UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 6-K
Report of Foreign Private Issuer
Pursuant to Rule 13a-16 or 15d-16 of the
Securities Exchange Act of 1934
For the month of August, 2017
Commission File Number 001-36671

Atento S.A.
(Translation of Registrant’s name into English)

4 rue Lou Hemmer, L-1748 Luxembourg Findel
Grand Duchy of Luxembourg
(Address of principal executive office)

Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F:  ☒                Form 40-F:  ☐
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1):
Yes:  ☐                 No:  ☒
Note: Regulation S-T Rule 101(b)(1) only permits the submission in paper of a Form 6-K if submitted solely to provide an attached annual report to security holders.
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7):
Yes:  ☐                 No:  ☒
Note: Regulation S-T Rule 101(b)(7) only permits the submission in paper of a Form 6-K if submitted to furnish a report or other document that the registrant foreign private issuer must furnish and make public under the laws of the jurisdiction in which the registrant is incorporated, domiciled or legally organized (the registrant’s “home country”), or under the rules of the home country exchange on which the registrant’s securities are traded, as long as the report or other document is not a press release, is not required to be and has not been distributed to the registrant’s security holders, and, if discussing a material event, has already been the subject of a Form 6-K submission or other Commission filing on EDGAR.

Issuance of US$400 million Aggregate Principal Amount of Senior Secured Notes.
Overview
On August 10, 2017 (the “Issue Date”), Atento Luxco 1 S.A. (“Atento Luxco 1” or the “Issuer”), a wholly-owned subsidiary of Atento S.A. (the “Registrant” or “Atento”), closed an offering of US$400 million aggregate principal amount of 6.125% Senior Secured Notes due 2022 (the “Notes”) in a private placement transaction (the “Offering”).
The Notes and related guarantees were offered only to qualified institutional buyers in reliance on Rule 144A under the Securities Act of 1933, as amended (the “Act”), or outside the United States, to persons outside the United States in compliance with Regulation S under the Act. The Notes and related guarantees have not been and will not be registered under the Act or the securities laws of any other jurisdiction and may not be offered or sold in the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Act.
The Notes were issued under an Indenture (the “Indenture”), among Atento Luxco 1, the guarantors from time to time party thereto, Wilmington Trust, National Association, as trustee (the “Trustee”), and Wilmington Trust (London) Limited, in its capacity as security agent under an intercreditor agreement, as collateral agent (the “Collateral Agent”).
Atento intends to use the net proceeds from the Offering, together with cash on hand, to redeem all of the Issuer’s outstanding 7.375% Senior Secured Notes due 2020 and all of the existing debentures due 2019 of its subsidiary Atento Brasil.
The following is a brief description of the terms of the Notes and the Indenture.
Maturity and Interest Payment Dates
Interest is payable on the Notes on February 10 and August 10 of each year, beginning on February 10, 2018, until their maturity date of August 10, 2022.
Ranking
The Indenture and the Notes provide, among other things, that the Notes are senior secured obligations of the Issuer and the Guarantors and will: (i) rank equally in right of payment to any of the Issuer’s and the Guarantors’ existing and future senior indebtedness; (ii) rank senior in right of payment to all of the Issuer’s and the Guarantors’ future senior subordinated indebtedness; (iii) be effectively junior in right of payment to all of the Issuer’s and the Guarantors’ existing and future secured indebtedness to the extent of the value of the collateral securing such indebtedness; and (iv) be structurally subordinated in right of payment to all existing and future indebtedness and other liabilities of the Issuer’s non-guarantor subsidiaries.
Guarantees
The Notes are guaranteed on a senior secured basis by certain of Atento’s wholly-owned subsidiaries on a joint and several basis.
Security
The Notes and the guarantees will be secured, subject to permitted liens and other limitations, by a first-priority lien on the capital stock of: (i) the Issuer, on the Issue Date; and (ii) each of the Guarantors, within 120 days following the Issue Date.
Covenants
The terms of the Indenture, among other things, limit, in certain circumstances, the ability of the Issuer and its restricted subsidiaries to: (i) incur certain additional indebtedness; (ii) make certain dividends, distributions, investments and other restricted payments; (iii) sell the property or assets of the Issuer or any of its restricted subsidiaries to another person; (iv) incur additional liens; (v) guarantee additional debt; and (vi) enter into transactions with affiliates.
Optional Redemption
At any time prior to August 10, 2019, the Issuer may redeem some or all of the Notes at a redemption price equal to 100% of the principal amount of such Notes redeemed plus a make-whole premium and accrued and unpaid interest, if any, up to, but excluding, the redemption date. The Issuer may also redeem some or all of the Notes on or after August 10, 2019, at a redemption price equal to:
 (i) 103.063% of the principal amount thereof, if redeemed during the twelve-month period beginning on August 10, 2019; (ii) 101.531% of the principal amount thereof, if redeemed during the twelve-month period beginning on August 10, 2020; and (iii) 100% of the principal amount thereof, if redeemed on or after August 10, 2021, in each case plus accrued and unpaid interest, if any, up to, but excluding, the redemption date. In addition, prior to August 10, 2019, the Issuer may redeem up to 40% of the Notes from the net cash proceeds of certain equity offerings at a redemption price equal to 106.125% of the principal amount of such Notes redeemed plus accrued and unpaid interest, if any, up to, but excluding, the redemption date, subject to certain conditions. If the Issuer experiences certain changes of control specified in the Indenture, it must offer to purchase the Notes, in cash, at a redemption price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, up to, but excluding, the redemption date. In addition, certain asset dispositions of the Issuer will be triggering events which may require the Issuer to use excess proceeds from those asset dispositions to make an offer to purchase the Notes at 100% of the principal amount thereof plus accrued and unpaid interest, if any, up to, but excluding, the redemption date.
Events of Default
The Indenture also provides for customary events of default. Generally, if any event of default occurs and is not cured within the time periods specified therein, the Trustee or the holders of at least 30% of the principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately.
The description of the Indenture is qualified in its entirety by the terms of such agreement, which is incorporated herein by reference and attached to this report as Exhibit 4.1.
Press Release
On August 10, 2017, Atento issued a press release announcing the closing of the Offering, the text of which is set forth as Exhibit 99.1.
Entry into Super Senior Revolving Credit Facility.
On August 8, 2017, the Issuer entered into a new a super senior revolving credit facility (the “Super Senior Revolving Credit Facility”) which will provide for aggregate borrowings of up to $50 million and will mature four and a half years following the Issue Date. Banco Bilbao Vizcaya Argentaria, S.A., as the agent, the Collateral Agent and BBVA Bancomer, S.A., Institución de Banca Múltiple, Grupo Financiero BBVA Bancomer, Morgan Stanley Bank N.A. and Goldman Sachs Bank USA are acting as arrangers and lenders under the Super Senior Revolving Credit Facility.
The Super Senior Revolving Credit Facility may be utilized in the form of multi-currency advances for terms of one, two, three or six months (or 21 or 91 days in the case of the Mexican Peso loans) (or any other term agreed with the agent under the Super Senior Revolving Credit Facility acting on the instructions of (i) the majority lenders participating in the relevant loan for periods of less than six months, or (ii) all lenders participating in the relevant loan for periods greater than six months) or letters of credit or ancillary facilities.
The Super Senior Revolving Credit Facility bears interest at a rate per annum equal to LIBOR or, for borrowings in euro, EURIBOR or, for borrowings in Mexican Pesos, TIIE plus an opening margin of 4.25% per annum. The margin may be reduced under a margin ratchet to 3.75% per annum by reference to the consolidated senior secured net leverage ratio and the satisfaction of certain other conditions.
The Issuer is required to pay a commitment fee, quarterly in arrears, on available but unused commitments under the Super Senior Revolving Credit Facility, at a rate of 35% of the applicable margin, and on the date on which the Super Senior Revolving Credit Facility is cancelled in full or on the date on which a lender cancels its commitment. Arrangement, agency and letter of credit fees are also payable pursuant to the agreement for the Super Senior Revolving Credit Facility (the “Super Senior Revolving Credit Facility Agreement”).
The Super Senior Revolving Credit Facility is guaranteed by each guarantor thereunder on a joint and several basis.
The Super Senior Revolving Credit Facility is secured by the same security interests as for the Notes.
Under the terms of an intercreditor agreement, in the event of the acceleration of the Super Senior Revolving Credit Facility or the Notes, amounts recovered in respect of the Notes from the enforcement of the collateral are required to be turned over to the Collateral Agent and, subject to the payment of fees and expenses, paid by the Collateral Agent to the lenders under the Super Senior Revolving Credit Facility and counterparties to certain hedging obligations, in each case in priority to the holders of the Notes.
The terms of the Super Senior Revolving Credit Facility Agreement limit, among other things, the ability of the Issuer and its restricted subsidiaries to (i) incur additional indebtedness or guarantee indebtedness; (ii) create liens or use assets as security in other transactions; (iii) declare or pay dividends, redeem stock or make other distributions to stockholders; (iv) make investments; (v) merge, amalgamate or consolidate, or sell, transfer, lease or dispose of substantially all of the assets of the Issuer and its restricted subsidiaries; (vi) enter into transactions with affiliates; (vii) sell or transfer certain assets; and (viii) agree to certain restrictions on the ability of restricted subsidiaries to make payments to the Issuer and its restricted subsidiaries. These covenants are subject to a number of important conditions, qualifications, exceptions and limitations that are described in the Super Senior Revolving Credit Facility Agreement.
The Super Senior Revolving Credit Facility Agreement includes a financial covenant requiring the drawn super senior leverage ratio not to exceed 0.35:1.00 (the “SSRCF Financial Covenant”). The SSRCF Financial Covenant is calculated as the ratio of consolidated drawn super senior facilities debt to consolidated pro forma EBITDA for the twelve month period preceding the relevant quarterly testing date and is tested quarterly on a rolling basis, subject to the Super Senior Revolving Credit Facility being at least 35% drawn (excluding letters of credit (or bank guarantees), ancillary facilities and any related fees or expenses) on the relevant test date. The SSRCF Financial Covenant only acts as a draw stop to new drawings under the Revolving Credit Facility and, if breached, will not trigger a default or an event of default under the Super Senior Revolving Credit Facility Agreement. The Issuer has four equity cure rights in respect of the SSRCF Financial Covenant prior to the termination date of the Super Senior Revolving Credit Facility Agreement, and no more than two cure rights may be exercised in any four consecutive financial quarters.
The description of the Super Senior Revolving Credit Facility Agreement is qualified in its entirety by the terms of such agreement, which is incorporated herein by reference and attached to this report as Exhibit 4.2.

Exhibits.
See the Exhibit Index hereto.

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

ATENTO S.A. (Registrant)	
		
By:	 	/s/    Mauricio Montilha                	
	 	Name:  Mauricio Montilha
Title:    Chief Financial Officer	
Date: August 15, 2017

EXHIBIT INDEX

Exhibit No.	  	Description	
		
Exhibit 4.1	  	Indenture, dated as of August 10, 2017, among Atento Luxco 1 S.A., the guarantors from time to time party thereto, Wilmington Trust, National Association, as trustee, and Wilmington Trust (London) Limited, in its capacity as security agent under the intercreditor agreement, as collateral agent.	
		
Exhibit 4.2	  	Super Senior Revolving Credit Facility, dated as of August 8, 2017, among Atento Luxco 1 S.A., the guarantors party thereto, BBVA Bancomer, S.A., Institución de Banca Múltiple, Grupo Financiero BBVA Bancomer, Goldman Sachs Bank USA and Morgan Stanley Senior Funding, Inc., as arrangers, Banco Bilbao Vizcaya Argentaria, S.A., as agent, and Wilmington Trust (London) Limited, as security agent.	
		
Exhibit 99.1	  	Press Release, dated August 10, 2017.	

Exhibit 4.1

 
ATENTO LUXCO 1 S.A.,
as the Company,
the GUARANTORS party hereto from time to time
AND
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Trustee
AND
WILMINGTON TRUST (LONDON) LIMITED,
in its capacity as Security Agent under the Intercreditor Agreement, as Collateral Agent
$400,000,000 6.125% Senior Secured Notes due 2022

 
INDENTURE
Dated as of August 10, 2017

 

TABLE OF CONTENTS

 
							
 	 	 	  	P AGE	 	
ARTICLE I	 	
	
D EFINITIONS AND I NCORPORATION BY R EFERENCE	 	
			
Section 1.1.	 	Definitions	  	 	1	 	
Section 1.2.	 	Other Definitions	  	 	59	 	
Section 1.3.	 	TIA	  	 	60	 	
Section 1.4.	 	Rules of Construction	  	 	60	 	
	
ARTICLE II	 	
	
T HE N OTES	 	
			
Section 2.1.	 	Form, Dating and Terms	  	 	61	 	
Section 2.2.	 	Execution and Authentication	  	 	70	 	
Section 2.3.	 	Registrar and Paying Agent	  	 	71	 	
Section 2.4.	 	Paying Agent to Hold Money in Trust	  	 	72	 	
Section 2.5.	 	Holder Lists	  	 	72	 	
Section 2.6.	 	Transfer and Exchange	  	 	73	 	
Section 2.7.	 	Form of Certificate to be Delivered upon Termination of Restricted Period	  	 	77	 	
Section 2.8.	 	Form of Certificate to be Delivered in Connection with Transfers to IAIs	  	 	78	 	
Section 2.9.	 	Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regulation S	  	 	80	 	
Section 2.10.	 	Form of Certificate to be Delivered in Connection with Transfers to AIs	  	 	82	 	
Section 2.11.	 	Mutilated, Destroyed, Lost or Stolen Notes	  	 	84	 	
Section 2.12.	 	Outstanding Notes	  	 	85	 	
Section 2.13.	 	Temporary Notes	  	 	85	 	
Section 2.14.	 	Cancellation	  	 	86	 	
Section 2.15.	 	Payment of Interest; Defaulted Interest	  	 	86	 	
Section 2.16.	 	CUSIP and ISIN Numbers	  	 	87	 	
Section 2.17.	 	Joint and Several Liability	  	 	88	 	
	
ARTICLE III	 	
	
C OVENANTS	 	
			
Section 3.1.	 	Payment of Notes	  	 	88	 	
Section 3.2.	 	Limitation on Indebtedness	  	 	88	 	
Section 3.3.	 	Limitation on Restricted Payments	  	 	96	 	
Section 3.4.	 	Limitation on Restrictions on Distributions from Restricted Subsidiaries	  	 	106	 	
 
-i-

							
Section 3.5.	 	Limitation on Sales of Assets and Subsidiary Stock	  	 	109	 	
Section 3.6.	 	Limitation on Liens	  	 	114	 	
Section 3.7.	 	Limitation on Guarantees	  	 	115	 	
Section 3.8.	 	Limitation on Affiliate Transactions	  	 	116	 	
Section 3.9.	 	Change of Control	  	 	121	 	
Section 3.10.	 	Reports	  	 	123	 	
Section 3.11.	 	Maintenance of Office or Agency	  	 	127	 	
Section 3.12.	 	Corporate Existence	  	 	128	 	
Section 3.13.	 	Payment of Taxes	  	 	128	 	
Section 3.14.	 	[ Reserved ]	  	 	128	 	
Section 3.15.	 	Compliance Certificate	  	 	128	 	
Section 3.16.	 	Further Instruments and Acts	  	 	128	 	
Section 3.17.	 	[ Reserved ]	  	 	129	 	
Section 3.18.	 	Statement by Officers as to Default	  	 	129	 	
Section 3.19.	 	Suspension of Certain Covenants	  	 	129	 	
Section 3.20.	 	Designation of Restricted and Unrestricted Subsidiaries	  	 	130	 	
Section 3.21.	 	Amendment of Collateral Documents	  	 	131	 	
Section 3.22.	 	After-Acquired Property	  	 	131	 	
Section 3.23.	 	Additional Amounts	  	 	131	 	
Section 3.24.	 	Post-Closing Guarantors	  	 	134	 	
	
ARTICLE IV	 	
	
S UCCESSOR C OMPANY ; S UCCESSOR P ERSON	 	
			
Section 4.1.	 	Merger and Consolidation	  	 	134	 	
	
ARTICLE V	 	
	
R EDEMPTION OF N OTES	 	
			
Section 5.1.	 	Notices to Trustee	  	 	136	 	
Section 5.2.	 	Selection of Notes to Be Redeemed or Purchased	  	 	136	 	
Section 5.3.	 	Notice to Redemption	  	 	137	 	
Section 5.4.	 	Effect of Notice of Redemption	  	 	138	 	
Section 5.5.	 	Deposit of Redemption or Purchase Price	  	 	138	 	
Section 5.6.	 	Notes Redeemed or Purchased in Part	  	 	139	 	
Section 5.7.	 	Optional Redemption	  	 	139	 	
Section 5.8.	 	Mandatory Redemption	  	 	142	 	
	
ARTICLE VI	 	
	
D EFAULTS AND R EMEDIES	 	
			
Section 6.1.	 	Events of Default	  	 	142	 	
Section 6.2.	 	Acceleration	  	 	145	 	
Section 6.3.	 	Other Remedies	  	 	146	 	
 
-ii-

							
Section 6.4.	 	Waiver of Past Defaults	  	 	146	 	
Section 6.5.	 	Control by Majority	  	 	147	 	
Section 6.6.	 	Limitation on Suits	  	 	147	 	
Section 6.7.	 	Rights of Holders to Receive Payment	  	 	147	 	
Section 6.8.	 	Collection Suit by Trustee	  	 	148	 	
Section 6.9.	 	Trustee May File Proofs of Claim	  	 	148	 	
Section 6.10.	 	Priorities	  	 	148	 	
Section 6.11.	 	Undertaking for Costs	  	 	149	 	
	
ARTICLE VII	 	
	
T RUSTEE	 	
			
Section 7.1.	 	Duties of Trustee	  	 	149	 	
Section 7.2.	 	Rights of Trustee	  	 	150	 	
Section 7.3.	 	Individual Rights of Trustee	  	 	152	 	
Section 7.4.	 	Trustee’s Disclaimer	  	 	152	 	
Section 7.5.	 	Notice of Defaults	  	 	153	 	
Section 7.6.	 	[ Reserved ]	  	 	153	 	
Section 7.7.	 	Compensation and Indemnity	  	 	153	 	
Section 7.8.	 	Replacement of Trustee	  	 	154	 	
Section 7.9.	 	Successor Trustee by Merger	  	 	155	 	
Section 7.10.	 	Eligibility; Disqualification	  	 	155	 	
Section 7.11.	 	[ Reserved ]	  	 	155	 	
Section 7.12.	 	Trustee’s Application for Instruction from the Company	  	 	155	 	
Section 7.13.	 	Collateral Documents; Intercreditor Agreement	  	 	156	 	
	
 ARTICLE VIII	 	
	
L EGAL D EFEASANCE AND C OVENANT D EFEASANCE	 	
			
Section 8.1.	 	Option to Effect Legal Defeasance or Covenant Defeasance; Defeasance	  	 	156	 	
Section 8.2.	 	Legal Defeasance and Discharge	  	 	156	 	
Section 8.3.	 	Covenant Defeasance	  	 	157	 	
Section 8.4.	 	Conditions to Legal or Covenant Defeasance	  	 	158	 	
Section 8.5.	 	Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions	  	 	159	 	
Section 8.6.	 	Repayment to the Company	  	 	160	 	
Section 8.7.	 	Reinstatement	  	 	160	 	
	
ARTICLE IX	 	
	
A MENDMENTS	 	
			
Section 9.1.	 	Without Consent of Holders	  	 	160	 	
Section 9.2.	 	With Consent of Holders	  	 	162	 	
 
-iii-

							
Section 9.3.	 	[ Reserved ]	  	 	164	 	
Section 9.4.	 	Revocation and Effect of Consents and Waivers	  	 	164	 	
Section 9.5.	 	Notation on or Exchange of Notes	  	 	165	 	
Section 9.6.	 	Trustee and Collateral Agent to Sign Amendments	  	 	165	 	
	
ARTICLE X	 	
	
G UARANTEE	 	
			
Section 10.1.	 	Guarantee	  	 	165	 	
Section 10.2.	 	Limitation on Liability; Termination, Release and Discharge	  	 	167	 	
Section 10.3.	 	Right of Contribution	  	 	168	 	
Section 10.4.	 	No Subrogation	  	 	168	 	
	
 ARTICLE XI	 	
	
S ATISFACTION AND D ISCHARGE	 	
			
Section 11.1.	 	Satisfaction and Discharge	  	 	169	 	
Section 11.2.	 	Application of Trust Money	  	 	170	 	
	
ARTICLE XII	 	
	
C OLLATERAL	 	
			
Section 12.1.	 	Collateral Documents	  	 	171	 	
Section 12.2.	 	Post-Closing Collateral	  	 	172	 	
Section 12.3.	 	Release of Collateral	  	 	172	 	
Section 12.4.	 	Suits to Protect the Collateral	  	 	173	 	
Section 12.5.	 	Authorization of Receipt of Funds by the Trustee Under the Collateral Documents	  	 	174	 	
Section 12.6.	 	Purchaser Protected	  	 	174	 	
Section 12.7.	 	Powers Exercisable by Receiver or Trustee	  	 	174	 	
Section 12.8.	 	Release Upon Termination of the Company’s Obligations	  	 	174	 	
Section 12.9.	 	Collateral Agent	  	 	175	 	
Section 12.10.	 	Designations	  	 	183	 	
Section 12.11.	 	No Impairment of the Security Interests	  	 	183	 	
Section 12.12.	 	Insurance	  	 	183	 	
	
ARTICLE XIII	 	
	
M ISCELLANEOUS	 	
			
Section 13.1.	 	[ Reserved ]	  	 	184	 	
Section 13.2.	 	Notices	  	 	184	 	
Section 13.3.	 	[ Reserved ]	  	 	185	 	
Section 13.4.	 	Certificate and Opinion as to Conditions Precedent	  	 	185	 	
Section 13.5.	 	Statements Required in Certificate or Opinion	  	 	186	 	
 
-iv-

							
Section 13.6.	 	When Notes Disregarded	  	 	186	 	
Section 13.7.	 	Rules by Trustee, Paying Agent and Registrar	  	 	186	 	
Section 13.8.	 	Legal Holidays	  	 	186	 	
Section 13.9.	 	Governing Law	  	 	187	 	
Section 13.10.	 	Jurisdiction	  	 	187	 	
Section 13.11.	 	Waivers of Jury Trial	  	 	187	 	
Section 13.12.	 	USA PATRIOT Act	  	 	187	 	
Section 13.13.	 	No Recourse Against Others	  	 	188	 	
Section 13.14.	 	Successors	  	 	188	 	
Section 13.15.	 	Multiple Originals	  	 	188	 	
Section 13.16.	 	[ Reserved ]	  	 	188	 	
Section 13.17.	 	Table of Contents; Headings	  	 	188	 	
Section 13.18.	 	Force Majeure	  	 	188	 	
Section 13.19.	 	Severability	  	 	188	 	
Section 13.20.	 	Intercreditor Agreement	  	 	189	 	
Section 13.21.	 	Appointment of Agent for Service of Process	  	 	189	 	
Section 13.22.	 	Waiver of Immunities	  	 	191	 	
Section 13.23.	 	Judgment Currency	  	 	191	 	
			
EXHIBIT A	 	Form of Global Restricted Note	  				
EXHIBIT B	 	Form of Supplemental Indenture	  				
 
-v-

INDENTURE dated as of August 10, 2017, among Atento Luxco 1 S.A., a company (“ société anonyme ”) incorporated under the laws of the Grand Duchy of Luxembourg (the “ Company ”), the Guarantors party hereto and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, as trustee (the “ Trustee ”) and WILMINGTON TRUST (LONDON) LIMITED, a limited company incorporated under the laws of England, as collateral agent (the “ Collateral Agent ”).
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of (i) its $400,000,000 6.125% Senior Secured Notes due 2022 (the “ Initial Notes ”), each as issued on the date hereof and (ii) any additional Notes that may be issued after the Issue Date (the “ Additional Notes ” and, together with the Initial Notes, the “ Notes ”);
WHEREAS, the Guarantors have duly authorized the execution and delivery of this Indenture; and
WHEREAS, all things necessary (i) to make the Notes, when executed and duly issued by the Initial Company and the Guarantors and authenticated and delivered hereunder, the valid obligations of the Initial Company and the Guarantors, and (ii) to make this Indenture a valid agreement of the Initial Company and the Guarantors have been done.
NOW, THEREFORE, in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders, as follows:
ARTICLE I
D EFINITIONS AND I NCORPORATION BY R EFERENCE
Section 1.1.     Definitions .
“ 2016 20-F ” means Atento S.A.’s Annual Report on Form 20-F for the year ended December 31, 2016 filed with the SEC on April 13, 2017.
“ 2017 Q1 Report ” means Atento S.A.’s report on Form 6-K for the period ended March 31, 2017, furnished to the SEC on May 9, 2017.
“ Acquired Indebtedness ” means with respect to any Person (x) Indebtedness of any other Person or any of its Subsidiaries existing at the time such other Person becomes a Restricted Subsidiary or merges or amalgamates with or into or consolidates or otherwise combines with the Company or any Restricted Subsidiary and (y) Indebtedness secured by a Lien encumbering any asset acquired by such Person. Acquired Indebtedness shall be deemed to have been Incurred, with respect to clause (x) of the preceding sentence, on the date such Person becomes a Restricted Subsidiary or on the date of the relevant merger, amalgamation, consolidation, acquisition or other combination.

“ Additional Assets ” means:
(a)    any property or assets (other than Capital Stock) used or to be used by the Company, a Restricted Subsidiary or otherwise useful in a Similar Business (it being understood that capital expenditures on property or assets already used in a Similar Business or to replace any property or assets that are the subject of such Asset Disposition shall be deemed an investment in Additional Assets);
(b)    the Capital Stock of a Person that is engaged in a Similar Business and becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock by the Company or a Restricted Subsidiary; or
(c)    Capital Stock constituting a minority interest in any Person that at such time is a Restricted Subsidiary.
“ Additional Notes ” has the meaning ascribed to it in the second introductory paragraph of this Indenture.
“ Affiliate ” of any specified Person means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“ After-Acquired Property ” means property that is intended to be Collateral acquired by the Company or a Guarantor that is not automatically subject to a perfected security interest under the Collateral Documents, which the Company or such Guarantor will provide a First Priority Lien over such property (or, in the case of a new Guarantor, such of its property) in favor of the Collateral Agent and deliver certain certificates and opinions in respect thereof, all as and to the extent required by this Indenture, the Intercreditor Agreement or the Collateral Documents.
“ AI ” means an “accredited investor” as described in Rule 501(a)(4) under the Securities Act.
“ Alternative Currency ” means any currency (other than Dollars) that is a lawful currency (other than Dollars) that is readily available and freely transferable and convertible into Dollars (as determined in good faith by the Company).
 
-2-

“ Applicable Premium ” means the greater of (A) 1.0% of the principal amount of such Note and (B) on any Redemption Date, the excess (to the extent positive) of:
(a)    the present value at such Redemption Date of (i) the redemption price of such Note at August 10, 2019 (such redemption price (expressed in percentage of principal amount) being set forth in the table under Section 5.7(d) (excluding accrued but unpaid interest, if any)), plus (ii) all required interest payments due on such Note to and including such date set forth in clause (i) (excluding accrued but unpaid interest, if any), computed upon the Redemption Date using a discount rate equal to the Applicable Treasury Rate at such Redemption Date plus 50 basis points; over
(b)    the outstanding principal amount of such Note;
in each case, as calculated by the Company or on behalf of the Company by such Person as the Company shall designate. The Trustee shall have no duty to calculate or verify the calculations of the Applicable Premium.
“ Applicable Treasury Rate ” means the weekly average for each Business Day during the most recent week that has ended at least two Business Days prior to the Redemption Date of the yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the Federal Reserve Statistical Release H.15 (or, if such statistical release is not so published or available, any publicly available source of similar market data selected by the Company in good faith)) most nearly equal to the period from the Redemption Date to August 10, 2019; provided , however , that if the period from the Redemption Date to August 10, 2019 is not equal to the constant maturity of a United States Treasury security for which a yield is given, the Applicable Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the yields of United States Treasury securities for which such yields are given, except that if the period from the Redemption Date to such applicable date is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used.
“ Asset Disposition ” means:
(a)    the voluntary sale, conveyance, transfer or other disposition, whether in a single transaction or a series of related transactions, of property or assets (including by way of a Sale and Leaseback Transaction) of the Company or any of the Restricted Subsidiaries (in each case other than Capital Stock of the Company) (each referred to in this definition as a “ disposition ”); or
(b)    the issuance or sale of Capital Stock of any Restricted Subsidiary (other than Preferred Stock or Disqualified Stock of Restricted Subsidiaries issued in compliance with Section 3.2 hereof or directors’ qualifying shares and shares issued to foreign nationals as required under applicable law), whether in a single transaction or a series of related transactions;
in each case, other than:
(1)    a disposition by the Company or a Restricted Subsidiary to the Company or a Restricted Subsidiary;
 
-3-

(2)    a disposition of cash, Cash Equivalents or Investment Grade Securities;
(3)    a disposition of inventory or other assets (including Settlement Assets) in the ordinary course of business or consistent with past practice or held for sale or no longer used in the ordinary course of business, including any disposition of disposed, abandoned or discontinued operations;
(4)    a disposition of obsolete, worn out, uneconomic, damaged or surplus property, equipment or other assets or property, equipment or other assets that are no longer economically practical or commercially desirable to maintain or used or useful in the business of the Company and the Restricted Subsidiaries whether now or hereafter owned or leased or acquired in connection with an acquisition or used or useful in the conduct of the business of the Company and the Restricted Subsidiaries (including by ceasing to enforce, allowing the lapse, abandonment or invalidation of or discontinuing the use or maintenance of or putting into the public domain any intellectual property that is, in the reasonable judgment of the Company or the Restricted Subsidiaries, no longer used or useful, or economically practicable to maintain, or in respect of which the Company or any Restricted Subsidiary determines in its reasonable judgment that such action or inaction is desirable);
(5)    transactions permitted under Section 4.1 hereof or a transaction that constitutes a Change of Control;
(6)    an issuance of Capital Stock by a Restricted Subsidiary to the Company or to another Restricted Subsidiary or as part of or pursuant to an equity incentive or compensation plan approved by the Board of Directors of the Company;
(7)    any dispositions of Capital Stock, properties or assets in a single transaction or series of related transactions with a fair market value (as determined in good faith by the Company) of less than $20.0 million;
(8)    any Restricted Payment that is permitted to be made, and is made, under Section 3.3 and the making of any Permitted Payment or Permitted Investment or, solely for purposes of Section 3.5(a)(3) asset sales, the proceeds of which are used to make such Restricted Payments or Permitted Investments;
(9)    dispositions in connection with Permitted Liens;
(10)    dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or consistent with past practice or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(11)    conveyances, sales, transfers, licenses or sublicenses or other dispositions of intellectual property, software or other general intangibles and
 
-4-

licenses, sub-licenses, leases or subleases of other property, in each case, in the ordinary course of business or consistent with past practice or pursuant to a research or development agreement in which the counterparty to such agreement receives a license in the intellectual property or software that result from such agreement;
(12)    the lease, assignment, license, sublease or sublicense of any real or personal property in the ordinary course of business;
(13)    foreclosure, condemnation or any similar action with respect to any property or other assets;
(14)    the sale or discount (with or without recourse, and on customary or commercially reasonable terms and for credit management purposes) of accounts receivable or notes receivable arising in the ordinary course of business or consistent with past practice, or the conversion or exchange of accounts receivable for notes receivable;
(15)    any issuance or sale of Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary or any other disposition of Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary or an Immaterial Subsidiary;
(16)    any disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or to a Person (other than the Company or a Restricted Subsidiary) from whom such Restricted Subsidiary was acquired, or from whom such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition;
(17)    (i) dispositions of property to the extent that such property is exchanged for credit against the purchase price of similar replacement property that is promptly purchased, (ii) dispositions of property to the extent that the proceeds of such disposition are promptly applied to the purchase price of such replacement property (which replacement property is actually promptly purchased), and (iii) to the extent allowable under Section 1031 of the Code, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(18)    any disposition of Securitization Assets or Receivables Assets, or participations therein, in connection with any Qualified Securitization Financing or Receivables Facility, or the disposition of an account receivable in connection with the collection or compromise thereof in the ordinary course of business or consistent with past practice;
(19)    any financing transaction with respect to property constructed, acquired, replaced, repaired or improved (including any reconstruction,
 
-5-

refurbishment, renovation and/or development of real property) by the Company or any Restricted Subsidiary after the Issue Date, including Sale and Leaseback Transactions and asset securitizations, permitted by this Indenture;
(20)    dispositions of Investments in joint ventures or similar entities to the extent required by, or made pursuant to customary buy/sell arrangements between, the parties to such joint venture set forth in joint venture arrangements and similar binding arrangements
(21)    any surrender or waiver of contractual rights or the settlement, release, surrender or waiver of contractual, tort, litigation or other claims of any kind; and
(22)    the unwinding of any Cash Management Services or Hedging Obligations.
In the event that a transaction (or any portion thereof) meets the criteria of a permitted Asset Disposition and would also be a Permitted Investment or an Investment permitted under Section 3.3 hereof, the Company, in its sole discretion, will be entitled to divide and classify such transaction (or a portion thereof) as an Asset Disposition and/or one or more of the types of Permitted Investments or Investments permitted under Section 3.3 hereof.
“ Associate ” means (i) any Person engaged in a Similar Business of which the Company or the Restricted Subsidiaries are the legal and beneficial owners of between 20% and 50% of all outstanding Voting Stock and (ii) any joint venture entered into by the Company or any Restricted Subsidiary.
“ Bankruptcy Law ” means Title 11 of the United States Code or similar federal, state or foreign law for the relief of debtors.
“ Board of Directors ” means (i) with respect to the Company or any corporation, the board of directors or managers, as applicable, of the corporation, or any duly authorized committee thereof; (ii) with respect to any partnership, the board of directors or other governing body of the general partner, as applicable, of the partnership or any duly authorized committee thereof; (iii) with respect to a limited liability company, the managing member or members or any duly authorized controlling committee thereof; and (iv) with respect to any other Person, the board or any duly authorized committee of such Person serving a similar function. Whenever any provision requires any action or determination to be made by, or any approval of, a Board of Directors, such action, determination or approval shall be deemed to have been taken or made if approved by a majority of the directors on any such Board of Directors (whether or not such action or approval is taken as part of a formal board meeting or as a formal board approval). Unless the context requires otherwise, Board of Directors means the Board of Directors of the Company.
 
-6-

“ Business Day ” means each day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York, London, Luxembourg or in the jurisdiction of the place of payment are authorized or required by law to close.
“ Business Successor ” means (i) any former Subsidiary of the Company and (ii) any Person that, after the Issue Date, has acquired, merged or consolidated with a Subsidiary of the Company (that results in such Subsidiary ceasing to be a Subsidiary of the Company), or acquired (in one transaction or a series of transactions) all or substantially all of the property and assets or business of a Subsidiary or assets constituting a business unit, line of business or division of a Subsidiary of the Company.
“ Capital Stock ” of any Person means any and all shares of, rights to purchase or acquire, warrants, options or depositary receipts for, or other equivalents of or partnership or other interests in (however designated), equity of such Person, including any Preferred Stock, but excluding any debt securities convertible into, or exchangeable for, such equity.
“ Capitalized Lease Obligations ” means an obligation that is required to be classified and accounted for as a capitalized lease for financial reporting purposes on the basis of IFRS. The amount of Indebtedness represented by such obligation will be the capitalized amount of such obligation at the time any determination thereof is to be made as determined on the basis of IFRS, and the Stated Maturity thereof will be the date of the last payment of rent or any other amount due under such lease prior to the first date such lease may be terminated without penalty.
“ Cash Equivalents ” means:
(1)    (a) Dollars, Canadian dollars, Swiss Francs, United Kingdom pounds, Euro or any national currency of any member state of the European Union; or (b) any other foreign currency held by the Company and its Restricted Subsidiaries in the ordinary course of business;
(2)    securities issued or directly and fully Guaranteed or insured by the United States of America, Canadian, Swiss or United Kingdom governments, a member state of the European Union on the Issue Date or, in each case, any agency or instrumentality thereof ( provided that the full faith and credit of such country or such member state is pledged in support thereof), with maturities of 24 months or less from the date of acquisition;
(3)    certificates of deposit, time deposits, eurodollar time deposits, overnight bank deposits or bankers’ acceptances having maturities of not more than one year from the date of acquisition thereof issued by any lender or by any bank or trust company (a) whose commercial paper is rated at least “A-2” or the equivalent thereof by S&P or at least “P-2” or the equivalent thereof by Moody’s (or if at the time neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization) or (b) (in the event that the bank or trust company does not have commercial paper which is rated) having combined capital and surplus in excess of $100.0 million;
 
-7-

(4)    repurchase obligations for underlying securities of the types described in clauses (2), (3) and (7) entered into with any bank meeting the qualifications specified in clause (3) above;
(5)    securities with maturities of one year or less from the date of acquisition backed by standby letters of credit issued by any Person referenced in clause (3) above;
(6)    commercial paper and variable or fixed rate notes issued by a bank meeting the qualifications specified in clause (3) above (or by the parent company thereof) maturing within one year after the date of creation thereof or any commercial paper and variable or fixed rate note issued by, or guaranteed by a corporation rated at least (A) “A-1” or higher by S&P or “P-1” or higher by Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the Company) maturing within two years after the date of creation thereof or (B) “A-2” or higher by S&P or “P-2” or higher by Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the Company) maturing within one year after the date of creation thereof, or, in each case, if no rating is available in respect of the commercial paper or variable or fixed rate notes, the issuer of which has an equivalent rating in respect of its long-term debt;
(7)    marketable short-term money market and similar securities having a rating of at least “P-2” or “A-2” from either S&P or Moody’s, respectively (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the Company), and in each case maturing within 24 months after the date of creation or acquisition;
(8)    readily marketable direct obligations issued by any state, province, commonwealth or territory of the United States of America, Canada, Switzerland, the United Kingdom, any member state of the European Union on the Issue Date or any political subdivision, taxing authority or public instrumentality thereof, in each case, having one of the two highest Ratings Categories obtainable from either Moody’s or S&P (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the Company) with maturities of not more than two years from the date of creation or acquisition;
(9)    readily marketable direct obligations issued by any foreign government or any political subdivision, taxing authority or public instrumentality thereof, in each case, having one of the two highest Ratings Categories obtainable by S&P or Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the Company) with maturities of not more than two years from the date of acquisition;
 
-8-

(10)    Investments with average maturities of 12 months or less from the date of acquisition in money market funds rated within the three highest Ratings Categories by S&P or Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the Company);
(11)    with respect to each of the Company and its Subsidiaries: (i) obligations of the national government of the country in which the Company or such Subsidiary, as applicable, maintains its chief executive office and principal place of business provided such country is a member of the Organization for Economic Cooperation and Development, in each case maturing within one year after the date of investment therein, (ii) certificates of deposit of, bankers acceptance of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in which the Company or such Subsidiary, as applicable, maintains its chief executive office and principal place of business provided such country is a member of the Organization for Economic Cooperation and Development, and whose short-term commercial paper rating from S&P is at least “A-2” or the equivalent thereof or from Moody’s is at least “P-2” or the equivalent thereof (any such bank being an “ Approved Foreign Bank ”), and in each case with maturities of not more than 270 days from the date of acquisition and (iii) the equivalent of demand deposit accounts which are maintained with an Approved Foreign Bank;
(12)    Indebtedness or Preferred Stock issued by Persons with a rating of “BBB-” or higher from S&P or “Baa3” or higher from Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the Company) with maturities of 24 months or less from the date of acquisition;
(13)    bills of exchange issued in the United States of America, Canada, Switzerland, the United Kingdom, a member state of the European Union on the Issue Date or Japan eligible for rediscount at the relevant central bank and accepted by a bank (or any dematerialized equivalent);
(14)    investments in money market funds access to which is provided as part of “sweep” accounts maintained with any bank meeting the qualifications specified in clause (3) above;
(15)    investments in industrial development revenue bonds that (i) “re-set” interest rates not less frequently than quarterly, (ii) are entitled to the benefit of a remarketing arrangement with an established broker dealer and (iii) are supported by a direct pay letter of credit covering principal and accrued interest that is issued by any bank meeting the qualifications specified in clause (3) above;
(16)    investments in pooled funds or investment accounts consisting of investments in the nature described in the foregoing clause (15);
 
-9-

(17)    Cash Equivalents or instruments similar to those referred to in clauses (1) through (16) above denominated in Dollars or any Alternative Currency;
(18)    interests in any investment company, money market, enhanced high yield fund or other investment fund which invests 90% or more of its assets in instruments of the types specified in clauses (1) through (17) above; and
(19)    for purposes of clause (2) of the definition of “Asset Disposition,” any marketable securities portfolio owned by the Company and its Subsidiaries on the Issue Date.
In the case of Investments made in a country outside the United States of America, Cash Equivalents shall also include (i) investments of the type and maturity described in clauses (1) through (19) above of foreign obligors, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies and (ii) other short-term investments utilized in accordance with normal investment practices for cash management in investments analogous to the foregoing investments in clauses (1) through (19) and in this paragraph.
Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clause (1) above, provided that such amounts are converted into any currency listed in clause (1) as promptly as practicable and in any event within 10 Business Days following the receipt of such amounts. For the avoidance of doubt, any items identified as Cash Equivalents under this definition (other than clause (19) above) will be deemed to be Cash Equivalents for all purposes under this Indenture regardless of the treatment of such items under IFRS.
“ Cash Management Services ” means any of the following to the extent not constituting a line of credit (other than an overnight draft facility that is not in default): automated clearing house transactions, treasury, depository, credit or debit card, purchasing card, stored value card, electronic fund transfer services and/or cash management services, including, without limitation, controlled disbursement services, overdraft facilities, foreign exchange facilities, deposit and other accounts and merchant services or other cash management arrangements in the ordinary course of business or consistent with past practice.
“ Change of Control ” means:
(1)    the Company becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) any “person” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the Issue Date), other than one or more Permitted Holders, is or becomes the “beneficial owner” (as defined in Rule 13d-3 and 13d-5 of the Exchange Act as in effect on the Issue Date) of more than 50% of the total voting power of the Voting Stock of the Company; provided that (x) so long as the Company is a Subsidiary of any Parent Entity, no Person shall be deemed to be or become a beneficial owner of more than 50% of the
 
-10-

total voting power of the Voting Stock of the Company unless such Person shall be or become a beneficial owner of more than 50% of the total voting power of the Voting Stock of such Parent Entity (other than a Parent Entity that is a Subsidiary of another Parent) and (y) any Voting Stock of which any Permitted Holder is the beneficial owner shall not in any case be included in any Voting Stock of which any such Person is the beneficial owner; or
(2)    the sale or transfer, in one or a series of related transactions, of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, to a Person (other than the Company or any of its Restricted Subsidiaries or one or more Permitted Holders) and any “person” (as defined in clause (1) above), other than one or more Permitted Holders, is or becomes the “beneficial owner” (as so defined) of more than 50% of the total voting power of the Voting Stock of the transferee Person in such sale or transfer of assets, as the case may be; provided that (x) so long as the Company is a Subsidiary of any Parent Entity, no Person shall be deemed to be or become a beneficial owner of more than 50% of the total voting power of the Voting Stock of the Company unless such Person shall be or become a beneficial owner of more than 50% of the total voting power of the Voting Stock of such Parent Entity (other than a Parent Entity that is a Subsidiary of another Parent) and (y) any Voting Stock of which any Permitted Holder is the beneficial owner shall not in any case be included in any Voting Stock of which any such Person is the beneficial owner.
Notwithstanding the preceding or any provision of Section 13d-3 of the Exchange Act, (i) a Person or group shall not be deemed to beneficially own Voting Stock subject to a stock or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of the Voting Stock in connection with the transactions contemplated by such agreement, (ii) if any group includes one or more Permitted Holders, the issued and outstanding Voting Stock of the Company owned, directly or indirectly, by any Permitted Holders that are part of such group shall not be treated as being beneficially owned by such group or any other member of such group for purposes of determining whether a Change of Control has occurred, (iii) a Person or group will not be deemed to beneficially own the Voting Stock of another Person as a result of its ownership of Voting Stock or other securities of such other Person’s parent entity (or related contractual rights) unless it owns 50% or more of the total voting power of the Voting Stock entitled to vote for the election of directors of such parent entity having a majority of the aggregate votes on the board of directors (or similar body) of such parent entity and (iv) the right to acquire Voting Stock (so long as such Person does not have the right to direct the voting of the Voting Stock subject to such right) or any veto power in connection with the acquisition or disposition of Voting Stock will not cause a party to be a beneficial owner.
“ Change of Control Repurchase Event ” means the occurrence of both a Change of Control and a Ratings Event.
“ Code ” means the United States Internal Revenue Code of 1986, as amended.
 
