|
100 |
% |
| Trammell Crow Development & Investment, Inc. |
|
2 |
|
Trammell
Crow
Company,
LLC |
|
100 |
|
|
100 |
% |
2
|
|
|
|
|
|
|
|
|
|
|
| FOREIGN PLEDGED STOCK
|
|
| Issuer |
|
Number of
Certificate |
|
Registered Owner |
|
Number and
Class of Shares |
|
Percentage of
Ownership
Pledged |
|
| CBRE Limited Partnership |
|
N/A |
|
CBRE, Inc. 80% (as Limited Partner) and CBRE Partner, Inc. 20% (as General Partner) |
|
N/A |
|
|
65 |
% |
| CB/TCC Global Holdings Limited |
|
4 |
|
CBRE Services, Inc. |
|
7
Ordinary Shares |
|
|
65 |
% |
3
Exhibit A to the
Amended and Restated
Guarantee and
Pledge Agreement
SUPPLEMENT NO. [ ] (this “Supplement”) dated as of
[ ], to the Amended and Restated Guarantee and Pledge Agreement dated as of January 9, 2015 (the “Guarantee and Pledge Agreement”), among CBRE SERVICES, INC., a Delaware corporation (the
“U.S. Borrower”), CBRE GROUP, INC., a Delaware corporation (“Holdings”), the Subsidiaries of the U.S. Borrower from time to time party thereto (the “Subsidiary Guarantors” and,
together with the U.S. Borrower and Holdings, the “Grantors”) and CREDIT SUISSE AG (“Credit Suisse”), as collateral agent (in such capacity, the “Collateral Agent”) for the
Secured Parties (as defined therein).
A. Reference is made to the Second Amended and Restated Credit Agreement dated as of
January 9, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the U.S. Borrower, CBRE Limited, a limited company organized under the laws of England and Wales
(the “U.K. Borrower”), CBRE Limited, a corporation organized under the laws of the province of New Brunswick (the “Canadian Borrower”), CBRE Pty Ltd, a company organized under the laws of Australia and
registered in New South Wales (the “Australian Borrower”), CBRE Limited, a company organized under the laws of New Zealand (the “New Zealand Borrower”), Holdings, the lenders from time to
time party thereto (the “Lenders”), the Issuing Banks from time to time party thereto and Credit Suisse AG, as administrative agent (in such capacity, the “Administrative Agent”) and Collateral Agent.
B. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Guarantee and
Pledge Agreement and the Credit Agreement.
C. The Grantors have entered into the Guarantee and Pledge Agreement in
consideration of, among other things, Loans made and Letters of Credit issued under the Credit Agreement. Section 7.16 of the Guarantee and Pledge Agreement provides that additional Subsidiaries of the U.S. Borrower may become Subsidiary
Guarantors and Grantors under the Guarantee and Pledge Agreement by the execution and delivery of an instrument in the form of this Supplement. The undersigned Subsidiary (the “New Loan Party”) is executing this Supplement in
accordance with the requirements of the Credit Agreement to become a Subsidiary Guarantor and a Grantor under the Guarantee and Pledge Agreement in order to induce the Lenders to make additional Loans and the Issuing Banks to issue additional
Letters of Credit and as consideration for Loans previously made and Letters of Credit previously issued.
Accordingly, the Collateral Agent and the New Loan Party agree as follows:
SECTION 1. In accordance with Section 7.16 of the Guarantee and Pledge Agreement, the New Loan Party by its signature below becomes a
Grantor and Subsidiary Guarantor under the Guarantee and Pledge Agreement with the same force and effect as if originally named therein as a Grantor and Subsidiary Guarantor and the New Loan Party hereby (a) agrees to all the terms and
provisions of the Guarantee and Pledge Agreement applicable to it as a Grantor and Subsidiary Guarantor thereunder and (b) represents and warrants that the representations and warranties made by it as a Grantor and Subsidiary Guarantor
thereunder are true and correct on and as of the date hereof. In furtherance of the foregoing, the New Loan Party, as security for the payment and performance in full of the Obligations (as defined in the Guarantee and Pledge Agreement), does hereby
create and grant to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, their successors and assigns, a security interest in and lien on all of the New Loan Party’s right, title and interest in and
to the Collateral (as defined in the Guarantee and Pledge Agreement) of the New Loan Party. Each reference to a “Grantor” or a “Subsidiary Guarantor” in the Guarantee and Pledge Agreement shall be deemed to include the New Loan
Party. The Guarantee and Pledge Agreement is hereby incorporated herein by reference.