-11-

“ Collateral ” means all of the assets and properties subject or purported to be subject to Liens in favor of the Collateral Agent for the benefit of the Trustee and the Holders, including the First Priority Liens in (i) 100% of the Capital Stock of the Issuer and of each of the Guarantors and Atento Argentina S.A., (ii) the bank accounts of Atento Teleservicios Espana S.A.U. that were subject to Security (as defined in the Credit Agreement) under the Existing Security Documents (as defined in the Credit Agreement) and (iii) the bank accounts in Mexico in respect of certain Guarantors organized under the laws of Mexico that were subject to Security (as defined in the Credit Agreement) under the Existing Security Documents (as defined in the Credit Agreement), in each case subject to Section 12.2 hereof.
“ Collateral Agent ” means Wilmington Trust (London) Limited, as security agent under the Intercreditor Agreement, in its capacity as “Collateral Agent” under this Indenture and under the Collateral Documents or any successor or assign thereto in such capacity.
“ Collateral Documents ” means, collectively, any security agreements, hypothecs, intellectual property security agreements, mortgages, collateral assignments, security agreement supplements, pledge agreements, bonds or any similar agreements, guarantees and each of the other agreements, instruments or documents that creates or purports to create a Lien or guarantee in favor of the Collateral Agent for its benefit and the benefit of the Trustee and the Holders of the Notes, in all or any portion of the Collateral, as amended, extended, renewed, restated, refunded, replaced, refinanced, supplemented, modified or otherwise changed from time to time.
“ Company ” means Atento Luxco 1 S.A. and not any of its Subsidiaries.
“ Consolidated Depreciation and Amortization Expense ” means, with respect to any Person for any period, the total amount of depreciation and amortization expense, including amortization or write-off of (i) intangibles and non-cash organization costs, (ii) deferred financing fees or costs and (iii) capitalized expenditures, customer acquisition costs and incentive payments, conversion costs and contract acquisition costs, the amortization of original issue discount resulting from the issuance of Indebtedness at less than par and amortization of favorable or unfavorable lease assets or liabilities, of such Person and the Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with IFRS and any write down of assets or asset value carried on the balance sheet.
“ Consolidated EBITDA ” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period:
(1)    increased (without duplication) by:
(a)    provision for taxes based on income, profits, revenue or capital, including, without limitation, federal, state, provincial, territorial, local, foreign, unitary, excise, property, franchise and similar taxes and foreign withholding and similar taxes of such Person paid or accrued during such period, including any
 
-12-

penalties and interest relating to any tax examinations (including, without limitation, any additions to such taxes, and any penalties and interest with respect thereto), deducted (and not added back) in computing Consolidated Net Income; plus
(b)    Fixed Charges of such Person for such period (including (x) net losses on any Hedging Obligations or other derivative instruments entered into for the purpose of hedging interest rate, currency or commodities risk, (y) bank fees and (z) costs of surety bonds in connection with financing activities, plus amounts excluded from the definition of “Consolidated Interest Expense” pursuant to clauses (t) through (z) in clause (1) thereof), to the extent the same were deducted (and not added back) in calculating such Consolidated Net Income; plus
(c)    Consolidated Depreciation and Amortization Expense of such Person for such period to the extent the same were deducted (and not added back) in computing Consolidated Net Income; plus
(d)    any (x) Transaction Expenses and (y) any fees, costs, expenses or charges (other than Consolidated Depreciation and Amortization Expense) related to any actual, proposed or contemplated Equity Offering (including any expense relating to enhanced accounting functions or other transactions costs associated with becoming a public company), Permitted Investment, acquisition, disposition, recapitalization or the incurrence of Indebtedness permitted to be Incurred by this Indenture (including a refinancing thereof) (whether or not successful), including (i) such fees, expenses or charges (including rating agency fees and related expenses) related to the offering of the Notes, the Credit Agreement, any other Credit Facilities and any Securitization Fees, and (ii) any amendment, waiver or other modification of the Notes, the Credit Agreement, Receivables Facilities, Securitization Facilities, any other Credit Facilities, any Securitization Fees, any other Indebtedness permitted to be Incurred under this Indenture or any Equity Offering, in each case, whether or not consummated, to the extent the same were deducted (and not added back) in computing Consolidated Net Income; plus
(e)    (i) the amount of any restructuring charge, accrual or reserve (and adjustments to existing reserves), integration cost, or other business optimization expense or cost (including charges directly related to the implementation of cost-savings initiatives) that is deducted (and not added back) in such period in computing Consolidated Net Income, including any one-time costs incurred in connection with acquisitions or divestitures after the Issue Date, including, without limitation, and those related to any severance, retention, signing bonuses, relocation, recruiting and other employee related costs, internal costs in respect of strategic initiatives and curtailments or modifications to pension and post-retirement employment benefit plans (including any settlement of pension liabilities), systems development and establishment costs, future lease commitments and costs related to the opening and closure and/or consolidation of facilities, and to existing lines of business and professional and consulting fees incurred with any of the foregoing and (ii) fees, costs and expenses associated with acquisition related litigation and settlements thereof; plus
 
-13-

(f)    any other non-cash charges, write-downs, expenses, losses or items reducing Consolidated Net Income for such period including any impairment charges or the impact of purchase accounting (provided that if any such non-cash charge, write-down or item to the extent it represents an accrual or reserve for a cash expenditure for a future period then the cash payment in such future period shall be subtracted from Consolidated EBITDA when paid) or other items classified by the Company as special items less other non-cash items of income increasing Consolidated Net Income (excluding any such non-cash item of income to the extent it represents a receipt of cash in any future period); plus
(g)    the amount of board of director fees, management, monitoring, advisory, consulting, refinancing, subsequent transaction, advisory and exit fees (including termination fees) and related indemnities and expenses paid or accrued in such period to any member of the Board of Directors of the Company, any Permitted Holder or any Affiliate of a Permitted Holder to the extent permitted under Section 3.8 hereof; plus
(h)    the amount of “run rate” cost savings (including cost savings with respect to salary, benefit and other direct savings resulting from workforce reductions and facility, benefit and insurance savings), operating expense reductions, other operating improvements and initiatives and synergies projected by the Company in good faith to be reasonably anticipated to be realizable or a plan for realization shall have been established within 24 months of the date thereof (which will be added to Consolidated EBITDA as so projected until fully realized and calculated on a pro forma basis as though such cost savings (including cost savings with respect to salary, benefit and other direct savings resulting from workforce reductions and facility, benefit and insurance savings), operating expense reductions, other operating improvements and initiatives and synergies had been realized on the first day of such period, net of the amount of actual benefits realized prior to or during such period from such actions; provided that all steps have been taken, or are reasonably expected to be taken, in good faith, for realizing such cost savings within 18 months after the date of determination and such cost savings are reasonably identifiable and factually supportable (in the good faith determination of the Company); plus
(i)    the amount of loss or discount on sale of Securitization Assets, Receivables Assets and related assets in connection with a Qualified Securitization Financing or Receivables Facility; plus
(j)    any costs or expense incurred by the Company or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, any severance agreement or any stock subscription or shareholder agreement, to the extent that such cost or expenses are funded with cash proceeds contributed to the capital of
 
-14-

the Company or Net Cash Proceeds of an issuance of Capital Stock (other than Disqualified Stock) of the Company solely to the extent that such Net Cash Proceeds are excluded from the calculation set forth in Section 3.3(a)(iii) hereof; plus
(k)    cash receipts (or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated EBITDA or Consolidated Net Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to clause (2) below for any previous period and not added back; plus
(l)    any net loss included in the Consolidated Net Income attributable to non-controlling interests pursuant to the application of Accounting Standards Codification Topic 810-10-45; plus
(m)    realized foreign exchange losses resulting from the impact of foreign currency changes on the valuation of assets or liabilities on the balance sheet of the Company and its Restricted Subsidiaries; plus
(n)    net realized losses from Hedging Obligations or embedded derivatives that require similar accounting treatment and the application of Accounting Standard Codification Topic 815 (“ Topic 815 ”) and related pronouncements; plus
(o)    the amount of any minority interest expense consisting of Subsidiary income attributable to minority equity interests of third parties in any non-wholly owned Subsidiary; plus
(p)    with respect to any joint venture, an amount equal to the proportion of those items described in clauses (a) and (c) above relating to such joint venture corresponding to the Company’s and its Restricted Subsidiaries’ proportionate share of such joint venture’s Consolidated Net Income (determined as if such joint venture were a Restricted Subsidiary) to the extent the same was deducted (and not added back) in calculating Consolidated Net Income; plus
(q)    earn-out and contingent consideration obligations (including to the extent accounted for as bonuses or otherwise) and adjustments thereof and purchase price adjustments; plus
(r)    any net pension or other post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial losses, including amortization of such amounts arising in prior periods, amortization of the unrecognized net obligation (and loss or cost) existing at the date of the initial application of Accounting Standards Codification Topic 715, and any other items of a similar nature; plus
(s)    the amount of expenses relating to payments made to option holders of the Company or any Parent Entity in connection with, or as a result of,
 
-15-

any distribution being made to equityholders of such Person or its Parent Entities, which payments are being made to compensate such option holders as though they were equityholders at the time of, and entitled to share in, such distribution, in each case to the extent permitted under this Indenture; plus
(t)    the amount of any losses, charges, expenses, costs or other payments (including all fees, expenses or charges related thereto) (i) in respect of facilities no longer used or useful in the conduct of the business of the Company or its Restricted Subsidiaries, abandoned, closed, disposed or discontinued operations and any losses on disposal of abandoned, closed or discontinued operations and (ii) attributable to business dispositions or asset dispositions (other than in the ordinary course of business) as determined in good faith by the Company; plus
(u)    any non-cash losses realized in such period in connection with adjustments to any employee benefit plan due to changes in actuarial assumptions, valuation or studies; plus
(v)    costs related to the implementation of operational and reporting systems and technology initiatives; plus
(w)    adjustments of the nature used in connection with the calculation of “Adjusted EBITDA” as set forth in “Summary—Summary Historical Financial and Operating Data” contained in the Offering Circular applied in good faith by the Company to the extent such adjustments continue to be applicable during the period in which Consolidated EBITDA is being calculated; and
(2)    decreased (without duplication) by non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period.
“ Consolidated First Lien Secured Leverage Ratio ” means, as of any date of determination, the ratio of (x) the sum of (a) Consolidated Total Indebtedness secured by a Lien (other than Junior Priority Obligations or any other Lien that is junior to the Lien securing the Notes) as of such date and (b) the Reserved Indebtedness Amount as of such date to (y) LTM EBITDA, in each case with such pro forma adjustments as are consistent with the pro forma adjustments set forth in the definition of “Fixed Charge Coverage Ratio”; provided that, solely for the purpose of Consolidated First Lien Secured Leverage Ratio in Section 3.2(b)(1), all Indebtedness incurred in reliance on such clause shall be deemed to be Consolidated Total Indebtedness secured by a Lien (other than a Junior Priority Obligation or any Lien that is junior to the Lien securing the Notes) as of such date and shall be included in clause (a) above.
 
-16-

“ Consolidated Interest Expense ” means, with respect to any Person for any period, without duplication, the sum of:
(1)    consolidated interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (a) amortization of original issue discount or premium resulting from the issuance of Indebtedness at less than par, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances, (c) non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in the mark to market valuation of any Hedging Obligations or other derivative instruments pursuant to IFRS), (d) the interest component of Capitalized Lease Obligations, and (e) net payments, if any, pursuant to interest rate Hedging Obligations with respect to Indebtedness, and excluding (s) Securitization Fees, (t) penalties and interest relating to taxes, (u) any additional cash interest owing pursuant to any registration rights agreement, (v) accretion or accrual of discounted liabilities other than Indebtedness, (w) any expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or purchase accounting in connection with the Transactions or any acquisition, (x) amortization or write-off of deferred financing fees, debt issuance costs, debt discount or premium, terminated hedging obligations and other commissions, financing fees and expenses and original issue discount with respect to Indebtedness borrowed under the Credit Agreement and, adjusted, to the extent included, to exclude any refunds or similar credits received in connection with the purchasing or procurement of goods or services under any purchasing card or similar program, (y) any expensing of bridge, commitment and other financing fees and (z) interest with respect to Indebtedness of any parent of such Person appearing upon the balance sheet of such Person solely by reason of push-down accounting under IFRS); plus
(2)    consolidated capitalized interest of such Person and the Restricted Subsidiaries for such period, whether paid or accrued; less
(3)    interest income for such period.
For purposes of this definition, interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with IFRS.
“ Consolidated Net Income ” means, with respect to any Person for any period, the net income (loss) of such Person and the Restricted Subsidiaries for such period determined on a consolidated basis on the basis of IFRS before any reduction in respect of Preferred Stock dividends; provided , however , that there will not be included in such Consolidated Net Income:
(1)    any net income (loss) of any Person if such Person is not a Restricted Subsidiary (including any net income (loss) from investments recorded in such Person under the equity method of accounting), except that the Company’s equity in the net income of any such Person for such period will be included in such Consolidated Net Income up to the aggregate amount of cash or Cash Equivalents actually distributed or that (as reasonably determined by an Officer of the Company) could have been distributed by such Person during such period to the Company or a Restricted Subsidiary
 
-17-

as a dividend or other distribution or return on investment (subject, in the case of a dividend or other distribution or return on investment to a Restricted Subsidiary, to the limitations contained in clause (2) below);
(2)    solely for the purpose of determining the amount available for Restricted Payments under Section 3.3(a)(iii)(A) hereof, any net income (loss) of any Restricted Subsidiary (other than the Company and the Guarantors) if such Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making of distributions by such Restricted Subsidiary, directly or indirectly, to the Company or a Guarantor by operation of the terms of such Restricted Subsidiary’s articles, charter or any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable to such Restricted Subsidiary or its shareholders (other than (a) restrictions that have been waived or otherwise released, (b) restrictions pursuant to the Credit Agreement, the Notes, or this Indenture and (c) restrictions specified in Section 3.4(b)(14)(i) hereof), except that the Company’s equity in the net income of any such Restricted Subsidiary for such period will be included in such Consolidated Net Income up to the aggregate amount of cash or Cash Equivalents actually distributed or that could have been distributed by such Restricted Subsidiary during such period to the Company or another Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend to another Restricted Subsidiary, to the limitation contained in this clause);
(3)    any gain (or loss), together with any related provisions for taxes on any such gain (or the tax effect of any such loss), realized upon the sale or other disposition of any asset (including pursuant to any Sale and Leaseback Transaction) or disposed or discontinued operations of the Company or any Restricted Subsidiaries which is not sold or otherwise disposed of in the ordinary course of business (as determined in good faith by the Company);
(4)    any extraordinary, exceptional, unusual or nonrecurring loss, charge or expense (including Transaction Expenses) or any charges, expenses or reserves in respect of any restructuring, redundancy or severance expense or relocation costs, one-time compensation charges, integration and facilities’ opening costs and other business optimization expenses and operating improvements (including related to new product introductions), systems development and establishment costs, accruals or reserves (including restructuring and integration costs related to acquisitions after the Issue Date and adjustments to existing reserves), whether or not classified as restructuring expense on the consolidated financial statements, signing costs, retention or completion bonuses, transition costs, costs related to closure/consolidation of facilities, internal costs in respect of strategic initiatives and curtailments or modifications to pension and post-retirement employee benefit plans (including any settlement of pension liabilities), contract terminations and professional and consulting fees incurred with any of the foregoing;
(5)    the cumulative effect of a change in law, regulation or accounting principles;
 
-18-

(6)    any (i) non-cash compensation charge or expense arising from any grant of stock, stock options or other equity based awards and any non-cash deemed finance charges in respect of any pension liabilities or other provisions or on the re-valuation of any benefit plan obligation and (ii) income (loss) attributable to deferred compensation plans or trusts;
(7)    all deferred financing costs written off and premiums paid or other expenses incurred directly in connection with any early extinguishment of Indebtedness and any net gain (loss) from any write-off or forgiveness of Indebtedness;
(8)    any unrealized gains or losses in respect of any Hedging Obligations or any ineffectiveness recognized in earnings related to qualifying hedge transactions or the fair value of changes therein recognized in earnings for derivatives that do not qualify as hedge transactions, in each case, in respect of any Hedging Obligations;
(9)    any fees and expenses (including any transaction or retention bonus or similar payment) incurred during such period, or any amortization thereof for such period, in connection with any acquisition, Investment, asset disposition, issuance or repayment of Indebtedness, issuance of Capital Stock, refinancing transaction or amendment or modification of any debt instrument (in each case, including any such transaction consummated prior to the Issue Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction, in each case whether or not successful (including, for avoidance of doubt, the effects of expensing all transaction-related expenses in accordance with Financial Accounting Standards Codification No. 805 and gains or losses associated with Financial Accounting Standards Codification No. 460);
(10)    any unrealized foreign currency translation increases or decreases or transaction gains or losses in respect of Indebtedness of any Person denominated in a currency other than the functional currency of such Person, including those related to currency remeasurements of Indebtedness (including any net loss or gain resulting from Hedging Obligations for currency exchange risk) or other obligations of the Company or any Restricted Subsidiary owing to the Company or any Restricted Subsidiary and any unrealized foreign exchange gains or losses relating to translation of assets and liabilities denominated in foreign currencies;
(11)    any unrealized or realized gain or loss due solely to fluctuations in currency values and the related tax effects, determined in accordance with IFRS;
(12)    any recapitalization accounting or purchase accounting effects, including, but not limited to, adjustments to inventory, property and equipment, software and other intangible assets and deferred revenue in component amounts required or permitted by IFRS and related authoritative pronouncements (including the effects of such adjustments pushed down to the Company and the Restricted Subsidiaries), as a result of any consummated acquisition (including the Transaction), or the amortization or write-off of any amounts thereof (including any write-off of in process research and development);
 
-19-

(13)    any impairment charge, write-off or write-down, including impairment charges, write-offs or write-downs related to intangible assets, long-lived assets, goodwill, investments in debt or equity securities (including any losses with respect to the foregoing in bankruptcy, insolvency or similar proceedings) and the amortization of intangibles arising pursuant to IFRS;
(14)    any effect of income (loss) from the early extinguishment or cancellation of Indebtedness or any Hedging Obligations or other derivative instruments;
(15)    accruals and reserves that are established or adjusted (including any adjustment of estimated payouts on existing earn-outs) that are so required to be established as a result of the Transactions in accordance with IFRS, or changes as a result of adoption or modification of accounting policies;
(16)    any net unrealized gains and losses resulting from Hedging Obligations or embedded derivatives that require similar accounting treatment and the application of IAS 32, IAS 39, IFRS 13 and related pronouncements or mark to market movement of other financial instruments;
(17)    any costs associated with the Transactions;
(18)    any non-cash expenses, accruals or reserves related to adjustments to historical tax exposures and any deferred tax expense associated with tax deductions or net operating losses arising as a result of the Transactions, or the release of any valuation allowances related to such item;
(19)    effects of adjustments to accruals and reserves during a period relating to any change in the methodology of calculating reserves for returns, rebates and other chargebacks (including government program rebates); and
(20)    any net gain (or loss) from disposed, abandoned or discontinued operations and any net gain (or loss) on disposal of disposed, discontinued or abandoned operations.
In addition, to the extent not already included in the Consolidated Net Income of such Person and the Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall include (i) any expenses and charges that are reimbursed by indemnification or other reimbursement provisions in connection with any investment or any sale, conveyance, transfer or other disposition of assets permitted hereunder, or, so long as the Company has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed and only to the extent that such amount is (A) not denied by the applicable payor in writing within 180 days and (B) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days) and (ii) to the extent covered by insurance (including business interruption insurance) and actually reimbursed, or, so long as the Company has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (A) not denied by the applicable carrier in writing within
 
-20-

180 days and (B) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days), expenses with respect to liability or casualty events or business interruption.
“ Consolidated Total Indebtedness ” means, as of any date of determination, (a) the aggregate principal amount of Indebtedness for borrowed money (excluding Indebtedness with respect to Cash Management Services, intercompany Indebtedness, Subordinated Indebtedness and Indebtedness outstanding under the Credit Agreement that was used to finance working capital needs of the Company and its Restricted Subsidiaries (as determined by the Company in its reasonable discretion) as of such date), plus (b) the aggregate principal amount of Capitalized Lease Obligations, Purchase Money Obligations and unreimbursed drawings under letters of credit of the Company and its Restricted Subsidiaries outstanding on such date, minus (c) the aggregate amount of cash and Cash Equivalents included on the consolidated balance sheet of the Company and its Restricted Subsidiaries as of the end of the most recent fiscal period for which consolidated financial statements of the Company are available (which may be internal consolidated financial statements) ( provided that the cash proceeds of any proposed Incurrence of Indebtedness shall not be included in this clause (c) for purposes of calculating the Consolidated Total Leverage Ratio or Consolidated First Lien Secured Leverage Ratio, as applicable), with such pro forma adjustments as are consistent with the pro forma adjustments set forth in the definition of “Fixed Charge Coverage Ratio.” For the avoidance of doubt, Consolidated Total Indebtedness shall exclude Indebtedness in respect of any Receivables Facility or Securitization Facility.
“ Consolidated Total Leverage Ratio ” means, as of any date of determination, the ratio of (x) the sum of (a) Consolidated Total Indebtedness as of such date and (b) the Reserved Indebtedness Amount as of such date to (y) LTM EBITDA with such pro forma adjustments as are consistent with the pro forma adjustments set forth in the definition of “Fixed Charge Coverage Ratio.”
“ Contingent Obligations ” means, with respect to any Person, any obligation of such Person guaranteeing in any manner, whether directly or indirectly, any operating lease, dividend or other obligation that does not constitute Indebtedness (“ primary obligations ”) of any other Person (the “ primary obligor ”), including any obligation of such Person, whether or not contingent:
(1)    to purchase any such primary obligation or any property constituting direct or indirect security therefor;
(2)    to advance or supply funds:
(a)    for the purchase or payment of any such primary obligation; or
(b)    to maintain the working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; or
 
-21-

(3)    to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.
“ Controlled Investment Affiliate ” means, as to any Person, any other Person, which directly or indirectly is in control of, is controlled by, or is under common control with such Person and is organized by such Person (or any Person controlling such Person) primarily for making direct or indirect equity or debt investments in the Company and/or other companies.
“ Credit Agreement ” means the Credit Agreement to be entered into by and among the Company, the other borrowers party thereto, the guarantors from time to time party thereto, BBVA Bancomer, S.A., Institucion de Banca Múltiple, Grupo Financiero BBVA Bancomer, as administrative agent for the MXN/USD tranche, and Banco Bilbao Vizcaya Argentaria S.A., as administrative agent for the Euro tranche, and each lender from time to time party thereto, together with the related documents thereto (including the revolving loans thereunder, any letters of credit and reimbursement obligations related thereto, any Guarantees and security documents), as amended, extended, renewed, restated, refunded, replaced, refinanced, supplemented, modified or otherwise changed (in whole or in part, and without limitation as to amount, terms, conditions, covenants and other provisions) from time to time, and any one or more agreements (and related documents) governing Indebtedness, including indentures, incurred to refinance, substitute, supplement, replace or add to (including increasing the amount available for borrowing or adding or removing any Person as a borrower, issuer or guarantor thereunder, in whole or in part), the borrowings and commitments then outstanding or permitted to be outstanding under such Credit Agreement or one or more successors to the Credit Agreement or one or more new credit agreements.
“ Credit Facility ” means, with respect to the Company or any of its Subsidiaries, one or more debt facilities, indentures or other arrangements (including the Credit Agreement or commercial paper facilities and overdraft facilities) with banks, other financial institutions or investors providing for revolving credit loans, term loans, notes, receivables financing (including through the sale of receivables to such institutions or to special purpose entities formed to borrow from such institutions against such receivables), letters of credit or other Indebtedness, in each case, as amended, restated, modified, renewed, refunded, replaced, restructured, refinanced, repaid, increased or extended in whole or in part from time to time (and whether in whole or in part and whether or not with the original administrative agent and lenders or another administrative agent or agents or other banks or institutions and whether provided under the original Credit Agreement or one or more other credit or other agreements, indentures, financing agreements or otherwise) and in each case including all agreements, instruments and documents executed and delivered pursuant to or in connection with the foregoing (including any notes and letters of credit issued pursuant thereto and any Guarantee and collateral agreement, patent and trademark security agreement, mortgages or letter of credit applications and other Guarantees, pledges, agreements, security agreements and collateral documents). Without limiting the generality of the foregoing, the term “Credit Facility” shall include any agreement or instrument (1) changing the
 
-22-

maturity of any Indebtedness Incurred thereunder or contemplated thereby, (2) adding Subsidiaries of the Company as additional borrowers or guarantors thereunder, (3) increasing the amount of Indebtedness Incurred thereunder or available to be borrowed thereunder or (4) otherwise altering the terms and conditions thereof.
“ Credit Facility Documents ” means the collective reference to any Credit Facility, any notes issued pursuant thereto and the guarantees thereof, and the collateral documents relating thereto, as amended, supplemented, restated, renewed, refunded, replaced, restructured, repaid, refinanced or otherwise modified, in whole or in part, from time to time.
“ Custodian ” means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.
“ Default ” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default; provided that any Default that results solely from the taking of an action that would have been permitted but for the continuation of a previous Default will be deemed to be cured if such previous Default is cured prior to becoming an Event of Default.
“ Definitive Notes ” means certificated Notes.
“ Depositary ” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.3 hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture.
“ Designated Non-Cash Consideration ” means the fair market value (as determined in good faith by the Company) of non-cash consideration received by the Company or any of the Restricted Subsidiaries in connection with an Asset Disposition that is so designated as Designated Non-Cash Consideration pursuant to an Officer’s Certificate delivered to the Trustee, setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent payment, redemption, retirement, sale or other disposition of such Designated Non-Cash Consideration. A particular item of Designated Non-Cash Consideration will no longer be considered to be outstanding when and to the extent it has been paid, redeemed or otherwise retired or sold or otherwise disposed of in compliance with Section 3.5 hereof.
“ Designated Preferred Stock ” means Preferred Stock of the Company or a Parent Entity (other than Disqualified Stock) that is issued for cash (other than to the Company or a Subsidiary of the Company or an employee stock ownership plan or trust established by the Company or any such Subsidiary for the benefit of their employees to the extent funded by the Company or such Subsidiary) and that is designated as “Designated Preferred Stock” pursuant to an Officer’s Certificate of the Company at or prior to the issuance thereof, the Net Cash Proceeds of which are excluded from the calculation set forth in Section 3.3(a)(iii)(B) hereof.
 
-23-

“ Disinterested Director ” means, with respect to any Affiliate Transaction, a member of the Board of Directors having no material direct or indirect financial interest in or with respect to such Affiliate Transaction. A member of the Board of Directors shall be deemed not to have such a financial interest by reason of such member’s holding Capital Stock of the Company or any options, warrants or other rights in respect of such Capital Stock.
“ Disqualified Stock ” means, with respect to any Person, any Capital Stock of such Person which by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable) or upon the happening of any event:
(1)    matures or is mandatorily redeemable for cash or in exchange for Indebtedness pursuant to a sinking fund obligation or otherwise; or
(2)    is or may become (in accordance with its terms) upon the occurrence of certain events or otherwise redeemable or repurchasable for cash or in exchange for Indebtedness at the option of the holder of the Capital Stock in whole or in part,
in each case on or prior to the earlier of (a) the Stated Maturity of the Notes or (b) the date on which there are no Notes outstanding; provided , however , that (i) only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified Stock and (ii) any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require the Company to repurchase such Capital Stock upon the occurrence of a change of control or asset sale (howsoever defined or referred to) shall not constitute Disqualified Stock if any such redemption or repurchase obligation is subject to compliance by the relevant Person with Section 3.3 hereof; provided , however , that if such Capital Stock is issued to any future, current or former employee, director, officer, manager, contractor or consultant (or their respective Controlled Investment Affiliates (excluding the Permitted Holders (but not excluding any future, current or former employee, director, officer, manager, contractor or consultant)) or Immediate Family Members), of the Company, any of its Subsidiaries, any Parent Entity or any other entity in which the Company or a Restricted Subsidiary has an Investment and is designated in good faith as an “affiliate” by the Board of Directors (or the compensation committee thereof) or any other plan for the benefit of current, former or future employees (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company or its Subsidiaries or by any such plan to such employees (or their respective Controlled Investment Affiliates or Immediate Family Members), such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Company or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
“ Dollars ” or “ $ ” means the lawful currency of the United States of America.
“ DTC ” means The Depository Trust Company or any successor securities clearing agency.
 
-24-

“ Equity Offering ” means (x) a sale of Capital Stock (other than through the issuance of Disqualified Stock or Designated Preferred Stock or through an Excluded Contribution) or other securities of the Company or any Parent Entity other than (a) offerings registered on Form S-8 (or any successor form) under the Securities Act or any similar offering in other jurisdictions and (b) issuances of Capital Stock to any Subsidiary of the Company or (y) a cash equity contribution to the Company.
“ Euro ” means the single currency of participating member states of the economic and monetary union as contemplated in the Treaty on European Union.
“ Exchange Act ” means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder, as amended.
“ Excluded Contribution ” means Net Cash Proceeds or property or assets received by the Company as capital contributions to the equity (other than through the issuance of Disqualified Stock or Designated Preferred Stock) of the Company after the Issue Date or from the issuance or sale (other than to a Restricted Subsidiary or an employee stock ownership plan or trust established by the Company or any Subsidiary of the Company for the benefit of their employees to the extent funded by the Company or any Restricted Subsidiary) of Capital Stock (other than Disqualified Stock or Designated Preferred Stock) of the Company, in each case, to the extent designated as an Excluded Contribution pursuant to an Officer’s Certificate of the Company.
“ fair market value ” may be conclusively established by means of an Officer’s Certificate or resolutions of the Board of Directors of the Company setting out such fair market value as determined by such Officer or such Board of Directors in good faith.
“ FATCA ” means Sections 1471 through 1474 of the Code as of the date of this Indenture (or any amended or successor version that is substantively comparable thereto), any current or future Treasury regulations thereunder or other official administrative interpretations thereof, any agreements entered into pursuant to current Section 1471(b)(1) of the Code as of the date this Indenture (or any amended or successor version described above) and any intergovernmental agreements implementing the foregoing.
“ First Priority Credit Obligations ” means (i) any and all amounts payable under or in respect of any Credit Facility and the other Credit Facility Documents as amended, restated, supplemented, waived, replaced, restructured, repaid, refunded, refinanced or otherwise modified from time to time (including after termination of the Credit Agreement), including principal, premium (if any), interest (including Post-Petition Interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company whether or not a claim for Post-Petition Interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, guarantees and all other amounts payable thereunder or in respect of, in each case, to the extent secured by a Permitted Lien incurred or deemed incurred to secure Indebtedness under the Credit Facilities constituting First Priority Obligations pursuant to clause (19) and sub clause (a) of the provision in clause (33) of the definition of “Permitted Liens,” and (ii) all other Obligations of the Company or any of its Restricted Subsidiaries in respect of Hedging Obligations or Obligations in respect of cash management services.
 
-25-

“ First Priority Liens ” means all Liens that secure the First Priority Obligations.
“ First Priority Notes Obligations ” means all Obligations of the Company and the Guarantors under the Notes, this Indenture, the Note Guarantees and the Collateral Documents.
“ First Priority Obligations ” means (i) the First Priority Credit Obligations, (ii) all First Priority Notes Obligations and any Pari Passu Secured Obligations and (iii) any and all amounts payable under or in respect of any Future First Lien Indebtedness.
“ Fitch ” means Fitch Ratings, Inc. or any of its successors or assigns that is a Nationally Recognized Statistical Rating Organization.
“ Fixed Charge Coverage Ratio ” means, with respect to any Person on any determination date, the ratio of Consolidated EBITDA of such Person for the most recent four consecutive fiscal quarters ending immediately prior to such determination date (the “ reference period ”) for which consolidated financial statements are available (which may be internal consolidated financial statements) to the Fixed Charges of such Person for the reference period. In the event that the Company or any Restricted Subsidiary Incurs, assumes, Guarantees, redeems, defeases, retires or extinguishes any Indebtedness (other than Indebtedness incurred under any revolving credit facility unless such Indebtedness has been permanently repaid and has not been replaced) has caused any Reserved Indebtedness Amount to be deemed to be Incurred during such period or issues or redeems Disqualified Stock or Preferred Stock subsequent to the commencement of the reference period but prior to or simultaneously with the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “ Fixed Charge Coverage Ratio Calculation Date ”), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such Incurrence, deemed Incurrence, assumption, Guarantee, redemption, defeasance, retirement or extinguishment of Indebtedness, or such issuance or redemption of Disqualified Stock or Preferred Stock, as if the same had occurred at the beginning of the applicable four-quarter period; provided , however , that for purposes of the pro forma calculation under Section 3.2(a) hereof such calculation shall not give effect to any Indebtedness Incurred on such determination date pursuant to Section 3.2(b) (other than Indebtedness Incurred pursuant to clause (5) thereof).
For purposes of making the computation referred to above, any Investments, acquisitions, dispositions, mergers, amalgamations, consolidations and disposed operations that have been made by the Company or any of the Restricted Subsidiaries, during the reference period or subsequent to the reference period and on or prior to or simultaneously with the Fixed Charge Coverage Ratio Calculation Date shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers, amalgamations, consolidations and disposed or discontinued operations (and the change in any associated fixed charge obligations and the change in Consolidated EBITDA resulting therefrom) had occurred on the first day of the reference
 
-26-

period. If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged or amalgamated with or into the Company or any of the Restricted Subsidiaries since the beginning of such period shall have made any Investment, acquisition, disposition, merger, amalgamation, consolidation or disposed or discontinued operation that would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such period as if such Investment, acquisition, disposition, merger, amalgamation, consolidation or disposed operation had occurred at the beginning of the reference period.
For purposes of this definition, whenever pro forma effect is to be given to a transaction, the pro forma calculations shall be made in good faith by a responsible financial or chief accounting officer of the Company (including cost savings and synergies. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Fixed Charge Coverage Ratio Calculation Date had been the applicable rate for the entire reference period (taking into account any Hedging Obligations applicable to such Indebtedness). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Company to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with IFRS. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed with a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the reference period except as set forth in the first paragraph of this definition. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen as the Company may designate.
“ Fixed Charges ” means, with respect to any Person for any period, the sum of:
(1)    Consolidated Interest Expense of such Person for such Period;
(2)    all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Preferred Stock of any Restricted Subsidiary of such Person during such period; and
(3)    all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Disqualified Stock during this period.
“ Future First Lien Indebtedness ” means any Indebtedness of the Company and/or the Guarantors that is either a First Priority Credit Obligation or Pari Passu Secured Obligation, as permitted by this Indenture; provided that (i) the trustee, agent or other authorized representative for the holders of such Indebtedness (other than in the case of Additional Notes) shall execute a joinder to the Intercreditor Agreement and (ii) the Company shall designate such Indebtedness as “Additional First Priority Credit Obligations” or “Additional Pari Passu Secured Obligations” as applicable, under the Intercreditor Agreement.
 
-27-

“ Future First Lien Obligations ” means Obligations in respect of Future First Lien Indebtedness.
“ GAAP ” means generally accepted accounting principles in the United States of America.
“ Governmental Authority ” means any nation, sovereign or government, any state, province, territory or other political subdivision thereof, and any entity or authority exercising executive, legislative, judicial, regulatory, self-regulatory or administrative functions of or pertaining to government, including a central bank or stock exchange.
“ Grantors ” means the Company and the Guarantors.
“ Guarantee ” means, any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person, including any such obligation, direct or indirect, contingent or otherwise, of such Person:
(1)    to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to maintain financial statement conditions or otherwise); or
(2)    entered into primarily for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part),
provided , however , that the term “Guarantee” will not include (x) endorsements for collection or deposit in the ordinary course of business or consistent with past practice and (y) standard contractual indemnities or product warranties provided in the ordinary course of business, and provided further that the amount of any Guarantee shall be deemed to be the lower of (i) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee is made and (ii) the maximum amount for which such guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Guarantee or, if such Guarantee is not an unconditional guarantee of the entire amount of the primary obligation and such maximum amount is not stated or determinable, the amount of such guaranteeing Person’s maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith. The term “Guarantee” used as a verb has a corresponding meaning.
“ Guarantor ” means any Restricted Subsidiary that Guarantees the Notes, until such Note Guarantee is released in accordance with the terms of this Indenture.
“ Hedging Obligations ” means, with respect to any Person, the obligations of such Person under any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, commodity swap agreement, commodity cap agreement, commodity collar agreement, foreign exchange contracts, currency swap agreement or similar agreement providing for the transfer or mitigation of interest rate, commodity price or currency risks either generally or under specific contingencies.
 
-28-

“ Holder ” means each Person in whose name the Notes are registered on the Registrar’s books, which shall initially be the nominee of DTC.
“ IAI ” means an institutional “accredited investor” as described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
“ IFRS ” means the International Financial Reporting Standards (formerly International Accounting Standards) endorsed from time to time by the European Union or any variation thereof with which the Company or its Restricted Subsidiaries are, or may be, required to comply, as in effect on the Issue Date or, with respect to Section 3.10 hereof, as in effect from time to time. Except as otherwise set forth in this Indenture, all ratios and calculations based on IFRS contained in this Indenture shall be computed in accordance with IFRS as in effect on the Issue Date. At any time after the Issue Date, the Company may elect to establish that IFRS shall mean the IFRS as in effect on or prior to the date of such election; provided that any such election, once made, shall be irrevocable. At any time after the Issue Date, the Company may elect to apply GAAP accounting principles in lieu of IFRS and, upon any such election, references herein to IFRS shall thereafter be construed to mean GAAP (except as otherwise provided in this Indenture), including as to the ability of the Company to make an election pursuant to the previous sentence; provided that any such election, once made, shall be irrevocable; provided, further, that any calculation or determination in this Indenture that require the application of IFRS for periods that include fiscal quarters ended prior to the Company’s election to apply GAAP shall remain as previously calculated or determined in accordance with IFRS; provided, further again, that the Company may only make such election if it also elects to report any subsequent financial reports required to be made by the Company in GAAP. The Company shall give written notice of any such election made in accordance with this definition to the Trustee.
“ Immaterial Subsidiary ” means, at any date of determination, each Restricted Subsidiary of the Company that (i) has not guaranteed any other Indebtedness of the Company and (ii) has Total Assets and revenues of less than 5.0% of Total Assets and consolidated revenues, respectively, of the Company and its Restricted Subsidiaries and, together with all other Immaterial Subsidiaries (as determined in accordance with IFRS), has Total Assets and revenues of less than 10.0% of Total Assets and consolidated revenues, respectively, of the Company and its Restricted Subsidiaries, and LTM EBITDA less than 10.0% of LTM EBITDA, in each case, measured at the end of the most recent fiscal period for which consolidated financial statements are available (which may be internal consolidated financial statements) and for the period of four fiscal quarters then ended, in each case on a pro forma basis giving effect to any acquisitions or dispositions of companies, division or lines of business since such balance sheet date or the start of such four quarter period, as applicable, and on or prior to the date of acquisition of such Subsidiary.
 
-29-

“ Immediate Family Members ” means, with respect to any individual, such individual’s child, stepchild, grandchild or more remote descendant, parent, stepparent, grandparent, spouse, former spouse, qualified domestic partner, sibling, mother-in-law, father-in-law, son-in-law and daughter-in-law (including adoptive relationships) and any trust, partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals or any private foundation or fund that is controlled by any of the foregoing individuals or any donor-advised fund of which any such individual is the donor.
“ Incur ” means issue, create, assume, enter into any Guarantee of, incur, extend or otherwise become liable for; provided , however , that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Restricted Subsidiary (whether by merger, amalgamation, consolidation, acquisition or otherwise) will be deemed to be Incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary and the terms “Incurred” and “Incurrence” have meanings correlative to the foregoing and any Indebtedness pursuant to any revolving credit or similar facility shall only be “Incurred” at the time any funds are borrowed thereunder.
“ Indebtedness ” means, with respect to any Person on any date of determination (without duplication):
(1)    the principal of indebtedness of such Person for borrowed money;
(2)    the principal of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(3)    all reimbursement obligations of such Person in respect of letters of credit, bankers’ acceptances or other similar instruments (the amount of such obligations being equal at any time to the aggregate then undrawn and unexpired amount of such letters of credit or other instruments plus the aggregate amount of drawings thereunder that have not been reimbursed) (except to the extent such reimbursement obligations relate to trade payables and such obligations are satisfied within 30 days of Incurrence);
(4)    the principal component of all obligations of such Person to pay the deferred and unpaid purchase price of property (except trade payables or similar obligations, including accrued expenses owed to a trade creditor), which purchase price is due more than one year after the date of placing such property in service or taking final delivery and title thereto;
(5)    Capitalized Lease Obligations of such Person;
(6)    the principal component of all obligations, or liquidation preference, of such Person with respect to any Disqualified Stock or, with respect to any Restricted Subsidiary, any Preferred Stock (but excluding, in each case, any accrued dividends);
(7)    the principal component of all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided, however, that the amount of such Indebtedness will be the lesser of (a) the fair market value of such asset at such date of determination (as determined in good faith by the Company) and (b) the amount of such Indebtedness of such other Persons;
 
-30-

(8)    Guarantees by such Person of the principal component of Indebtedness of the type referred to in clauses (1), (2), (3), (4), (5) and (9) of other Persons to the extent Guaranteed by such Person; and
(9)    to the extent not otherwise included in this definition, net obligations of such Person under Hedging Obligations (the amount of any such obligations to be equal at any time to the net payments under such agreement or arrangement giving rise to such obligation that would be payable by such Person at the termination of such agreement or arrangement);
with respect to clauses (1), (2), (4) and (5) above, if and to the extent that any of the foregoing Indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with IFRS; provided, that Indebtedness of any Parent Entity appearing upon the balance sheet of the Company solely by reason of push-down accounting under IFRS shall be excluded.
The amount of Indebtedness of any Person at any time in the case of a revolving credit or similar facility shall be the total amount of funds borrowed and then outstanding. The amount of any Indebtedness outstanding as of any date shall be (a) the accreted value thereof in the case of any Indebtedness issued with original issue discount and (b) the principal amount of Indebtedness, or liquidation preference thereof, in the case of any other Indebtedness. Indebtedness shall be calculated without giving effect to the effects of Topic No. 815 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Indenture as a result of accounting for any embedded derivatives created by the terms of such Indebtedness.
Notwithstanding the above provisions, in no event shall the following constitute Indebtedness:
(i)    Contingent Obligations Incurred in the ordinary course of business or consistent with past practice, other than Guarantees or other assumptions of Indebtedness;
(ii)    Cash Management Services;
(iii)    any lease, concession or license of property (or Guarantee thereof) which would be considered an operating lease under IFRS as in effect on the Issue Date or any prepayments of deposits received from clients or customers in the ordinary course of business or consistent with past practice;
(iv)    obligations under any license, permit or other approval (or Guarantees given in respect of such obligations) incurred prior to the Issue Date or in the ordinary course of business or consistent with past practice;
 
-31-

(v)    in connection with the purchase by the Company or any Restricted Subsidiary of any business, any post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing; provided , however , that, at the time of closing, the amount of any such payment is not determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is paid in a timely manner;
(vi)    for the avoidance of doubt, any obligations in respect of workers’ compensation claims, early retirement or termination obligations, pension fund obligations or contributions or similar claims, obligations or contributions or social security or wage Taxes;
(vii)    obligations under or in respect of Qualified Securitization Transactions or Receivables Facilities;
(viii)    Indebtedness of any Parent Entity appearing on the balance sheet of the Company solely by reason of push down accounting under IFRS;
(ix)    Capital Stock (other than Disqualified Stock); or
(x)    amounts owed to dissenting stockholders pursuant to applicable law (including in connection with, or as a result of, exercise of appraisal rights and the settlement of any claims or action (whether actual, contingent or potential)), pursuant to or in connection with a consolidation, merger or transfer of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, that complies with Section 4.1.
“ Indenture ” means this Indenture as amended or supplemented from time to time.
“ Independent Financial Advisor ” means an accounting, appraisal, investment banking firm or consultant to Persons engaged in Similar Businesses of nationally recognized standing; provided, however, that such firm or appraiser is not an Affiliate of the Company.
“ Initial Notes ” has the meaning ascribed to it in the second introductory paragraph of this Indenture.
“ Initial Purchasers ” means Goldman Sachs & Co. LLC, BBVA Securities Inc., Morgan Stanley & Co. LLC and Santander Investment Securities Inc.
“ Investment ” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of any advances, loans or other extensions of credit (other than advances or extensions of credit to customers, suppliers, directors, officers or employees of any Person in the ordinary course of business or consistent with past practice, and excluding any debt or extension of credit represented by a bank deposit other than a time deposit) or capital contribution to (by means of any
 
-32-

transfer of cash or other property to others or any payment for property or services for the account or use of others), or the Incurrence of a Guarantee of any obligation of, or any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by, such other Persons and all other items that are or would be classified as investments on a balance sheet prepared on the basis of IFRS; provided , however , that endorsements of negotiable instruments and documents in the ordinary course of business or consistent with past practice will not be deemed to be an Investment. If the Company or any Restricted Subsidiary issues, sells or otherwise disposes of any Capital Stock of a Person that is a Restricted Subsidiary such that, after giving effect thereto, such Person is no longer a Restricted Subsidiary, any Investment by the Company or any Restricted Subsidiary in such Person remaining after giving effect thereto will be deemed to be a new Investment at such time.
For purposes of Sections 3.3 and 3.20 hereof:
(1)    “ Investment ” will include the portion (proportionate to the Company’s equity interest in a Restricted Subsidiary to be designated as an Unrestricted Subsidiary) of the fair market value of the net assets of such Restricted Subsidiary at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary; provided , however , that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Company will be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (a) the Company’s “Investment” in such Subsidiary at the time of such redesignation less (b) the portion (proportionate to the Company’s equity interest in such Subsidiary) of the fair market value of the net assets (as determined by the Company) of such Subsidiary at the time that such Subsidiary is so re-designated a Restricted Subsidiary; and
(2)    any property transferred to or from an Unrestricted Subsidiary will be valued at its fair market value at the time of such transfer, in each case as determined in good faith by the Company.
“ Investment Grade Securities ” means:
(1)    securities issued or directly and fully Guaranteed or insured by the United States or Canadian government or any agency or instrumentality thereof (other than Cash Equivalents);
(2)    securities issued or directly and fully guaranteed or insured by a member of the European Union, United Kingdom, Switzerland, Norway, or any agency or instrumentality thereof (other than Cash Equivalents);
(3)    debt securities or debt instruments with a rating of “ A- ” or higher from Fitch or S&P or “ A3 ” or higher by Moody’s or the equivalent of such rating by such rating organization or, if no rating of Moody’s, Fitch or S&P then exists, the equivalent of such rating by any other Nationally Recognized Statistical Ratings Organization, but excluding any debt securities or instruments constituting loans or advances among the Company and its Subsidiaries; and
 
-33-

(4)    investments in any fund that invests exclusively in investments of the type described in clauses (1), (2) and (3) above which fund may also hold cash and Cash Equivalents pending investment or distribution.
“ Investment Grade Status ” shall occur when the Notes receive two of the following:
(1)    a rating of “ BBB- ” or higher from S&P;
(2)    a rating of “ Baa3 ” or higher from Moody’s; or
(3)    a rating of “ BBB- ” or higher from Fitch,
or the equivalent of such rating by such rating organization or, if no rating of S&P, Moody’s or Fitch then exists, the equivalent of such rating by any other Nationally Recognized Statistical Ratings Organization.
“ Issue Date ” means August 10, 2017.
“ Junior Priority Obligations ” means other Indebtedness of the Company and/or the Guarantors that is secured by Liens on the Collateral ranking junior in priority to the Liens securing the Notes as permitted by this Indenture and is designated by the Company as Junior Priority Indebtedness.
“ Lien ” means any mortgage, pledge, security interest, encumbrance, lien, hypothecation or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof); provided that in no event shall an operating lease be deemed to constitute a Lien.
“ LTM EBITDA ” means Consolidated EBITDA of the Company measured for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of the Company are available (which may be internal consolidated financial statements), in each case with such pro forma adjustments giving effect to such Indebtedness, acquisition, disposition or Investment, as applicable, since the start of such four quarter period and as are consistent with the pro forma adjustments set forth in the definition of “Fixed Charge Coverage Ratio.”
“ Management Advances ” means loans or advances made to, or Guarantees with respect to loans or advances made to, directors, officers, employees, contractors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of any Parent Entity, the Company or any Restricted Subsidiary:
(1)    (a) in respect of travel, entertainment or moving related expenses Incurred in the ordinary course of business or consistent with past practice or (b) for purposes of funding any such person’s purchase of Capital Stock (or similar obligations) of the Company, its Subsidiaries or any Parent Entity with (in the case of this clause (1)(b)) the approval of the Board of Directors;
 
-34-

(2)    in respect of moving related expenses Incurred in connection with any closing or consolidation of any facility or office; or
(3)    not exceeding $10.0 million and 5% of LTM EBITDA in the aggregate outstanding at the time of Incurrence.
“ Management Stockholders ” means Atalaya Management Gibco and the members of management of the Company (or any Parent Entity) or its Subsidiaries who are holders of Capital Stock of the Company or of any Parent Entity on the Issue Date or will become holders of such Capital Stock in connection with the Transactions.
“ Market Capitalization ” means an amount equal to (i) the total number of issued and outstanding shares of common Capital Stock of the Company or any Parent Entity on the date of the declaration of a Restricted Payment permitted pursuant to Section 3.3(b)(10) hereof multiplied by (ii) the arithmetic mean of the closing prices per share of such common Capital Stock on the principal securities exchange on which such common Capital Stock are traded for the 30 consecutive trading days immediately preceding the date of declaration of such Restricted Payment.
“ MidCo ” means Atalaya Luxco Midco S.à r.l., the direct parent company of the Company, or any successor or assign thereto.
“ Moody’s ” means Moody’s Investors Service, Inc. or any of its successors or assigns that is a Nationally Recognized Statistical Rating Organization.
“ Nationally Recognized Statistical Rating Organization ” means a nationally recognized statistical rating organization within the meaning of Rule 436 under the Securities Act.
“ Net Available Cash ” from an Asset Disposition means cash payments received (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise and net proceeds from the sale or other disposition of any securities received as consideration, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring person of Indebtedness or other obligations relating to the properties or assets that are the subject of such Asset Disposition or received in any other non-cash form) therefrom, in each case net of:
(1)    all legal, accounting, investment banking, title and recording tax expenses, commissions and other fees and expenses Incurred, and all Taxes paid, reasonably estimated to be actually payable or accrued as a liability under IFRS (including, for the avoidance of doubt, any income, withholding and other Taxes payable as a result of the distribution of such proceeds to the Company and after taking into account any available tax credits or deductions and any tax sharing agreements), as a consequence of such Asset Disposition, including distributions for Related Taxes;
(2)    all payments made on any Indebtedness other than Junior Priority Obligations which is secured by any assets subject to such Asset Disposition, in accordance with the terms of any Lien upon such assets, or which by applicable law be repaid out of the proceeds from such Asset Disposition;
 
-35-

(3)    all distributions and other payments required to be made to minority interest holders (other than any Parent Entity, the Company or any of its respective Subsidiaries) in Subsidiaries or joint ventures as a result of such Asset Disposition;
(4)    the deduction of appropriate amounts required to be provided by the seller as a reserve, on the basis of IFRS, against any liabilities associated with the assets disposed of in such Asset Disposition and retained by the Company or any Restricted Subsidiary after such Asset Disposition; and
(5)    any funded escrow established pursuant to the documents evidencing any such sale or disposition to secure any indemnification obligations or adjustments to the purchase price associated with any such Asset Disposition.
“ Net Cash Proceeds, ” with respect to any issuance or sale of Capital Stock, means the cash proceeds of such issuance or sale net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, listing fees, discounts or commissions and brokerage, consultant and other fees and charges actually Incurred in connection with such issuance or sale and net of Taxes paid or reasonably estimated to be actually payable as a result of such issuance or sale (including, for the avoidance of doubt, any income, withholding and other Taxes payable as a result of the distribution of such proceeds to the Company and after taking into account any available tax credit or deductions and any tax sharing agreements, and including distributions for Related Taxes).
“ Non-Guarantor ” means any Restricted Subsidiary that is not a Guarantor.
“ Non-U.S. Person ” means a Person who is not a U.S. Person (as defined in Regulation S).
“ Note Documents ” means the Notes (including Additional Notes), the Note Guarantees, this Indenture, the Collateral Documents and the Intercreditor Agreement.
“ Notes ” has the meaning ascribed to it in the second introductory paragraph of this Indenture.
“ Notes Custodian ” means the custodian with respect to the Global Notes (as appointed by DTC), or any successor Person thereto and shall initially be the Trustee.
“ Obligations ” means any principal, interest (including Post-Petition Interest and fees accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company or any Guarantor whether or not a claim for Post-Petition Interest or fees is allowed in such proceedings), penalties, fees, indemnifications, reimbursements (including, without limitation, reimbursement obligations with respect to letters of credit and bankers’ acceptances), damages and other liabilities payable under the documentation governing any Indebtedness.
 
-36-

“ Offering Circular ” means the final offering circular, dated July 27, 2017, relating to the offering by the Company of $400,000,000 aggregate principal amount of 6.125% first lien senior secured notes due 2022 and any future offering circular relating to Additional Notes.
“ Officer ” means, with respect to any Person, (1) the Chairman of the Board of Directors, the Chief Executive Officer, any director, the President, the Chief Financial Officer, any Vice President, the Treasurer, any Assistant Treasurer, any Managing Director, the Secretary or any Assistant Secretary (a) of such Person or (b) if such Person is owned or managed by a single entity, of such entity, or (2) any other individual designated as an “Officer” for the purposes of this Indenture by the Board of Directors of such Person.
“ Officer’s Certificate ” means, with respect to any Person, a certificate signed by one Officer of such Person.
“ Opinion of Counsel ” means a written opinion from legal counsel who is reasonably satisfactory to the Trustee. The counsel may be an employee of or counsel to the Company or its Subsidiaries.
“ Other Collateral Secured Obligations ” means any and all amounts payable under or in respect of any Indebtedness, including principal, premium (if any), interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company whether or not a claim for Post-Petition Interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, guarantees and all other amounts payable thereunder or in respect of, in each case, (x) secured by a Permitted Lien (other than First Priority Credit Obligations) and (y) such related Lien shall rank on a pari passu basis or a junior basis to the Lien securing the Obligations under the Notes, the Note Guarantees and this Indenture.
“ Parent ” means Atento S.A., a public limited liability company ( société anonyme ) incorporated under the laws of Luxembourg and an indirect parent entity of the Company, or any successor or assign thereto.
“ Parent Entity ” means any direct or indirect parent of the Company.
“ Parent Entity Expenses ” means:
(1)    costs (including all legal, accounting and other professional fees and expenses) Incurred by any Parent Entity in connection with reporting obligations under or otherwise Incurred in connection with compliance with applicable laws, rules or regulations of any governmental, regulatory or self-regulatory body or stock exchange, this Indenture or any other agreement or instrument relating to the Notes, the Guarantees or any other Indebtedness of the Company or any Restricted Subsidiary, including in respect of any reports filed or delivered with respect to the Securities Act, Exchange Act or the respective rules and regulations promulgated thereunder;
 
-37-

(2)    customary indemnification obligations of any Parent Entity owing to directors, officers, employees or other Persons under its articles, charter, by-laws, partnership agreement or other organizational documents or pursuant to written agreements with any such Person to the extent relating to the Company and its Subsidiaries;
(3)    obligations of any Parent Entity in respect of director and officer insurance (including premiums therefor) to the extent relating to the Company and its Subsidiaries;
(4)    (x) general corporate overhead expenses, including all legal, accounting and other professional fees and expenses and (y) other operational expenses of any Parent Entity related to the ownership or operation of the business of the Company or any of the Restricted Subsidiaries;
(5)    any Taxes and other fees and expenses required to maintain such Parent Entity’s corporate existence and to provide for other ordinary course operating costs, including customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, offices and employees of such Parent Entity;
(6)    expenses Incurred by any Parent Entity in connection with (i) any offering, sale, conversion or exchange of Capital Stock or Indebtedness where the net proceeds of such offering or sale are intended to be received by or contributed to the Company or a Restricted Subsidiary and (ii) any related compensation paid to officers, directors and employees of such Parent Entity; and
(7)    amounts to finance Investments that would otherwise be permitted to be made pursuant to Section 3.3 hereof if made by the Company or a Restricted Subsidiary; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment, (B) such direct or indirect parent company shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Capital Stock) to be contributed to the capital of the Company or one of the Restricted Subsidiaries or (2) the merger, consolidation or amalgamation of the Person formed or acquired into the Company or one of the Restricted Subsidiaries (to the extent not prohibited by Section 4.1 hereof) in order to consummate such Investment, (C) such direct or indirect parent company and its Affiliates (other than the Company or a Restricted Subsidiary) receives no consideration or other payment in connection with such transaction except to the extent the Company or a Restricted Subsidiary could have given such consideration or made such payment in compliance with this Indenture and such consideration or other payment is included as a Restricted Payment under this Indenture, (D) any property received by the Company shall not increase amounts available for Restricted Payments pursuant to Section 3.3(a)(iii) hereof and (E) such Investment shall be deemed to be made by the Company or such Restricted Subsidiary pursuant to another provision of this covenant or pursuant to the definition of “Permitted Investments.”
 
-38-

“ Pari Passu Indebtedness ” means Indebtedness of the Company which ranks equally in right of payment to the Notes or of any Guarantor if such Indebtedness ranks equally in right of payment to the Guarantees of the Notes.
“ Pari Passu Secured Obligations ” means Other Collateral Secured Obligations for which the Lien securing such Other Collateral Secured Obligations ranks on a parity basis to the Lien securing the Obligations under the Notes, the Note Guarantees and this Indenture.
“ Paying Agent ” means any Person authorized by the Company to pay the principal of (and premium, if any) or interest on any Note on behalf of the Company.
“ Permitted Asset Swap ” means the concurrent purchase and sale or exchange of assets used or useful in a Similar Business or a combination of such assets and cash, Cash Equivalents between the Company or any of the Restricted Subsidiaries and another Person; provided that any cash or Cash Equivalents received in excess of the value of any cash or Cash Equivalents sold or exchanged must be applied in accordance with Section 3.5 hereof.
“ Permitted Holders ” means, collectively, (i) the Sponsor, (ii) any one or more Persons, together with such Persons’ Affiliates, whose beneficial ownership constitutes or results in a Change of Control in respect of which a Change of Control Offer is made in accordance with the requirements of this Indenture, (iii) the Management Stockholders, (iv) any Person who is acting solely as an underwriter in connection with a public or private offering of Capital Stock of any Parent Entity or the Company, acting in such capacity and (v) any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of which any of the foregoing are members; provided that, in the case of such group and without giving effect to the existence of such group or any other group, Persons referred to in subclauses (i) through (iv), collectively, have beneficial ownership of more than 50% of the total voting power of the Voting Stock of the Company or any Parent Entity held by such group.
“ Permitted Investment ” means (in each case, by the Company or any of the Restricted Subsidiaries):
(1)    Investments in (a) a Restricted Subsidiary (including the Capital Stock of a Restricted Subsidiary) or the Company or (b) a Person (including the Capital Stock of any such Person) that will, upon the making of such Investment, become a Restricted Subsidiary;
(2)    Investments in another Person if such Person is engaged in any Similar Business and as a result of such Investment such other Person is merged, amalgamated, consolidated or otherwise combined with or into, or transfers or conveys all or substantially all its assets to, the Company or a Restricted Subsidiary;
(3)    Investments in cash, Cash Equivalents or Investment Grade Securities;
 
-39-

(4)    Investments in receivables owing to the Company or any Restricted Subsidiary created or acquired in the ordinary course of business or consistent with past practice;
(5)    Investments in payroll, travel, entertainment, moving related and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business or consistent with past practice;
(6)    Management Advances;
(7)    Investments received in settlement of debts created in the ordinary course of business or consistent with past practice and owing to the Company or any Restricted Subsidiary or in exchange for any other Investment or accounts receivable held by the Company or any such Restricted Subsidiary, or as a result of foreclosure, perfection or enforcement of any Lien, or in satisfaction of judgments or pursuant to any plan of reorganization or similar arrangement including upon the bankruptcy or insolvency of a debtor or otherwise with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;
(8)    Investments made as a result of the receipt of non-cash consideration from a sale or other disposition of property or assets, including an Asset Disposition;
(9)    Investments existing or pursuant to agreements or arrangements in effect on the Issue Date and any modification, replacement, renewal or extension thereof; provided that the amount of any such Investment may not be increased except (a) as required by the terms of such Investment as in existence on the Issue Date or (b) as otherwise permitted under this Indenture;
(10)    Hedging Obligations, which transactions or obligations are Incurred in compliance with Section 3.2 hereof;
(11)    pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business or Liens otherwise described in the definition of “Permitted Liens” or made in connection with Liens permitted under Section 3.6 hereof;
(12)    any Investment to the extent made using Capital Stock of the Company (other than Disqualified Stock) or Capital Stock of any Parent Entity as consideration;
(13)    any transaction to the extent constituting an Investment that is permitted and made in accordance with Section 3.8(b) hereof (except those described in Sections 3.8(b)(1), (3), (6), (7), (8), (9), (12), (14), (22) and (25));
(14)    Investments consisting of purchases and acquisitions of inventory, supplies, materials and equipment or licenses or leases of intellectual property or services, in any case, in the ordinary course of business and in accordance with this Indenture;
 
-40-

(15)    (i) Guarantees of Indebtedness not prohibited by Section 3.2 hereof and (other than with respect to Indebtedness) guarantees, keepwells and similar arrangements in the ordinary course of business, and (ii) performance guarantees with respect to obligations that are permitted by this Indenture;
(16)    Investments consisting of earnest money deposits required in connection with a purchase agreement, or letter of intent, or other acquisitions to the extent not otherwise prohibited by this Indenture;
(17)    Investments of a Restricted Subsidiary acquired after the Issue Date or of an entity merged or amalgamated into the Company or merged or amalgamated into or consolidated with a Restricted Subsidiary after the Issue Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation;
(18)    Investments consisting of licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons;
(19)    contributions to a “rabbi” trust for the benefit of employees or other grantor trust subject to claims of creditors in the case of a bankruptcy of the Company;
(20)    Investments in joint ventures and similar entities and Unrestricted Subsidiaries having an aggregate fair market value, when taken together with all other Investments made pursuant to this clause that are at the time outstanding, not to exceed the greater of $50.0 million and 25% of LTM EBITDA at the time of such Investment (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value), plus the amount of any returns (including dividends, payments, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) in respect of such Investments (without duplication for purposes of Section 3.3 of any amounts applied pursuant to Section 3.3(a)(iii)) with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value; provided, however, that if any Investment pursuant to this clause is made in any Person that is not the Company or a Restricted Subsidiary at the date of the making of such Investment and such person becomes the Company or a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (1) or (2) above and shall cease to have been made pursuant to this clause for so long as such Person continues to be the Company or a Restricted Subsidiary;
(21)    additional Investments having an aggregate fair market value, taken together with all other Investments made pursuant to this clause (21) that are at that time outstanding, not to exceed the greater of $85.0 million and 40% of LTM EBITDA (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value), plus the amount of any returns (including dividends, payments, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) in respect of such Investments (without
 
-41-

duplication for purposes of Section 3.3 of any amounts applied pursuant to Section 3.3(a)(iii)) with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value; provided, however, that if any Investment pursuant to this clause is made in any Person that is not the Company or a Restricted Subsidiary at the date of the making of such Investment and such person becomes the Company or a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (1) or (2) above and shall cease to have been made pursuant for so long as such Person continues to be the Company or a Restricted Subsidiary;
(22)    any Investment in a Similar Business having an aggregate fair market value, taken together with all other Investments made pursuant to this clause that are at that time outstanding, not to exceed the greater of $30.0 million and 15% of LTM EBITDA (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value), plus the amount of any returns (including dividends, payments, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) in respect of such Investments (without duplication for purposes of the covenant described in Section 3.3 of any amounts applied pursuant to clause (c) of the first paragraph of such covenant) with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value; provided , however , that if any Investment pursuant to this clause is made in any Person that is not the Company or a Restricted Subsidiary at the date of the making of such Investment and such person becomes the Company or a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (1) or (2) above and shall cease to have been made pursuant to this clause for so long as such Person continues to be the Company or a Restricted Subsidiary;
(23)    (i) Investments arising in connection with a Qualified Securitization Financing or Receivables Facility and (ii) distributions or payments of Securitization Fees and purchases of Securitization Assets or Receivables Assets in connection with a Qualified Securitization Financing or Receivables Facility;
(24)    Investments in connection with the Transactions;
(25)    repurchases of Notes;
(26)    Investments by an Unrestricted Subsidiary entered into prior to the day such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary under Section 3.20; and
(27)    guaranty and indemnification obligations arising in connection with surety bonds issued in the ordinary course of business or consistent with past practice;
(28)    Investments consisting of purchases and acquisitions of assets or services in the ordinary course of business or consistent with past practice or made in the ordinary course of business or consistent with past practice in connection with obtaining, maintaining or renewing client contacts and loans or advances made to distributors in the ordinary course of business or consistent with past practice;
 
-42-

(29)    Investments in prepaid expenses, negotiable instruments held for collection and lease, utility and workers compensation, performance and similar deposits entered into as a result of the operations of the business in the ordinary course of business or consistent with past practice;
(30)    Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection of deposit and Article 4 customary trade arrangements with customers consistent with past practices;
(31)    transactions entered into in order to consummate a Permitted Tax Restructuring; and
(32)    any other Investment so long as, immediately after giving pro forma effect to the Investment and the Incurrence of any Indebtedness the net proceeds of which are used to make such Investment, the Consolidated Total Leverage Ratio shall be no greater than 2.75 to 1.00.
“ Permitted Liens ” means, with respect to any Person:
(1)    Liens on assets or property of a Restricted Subsidiary that is not a Guarantor securing Indebtedness and other Obligations of any Restricted Subsidiary that is not a Guarantor;
(2)    pledges, deposits or Liens under workmen’s compensation laws, payroll taxes, unemployment insurance laws, social security laws or similar legislation, or insurance related obligations (including pledges or deposits securing liability to insurance carriers under insurance or self-insurance arrangements), or in connection with bids, tenders, completion guarantees, contracts (other than for borrowed money) or leases, or to secure utilities, licenses, public or statutory obligations, or to secure the performance of bids, trade contracts, government contracts and leases, statutory obligations, surety, stay, indemnity, judgment, customs, appeal or performance bonds, guarantees of government contracts, return-of-money bonds, bankers’ acceptance facilities (or other similar bonds, instruments or obligations), obligations in respect of letters of credit, bank guarantees or similar instruments that have been posted to support the same, or as security for contested taxes or import or customs duties or for the payment of rent, or other obligations of like nature, in each case Incurred in the ordinary course of business or consistent with past practice;
(3)    Liens with respect to outstanding motor vehicle fines and Liens imposed by law, including carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s, construction contractors’ or other like Liens, in each case for sums not yet overdue for a period of more than 60 days or that are bonded or being contested in good faith by appropriate proceedings;
 
-43-

(4)    Liens for Taxes, assessments or governmental charges which are not overdue for a period of more than 60 days or which are being contested in good faith by appropriate proceedings; provided that appropriate reserves required pursuant to IFRS (or other applicable accounting principles) have been made in respect thereof;
(5)    encumbrances, charges, ground leases, easements (including reciprocal easement agreements), survey exceptions, restrictions, encroachments, protrusions, by-law, regulation, zoning restrictions or reservations of, or rights of others for, licenses, rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning, building codes or other restrictions (including minor defects or irregularities in title and similar encumbrances) as to the use of real properties or Liens incidental to the conduct of the business of the Company and the Restricted Subsidiaries or to the ownership of their properties, including servicing agreements, development agreements, site plan agreements, subdivision agreements, facilities sharing agreements, cost sharing agreement and other agreements, which do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of the Company and the Restricted Subsidiaries;
(6)    Liens (a) on assets or property of the Company or any Restricted Subsidiary securing Hedging Obligations or Cash Management Services permitted under this Indenture; (b) that are contractual rights of set-off or, in the case of clause (i) or (ii) below, other bankers’ Liens (i) relating to treasury, depository and cash management services or any automated clearing house transfers of funds in the ordinary course of business and not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Company or any Subsidiary or (iii) relating to purchase orders and other agreements entered into with customers of the Company or any Restricted Subsidiary in the ordinary course of business; (c) on cash accounts securing Indebtedness and other Obligations permitted to be Incurred under Section 3.2(b)(8)(e) with financial institutions; (d) encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business, consistent with past practice and not for speculative purposes; and/or (e) (i) of a collection bank arising under Section 4-210 of the UCC on items in the course of collection and (ii) in favor of a banking institution arising as a matter of law encumbering deposits (including the right of set-off) arising in the ordinary course of business in connection with the maintenance of such accounts and (iii) arising under customary general terms of the account bank in relation to any bank account maintained with such bank and attaching only to such account and the products and proceeds thereof, which Liens, in any event, do not secure any Indebtedness;
(7)    leases, licenses, subleases and sublicenses of assets (including real property and intellectual property rights), in each case entered into in the ordinary course of business;
(8)    Liens securing or otherwise arising out of judgments, decrees, attachments, orders or awards not giving rise to an Event of Default so long as (a) any
 
-44-

appropriate legal proceedings which may have been duly initiated for the review of such judgment, decree, order or award have not been finally terminated, (b) the period within which such proceedings may be initiated has not expired or (c) no more than 60 days have passed after (i) such judgment, decree, order or award has become final or (ii) such period within which such proceedings may be initiated has expired;
(9)    Liens (i) on assets or property of the Company or any Restricted Subsidiary for the purpose of securing Capitalized Lease Obligations or Purchase Money Obligations, or securing the payment of all or a part of the purchase price of, or securing Indebtedness or other Obligations Incurred to finance or refinance the acquisition, improvement or construction of, assets or property acquired or constructed in the ordinary course of business; provided that (a) the aggregate principal amount of Indebtedness secured by such Liens is otherwise permitted to be Incurred under this Indenture and (b) any such Liens may not extend to any assets or property of the Company or any Restricted Subsidiary other than assets or property acquired, improved, constructed or leased with the proceeds of such Indebtedness and any improvements or accessions to such assets and property and (ii) any interest or title of a lessor under any operating lease;
(10)    Liens perfected or evidenced by UCC financing statement filings, including precautionary UCC financing statements, (or similar filings in other applicable jurisdictions) regarding operating leases entered into by the Company and the Restricted Subsidiaries in the ordinary course of business;
(11)    Liens existing on the Issue Date, excluding Liens securing the Credit Agreement;
(12)    Liens on property, other assets or shares of stock of a Person at the time such Person becomes a Restricted Subsidiary (or at the time the Company or a Restricted Subsidiary acquires such property, other assets or shares of stock, including any acquisition by means of a merger, amalgamation, consolidation or other business combination transaction with or into the Company or any Restricted Subsidiary); provided , however , that such Liens are not created, Incurred or assumed in anticipation of or in connection with such other Person becoming a Restricted Subsidiary (or such acquisition of such property, other assets or stock); provided , further , that such Liens are limited to all or part of the same property, other assets or stock (plus improvements, accession, proceeds or dividends or distributions in connection with the original property, other assets or stock) that secured (or, under the written arrangements under which such Liens arose, could secure) the obligations to which such Liens relate;
(13)    Liens on assets or property of the Company or any Restricted Subsidiary securing Indebtedness or other Obligations of the Company or such Restricted Subsidiary owing to the Company or another Restricted Subsidiary, or Liens in favor of the Company or any Restricted Subsidiary;
(14)    Liens securing Refinancing Indebtedness Incurred to refinance Indebtedness that was previously so secured, and permitted to be secured under this
 
-45-

Indenture; provided that any such Lien is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the Indebtedness or other Obligations being refinanced or is in respect of property that is or could be the security for or subject to a Permitted Lien hereunder;
(15)    (a) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any government, statutory or regulatory authority, developer, landlord or other third party on property over which the Company or any Restricted Subsidiary has easement rights or on any leased property and subordination or similar arrangements relating thereto and (b) any condemnation or eminent domain proceedings affecting any real property;
(16)    any encumbrance or restriction (including put and call arrangements) with respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;
(17)    Liens on property or assets under construction (and related rights) in favor of a contractor or developer or arising from progress or partial payments by a third party relating to such property or assets;
(18)    Liens arising out of conditional sale, title retention, hire purchase, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business;
(19)    Liens securing Indebtedness and other Obligations in respect of Credit Facilities, including any letter of credit facility relating thereto, under Section 3.2(b)(1); provided that (A) in the case of Liens securing any Indebtedness constituting First Priority Obligations, the holders of such Indebtedness, or their duly appointed agent, shall become a party to the Intercreditor Agreement and (B) in the case of Liens securing any Junior Priority Indebtedness, the holders of such Junior Priority Indebtedness, or their duly appointed agent, shall become a party to an intercreditor agreement with the Collateral Agent on terms that are customary for such financings as determined by the Company in good faith reflecting the subordination of such Liens to the liens securing the Notes;
(20)    Liens securing Indebtedness and other Obligations under Section 3.2(b)(5) hereof; provided that such Liens shall only be permitted if (x) such Liens are limited to all or part of the same property or assets, including Capital Stock (plus improvements, accessions, proceeds or dividends or distributions in respect thereof, or replacements of any thereof) acquired, or of any Person acquired or merged, consolidated or amalgamated with or into the Company or any Restricted Subsidiary, in any transaction to which such Indebtedness or other Obligation relates or (y) in the case of Liens securing any Indebtedness constituting First Priority Obligations, on the date of the Incurrence of such Indebtedness after giving effect to such Incurrence, the Consolidated First Lien Secured Leverage Ratio would equal or be less than the Consolidated First Lien Secured Leverage Ratio immediately prior to giving effect thereto;
 
-46-

(21)    Liens securing Indebtedness and other Obligations under clause (7), (10), (11), (14) or (18) (provided that, in the case of clause (11), such Liens cover only the assets of such Subsidiary, and in the case of clause (18), such Liens are limited to all or part of the equipment acquired with the proceeds of such Indebtedness) of Section 3.2(b);
(22)    Liens securing Indebtedness and other Obligations of any Non-Guarantor covering only assets of such Subsidiary;
(23)    Liens on Capital Stock or other securities or assets of any Unrestricted Subsidiary that secure Indebtedness of such Unrestricted Subsidiary;
(24)    any security granted over the marketable securities portfolio described in clause (19) of the definition of “Cash Equivalents” in connection with the disposal thereof to a third party;
(25)    Liens on (i) goods the purchase price of which is financed by a documentary letter of credit issued for the account of the Company or any Restricted Subsidiary or Liens on bills of lading, drafts or other documents of title arising by operation of law or pursuant to the standard terms of agreements relating to letters of credit, bank guarantees and other similar instruments and (ii) specific items of inventory of other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(26)    Liens on equipment of the Company or any Restricted Subsidiary and located on the premises of any client or supplier in the ordinary course of business;
(27)    Liens on assets or securities deemed to arise in connection with and solely as a result of the execution, delivery or performance of contracts to sell such assets or securities if such sale is otherwise permitted by this Indenture;
(28)    Liens arising by operation of law or contract on insurance policies and the proceeds thereof to secure premiums thereunder, and Liens, pledges and deposits in the ordinary course of business securing liability for premiums or reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefits of) insurance carriers;
(29)    Liens solely on any cash earnest money deposits made in connection with any letter of intent or purchase agreement permitted hereunder;
(30)    Liens (i) on cash advances in favor of the seller of any property to be acquired in an Investment permitted pursuant to Permitted Investments to be applied against the purchase price for such Investment, and (ii) consisting of an agreement to sell any property in an asset sale permitted under Section 3.5, in each case, solely to the extent such Investment or asset sale, as the case may be, would have been permitted on the date of the creation of such Lien;
 
-47-

(31)    Liens securing Indebtedness and other Obligations in an aggregate principal amount not to exceed the greater of (a) $60.0 million and (b) 30% of LTM EBITDA at the time Incurred;
(32)    Liens then existing with respect to assets of an Unrestricted Subsidiary on the day such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary as described under Section 3.20;
(33)    Liens securing Indebtedness and other Obligations permitted under Section 3.2; provided that in the case of Liens Incurred pursuant to this clause (33) securing any Indebtedness constituting First Priority Obligations or Pari Passu Indebtedness secured by any Collateral, at the time of Incurrence and after giving pro forma effect thereto, the Consolidated First Lien Secured Leverage Ratio would be no greater than 2.00 to 1.00 and the holders of such Indebtedness, or their duly appointed agent, shall become a party to the Intercreditor Agreement;
(34)    Liens deemed to exist in connection with Investments in repurchase agreements permitted by Section 3.2 provided that such Liens do not extend to any assets other than those that are the subject of such repurchase agreement;
(35)    Liens arising in connection with a Qualified Securitization Financing or a Receivables Facility;
(36)    Settlement Liens;
(37)    Liens securing any Obligations in respect of the Notes issued on the Issue Date, this Indenture or the Collateral Documents, excluding, for the avoidance of doubt, Additional Notes;
(38)    Liens on the Collateral in favor of any Collateral Agent for the benefit of the Holders relating to such Collateral Agent’s administrative expenses with respect to the Collateral;
(39)    rights of recapture of unused real property in favor of the seller of such property set forth in customary purchase agreements and related arrangements with any government, statutory or regulatory authority;
(40)    the rights reserved to or vested in any Person or government, statutory or regulatory authority by the terms of any lease, license, franchise, grant or permit held by the Company or any Restricted Subsidiary or by a statutory provision, to terminate any such lease, license, franchise, grant or permit, or to require annual or periodic payments as a condition to the continuance thereof;
(41)    restrictive covenants affecting the use to which real property may be put;
 
-48-

(42)    Liens or covenants restricting or prohibiting access to or from lands abutting on controlled access highways or covenants affecting the use to which lands may be put; provided that such Liens or covenants do not interfere with the ordinary conduct of the business of the Company or any Restricted Subsidiary; or
(43)    Liens arising in connection with any Permitted Tax Restructuring.
In the event that a Permitted Lien meets the criteria of more than one of the types of Permitted Liens (at the time of incurrence or at a later date), the Company in its sole discretion may divide, classify or from time to time reclassify all or any portion of such Permitted Lien in any manner that complies with this Indenture and such Permitted Lien shall be treated as having been made pursuant only to the clause or clauses of the definition of “Permitted Lien” to which such Permitted Lien has been classified or reclassified.
“ Permitted Tax Distribution ” means (a) if and for so long as the Company is a member of a group filing a consolidated or combined tax return with any Parent, any dividends or other distributions to fund any income Taxes for which such Parent Entity is liable up to an amount not to exceed with respect to such Taxes the amount of any such Taxes that the Company and its Subsidiaries would have been required to pay on a separate company basis or on a consolidated basis calculated as if the Company and its Subsidiaries had paid Tax on a consolidated, combined, group, affiliated or unitary basis on behalf of an affiliated group consisting only of the Company and its Subsidiaries; and (b) for any taxable year (or portion thereof) ending after the Issue Date for which the Company is treated as a disregarded entity, partnership, or other flow-through entity for U.S. federal, state, provincial, territorial, and/or local income Tax purposes, the payment of dividends or other distributions to the direct or indirect owner or owners of equity of the Company in an aggregate amount equal to each of the direct or indirect owners’ Tax Amount. Each direct or indirect owner’s “Tax Amount” is the product of (i) the aggregate taxable income of the Company and its Subsidiaries allocated to such owner for U.S. federal income tax purposes for such taxable year (or portion thereof) and (ii) the highest combined marginal federal, state and/or local income tax rate applicable to an individual residing in California or New York, New York (whichever is higher for the relevant taxable year or portion thereof).
“ Permitted Tax Restructuring ” means any reorganizations and other activities related to tax planning and tax reorganization entered into prior to, on or after the date hereof so long as such Permitted Tax Restructuring is not materially adverse to the holders of the Notes (as determined by the Company in good faith).
“ Person ” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company, government or any agency or political subdivision thereof or any other entity.
“ Post-Closing Guarantors ” means, collectively, Atento Atención y Servicios, S.A., de C.V., Atento Servicios, S.A. de C.V., Atento Impulsa, S.A.U., Atento Servicios Técnicos y Consultoría, S.A.U., Atento Servicios Auxiliares de Contact Center S.A.U., Atento Columbia S.A., Teleatento del Perú S.A.C. and Atento Holding Chile, S.A.
 
-49-

“ Post-Petition Interest ” means any interest or entitlement to fees or expenses or other charges that accrue after the commencement of any bankruptcy or insolvency proceeding, whether or not allowed or allowable as a claim in any such bankruptcy or insolvency proceeding.
“ Predecessor Note ” of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 2.11 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Note.
“ Preferred Stock, ” as applied to the Capital Stock of any Person, means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other class of such Person.
“ Purchase Money Obligations ” means any Indebtedness Incurred to finance or refinance the acquisition, leasing, construction or improvement of property (real or personal) or assets (including Capital Stock), and whether acquired through the direct acquisition of such property or assets or the acquisition of the Capital Stock of any Person owning such property or assets, or otherwise.
“ Qualified Securitization Financing ” means any Securitization Facility that meets the following conditions: (i) the Board of Directors shall have determined in good faith that such Securitization Facility (including financing terms, covenants, termination events and other provisions) is in the aggregate economically fair and reasonable to the Company and its Restricted Subsidiaries, (ii) all sales of Securitization Assets and related assets by the Company or any Restricted Subsidiary to the Securitization Subsidiary or any other Person are made for fair consideration (as determined in good faith by the Company) and (iii) the financing terms, covenants, termination events and other provisions thereof shall be fair and reasonable terms (as determined in good faith by the Company) and may include Standard Securitization Undertakings.
“ QIB ” means any “qualified institutional buyer” as such term is defined in Rule 144A.
“ Rating Agencies ” means S&P, Moody’s and Fitch or if no rating of S&P, Moody’s or Fitch is publicly available, as the case may be, the equivalent of such rating selected by the Company by any other Nationally Recognized Statistical Ratings Organization.
 
-50-

“ Ratings Categories ” means:
(a)    with respect to S&P, any of the following categories: AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent successor categories);
(b)    with respect to Moody’s, any of the following categories: Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories); and
(c)    with respect to Fitch, any of the following categories: AAA, AA, A, BBB, BB, B, CCC, CC, C and RD/D (or equivalent successor categories).
“ Ratings Decline Period ” means the period that (i) begins on the earlier of (a) a Change of Control or (b) the first public notice of the intention by the Company to effect a Change of Control and (ii) ends 60 days following the consummation of such Change of Control; provided, that such period will be extended so long as the rating of the Notes is under publicly announced consideration for a possible downgrade by any of the Rating Agencies.
“ Ratings Event ” means (x) a downgrade by one or more gradations (including gradations within Ratings Categories as well as between categories) or withdrawal of the rating of the Notes within the Ratings Decline Period by one or more Rating Agencies if the Applicable Rating Agency shall have put forth a statement to the effect that such downgrade is attributable in whole or in part to the applicable Change of Control and (y) the Notes do not have an Investment Grade Status from any Rating Agency.
“ Receivables Assets ” means (a) any accounts receivable owed to the Company or a Restricted Subsidiary subject to a Receivables Facility and the proceeds thereof and (b) all collateral securing such accounts receivable, all contracts and contract rights, guarantees or other obligations in respect of such accounts receivable, all records with respect to such accounts receivable and any other assets customarily transferred together with accounts receivable in connection with a non-recourse accounts receivable factoring arrangement.
“ Receivables Facility ” means an arrangement between the Company or a Subsidiary and a commercial bank or an Affiliate thereof pursuant to which (a) the Company or such Subsidiary, as applicable, sells (directly or indirectly) to such commercial bank (or such Affiliate) Receivables Assets and (b) the obligations of the Company or such Restricted Subsidiary, as applicable, thereunder are non-recourse (except for Securitization Repurchase Obligations) to the Company and such Subsidiary and (c) the financing terms, covenants, termination events and other provisions thereof shall be on market terms (as determined in good faith by the Company) and may include Standard Securitization Undertakings, and shall include any guaranty in respect of such arrangements.
“ refinance ” means refinance, refund, replace, renew, repay, modify, restate, defer, substitute, supplement, reissue, resell, extend or increase (including pursuant to any defeasance or discharge mechanism) and the terms “refinances,” “refinanced” and “refinancing” as used for any purpose in this Indenture shall have a correlative meaning.
 
-51-

“ Refinancing Indebtedness ” means Indebtedness that is Incurred to refund, refinance, replace, exchange, renew, repay or extend (including pursuant to any defeasance or discharge mechanism) any Indebtedness (or unutilized commitment in respect of Indebtedness) existing on the Issue Date or Incurred (or established) in compliance with this Indenture (including Indebtedness of the Company that refinances Indebtedness of any Restricted Subsidiary and Indebtedness of any Restricted Subsidiary that refinances Indebtedness of the Company or another Restricted Subsidiary) including Indebtedness that refinances Refinancing Indebtedness, and Indebtedness Incurred pursuant to a commitment that refinances any Indebtedness or unutilized commitment; provided , however , that:
(1)    (a) such Refinancing Indebtedness has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is Incurred which is not less than the remaining Weighted Average Life to Maturity of the Indebtedness, Disqualified Stock or Preferred Stock being refunded or refinanced; and (b) to the extent such Refinancing Indebtedness refinances Subordinated Indebtedness, Disqualified Stock or Preferred Stock, such Refinancing Indebtedness is Subordinated Indebtedness, Disqualified Stock or Preferred Stock, respectively, and, in the case of Subordinated Indebtedness, is subordinated to the Notes on terms at least as favorable to the Holders as those contained in the documentation governing the Indebtedness being refinanced;
(2)    Refinancing Indebtedness shall not include:
(i)    Indebtedness, Disqualified Stock or Preferred Stock of a Subsidiary of the Company that is not a Guarantor that refinances Indebtedness, Disqualified Stock or Preferred Stock of the Company or a Guarantor; or
(ii)    Indebtedness, Disqualified Stock or Preferred Stock of the Company or a Restricted Subsidiary that refinances Indebtedness, Disqualified Stock or Preferred Stock of an Unrestricted Subsidiary; and
(3)    such Refinancing Indebtedness is Incurred in an aggregate principal amount (or if issued with original issue discount, an aggregate issue price) that is equal to or less than the sum of (x) the aggregate principal amount (or if issued with original issue discount, the aggregate accreted value) then outstanding (plus fees and expenses, including premiums, accrued and unpaid interest and defeasance costs) of the Indebtedness being Refinanced, plus (y) an amount equal to any unutilized commitment relating to the Indebtedness being refinanced or otherwise then outstanding under a Credit Facility or other financing arrangement being refinanced to the extent the unutilized commitment being refinanced could be drawn in compliance with Section 3.2 immediately prior to such refinancing, plus (z) fees, underwriting discounts, accrued and unpaid interest, premiums (including tender premiums) and other costs and expenses (including original issue discount, upfront fees and similar fees) Incurred or payable in connection with such refinancing;
provided , that clause (1) above will not apply to any extension, replacement, refunding, refinancing, renewal or defeasance of any Credit Facilities or Secured Indebtedness.
 
-52-

Refinancing Indebtedness in respect of any Credit Facility or any other Indebtedness may be Incurred from time to time after the termination, discharge or repayment of any such Credit Facility or other Indebtedness.
“ Regulation S ” means Regulation S under the Securities Act.
“ Regulation S X ” means Regulation S X under the Securities Act.
“ Related Taxes ” means:
(1)    any Taxes, including sales, use, transfer, rental, ad valorem , value added, stamp, property, consumption, franchise, license, capital, registration, business, customs, net worth, gross receipts, excise, occupancy, intangibles or similar Taxes and other fees and expenses (other than (x) Taxes measured by income and (y) withholding Taxes), required to be paid ( provided such Taxes are in fact paid) by any Parent Entity by virtue of its:
(a)    being organized or having Capital Stock outstanding (but not by virtue of owning stock or other equity interests of any corporation or other entity other than, directly or indirectly, the Company or any of the Company’s Subsidiaries) or otherwise maintain its existence or good standing under applicable law;
(b)    being a holding company parent, directly or indirectly, of the Company or any Subsidiaries of the Company;
(c)    receiving dividends from or other distributions in respect of the Capital Stock of, directly or indirectly, the Company or any of the Company’s Subsidiaries; or
(d)    having made any payment in respect to any of the items for which the Company is permitted to make payments to any Parent Entity pursuant to Section 3.3; and
(2)    any Permitted Tax Distribution.
“ Restricted Investment ” means any Investment other than a Permitted Investment.
“ Restricted Notes ” means Initial Notes and Additional Notes bearing one of the restrictive legends described in Section 2.1(d).
“ Restricted Notes Legend ” means the legend set forth in Section 2.1(d)(1) and, in the case of the Temporary Regulation S Global Note, the legend set forth in Section 2.1(d)(2).
“ Restricted Subsidiary ” means any Subsidiary of the Company other than an Unrestricted Subsidiary.
 
-53-

“ Rule 144A ” means Rule 144A under the Securities Act.
“ S&P ” means Standard & Poor’s Investors Ratings Services or any of its successors or assigns that is a Nationally Recognized Statistical Rating Organization.
“ Sale and Leaseback Transaction ” means any arrangement providing for the leasing by the Company or any of the Restricted Subsidiaries of any real or tangible personal property, which property has been or is to be sold or transferred by the Company or such Restricted Subsidiary to a third Person in contemplation of such leasing.
“ SEC ” means the U.S. Securities and Exchange Commission or any successor thereto.
“ Secured Indebtedness ” means any Indebtedness secured by a Lien other than Indebtedness with respect to Cash Management Services.
“ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder, as amended.
“ Securitization Asset ” means (a) any accounts receivable, mortgage receivables, loan receivables, royalty, franchise fee, license fee, patent or other revenue streams and other rights to payment or related assets and the proceeds thereof and (b) all collateral securing such receivable or asset, all contracts and contract rights, guarantees or other obligations in respect of such receivable or asset, lockbox accounts and records with respect to such account or asset and any other assets customarily transferred (or in respect of which security interests are customarily granted) together with accounts or assets in connection with a securitization, factoring or receivable sale transaction.
“ Securitization Facility ” means any of one or more securitization, financing, factoring or sales transactions, as amended, supplemented, modified, extended, renewed, restated or refunded from time to time, pursuant to which the Company or any of the Restricted Subsidiaries sells, transfers, pledges or otherwise conveys any Securitization Assets (whether now existing or arising in the future) to a Securitization Subsidiary or any other Person.
“ Securitization Fees ” means distributions or payments made directly or by means of discounts with respect to any Securitization Asset or Receivables Assets or participation interest therein issued or sold in connection with, and other fees and expenses (including reasonable fees and expenses of legal counsel) paid in connection with, any Qualified Securitization Financing or Receivables Facility.
“ Securitization Repurchase Obligation ” means any obligation of a seller of Securitization Assets or Receivables Assets in a Qualified Securitization Financing or a Receivables Facility to repurchase or otherwise make payments with respect to Securitization Assets arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.
 
-54-

“ Securitization Subsidiary ” means any Subsidiary of the Company in each case formed for the purpose of and that solely engages in one or more Qualified Securitization Financings or Receivables Facilities and other activities reasonably related thereto or another Person formed for this purpose.
“ Settlement ” means the transfer of cash or other property with respect to any credit or debit card charge, check or other instrument, electronic funds transfer, or other type of paper-based or electronic payment, transfer, or charge transaction for which a Person acts as a processor, remitter, funds recipient or funds transmitter in the ordinary course of its business.
“ Settlement Asset ” means any cash, receivable or other property, including a Settlement Receivable, due or conveyed to a Person in consideration for a Settlement made or arranged, or to be made or arranged, by such Person or an Affiliate of such Person.
“ Settlement Indebtedness ” means any payment or reimbursement obligation in respect of a Settlement Payment.
“ Settlement Lien ” means any Lien relating to any Settlement or Settlement Indebtedness (and may include, for the avoidance of doubt, the grant of a Lien in or other assignment of a Settlement Asset in consideration of a Settlement Payment, Liens securing intraday and overnight overdraft and automated clearing house exposure, and similar Liens).
“ Settlement Payment ” means the transfer, or contractual undertaking (including by automated clearing house transaction) to effect a transfer, of cash or other property to effect a Settlement.
“ Settlement Receivable ” means any general intangible, payment intangible, or instrument representing or reflecting an obligation to make payments to or for the benefit of a Person in consideration for a Settlement made or arranged, or to be made or arranged, by such Person.
“ Significant Subsidiary ” means any Restricted Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02(w)(2) of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the Issue Date.
“ Similar Business ” means (a) any businesses, services or activities engaged in by the Company or any of its Subsidiaries or any Associates on the Issue Date and (b) any businesses, services and activities engaged in by the Company or any of its Subsidiaries or any Associates that are related, complementary, incidental, ancillary or similar to any of the foregoing or are extensions or developments of any thereof.
“ Sponsor ” means Bain Capital Partners and its respective Affiliates and funds or partnerships or other investment vehicles or Subsidiaries managed or advised by them or any of their respective Affiliates (other than any operating portfolio companies of any of the foregoing).
 
-55-

“ Standard Securitization Undertakings ” means representations, warranties, covenants, guarantees and indemnities entered into by the Company or any Subsidiary of the Company which the Company has determined in good faith to be customary in a Securitization Facility or Receivables Facility, including those relating to the servicing of the assets of a Securitization Subsidiary, it being understood that any Securitization Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking or, in the case of a Receivables Facility, a non-credit related recourse accounts receivable factoring arrangement.
“ Stated Maturity ” means, with respect to any security, the date specified in such security as the fixed date on which the payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision, but shall not include any contingent obligations to repay, redeem or repurchase any such principal prior to the date originally scheduled for the payment thereof.
“ Subordinated Indebtedness ” means, with respect to any person, any Indebtedness (whether outstanding on the Issue Date or thereafter Incurred) which is expressly subordinated in right of payment to the Notes pursuant to a written agreement.
“ Subsidiary ” means, with respect to any Person:
(1)    any corporation, association, or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time of determination owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof; or
(2)    any partnership, joint venture, limited liability company or similar entity of which:
(a)    more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited partnership interests or otherwise; and
(b)    such Person or any Subsidiary of such Person is a controlling general partner or otherwise controls such entity.
“ Taxes ” means all present and future taxes, levies, imposts, deductions, charges, duties and withholdings and any charges of a similar nature (including interest, penalties and other liabilities with respect thereto) that are imposed by any government or other taxing authority.
 