SECTION 2. The New Loan Party represents and
warrants to the Collateral Agent and the other Secured Parties that this Supplement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single contract. This Supplement shall become effective when the Collateral Agent shall have received counterparts of this Supplement that, when taken together,
bear the signatures of the New Loan Party and the Collateral Agent. Delivery of an executed signature page to this Supplement by facsimile transmission or other customary means of electronic transmission (e.g., “pdf”) shall be as effective
as delivery of a manually signed counterpart of this Supplement.
SECTION 4. The New Loan Party hereby represents and warrants that
(a) set forth on Schedule I attached hereto is a true and correct schedule of any and all Equity Interests now owned by the New Loan Party and (b) set forth under its signature hereto, is the true and correct legal name of the New Loan
Party and its jurisdiction of organization.
SECTION 5. Except as expressly supplemented hereby, the Guarantee and Pledge Agreement shall
remain in full force and effect.
A-2
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in this Supplement should be held invalid,
illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and in the Guarantee and Pledge Agreement shall not in any way be affected or impaired thereby (it being understood that
the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties hereto shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 8. All communications and notices hereunder shall (except as otherwise expressly permitted by the Guarantee and Pledge Agreement) be
in writing and given as provided in Section 9.01 of the Credit Agreement. All communications and notices hereunder to the New Loan Party shall be given to it in care of the U.S. Borrower as provided in Section 9.01 of the Credit Agreement.
[Remainder of this page intentionally left blank]
A-3
IN WITNESS WHEREOF, the New Loan Party and the Collateral Agent have duly executed this
Supplement to the Guarantee and Pledge Agreement as of the day and year first above written.
|
|
|
| [NAME OF NEW LOAN PARTY]
|
| by |
|
|
|
|
Name: |
|
|
Title: |
|
|
Address: |
|
|
Legal Name: |
|
|
Jurisdiction of Formation: |
|
|
|
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Collateral Agent
|
| by |
|
|
|
|
Name: |
|
|
Title: |
A-4
Exhibit B to the
Amended and Restated
Guarantee and
Pledge Agreement
FORM OF
PERFECTION CERTIFICATE
Dated as of
[ ]
Reference is made to the Second Amended and
Restated Credit Agreement dated as of January 9, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among CBRE Services, Inc., a Delaware corporation (the
“U.S. Borrower”), CBRE Limited, a limited company organized under the laws of England and Wales (the “U.K. Borrower”), CBRE Limited, a corporation organized under the laws of the province of New
Brunswick (the “Canadian Borrower”), CBRE Pty Limited, a company organized under the laws of Australia and registered in New South Wales (the “Australian Borrower”), CBRE Limited, a company organized
under the laws of New Zealand (the “New Zealand Borrower”), CBRE Group, Inc., a Delaware corporation (“Holdings”), the lenders from time to time party thereto (the “Lenders”)
and Credit Suisse AG, as administrative agent (in such capacity, the “Administrative Agent”) and as collateral agent (in such capacity, the “Collateral Agent”). Capitalized terms used but not defined
herein have the meanings assigned in the Credit Agreement or the Guarantee and Pledge Agreement referred to therein, as applicable.
The
undersigned, a Responsible Officer of Holdings, hereby certifies to the Administrative Agent and each other Secured Party as follows:
1. Names. (a) The exact legal name of each Grantor, as such name appears in its respective certificate of formation or organization, appears
on Schedule 1A.
(b) Set forth on Schedule 1B is each other legal name each Grantor has had in the past five years, together with the date of the
relevant change.