-56-

“ Total Assets ” means, as of any date, the total consolidated assets of the Company and the Restricted Subsidiaries on a consolidated basis, as shown on the most recent consolidated balance sheet of the Company and the Restricted Subsidiaries, determined on a pro forma basis in a manner consistent with the pro forma basis contained in the definition of “Fixed Charge Coverage Ratio.”
“ Transaction Expenses ” means any fees or expenses incurred or paid by the Company or any Restricted Subsidiary in connection with the Transactions, including any fees, costs and expenses associated with settling any claims or action arising from a dissenting stockholder exercising its appraisal rights.
“ Transactions ” means, collectively, (i) issuance of the Notes, (ii) the redemption of the Company’s existing Senior Secured Notes and existing debentures, (iii) entry into the new revolving credit facility, (iv) any other related transactions, in each case, as described in this offering circular and (v) the payment of any Transaction Expenses.
“ Trustee ” means Wilmington Trust, National Association in its capacity as “Trustee” under this Indenture or any successor or assign thereto in such capacity.
“ Trust Indenture Act ” or “ TIA ” means the Trust Indenture Act of 1939, as amended.
“ Trust Officer ” shall mean, when used with respect to the Trustee or Collateral Agent, as applicable, any vice president, assistant vice president, any trust officer or any other officer of the Trustee or Collateral Agent, as applicable, who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter relating to this Indenture is referred because of such person’s knowledge of and familiarity with the particular subject and who, in each case, shall have direct responsibility for the administration of this Indenture.
“ UCC ” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided , however , that at any time, if by reason of mandatory provisions of law, any or all of the perfection or priority of a collateral agent’s security interest in any item or portion of the collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as in effect, at such time, in such other jurisdiction for purposes of the provisions hereof relating to such perfection or priority and for purposes of definitions relating to such provisions.
“ Unrestricted Subsidiary ” means:
(1)    any Subsidiary of the Company that at the time of determination is an Unrestricted Subsidiary (as designated by the Company in the manner provided below); and
 
-57-

(2)    any Subsidiary of an Unrestricted Subsidiary.
The Company may designate any Subsidiary of the Company (including any newly acquired or newly formed Subsidiary or a Person becoming a Subsidiary through merger, consolidation or other business combination transaction, or Investment therein), to be an Unrestricted Subsidiary only if:
(1)    such Subsidiary or any of its Subsidiaries does not own any Capital Stock of the Company or any other Subsidiary of the Company which is not a Subsidiary of the Subsidiary to be so designated or otherwise an Unrestricted Subsidiary; and
(2)    such designation and the Investment, if any, of the Company in such Subsidiary complies with Section 3.3 hereof.
“ U.S. Government Obligations ” means securities that are (1) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged or (2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally Guaranteed as a full faith and credit obligation of the United States of America, which, in either case, are not callable or redeemable at the option of the issuers thereof, and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such U.S. Government Obligations or a specific payment of principal of or interest on any such U.S. Government Obligations held by such custodian for the account of the holder of such depositary receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligations or the specific payment of principal of or interest on the U.S. Government Obligations evidenced by such depositary receipt.
“ Voting Stock ” of a Person means all classes of Capital Stock of such Person then outstanding and normally entitled to vote in the election of directors.
“ Weighted Average Life to Maturity ” means, when applied to any Indebtedness, Disqualified Stock or Preferred Stock, as the case may be, at any date, the quotient obtained by dividing:
(1)    the sum of the products of the number of years from the date of determination to the date of each successive scheduled principal payment of such Indebtedness or redemption or similar payment with respect to such Disqualified Stock or Preferred Stock multiplied by the amount of such payment, by
(2)    the sum of all such payments.
“ Wholly Owned Subsidiary ” means a Subsidiary of the Company, all of the Capital Stock of which is owned by the Company or a Guarantor.
 
-58-

Section 1.2.     Other Definitions .

Term	  	Defined in Section	
Additional Amounts	  	3.23(a)	
Additional Restricted Notes	  	2.1(b)	
Affiliate Transaction	  	3.8(a)	
Agent Members	  	2.1(g)(2)	
Asset Disposition Offer	  	3.5(b)	
Asset Sale Payment Date	  	3.5(f)(2)	
Authenticating Agent	  	2.2	
Automatic Exchange	  	2.6(e)	
Automatic Exchange Date	  	2.6(e)	
Automatic Exchange Notice	  	2.6(e)	
Automatic Exchange Notice Date	  	2.6(e)	
bankruptcy provisions	  	6.1(a)(5)(F)	
Change of Control Offer	  	3.9(a)	
Change of Control Payment	  	3.9(a)	
Change of Control Payment Date	  	3.9(a)	
Clearstream	  	2.1(b)	
Company Order	  	2.2	
Covenant Defeasance	  	8.3	
cross acceleration provision	  	6.1(a)(4)(B)	
Defaulted Interest	  	2.15	
Euroclear	  	2.1(b)	
Event of Default	  	6.1	
Excess Proceeds	  	3.5(b)	
Global Notes	  	2.1(b)	
Guaranteed Obligations	  	10.1	
Initial Agreement	  	3.4(b)	
Institutional Accredited Investor Global Note	  	2.1(b)	
Institutional Accredited Investor Notes	  	2.1(b)	
judgment default provision	  	6.1(a)(7)	
Legal Defeasance	  	8.2	
Legal Holiday	  	13.8	
Notes Register	  	2.3	
payment default	  	6.1(a)(4)(A)	
Permanent Regulation S Global Note	  	2.1(b)	
Permitted Payments	  	3.3(b)	
protected purchaser	  	2.11	
Redemption Date	  	5.7(a)	
Refunding Capital Stock	  	3.3(b)	
Registrar	  	2.3	
Regulation S Global Note	  	2.1(b)	
Regulation S Notes	  	2.1(b)	
Related Person	  	12.9(b)	
Relevant Tax Jurisdiction	  	3.23(a)	
Resale Restriction Termination Date	  	2.6(b)	
Reserved Indebtedness Amount	  	3.2	
 
-59-

			
Term	  	Defined in Section	
Restricted Global Note	  	2.6(e)	
Restricted Payment	  	3.3(a)(4)	
Restricted Period	  	2.1(b)	
Reversion Date	  	3.19(b)	
Rule 144A Global Note	  	2.1(b)	
Rule 144A Notes	  	2.1(b)	
security default provisions	  	6.1(a)(10)	
Collateral Document Order	  	12.9(s)	
Special Interest Payment Date	  	2.15(a)	
Special Record Date	  	2.15(a)	
Successor Company	  	4.1(a)(1)	
Suspended Covenants	  	3.19(a)	
Suspension Period	  	3.19(b)	
Taxes	  	3.23(a)	
Temporary Regulation S Global Note	  	2.1(b)	
Unrestricted Global Note	  	2.6(e)	
Section 1.3.     TIA . For the avoidance of doubt, the Trust Indenture Act is not applicable to this Indenture.
Section 1.4.     Rules of Construction . Unless the context otherwise requires:
(1)    a term has the meaning assigned to it;
(2)    an accounting term not otherwise defined has the meaning assigned to it in accordance with IFRS;
(3)    “or” is not exclusive;
(4)    “including” means including without limitation;
(5)    words in the singular include the plural and words in the plural include the singular;
(6)    “will” shall be interpreted to express a command;
(7)    the principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of the issuer dated such date prepared in accordance with IFRS;
(8)    the principal amount of any preferred stock shall be (i) the maximum liquidation value of such preferred stock or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such preferred stock, whichever is greater;
(9)    all amounts expressed in this Indenture or in any of the Notes in terms of money refer to the lawful currency of the United States of America;
 
-60-

(10)    the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;
(11)    unless otherwise specifically indicated, the term “consolidated” with respect to any Person refers to such Person consolidated with its Restricted Subsidiaries, and excludes from such consolidation any Unrestricted Subsidiary as if such Unrestricted Subsidiary were not an Affiliate of such Person; and
(12)    For the purposes of Section 6.1(a)(6)(D), in respect of Parent, the making of a declaration that the affairs of Parent are en etat de désastre shall be deemed to be similar relief granted under foreign law.
ARTICLE II
T HE N OTES
Section 2.1.     Form, Dating and Terms .
(a)    The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is unlimited. The Initial Notes issued on the date hereof will be in an aggregate principal amount of $400,000,000. In addition, the Company may issue, from time to time in accordance with the provisions of this Indenture and Additional Notes (as provided herein). Furthermore, Notes may be authenticated and delivered upon registration of transfer, exchange or in lieu of, other Notes pursuant to Sections 2.2, 2.6, 2.11, 2.13, 5.6 or 9.5, in connection with an Asset Disposition Offer pursuant to Section 3.5 or in connection with a Change of Control Offer pursuant to Section 3.9.
Notwithstanding anything to the contrary contained herein, the Company may not issue any Additional Notes, unless such issuance is in compliance with Sections 3.2 and 3.6.
With respect to any Additional Notes, the Company shall set forth in (i) an Officer’s Certificate or (ii) one or more indentures supplemental hereto, the following information:
(A)    the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to this Indenture;
(B)    the issue price and the issue date of such Additional Notes, including the date from which interest shall accrue; and
(C)    whether such Additional Notes shall be Restricted Notes.
In authenticating and delivering Additional Notes, the Trustee shall be entitled to receive and shall be fully protected in relying upon, in addition to the Opinion of Counsel and Officer’s Certificate required by Section 13.4, an Opinion of Counsel as to the due authorization, execution, delivery, validity and enforceability of such Additional Notes.
 
-61-

The Initial Notes and the Additional Notes shall be considered collectively as a single class for all purposes of this Indenture, provided that any Additional Notes will not be issued with the same CUSIP, ISIN or other identifying number as the Initial Notes unless such Additional Notes are fungible with the Initial Notes for U.S. federal income tax purposes. Holders of the Initial Notes and the Additional Notes will vote and consent together on all matters to which such Holders are entitled to vote or consent as one class, and none of the Holders of the Initial Notes and the Additional Notes shall have the right to vote or consent as a separate class on any matter to which such Holders are entitled to vote or consent.
(b)    The Initial Notes are being offered and sold by the Company pursuant to a Purchase Agreement, dated July 27, 2017, among the Company, the Guarantors and Merrill Lynch, Pierce, Fenner & Smith Incorporated, on behalf of itself and the other Initial Purchasers. The Initial Notes and any Additional Notes (if issued as Restricted Notes) (the “ Additional Restricted Notes ”) will be resold initially only to (A) QIBs in reliance on Rule 144A and (B) Non U.S. Persons in reliance on Regulation S. Such Initial Notes and Additional Restricted Notes may thereafter be transferred to, among others, QIBs, purchasers in reliance on Regulation S, AIs and IAIs in accordance with Rule 501 under the Securities Act, in each case, in accordance with the procedure described herein. Additional Notes offered after the date hereof may be offered and sold by the Company from time to time pursuant to one or more purchase agreements in accordance with applicable law.
Initial Notes and Additional Restricted Notes offered and sold to QIBs in the United States of America in reliance on Rule 144A (the “ Rule 144A Notes ”) shall be issued in the form of a permanent global Note substantially in the form of Exhibit A, which is hereby incorporated by reference and made a part of this Indenture, including appropriate legends as set forth in Sections 2.1(d) and 2.1(e) (the “ Rule 144A Global Note ”), deposited with the Notes Custodian, as custodian for DTC, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Rule 144A Global Note may be represented by more than one certificate, if so required by DTC’s rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of the Rule 144A Global Note may from time to time be increased or decreased by adjustments made on the records of the Notes Custodian, as custodian for DTC or its nominee, as hereinafter provided.
Initial Notes and any Additional Restricted Notes offered and sold outside the United States of America (the “ Regulation S Notes ”) in reliance on Regulation S shall initially be issued in the form of a temporary global Note (the “ Temporary Regulation S Global Note ”). Beneficial interests in the Temporary Regulation S Global Note will be exchanged for beneficial interests in a corresponding permanent global Note substantially in the form of Exhibit A including appropriate legends as set forth in Sections 2.1(d) and 2.1(e) (the “ Permanent Regulation S Global Note ” and, together with the Temporary Regulation S Global Note, each a “ Regulation S Global Note ”) within a reasonable period after the expiration of the Restricted Period (as defined below) upon delivery of the certification contemplated by Section 2.7. Each Regulation S Global Note will be deposited upon issuance with, or on behalf of, the Notes Custodian as custodian for DTC
 
-62-

in the manner described in this Article II for credit to the respective accounts of the purchasers (or to such other accounts as they may direct), including, but not limited to, accounts at Euroclear Bank S.A./N.V. (“ Euroclear ”) or Clearstream Banking, société anonyme (“ Clearstream ”). Prior to the 40th day after the later of the commencement of the offering of the Initial Notes and the Issue Date (such period through and including such 40th day, the “ Restricted Period ”), interests in the Temporary Regulation S Global Note may only be transferred to non U.S. persons pursuant to Regulation S, unless exchanged for interests in a Global Note in accordance with the transfer and certification requirements described herein.
Investors may hold their interests in the Regulation S Global Note through organizations other than Euroclear or Clearstream that are participants in DTC’s system or directly through Euroclear or Clearstream, if they are participants in such systems, or indirectly through organizations which are participants in such systems. If such interests are held through Euroclear or Clearstream, Euroclear and Clearstream will hold such interests in the applicable Regulation S Global Note on behalf of their participants through customers’ securities accounts in their respective names on the books of their respective depositaries. Such depositaries, in turn, will hold such interests in the applicable Regulation S Global Note in customers’ securities accounts in the depositaries’ names on the books of DTC.
The Regulation S Global Note may be represented by more than one certificate, if so required by DTC’s rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of the Regulation S Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC or its nominee, as hereinafter provided.
Initial Notes and Additional Restricted Notes resold to IAIs (the “ Institutional Accredited Investor Notes ”) in the United States of America shall be issued in the form of a permanent global Note substantially in the form of Exhibit A including appropriate legends as set forth in Sections 2.1(d) and 2.1(e) (the “ Institutional Accredited Investor Global Note ”) deposited with the Notes Custodian, as custodian for DTC, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Institutional Accredited Investor Global Note may be represented by more than one certificate, if so required by DTC’s rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of the Institutional Accredited Investor Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC or its nominee, as hereinafter provided.
Initial Notes and Additional Restricted Notes resold to AIs in the United States of America shall be issued in the form of a Definitive Note substantially in the form of Exhibit A including the legend as set forth in Section 2.1(f) (an “ Accredited Investor Note ”).
 
-63-

The Rule 144A Global Note, the Regulation S Global Note and the Institutional Accredited Investor Global Note are sometimes collectively herein referred to as the “Global Notes.”
The principal of (and premium, if any) and interest on the Notes shall be payable at the office or agency of Paying Agent designated by the Company maintained for such purpose (which shall initially be the office of the Trustee maintained for such purpose), or at such other office or agency of the Company as may be maintained for such purpose pursuant to Section 2.3; provided , however , that, at the option of the Paying Agent, each installment of interest may be paid by (i) check mailed to addresses of the Persons entitled thereto as such addresses shall appear on the Notes Register or (ii) wire transfer to an account located in the United States maintained by the payee, subject to the last sentence of this paragraph. Payments in respect of Notes represented by a Global Note (including principal, premium, if any, and interest) will be made by wire transfer of immediately available funds to the accounts specified by DTC. Payments in respect of Notes represented by Definitive Notes (including principal, premium, if any, and interest) held by a Holder of at least $1,000,000 aggregate principal amount of Notes represented by Definitive Notes will be made in accordance with the Notes Register or by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 15 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).
The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage, in addition to those set forth on Exhibit A and in Sections 2.1(d), 2.1(e) and 2.1(f). The Company shall approve any notation, endorsement or legend on the Notes. Each Note shall be dated the date of its authentication. The terms of the Notes set forth in Exhibit A are part of the terms of this Indenture and, to the extent applicable, the Company, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to be bound by such terms.
(c)     Denominations . The Notes shall be in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
(d)     Restrictive Legends . Unless and until (i) an Initial Note or an Additional Note issued as a Restricted Note is sold under an effective registration statement or (ii) the Company and the Trustee receive an Opinion of Counsel reasonably satisfactory
 
-64-

to the Company to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act:
(1)    the Rule 144A Global Note, the Regulation S Global Note, the Institutional Accredited Investor Global Note and the Accredited Investor Global Note shall bear the following legend on the face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE, HEREOF AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “ RESALE RESTRICTION TERMINATION DATE ”) THAT IS ONE YEAR (IN THE CASE OF RULE 144A SECURITIES) AFTER THE LATER OF THE ISSUE DATE OF THIS SECURITY (OR ANY ADDITIONAL NOTES) AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY OR ANY ADDITIONAL NOTE) OR 40 DAYS (IN THE CASE OF REGULATION S SECURITIES), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“ RULE 144A ”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1),(2),(3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF NOTES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO RULE 144 OR ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO THE COMPANY. THIS LEGEND WILL BE REMOVED UPON REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
 
-65-

(2)    the Temporary Regulation S Global Note shall bear the following additional legend on the face thereof:
THIS SECURITY IS A TEMPORARY GLOBAL NOTE. PRIOR TO THE EXPIRATION OF THE RESTRICTED PERIOD APPLICABLE HERETO, BENEFICIAL INTERESTS HEREIN MAY NOT BE HELD BY ANY PERSON OTHER THAN (1) A NON U.S. PERSON OR (2) A U.S. PERSON THAT PURCHASED SUCH INTEREST IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT. BENEFICIAL INTERESTS HEREIN ARE NOT EXCHANGEABLE FOR PHYSICAL NOTES OTHER THAN A PERMANENT GLOBAL NOTE IN ACCORDANCE WITH THE TERMS OF THE INDENTURE. TERMS IN THIS LEGEND ARE USED AS USED IN REGULATION S UNDER THE SECURITIES ACT.
(e)     Global Note Legend .
Each Global Note, whether or not an Initial Note, shall bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“ DTC ”), NEW YORK, NEW YORK, TO THE COMPANY OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
 
-66-

(f)     AI Note Legend .
Each Accredited Investor Note shall bear the following legend on the face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE, HEREOF AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “ RESALE RESTRICTION TERMINATION DATE ”) THAT IS ONE YEAR (IN THE CASE OF RULE 144A SECURITIES) AFTER THE LATER OF THE ISSUE DATE OF THIS SECURITY (OR ANY ADDITIONAL NOTES) AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY OR ANY ADDITIONAL NOTE) OR 40 DAYS (IN THE CASE OF REGULATION S SECURITIES), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“ RULE 144A ”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1),(2),(3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF NOTES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO RULE 144 OR ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO THE COMPANY. THIS LEGEND WILL BE REMOVED UPON REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
 
-67-

(g)     Book Entry Provisions . (i) This Section 2.1(g) shall apply only to Global Notes deposited with the Notes Custodian, as custodian for DTC.
(1)    Each Global Note initially shall (x) be registered in the name of DTC or the nominee of DTC, (y) be delivered to the Notes Custodian for DTC and (z) bear legends as set forth in Section 2.1(e). Transfers of a Global Note (but not a beneficial interest therein) will be limited to transfers thereof in whole, but not in part, to DTC, its successors or its respective nominees, except as set forth in Section 2.1(g)(4) and 2.1(h). If a beneficial interest in a Global Note is transferred or exchanged for a beneficial interest in another Global Note, the Notes Custodian will (x) record a decrease in the principal amount of the Global Note being transferred or exchanged equal to the principal amount of such transfer or exchange and (y) record a like increase in the principal amount of the other Global Note. Any beneficial interest in one Global Note that is transferred to a Person who takes delivery in the form of an interest in another Global Note, or exchanged for an interest in another Global Note, will, upon transfer or exchange, cease to be an interest in such Global Note and become an interest in the other Global Note and, accordingly, will thereafter be subject to all transfer and exchange restrictions, if any, and other procedures applicable to beneficial interests in such other Global Note for as long as it remains such an interest.
(2)    Members of, or participants in, DTC (“ Agent Members ”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by DTC or by the Notes Custodian as the custodian of DTC or under such Global Note, and DTC may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by DTC or impair, as between DTC and its Agent Members, the operation of customary practices of DTC governing the exercise of the rights of a holder of a beneficial interest in any Global Note.
(3)    In connection with any transfer of a portion of the beneficial interest in a Global Note pursuant to Section 2.1(h) to beneficial owners who are required to hold Definitive Notes, the Notes Custodian shall reflect on its books and records the date and a decrease in the principal amount of such Global Note in an amount equal to the principal amount of the beneficial interest in the Global Note to be transferred, and the Company shall execute, and the Trustee shall authenticate and make available for delivery, one or more Definitive Notes of like tenor and amount.
(4)    In connection with the transfer of an entire Global Note to beneficial owners pursuant to Section 2.1(h), such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and make available for delivery, to each beneficial owner identified by DTC in exchange for its beneficial interest in such Global Note, an equal aggregate principal amount of Definitive Notes of authorized denominations.
 
-68-

(5)    The registered Holder of a Global Note may grant proxies and otherwise authorize any person, including Agent Members and persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.
(6)    Any Holder of a Global Note shall, by acceptance of such Global Note, agree that transfers of beneficial interests in such Global Note may be effected only through a book entry system maintained by (i) the Holder of such Global Note (or its agent) or (ii) any holder of a beneficial interest in such Global Note, and that ownership of a beneficial interest in such Global Note shall be required to be reflected in a book entry.
(h)     Definitive Notes . Except as provided below, owners of beneficial interests in Global Notes will not be entitled to receive Definitive Notes. Definitive Notes shall be transferred to all beneficial owners in exchange for their beneficial interests in a Global Note if (A) DTC notifies the Company that it is unwilling or unable to continue as Depositary for the Global Note or DTC ceases to be a clearing agency registered under the Exchange Act, at a time when DTC is required to be so registered in order to act as Depositary, and in each case the Company fail to appoint a successor depositary within 90 days of such notice or (B) there shall have occurred and be continuing an Event of Default with respect to the Notes under this Indenture and DTC shall have requested in writing the issuance of Definitive Notes. In the event of the occurrence of any of the events specified in the second preceding sentence or in clause (A) or (B) of the preceding sentence, the Company shall promptly make available to the Trustee a reasonable supply of Definitive Notes. In addition, any Note transferred to an affiliate (as defined in Rule 405 under the Securities Act) of the Company or evidencing a Note that has been acquired by an affiliate in a transaction or series of transactions not involving any public offering must, until one year after the last date on which either the Company or any affiliate of the Company was an owner of the Note, be in the form of a Definitive Note and bear the legend regarding transfer restrictions in Section 2.1(d). If required to do so pursuant to any applicable law or regulation, beneficial owners may also obtain Definitive Notes in exchange for their beneficial interests in a Global Note upon written request in accordance with DTC’s and the Registrar’s procedures.
(1)    Any Definitive Note delivered in exchange for an interest in a Global Note pursuant to Section 2.1(g) shall, except as otherwise provided by Section 2.6(d), bear the applicable legend regarding transfer restrictions applicable to the Global Note set forth in Section 2.1(d).
(2)    If a Definitive Note is transferred or exchanged for a beneficial interest in a Global Note, the Trustee will (x) cancel such Definitive Note, (y) record an increase in the principal amount of such Global Note equal to the principal amount of such transfer or exchange and (z) in the event that such transfer or exchange involves less than the entire principal amount of the canceled
 
-69-

Definitive Note, the Company shall execute, and the Trustee shall authenticate and make available for delivery, to the transferring Holder a new Definitive Note representing the principal amount not so transferred.
(3)    If a Definitive Note is transferred or exchanged for another Definitive Note, (x) the Trustee will cancel the Definitive Note being transferred or exchanged, (y) the Company shall execute, and the Trustee shall authenticate and make available for delivery, one or more new Definitive Notes in authorized denominations having an aggregate principal amount equal to the principal amount of such transfer or exchange to the transferee (in the case of a transfer) or the Holder of the canceled Definitive Note (in the case of an exchange), registered in the name of such transferee or Holder, as applicable, and (z) if such transfer or exchange involves less than the entire principal amount of the canceled Definitive Note, the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder thereof, one or more Definitive Notes in authorized denominations having an aggregate principal amount equal to the untransferred or unexchanged portion of the canceled Definitive Notes, registered in the name of the Holder thereof.
(4)    Notwithstanding anything to the contrary in this Indenture, in no event shall a Definitive Note be delivered upon exchange or transfer of a beneficial interest in the Temporary Regulation S Global Note prior to the end of the Restricted Period.
Section 2.2.     Execution and Authentication . One Officer of the Company shall sign the Notes for the Company by manual, facsimile or PDF signature. If the Officer whose signature is on a Note no longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.
A Note shall not be valid until an authorized officer of the Trustee manually authenticates the Note. The signature of the Trustee on a Note shall be conclusive evidence that such Note has been duly and validly authenticated and issued under this Indenture. A Note shall be dated the date of its authentication.
At any time and from time to time after the execution and delivery of this Indenture, the Trustee shall authenticate and make available for delivery: (1) Initial Notes for original issue on the Issue Date in an aggregate principal amount of $400,000,000, (2) subject to the terms of this Indenture, Additional Notes for original issue in an unlimited principal amount and (3) under the circumstances set forth in Section 2.6(e), Initial Notes in the form of an Unrestricted Global Note, in each case upon a written order of the Company signed by one Officer (the “ Company Order ”). Such Company Order shall specify whether the Notes will be in the form of Definitive Notes or Global Notes, the amount of the Notes to be authenticated, the date on which the original issue of Notes is to be authenticated, the holder of the Notes and whether the Notes are to be Initial Notes or Additional Notes.
 
-70-

The Trustee may appoint an agent (the “ Authenticating Agent ”) reasonably acceptable to the Company to authenticate the Notes. Any such appointment shall be evidenced by an instrument signed by a Trust Officer, a copy of which shall be furnished to the Company. Unless limited by the terms of such appointment, any such Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by the Authenticating Agent. An Authenticating Agent has the same rights as any Registrar, Paying Agent or agent for service of notices and demands.
In case the Company or any Guarantor, pursuant to Article IV or Section 10.2, as applicable, shall be consolidated or merged with or into any other Person or shall convey, transfer, lease or otherwise dispose of its properties and assets substantially as an entirety to any Person, and the successor Person resulting from such consolidation, or surviving such merger, or into which the Company or any Guarantor shall have been merged, or the Person which shall have received a conveyance, transfer, lease or other disposition as aforesaid, shall have executed an indenture supplemental hereto with the Trustee pursuant to Article IV, any of the Notes authenticated or delivered prior to such consolidation, merger, conveyance, transfer, lease or other disposition may (but shall not be required), from time to time, at the request of the successor Person, be exchanged for other Notes executed in the name of the successor Person with such changes in phraseology and form as may be appropriate to reflect such successor Person, but otherwise in substance of like tenor as the Notes surrendered for such exchange and of like principal amount; and the Trustee, upon the Company Order of the successor Person, shall authenticate and make available for delivery Notes as specified in such order for the purpose of such exchange. If Notes shall at any time be authenticated and delivered in any new name of a successor Person pursuant to this Section 2.2 in exchange or substitution for or upon registration of transfer of any Notes, such successor Person, at the option of the Holders but without expense to them, shall provide for the exchange of all Notes at the time outstanding for Notes authenticated and delivered in such new name.
Section 2.3.     Registrar and Paying Agent . The Company shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange (the “ Registrar ”) and an office or agency where Notes may be presented for payment. The Registrar shall keep a register of the Notes and of their transfer and exchange (the “ Notes Register ”). The Company may have one or more co registrars and one or more additional paying agents. The term “Paying Agent” includes any additional paying agent and the term “Registrar” includes any co registrar.
The Company shall enter into an appropriate agency agreement with any Registrar or Paying Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee in writing of the name and address of each such agent. If the Company fail to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.7. The Company or any Guarantor may act as Paying Agent, Registrar or transfer agent.
 
-71-

The Company initially appoint The Depository Trust Company (“ DTC ”) to act as Depositary with respect to the Global Notes. The Company initially appoint the Trustee as the Registrar and Paying Agent for the Notes and the Company may remove any Registrar or Paying Agent without prior notice to the Holders, but upon written notice to such Registrar or Paying Agent and to the Trustee; provided , however , that no such removal shall become effective until (i) acceptance of any appointment by a successor as evidenced by an appropriate agreement entered into by the Company and such successor Registrar or Paying Agent, as the case may be, and delivered to the Trustee and the passage of any waiting or notice periods required by DTC procedures or (ii) written notification to the Trustee that the Trustee shall serve as Registrar or Paying Agent until the appointment of a successor in accordance with clause (i) above. The Registrar or Paying Agent may resign at any time upon written notice to the Company and the Trustee.
Section 2.4.     Paying Agent to Hold Money in Trust . Prior to 10:00 a.m. New York City time, on each due date of the principal of, premium, if any, or interest on any Note is due and payable, the Company shall deposit with the Paying Agent a sum sufficient in immediately available funds to pay such principal, premium or interest when due. The Company shall require the Paying Agent (other than the Trustee) to agree in writing that such Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by such Paying Agent for the payment of principal of, premium, if any, or interest on the Notes (whether such assets have been distributed to it by the Company or other obligors on the Notes), shall notify the Trustee in writing of any default by the Company or any Guarantor in making any such payment and shall during the continuance of any default by the Company (or any other obligor upon the Notes) in the making of any payment in respect of the Notes, upon the written request of the Trustee, forthwith deliver to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Notes together with a full accounting thereof. If the Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Company at any time may require a Paying Agent (other than the Trustee) to pay all money held by it to the Trustee and to account for any funds or assets disbursed by such Paying Agent. Upon complying with this Section 2.4, the Paying Agent (if other than the Company or a Subsidiary of the Company) shall have no further liability for the money delivered to the Trustee. Upon any bankruptcy, reorganization or similar proceeding with respect to any of the Company, the Trustee shall serve as Paying Agent for the Notes.
Section 2.5.     Holder Lists . The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. If the Trustee is not the Registrar, the Company, on their own behalf and on behalf of each of the Guarantors, shall furnish or cause the Registrar to furnish to the Trustee, in writing at least five Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders.
 
-72-

Section 2.6.     Transfer and Exchange .
(a)    A Holder may transfer a Note (or a beneficial interest therein) to another Person or exchange a Note (or a beneficial interest therein) for another Note or Notes of any authorized denomination by presenting to the Trustee a written request therefor stating the name of the proposed transferee or requesting such an exchange, accompanied by any certification, opinion or other document required by this Section 2.6. The Trustee will promptly register any transfer or exchange that meets the requirements of this Section 2.6 by noting the same in the Notes Register maintained by the Trustee for the purpose, and no transfer or exchange will be effective until it is registered in such Notes Register. The transfer or exchange of any Note (or a beneficial interest therein) may only be made in accordance with this Section 2.6 and Sections 2.1(g) and 2.1(h), as applicable, and, in the case of a Global Note (or a beneficial interest therein), the applicable rules and procedures of DTC, Euroclear and Clearstream. The Trustee shall refuse to register any requested transfer or exchange that does not comply with this paragraph.
(b)    Transfers of Rule 144A Notes and Institutional Accredited Investor Notes. The following provisions shall apply with respect to any proposed registration of transfer of a Rule 144A Note or an Institutional Accredited Investor Note prior to the date that is one year after the later of the date of its original issue and the last date on which the Company or any Affiliate of the Company was the owner of such Notes (or any predecessor thereto) (the “ Resale Restriction Termination Date ”):
(1)    a registration of transfer of a Rule 144A Note or an Institutional Accredited Investor Note or a beneficial interest therein to a QIB shall be made upon the representation of the transferee in the form as set forth on the reverse of the Note that it is purchasing for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A; provided that no such written representation or other written certification shall be required in connection with the transfer of a beneficial interest in the Rule 144A Global Note to a transferee in the form of a beneficial interest in that Rule 144A Global Note in accordance with this Indenture and the applicable procedures of DTC.
(2)    a registration of transfer of a Rule 144A Note or an Institutional Accredited Investor Note or a beneficial interest therein to an IAI or an AI shall be made upon receipt by the Registrar or its agent of a certificate substantially in the form set forth in Section 2.8 or Section 2.10, respectively, from the proposed transferee and the delivery of an Opinion of Counsel, certification and/or other information satisfactory to the Company; and
(3)    a registration of transfer of a Rule 144A Note or an Institutional Accredited Investor Note or a beneficial interest therein to a Non U.S. Person
 
-73-

shall be made upon receipt by the Registrar or its agent of a certificate substantially in the form set forth in Section 2.9 from the proposed transferee and the delivery of an Opinion of Counsel, certification and/or other information satisfactory to the Company.
(c)     Transfers of Regulation S Notes . The following provisions shall apply with respect to any proposed transfer of a Regulation S Note prior to the expiration of the Restricted Period:
(1)    a transfer of a Regulation S Note or a beneficial interest therein to a QIB shall be made upon the representation of the transferee, in the form of assignment on the reverse of the certificate, that it is purchasing the Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A, is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A;
(2)    a transfer of a Regulation S Note or a beneficial interest therein to an IAI or an AI shall be made upon receipt by the Registrar or its agent of a certificate substantially in the form set forth in Section 2.8 or Section 2.10, respectively, from the proposed transferee and the delivery of an Opinion of Counsel, certification and/or other information satisfactory to the Company; and
(3)    a transfer of a Regulation S Note or a beneficial interest therein to a Non U.S. Person shall be made upon receipt by the Registrar or its agent of a certificate substantially in the form set forth in Section 2.9 hereof from the proposed transferee and receipt by the Registrar or its agent of an Opinion of Counsel, certification and/or other information satisfactory to the Company.
After the expiration of the Restricted Period, interests in the Regulation S Note may be transferred in accordance with applicable law without requiring the certification set forth in Sections 2.8, 2.9, 2.10 or any additional certification.
(d)     Restricted Notes Legend . Upon the transfer, exchange or replacement of Notes not bearing a Restricted Notes Legend, the Registrar shall deliver Notes that do not bear a Restricted Notes Legend. Upon the transfer, exchange or replacement of Notes bearing a Restricted Notes Legend, the Registrar shall deliver only Notes that bear a Restricted Notes Legend unless (1) an Initial Note is being transferred pursuant to an effective registration statement, (2) Initial Notes are being exchanged for Notes that do not bear the Restricted Notes Legend in accordance with Section 2.6(e) or (3) there is delivered to the Registrar an Opinion of Counsel satisfactory to the Company stating that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act. Any Additional Notes sold in a registered offering shall not be required to bear the Restricted Notes Legend.
 
-74-

(e)     Automatic Exchange from Global Note Bearing Restricted Notes Legend to Global Note Not Bearing Restricted Notes Legend . Upon the Company’s satisfaction that the Restricted Notes Legend shall no longer be required in order to maintain compliance with the Securities Act, beneficial interests in a Global Note bearing the Restricted Notes Legend (a “ Restricted Global Note ”) may be automatically exchanged into beneficial interests in a Global Note not bearing the Restricted Notes Legend (an “ Unrestricted Global Note ”) without any action required by or on behalf of the Holder (the “ Automatic Exchange ”) at any time on or after the date that is the 366th calendar day after (1) with respect to the Notes issued on the Issue Date, the Issue Date or (2) with respect to Additional Notes, if any, the issue date of such Additional Notes, or, in each case, if such day is not a Business Day, on the next succeeding Business Day (the “ Automatic Exchange Date ”). Upon the Company’s satisfaction that the Restricted Notes Legend shall no longer be required in order to maintain compliance with the Securities Act, the Company shall (i) provide written notice to DTC and the Trustee at least fifteen (15) calendar days prior to the Automatic Exchange Date, instructing DTC to exchange all of the outstanding beneficial interests in a particular Restricted Global Note to the Unrestricted Global Note, which the Company shall have previously otherwise made eligible for exchange with DTC, (ii) provide prior written notice (the “ Automatic Exchange Notice ”) to each Holder at such Holder’s address appearing in the register of Holders at least fifteen (15) calendar days prior to the Automatic Exchange Date (the “ Automatic Exchange Notice Date ”), which notice must include (w) the Automatic Exchange Date, (x) the section of this Indenture pursuant to which the Automatic Exchange shall occur, (y) the “CUSIP” number of the Restricted Global Note from which such Holder’s beneficial interests will be transferred and (z) the “CUSIP” number of the Unrestricted Global Note into which such Holder’s beneficial interests will be transferred, and (iii) on or prior to the Automatic Exchange Date, deliver to the Trustee for authentication one or more Unrestricted Global Notes, duly executed by the Company, in an aggregate principal amount equal to the aggregate principal amount of Restricted Global Notes to be exchanged into such Unrestricted Global Notes.
Notwithstanding anything to the contrary in this Section 2.6(e), during the fifteen (15) calendar day period prior to the Automatic Exchange Date, no exchanges other than pursuant to this Section 2.6(e) shall be permitted without the prior written consent of the Company. As a condition to any Automatic Exchange, the Company shall provide, and the Trustee shall be entitled to conclusively rely upon, an Officer’s Certificate and Opinion of Counsel to the Company to the effect that the Automatic Exchange shall be effected in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Restricted Notes Legend shall no longer be required in order to maintain compliance with the Securities Act and that the aggregate principal amount of the particular Restricted Global Note is to be transferred to the particular Unrestricted Global Note by adjustment made on the records of the Notes Custodian, as custodian for the Depositary to reflect the Automatic Exchange. Upon such exchange of beneficial interests pursuant to this Section 2.6(e), the aggregate principal amount of the Global Notes shall be increased or decreased by adjustments made on the records of the Notes
 
-75-

Custodian, as custodian for the Depositary, to reflect the relevant increase or decrease in the principal amount of such Global Note resulting from the applicable exchange. The Restricted Global Note from which beneficial interests are transferred pursuant to an Automatic Exchange shall be cancelled following the Automatic Exchange.
(f)     Retention of Written Communications . The Registrar shall retain copies of all letters, notices and other written communications received pursuant to Section 2.1 or this Section 2.6. The Company shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable prior written notice to the Registrar.
(g)     Obligations with Respect to Transfers and Exchanges of Notes . To permit registrations of transfers and exchanges, the Company shall, subject to the other terms and conditions of this Article II, execute and the Trustee shall authenticate Definitive Notes and Global Notes at the Company’s and Registrar’s written request.
No service charge shall be made to a Holder for any registration of transfer or exchange, but the Company may require the Holder to pay a sum sufficient to cover any transfer tax assessments or similar governmental charge payable in connection therewith (other than any such transfer taxes, assessments or similar governmental charges payable upon exchange or transfer pursuant to Sections 2.2, 2.6, 2.11, 2.13, 3.5, 5.6 or 9.5).
The Company (and the Registrar) shall not be required to register the transfer of or exchange of any Note (A) for a period beginning (1) 15 calendar days before the sending of a notice of an offer to repurchase or redeem Notes and ending at the close of business on the day of such sending or (2) 15 calendar days before an interest payment date and ending on such interest payment date or (B) called for redemption, except the unredeemed portion of any Note being redeemed in part.
Prior to the due presentation for registration of transfer of any Note, the Company, the Trustee, the Paying Agent or the Registrar may deem and treat the person in whose name a Note is registered as the owner of such Note for the purpose of receiving payment of principal of, premium, if any, and (subject to paragraph 2 of the forms of Notes attached hereto as Exhibits A, B and C) interest on such Note and for all other purposes whatsoever, including without limitation the transfer or exchange of such Note, whether or not such Note is overdue, and none of the Company, the Trustee, the Paying Agent or the Registrar shall be affected by notice to the contrary.
Any Definitive Note delivered in exchange for an interest in a Global Note pursuant to Section 2.1(h) shall, except as otherwise provided by Section 2.6(d), bear the applicable legend regarding transfer restrictions applicable to the Definitive Note set forth in Section 2.1(d).
All Notes issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same debt and shall be entitled to the same benefits under this Indenture as the Notes surrendered upon such transfer or exchange.
 
-76-

(h)     No Obligation of the Trustee . (1) The Trustee shall have no responsibility or obligation to any beneficial owner of a Global Note, a member of, or a participant in, DTC or other Person with respect to the accuracy of the records of DTC or its nominee or of any participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than DTC) of any notice (including any notice of redemption or purchase) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be DTC or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through DTC subject to the applicable rules and procedures of DTC. The Trustee may rely and shall be fully protected in relying upon information furnished by DTC with respect to its members, participants and any beneficial owners.
Neither the Trustee nor the Registrar shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among DTC participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof. None of the Trustee, the Registrar or any of their respective agents shall have any responsibility for any actions taken or not taken by DTC.
Section 2.7.     Form of Certificate to be Delivered upon Termination of Restricted Period .
[Date]
Atento Luxco 1 S.A.
4 rue Lou Hemmer
L-1748 Luxembourg-Findel
Attention: Vishal Jugdeb
Wilmington Trust, National Association
Corporate Capital Markets
50 South Sixth Street, Suite 1290
Minneapolis, MN 55402-1544
Attention: Atento Administrator
Facsimile: (612) 217-5651
 
-77-

with a copy to:
Kirkland & Ellis LLP
601 Lexington Avenue
New York, New York 10022
Attention: Joshua N. Korff
Facsimile: (212) 446 4900
Re:    Atento Luxco 1 S.A. (the “ Company ”).
6.125% Senior Secured Notes due 2022 (the “ Notes ”)
Ladies and Gentlemen:
This letter relates to Notes represented by a temporary global Note (the “ Temporary Regulation S Global Note ”). Pursuant to Section 2.1 of this Indenture dated as of August 10, 2017 relating to the Notes (the “ Indenture ”), we hereby certify that the persons who are the beneficial owners of $[        ] principal amount of Notes represented by the Temporary Regulation S Global Note are persons outside the United States to whom beneficial interests in such Notes could be transferred in accordance with Rule 904 of Regulation S promulgated under the Securities Act of 1933, as amended. Accordingly, you are hereby requested to issue a Permanent Regulation S Global Note representing the undersigned’s interest in the principal amount of Notes represented by the Temporary Regulation S Global Note, all in the manner provided by this Indenture. We certify that we [are][are not] an Affiliate of the Company.
The Trustee and the Company are entitled to conclusively rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this letter have the meanings set forth in Regulation S.

Very truly yours,	
	
[Name of Transferor]	
		
By:	 	 	
	 	Authorized Signature	
Section 2.8.     Form of Certificate to be Delivered in Connection with Transfers to IAIs .
[Date]
Atento Luxco 1 S.A.
4 rue Lou Hemmer
L-1748 Luxembourg-Findel
Attention: Vishal Jugdeb
 
-78-

Wilmington Trust, National Association
Corporate Capital Markets
50 South Sixth Street, Suite 1290
Minneapolis, MN 55402-1544
Attention: Atento Administrator
Facsimile: (612) 217-5651
Re:    Atento Luxco 1 S.A. (the “ Company ”).
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $[        ] principal amount of the 6.125% Senior Secured Notes due 2022 (the “ Notes ”) of Atento Luxco 1 S.A. (the “ Company ”).
Upon transfer, the Notes would be registered in the name of the new beneficial owner as follows:
Name:                                                                              
Address:                                                                           
Taxpayer ID Number:                                                      
The undersigned represents and warrants to you that:
1.    We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the “ Securities Act ”)) purchasing for our own account or for the account of such an institutional “accredited investor” at least $250,000 principal amount of the Notes, and we are acquiring the Notes not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act. We have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risk of our investment in the Notes and we invest in or purchase securities similar to the Notes in the normal course of our business. We and any accounts for which we are acting are each able to bear the economic risk of our or its investment.
2.    We understand that the Notes have not been registered under the Securities Act and, unless so registered, may not be sold except as permitted in the following sentence. We agree on our own behalf and on behalf of any investor account for which we are purchasing Notes to offer, sell or otherwise transfer such Notes prior to the date that is one year after the later of the date of original issue and the last date on which the Company or any affiliate of the Company was the owner of such Notes (or any predecessor thereto) (the “ Resale Restriction Termination Date ”) only (a) to the Company, (b) pursuant a registration statement that has been declared effective under the Securities Act, (c) for so long as the Notes are eligible for resale pursuant to Rule 144A under the Securities Act (“ Rule 144A ”) in a transaction complying with the requirements of Rule 144A under the Securities Act, to a person we reasonably believe is a “qualified
 
-79-

institutional buyer” under Rule 144A of the Securities Act (a “ QIB ”) that is purchasing for its own account or for the account of a QIB and to whom notice is given that the transfer is being made in reliance on Rule 144A, (d) pursuant to offers and sales to non U.S. persons that occur outside the United States within the meaning of Regulation S under the Securities Act, (e) to an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is an institutional accredited investor purchasing for its own account or for the account of another institutional “accredited investor,” in each case in a minimum principal amount of Notes of $250,000 for investment purposes and not with a view to or for offer or sale in connection with any distribution in violation of the Securities Act or (f) pursuant to Rule 144 or another available exemption from the registration requirements of the Securities Act, subject in each of the foregoing cases to any requirement of law that the disposition of our property or the property of such investor account or accounts be at all times within our or their control and in compliance with any applicable state securities laws. The foregoing restrictions on resale will not apply subsequent to the Resale Restriction Termination Date. If any resale or other transfer of the Notes is proposed to be made pursuant to clause (e) above prior to the Resale Restriction Termination Date, the transferor shall deliver a letter from the transferee substantially in the form of this letter to the Company and the Trustee, which shall provide, among other things, that the transferee is an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and that it is acquiring such Notes for investment purposes and not for distribution in violation of the Securities Act. Each purchaser acknowledges that the Company and the Trustee reserve the right prior to any offer, sale or other transfer prior to the Resale Termination Date of the Notes pursuant to clauses (d), (e) or (f) above to require the delivery of an opinion of counsel, certifications and/or other information satisfactory to the Registrar and the Company.
3.    We [are][are not] an Affiliate of the Company.

TRANSFEREE:                                                               	
		
By:	 	                                                                                   	
Section 2.9.     Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regulation S .
[Date]
Atento Luxco 1 S.A.
4 rue Lou Hemmer
L-1748 Luxembourg-Findel
 
-80-

Attention: Vishal Jugdeb
Wilmington Trust, National Association
Corporate Capital Markets
50 South Sixth Street, Suite 1290
Minneapolis, MN 55402-1544
Attention: Atento Administrator
Facsimile: (612) 217-5651
Re:    Atento Luxco 1 S.A. (the “ Company ”).
6.125% Senior Secured Notes due 2022 (the “ Notes ”)
Ladies and Gentlemen:
In connection with our proposed sale of $[        ] aggregate principal amount of the Notes, we confirm that such sale has been effected pursuant to and in accordance with Regulation S under the United States Securities Act of 1933, as amended (the “ Securities Act ”), and, accordingly, we represent that:
(a)    the offer of the Notes was not made to a person in the United States;
(b)    either (i) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (ii) the transaction was executed in, on or through the facilities of a designated off shore securities market and neither we nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States;
(c)    no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(a)(2) or Rule 904(a)(2) of Regulation S, as applicable; and
(d)    the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period and the provisions of Rule 903(b)(2), Rule 903(b)(3) or Rule 904(b)(1) of Regulation S are applicable thereto, we confirm that such sale has been made in accordance with the applicable provisions of Rule 903(b)(2), Rule 903(b)(3) or Rule 904(b)(1), as the case may be.
We also hereby certify that we [are][are not] an Affiliate of the Company and, to our knowledge, the transferee of the Notes [is][is not] an Affiliate of the Company.
The Trustee and the Company are entitled to conclusively rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S.
 
-81-

			
Very truly yours,	
	
[Name of Transferor]	
		
By:	 	 	
	 	Authorized Signature	
Section 2.10.     Form of Certificate to be Delivered in Connection with Transfers to AIs .
[Date]
Atento Luxco 1 S.A.
4 rue Lou Hemmer
L-1748 Luxembourg-Findel
Attention: Vishal Jugdeb
Wilmington Trust, National Association
Corporate Capital Markets
50 South Sixth Street, Suite 1290
Minneapolis, MN 55402-1544
Attention: Atento Administrator
Facsimile: (612) 217-5651
Re:    Atento Luxco 1 S.A. (the “ Company ”).
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $[        ] principal amount of the 6.125% Senior Secured Notes due 2022 (the “ Notes ”) of the Company.
Upon transfer, the Notes would be registered in the name of the new beneficial owner as follows:
Name:                                                                              
Address:                                                                           
Taxpayer ID Number:                                                      
 
-82-

The undersigned represents and warrants to you that:
1.    I am an “accredited investor” (as defined in Rule 501(a)(4) under the U.S. Securities Act of 1933, as amended (the “ Securities Act ”)) and I am acquiring the Notes not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act. I have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risk of my investment in the Notes and I invest in or purchase securities similar to the Notes in the normal course of my business. I am able to bear the economic risk of my investment.
2.    I understand that the Notes have not been registered under the Securities Act and, unless so registered, may not be sold except as permitted in the following sentence. I agree on my own behalf to offer, sell or otherwise transfer such Notes prior to the date that is one year after the later of the date of original issue and the last date on which the Company or any affiliate of the Company was the owner of such Notes (or any predecessor thereto) (the “ Resale Restriction Termination Date ”) only (a) to the Company, (b) pursuant a registration statement that has been declared effective under the Securities Act, (c) for so long as the Notes are eligible for resale pursuant to Rule 144A under the Securities Act (“ Rule 144A ”) in a transaction complying with the requirements of Rule 144A under the Securities Act, to a person we reasonably believe is a “qualified institutional buyer” under Rule 144A of the Securities Act (a “ QIB ”) that is purchasing for its own account or for the account of a QIB and to whom notice is given that the transfer is being made in reliance on Rule 144A, (d) pursuant to offers and sales to non U.S. persons that occur outside the United States within the meaning of Regulation S under the Securities Act, (e) to an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is an institutional accredited investor purchasing for its own account or for the account of another institutional “accredited investor,” in each case in a minimum principal amount of Notes of $250,000 for investment purposes and not with a view to or for offer or sale in connection with any distribution in violation of the Securities Act or (f) pursuant to Rule 144 or another available exemption from the registration requirements of the Securities Act, subject in each of the foregoing cases to any requirement of law that the disposition of our property or the property of such investor account or accounts be at all times within our or their control and in compliance with any applicable state securities laws. The foregoing restrictions on resale will not apply subsequent to the Resale Restriction Termination Date. Each purchaser acknowledges that the Company and the Registrar reserve the right prior to any offer, sale or other transfer prior to the Resale Termination Date of the Notes pursuant to clauses (d), (e) or (f) above to require the delivery of an opinion of counsel, certifications and/or other information satisfactory to the Company.
3.    I understand and acknowledge that upon the issuance thereof, and until such time as the same is no longer required under applicable requirements of the Securities Act or state securities laws, the Notes that I acquire will be certificated Notes that will bear, and all certificates issued in exchange therefor or in substitution thereof will bear, a restrictive legend set forth in Section 2.1(d) of this Indenture.
4.    I am an Affiliate of the Company.
 
-83-

			
TRANSFEREE:                                                           	
		
By:	 	                                                                             	
Section 2.11.     Mutilated, Destroyed, Lost or Stolen Notes .
If a mutilated Note is surrendered to the Registrar or if the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement Note if the requirements of Section 8 405 of the UCC are met, such that the Holder (a) satisfies the Company and the Trustee that such Note has been lost, destroyed or wrongfully taken within a reasonable time after such Holder has notice of such loss, destruction or wrongful taking and the Registrar has not registered a transfer prior to receiving such notification, (b) makes such request to the Company and the Trustee prior to the Note being acquired by a protected purchaser as defined in Section 8 303 of the UCC (a “ protected purchaser ”) and (c) satisfies any other reasonable requirements of the Trustee; provided , however , if after the delivery of such replacement Note, a protected purchaser of the Note for which such replacement Note was issued presents for payment or registration such replaced Note, the Trustee and/or the Company shall be entitled to recover such replacement Note from the Person to whom it was issued and delivered or any Person taking therefrom, except a protected purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Company or the Trustee in connection therewith. Such Holder shall furnish an indemnity bond sufficient in the judgment of the (i) Trustee to protect the Trustee and (ii) the Company to protect the Company, the Trustee, the Paying Agent and the Registrar, from any loss which any of them may suffer if a Note is replaced, and, in the absence of notice to the Company, any Guarantor or the Trustee that such Note has been acquired by a protected purchaser, the Company shall execute, and upon receipt of a Company Order, the Trustee shall authenticate and make available for delivery, in exchange for any such mutilated Note or in lieu of any such destroyed, lost or stolen Note, a new Note of like tenor and principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable, the Company in their discretion may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section 2.11, the Company may require that such Holder pay a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of counsel and of the Trustee) in connection therewith.
 
-84-

Subject to the proviso in the initial paragraph of this Section 2.11, every new Note issued pursuant to this Section 2.11, in lieu of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Company, any Guarantor (if applicable) and any other obligor upon the Notes, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section 2.11 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.12.     Outstanding Notes . Notes outstanding at any time are all Notes authenticated by the Trustee except for those cancelled by it, those delivered to it for cancellation, those paid pursuant to Section 2.11 and those described in this Section as not outstanding. A Note does not cease to be outstanding in the event the Company or an Affiliate of the Company holds the Note; provided , however , that (i) for purposes of determining which are outstanding for consent or voting purposes hereunder, the provisions of Section 13.6 shall apply and (ii) in determining whether the Trustee shall be protected in making a determination whether the Holders of the requisite principal amount of outstanding Notes are present at a meeting of Holders of Notes for quorum purposes or have consented to or voted in favor of any request, demand, authorization, direction, notice, consent, waiver, amendment or modification hereunder, or relying upon any such quorum, consent or vote, only Notes which a Trust Officer of the Trustee actually knows to be held by the Company or an Affiliate of the Company shall not be considered outstanding.
If a Note is replaced pursuant to Section 2.11 (other than a mutilated Note surrendered for replacement), it ceases to be outstanding unless the Trustee and the Company receive proof satisfactory to them that the replaced Note is held by a protected purchaser. A mutilated Note ceases to be outstanding upon surrender of such Note and replacement pursuant to Section 2.11.
If the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a Redemption Date or maturity date, money sufficient to pay all principal, premium, if any, and accrued interest payable on that date with respect to the Notes (or portions thereof) to be redeemed or maturing, as the case may be, and the Paying Agent is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture, then on and after that date such Notes (or portions thereof) cease to be outstanding and interest on them ceases to accrue.
Section 2.13.     Temporary Notes . In the event that Definitive Notes are to be issued under the terms of this Indenture, until such Definitive Notes are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Notes. Temporary Notes shall be substantially in the form, and shall carry all rights, of Definitive Notes but may have variations that the Company consider appropriate for temporary Notes. Without unreasonable delay, the Company shall prepare and the
 
-85-

Trustee shall authenticate Definitive Notes. After the preparation of Definitive Notes, the temporary Notes shall be exchangeable for Definitive Notes upon surrender of the temporary Notes at any office or agency maintained by the Company for that purpose and such exchange shall be without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Company shall execute, and the Trustee shall, upon receipt of a Company Order, authenticate and make available for delivery in exchange therefor, one or more Definitive Notes representing an equal principal amount of Notes. Until so exchanged, the Holder of temporary Notes shall in all respects be entitled to the same benefits under this Indenture as a Holder of Definitive Notes.
Section 2.14.     Cancellation . The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment or cancellation and dispose of such Notes in accordance with its internal policies and customary procedures (subject to the record retention requirements of the Exchange Act and the Trustee). If the Company or any Guarantor acquires any of the Notes, such acquisition shall not operate as a redemption or satisfaction of the Indebtedness represented by such Notes unless and until the same are surrendered to the Trustee for cancellation pursuant to this Section 2.14. The Company may not issue new Notes to replace Notes it has paid or delivered to the Trustee for cancellation for any reason other than in connection with a transfer or exchange.
At such time as all beneficial interests in a Global Note have either been exchanged for Definitive Notes, transferred, redeemed, repurchased or canceled, such Global Note shall be returned by DTC or the applicable Notes Custodian to the Trustee for cancellation or retained and canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for Definitive Notes, transferred in exchange for an interest in another Global Note, redeemed, repurchased or canceled, the principal amount of Notes represented by such Global Note shall be reduced and an adjustment shall be made on the books and records of the Trustee (if it is then the Notes Custodian for such Global Note) with respect to such Global Note, by the Trustee or the Notes Custodian, to reflect such reduction.
Section 2.15.     Payment of Interest; Defaulted Interest . Interest on any Note which is payable, and is punctually paid or duly provided for, on any interest payment date shall be paid to the Person in whose name such Note (or one or more Predecessor Notes) is registered at the close of business on the regular record date for such payment at the office or agency of the Company maintained for such purpose pursuant to Section 2.3.
Any interest on any Note which is payable, but is not paid when the same becomes due and payable and such nonpayment continues for a period of 30 days shall forthwith cease to be payable to the Holder on the regular record date, and such defaulted interest and (to the extent lawful) interest on such defaulted interest at the rate borne by the Notes (such defaulted interest and interest thereon herein collectively called
 
-86-

“ Defaulted Interest ”) shall be paid by the Company, at its election in each case, as provided in clause (a) or (b) below:
(a)    The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on a Special Record Date (as defined below) for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date (not less than 30 days after such notice) of the proposed payment (the “ Special Interest Payment Date ”), and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Section 2.15(a). Thereupon the Company shall fix a record date (the “ Special Record Date ”) for the payment of such Defaulted Interest, which date shall be not more than 20 calendar days and not less than 15 calendar days prior to the Special Interest Payment Date and not less than 10 calendar days after the receipt by the Trustee of the notice of the proposed payment. The Company shall promptly notify the Trustee in writing of such Special Record Date, and in the name of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor to be given in the manner provided for in Section 13.2, not less than 10 calendar days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor having been so given, such Defaulted Interest shall be paid on the Special Interest Payment Date to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the provisions in Section 2.15(b).
(b)    The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after written notice given by the Company to the Trustee of the proposed payment pursuant to this Section 2.15(b), such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.15, each Note delivered under this Indenture upon registration of, transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
Section 2.16.     CUSIP and ISIN Numbers . The Company in issuing the Notes may use “CUSIP” and “ISIN” numbers and, if so, the Trustee shall use “CUSIP and “ISIN” numbers in notices of redemption or purchase as a convenience to Holders; provided , however , that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption or purchase and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption or purchase shall not be affected by any defect in or omission of such CUSIP and ISIN numbers. The Company shall promptly notify the Trustee in writing of any change in the CUSIP and ISIN numbers.
 
-87-

Section 2.17.     Joint and Several Liability . Except as otherwise expressly provided herein, the Company and the Guarantors shall be jointly and severally liable for the performance of all obligations and covenants under this Indenture, the Notes and the Collateral Documents.
ARTICLE III
C OVENANTS
Section 3.1.     Payment of Notes . The Company shall promptly pay the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes and in this Indenture. Principal, premium, if any, and interest shall be considered paid on the date due if by 10:00 a.m. Eastern time on such date the Trustee or the Paying Agent holds in accordance with this Indenture money sufficient to pay all principal, premium, if any, and interest then due and the Trustee or the Paying Agent, as the case may be, is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the rate specified therefor in the Notes, and it shall pay interest on overdue installments of interest at the same rate to the extent lawful.
Notwithstanding anything to the contrary contained in this Indenture, the Company may, to the extent required to do so by law, deduct or withhold income or other similar taxes imposed by the United States of America from principal or interest payments hereunder.
Section 3.2.     Limitation on Indebtedness .
(a)    The Company will not, and will not permit any of the Restricted Subsidiaries to, Incur any Indebtedness (including Acquired Indebtedness); provided , however , that the Company and any of the Restricted Subsidiaries may Incur Indebtedness (including Acquired Indebtedness), if on the date of such Incurrence and after giving pro forma effect thereto (including pro forma application of the proceeds thereof), the Fixed Charge Coverage Ratio of the Company and the Restricted Subsidiaries is greater than 2.00 to 1.00; provided , further , that Non-Guarantors may not Incur Indebtedness under this paragraph if, after giving pro forma effect to such Incurrence (including a pro forma application of the net proceeds therefrom), more than an aggregate of the greater of (a) $45.0 million and (b) 20% of LTM EBITDA of Indebtedness of Non-Guarantors would be outstanding pursuant to this paragraph at such time.
 
-88-

(b)    Section 3.2(a) will not prohibit the Incurrence of the following Indebtedness (collectively, the “ Permitted Debt ”):
(1)    Indebtedness Incurred under any Credit Facility (including letters of credit or bankers’ acceptances issued or created under any Credit Facility), and Guarantees in respect of such Indebtedness, up to an aggregate principal amount at the time of Incurrence not exceeding (i) the greater of (a) $115.0 million and (b) 50% of LTM EBITDA, plus (ii) in the case of any refinancing of any Indebtedness permitted under this clause or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums (including tender premiums) and other costs and expenses (including original issue discount, upfront fees or similar fees) Incurred or payable in connection with such refinancing, and any Refinancing Indebtedness in respect thereof;
(2)    Guarantees by the Company or any Restricted Subsidiary of Indebtedness or other obligations of the Company or any Restricted Subsidiary so long as the Incurrence of such Indebtedness or other obligations is not prohibited by the terms of this Indenture;
(3)    Indebtedness of the Company owing to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owing to and held by the Company or any Restricted Subsidiary; provided , however , that:
(a)    any subsequent issuance or transfer of Capital Stock or any other event which results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary, and
(b)    any sale or other transfer of any such Indebtedness to a Person other than the Company or a Restricted Subsidiary,
shall be deemed, in each case, to constitute an Incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be;
(4)    Indebtedness represented by (a) the Notes (other than any Additional Notes), including any Guarantee thereof, (b) any Indebtedness (other than Indebtedness Incurred pursuant to clauses (1) and (3) above) outstanding on the Issue Date, and any Guarantees thereof, (c) Refinancing Indebtedness (including, with respect to the Notes and any Guarantee thereof) Incurred in respect of any Indebtedness described in this clause (4) or clauses (5), (9) or (10) of this Section 3.2(b) or Incurred pursuant to Section 3.2(a), and (d) Management Advances;
(5)    Indebtedness of (x) the Company or any Restricted Subsidiary Incurred or issued to finance an acquisition or (y) Persons that are acquired by the Company or any Restricted Subsidiary or merged into, amalgamated or consolidated with the Company or a Restricted Subsidiary in accordance with the terms of this Indenture; provided that such Indebtedness is in an aggregate amount not to exceed
 
-89-

(i)    the greater of $60.0 million and 30% of LTM EBITDA at the time of Incurrence plus
(ii)    unlimited additional Indebtedness if after giving effect to such acquisition, merger or consolidation, either
(a)    the Company would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to Section 3.2(a), or
(b)    the Fixed Charge Coverage Ratio of the Company and the Restricted Subsidiaries would not be lower than it was immediately prior to such acquisition, merger, amalgamation or consolidation, or
(c)    such Indebtedness constitutes Acquired Indebtedness (other than Indebtedness Incurred in contemplation of the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Company or a Restricted Subsidiary); provided that, in the case of this clause (c), the only obligors with respect to such Indebtedness shall be those Persons who were obligors of such Indebtedness prior to such acquisition, merger or consolidation;
(6)    Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes);
(7)    Indebtedness represented by Capitalized Lease Obligations or Purchase Money Obligations in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause and then outstanding, does not exceed the greater of (a) $45.0 million and (b) 20% of LTM EBITDA at the time of Incurrence and any Refinancing Indebtedness in respect thereof;
(8)    Indebtedness in respect of (a) workers’ compensation claims, self-insurance obligations, customer guarantees, performance, indemnity, surety, judgment, appeal, advance payment (including progress premiums), customs, value added or other tax or other guarantees or other similar bonds, instruments or obligations and completion guarantees and warranties provided by the Company or a Restricted Subsidiary or relating to liabilities, obligations or guarantees Incurred in the ordinary course of business or consistent with past practice; (b) the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or consistent with past practice; provided , however , that such Indebtedness is extinguished within five Business Days of Incurrence; (c) customer deposits and advance payments (including progress premiums) received in the ordinary course of business or consistent with past practice from customers for goods or services
 
-90-

purchased in the ordinary course of business or consistent with past practice; (d) letters of credit, bankers’ acceptances, warehouse receipts, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business or consistent with past practice; (e) any customary treasury, depositary, cash management, automatic clearinghouse arrangements, overdraft protection, credit or debit card, purchase card, electronic funds transfer, cash pooling or netting or setting off arrangements or similar arrangements in the ordinary course of business; or consistent with past practice and (f) Settlement Indebtedness;
(9)    Indebtedness arising from agreements providing for guarantees, indemnification, obligations in respect of earn-outs or other adjustments of purchase price or, in each case, similar obligations, in each case, Incurred or assumed in connection with the acquisition or disposition of any business or assets or Person or any Capital Stock of a Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring or disposing of such business or assets or such Subsidiary for the purpose of financing such acquisition or disposition); provided that the maximum liability of the Company and the Restricted Subsidiaries in respect of all such Indebtedness in connection with a disposition shall at no time exceed the gross proceeds, including the fair market value of non-cash proceeds (measured at the time received and without giving effect to any subsequent changes in value), actually received by the Company and the Restricted Subsidiaries in connection with such disposition;
(10)    Indebtedness in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause and then outstanding, will not exceed 100% of the Net Cash Proceeds received by the Company from the issuance or sale (other than to a Restricted Subsidiary) of its Capital Stock or otherwise contributed to the equity (in each case, other than through the issuance of Disqualified Stock, Designated Preferred Stock or an Excluded Contribution) of the Company, in each case, subsequent to the Issue Date and any Refinancing Indebtedness in respect thereof; provided , however , that (i) any such Net Cash Proceeds that are so received or contributed shall not increase the amount available for making Restricted Payments to the extent the Company and the Restricted Subsidiaries Incur Indebtedness in reliance thereon and (ii) any Net Cash Proceeds that are so received or contributed shall be excluded for purposes of Incurring Indebtedness pursuant to this clause to the extent such Net Cash Proceeds or cash have been applied to make Restricted Payments;
(11)    Indebtedness of Non-Guarantors in an aggregate amount not to exceed the greater of (a) $45.0 million and (b) 20% of LTM EBITDA at the time of Incurrence, and any Refinancing Indebtedness in respect thereof;
(12)    Indebtedness consisting of promissory notes issued by the Company or any of its Subsidiaries to any future, present or former employee, director, contractor or consultant of the Company, any of its Subsidiaries or any
 
-91-

Parent Entity (or permitted transferees, assigns, estates, heirs or any spouse or former spouse of such employee, director, contractor or consultant), to finance the purchase or redemption of Capital Stock of the Company or any Parent Entity that is permitted by Section 3.3;
(13)    Indebtedness of the Company or any of the Restricted Subsidiaries consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case Incurred in the ordinary course of business or consistent with past practice;
(14)    Indebtedness in an aggregate outstanding principal amount which when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause (14) and then outstanding will not exceed the greater of (a) $100.0 million and (b) 45% of LTM EBITDA, and any Refinancing Indebtedness in respect thereof;
(15)    Indebtedness Incurred in respect of a Qualified Securitization Financing, which is non-recourse other than Standard Securitization Undertakings, or any Receivables Facility;
(16)    Indebtedness of the seller of any business or assets permitted to be acquired by the Company or any Restricted Subsidiary under this Indenture; provided that the aggregate amount of Indebtedness Incurred pursuant to this clause and then outstanding will not exceed $30.0 million;
(17)    any obligation, or guaranty of any obligation, of the Company or any Restricted Subsidiary to reimburse or indemnify a Person extending credit to customers of the Company or a Restricted Subsidiary incurred in the ordinary course of business or consistent with past practice for all or any portion of the amounts payable by such customers to the Person extending such credit;
(18)    Indebtedness to a customer to finance the acquisition of any equipment necessary to perform services for such customer; provided that the terms of such Indebtedness are consistent with those entered into with respect to similar Indebtedness prior to the Issue Date, including that (1) the repayment of such Indebtedness is conditional upon such customer ordering a specific volume of goods and (2) such Indebtedness does not bear interest or provide for scheduled amortization or maturity;
(19)    obligations in respect of Disqualified Stock in an amount not to exceed $30.0 million outstanding at the time of Incurrence; and
(20)    Indebtedness of the Company or any of its Restricted Subsidiaries arising pursuant to any Permitted Tax Restructuring.
 
-92-

(c)    For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 3.2:
(1)    in the event that all or any portion of any item of Indebtedness meets the criteria of more than one of the types of Indebtedness described in Sections 3.2(a) and 3.2(b), the Company, in its sole discretion, will classify, and may from time to time reclassify, such item of Indebtedness and only be required to include the amount and type of such Indebtedness in Section 3.2(a) or one of the clauses of Section 3.2(b);
(2)    additionally, all or any portion of any item of Indebtedness may later be reclassified as having been Incurred pursuant to any type of Indebtedness described in Sections 3.2(a) and 3.2(b) so long as such Indebtedness is permitted to be Incurred pursuant to such provision and any related Liens are permitted to be Incurred at the time of reclassification;
(3)    in the case of any Refinancing Indebtedness, when measuring the outstanding amount of such Indebtedness such amount shall not include the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums (including, without limitation, tender premiums) and other costs and expenses (including, without limitation, original issue discount, upfront fees or similar fees) Incurred or payable in connection with such refinancing;
(4)    Guarantees of, or obligations in respect of letters of credit, bankers’ acceptances or other similar instruments relating to, or Liens securing, Indebtedness that is otherwise included in the determination of a particular amount of Indebtedness shall not be included;
(5)    if obligations in respect of letters of credit, bankers’ acceptances or other similar instruments are Incurred pursuant to any Credit Facility and are being treated as Incurred pursuant to of Section 3.2(a) or Section 3.2(b) and the letters of credit, bankers’ acceptances or other similar instruments relate to other Indebtedness, then such other Indebtedness shall not be included;
(6)    the principal amount of any Disqualified Stock of the Company or a Restricted Subsidiary, or Preferred Stock of a Restricted Subsidiary, will be equal to the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof;
(7)    Indebtedness permitted by this Section 3.2 need not be permitted solely by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this Section 3.2 permitting such Indebtedness;
(8)    in the event that the Company or a Restricted Subsidiary enters into or increases commitments under a revolving credit facility enters into any commitment to Incur or issue Indebtedness, Disqualified Stock or Preferred Stock or commits to Incur any Lien pursuant to clause (33) of the definition of “Permitted Liens,” the incurrence or issuance thereof for all purposes under this
 
-93-

Indenture, including without limitation for purposes of calculating the Fixed Charge Coverage Ratio, the Consolidated First Lien Secured Leverage Ratio or the Consolidated Total Leverage Ratio, as applicable, or usage of clauses (1) through (20) of Section 3.2(b) (if any) for borrowings and reborrowings thereunder (and including issuance and creation of letters of credit and bankers’ acceptances thereunder) will, at the Company’s option, either (a) be determined on the date of such revolving credit facility or such entry into or increase in commitments (assuming that the full amount thereof has been borrowed as of such date) or other Indebtedness, Disqualified Stock or Preferred Stock, and, if such Fixed Charge Coverage Ratio, the Consolidated First Lien Secured Leverage Ratio or the Consolidated Total Leverage Ratio, as applicable, test or other provision of this Indenture is satisfied with respect thereto at such time, any borrowing or reborrowing thereunder (and the issuance and creation of letters of credit and bankers’ acceptances thereunder) will be permitted under this covenant irrespective of the Fixed Charge Coverage Ratio, the Consolidated First Lien Secured Leverage Ratio or the Consolidated Total Leverage Ratio, as applicable, or other provision of this Indenture at the time of any borrowing or reborrowing (or issuance or creation of letters of credit or bankers’ acceptances thereunder) (the committed amount permitted to be borrowed or reborrowed (and the issuance and creation of letters of credit and bankers’ acceptances) on a date pursuant to the operation of this clause (a) shall be the “Reserved Indebtedness Amount” as of such date for purposes of the Fixed Charge Coverage Ratio, the Consolidated First Lien Secured Leverage Ratio or the Consolidated Total Leverage Ratio, as applicable) or (b) be determined on the date such amount is borrowed pursuant to any such facility or increased commitment, and in each case, the Company may revoke such determination at any time and from time to time;
(9)    in the event that the Company or a Restricted Subsidiary (x) incurs Indebtedness to finance an acquisition or (y) assumes Indebtedness of Persons that are acquired by the Company or any Restricted Subsidiary or merged into the Company or a Restricted Subsidiary in accordance with the terms of this Indenture, the date of determination of the Fixed Charge Coverage Ratio, the Consolidated First Lien Secured Leverage Ratio or the Consolidated Total Leverage Ratio, as applicable, shall, at the option of the Company, be (a) the date that a definitive agreement for such acquisition is entered into and the Fixed Charge Coverage Ratio, the Consolidated First Lien Secured Leverage Ratio or the Consolidated Total Leverage Ratio, as applicable, shall be calculated giving pro forma effect to such acquisition and any actions or transactions related thereto (including acquisitions, Investments, the Incurrence or issuance of Indebtedness, Disqualified Stock or Preferred Stock and the use of proceeds thereof) consistent with the definition of the Fixed Charge Coverage Ratio, the Consolidated First Lien Secured Leverage Ratio or the Consolidated Total Leverage Ratio, as applicable, and, for the avoidance of doubt, (A) if any such ratios are exceeded as a result of fluctuations in such ratio (including due to fluctuations in the Consolidated EBITDA of the Company or the target company) at or prior to the consummation of the relevant acquisition, such ratios will not be deemed to have been exceeded as a result of such fluctuations solely for purposes of determining
 
-94-

whether such acquisition and any related transactions are permitted hereunder and (B) such ratios shall not be tested at the time of consummation of such acquisition or related transactions; provided , further , that if the Company elects to have such determinations occur at the time of entry into such definitive agreement, (i) any such transaction shall be deemed to have occurred on the date the definitive agreement is entered into and to be outstanding thereafter for purposes of calculating any ratios under this Indenture after the date of such agreement and before the earlier of the date of consummation of such acquisition or the date such agreement is terminated or expires without consummation of such acquisition and (ii) to the extent any covenant baskets were utilized in satisfying any covenants, such baskets shall be deemed utilized until the earlier of the date of consummation of such acquisition or the date such agreement is terminated or expires without consummation of such acquisition, but any calculation of Consolidated EBITDA for purposes of other incurrences of Indebtedness or Liens or making of Restricted Payments (not related to such acquisition) shall not reflect such acquisition until it has been consummated or (b) the date such Indebtedness is Incurred or assumed;
(10)    notwithstanding anything in this covenant to the contrary, in the case of any Indebtedness incurred to refinance Indebtedness initially incurred in reliance on a clause of the second paragraph of this covenant measured by reference to a percentage of LTM EBITDA at the time of Incurrence, if such refinancing would cause the percentage of LTM EBITDA restriction to be exceeded if calculated based on the percentage of LTM EBITDA on the date of such refinancing, such percentage of LTM EBITDA restriction shall not be deemed to be exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus premiums (including tender premiums), defeasance, costs and fees in connection with such refinancing; and
(11)    the amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined on the basis of IFRS.
(d)    Accrual of interest, accrual of dividends, the accretion of accreted value, the accretion or amortization of original issue discount, the payment of interest in the form of additional Indebtedness, the payment of dividends in the form of additional shares of Preferred Stock or Disqualified Stock or the reclassification of commitments or obligations not treated as Indebtedness due to a change in IFRS, will not be deemed to be an Incurrence of Indebtedness for purposes of this Section 3.2.
(e)    If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary as of such date (and, if such Indebtedness is not permitted to be Incurred as of such date under this Section 3.2, the Company shall be in default of this Section 3.2).
 
-95-

(f)    For purposes of determining compliance with any Dollar-denominated restriction on the Incurrence of Indebtedness, the Dollar equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was Incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided , that if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (a) the principal amount of such Indebtedness being refinanced plus (b) the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums (including, without limitation, tender premiums) and other costs and expenses (including, without limitation, original issue discount, upfront fees or similar fees) Incurred or payable in connection with such refinancing.
(g)    Notwithstanding any other provision of this Section 3.2, the maximum amount of Indebtedness that the Company or a Restricted Subsidiary may Incur pursuant to this Section 3.2 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Refinancing Indebtedness is denominated that is in effect on the date of such refinancing.
(h)    The Company will not, and will not permit any Guarantor to, directly or indirectly, Incur any Indebtedness (including Acquired Indebtedness) that is subordinated or junior in right of payment to any Indebtedness of the Company or such Guarantor, as the case may be, unless such Indebtedness is expressly subordinated in right of payment to the Notes or such Guarantor’s Note Guarantee to the extent and in the same manner as such Indebtedness is subordinated to other Indebtedness of the Company or such Guarantor, as the case may be.
Section 3.3.     Limitation on Restricted Payments .
(a)    The Company shall not, and shall not permit any of the Restricted Subsidiaries, directly or indirectly, to:
(1)    declare or pay any dividend or make any distribution on or in respect of the Company’s or any Restricted Subsidiary’s Capital Stock (including, without limitation, any such payment in connection with any merger or consolidation involving the Company or any of the Restricted Subsidiaries) except:
(i)    dividends or distributions payable in Capital Stock of the Company (other than Disqualified Stock) or in options, warrants or other rights to purchase such Capital Stock of the Company; and
 
-96-

(ii)    dividends or distributions payable to the Company or a Restricted Subsidiary (and, in the case of the Company or any such Restricted Subsidiary making such dividend or distribution, to holders of its Capital Stock other than the Company or another Restricted Subsidiary on no more than a pro rata basis);
(2)    purchase, repurchase, redeem, retire or otherwise acquire or retire for value any Capital Stock of the Company or any Parent Entity held by Persons other than the Company or a Restricted Subsidiary;
(3)    purchase, repurchase, redeem, defease or otherwise acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Indebtedness (it being understood that payments of regularly schedule principal, interest and mandatory prepayment, redemptions or offer to purchase shall be permitted) other than (i) any such purchase, repurchase, redemption, defeasance or other acquisition or retirement in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of purchase, repurchase, redemption, defeasance or other acquisition or retirement and (ii) any Indebtedness Incurred pursuant to Section 3.2(b)(3)); or
(4)    make any Restricted Investment;
(any such dividend, distribution, purchase, redemption, repurchase, defeasance, other acquisition, retirement or Restricted Investment referred to in clauses (1) through (4) are referred to herein as a “ Restricted Payment ”), if at the time the Company or such Restricted Subsidiary makes such Restricted Payment:
(i)    an Event of Default shall have occurred and be continuing (or would immediately thereafter result therefrom);
(ii)    except in the case of a Restricted Investment, the Company is not able to Incur an additional $1.00 of Indebtedness pursuant to Section 3.2(a) immediately after giving effect, on a pro forma basis, to such Restricted Payment; or
(iii)    the aggregate amount of such Restricted Payment and all other Restricted Payments made subsequent to the Issue Date (and not returned or rescinded) (including Permitted Payments made pursuant to Section 3.3(b)(1) (without duplication) and (10) but excluding all other Restricted Payments permitted by Section 3.3(b)) would exceed the sum of (without duplication):
(A)    50% of Consolidated Net Income for the period (treated as one accounting period) from the first day of the first fiscal quarter in which the Issue Date occurs to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment for which consolidated financial statements
 
-97-

of the Company are available, which may be internal consolidated financial statements (or, in the case such Consolidated Net Income is a deficit, minus 100% of such deficit);
(B)    100% of the aggregate amount of cash, and the fair market value of property or assets or marketable securities, received by the Company from the issue or sale of its Capital Stock or as the result of a merger or consolidation with another Person subsequent to the Issue Date or otherwise contributed to the equity (in each case other than through the issuance of Disqualified Stock or Designated Preferred Stock) of the Company or a Restricted Subsidiary (including the aggregate principal amount of any Indebtedness of the Company or a Restricted Subsidiary contributed to the Company or a Restricted Subsidiary for cancellation) or that becomes part of the capital of the Company or a Restricted Subsidiary through consolidation or merger subsequent to the Issue Date (other than (x) Net Cash Proceeds or property or assets or marketable securities received from an issuance or sale of such Capital Stock to a Restricted Subsidiary or an employee stock ownership plan or trust established by the Company or any Subsidiary of the Company for the benefit of their employees to the extent funded by the Company or any Restricted Subsidiary, (y) cash or property or assets or marketable securities to the extent that any Restricted Payment has been made from such proceeds in reliance on Section 3.3(b)(6), and (z) Excluded Contributions);
(C)    100% of the aggregate amount of cash, and the fair market value of property or assets or marketable securities, received by the Company or any Restricted Subsidiary from the issuance or sale (other than to the Company or a Restricted Subsidiary or an employee stock ownership plan or trust established by the Company or any Subsidiary of the Company for the benefit of their employees to the extent funded by the Company or any Restricted Subsidiary) by the Company or any Restricted Subsidiary subsequent to the Issue Date of any Indebtedness, Disqualified Stock or Designated Preferred Stock that has been converted into or exchanged for Capital Stock of the Company (other than Disqualified Stock or Designated Preferred Stock) plus, without duplication, the amount of any cash, and the fair market value of property or assets or marketable securities, received by the Company or any Restricted Subsidiary upon such conversion or exchange;
(D)    100% of the aggregate amount received in cash and the fair market value, as determined in good faith by the
 
-98-

Company, of marketable securities or other property received by means of: (i) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or the Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or the Restricted Subsidiaries and repayments of loans or advances, and releases of guarantees, which constitute Restricted Investments by the Company or the Restricted Subsidiaries, in each case after the Issue Date; or (ii) the sale (other than to the Company or a Restricted Subsidiary) of the stock of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than to the extent of the amount of the Investment that constituted a Permitted Investment or was made under Section 3.3(b)(17) and will increase the amount available under the applicable clause of the definition of “Permitted Investment” or Section 3.3(b)(17), as the case may be) or a dividend from a Person that is not a Restricted Subsidiary after the Issue Date;
(E)    in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger, amalgamation or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of all or substantially all of the assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary after the Issue Date, the fair market value of the Investment in such Unrestricted Subsidiary (or the assets transferred), as determined in good faith by the Company at the time of the redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary or at the time of such merger, amalgamation or consolidation or transfer of assets (after taking into consideration any Indebtedness associated with the Unrestricted Subsidiary so designated or merged, amalgamated or consolidated or Indebtedness associated with the assets so transferred), other than to the extent of the amount of the Investment that constituted a Permitted Investment or was made under Section 3.3(b)(17) and will increase the amount available under the applicable clause of the definition of “Permitted Investment” or Section 3.3(b)(17), as the case may be; and
(F)    any returns, profits, distributions and similar amounts received on account of a Restricted Investment made in reliance upon this first paragraph (up to the amount of the original Investment).
 
-99-

(b)    Section 3.3(a) will not prohibit any of the following (collectively, “ Permitted Payments ”):
(1)    the payment of any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Indenture or the redemption, repurchase or retirement of Indebtedness if, at the date of any redemption notice, such payment would have complied with the provisions of this Indenture as if it were and is deemed at such time to be a Restricted Payment at the time of such notice;
(2)    (a) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Capital Stock (“ Treasury Capital Stock ”) or Subordinated Indebtedness made by exchange (including any such exchange pursuant to the exercise of a conversion right or privilege in connection with which cash is paid in lieu of the issuance of fractional shares) for, or out of the proceeds of the substantially concurrent sale of, Capital Stock of the Company (other than Disqualified Stock or Designated Preferred Stock) (“ Refunding Capital Stock ”) or a substantially concurrent contribution to the equity (other than through the issuance of Disqualified Stock or Designated Preferred Stock or through an Excluded Contribution) of the Company; provided, however, that to the extent so applied, the Net Cash Proceeds, or fair market value of property or assets or of marketable securities, from such sale of Capital Stock or such contribution will be excluded from Section 3.3(a)(4)(iii); and (b) if immediately prior to the retirement of Treasury Capital Stock, the declaration and payment of dividends thereon was permitted under clause (13) of this Section 3.3(b), the declaration and payment of dividends on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which were used to redeem, repurchase, retire or otherwise acquire any Capital Stock of a Parent Entity) in an aggregate amount per year no greater than the aggregate amount of dividends per annum that were declarable and payable on such Treasury Capital Stock immediately prior to such retirement;
(3)    any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Subordinated Indebtedness made by exchange for, or out of the proceeds of the substantially concurrent sale of, Refinancing Indebtedness permitted to be Incurred pursuant to Section 3.2;
(4)    any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Preferred Stock of the Company or a Restricted Subsidiary made by exchange for or out of the proceeds of the substantially concurrent sale of Preferred Stock of the Company or a Restricted Subsidiary, as the case may be, that, in each case, is permitted to be Incurred pursuant to Section 3.2;
(5)    any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Subordinated Indebtedness or Disqualified Stock or Preferred Stock of a Restricted Subsidiary:
(i)    from Net Available Cash to the extent permitted under Section 3.5, but only if the Company shall have first complied with the
 
-100-

terms described under Section 3.5 and purchased all Notes tendered pursuant to any offer to repurchase all the Notes required thereby, prior to purchasing, repurchasing, redeeming, defeasing or otherwise acquiring or retiring such Subordinated Indebtedness, Disqualified Stock or Preferred Stock; or
(ii)    to the extent required by the agreement governing such Subordinated Indebtedness, Disqualified Stock or Preferred Stock, following the occurrence of (i) a Change of Control (or other similar event described therein as a “ change of control ”) or (ii) an Asset Disposition (or other similar event described therein as an “ asset disposition ” or “ asset sale ”) but only if the Company shall have first complied with the terms described under Section 3.9 or Section 3.5, as applicable, and purchased all Notes tendered pursuant to the offer to repurchase all the Notes required thereby, prior to purchasing, repurchasing, redeeming, defeasing or otherwise acquiring or retiring such Subordinated Indebtedness, Disqualified Stock or Preferred Stock; or
(iii)    consisting of Acquired Indebtedness (other than Indebtedness Incurred (A) to provide all or any portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Company or a Restricted Subsidiary or (B) otherwise in connection with or contemplation of such acquisition);
(6)    a Restricted Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Capital Stock (other than Disqualified Stock) of the Company or of any Parent Entity held by any future, present or former employee, director or consultant of the Company, any of its Subsidiaries or of any Parent Entity (or permitted transferees, assigns, estates, trusts, heirs or any spouse or former spouse of such employee, director, contractor or consultant) either pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or upon the termination of such employee, director, contractor or consultant’s employment or directorship; provided, however, that the aggregate Restricted Payments made under this clause (6) do not exceed $10.0 million in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $15.0 million in any fiscal year); provided further that such amount in any calendar year may be increased by an amount not to exceed:
(i)    the cash proceeds from the sale of Capital Stock (other than Disqualified Stock or Designated Preferred Stock or Excluded Contributions) of the Company and, to the extent contributed to the capital of the Company (other than through the issuance of Disqualified Stock or Designated Preferred Stock or an Excluded Contribution), Capital Stock of any Parent Entity, in each case to members of
 
-101-

management, directors, managers or consultants of the Company, any of its Subsidiaries or any Parent Entity that occurred after the Issue Date, to the extent the cash proceeds from the sale of such Capital Stock have not otherwise been applied to the payment of Restricted Payments by virtue of Section 3.3(a)(4)(iii); plus
(ii)    the cash proceeds of key man life insurance policies received by the Company and the Restricted Subsidiaries after the Issue Date; less
(iii)    the amount of any Restricted Payments made in previous calendar years pursuant to clauses (i) and (ii) of this clause (6);
and provided further that (i) cancellation of Indebtedness owing to the Company or any Restricted Subsidiary from any future, present or former members of management, directors, employees, managers, contractors or consultants of the Company or Restricted Subsidiaries or any Parent Entity in connection with a repurchase of Capital Stock of the Company or any Parent Entity will not be deemed to constitute a Restricted Payment for purposes of this Section 3.3 or any other provision of this Indenture (ii) the repurchase of Capital Stock deemed to occur upon the exercise of options, warrants or similar instruments if such Capital Stock represents all or a portion of the exercise price thereof or payments, in lieu of the issuance of fractional Capital Stock or withholding to pay other taxes payable in connection therewith, in the case of each of clauses (i) and (ii), will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Indenture;
(7)    the declaration and payment of dividends on Disqualified Stock or Preferred Stock of a Restricted Subsidiary, Incurred in accordance with the terms of Section 3.2;
(8)    payments made or expected to be made by the Company or any Restricted Subsidiary in respect of withholding or similar taxes payable upon exercise of Capital Stock by any future, present or former employee, director, officer, contractor or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company or any Restricted Subsidiary or any Parent Entity and purchases, repurchases, redemptions, defeasances or other acquisitions or retirements of Capital Stock deemed to occur upon the exercise, conversion or exchange of stock options, appreciation rights, warrants or other rights in respect thereof if such Capital Stock represents a portion of the exercise price thereof and payments in respect of withholding or similar taxes payable upon exercise or vesting thereof;
 
-102-

(9)    dividends, loans, advances or distributions to any Parent Entity or other payments by the Company or any Restricted Subsidiary in amounts equal to (without duplication):
(i)    the amounts required for any Parent Entity to pay any Parent Entity Expenses or any Related Taxes;
(ii)    amounts constituting or to be used for purposes of making payments to the extent specified in Sections 3.8(b)(2), 3.8(b)(3), 3.8(b)(5), 3.8(b)(11), and 3.8(b)(12); and
(iii)    up to $2.5 million per calendar year;
(10)    (a) the declaration and payment by the Company of, dividends or distributions on the common stock or common equity interests of the Company or any Parent Entity (and any equivalent declaration and payment of a distribution of any security exchangeable for such common stock or common equity interests to the extent required by the terms of any such exchangeable securities and any Restricted Payment to any such Parent Entity to fund the payment by such Parent Entity of dividends on such entity’s Capital Stock), in an amount in any fiscal year not to exceed 6% of Market Capitalization or (b) in lieu of all or a portion of the dividends permitted by clause (10)(a), repurchases of the Company’s Capital Stock (and any equivalent declaration and payment of a distribution of any security exchangeable for such common stock or common equity interests to the extent required by the terms of any such exchangeable securities and any Restricted Payment to any such Parent Entity to fund the payment by such Parent Entity of dividends on such entity’s Capital Stock) for aggregate consideration that, when take together with dividends permitted by clause (10)(a), does not exceed the amount contemplated by clause (10)(a);
(11)    payments by the Company, or loans, advances, dividends or distributions to any Parent Entity to make payments, to holders of Capital Stock of the Company or any Parent Entity in lieu of the issuance of fractional shares of such Capital Stock, provided, however, that any such payment, loan, advance, dividend or distribution shall not be for the purpose of evading any limitation of this Section 3.3 or otherwise to facilitate any dividend or other return of capital to the holders of such Capital Stock (as determined in good faith by the Company);
(12)    Restricted Payments that are made with Excluded Contributions;
(13)    (i) the declaration and payment of dividends on Designated Preferred Stock of the Company issued after the Issue Date; (ii) the declaration and payment of dividends to a Parent Entity in an amount sufficient to allow the Parent Entity to pay dividends to holders of its Designated Preferred Stock issued after the Issue Date; and (iii) the declaration and payment of dividends on Refunding Capital Stock that is Preferred Stock; provided , however , that, in the case of clauses (i) and (ii), the amount of all dividends declared or paid to a Person pursuant to such clauses shall not exceed the cash proceeds received by the Company or the aggregate amount contributed in cash to the equity of the Company (other than through the issuance of Disqualified Stock or an Excluded Contribution of the Company), from the issuance or sale of such Designated
 
-103-

Preferred Stock; provided further, in the case of clauses (i), (ii) and (iii), that for the most recently ended four fiscal quarters for which consolidated financial statements are available (which may be internal financial statements) immediately preceding the date of issuance of such Designated Preferred Stock or declaration of such dividends on such Refunding Capital Stock, after giving effect to such payment on a pro forma basis the Company would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the test set forth in Section 3.2(a);
(14)    distributions, by dividend or otherwise, or other transfer or disposition of shares of Capital Stock, of equity interests in, or Indebtedness owed to the Company or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than Unrestricted Subsidiaries, substantially all the assets of which are cash and Cash Equivalents) or proceeds thereof;
(15)    distributions or payments of Securitization Fees, sales contributions and other transfers of Securitization Assets or Receivables Assets and purchases of Securitization Assets or Receivables Assets pursuant to a Securitization Repurchase Obligation, in each case in connection with a Qualified Securitization Financing or Receivables Facility;
(16)    any Restricted Payment made in connection with the Transactions and any costs and expenses (including all legal, accounting and other professional fees and expenses) related thereto or used to fund amounts owed to Affiliates in connection with the Transactions (including dividends to any Parent Entity to permit payment by such Parent Entity of such amounts);
(17)    (i) Restricted Payments (including loans or advances) in an aggregate amount outstanding at the time made not to exceed the greater of $50.0 million and 25% of LTM EBITDA at such time, and (ii) any Restricted Payments, so long as, immediately after giving pro forma effect to the payment of any such Restricted Payment and the Incurrence of any Indebtedness the net proceeds of which are used to make such Restricted Payment, the Consolidated Total Leverage Ratio shall be no greater than 2.5 to 1.00;
(18)    mandatory redemptions of Disqualified Stock issued as a Restricted Payment or as consideration for a Permitted Investment;
(19)    payments or distributions to dissenting stockholders pursuant to applicable law (including in connection with, or as a result of, exercise of appraisal rights and the settlement of any claims or action (whether actual, contingent or potential)), pursuant to or in connection with a consolidation, merger or transfer of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, that complies with Section 4.1 hereof;
(20)    Restricted Payments to a Parent Entity to finance Investments that would otherwise be permitted to be made pursuant to this covenant if made by the Company; provided that (a) such Restricted Payment shall be made substantially
 
-104-

concurrently with the closing of such Investment, (b) such Parent Entity shall, promptly following the closing thereof, cause (1) all property acquired (whether assets or Capital Stock) to be contributed to the capital of the Company or one of its Restricted Subsidiaries or (2) the merger or amalgamation of the Person formed or acquired into the Company or one of its Restricted Subsidiaries (to the extent not prohibited by Section 4.1) to consummate such Investment, (c) such Parent Entity and its Affiliates (other than the Company or a Restricted Subsidiary) receives no consideration or other payment in connection with such transaction except to the extent the Company or a Restricted Subsidiary could have given such consideration or made such payment in compliance with this Indenture, (d) any property received by the Company shall not increase amounts available for Restricted Payments pursuant to clause (c) of the preceding paragraph and (e) such Investment shall be deemed to be made by the Company or such Restricted Subsidiary pursuant to another provision of this Section 3.3(b) (other than pursuant to Section 3.3(b)(12) hereof) or pursuant to the definition of “Permitted Investments” (other than pursuant to Section 3.3(b)(12) thereof); and
(21)    investments or other Restricted Payments in an aggregate amount not to exceed an amount equal to the sum of Total Leverage Excess Proceeds and Declined Excess Proceeds.
(c)    For purposes of determining compliance with this Section 3.3, in the event that a Restricted Payment (or portion thereof) meets the criteria of more than one of the categories of Permitted Payments described in clauses (1) through (21) of Section 3.3(b), or is permitted pursuant to Section 3.3(a), and/or one or more of the clauses contained in the definition of “Permitted Investments,” the Company will be entitled to classify such Restricted Payment or Investment (or portion thereof) on the date of its payment or later reclassify (based on circumstances existing on the date of such reclassification) such Restricted Payment or Investment (or portion thereof) in any manner that complies with this Section 3.3, including as an Investment pursuant to one or more of the clauses contained in the definition of “Permitted Investments.”
(d)    The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The fair market value of any cash Restricted Payment shall be its face amount, and the fair market value of any non-cash Restricted Payment, property or assets other than cash shall be determined conclusively by the Company acting in good faith.
(e)    Unrestricted Subsidiaries may use value transferred from the Company and its Restricted Subsidiaries in a Permitted Investment to purchase or otherwise acquire Indebtedness or Capital Stock of the Company, any Parent Entity or any of the Company’s Restricted Subsidiaries, and to transfer value to the holders of the Capital Stock or any Parent Entity and to Affiliates thereof, and such purchase, acquisition, or transfer will not be deemed to be a “direct or indirect” action by the Company or its Restricted Subsidiaries.
 