(c) Except as set forth in Schedule 1C, no Grantor has changed its identity or corporate structure in any way within the past
five years. Changes in identity or corporate structure would include mergers, consolidations and acquisitions, as well as any change in the form, nature or jurisdiction of organization. If any such change has occurred, include in Schedule 1C
the information required by Sections 1 and 2 of this certificate as to each acquiree or constituent party to a merger or consolidation.
(d) Set
forth on Schedule 1D is the Organizational Identification Number, if any, issued by the jurisdiction of formation of each Grantor that is a registered organization.
(e) Set forth on Schedule 1E is the Federal Taxpayer Identification Number of each Grantor. [Only necessary for filing in North Dakota and South Dakota.]
2. Current Locations. (a) The chief executive office of each Grantor is located at the address set forth opposite its name on
Schedule 2A.
(b) Set forth on Schedule 2B opposite the name of each Grantor are all locations where such Grantor maintains any books or records
relating to any Accounts Receivable (with each location at which chattel paper, if any, is kept being indicated by an “*”).
(c) The jurisdiction of formation of each Grantor that is a registered organization is set forth opposite
its name on Schedule 2C.
3. File Search Reports. File search reports have been obtained from each Uniform Commercial Code filing office
identified with respect to each Grantor in Section 2 hereof, and such search reports reflect no liens against any of the Collateral other than those permitted under the Credit Agreement.
4. UCC Filings. Financing statements in substantially the form of Schedule 4 hereto have been prepared for filing in the proper Uniform Commercial
Code filing office in the jurisdiction in which each Grantor is located.
5. Schedule of Filings. Attached hereto as Schedule 5 is a schedule
setting forth, with respect to the filings described in Section 4 above, each filing and the filing office in which such filing is to be made.
6. Stock Ownership and other Equity Interests. Attached hereto as Schedule 6 is a true and correct list of all the issued and outstanding stock,
partnership interests, limited liability company membership interests or other equity interest owned by each Grantor that are required to be pledged under the Guarantee and Pledge Agreement and the issuer of such stock, partnership interests,
membership interests or other equity interests.
2
IN WITNESS WHEREOF, the undersigned has duly executed this certificate as of the date first written above.
|
|
|
| CBRE GROUP, INC., |
|
|
| By |
|
|
|
|
Name:
Title: Responsible Officer |
SCHEDULE 1A
Exact Legal Name of Each Grantor
SCHEDULE 1B
Other Legal Names Within the Past Five Years With Date of Relevant Change
SCHEDULE 1C
Changes in Identity or Corporate Structure Within the Past Five Years
SCHEDULE 1D
Organizational Identification Number
|
|
|
| Grantor |
|
Organizational Identification
Number |
|
|
|
SCHEDULE 1E
Federal Taxpayer Identification Number of Each Grantor
|
|
|
| Grantor |
|
Federal Taxpayer Identification
Number |
|
|
|
SCHEDULE 2A
Chief Executive Office of Each Grantor
|
|
|
|
|
|
|
| Grantor |
|
Mailing Address |
|
County |
|
State |
|
|
|
|
|
|
|
SCHEDULE 2B
Locations of Books or Records Relating to any Accounts Receivable
|
|
|
|
|
|
|
| Grantor |
|
Mailing Address |
|
County |
|
State |
|
|
|
|
|
|
|
SCHEDULE 2C
Jurisdiction of Formation of Each Grantor
|
|
|
| Grantor |
|
Jurisdiction of Formation |
|
|
|
SCHEDULE 4
UCC Financing Statements
[To Be Attached]
SCHEDULE 5
UCC Filings and Filing Offices
|
|
|
|
|
|
|
| Debtor |
|
Secured Party |
|
Filing Office |
|
Collateral Description |
|
|
|
|
|
|
|
SCHEDULE 6
Stock Ownership and Equity Interests
|
|
|
|
|
|
|
|
|
| Issuer |
|
Number of
Certificate (if
applicable) |
|
Registered
Owner |
|
Number and
Class of
Shares |
|
Percentage of
Ownership
Pledged |
|
|
|
|
|
|
|
|
|
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