-105-

(f)    For the avoidance of doubt, this covenant shall not restrict the making of any “AHYDO catch-up payment” with respect to, and required by the terms of, any Indebtedness of the Company or any of its Restricted Subsidiaries permitted to be Incurred under this Indenture.
Section 3.4.     Limitation on Restrictions on Distributions from Restricted Subsidiaries .
(a)    The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1)    pay dividends or make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2)    make any loans or advances to the Company or any Restricted Subsidiary; or
(3)    sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary;
provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b)    Section 3.4(a) shall not prohibit:
(1)    any encumbrance or restriction pursuant to (a) any Credit Facility or (b) any other agreement or instrument, in each case, in effect at or entered into on the Issue Date;
(2)    any encumbrance or restriction pursuant to this Indenture, the Notes, the Note Guarantees, the Collateral Documents and the Intercreditor Agreement;
(3)    any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(4)    any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted
 
-106-

Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause, if another Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5)    any encumbrance or restriction:
(i)    that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement;
(ii)    contained in mortgages, pledges, charges or other security agreements permitted under this Indenture and the Collateral Documents or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture and the Collateral Documents to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or assets subject to such mortgages, pledges, charges or other security agreements;
(iii)    restrictions or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Company or such Restricted Subsidiary that are subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of the Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or
(iv)    pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6)    any encumbrance or restriction pursuant to Purchase Money Obligations and Capitalized Lease Obligations permitted under this Indenture and the Collateral Documents, in each case, that impose encumbrances or restrictions on the property so acquired;
 
-107-

(7)    any encumbrance or restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition;
(8)    customary provisions in leases, licenses, shareholder agreements, joint venture agreements and other similar agreements, organizational documents and instruments;
(9)    encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order, or required by any regulatory authority;
(10)    any encumbrance or restriction on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(11)    any encumbrance or restriction pursuant to Hedging Obligations;
(12)    other Indebtedness, Disqualified Stock or Preferred Stock of Non-Guarantors permitted to be Incurred or issued subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Non-Guarantors party thereto or their Subsidiaries;
(13)    restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good faith determination of the Company, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(14)    any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Credit Agreement, together with the security documents associated therewith as in effect on the Issue Date or (ii) in comparable financings (as determined in good faith by the Company) and where, in the case of clause (ii), either (a) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (b) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or instrument;
(15)    any encumbrance or restriction existing by reason of any lien permitted under Section 3.6; or
 
-108-

(16)    any encumbrance or restriction pursuant to an agreement or instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (15) of this Section 3.4(b) or this clause (16) (an “ Initial Agreement ”) or contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (15) of this Section 3.4(b) or this clause (16); provided, however, that the encumbrances and restrictions with respect to such Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Section 3.5.     Limitation on Sales of Assets and Subsidiary Stock .
(a)    The Company shall not, and shall not permit any of the Restricted Subsidiaries to, make any Asset Disposition unless:
(1)    the Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap);
(2)    in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis) (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and
(3)    an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied:
(i)    to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any Indebtedness), (A) to prepay, repay or purchase any Indebtedness of a Non-Guarantor (in each case, other than Indebtedness owed to the Company or any Restricted Subsidiary) or any Secured Indebtedness secured by a First Priority Lien, including Indebtedness under the Credit Agreement (or any Refinancing Indebtedness in respect thereof) within 450 days from the later of (1) the date of such Asset Disposition and (2)
 
-109-

the receipt of such Net Available Cash; provided , however , that, notwithstanding the foregoing, the Net Available Cash from an Asset Disposition of Collateral may not be applied pursuant to clause (i) of this paragraph to prepay, repay or purchase any unsecured Indebtedness or Secured Indebtedness other than in accordance with the Intercreditor Agreement; provided further, that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to this clause (i), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment (if any) to be reduced in an amount equal to the principal amount so prepaid, repaid or purchased; (B) to prepay, repay or purchase Pari Passu Indebtedness; or (C) to make an Asset Disposition Offer;
(ii)    to the extent the Company or any Restricted Subsidiary elects, to invest in or commit to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary equal to the amount of Net Available Cash received by the Company or another Restricted Subsidiary) within 450 days from the later of (i) the date of such Asset Disposition and (ii) the receipt of such Net Available Cash; provided, however, that a binding agreement shall be treated as a permitted application of Net Available Cash from the date of such commitment with the good faith expectation that an amount equal to Net Available Cash will be applied to satisfy such commitment within 180 days of such commitment (an “ Acceptable Commitment ”) and, in the event of any Acceptable Commitment is later cancelled or terminated for any reason before such amount is applied in connection therewith, the Company or such Restricted Subsidiary enters into another Acceptable Commitment (a “ Second Commitment ”) within 180 days of such cancellation or termination; provided further that if any Second Commitment is later cancelled or terminated for any reason before such amount is applied, then such Net Available Cash shall constitute Excess Proceeds; and
(iii)    to the extent of the balance of such Net Available Cash after application in accordance with clauses (a) and (b) above (the aggregate of any such amounts, “ Declined Excess Proceeds ”), to fund (to the extent consistent with any other applicable provision of this Indenture) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of any Subordinated Obligations and the making of other Restricted Payments);
provided that, (1) pending the final application of the amount of any such Net Available Cash in accordance with clause (i), (ii) or (iii) in Section 3.5(a)(3), the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise use such Net Available Cash in any manner not prohibited by this Indenture; (2) the Company (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided
 
-110-

that such investment shall be made no earlier than the earliest of written notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (b) above with respect to such Asset Disposition; and (3) the foregoing percentage in this cause (3) shall be reduced to 50% if the Consolidated Total Leverage Ratio would be equal to or less than 2.75 to 1.00 after giving pro forma effect to any application of such Net Available Cash as set forth herein (any Net Available Cash in respect of Asset Dispositions not required to be applied in accordance with this clause (3) as a result of the application of this proviso shall collectively constitute “Total Leverage Excess Proceeds.”
(b)    The amount of any Net Available Cash from Asset Dispositions that is not applied or invested or committed to be applied or invested as provided in the preceding paragraph will be deemed to constitute “Excess Proceeds” (excluding all Total Leverage Excess Proceeds) under this Indenture. On the 451st day after the later of (x) an Asset Disposition or (y) the receipt of such Net Available Cash, or earlier if the Company elects, if the aggregate amount of Excess Proceeds under this Indenture exceeds (i) $30.0 million in the case of a single transaction or series of related transactions or (ii) $45.0 million aggregate amount in any fiscal year, the Company will within 10 Business Days be required to make an offer (“ Asset Disposition Offer ”) to all Holders of Notes issued under this Indenture and, to the extent the Company elects, to all holders of other outstanding Pari Passu Indebtedness, to purchase the maximum principal amount of Notes and any such Pari Passu Indebtedness to which the Asset Disposition Offer applies that may be purchased out of the Excess Proceeds, at an offer price in respect of the Notes in an amount equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness, in each case, plus accrued and unpaid interest to, but not including, the date of purchase, in accordance with the procedures set forth in this Indenture or the agreements governing the Pari Passu Indebtedness, as applicable, and, with respect to the Notes, in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. The Company will deliver notice of such Asset Disposition Offer electronically or by first class mail, with a copy to the Trustee, the Paying Agent and each Holder of Notes at the address of such Holder appearing in the Notes Register or otherwise in accordance with the applicable procedures of DTC, describing the transaction or transactions that constitute the Asset Disposition and offering to repurchase the Notes for the specified purchase price on the date specified in the notice, which date will be no earlier than 15 days and no later than 60 days from the date such notice is delivered, pursuant to the procedures required by this Indenture and described in such notice. The Company may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Disposition by making an Asset Disposition Offer with respect to all Net Available Cash prior to the expiration of the relevant 450 days (or such longer period provided above) or with respect to any unapplied Excess Proceeds.
(c)    To the extent that the aggregate amount of Notes and Pari Passu Indebtedness so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for any purpose not prohibited by this Indenture. If the aggregate
 
-111-

principal amount of the Notes surrendered in any Asset Disposition Offer by Holders and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, the Company shall allocate the Excess Proceeds among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Indebtedness provided that no Notes or other Pari Passu Indebtedness will be selected and purchased in an unauthorized denomination. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero. Additionally, the Company may, at its option, make an Asset Disposition Offer using proceeds from any Asset Disposition at any time after the consummation of such Asset Disposition. Upon consummation or expiration of any Asset Disposition Offer, any remaining Net Available Cash shall not be deemed Excess Proceeds and the Company may use such Net Available Cash for any purpose not prohibited by this Indenture.
(d)    To the extent that any portion of Net Available Cash payable in respect of the Notes is denominated in a currency other than Dollars, the amount thereof payable in respect of the Notes shall not exceed the net amount of funds in Dollars that is actually received by the Company upon converting such portion into Dollars.
(e)    For the purposes of Section 3.5(a)(2) hereof, the following will be deemed to be cash:
(i)    the assumption by the transferee of Indebtedness or other liabilities, contingent or otherwise, of the Company or a Restricted Subsidiary reflected (or, if no such balance sheet is available, that would be reflected) on the most recent balance sheet or the footnotes thereto (other than Subordinated Indebtedness of the Company or a Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition;
(ii)    securities, notes or other obligations received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days following the closing of such Asset Disposition;
(iii)    Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition;
(iv)    consideration consisting of Indebtedness of the Company (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company or any Restricted Subsidiary; and
(v)    any Designated Non-Cash Consideration received by the Company or any Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value, taken together with all other Designated Non-Cash
 
-112-

Consideration received pursuant to this Section 3.5 that is at that time outstanding, not to exceed the greater of $30.0 million and 15% of LTM EBITDA (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).
(f)    Upon the commencement of an Asset Disposition Offer, the Company shall send, or cause to be sent, a notice to the Trustee and to each Holder at its registered address, or deliver otherwise in accordance with the applicable procedures of the Depositary. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Asset Disposition Offer. Any Asset Disposition Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Disposition Offer, shall state:
(1)    that the Asset Disposition Offer is being made pursuant to this Section 3.5 and that, to the extent lawful, all Notes tendered and not withdrawn shall be accepted for payment (unless prorated);
(2)    the Asset Disposition payment amount, the Asset Disposition offered price, and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 15 days and not later than 60 days from the date such notices are sent (the “ Asset Sale Payment Date ”);
(3)    that any Notes not tendered or accepted for payment shall continue to accrue interest in accordance with the terms thereof;
(4)    that, unless the Company default in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrue interest on and after the Asset Sale Payment Date;
(5)    that Holders electing to have any Notes purchased pursuant to any Asset Disposition Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Paying Agent at the address specified in the notice at least three Business Days before the Asset sale Payment Date;
(6)    that Holders shall be entitled to withdraw their election if the Paying Agent receives, not later than two Business Days prior to the Asset Sale Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Note purchased;
(7)    that if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition payment amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof shall be purchased); and
 
-113-

(8)    that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry).
(g)    If the Asset Sale Payment Date is on or after a record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Disposition Offer.
(h)    On the Asset Sale Payment Date, the Company will, to the extent permitted by law,
(1)    accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Asset Disposition Offer,
(2)    deposit with the Paying Agent an amount equal to the aggregate Asset Disposition payment in respect of all Notes or portions thereof so tendered, and
(3)    deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Company.
(i)    To the extent that the provisions of any securities laws or regulations, including Rule 14e-1 under the Exchange Act, conflict with the provisions of this Indenture, the Company will comply with the applicable securities laws, rules and regulations and shall not be deemed to have breached its obligations under this Indenture by virtue thereof.
(j)    The provisions of this Indenture relative to the Company’s obligation to make an offer to repurchase the Notes as a result of an Asset Disposition may be waived or modified with the written consent of the Holders of a majority in principal amount of the Notes then outstanding.
Section 3.6.     Limitation on Liens . The Company shall not, and shall not permit any Guarantor to, directly or indirectly, create, Incur or permit to exist any Lien (except Permitted Liens) (each, an “ Initial Lien ”) that secures obligations under any Indebtedness or any related guarantee, on any asset or property of the Company or any Guarantor, unless:
(1)    in the case of Initial Liens securing Collateral, such Initial Lien is a Permitted Lien, or
(2)    in the case of Initial Liens on any asset or property that is not Collateral, (i) the Notes (or a Note Guarantee in the case of Liens of a Guarantor) are equally and ratably secured, with (or on a senior basis to, in the case such
 
-114-

Initial Lien secures any Subordinated Indebtedness) the obligations secured by such Initial Lien until such time as such obligations are no longer secured by a Lien or (ii) such Initial Lien is a Permitted Lien.
Any Lien created for the benefit of the Trustee, the Collateral Agent and the Holders pursuant to the preceding sentence shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Initial Lien.
With respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the Incurrence of such Indebtedness, such Lien shall also be permitted to secure any Increased Amount of such Indebtedness. The “Increased Amount” of any Indebtedness shall mean any increase in the amount of such Indebtedness in connection with any accrual of interest, the accretion of accreted value, the amortization of original issue discount, the payment of interest in the form of additional Indebtedness with the same terms, accretion of original issue discount or liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies or increases in the value of property securing Indebtedness.
Section 3.7.     Limitation on Guarantees .
(a)    The Company will not permit any of its Wholly Owned Subsidiaries that are Restricted Subsidiaries (and non-Wholly Owned Subsidiaries if such non-Wholly Owned Subsidiaries guarantee other capital markets debt securities of the Company), other than a Guarantor to Guarantee the payment of (i) any syndicated Credit Facility permitted under Section 3.2(b)(1) or (ii) capital markets debt securities of the Company or any other Guarantor unless:
(1)    such Restricted Subsidiary within 60 days (i) executes and delivers a supplemental indenture to this Indenture providing for a Guarantee by such Restricted Subsidiary, except that with respect to a guarantee of Indebtedness of the Company or any Guarantor, if such Indebtedness is by its express terms subordinated in right of payment to the Notes or such Guarantor’s Guarantee, any such guarantee by such Restricted Subsidiary with respect to such Indebtedness shall be subordinated in right of payment to such Guarantee substantially to the same extent as such Indebtedness is subordinated to the Notes or such Guarantor’s Guarantee of the Notes and (ii) to the extent any of such Guarantor’s assets would constitute Collateral, executes and delivers a supplement or joinder to the Collateral Documents or new Collateral Documents and takes all actions required thereunder to perfect the Liens created thereunder; provided that if such Indebtedness is by its express terms subordinated in right of payment to the Notes or such Guarantor’s Note Guarantee, any such Guarantee by such Restricted Subsidiary with respect to such Indebtedness shall be subordinated in right of payment to such Note Guarantee with respect to the Notes substantially to the same extent as such Indebtedness is subordinated to the Notes or such Guarantor’s Guarantee of the Notes; and
 
-115-

(2)    such Restricted Subsidiary waives and will not in any manner whatsoever claim or take the benefit or advantage of, any rights of reimbursement, indemnity or subrogation or any other rights against the Company or any other Restricted Subsidiary as a result of any payment by such Restricted Subsidiary under its Guarantee until payment in full of Obligations under this Indenture;
provided that this Section 3.7 shall not be applicable (i) to any guarantee of any Restricted Subsidiary that existed at the time such Person became a Restricted Subsidiary and was not incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary, or (ii) in the event that the Guarantee of the Company’s obligations under the Notes or this Indenture by such Subsidiary would not be permitted under applicable law.
(b)    The Company may elect, in its sole discretion, to cause any Subsidiary that is not otherwise required to be a Guarantor to become a Guarantor, in which case, such Subsidiary shall not be required to comply with the 60-day period described in this Section 3.7.
(c)    If any Guarantor becomes an Immaterial Subsidiary, the Company shall have the right, by execution and delivery of a supplemental indenture to the Trustee, to cause such Immaterial Subsidiary to cease to be a Guarantor, subject to the requirement described in the first paragraph above that such Subsidiary shall be required to become a Guarantor if it ceases to be an Immaterial Subsidiary (except that if such Subsidiary has been properly designated as an Unrestricted Subsidiary it shall not be so required to become a Guarantor or execute a supplemental indenture); provided , further , that such Immaterial Subsidiary shall not be permitted to Guarantee the Credit Agreement or other Indebtedness of the Company or the other Guarantors, unless it again becomes a Guarantor.
Section 3.8.     Limitation on Affiliate Transactions .
(a)    The Company shall not, and shall not permit any Restricted Subsidiary to enter into or conduct any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “ Affiliate Transaction ”) involving aggregate value in excess of $10.0 million, unless:
(1)    the terms of such Affiliate Transaction taken as a whole are not materially less favorable to the Company or such Restricted Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction or the execution of the agreement providing for such transaction in arm’s length dealings with a Person who is not such an Affiliate; and
(2)    in the event such Affiliate Transaction involves an aggregate value in excess of $25.0 million, the terms of such transaction have been approved by a majority of the members of the Board of Directors of the Company.
 
-116-

Any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in Section 3.8(a)(2)if such Affiliate Transaction is approved by a majority of the Disinterested Directors of the Company, if any.
(b)    Section 3.8(a) shall not apply to:
(1)    any Restricted Payment permitted to be made pursuant to Section 3.3 or any Permitted Investment;
(2)    any issuance or sale of Capital Stock, options, other equity-related interests or other securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, or entering into, or maintenance of, any employment, consulting, collective bargaining or benefit plan, program, agreement or arrangement, related trust or other similar agreement and other compensation arrangements, options, warrants or other rights to purchase Capital Stock of the Company, any Restricted Subsidiary or any Parent Entity, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits or consultants’ plans (including valuation, health, insurance, deferred compensation, severance, retirement, savings or similar plans, programs or arrangements) or indemnities provided on behalf of officers, employees, directors or consultants approved by the Board of Directors of the Company, in each case in the ordinary course of business or consistent with past practice;
(3)    any Management Advances and any waiver or transaction with respect thereto;
(4)    (a) any transaction between or among the Company and any Restricted Subsidiary (or entity that becomes a Restricted Subsidiary as a result of such transaction), or between or among Restricted Subsidiaries and (b) any merger, amalgamation or consolidation with any Parent Entity, provided that such Parent Entity shall have no material liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Company and such merger, amalgamation or consolidation is otherwise permitted under this Indenture;
(5)    the payment of compensation, fees and reimbursement of expenses to, and customary indemnities (including under customary insurance policies) and employee benefit and pension expenses provided on behalf of, directors, officers, contractors, consultants, distributors or employees of the Company, any Parent Entity or any Restricted Subsidiary (whether directly or indirectly and including through any Controlled Investment Affiliate of such directors, officers, contractors, consultants, distributors or employees);
(6)    the entry into and performance of obligations of the Company or any of the Restricted Subsidiaries under the terms of any transaction arising out of, and any payments pursuant to or for purposes of funding, any agreement or instrument in effect as of or on the Issue Date, as these agreements and
 
-117-

instruments may be amended, modified, supplemented, extended, renewed or refinanced from time to time in accordance with the other terms of this Section 3.8 or to the extent not more disadvantageous to the Holders in any material respect;
(7)    any transaction effected as part of a Qualified Securitization Financing or Receivables Facility, any disposition or acquisition of Securitization Assets, Receivables Assets or related assets in connection with any Qualified Securitization Financing or Receivables Facility;
(8)    transactions with customers, clients, joint venture partners, suppliers, contractors, distributors or purchasers or sellers of goods or services, in each case in the ordinary course of business or consistent with past practice, which are fair to the Company or the relevant Restricted Subsidiary in the reasonable determination of the Board of Directors of the Company or the senior management of the Company or the relevant Restricted Subsidiary, or are on terms no less favorable than those that could reasonably have been obtained at such time from an unaffiliated party;
(9)    any transaction between or among the Company or any Restricted Subsidiary and any Person that is an Affiliate of the Company or an Associate or similar entity solely because the Company or a Restricted Subsidiary or any Affiliate of the Company or a Restricted Subsidiary or any Affiliate of any Permitted Holder owns an equity interest in or otherwise controls such Affiliate, Associate or similar entity;
(10)    issuances or sales of Capital Stock (other than Disqualified Stock or Designated Preferred Stock) of the Company or options, warrants or other rights to acquire such Capital Stock and the granting of registration and other customary rights (and the performance of the related obligations) in connection therewith or any contribution to capital of the Company or any Restricted Subsidiary;
(11)    (a) payments by the Company or any Restricted Subsidiary to any Permitted Holder (whether directly or indirectly), including to its affiliates or its designees, of annual management, consulting, monitoring, refinancing, transaction, subsequent transaction exit fees, advisory fees and related costs and expenses and indemnitees in connection therewith and any termination fees (including any such cash lump sum or present value fee upon the consummation of a corporate event, including an initial public offering) and (b) customary payments by the Company or any Restricted Subsidiary to any Permitted Holder (whether directly or indirectly, including through any Parent Entity) for financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved in the case of each of clauses (a) and (b) by a majority of the Board of Directors of the Company in good faith;
 
-118-

(12)    payment to any Permitted Holder of all out of pocket expenses Incurred by such Permitted Holder in connection with its direct or indirect investment in the Company and its Subsidiaries;
(13)    the Transactions and the payment of all costs and expenses (including all legal, accounting and other professional fees and expenses) related to the Transactions;
(14)    transactions in which the Company or any Restricted Subsidiary, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or meets the requirements of Section 3.8(a)(1);
(15)    the existence of, or the performance by the Company or any Restricted Subsidiary of its obligations under the terms of, any equityholders agreement (including any registration rights agreement or purchase agreements related thereto) to which it is party as of the Issue Date and any similar agreement that it may enter into thereafter; provided , however , that the existence of, or the performance by the Company or any Restricted Subsidiary of its obligations under any future amendment to the equityholders’ agreement or under any similar agreement entered into after the Issue Date will only be permitted under this clause to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the Holders in any material respect;
(16)    any purchases by the Company’s Affiliates of Indebtedness or Disqualified Stock of the Company or any of their Restricted Subsidiaries the majority of which Indebtedness or Disqualified Stock is purchased by Persons who are not the Company’s Affiliates; provided that such purchases by the Company’s Affiliates are on the same terms as such purchases by such Persons who are not the Company’s Affiliates;
(17)    (i) investments by Affiliates in securities of the Company or any of the Restricted Subsidiaries (and payment of reasonable out-of-pocket expenses incurred by such Affiliates in connection therewith) so long as the investment is being offered by the Company or such Restricted Subsidiary generally to other non-affiliated third party investors on the same or more favorable terms and (ii) payments to Affiliates in respect of securities of the Company or any of the Restricted Subsidiaries contemplated in subclause (17)(i) or that were acquired from Persons other than the Company and the Restricted Subsidiaries, in each case, in accordance with the terms of such securities;
(18)    payments by any Parent Entity, the Company and the Restricted Subsidiaries pursuant to any tax sharing agreements or other equity agreements in respect of Related Taxes among any such Parent Entity, the Company and the Restricted Subsidiaries on customary terms to the extent attributable to the ownership or operation of the Company and its Subsidiaries;
 
-119-

(19)    payments, Indebtedness and Disqualified Stock (and cancellation of any thereof) of the Company and its Restricted Subsidiaries and Preferred Stock (and cancellation of any thereof) of any Restricted Subsidiary to any future, current or former employee, director, officer, contractor or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company, any of its Subsidiaries or any of its Parent Entities pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement; and any employment agreements, stock option plans and other compensatory arrangements (and any successor plans thereto) and any supplemental executive retirement benefit plans or arrangements with any such employees, directors, officers, contractors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) that are, in each case, approved by the Company in good faith;
(20)    employment and severance arrangements between the Company or its Restricted Subsidiaries and their respective officers, directors, contractors, consultants, distributors and employees in the ordinary course of business or entered into in connection with the Transactions;
(21)    any transition services arrangement, supply arrangement or similar arrangement entered into in connection with or in contemplation of the disposition of assets or Capital Stock in any Restricted Subsidiary permitted under Section 3.5 hereof or entered into with any Business Successor, in each case, that the Company determines in good faith is either fair to the Company or otherwise on customary terms for such type of arrangements in connection with similar transactions;
(22)    transactions entered into by an Unrestricted Subsidiary with an Affiliate prior to the day such Unrestricted Subsidiary is redesignated a Restricted Subsidiary under Section 3.20 and pledges of Capital Stock of Unrestricted Subsidiaries;
(23)    any lease entered into between the Company or any Restricted Subsidiary, as lessee, and any Affiliate of the Company, as lessor, which is approved by a majority of the Disinterested Directors;
(24)    intellectual property licenses in the ordinary course of business;
(25)    payments to or from, and transactions with, any joint venture in the ordinary course of business or consistent with past practice (including any cash management activities related thereto);
(26)    the payment of costs and expenses related to registration rights and customary indemnities provided to shareholders under any shareholder agreement; and
(27)    any Permitted Tax Restructuring.
 
-120-

Section 3.9.     Change of Control .
(a)    If a Change of Control Repurchase Event occurs, unless the Company has previously or substantially concurrently therewith delivered a redemption notice with respect to all the outstanding Notes under Section 5.7, the Company shall make an offer to purchase all of the Notes pursuant to the offer described below (the “ Change of Control Offer ”) at a price in cash (the “ Change of Control Payment ”) equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to but excluding the date of repurchase; provided that if the repurchase date is on or after the record date and on or before the corresponding interest payment date, then Holders in whose name the Notes are registered at the close of business on such record date will receive interest on the repurchase date. Within 30 days following any Change of Control Repurchase Event, the Company will deliver or cause to be delivered a notice of such Change of Control Offer, electronically in accordance with the applicable procedures of DTC in the case of global notes or by first-class mail, with a copy to the Trustee, to each Holder of Notes at the address of such Holder appearing in the Notes Register or otherwise in accordance with the applicable procedures of DTC, describing the transaction or transactions that constitute the Change of Control Repurchase Event and with the following information:
(1)    that a Change of Control Offer is being made pursuant to this Section 3.9, and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Company;
(2)    the purchase price and the purchase date, which will be no earlier than 30 days nor later than 60 days from the date such notice is delivered (the “ Change of Control Payment Date ”);
(3)    that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4)    that unless the Company default in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest, on the Change of Control Payment Date;
(5)    that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
(6)    that Holders will be entitled to withdraw their tendered Notes and their election to require the Company to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a telegram,
 
-121-

facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(7)    that Holders whose Notes are being purchased only in part will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to at least $2,000 or any integral multiple of $1,000 in excess of $2,000;
(8)    if such notice is delivered prior to the occurrence of a Change of Control Repurchase Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Repurchase Event; and
(9)    the other instructions, as determined by the Company, consistent with this Section 3.9, that a Holder must follow.
The Paying Agent will promptly deliver to each Holder of the Notes tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. The Company will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, will be paid on the relevant interest payment date to the Person in whose name a Note is registered at the close of business on such record date.
(b)    On the Change of Control Payment Date, the Company will, to the extent permitted by law,
(1)    accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
(2)    deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(3)    deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Company.
(c)    The Company will not be required to make a Change of Control Offer following a Change of Control Repurchase Event if (i) a third party makes the Change of
 
-122-

Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer or (ii) a notice of redemption of all outstanding Notes has been given pursuant to Section 5.7 hereof, unless and until there is a default in the payment of the redemption price on the applicable Redemption Date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied. Notwithstanding anything to the contrary in this Section 3.9, a Change of Control Offer may be made in advance of a Change of Control Repurchase Event, conditional upon such Change of Control Repurchase Event.
(d)    Notwithstanding anything to the contrary in this Indenture, in connection with any tender offer for the Notes, including a Change of Control Offer or Asset Disposition Offer, if Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in such tender offer and the Company, or any third party making a such tender offer in lieu of the Company, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company or such third party will have the right upon not less than 15 nor more than 60 days’ prior written notice, given not more than 30 days following such purchase date, to redeem all Notes that remain outstanding following such purchase at a redemption price equal to the price offered to each other Holder in such tender offer plus, to the extent not included in the tender offer payment, accrued and unpaid interest, if any, thereon, to, but not including, the date of such redemption.
(e)    While the Notes are in global form and the Company make an offer to purchase all of the Notes pursuant to the Change of Control Offer, a Holder may exercise its option to elect for the purchase of the Notes through the facilities of DTC, subject to its rules and regulations.
(f)    To the extent that the provisions of any securities laws, rules or regulations, including Rule 14e-1 under the Exchange Act, conflict with the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
(g)    The provisions of this Indenture relative to the Company’s obligation to make an offer to repurchase the Notes as a result of a Change of Control Repurchase Event may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
Section 3.10.     Reports .
(a)    So long as any Notes are outstanding, the Company will furnish to the Trustee, within 15 days after the time periods specified below:
(1)    within 120 days after the end of each fiscal year, (i) information regarding the Company and its consolidated subsidiaries with a level and type of
 
-123-

detail that is substantially comparable in all material respects to information in the section of the 2016 20-F entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations”; (ii) pro forma income statement and balance sheet information of the Company, together with explanatory footnotes, for any material acquisitions, dispositions or recapitalizations on a consolidated basis that have occurred since the beginning of the most recently completed fiscal year as to which such annual report relates (unless such pro forma information has been provided in a previous report pursuant to clause (2) or (3) below) (provided that such pro forma financial information will be provided only to the extent available without unreasonable expense); (iii) the audited consolidated balance sheet of the Company as at the end of the most recent two fiscal years and audited consolidated income statements and statements of cash flow of the Company for the most recent three fiscal years, including appropriate footnotes to such financial statements, for and as at the end of such fiscal years and the report of the independent auditors on the financial statements; (iv) a description of the management and shareholders of the Company, all material affiliate transactions and a description of all material debt instruments; and (v) a description of material risk factors and material subsequent events; provided that the information described in clauses (iv) and (v) may be provided in the footnotes to the audited financial statements
(2)    within 60 days after the end of each of the first three fiscal quarters of each fiscal year, quarterly reports of the Company containing the following information: (i) the Company’s unaudited condensed consolidated balance sheet as at the end of such quarter and unaudited condensed statements of income and cash flow for the most recent quarter and year to date periods ending on the unaudited condensed balance sheet date and the comparable prior year periods, together with condensed footnote disclosure; (ii) pro forma income statement and balance sheet information of the Company, together with explanatory footnotes, for any material acquisitions, dispositions or recapitalizations on a consolidated basis that have occurred since the beginning of the most recently completed fiscal quarter as to which such quarterly report relates (provided that such pro forma financial information will be provided only to the extent available without unreasonable expense); (iii) information regarding the Company and its consolidated subsidiaries with a level and type of detail that is substantially comparable in all material respects to information in the section of 2017 Q1 Report entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations”; (iv) a discussion of changes in material debt instruments since the most recent report; and (v) material subsequent events and any material changes to the risk factors disclosed in the most recent annual or quarterly report; provided that the information described in clauses (iv) and (v) may be provided in the footnotes to the audited financial statements; and
(3)    promptly after the occurrence of a material event that the Company announces publicly or any acquisition, disposition or restructuring, merger or similar transaction that is material to the Company and the Restricted Subsidiaries, taken as a whole, or a senior executive officer or director changes at the Company or a change in auditors of the Company, a report containing a description of such event.
 
-124-

provided , however , for the avoidance of doubt, that the Company shall not be required to (i) comply with Regulation G under the Exchange Act or Item 10(e) of Regulation S-K with respect to any “non-GAAP” financial information contained therein, (ii) provide any information that is not otherwise similar to information currently included or incorporated by reference in the offering circular or (iii) provide separate financial statements or other information contemplated by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X, or in each case any successor provisions or any schedules required by Regulation S-X. In addition, notwithstanding the foregoing, the Company will not be required to (i) comply with Sections 302, 906 and 404 of the Sarbanes-Oxley Act of 2002, as amended, or (ii) otherwise furnish any information, certificates or reports required by Items 307, 308 or 402 of Regulation S-K. To the extent any such information is not so filed or furnished, as applicable, within the time periods specified above and such information is subsequently filed or furnished, as applicable, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Default with respect thereto shall be deemed to have been cured; provided that such cure shall not otherwise affect the rights of the Holders under Section 6.1 if Holders of at least 30% in principal amount of the outstanding Notes have declared the principal, premium, if any, interest and any other monetary obligations on all the outstanding Notes to be due and payable immediately and such declaration shall not have been rescinded or cancelled prior to such cure. In addition, to the extent not satisfied by the foregoing, the Company will agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b)    All financial statement information shall be prepared in accordance with IFRS as in effect on the date of such report or financial statement (or otherwise on the basis of IFRS as then in effect) and on a consistent basis for the periods presented, except as may otherwise be described in such information; provided, however, that the reports set forth in clauses (1), (2) and (3) above may, in the event of a change in IFRS, present earlier periods on a basis that applied to such periods. The reports set forth above will not be required to contain any reconciliation to U.S. generally accepted accounting principles.
(c)    Substantially concurrently with the furnishing or making such information available to the Trustee pursuant to Section 3.10(a), the Company shall also use its commercially reasonable efforts to post copies of such information required by Section 3.10(a) on a website (which may be nonpublic, password protected and may be maintained by the Company or a third party) to which access will be given to Holders, prospective investors in the Notes (which prospective investors shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), and securities analysts and market making financial institutions that are reasonably satisfactory to the Company; provided, however, that the Company may deny access to any competitively sensitive
 
-125-

information otherwise to be provided pursuant to this covenant to any such Holder, prospective investor, security analyst or market maker that is a competitor (or an Affiliate of a competitor) of the Company and its Subsidiaries, to the extent that the Company determines in good faith that the provision of such information to such Person would be competitively harmful to the Company and its Subsidiaries. To the extent the Company determines in good faith that it cannot make such reports available in the manner described in the preceding sentence after the use of its commercially reasonable efforts, the Company shall furnish such reports to the Holders, upon their request. The Company may condition the delivery of any such reports to such Holders, prospective investors in the Notes and securities analysts and market making financial institutions on the agreement of such Persons to (i) treat all such reports (and the information contained there) and information as confidential, (ii) not use such reports (and the information contained therein) and information for any purpose other than their investment or potential investment in the Notes and (iii) not publicly disclose any such reports (and the information contained therein) and information.
(d)    The Company will also hold quarterly conference calls for the Holders of the Notes, prospective investors in the Notes and securities analysts and market making financial institutions to discuss financial information for the previous quarter (it being understood that such quarterly conference call may be the same conference call as with the Company’s (or, as applicable, any of any Parent Entity’s) equity investors and analysts). The conference call will be following the last day of each fiscal quarter of the Company and not later than 20 Business Days from the time that the Company distributes the financial information as set forth in Section 3.10(a). No fewer than two days prior to the conference call, the Company will issue a press release or otherwise announce the time and date of such conference call and providing instructions for Holders, prospective investors in the Notes, securities analysts and market making financial institutions to obtain access to such call.
(e)    For purposes this covenant, an acquisition or disposition shall be deemed to be material if the entity or business acquired or disposed of represents greater than 20% of the Company’s (i) Consolidated Net Income or Consolidated EBITDA for the most recent four quarters for which annual or quarterly financial reports are available or (ii) consolidated assets as of the last day of the most recent quarter for which annual or quarterly financial reports are available.
(f)    If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries hold in the aggregate more than 10.0% of the Total Assets of the Company, then the annual and quarterly financial information required by clauses (1) and (2) of the first paragraph of this covenant will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Company.
 
-126-

(g)    The Company may satisfy its obligations under Section 3.10 with respect to financial information relating to the Company by furnishing financial information relating to a Parent Entity; provided that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such Parent Entity (and other direct or indirect Parent Entities included in such information, if any), on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand. For the avoidance of doubt, the consolidating information referred to in the proviso in the preceding sentence need not be audited.
(h)    Notwithstanding anything to the contrary set forth above, if the Company or any Parent Entity has furnished the Holders of Notes (with a copy to the Trustee) or filed with the SEC the reports described in the preceding paragraphs with respect to the Company or any Parent Entity, the Company shall be deemed to be in compliance with Sections 3.10(a) and 3.10(b); provided that the Trustee shall have no obligation to monitor whether any such filings have been made.
(i)    Delivery of reports, information and documents pursuant to this Section 3.10 to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
Section 3.11.     Maintenance of Office or Agency .
The Company will maintain an office or agency where the Notes will be payable and where, if applicable, the Notes may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be made. The corporate trust office of the Trustee, which initially shall be located at Wilmington Trust, National Association, Corporate Capital Markets, 50 South Sixth Street, Suite 1290, Minneapolis, MN 55402-1544, Attention: Atento Administrator, shall be such office or agency of the Company unless the Company shall designate and maintain some other office or agency for one or more of such purposes. The Company will give prompt written notice to the Trustee of any change in the location of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations and surrenders may be made at the corporate trust office of the Trustee, and the Company hereby appoint the Trustee as its agent to receive all such presentations and surrenders.
The Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind any such designation. The Company will give prompt written notice to the Trustee of any such designation or rescission and any change in the location of any such other office or agency. The office of the Trustee shall not be an office or agency of the Company for service of process on the Company or any Guarantor.
 
-127-

Section 3.12.     Corporate Existence . Except as otherwise provided in this Article III, Article IV and Section 10.2(b) and subject to the ability of the Company or any of the Restricted Subsidiaries to convert (or similar action) to another form of legal entity under the laws of the jurisdiction under which the Company or such Subsidiary then exists, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect their corporate existence, as applicable, and the corporate, partnership, limited liability company or other existence of each Restricted Subsidiary; provided, however, that the Company shall not be required to preserve the corporate, partnership, limited liability company or other existence of any Restricted Subsidiary if the respective Board of Directors or, with respect to a Restricted Subsidiary that is not a Significant Subsidiary (or group of Restricted Subsidiaries that taken together would not be a Significant Subsidiary), senior management of the Company determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and each of its Restricted Subsidiaries, taken as a whole, and that the loss thereof is not, and will not be, disadvantageous in any material respect to the Holders.
Section 3.13.     Payment of Taxes . The Company shall pay or discharge or cause to be paid or discharged, before the same shall become delinquent, all material taxes, assessments and governmental charges levied or imposed upon the Company or any Subsidiary; provided , however , that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim the amount, applicability or validity of which is being contested in good faith by appropriate proceedings and for which appropriate reserves, if necessary (in the good faith judgment of management of the Company), are being maintained in accordance with IFRS or where the failure to effect such payment will not be disadvantageous to the Holders.
Section 3.14.    [ Reserved ].
Section 3.15.     Compliance Certificate . The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company an Officer’s Certificate, the signers of which shall be the Chief Executive Officer, Chief Financial Officer or the Treasurer of the Company, stating that in the course of the performance by the signer of his or her duties as an Officer of the Company he or she would normally have knowledge of any Default or Event of Default and whether or not the signer knows of any Default or Event of Default that occurred during the previous fiscal year; provided that no such Officer’s Certificate shall be required for any fiscal year ended prior to the Issue Date. If such Officer does have such knowledge, the certificate shall describe the Default or Event of Default, its status and the action the Company is taking or proposes to take with respect thereto.
Section 3.16.     Further Instruments and Acts . Upon request of the Trustee or as necessary to comply with future developments or requirements, the Company will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
 
-128-

Section 3.17.    [ Reserved ].
Section 3.18.     Statement by Officers as to Default . The Company shall deliver to the Trustee, as soon as possible and in any event within 30 days after the Company become aware of the occurrence of any Default or Event of Default, an Officer’s Certificate setting forth the details of such Event of Default or Default, its status and the actions which the Company is taking or propose to take with respect thereto.
Section 3.19.     Suspension of Certain Covenants .
(a)    Following the first day: (1) the Notes have achieved Investment Grade Status; and (2) no Default or Event of Default has occurred and is continuing under this Indenture, then, beginning on that day and continuing until the Reversion Date (as defined below), the Company and the Restricted Subsidiaries will not be subject to Sections 3.2, 3.3, 3.4, 3.5, 3.7, 3.8 and 4.1(a)(3)(collectively, the “ Suspended Covenants ”).
(b)    In addition, any future obligation to grant further Note Guarantees shall be released. All such further obligation to grant Note Guarantees shall be reinstated upon the Reversion Date. If at any time the Notes cease to have such Investment Grade Status, then the Suspended Covenants will thereafter be reinstated as if such covenants had never been suspended (the “ Reversion Date ”) and be applicable pursuant to the terms of this Indenture (including in connection with performing any calculation or assessment to determine compliance with the terms of this Indenture), unless and until the Notes subsequently attain Investment Grade Status (in which event the Suspended Covenants shall no longer be in effect for such time that the Notes maintain an Investment Grade Status); provided, however, that no Event of Default or breach of any kind shall be deemed to exist under this Indenture, the Notes or the Note Guarantees with respect to the Suspended Covenants based on, and none of the Company or any of its Subsidiaries shall bear any liability for, any actions taken or events occurring during the Suspension Period, or any actions taken at any time pursuant to any contractual obligation arising prior to the Reversion Date, regardless of whether such actions or events would have been permitted if the applicable Suspended Covenants remained in effect during such period. The period of time between the date of suspension of the covenants and the Reversion Date is referred to as the “Suspension Period.”
(c)    On the Reversion Date, all Indebtedness Incurred during the Suspension Period will be deemed to have been outstanding on the Issue Date, so that it is classified as permitted under Section 3.2(b)(4). On and after the Reversion Date, all Liens created during the Suspension Period will be considered Permitted Liens. Calculations made after the Reversion Date of the amount available to be made as Restricted Payments under Section 3.3 will be made as though Section 3.3 had been in effect since the Issue Date and prior to, but not during the Suspension Period. Accordingly, Restricted Payments made during the Suspension Period will not reduce the amount available to be
 
-129-

made as Restricted Payments under Section 3.3(a). On and after each Reversion Date, the Company and its Subsidiaries will be permitted to consummate the transactions contemplated by any contract entered into during the Suspension Period, so long as such contract and such consummation would have been permitted during such Suspension Period.
(d)    The Trustee shall have no duty to monitor the ratings of the Notes, shall not be deemed to have any knowledge of the ratings of the Notes and shall have no duty to notify Holders if the Notes achieve Investment Grade Status.
Section 3.20.     Designation of Restricted and Unrestricted Subsidiaries .
(a)    The Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause an Event of Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate fair market value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments pursuant to Section 3.3 or under one or more clauses of the definition of Permitted Investments, as determined by the Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default.
(b)    Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee an Officer’s Certificate certifying that such designation complies with the preceding conditions and was permitted by Section 3.3. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary as of such date and, if such Indebtedness is not permitted to be Incurred as of such date under Section 3.2, the Company will be in default of Section 3.2.
(c)    The Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 3.2 (including pursuant to clause (b)(5) thereof treating such redesignation as an acquisition for the purposes of such clause), calculated on a pro forma basis as if such designation had occurred at the beginning of the applicable reference period; and (2) no Default or Event of Default would be in existence following such designation. Any such designation by the Company shall be evidenced to the Trustee by filing with the Trustee an Officer’s Certificate certifying that such designation complies with the preceding conditions.
 
-130-

Section 3.21.     Amendment of Collateral Documents . The Company shall not amend, modify or supplement, or permit or consent to any amendment, modification or supplement of, the Collateral Documents in any way that would be adverse to the Holders of the Notes in any material respect, except under Articles IX and XII.
Section 3.22.     After-Acquired Property . From and after the Issue Date, upon the acquisition by the Company or any Guarantor of any After-Acquired Property, the Company or such Guarantor shall execute and deliver such security instruments, financing statements and certificates, accompanied by Opinions of Counsel, as shall be necessary to vest in the Collateral Agent a perfected security interest, subject only to Permitted Liens, in such After-Acquired Property and to have such After-Acquired Property (but subject to certain limitations, if applicable, including under Article XII) added to the Collateral, and thereupon all provisions of this Indenture relating to the Collateral shall be deemed to relate to such After-Acquired Property to the same extent and with the same force and effect; provided, however, that if granting such first priority security interest in such After-Acquired Property requires the consent of a third party, the Company shall use commercially reasonable efforts to obtain such consent with respect to the first priority interest for the benefit of the Trustee and the Collateral Agent on behalf of the Holders of the Notes; provided further, however, that if such third party does not consent to the granting of such first priority security interest after the use of such commercially reasonable efforts, the Company or such Guarantor, as the case may be, shall not be required to provide such security interest.
Section 3.23.     Additional Amounts .
(a)    All payments that the Company makes under or with respect to the Notes, and that any Guarantor makes under or with respect to any Note Guarantee will be made free and clear of and without withholding or deduction for, or on account of, any present or future tax, duty, levy, assessment or other governmental charge, including any related interest, penalties or additions to tax (“ Taxes ”), unless such withholding or deduction of such Taxes is then required by law. If any such deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction in which either the Company or any Guarantor is incorporated or organized, engaged in business for tax purposes or resident for tax purposes, or any political subdivision thereof or therein or (2) any jurisdiction from or through which payment is made by or on behalf of the Company or any such Guarantor, or any political subdivision thereof or therein (each, a “ Relevant Tax Jurisdiction ”) will at any time be required to be made in respect of any payments made by the Company or any such Guarantor under or with respect to the Notes or any Guarantee, including payments of principal, redemption price, interest or premium, the Company or any such Guarantor, as applicable, will pay such additional amounts (the “ Additional Amounts ”) as may be necessary in order that the net amounts received by each Holder in respect of such payments after such withholding or deduction by the applicable withholding agent (including any such withholding or deduction from such Additional Amounts) will equal the respective amounts that would have been
 
-131-

received by each Holder in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts will be payable with respect to:
(1)    any Taxes, to the extent such Taxes would not have been imposed but for the existence of any actual or deemed present or former connection between the Holder or the beneficial owner of the Notes and the Relevant Tax Jurisdiction (including being a resident of such jurisdiction for Tax purposes), other than any connection arising solely from the ownership or disposition of such Note, the enforcement of such Note or any Note Guarantee or the receipt of any payments under or with respect to such Note or a Note Guarantee;
(2)    any Tax imposed on or with respect to any payment by the Company or a Guarantor to the Holder if such Holder is a fiduciary or partnership or person other than the sole beneficial owner of such payment to the extent that Taxes would not have been imposed on such payment had the beneficiary, partner or other beneficial owner directly held the Note, provided that there is no material cost or commercial or legal restriction to transferring the notes to the beneficiary, partner or other beneficial owner;
(3)    any Taxes, to the extent such Taxes were imposed as a result of the presentation (where presentation is required in order to receive payment) of a Note for payment more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(4)    any estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
(5)    any Taxes imposed by the United States, any state thereof or the District of Columbia, or any subdivision thereof, including U.S. federal withholding taxes and any Taxes under FATCA;
(6)    any Taxes payable other than by deduction or withholding from payments under or with respect to a Note or any Note Guarantee of such Note;
(7)    any Taxes, to the extent such Taxes are imposed or withheld by reason of the failure of the Holder or beneficial owner of Notes, to comply with any timely reasonable written request of the Company or the Guarantors, as applicable, addressed to the Holder or beneficial owner to satisfy any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Relevant Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Tax Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Relevant Tax Jurisdiction), but in each case only to the extent the Holder or beneficial owner is legally eligible to provide such certification or documentation; or
(8)    any combination of items (1) through (7) above.
 
-132-

(b)    In addition to the foregoing, each of the Company and the Guarantors will also pay the Holder for any present or future stamp, issue, registration, court or documentary Taxes, or any other excise or property Taxes, duties or similar levies (including related penalties, interest and additions to Tax with respect thereto) which are levied by any Relevant Tax Jurisdiction (for the avoidance of doubt, excluding the United States, any state thereof or the District of Columbia or any political subdivision thereof or therein) on the execution, delivery, issuance, or registration of this Indenture, the Notes, any Note Guarantee or any other document or instrument referred to therein, or the receipt of any payments under or with respect to, or enforcement of, this Indenture, the Notes, any Note Guarantee or any other such document or instrument. No Guarantor will, however, pay any such amounts that are imposed on or result from a sale or other transfer or disposition of a note by a Holder or a beneficial owner and that would not have been imposed or resulted but for the existence of any actual or deemed present or former connection between such Holder or beneficial owner of the Note and the Relevant Tax Jurisdiction, other than any connection arising solely from the ownership or disposition of such Note, the enforcement of such Note or any Note Guarantee or the receipt of any payments under or with respect to such Note or a Note Guarantee and limited, solely to the extent of such taxes and similar charges or levies that arise from the receipt of any payments of principal or interest on the Notes, to any such taxes or similar charges or levies that are not excluded under clauses (1) through (8) above.
(c)    If the Company or any Guarantor becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to the Notes or any Note Guarantee, the Company or such Guarantor, as applicable, will deliver to the Trustee on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises less than 30 days prior to that payment date, in which case the Company or the Guarantors, as applicable, shall deliver to the Trustee promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate must also set forth any other information reasonably necessary to enable the Paying Agent to pay such Additional Amounts to Holders on the relevant payment date. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary.
(d)    The Company or the Guarantor, as applicable, will make all withholdings and deductions required by law to be withheld or deducted by it and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Company or the Guarantor, as applicable, will use its reasonable efforts to obtain Tax receipts from each relevant Tax authority evidencing the payment of any Taxes so deducted or withheld. The Company or the Guarantor, as applicable, will furnish to the Trustee (or to a Holder or beneficial owner upon written request), within a reasonable time after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by or Company or the Guarantor, as applicable, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments by such entity.
 
-133-

(e)    Whenever in this Indenture there is referred to, in any context, the payment of principal, interest, premium, redemption price or other amounts with respect to any Note, such reference shall be deemed to include the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(f)    The above obligations will survive any termination, defeasance or discharge of this Indenture, any transfer by a Holder or beneficial owner of its Notes, and will apply, mutatis mutandis , to any successor Persons to the Company or the Guarantors, as applicable, and to any jurisdiction in which any successor Person to the Company or the Guarantors, as applicable, is incorporated or organized, engaged in business for tax purposes or resident for tax purposes or any jurisdiction from or through which payment is made by or on behalf of such Person on any Note, Note Guarantee, and any political subdivision thereof or therein.
Section 3.24.     Post-Closing Guarantors . The Company shall use commercially reasonable efforts to cause each Post-Closing Guarantor to provide a Note Guarantee within 15 Business Days following the Issue Date.
ARTICLE IV
S UCCESSOR C OMPANY ; S UCCESSOR P ERSON
Section 4.1.     Merger and Consolidation .
(a)    The Company will not consolidate with or merge with or into, or convey, transfer or lease all or substantially all its assets, in one transaction or a series of related transactions, to any Person, unless:
(1)    the resulting, surviving or transferee Person (the “ Successor Company ”) will be a Person organized and existing under the laws of any member state of the European Union, the United Kingdom, the United States of America, any State of the United States or the District of Columbia, Canada or any province of Canada, Norway or Switzerland and the Successor Company (if not the Company) will expressly assume, by supplemental indenture and any necessary supplements or joinders to the Collateral Documents, executed and delivered to the Trustee and Collateral Agent, all the obligations of the Company under the Notes, this Indenture and the Collateral Documents, and if such Successor Company is not a corporation, a co-obligor of the Notes is a corporation organized or existing under such laws;
(2)    immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the applicable Successor Company or any Subsidiary of the applicable Successor Company as a result of such transaction as having been Incurred by the applicable Successor Company or such Subsidiary at the time of such transaction), no Event of Default shall have occurred and be continuing;
 
-134-

(3)    immediately after giving effect to such transaction, either (i) the applicable Successor Company would be able to Incur at least an additional $1.00 of Indebtedness pursuant to Section 3.2(a), (ii) the Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries would not be lower than it was immediately prior to giving effect to such transaction or (c) the Consolidated Total Leverage Ratio of the Company and its Restricted Subsidiaries would not be higher than it was immediately prior to giving effect to such transaction; and
(4)    the Company shall have delivered to the Trustee and the Collateral Agent an Officer’s Certificate and an Opinion of Counsel, each to the effect that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture and an Opinion of Counsel to the effect that such supplemental indenture (if any) is a legal and binding agreement enforceable against the Successor Company, provided that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to satisfaction of Sections 4.1(a)(2) and.4.1(a)(3).
(b)    The Successor Company will succeed to, and be substituted for, and may exercise every right and power of, the Company under the Notes, this Indenture and the Collateral Documents.
(c)    Notwithstanding Sections 4.1(a)(2), 4.1(a)(3) and 4.1(a)(4) (which do not apply to transactions referred to in this sentence), (i) the Company may consolidate or otherwise combine with, merger into or transfer all or part of its properties and assets to a Guarantor, (ii) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to the Company or a Guarantor, (iii) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary and (iv) the Company and its Restricted Subsidiaries may complete any Permitted Tax Restructuring. Notwithstanding Sections 4.1(a)(2) and.4.1(a)(3) (which do not apply to the transactions referred to in this sentence), the Company may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Company, reincorporating the Company in another jurisdiction, or changing the legal form of the Company.
(d)    The foregoing provisions (other than the requirements of Section 4.1(a)(2)) shall not apply to the creation of a new Subsidiary as a Restricted Subsidiary.
(e)    No Guarantor may
(1)    consolidate with or merge with or into any Person, or
(2)    sell, convey, transfer or dispose of, all or substantially all its assets, in one transaction or a series of related transactions, to any Person, or
(3)    permit any Person to merge with or into such Guarantor, unless
 
-135-

(i)    (A) the other Person is the Company or any Restricted Subsidiary that is Guarantor or becomes a Guarantor concurrently with the transaction; or
(B)    either (x) the Company or a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes by supplemental indenture and any necessary supplements or joinders to the Collateral Documents all of the obligations of the Guarantor under its Note Guarantee, this Indenture and the Collateral Documents; and
(C)    immediately after giving effect to the transaction, no Event of Default has occurred and is continuing; or
(ii)    the transaction constitutes a sale or other disposition (including by way of consolidation or merger) of the Guarantor or the sale or disposition of all or substantially all the assets of the Guarantor (in each case other than to the Company or a Restricted Subsidiary) otherwise permitted by this Indenture.
ARTICLE V
R EDEMPTION OF N OTES
Section 5.1.     Notices to Trustee .
If the Company elect to redeem Notes pursuant to the optional redemption provisions of Section 5.7 hereof, it must furnish to the Trustee, at least 15 days but not more than 60 days before a Redemption Date, an Officer’s Certificate setting forth:
(1)    the clause of this Indenture pursuant to which the redemption shall occur;
(2)    the Redemption Date;
(3)    the principal amount of Notes to be redeemed; and
(4)    the redemption price.
The Company may cancel any optional redemption referenced in such Officer’s Certificate at any time prior to notice of redemption being sent to any Holder and thereafter shall be null and void.
Section 5.2.     Selection of Notes to Be Redeemed or Purchased .
If less than all of the Notes are to be redeemed or purchased in an Asset Disposition Offer pursuant to Section 3.5 at any time, the Trustee will select the Notes for redemption or purchase in compliance with the requirements of the principal securities
 
-136-

exchange, if any, on which such Notes are listed, as certified to the Trustee by the Company, and in compliance with the requirements of DTC in the case of global notes, or if Notes are not so listed or such exchange prescribes no method of selection and such Notes are not held through DTC or DTC prescribes no method of selection, on a pro rata basis, subject to adjustments so that no Note in an unauthorized denomination remains outstanding after such redemption; provided , however , that no Note of $2,000 in aggregate principal amount or less shall be redeemed in part.
Section 5.3.     Notice to Redemption .
(a)    At least 15 days but not more than 60 days before a Redemption Date, the Company will send or cause to be sent, a notice of redemption to each Holder whose Notes are to be redeemed at the address of such Holder appearing in the Notes Register or otherwise in accordance with the procedures of DTC, except that redemption notices may be delivered more than 60 days prior to a Redemption Date if the notice is issued in connection with a legal or covenant defeasance of the Notes or a satisfaction and discharge of this Indenture pursuant to Articles VIII or XI hereof.
The notice will identify the Notes (including the CUSIP or ISIN number) to be redeemed and will state:
(1)    the Redemption Date;
(2)    the redemption price;
(3)    if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the Redemption Date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be issued upon cancellation of the original Note;
(4)    the name and address of the Paying Agent;
(5)    that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(6)    that, unless the Company default in making such redemption payment, interest, if any, on Notes called for redemption ceases to accrue on and after the Redemption Date;
(7)    the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed;
(8)    that no representation is made as to the correctness or accuracy of the CUSIP or ISIN number, if any, listed in such notice or printed on the Notes; and
(9)    any conditions to redemption.
 
-137-

(b)    If any Note is to be redeemed in part only, the notice of redemption that relates to that Note shall state the portion of the principal amount thereof to be redeemed, in which case a portion of the original Note will be issued in the name of the Holder thereof upon cancellation of the original Note. In the case of a global note, an appropriate notation will be made on such Note to decrease the principal amount thereof to an amount equal to the unredeemed portion thereof. Subject to the terms of the applicable redemption notice (including any conditions contained therein), Notes called for redemption become due on the date fixed for redemption. On and after the Redemption Date, unless the Company defaults in the payment of the redemption price, interest ceases to accrue on Notes or portions of them called for redemption.
(c)    At the Company’s request, the Trustee will give the notice of redemption in the Company’s names and at their expense; provided, however, that the Company have delivered to the Trustee at least five (5) Business Days prior to the date that such notice of redemption is to be delivered to Holders (or such shorter period as the Trustee may agree), an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in Section 5.3(a) in the form of such notice.
Section 5.4.     Effect of Notice of Redemption . Notice of any redemption of the Notes may, at the Company’s discretion, be given prior to the completion of a transaction (including an Equity Offering (in the case of redemption pursuant to Section 5.7(b) hereof), an incurrence of Indebtedness, a Change of Control (in the case of purchase pursuant to Section 3.9 hereof)or other transaction) and any redemption notice may, at the Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of a related transaction. If such redemption or purchase is so subject to satisfaction of one or more conditions precedent, such notice shall describe each such condition, and if applicable, shall state that, in the Company’s discretion, the Redemption Date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption or purchase may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the Redemption Date, or by the Redemption Date as so delayed. In addition, the Company may provide in such notice that payment of the redemption price and performance of the Company’s obligations with respect to such redemption may be performed by another Person.
Section 5.5.     Deposit of Redemption or Purchase Price . Prior to 10:00 a.m. Eastern Time on the redemption or purchase date, the Company will deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of and accrued interest, if any, on, all Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent will promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption or purchase price of, and accrued interest, if any, on, all Notes to be redeemed or purchased.
If the Company complies with the provisions of the preceding paragraph, on and after the redemption or purchase date, interest, if any, will cease to accrue on the Notes or
 
-138-

the portions of Notes called for redemption or purchase. If a Note is redeemed or purchased on or after an interest record date but on or prior to the related interest payment date, then any accrued and unpaid interest up to the Redemption Date shall be paid on the Redemption Date to the Person in whose name such Note was registered at the close of business on such record date. If any Note called for redemption or purchase is not so paid upon surrender for redemption or purchase because of the failure of the Company to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or purchase date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 3.1 hereof.
Section 5.6.     Notes Redeemed or Purchased in Part . Upon surrender of a Note that is redeemed or purchased in part, the Company will issue and, upon receipt of a Company Order, the Trustee will authenticate for the Holder at the expense of the Company a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered; provided , that each such new Note will be in a principal amount of $2,000 or integral multiple of $1,000 in excess thereof.
Section 5.7.     Optional Redemption .
(a)    At any time prior to August 10, 2019, the Company may redeem the Notes in whole or in part, at its option, upon not less than 15 nor more than 60 days’ prior notice , with a copy to the Trustee, to each Holder of the Notes to the address of such Holder appearing in the Notes Register, at a redemption price (expressed as percentages of principal amount of the Notes to be redeemed) equal to 100% of the principal amount of such Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest, if any, to but excluding the date of redemption (the “ Redemption Date ”), subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date.
(b)    At any time and from time to time prior to August 10, 2019, the Company may redeem Notes with the Net Cash Proceeds received by the Company from any Equity Offering at a redemption price equal to 106.125% plus accrued and unpaid interest, if any, to but excluding the Redemption Date, in an aggregate principal amount for all such redemptions not to exceed 40% of the original aggregate principal amount of the Notes (including Additional Notes); provided that (1) in each case the redemption takes place not later than 180 days after the closing of the related Equity Offering, and (2) not less than 50% of the original aggregate principal amount of the Notes issued under this Indenture remains outstanding immediately thereafter, excluding Notes held by the Company or any of the Restricted Subsidiaries, unless all such Notes are redeemed substantially concurrently. The Trustee shall select the Notes to be purchased in the manner described under Sections 5.1 through 5.6.
(c)    Except pursuant to clauses (a) and (b) of this Section 5.7 or as otherwise set forth below, the Notes will not be redeemable at the Company’s option prior to August 10, 2019. The Company will not, however, be prohibited from acquiring the Notes by means other than a redemption, whether pursuant to a tender offer, open market purchase or otherwise, so long as the acquisition does not violate the terms of this Indenture.
 
-139-

(d)    At any time and from time to time on or after August 10, 2019, the Company may redeem the Notes in whole or in part, upon not less than 15 nor more than 60 days’ notice, with a copy to the Trustee, to each Holder of the Notes to the address of such Holder appearing in the Notes Register at a redemption price equal to the percentage of principal amount set forth below plus accrued and unpaid interest, if any, on the Notes redeemed, to, but excluding, the applicable Redemption Date, if redeemed during the twelve-month period beginning on August 10 of the year indicated below:

Year	  	Percentage	 	
2019	  	 	103.063	% 	
2020	  	 	101.531	% 	
2021 and thereafter	  	 	100.000	% 	
(e)    If the optional Redemption Date is on or after a record date and on or before the corresponding interest payment date, the accrued and unpaid interest up to, but excluding, the Redemption Date will be paid on the Redemption Date to the Holder in whose name the Note is registered at the close of business on such record date in accordance with the applicable procedures of DTC, and no additional interest will be payable to Holders whose Notes will be subject to redemption by the Company.
(f)    Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable Redemption Date.
(g)    The Company may, at its option, redeem the Notes, in whole but not in part, at any time upon not less than 15 days’ nor more than 60 days’ written notice to the Holders of the Notes and the Trustee (which notice shall be given in accordance with the provisions of Sections 5.1 through 5.6), at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to the date fixed for redemption (a “ Tax Redemption Date ”), premium, if any, and all Additional Amounts, if any, then due and which will become due on the Tax Redemption Date as a result of the redemption or otherwise, if the Company determines in that the Company or any Guarantor (including, in each case, a successor entity) is, or on the next date on which any amount would be payable in respect of the Notes, would be obligated to pay Additional Amounts in respect of the Notes pursuant to the terms and conditions thereof, which the Company or Guarantor or successor entity (as the case may be) cannot avoid by the use of reasonable measures available to it (including, without limitation, making payment through a payment agent located in another jurisdiction), as a result of:
(1)    any change in, or amendment to, the laws (or any regulations or rulings promulgated thereunder) of any Relevant Tax Jurisdiction affecting taxation which becomes effective on or after the Issue Date or, in the case of a Relevant Tax Jurisdiction that did not become a Relevant Tax Jurisdiction until after the Issue Date, the date on which such Relevant Tax Jurisdiction became a Relevant Tax Jurisdiction under this Indenture; or
 
-140-

(2)    any change in, or amendment to, the official written application, administration, or interpretation of the laws, regulations or rulings of any Relevant Tax Jurisdiction (including by virtue of a holding, judgment, or order by a court of competent jurisdiction or change in published practice or revenue guidance), on or after the Issue Date or, in the case of a Relevant Tax Jurisdiction that did not become a Relevant Tax Jurisdiction until after the Issue Date, the date on which such Relevant Tax Jurisdiction became a Relevant Tax Jurisdiction under this Indenture (each of the foregoing clauses (1) and (2), a “ Change in Tax Law ”).
Prior to the sending of any notice of redemption pursuant to this Section 5.7(g), the Company will deliver to the Trustee:
(1)    an Officer’s Certificate stating that the Company is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Company to so redeem have occurred (including that such obligation to pay such Additional Amounts cannot be avoided by the Company taking reasonable measures available to it); and
(2)    a written opinion of independent legal counsel of recognized standing qualified under the laws of the Relevant Tax Jurisdiction to the effect that the Company is or would be obligated to pay such Additional Amounts as a result of a Change in Tax Law.
The Trustee will accept, and shall be entitled to rely on, such Officer’s Certificate and opinion as sufficient evidence of the satisfaction of the conditions precedent described above, without further inquiry, in which event it will be conclusive and binding on the Holders.
Notwithstanding the foregoing, the Company may not redeem the Notes under this Section 5.7(g) if the Change in Tax Law obliging the Company to pay Additional Amounts was (i) officially announced by the Relevant Tax Jurisdiction’s tax authority or a court or (ii) validly enacted into law by the Relevant Tax Jurisdiction, in each case, prior to the Issue Date or, in the case of a Relevant Tax Jurisdiction that did not become a Relevant Tax Jurisdiction until after the Issue Date, the date on which such Relevant Tax Jurisdiction became a Relevant Tax Jurisdiction under this Indenture.
Notwithstanding the foregoing, no such notice of redemption will be given (a) earlier than 90 days prior to the earliest date on which the Company would be obliged to make such payment of Additional Amounts or withholding if a payment in respect of the Notes were then due and (b) unless at the time such notice is given, the obligation to pay Additional Amounts remains in effect.
The provisions of this Section 5.7(g) shall apply mutatis mutandis to any successor Person, after such successor Person becomes a party to this Indenture, with respect to a Change in Tax Law occurring after the time such successor Person becomes a party to this Indenture.
 
-141-

(h)    Any redemption pursuant to this Section 5.7 shall be made pursuant to the provisions of Sections 5.1 through 5.6.
Section 5.8.     Mandatory Redemption . The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes; provided however, that under certain circumstances, the Company may be required to offer to purchase Notes under Section 3.5 and Section 3.9. The Company and its Affiliates, may from time to time seek to purchase the Company’s outstanding debt securities or loans, including the Notes, in privately negotiated or open market transactions, by tender offer or otherwise.
ARTICLE VI
D EFAULTS AND R EMEDIES
Section 6.1.     Events of Default .
(a)    Each of the following is an “Event of Default”:
(1)    default in any payment of interest on any Note when due and payable, continued for 30 days;
(2)    default in the payment of the principal amount of or premium, if any, on any Note issued under this Indenture when due at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration or otherwise;
(3)    failure by the Company or any Guarantor to comply for 60 days after written notice by the Trustee on behalf of the Holders or by the Holders of 30% in aggregate principal amount of the outstanding Notes with any agreement or obligation contained in this Indenture or the Collateral Documents; provided that in the case of a failure to comply with this Indenture provisions described under Section 3.10 hereof, such period of continuance of such default or breach shall be 180 days after written notice described in this clause has been given;
(4)    default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any Significant Subsidiary (or group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries) would constitute a Significant Subsidiary) (or the payment of which is Guaranteed by the Company or any Significant Subsidiary (or group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries) would constitute a Significant Subsidiary) other than Indebtedness owed to the Company or a
 
-142-

Restricted Subsidiary whether such Indebtedness or Guarantee now exists, or is created after the date hereof, which default:
(A)    is caused by a failure to pay principal of such Indebtedness, at its stated final maturity (after giving effect to any applicable grace periods) provided in such Indebtedness (“ payment default ”); or
(B)    results in the acceleration of such Indebtedness prior to its stated final maturity (the “ cross acceleration provision ”);
and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a payment default of principal at its stated final maturity (after giving effect to any applicable grace periods) or the maturity of which has been so accelerated, aggregates to $50.0 million or more at any one time outstanding;
(5)    the Company or a Significant Subsidiary (or group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Company and the Restricted Subsidiaries), would constitute a Significant Subsidiary);
(A)    commences a voluntary case or proceeding;
(B)    consents to the entry of an order for relief against it in an involuntary case or proceeding;
(C)    consents to the appointment of a Custodian of it or for substantially all of its property;
(D)    makes a general assignment for the benefit of its creditors;
(E)    consents to or acquiesces in the institution of a bankruptcy or an insolvency proceeding against it; or
(F)    takes any comparable action under any foreign laws relating to insolvency (collectively, the “ bankruptcy provisions ”);
(6)    a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A)    is for relief against the Company or a Significant Subsidiary or group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary, in an involuntary case;
 
-143-

(B)    appoints a Custodian of the Company or a Significant Subsidiary or group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary, for substantially all of its property;
(C)    orders the winding up or liquidation of the Company, the Company or a Significant Subsidiary or group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary; or
(D)    or any similar relief is granted under any foreign laws and the order, decree or relief remains unstayed and in effect for 60 consecutive days;
(7)    failure by the Company or a Significant Subsidiary (or group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Company and the Restricted Subsidiaries) would constitute a Significant Subsidiary), to pay final judgments aggregating in excess of $50.0 million other than any judgments covered by indemnities provided by, or insurance policies issued by, reputable and creditworthy companies, which final judgments remain unpaid, undischarged and unstayed for a period of more than 60 days after such judgment becomes final, and in the event such judgment is covered by insurance, an enforcement proceeding has been commenced by any creditor upon such judgment or decree which is not promptly stayed (the “ judgment default provision ”);
(8)    any Guarantee of the Notes by a Significant Subsidiary ceases to be in full force and effect, other than in accordance with the terms of this Indenture or a Guarantor denies or disaffirms its obligations under its Guarantee, other than in accordance with the terms thereof or upon release of such Guarantee in accordance with this Indenture;
(9)    unless such Liens have been released in accordance with the provisions of the Collateral Documents, First Priority Liens with respect to all or substantially all of the Collateral cease to be valid or enforceable, or the Company shall assert or any Guarantor shall assert, in any pleading in any court of competent jurisdiction, that any such security interest is invalid or unenforceable and, in the case of any such Guarantor, the Company fails to cause such Guarantor to rescind such assertions within 30 days after the Company has actual knowledge of such assertions; or
(10)    the failure by the Company or any Guarantor to comply for 60 days after notice with its other agreements contained in the Collateral Documents except for a failure that would not be material to the Holders of the Notes and would not materially affect the value of the Collateral taken as a whole (together with the defaults described in clauses (9) and (10) the “ security default provisions ”).
 
-144-

(b)    Notwithstanding the foregoing, a Default under Sections 6.1(a)(4), 6.1(a)(7)or 6.1(a)(10) will not constitute an Event of Default until the Trustee or the Holders of 30% in principal amount of the outstanding Notes notify the Company of the Default and, with respect to Sections 6.1(a)(7) and 6.1(a)(10) the Company does not cure such Default within the time specified in Sections 6.1(a)(7) or 6.1(a)(10), after receipt of such notice.
Section 6.2.     Acceleration .
(a)    If an Event of Default (other than an Event of Default described in Sections 6.1(a)(5) and 6.1(a)(6)) occurs and is continuing, the Trustee by written notice to the Company or the Holders of at least 30% in principal amount of the outstanding Notes by written notice to the Company and the Trustee may declare the principal of and accrued and unpaid interest, if any, on all the Notes to be due and payable. Upon such a declaration, such principal and accrued and unpaid interest, if any, will be due and payable immediately.
In the event of any Event of Default specified in Section 6.1(a)(4), such Event of Default and all consequences thereof shall be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders, if within 30 days after such Event of Default arose:
(1)    (x)    the Indebtedness that gave rise to such Event of Default shall have been discharged in full; or
(y)    the holders thereof have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default; or
(z)    if the default that is the basis for such Event of Default has been remedied or cured; and
(2)    (a)    the annulment of the acceleration of the Notes would not conflict with any judgment or decree of a court of competent jurisdiction; and
(b)    all existing Events of Default, except nonpayment of principal, premium or interest, if any, on the Notes that became due solely because of the acceleration of the Notes, have been cured or waived.
(b)    If an Event of Default described in Sections 6.1(a)(5) and 6.1(a)(6) with respect to the Company occurs and is continuing, the principal of, and accrued and unpaid interest, if any, on all the Notes will become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders.
 
-145-

(c)    If a Default for a failure to report or failure to deliver a required certificate in connection with another Default (the “ Initial Default ”) occurs, then at the time such Initial Default is cured, such Default for a failure to report or failure to deliver a required certificate in connection with another Default that resulted solely because of that Initial Default will also be cured without any further action and (ii) any Default or Event of Default for the failure to comply with the time periods prescribed in Section 3.10 hereof or otherwise to deliver any notice or certificate pursuant to any other provision of this Indenture shall be deemed to be cured upon the delivery of any such report required by such covenant or such notice or certificate, as applicable, even though such delivery is not within the prescribed period specified in this Indenture
Section 6.3.     Other Remedies . If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of principal of, or premium, if any, or interest, if any, on the Notes or to enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative.
Section 6.4.     Waiver of Past Defaults . The Holders of a majority in principal amount of the then outstanding Notes by written notice to the Trustee may, on behalf of all of the Holders, (a) waive, by their consent (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes), a past or an existing Default or Event of Default and its consequences under this Indenture except (i) a Default or Event of Default in the payment of the principal or interest which may only be waived with the consent of each affected Holder or (ii) a Default or Event of Default in respect of a provision that under Section 9.2 cannot be amended without the consent of each Holder affected and (b) rescind any acceleration with respect to the Notes and its consequences if (1) such rescission would not conflict with any judgment or decree of a court of competent jurisdiction, (2) all existing Events of Default have been cured or waived except nonpayment of principal, premium, if any, interest, if any, that has become due solely because of the acceleration, (3) to the extent the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid, (4) the Company have paid the Trustee its compensation and reimbursed the Trustee for its reasonable expenses, disbursements and advances and (5) in the event of the cure or waiver of an Event of Default of the type described in clause (4) of Section 6.1(a), the Trustee shall have received an Officer’s Certificate and an Opinion of Counsel stating that such Event of Default has been cured or waived. No such rescission shall affect any subsequent Default or impair any right consequent thereto. When a Default or Event of Default is waived, it is deemed cured, but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any consequent right.
 
-146-

Section 6.5.     Control by Majority . Subject to the terms of the Intercreditor Agreement, the Holders of a majority in principal amount of the outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or the Collateral Agent or of exercising any trust or power conferred on the Trustee or the Collateral Agent. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture or the Notes or, subject to Sections 7.1 and 7.2, that the Trustee determines is unduly prejudicial to the rights of other Holders or would involve the Trustee in personal liability (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any actions are unduly prejudicial to such Holders); provided , however , that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction. Prior to taking any such action hereunder, the Trustee and the Collateral Agent shall be entitled to indemnification satisfactory to each of them against all fees, losses, liabilities and expenses (including attorney’s fees and expenses) caused by taking or not taking such action.
Section 6.6.     Limitation on Suits . Subject to Section 6.7, no Holder may pursue any remedy with respect to this Indenture or the Notes unless:
(1)    such Holder has previously given the Trustee written notice that an Event of Default is continuing;
(2)    Holders of at least 30% in principal amount of the outstanding Notes have requested in writing the Trustee to pursue the remedy;
(3)    such Holders have offered in writing and, if requested, provided to the Trustee security or indemnity satisfactory to the Trustee against any loss, liability or expense;
(4)    the Trustee has not complied with such request within 60 days after the receipt of the written request and the offer of security or indemnity; and
(5)    the Holders of a majority in principal amount of the outstanding Notes have not given the Trustee a written direction that, in the opinion of the Trustee, is inconsistent with such request within such 60-day period.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders).
Section 6.7.     Rights of Holders to Receive Payment . Notwithstanding any other provision of this Indenture (including, without limitation, Section 6.6), the right of any Holder to receive payment of principal of, premium, if any, or interest, if any, on the Notes held by such Holder, on or after the respective due dates expressed or provided for in the Notes, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
 
-147-

Section 6.8.     Collection Suit by Trustee . If an Event of Default specified in Sections 6.1(a)(1) or 6.1(a)(2) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company for the whole amount then due and owing (together with interest on any unpaid interest, if any, to the extent lawful) and the amounts provided for in Section 7.7.
Section 6.9.     Trustee May File Proofs of Claim . The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings relative to the Company, their Subsidiaries or its or their respective creditors or properties and, unless prohibited by law or applicable regulations, may be entitled and empowered to participate as a member of any official committee of creditors appointed in such matter and may vote on behalf of the Holders in any election of a trustee in bankruptcy or other Person performing similar functions, and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and any other amounts due the Trustee under Section 7.7.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10.     Priorities .
(a)    Subject to the provisions of the Intercreditor Agreement and the Collateral Documents, if the Trustee collects any money or property pursuant to this Article VI it shall pay out the money or property in the following order:
FIRST: to the Trustee and Collateral Agent for amounts due to it under Section 7.7;
SECOND: to Holders for amounts due and unpaid on the Notes for principal of, or premium, if any, and interest, if any, and Additional Amounts, if any, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal of, or premium, if any, and interest, respectively; and
THIRD: to the Company, or to the extent the Trustee collects any amount for any Guarantor, to such Guarantor.
(b)    The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10. At least 15 days before such record date, the Company shall send or cause to be sent to each Holder and the Trustee a notice that states the record date, the payment date and amount to be paid.
 
-148-

Section 6.11.     Undertaking for Costs . In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by the Company, a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more than 10% in outstanding principal amount of the Notes.
ARTICLE VII
T RUSTEE
Section 7.1.     Duties of Trustee .
(a)    If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in its exercise as a prudent Person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b)    Except during the continuance of an Event of Default:
(1)    the Trustee undertakes to perform such duties and only such duties as are specifically set forth as duties of the Trustee in this Indenture, the Notes, the Collateral Documents or the Intercreditor Agreement and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2)    in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates, opinions or orders furnished to the Trustee and conforming to the requirements of this Indenture or the Notes, as the case may be. However, in the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such certificates and opinions to determine whether or not they conform to the requirements of this Indenture or the Notes, as the case may be (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c)    The Trustee may not be relieved from liability for its own grossly negligent action, its own grossly negligent failure to act or its own willful misconduct, except that:
(1)    this paragraph does not limit the effect of paragraph (b) of this Section 7.1;
 
-149-

(2)    the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer unless it is proved that the Trustee was grossly negligent in ascertaining the pertinent facts;
(3)    the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5; and
(4)    No provision of this Indenture or the Notes shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or thereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(d)    Every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), (c), (e), (f) and (g) of this Section 7.1.
(e)    The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company.
(f)    Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(g)    Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 7.1.
Section 7.2.     Rights of Trustee . Subject to Section 7.1:
(a)    The Trustee may conclusively rely on and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order or other paper or document (whether in its original or facsimile form) reasonably believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document. The Trustee shall receive and retain financial reports and statements of the Company as provided herein, but shall have no duty to review or analyze such reports or statements to determine compliance with covenants or other obligations of the Company.
(b)    Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate and/or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on an Officer’s Certificate or Opinion of Counsel.
(c)    The Trustee may execute any of the trusts and powers hereunder or perform any duties hereunder either directly or by or through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent or attorney appointed with due care by it hereunder.
 
-150-

(d)    The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers conferred upon it by this Indenture.
(e)    The Trustee may consult with counsel of its selection, and the advice or opinion of counsel relating to this Indenture or the Notes shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it hereunder or under the Notes in good faith and in accordance with the advice or opinion of such counsel.
(f)    The Trustee shall not be deemed to have notice of any Default or Event of Default or whether any entity or group of entities constitutes a Significant Subsidiary unless a Trust Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a Default or of any such Significant Subsidiary is received by the Trustee at the corporate trust office of the Trustee specified in Section 3.11, and such notice references the Notes and this Indenture.
(g)    The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, the Collateral Agent and to each agent, custodian and other Person employed to act hereunder.
(h)    The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture or the Notes at the request, order or direction of any of the Holders pursuant to the provisions of this Indenture, unless such Holders shall have offered, and if requested, provided, to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby.
(i)    The Trustee shall not be deemed to have knowledge of any fact or matter unless such fact or matter is actually known to a Trust Officer of the Trustee.
(j)    Whenever in the administration of this Indenture or the Notes the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder or thereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith or willful misconduct on its part, conclusively rely upon an Officer’s Certificate.
(k)    The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, report, notice, request, direction, consent, order, bond, debenture, coupon or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine, during business hours and upon reasonable notice, the books, records and premises of the Company and the Restricted Subsidiaries, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
 
-151-

(l)    The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.
(m)    The Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture or the Notes.
(n)    In no event shall the Trustee be liable to any Person for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Trustee has been advised of the likelihood of such loss or damage.
(o)    Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by one Officer of the Company.
(p)    The permissive rights of the Trustee to act hereunder shall not be construed as a duty.
(q)    The Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and titles of officers authorized at such times to take specified actions pursuant to this Indenture.
(r)    The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with any direction of the Holders of a majority in aggregate principal amount of the then outstanding Notes permitted to be given by them under this Indenture.
Section 7.3.     Individual Rights of Trustee . The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company, Guarantors or their Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent, Registrar, co registrar or co paying agent may do the same with like rights. However, the Trustee must comply with Sections 7.10 and 7.11. In addition, the Trustee shall be permitted to engage in transactions with the Company; provided , however , that if the Trustee acquires any conflicting interest, the Trustee must (i) eliminate such conflict within 90 days of acquiring such conflicting interest, (ii) apply to the SEC for permission to continue acting as Trustee or (iii) resign.
Section 7.4.     Trustee ’ s Disclaimer . The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, shall not be accountable for the Company’s use of the proceeds from the sale of the Notes, shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee or any money paid to the Company pursuant to the terms of this Indenture and shall not be responsible for any statement of the Company in this Indenture or in any document issued in connection with the sale of the Notes or in the Notes other than the Trustee’s certificate of authentication.
 
-152-

Section 7.5.     Notice of Defaults . If a Default or Event of Default occurs and is continuing and if a Trust Officer has actual knowledge thereof, the Trustee shall send electronically or by first class mail to each Holder at the address set forth in the Notes Register notice of the Default or Event of Default within 60 days after it is actually known to a Trust Officer. Except in the case of a Default or Event of Default in payment of principal of, or premium, if any, interest, if any, on any Note (including payments pursuant to the optional redemption or required repurchase provisions of such Note), the Trustee may withhold the notice if and so long as it in good faith determines that withholding the notice is in the interests of Holders.
Section 7.6.    [ Reserved ].
Section 7.7.     Compensation and Indemnity . The Company shall pay to the Trustee from time to time compensation for its services hereunder and under the Notes as the Company and the Trustee shall from time to time agree in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out of pocket expenses incurred or made by it, including, but not limited to, costs of collection, costs of preparing reports, certificates and other documents, costs of preparation and mailing of notices to Holders. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the agents, counsel, accountants and experts of the Trustee. The Company shall indemnify the Trustee, its officers, directors, employees and agents against any and all fees, loss, liability, damages, claims or expense, including taxes (other than taxes based upon the income of the Trustee) (including reasonable attorneys’ and agents’ fees and expenses) incurred by it without willful misconduct or gross negligence, as determined by a final, non-appealable order of a court of competent jurisdiction, on its part in connection with the administration of this trust and the performance of its duties hereunder and under the Notes, including the fees, costs and expenses of enforcing this Indenture (including this Section 7.7) and the Notes and of defending itself against any claims (whether asserted by any Holder, the Company or otherwise). The Trustee shall notify the Company promptly of any claim for which it may seek indemnity of which it has received written notice. Failure by the Trustee to so notify the Company shall not relieve the Company of their obligations hereunder. The Company shall defend the claim and the Trustee shall provide reasonable cooperation at the Company’s expense in the defense. The Trustee and the Collateral Agent may each have separate counsel and the Company shall pay the fees and expenses of such counsel; provided that the Company shall not be required to pay the fees and expenses of such separate counsel if it assumes the Trustee’s defense, and, in the reasonable judgment of outside counsel to the Trustee, there is no conflict of interest between the Company and the Trustee in connection with such defense provided further that , the Company shall be required to pay the reasonable fees and expenses of such counsel in evaluating such conflict.
 
-153-

To secure the Company’s payment obligations in this Section 7.7, the Trustee shall have a lien prior to the Notes on all money or property held or collected by the Trustee other than money or property held in trust to pay principal of and interest on particular Notes. Such lien shall survive the satisfaction and discharge of this Indenture. The Trustee’s respective right to receive payment of any amounts due under this Section 7.7 shall not be subordinate to any other liability or Indebtedness of the Company.
The Company’s payment obligations pursuant to this Section 7.7 shall survive the discharge of this Indenture or the resignation or removal of the Trustee pursuant to Section 7.8. Without prejudice to any other rights available to the Trustee under applicable law, when the Trustee incurs fees, expenses or renders services after the occurrence of a Default specified in Section 6.1(a)(5) or 6.1(a)(6), the fees and expenses (including the reasonable fees and expenses of its counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
Section 7.8.     Replacement of Trustee . The Trustee may resign at any time by so notifying the Company in writing not less than 30 days prior to the effective date of such resignation. The Holders of a majority in principal amount of the Notes may remove the Trustee by so notifying the removed Trustee in writing not less than 30 days prior to the effective date of such removal and may appoint a successor Trustee with the Company’s written consent, which consent will not be unreasonably withheld. The Company shall remove the Trustee if:
(1)    the Trustee fails to comply with Section 7.10 hereof;
(2)    the Trustee is adjudged bankrupt or insolvent;
(3)    a receiver or other public officer takes charge of the Trustee or its property; or
(4)    the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed by the Company or by the Holders of a majority in principal amount of the Notes and such Holders do not reasonably promptly appoint a successor Trustee as described in the preceding paragraph, or if a vacancy exists in the office of the Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall, at the expense of the Company, promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.7.
 
-154-

If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of at least 10% in principal amount of the Notes may petition, at the Company’s expense, any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder, who has been a bona fide holder of a Note for at least six months, may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section 7.8, the Company’s obligations under Section 7.7 shall continue for the benefit of the retiring Trustee. The predecessor Trustee shall have no liability for any action or inaction of any successor Trustee.
Section 7.9.     Successor Trustee by Merger . If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion or consolidation to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor to the Trustee; provided that the right to adopt the certificate of authentication of any predecessor Trustee or authenticate Notes in the name of any predecessor Trustee shall only apply to its successor or successors by merger, consolidation or conversion.
Section 7.10.     Eligibility; Disqualification . This Indenture shall always have a Trustee. The Trustee shall have a combined capital and surplus of at least $100 million as set forth in its most recent published annual report of condition.
Section 7.11.    [ Reserved ].
Section 7.12.     Trustee ’ s Application for Instruction from the Company . Any application by the Trustee for written instructions from the Company may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or after which such action shall be taken or such omission shall be effective. The Trustee shall not be liable for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any Officer of the Company actually receives such application, unless any such Officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Trustee shall have received written instructions in response to such application specifying the action to be taken or omitted.
 
-155-

Section 7.13.     Collateral Documents; Intercreditor Agreement . By their acceptance of the Notes, the Holders hereby authorize and direct the Trustee and Collateral Agent, as the case may be, to execute and deliver the Intercreditor Agreement and any other Collateral Documents in which the Trustee or the Collateral Agent, as applicable, is named as a party, including any Collateral Documents executed after the Issue Date, and in the case of the Trustee, to authorize the Collateral Agent to take any action permitted under the Notes Documents. It is hereby expressly acknowledged and agreed that, in doing so, the Trustee and the Collateral Agent are (a) expressly authorized to make the representations attributed to Holders in any such agreements and (b) not responsible for the terms or contents of such agreements, or for the validity or enforceability thereof, or the sufficiency thereof for any purpose. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under, the Intercreditor Agreement or any other Collateral Documents, the Trustee and the Collateral Agent each shall have all of the rights, immunities, indemnities and other protections granted to it under this Indenture (in addition to those that may be granted to it under the terms of such other agreement or agreements).
ARTICLE VIII
L EGAL D EFEASANCE AND C OVENANT D EFEASANC E
Section 8.1.     Option to Effect Legal Defeasance or Covenant Defeasance; Defeasance . The Company may, at its option and at any time, elect to have either Sections 8.2 or 8.3 hereof be applied to all outstanding Notes upon compliance with the conditions set forth in this Article VIII.
Section 8.2.     Legal Defeasance and Discharge . Upon the Company’s exercise under Section 8.1 hereof of the option applicable to this Section 8.2, the Company and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.4 hereof, be deemed to have been discharged from their obligations with respect to all outstanding Notes (including the Note Guarantees) on the date the conditions set forth in Section 8.4 are satisfied (hereinafter, “ Legal Defeasance ”). For this purpose, Legal Defeasance means that the Company and the Guarantors will be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the Note Guarantees), which will thereafter be deemed to be “outstanding” only for the purposes of Section 8.5 hereof and the other Sections of this Indenture referred to in clauses (1) and (2) below, and to have satisfied all of their other obligations under such Notes, the Note Guarantees, this Indenture and the Collateral Documents (and the Trustee, on written demand of and at the expense of the Company, shall execute such instruments reasonably requested by the Company acknowledging the same) and to have cured all then existing Events of Default, except for the following provisions which will survive until otherwise terminated or discharged hereunder:
(1)    the rights of Holders of Notes issued under this Indenture to receive payments in respect of the principal of, premium, if any, and interest, if any, on the Notes when such payments are due solely out of the trust referred to in Section 8.4 hereof;
 
-156-

(2)    the Company’s obligations with respect to the Notes under Article II concerning issuing temporary Notes, registration of such Notes, mutilated, destroyed, lost or stolen Notes and Section 3.11 hereof concerning the maintenance of an office or agency for payment and money for security payments held in trust;
(3)    the rights, powers, trusts, duties and immunities of the Trustee and the Company’s or Guarantors’ obligations in connection therewith; and
(4)    this Article VIII with respect to provisions relating to Legal Defeasance.
Subject to compliance with this Section 8.2, the Company may exercise its option under Section 8.2 notwithstanding the prior exercise of its option under Section 8.3 hereof.
Section 8.3.     Covenant Defeasance . Upon the Company’s exercise under Section 8.1 hereof of the option applicable to this Section 8.3, the Company and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.4 hereof, be released from each of their obligations under the covenants contained in Sections 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 3.19, 3.20, 3.21, 3.22, 3.23, and Section 4.1 (except Section 4.1(a)(1) and 4.1(a)(2)) hereof with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.4 hereof are satisfied (hereinafter, “ Covenant Defeasance ”), and the Notes will thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but will continue to be deemed “outstanding” for all other purposes hereunder. For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes and Note Guarantees, the Company and the Guarantors may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.1 hereof, but, except as specified in this Section, the remainder of this Indenture and such Notes and Note Guarantees will be unaffected thereby. In addition, upon the Company’s exercise under Section 8.1 hereof of the option applicable to this Section 8.3, subject to the satisfaction of the conditions set forth in Section 8.4 hereof, Sections 6.1(a)(3) (solely with respect to the defeased covenants listed above) (with respect only to Significant Subsidiaries), 6.1(a)(4), 6.1(a)(5) (with respect only to Significant Subsidiaries), 6.1(a)(6) (with respect only to a Guarantor that is a Significant Subsidiary or any group of Guarantors that taken together would constitute a Significant Subsidiary), 6.1(a)(7), 6.1(a)(8) and 6.1(a)(10) hereof shall not constitute Events of Default.
 
-157-

Section 8.4.     Conditions to Legal or Covenant Defeasance . In order to exercise either Legal Defeasance or Covenant Defeasance under either Sections 8.2 or 8.3 hereof:
(1)    the Company must irrevocably deposit with the Trustee, in trust (the “ Defeasance Trust ”), for the benefit of the Holders, cash in Dollars or U.S. Government Obligations or a combination thereof for the payment of principal of and premium, if any, and interest, if any, due on the Notes issued under this Indenture on the stated maturity date or on the applicable Redemption Date, as the case may be, and the Company must specify whether such Notes are being defeased to maturity or to a particular Redemption Date provided , that upon any redemption that requires the payment of the Applicable Premium, the amount deposited shall be sufficient for purposes of the Indenture to the extent that an amount is deposited with the Trustee equal to the Applicable Premium calculated as of the date of the notice of redemption, with any deficit as of the date of redemption (any such amount, the “ Applicable Premium Deficit ”) only required to be deposited with the Trustee on or prior to the date of redemption. Any Applicable Premium Deficit shall be set forth in an Officer’s Certificate delivered to the Trustee simultaneously with the deposit of such Applicable Premium Deficit that confirms that such Applicable Premium Deficit shall be applied toward such redemption;
(2)    in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel, subject to customary assumptions and exclusions confirming that;
(A)    the Company have received from, or there has been published by, the United States Internal Revenue Service a ruling; or
(B)    since the issuance of such Notes, there has been a change in the applicable U.S. federal income tax law;
in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, subject to customary assumptions and exclusions, the Holders, in their capacity as Holders, will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts and in the same manner, and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3)    in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that, subject to customary assumptions and exclusions, the Holders, in their capacity as Holders, will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
 
-158-

(4)    no Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit;
(5)    such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under the Credit Facilities or any other material agreement or instrument (other than this Indenture) to which, the Company or any Guarantor is a party or by which the Company or any Guarantor is bound;
(6)    the Company shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the intent of defeating, hindering, delaying, defrauding or preferring any creditors of the Company; and
(7)    the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions), each stating that all conditions precedent provided for or relating to Legal Defeasance or Covenant Defeasance, as the case may be, have been complied with.
Section 8.5.     Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions . Subject to Section 8.6 hereof, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.5, the “ Trustee ”) pursuant to Section 8.4 hereof in respect of the outstanding Notes will be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.
The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or U.S. Government Obligations deposited pursuant to Section 8.4 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.
Notwithstanding anything in this Article VIII to the contrary, the Trustee will deliver or pay to the Company from time to time upon the request of the Company any money or U.S. Government Obligations held by it as provided in Section 8.4 hereof which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.4(1) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
 
-159-

Section 8.6.     Repayment to the Company . Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium, if any, or interest on, any Note and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Company on their written request unless an abandoned property law designates another Person or (if then held by the Company) will be discharged from such trust; and the Holder of such Note will thereafter be permitted to look only to the Company for payment thereof unless an abandoned property law designates another Person, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, will thereupon cease; provided , however , that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company cause to be published once, in The New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which will not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 8.7.     Reinstatement . If the Trustee or Paying Agent is unable to apply any money or U.S. dollars or U.S. Government Obligations in accordance with Sections 8.2 or 8.3 hereof, as the case may be, by reason of any order or judgment of any court or Governmental Authority enjoining, restraining or otherwise prohibiting such application, then the Company’s and the Guarantors’ obligations under this Indenture and the Notes and the Note Guarantees will be revived and reinstated as though no deposit had occurred pursuant to Sections 8.2 or 8.3 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Sections 8.2 or 8.3 hereof, as the case may be; provided , however , that, if the Company make any payment of principal of, premium, if any, or interest on, any Note following the reinstatement of its obligations, the Company will be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX
A MENDMENTS
Section 9.1.     Without Consent of Holders . Notwithstanding Section 9.2 of this Indenture, the Company, any Guarantor (with respect to its Note Guarantee or this Indenture), if applicable, the Trustee and the Collateral Agent may amend, supplement or modify the Note Documents or the Intercreditor Agreement, without the consent of any Holder, to:
(1)    cure any ambiguity, omission, mistake, defect, error or inconsistency, conform any provision to any provision under the headings “Description of the Notes” or “Description of Certain Indebtedness—Intercreditor Agreement” in the Offering Circular or reduce the minimum denomination of the Notes;
 
-160-

(2)    provide for the assumption by a successor Person of the obligations of the Company or a Guarantor under any Note Document;
(3)    provide for uncertificated Notes in addition to or in place of certificated Notes;
(4)    add to the covenants or provide for a Note Guarantee for the benefit of the Holders or surrender any right or power conferred upon the Company or any Restricted Subsidiary;
(5)    make any change (including changing the CUSIP or other identifying number on any Notes) that does not adversely affect the rights of any Holder in any material respect;
(6)    at the Company’s election, comply with any requirement of the SEC in connection with the qualification of this Indenture under the Trust Indenture Act, if such qualification is required;
(7)    make such provisions as necessary (as determined in good faith by the Company) for the issuance of Additional Notes;
(8)    provide for any Restricted Subsidiary to provide a Note Guarantee in accordance with Section 3.2, to add Guarantees with respect to the Notes, to add security to or for the benefit of the Notes, or to confirm and evidence the release, termination, discharge or retaking of any Guarantee or Lien with respect to or securing the Notes when such release, termination, discharge or retaking is provided for under this Indenture, the Collateral Documents or the Intercreditor Agreement, as applicable;
(9)    evidence and provide for the acceptance and appointment under this Indenture of a successor Trustee pursuant to the requirements hereof or to provide for the accession by the Trustee to any Note Document;
(10)    make any amendment to the provisions of this Indenture relating to the transfer and legending of Notes as permitted by this Indenture, including, without limitation, to facilitate the issuance and administration of Notes; provided , however , that (i) compliance with this Indenture as so amended would not result in Notes being transferred in violation of the Securities Act or any other applicable securities law and (ii) such amendment does not adversely affect the rights of Holders to transfer Notes in any material respect;
(11)    mortgage, pledge, hypothecate or grant any other Lien in favor of the Collateral Agent for its benefit and the benefit of the Trustee, the Holders of the Notes and the holders of any Future First Lien Indebtedness, as additional security for the payment and performance of all or any portion of the First Priority
 
-161-

Notes Obligations, in any property or assets, including any which are required to be mortgaged, pledged or hypothecated, or in which a Lien is required to be granted to or for the benefit of the Trustee or the Collateral Agent pursuant to this Indenture, the Intercreditor Agreement, the Collateral Documents or otherwise;
(12)    provide for the release of Collateral from the Lien pursuant to this Indenture, the Collateral Documents and the Intercreditor Agreement when permitted or required by the Collateral Documents, this Indenture or the Intercreditor Agreement; or
(13)    secure any Future First Lien Indebtedness, Junior Priority Obligations or First Priority Obligations to the extent permitted under this Indenture, the Collateral Documents and the Intercreditor Agreement.
Subject to Section 9.2 upon the request of the Company, or amendment or supplement to the Notes Documents, Intercreditor Agreement or any other Collateral Documents, and upon receipt by the Trustee and the Collateral Agent, as applicable, of the documents described in Sections 9.6 and 13.4 hereof, the Trustee and the Collateral Agent, if applicable, will join with the Company and the Guarantors, if applicable, in the execution of such amended or supplemental indenture or supplement to the Notes Documents, Intercreditor Agreement or any other Collateral Documents unless such amended or supplemental indenture directly affects the Trustee’s or the Collateral Agent’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee or Collateral Agent may in its discretion, but will not be obligated to, enter into such amended or supplemental indenture or supplement to the Notes Documents, Intercreditor Agreement or any other Collateral Documents.
After an amendment or supplement under this Section 9.1 becomes effective, the Company shall send to Holders a notice briefly describing such amendment or supplement. The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment or supplement. The filing of such notice or supplement with the SEC shall constitute the giving of such notice.
Section 9.2.     With Consent of Holders .
(a)    Except as provided in this Section 9.2, the Company, the Guarantors, the Trustee and the Collateral Agent, as applicable, may amend or supplement the Note Documents with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding and issued under this Indenture, including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes, and, subject to Sections 6.4 and 6.7 hereof, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium, if any, or interest on the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of the Note Documents may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes issued under this Indenture (including consents obtained in connection with a purchase of or tender offer or exchange offer for Notes). Section 2.12 hereof and Section 13.6 hereof shall determine which Notes are considered to be “outstanding” for the purposes of this Section 9.2.
 
-162-

Upon the request of the Company, and upon the filing with the Trustee and the Collateral Agent (if applicable) of evidence of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee and the Collateral Agent, as applicable, of the documents described in Sections 9.6 and 13.4 hereof, the Trustee and the Collateral Agent, if applicable, will join with the Company and the Guarantors, if applicable, in the execution of such amended or supplemental indenture or amendment or supplement to the other Note Documents unless such amended or supplemental indenture or amendment or supplement to the other Note Documents directly affects the Trustee’s or the Collateral Agent’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee and the Collateral Agent, if applicable, may in their discretion, but will not be obligated to, enter into such amended or supplemental indenture or amendment or supplement to the other Note Documents.
(b)    Without the consent of each Holder of Notes affected, an amendment, supplement or waiver may not, with respect to any Notes issued thereunder and held by a nonconsenting Holder:
(1)    reduce the principal amount of such Notes whose Holders must consent to an amendment;
(2)    reduce the stated rate of or extend the stated time for payment of interest on any such Note (other than provisions relating to Sections 3.5 and 3.9);
(3)    reduce the principal of or extend the Stated Maturity of any such Note (other than provisions relating to Change of Control and Asset Dispositions);
(4)    reduce the premium payable upon the redemption of any such Note or change the time at which any such Note may be redeemed, in each case as set forth in Section 5.7;
(5)    make any such Note payable in currency other than that stated in such Note;
(6)    impair the right of any Holder to institute suit for the enforcement of any payment of principal of and interest on such Holder’s Notes on or after the due dates therefor;
(7)    waive a Default or Event of Default with respect to the nonpayment of principal, premium or interest (except pursuant to a rescission of acceleration of the Notes by the Holders of at least a majority in principal amount of such Notes and a waiver of the payment default that resulted from such acceleration);
 
-163-

(8)    make any change in the provisions of the Intercreditor Agreement or this Indenture dealing with the application of proceeds of Collateral that would adversely affect the Holders of the Notes in any material respect; or
(9)    make any change in the amendment or waiver provisions which require the Holders’ consent described in this Section 9.2.
In addition, without the consent of the Holders of at least two-thirds in aggregate principal amount of the Notes then outstanding, no amendment or waiver may release all or substantially all of the Collateral from the Lien of this Indenture and the Collateral Documents with respect to the Notes.
It shall not be necessary for the consent of the Holders under this Indenture to approve the particular form of any proposed amendment, supplement or waiver of any Note Document, but it shall be sufficient if such consent approves the substance thereof. A consent to any amendment, supplement or waiver under this Indenture by any Holder of the Notes given in connection with a tender or exchange of such Holder’s Notes will not be rendered invalid by such tender or exchange.
After an amendment or supplement under this Section 9.2 becomes effective, the Company shall send to Holders a notice briefly describing such amendment or supplement. The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment or supplement. The filing of such notice or supplement with the SEC shall constitute the giving of such notice.
Section 9.3.    [ Reserved ].
Section 9.4.     Revocation and Effect of Consents and Waivers . Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent or waiver is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent or waiver as to such Holder’s Note or portion of its Note if the Trustee receives written notice of revocation before the date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action described in this Section or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 120 days after such record date.
 
-164-

Section 9.5.     Notation on or Exchange of Notes . The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee shall, upon receipt of a Company Order, authenticate new Notes that reflect the amendment, supplement or waiver. Failure to make the appropriate notation or issue a new Note will not affect the validity and effect of such amendment, supplement or waiver.
Section 9.6.     Trustee and Collateral Agent to Sign Amendments . The Trustee and Collateral Agent shall sign any amended or supplemental indenture or supplement to the Notes Documents, Intercreditor Agreement or any other Collateral Documents authorized pursuant to this Article IX if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee and Collateral Agent. In executing any amended or supplemental indenture or supplement to the Notes Documents, Intercreditor Agreement or any other Collateral Documents, the Trustee will be entitled to receive and (subject to Sections 7.1 and 7.2 hereof) shall be fully protected in conclusively relying upon, in addition to the documents required by Section 13.4 hereof, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture and is valid, binding and enforceable against the Company or any Guarantor, as the case may be, in accordance with its terms.
ARTICLE X
G UARANTEE
Section 10.1.     Guarantee . Subject to the provisions of this Article X, each of the Guarantors, Parent and MidCo hereby fully, unconditionally and irrevocably guarantees (the “ Note Guarantees ”), as primary obligor and not merely as surety, jointly and severally with each other Guarantor, Parent and MidCo to each Holder of the Notes, the Trustee and the Collateral Agent the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes, fees, expenses, indemnities and all other obligations and liabilities of the Company under this Indenture (including, without limitation, interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company, any Guarantor, Parent or MidCo whether or not a claim for post filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.7) (all the foregoing being hereinafter collectively called the “ Guaranteed Obligations ”). Each of the Guarantors, Parent and MidCo agrees that the Guaranteed Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, Parent or MidCo, except to the extent such other Indebtedness is subordinate to the Guaranteed Obligations, in which case the obligations of the Guarantors, Parent and MidCo under the Note Guarantees will rank senior in right of payment to such other Indebtedness.
To evidence its Note Guarantee set forth in this Section 10.1, each of the Guarantors, Parent and MidCo hereby agrees that this Indenture shall be executed on behalf of such Guarantor, Parent or MidCo by an Officer of such Guarantor, Parent or MidCo.
 
-165-

Each of the Guarantors, Parent and MidCo hereby agrees that its Note Guarantee set forth in Section 10.1 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes.
If an Officer whose signature is on this Indenture no longer holds that office at the time the Trustee authenticates the Note, the Note Guarantee shall be valid nevertheless.
Each of the Guarantors, Parent and MidCo further agrees (to the extent permitted by law) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
Each of the Guarantors, Parent and MidCo waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each of the Guarantors, Parent and MidCo waives notice of any default under the Notes or the Guaranteed Obligations.
Each of the Guarantors, Parent and MidCo further agrees that its Note Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
Except as set forth in Section 10.2, the obligations of each of the Guarantors, Parent and MidCo hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the Guaranteed Obligations of each the Guarantors, Parent and MidCo herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder for the Guaranteed Obligations; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor, Parent or MidCo; (f) any change in the ownership of the Company; (g) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor, Parent or MidCo or would otherwise operate as a discharge of such Guarantor, Parent or MidCo as a matter of law or equity.
Each of the Guarantors, Parent and MidCo agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed Obligations or such Guarantor, Parent or MidCo is released from its Note Guarantee in
 
-166-

compliance with Section 10.2, Article VIII or Article XI. Each of the Guarantors, Parent and MidCo further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, interest, if any, on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor, Parent or MidCo by virtue hereof, upon the failure of the Company to pay any of the Guaranteed Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor, Parent or MidCo hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Company or any Guarantor, Parent or MidCo whether or not a claim for post filing or post-petition interest is allowed in such proceeding).
Each of the Guarantors, Parent and MidCo further agrees that, as between such Guarantor, Parent and MidCo, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor, Parent or MidCo for the purposes of this Note Guarantee.
Each of the Guarantors, Parent and MidCo also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Collateral Agent, Trustee or the Holders in enforcing any rights under this Section.
Section 10.2.     Limitation on Liability; Termination, Release and Discharge .
(a)    Any term or provision of this Indenture to the contrary notwithstanding, the obligations of each of the Guarantors, Parent and MidCo hereunder will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor, Parent or MidCo and after giving effect to any collections from or payments made by or on behalf of any other Guarantor, Parent or MidCo in respect of the obligations of such other Guarantor, Parent or MidCo under its Note Guarantee or pursuant to its contribution obligations under this Indenture, result in the obligations of such Guarantor, Parent or MidCo under its Note Guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal, foreign or state law and not otherwise being void or voidable under any similar laws affecting the rights of creditors generally.
 
-167-

(b)    Any Note Guarantee of a Guarantor, Parent or MidCo shall be automatically and unconditionally released and discharged upon:
(1)    a sale, exchange, transfer or other disposition (including by way of consolidation, merger or amalgamation) of the Capital Stock of such Guarantor, Parent or MidCo or the sale or disposition of all or substantially all the assets of the Guarantor, Parent or MidCo to a Person other than to the Company or a Restricted Subsidiary and as otherwise permitted by this Indenture;
(2)    the designation in accordance with this Indenture of any Guarantor or MidCo as an Unrestricted Subsidiary or the occurrence of any event after which any Guarantor or MidCo is no longer a Restricted Subsidiary;
(3)    the defeasance or discharge of the Notes, as provided in Articles VIII or XI;
(4)    to the extent that such Guarantor or MidCo is not an Immaterial Subsidiary solely due to the operation of clause (i) of the definition of “Immaterial Subsidiary,” upon the release of the guarantee referred to in such clause;
(5)    such Guarantor, Parent or MidCo in the case of a Note Guarantee made by any Guarantor, Parent or MidCo (each, an “ Other Guarantee ”) as a result of its guarantee of other Indebtedness of the Company or any Guarantor, Parent or MidCo pursuant to Section 3.7 hereof being released from all of the relevant Indebtedness, except a release as a result of payment under such Guarantee (it being understood that a release subject to a contingent reinstatement is still considered a release);
(6)    upon the achievement of Investment Grade Status by the Notes; provided that such Note Guarantee shall be reinstated upon the Reversion Date.
Section 10.3.     Right of Contribution . Each of the Guarantors, Parent and MidCo hereby agrees that to the extent that any Guarantor, Parent or MidCo shall have paid more than its proportionate share of any payment made on the obligations under the Note Guarantees, such Guarantor, Parent or MidCo shall be entitled to seek and receive contribution from and against the Company or any other Guarantor, Parent or MidCo who has not paid its proportionate share of such payment. The provisions of this Section 10.3 shall in no respect limit the obligations and liabilities of each of the Guarantors, Parent and MidCo to the Trustee and the Holders and each of the Guarantors, Parent and MidCo shall remain liable to the Trustee and the Holders for the full amount guaranteed by such Guarantor, Parent or MidCo hereunder.
Section 10.4.     No Subrogation . Notwithstanding any payment or payments made by each of the Guarantors, Parent and MidCo hereunder, none of the Guarantors, Parent or MidCo shall be entitled to be subrogated to any of the rights of the Trustee or any Holder against the Company or any other Guarantor, Parent or MidCo or any collateral security or guarantee or right of offset held by the Trustee or any Holder for the payment
 
-168-

of the Guaranteed Obligations, nor shall any Guarantor, Parent or MidCo seek or be entitled to seek any contribution or reimbursement from the Company or any other Guarantor, Parent or MidCo in respect of payments made by such Guarantor, Parent or MidCo hereunder, until all amounts owing to the Trustee and the Holders by the Company on account of the Guaranteed Obligations are paid in full. If any amount shall be paid to any Guarantor, Parent or MidCo on account of such subrogation rights at any time when all of the Guaranteed Obligations shall not have been paid in full, such amount shall be held by such Guarantor, Parent or MidCo in trust for the Trustee and the Holders, segregated from other funds of such Guarantor, Parent or MidCo, and shall, forthwith upon receipt by such Guarantor, Parent or MidCo, be turned over to the Trustee in the exact form received by such Guarantor, Parent or MidCo (duly endorsed by such Guarantor, Parent or MidCo to the Trustee, if required), to be applied against the Guaranteed Obligations.
Section 10.5.     Guarantee Limitation Spain . The obligations and liabilities of any Guarantor organized under the laws of Spain expressed to be assumed under this Indenture shall be deemed not to have been assumed, given or undertaken in respect of, and shall not extend to, any guarantee, obligation or liability to the extent that the same would constitute financial assistance under articles 143, 149 or 150 of the Spanish Companies Law ( Real Decreto Legislativo 1/2010, de 2 de julio, por el que se aprueba el texto refundido de la Ley de Sociedades de Capital ) or under any other foreign law that is mandatorily applicable to a Spanish Obligor. Therefore, the Guarantee granted by any Guarantor organized under the laws of Spain shall exclude expressly any liabilities that would cause any Guarantor organized under the laws of Spain to breach in any way whatsoever any financial assistance prohibitions. Such limitations of the liabilities and obligations of any Guarantor organized under the laws of Spain may have the effect of reducing the amount of the obligations or liabilities assumed to zero.
ARTICLE XI
S ATISFACTION AND D ISCHARGE
Section 11.1.     Satisfaction and Discharge . This Indenture will be discharged and will cease to be of further effect as to all Notes issued hereunder, when:
(a)    either:
(1)    all Notes that have been authenticated and delivered except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust, have been delivered to the Trustee for cancellation; or
(2)    all such Notes not theretofore delivered to the Trustee for cancellation (i) have become due and payable by reason of the making of a notice of redemption or otherwise or (ii) will become due and payable within one year at their Stated Maturity or (iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company;
 
-169-

(b)    the Company has deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in Dollars or U.S. Government Obligations, or a combination thereof, in an amount sufficient to pay and discharge the entire indebtedness on the Notes not previously delivered to the Trustee for cancellation, for principal, premium, if any, and interest to the date of deposit (in the case of Notes that have become due and payable), or to the Stated Maturity or Redemption Date, as the case may be; provided that upon any redemption that requires the payment of the Applicable Premium, the amount deposited shall be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee equal to the Applicable Premium calculated as of the date of the notice of redemption, with any Applicable Premium Deficit only required to be deposited with the Trustee on or prior to the date of redemption, and any Applicable Premium Deficit shall be set forth in an Officer’s Certificate delivered to the Trustee simultaneously with the deposit of such Applicable Premium Deficit that confirms that such Applicable Premium Deficit shall be applied toward such redemption;
(c)    the Company has paid or caused to be paid all other sums payable under this Indenture;
(d)    the Company has delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of such notes issued hereunder at maturity or the Redemption Date, as the case may be; and
(e)    the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that all conditions precedent under Section 11.1 relating to the satisfaction and discharge of this Indenture have been complied with; provided that any such counsel may rely on any Officer’s Certificate as to matters of fact (including as to compliance with Sections 11.1(a), 11.1(b) and 11.1(c)).
Notwithstanding the satisfaction and discharge of this Indenture, the provisions of Section 7.7 hereof will survive and, if money has been deposited with the Trustee pursuant to clause (b) of this Section 11.1, the provisions of Sections 11.2 and 8.6 hereof will survive.
Section 11.2.     Application of Trust Money . Subject to the provisions of Section 8.6 hereof, all money deposited with the Trustee pursuant to Section 11.1 hereof shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as their own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with Section 11.1 hereof by reason of any legal proceeding or by reason of any order or judgment of any court or Governmental Authority enjoining, restraining or otherwise prohibiting such application, the Company’s and any Guarantor’s
 
-170-

obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.1 hereof; provided that if the Company have made any payment of principal of, premium, if any, or interest on, any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE XII
C OLLATERAL
Section 12.1.     Collateral Documents . The due and punctual payment of the principal of, premium and interest on the Notes when and as the same shall be due and payable, whether on an interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes and performance of all other Obligations of the Company and the Guarantors to the Holders or the Trustee under this Indenture, the Notes, the Note Guarantees, the Intercreditor Agreement and the Collateral Documents, according to the terms hereunder or thereunder, shall be secured as provided in the Collateral Documents, which define the terms of the Liens that secure the Obligations, subject to the terms of the Intercreditor Agreement. The Trustee and the Company hereby acknowledge and agree that the Collateral Agent holds the Collateral in trust for the benefit of itself, the Holders and the Trustee and pursuant to the terms of the Collateral Documents and the Intercreditor Agreement. Each Holder, by accepting a Note, consents and agrees to the terms of the Collateral Documents (including the provisions providing for the possession, use, release and foreclosure of Collateral) and the Intercreditor Agreement as the same may be in effect or may be amended from time to time in accordance with their terms and this Indenture and the Intercreditor Agreement, and authorizes and directs the Collateral Agent to enter into the Collateral Documents and the Intercreditor Agreement and to perform its obligations and exercise its rights thereunder in accordance therewith. The Company shall deliver to the Collateral Agent copies of all documents required to be filed pursuant to the Collateral Documents, and will do or cause to be done all such acts and things as may be reasonably required by the next sentence of this Section 12.1, to assure and confirm to the Collateral Agent the security interest in the Collateral contemplated hereby, by the Collateral Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Indenture and of the Notes secured hereby, according to the intent and purposes herein expressed. The Company shall, and shall cause the Subsidiaries of the Company to, take any and all actions and make all filings (including the filing of UCC financing statements, continuation statements and amendments thereto) required to cause the Collateral Documents to create and maintain, as security for the Obligations of the Company and the Guarantors to the Secured Parties under this Indenture, the Notes, the Note Guarantees, the Intercreditor Agreement and the Collateral Documents, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms of the Intercreditor Agreement and the Collateral Documents), in favor of the Collateral Agent for the benefit of itself, the Holders and the Trustee subject to no Liens other than Permitted Liens.
 
-171-

Section 12.2.     Post-Closing Collateral . It is acknowledged and agreed that:
(a)    on the Issue Date, the Notes and the Note Guarantees will be secured only by a First Priority Lien in 100% of the Capital Stock of the Company; and
(b)    the Company will use commercially reasonable efforts to cause the Notes and the Note Guarantees to be secured by First Priority Liens over all other Collateral within 120 days following the Issue Date.
Section 12.3.     Release of Collateral .
(a)    Subject to Sections 12.3(b) and 12.3(c) hereof, the Liens securing the Notes will be automatically released, and the Trustee (subject to its receipt of an Officer’s Certificate and Opinion of Counsel as provided below) shall execute documents evidencing such release, or instruct the Collateral Agent to execute, as applicable, the same at the Company’s sole cost and expense, under one or more of the following circumstances:
(i)    in whole upon:
(A)    payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations under this Indenture, the Note Guarantees and the Collateral Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid;
(B)    satisfaction and discharge of this Indenture as set forth under Article XI; or
(C)    a Legal Defeasance or Covenant Defeasance of this Indenture as set forth under Article VIII;
(ii)    in whole or in part, with the consent of the requisite Holders of the Notes in accordance with Article IX of this Indenture, including consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes;
(iii)    in part, as to any asset constituting Collateral:
(A)    that is sold or otherwise disposed of:
(I)    by the Company or any Guarantor to any Person that is not the Company or a Guarantor in a transaction permitted by Section 3.5 and by the Collateral Documents (to the extent of the interest sold or disposed of) or otherwise permitted by this Indenture and the Collateral Documents, or
(II)    in connection with the taking of an enforcement action by the Applicable Authorized Representative (as defined in the Intercreditor Agreement) in respect of the First Priority Credit Obligations in accordance with the Intercreditor Agreement,
 
-172-

(B)    that is held by a Guarantor that has been released from its Note Guarantee, concurrently with the release of such Note Guarantee, or
(C)    that is otherwise released in accordance with, and as expressly provided for by the terms of, this Indenture, the Intercreditor Agreement and the Collateral Documents.
(b)    With respect to any release of Collateral, upon receipt of an Officer’s Certificate and an Opinion of Counsel each stating that all conditions precedent under this Indenture and the Collateral Documents and the Intercreditor Agreement, if any, to such release have been met and that it is proper for the Trustee or Collateral Agent to execute and deliver the documents requested by the Company in connection with such release, and any instruments of termination, satisfaction or release prepared by the Company, the Trustee shall, or shall cause the Collateral Agent to, execute, deliver or acknowledge (at the Company’s expense) such instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture or the Collateral Documents or the Intercreditor Agreement. Neither the Trustee nor the Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate or Opinion of Counsel, and notwithstanding any term hereof or in any Collateral Document or in the Intercreditor Agreement to the contrary, the Trustee and the Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officer’s Certificate and Opinion of Counsel.
(c)    At any time when a Default or Event of Default has occurred and is continuing and the maturity of the Notes has been accelerated (whether by declaration or otherwise) and the Trustee has delivered notice of acceleration to the Collateral Agent, no release of Collateral pursuant to the provisions of this Indenture or the Collateral Documents shall be effective as against the Holders, except as otherwise provided in the Intercreditor Agreement.
Section 12.4.     Suits to Protect the Collateral .
Subject to the provisions of Article VII hereof and the Collateral Documents and the Intercreditor Agreement, the Trustee, without the consent of the Holders, on behalf of the Holders, may or may direct the Collateral Agent to take all actions it determines in order to:
(a)    enforce any of the terms of the Collateral Documents; and
(b)    collect and receive any and all amounts payable in respect of the Obligations hereunder.
 
-173-

Subject to the provisions of the Collateral Documents and the Intercreditor Agreement, the Trustee and the Collateral Agent shall have power to institute and to maintain such suits and proceedings as the Trustee may determine to prevent any impairment of the Collateral by any acts which may be unlawful or in violation of any of the Collateral Documents or this Indenture, and such suits and proceedings as the Trustee may determine to preserve or protect its interests and the interests of the Holders in the Collateral. Nothing in this Section 12.4 shall be considered to impose any such duty or obligation to act on the part of the Trustee or the Collateral Agent.
Section 12.5.     Authorization of Receipt of Funds by the Trustee Under the Collateral Documents . Subject to the provisions of the Intercreditor Agreement, the Trustee is authorized to receive any funds for the benefit of the Holders distributed under the Collateral Documents, and to make further distributions of such funds to the Holders according to the provisions of this Indenture.
Section 12.6.     Purchaser Protected . In no event shall any purchaser in good faith of any property purported to be released hereunder be bound to ascertain the authority of the Collateral Agent or the Trustee to execute the release or to inquire as to the satisfaction of any conditions required by the provisions hereof for the exercise of such authority or to see to the application of any consideration given by such purchaser or other transferee; nor shall any purchaser or other transferee of any property or rights permitted by this Article XII to be sold be under any obligation to ascertain or inquire into the authority of the Company or the applicable Guarantor to make any such sale or other transfer.
Section 12.7.     Powers Exercisable by Receiver or Trustee . In case the Collateral shall be in the possession of a receiver or trustee, lawfully appointed, the powers conferred in this Article XII upon the Company or a Guarantor with respect to the release, sale or other disposition of such property may be exercised by such receiver or trustee, and an instrument signed by such receiver or trustee shall be deemed the equivalent of any similar instrument of the Company or a Guarantor or of any Officer or Officers thereof required by the provisions of this Article XII; and if the Trustee shall be in the possession of the Collateral under any provision of this Indenture, then such powers may be exercised by the Trustee.
Section 12.8.     Release Upon Termination of the Company ’ s Obligations . In the event that the Company delivers to the Trustee an Officer’s Certificate certifying that (i) payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations under this Indenture, the Notes, the Note Guarantees and the Collateral Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid or (ii) the Company shall have exercised its Legal Defeasance option or its Covenant Defeasance option, in each case in compliance with the provisions of Article VIII, and an Opinion of Counsel stating that all conditions precedent to the execution and delivery of such notice by the Trustee have been satisfied, the Trustee shall deliver to the Company and the Collateral Agent a notice stating that the Trustee, on behalf of the Holders, disclaims and gives up any and all rights it has in or to the Collateral (other than with respect to funds held by the Trustee
 
-174-

pursuant to Article VIII), and any rights it has under the Collateral Documents, and upon receipt by the Collateral Agent of such notice, the Collateral Agent shall be deemed not to hold a Lien in the Collateral on behalf of the Trustee and shall do or cause to be done (at the expense of the Company) all acts reasonably requested by the Company to release such Lien as soon as is reasonably practicable.
Section 12.9.     Collateral Agent .
(a)    The Trustee and each of the Holders by acceptance of the Notes hereby designates and appoints the Collateral Agent as its agent under this Indenture, the Collateral Documents and the Intercreditor Agreement and the Trustee and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Collateral Agent to take such action on its behalf under the provisions of this Indenture, the Collateral Documents and the Intercreditor Agreement and to exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by the terms of this Indenture, the Collateral Documents and the Intercreditor Agreement, and consents and agrees to the terms of the Intercreditor Agreement and each Collateral Document, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms. The Collateral Agent agrees to act as such on the express conditions contained in this Section 12.9. The provisions of this Section 12.9 are solely for the benefit of the Collateral Agent and none of the Trustee, any of the Holders nor any of the Grantors shall have any rights as a third party beneficiary of any of the provisions contained herein other than as expressly provided in Section 12.4. Each Holder agrees that any action taken by the Collateral Agent in accordance with the provision of this Indenture, the Intercreditor Agreement and the Collateral Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture, the Collateral Documents and the Intercreditor Agreement, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Note Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any Grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Collateral Documents and the Intercreditor Agreement or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b)    The Collateral Agent may perform any of its duties under this Indenture, the Collateral Documents or the Intercreditor Agreement by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and
 
-175-

attorneys-in-fact of such Person and its Affiliates, (a “ Related Person ”) and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel. The Collateral Agent shall not be responsible for the negligence or willful misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith.
(c)    None of the Collateral Agent or any of its respective Related Persons shall (i) be liable for any action taken or omitted to be taken by any of them under or in connection with this Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct as determined by a final nonappeable order of a court of competent jurisdiction) or under or in connection with any Collateral Document or the Intercreditor Agreement or the transactions contemplated thereby (except for its own gross negligence or willful misconduct as determined by a final nonappeable order of a court of competent jurisdiction), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company or any other Grantor or Affiliate of any Grantor, or any Officer or Related Person thereof, contained in this Indenture, or any other Note Documents, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Indenture, the Collateral Documents or the Intercreditor Agreement, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Collateral Documents or the Intercreditor Agreement, or for any failure of any Grantor or any other party to this Indenture, the Collateral Documents or the Intercreditor Agreement to perform its obligations hereunder or thereunder. None of the Collateral Agent or any of its respective Related Persons shall be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Collateral Documents or the Intercreditor Agreement or to inspect the properties, books, or records of any Grantor or any Grantor’s Affiliates.
(d)    The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Company or any other Grantor), independent accountants and other experts and advisors selected by the Collateral Agent. The Collateral Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, or other paper or document. The Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture, the Collateral Documents or the Intercreditor Agreement unless it shall first receive such advice or concurrence of the Trustee or the Holders of a majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability, loss and expense which may be incurred by it by
 
-176-

reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture, the Collateral Documents or the Intercreditor Agreement in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(e)    The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Trust Officer of the Collateral Agent shall have received written notice from the Trustee or the Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article VI or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 12.9).
(f)    The Collateral Agent may resign at any time by notice to the Trustee and the Company, such resignation to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. If the Collateral Agent resigns under this Indenture, the Company shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation of the Collateral Agent (as stated in the notice of resignation), the Collateral Agent may appoint, after consulting with the Trustee, subject to the consent of the Company (which shall not be unreasonably withheld and which shall not be required during a continuing Event of Default), a successor collateral agent. If no successor collateral agent is appointed and consented to by the Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation) the Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Collateral Agent, and the term “Collateral Agent” shall mean such successor collateral agent, and the retiring Collateral Agent’s appointment, powers and duties as the Collateral Agent shall be terminated. After the retiring Collateral Agent’s resignation hereunder, the provisions of this Section 12.9 (and Section 7.7) shall continue to inure to its benefit and the retiring Collateral Agent shall not by reason of such resignation be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Collateral Agent under this Indenture.
(g)    Wilmington Trust (London) Limited, in its capacity as security agent under the Intercreditor Agreement shall initially act as Collateral Agent and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Collateral Documents or the Intercreditor Agreement, neither the Collateral Agent nor any of its respective officers, directors, employees or agents or other Related Persons shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The
 
-177-

Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder, except for its own gross negligence or willful misconduct as determined by a final nonappeable order of a court of competent jurisdiction.
(h)    The Collateral Agent is authorized and directed to (i) enter into the Collateral Documents to which it is party, whether executed on or after the Issue Date, (ii) enter into the Intercreditor Agreement, (iii) make the representations of the Holders set forth in the Collateral Documents and Intercreditor Agreement, (iv) bind the Holders on the terms as set forth in the Collateral Documents and the Intercreditor Agreement and (v) perform and observe its obligations under the Collateral Documents and the Intercreditor Agreement.
(i)    If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article VI, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture, the Collateral Documents and the Intercreditor Agreement.
(j)    The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in assets which, in accordance with Article 9 of the UCC can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, upon request from the Company, the Trustee shall notify the Collateral Agent thereof and promptly shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions (to the extent applicable).
(k)    The Collateral Agent shall have no obligation whatsoever to the Trustee or any of the Holders to assure that the Collateral exists or is owned by any Grantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all or the Grantor’s property constituting collateral intended to be subject to the Lien and security interest of the Collateral Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture, any Collateral Document or the Intercreditor Agreement other than pursuant to the instructions of the Trustee or the Holders of a majority in aggregate principal amount of the Notes or as otherwise provided in the Collateral Documents, it being understood and
 
-178-

agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Collateral Agent shall have no other duty or liability whatsoever to the Trustee or any Holder as to any of the foregoing.
(l)    If the Company or any Guarantor (i) incurs any obligations in respect of First Priority Obligations at any time when the Intercreditor Agreement nor any other intercreditor agreement is not in effect or at any time when Indebtedness constituting First Priority Obligations entitled to the benefit of the Intercreditor Agreement is concurrently retired, and (ii) delivers to the Collateral Agent an Officer’s Certificate so stating and requesting the Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreement) in favor of a designated agent or representative for the holders of the First Priority Obligations so incurred, the Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement (at the sole expense and cost of the Company, including legal fees and expenses of the Collateral Agent), bind the Holders on the terms set forth therein and perform and observe its obligations thereunder.
(m)    If the Company or any Guarantor (i) incurs any obligations in respect of Junior Priority Indebtedness at any time when no intercreditor agreement is in effect or at any time when Indebtedness constituting Junior Priority Indebtedness entitled to the benefit of the First Priority/ Second Priority Intercreditor Agreement is concurrently retired, and (ii) delivers to the Collateral Agent an Officer’s Certificate so stating and requesting the Collateral Agent to enter into an intercreditor agreement (on terms that are customary for such financings as determined by the Company in good faith reflecting the subordination of such Liens to the Liens secured by the Notes and Note Guarantees) in favor of a designated agent or representative for the holders of the Junior Priority Indebtedness so incurred, the Collateral Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement (at the sole expense and cost of the Company, including legal fees and expenses of the Collateral Agent), bind the Holders on the terms set forth therein and perform and observe its obligations thereunder.
(n)    No provision of this Indenture, the Intercreditor Agreement or any Collateral Document shall require the Collateral Agent (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Holders (or the Trustee in the case of the Collateral Agent) if it shall have received indemnity satisfactory to the Collateral Agent against potential costs and liabilities incurred by the Collateral Agent relating thereto. Notwithstanding anything to the contrary contained in this Indenture, the Intercreditor Agreement or the Collateral Documents, in the event the Collateral Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the mortgages or take any such other action if the Collateral Agent has determined that the Collateral Agent may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property, of any hazardous substances unless the Collateral Agent has received security or indemnity from
 
-179-

the Holders in an amount and in a form all satisfactory to the Collateral Agent in its sole discretion, protecting the Collateral Agent from all such liability. The Collateral Agent shall at any time be entitled to cease taking any action described in this clause if it no longer reasonably deems any indemnity, security or undertaking from the Company or the Holders to be sufficient.
(o)    The Collateral Agent (i) shall not be liable for any action taken or omitted to be taken by it in connection with this Indenture, the Intercreditor Agreement and the Collateral Documents or instrument referred to herein or therein, except to the extent that any of the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Company (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law) and (iii) may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel. The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(p)    Neither the Collateral Agent nor the Trustee shall be liable for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters. Neither the Collateral Agent nor the Trustee shall be liable for any indirect, special, punitive, incidental or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action.
(q)    The Collateral Agent does not assume any responsibility for any failure or delay in performance or any breach by the Company or any other Grantor under this Indenture, the Intercreditor Agreement and the Collateral Documents. The Collateral Agent shall not be responsible to the Holders or any other Person for any recitals, statements, information, representations or warranties contained in any Note Documents or in any certificate, report, statement, or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Indenture, the Intercreditor Agreement or any Collateral Document; the execution, validity, genuineness, effectiveness or enforceability of the Intercreditor Agreement and any Collateral Documents of any other party thereto; the genuineness, enforceability, collectability, value, sufficiency, location or existence of any Collateral, or the validity, effectiveness, enforceability, sufficiency, extent, perfection or priority of any Lien therein; the validity, enforceability or collectability of any Obligations; the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any obligor; or for any failure of any obligor to perform its Obligations under this Indenture, the Intercreditor Agreement and the Collateral Documents. The Collateral Agent shall have no obligation to any Holder or any other Person to ascertain or inquire into the existence of any Default or Event of Default, the observance or performance by
 
-180-

any obligor of any terms of this Indenture, the Intercreditor Agreement and the Collateral Documents, or the satisfaction of any conditions precedent contained in this Indenture, the Intercreditor Agreement and any Collateral Documents. The Collateral Agent shall not be required to initiate or conduct any litigation or collection or other proceeding under this Indenture, the Intercreditor Agreement and the Collateral Documents unless expressly set forth hereunder or thereunder. The Collateral Agent shall have the right at any time to seek instructions from the Holders with respect to the administration of the Note Documents.
(r)    The parties hereto and the Holders hereby agree and acknowledge that the Collateral Agent shall not assume, be responsible for or otherwise be obligated for any liabilities, claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and unforeseeable), judgments, expenses and costs (including but not limited to, any remediation, corrective action, response, removal or remedial action, or investigation, operations and maintenance or monitoring costs, for personal injury or property damages, real or personal) of any kind whatsoever, pursuant to any environmental law as a result of this Indenture, the Intercreditor Agreement, the Collateral Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that in the exercise of its rights under this Indenture, the Intercreditor Agreement and the Collateral Documents, the Collateral Agent may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Agent in the Collateral and that any such actions taken by the Collateral Agent shall not be construed as or otherwise constitute any participation in the management of such Collateral.
(s)    Upon the receipt by the Collateral Agent and the Trustee of a written request of the Company signed by one Officer of the Company (a “ Collateral Document Order ”), the Collateral Agent and the Trustee are hereby authorized to execute and enter into, and shall execute and enter into, without the further consent of any Holder, any Collateral Document to be executed after the Issue Date. Such Collateral Document Order shall (i) state that it is being delivered to the Collateral Agent and the Trustee pursuant to, and is a Collateral Document Order referred to in, this Section 12.9(s), and (ii) instruct the Collateral Agent and the Trustee (if applicable) to execute and enter into such Collateral Document. Any such execution of a Collateral Document shall be at the direction and expense of the Company, upon delivery to the Collateral Agent of an Officer’s Certificate and Opinion of Counsel stating that all conditions precedent to the execution and delivery of the Collateral Document have been satisfied. The Holders, by their acceptance of the Notes, hereby authorize and direct the Collateral Agent to execute such Collateral Documents.
(t)    Subject to the provisions of the applicable Collateral Documents and the Intercreditor Agreement, each Holder, by acceptance of the Notes, agrees that the Collateral Agent shall execute and deliver the Intercreditor Agreement and the Collateral Documents to which it is a party and all agreements, documents and instruments incidental thereto, and act in accordance with the terms thereof. For the avoidance of doubt, the Collateral Agent shall have no discretion under this Indenture, the Intercreditor Agreement or the Collateral Documents and shall not be required to make or give any
 
-181-

determination, consent, approval, request or direction without the written direction of the Holders of a majority in aggregate principal amount of the then outstanding Notes or the Trustee, as applicable, or as otherwise set forth in the Intercreditor Agreement.
(u)    After the occurrence of an Event of Default, the Trustee may direct the Collateral Agent in connection with any action required or permitted by this Indenture, the Collateral Documents or the Intercreditor Agreement.
(v)    The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Collateral Documents or the Intercreditor Agreement and to the extent not prohibited under the Intercreditor Agreement, for turnover to the Trustee to make further distributions of such funds to itself, the Trustee and the Holders in accordance with the provisions of Section 6.10 hereof and the other provisions of this Indenture.
(w)    In each case that the Collateral Agent may or is required hereunder or under any other Note Document to take any action (an “ Action ”), including without limitation to make any determination, to give consents, to exercise rights, powers or remedies, to release or sell Collateral or otherwise to act hereunder or under any other Note Document, the Collateral Agent may seek direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes. The Collateral Agent shall not be liable with respect to any Action taken or omitted to be taken by it in accordance with the direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes or as otherwise set forth in the Intercreditor Agreement. If the Collateral Agent shall request direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes with respect to any Action, the Collateral Agent shall be entitled to refrain from such Action unless and until the Collateral Agent shall have received direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes, and the Collateral Agent shall not incur liability to any Person by reason of so refraining.
(x)    Notwithstanding anything to the contrary in this Indenture or any other Note Document, in no event shall the Collateral Agent or the Trustee be responsible for, or have any duty or obligation with respect to, the recording, filing, registering, perfection, protection or maintenance of the security interests or Liens intended to be created by this Indenture or the other Note Documents (including without limitation the filing or continuation of any UCC financing or continuation statements or similar documents or instruments), nor shall the Collateral Agent or the Trustee be responsible for, and neither the Collateral Agent nor the Trustee makes any representation regarding, the validity, effectiveness or priority of any of the Collateral Documents or the security interests or Liens intended to be created thereby.
(y)    Before the Collateral Agent acts or refrains from acting in each case at the request or direction of the Company or the Guarantors, it may require an Officer’s Certificate and an Opinion of Counsel, which shall conform to the provisions of Section 13.5. The Collateral Agent shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion.
 
-182-

(z)    Notwithstanding anything to the contrary contained herein, the Collateral Agent shall act pursuant to the instructions of the Holders and the Trustee solely with respect to the Collateral Documents and the Collateral, except as otherwise set forth in the Intercreditor Agreement.
(aa)    The Company shall pay compensation to, reimburse expenses of and indemnify the Collateral Agent in accordance with Section 7.7 and the Intercreditor Agreement.
(bb)    The Collateral Agent shall be entitled to all of the rights, privileges and immunities of the Security Agent as set forth in the Intercreditor Agreement, as though fully set forth herein.
Section 12.10.     Designations . Except as provided in the next sentence, for purposes of the provisions hereof and the Intercreditor Agreement requiring the Company to designate Indebtedness for the purposes of the term “First Lien Obligations”, “Additional First Lien Obligations”, “Other First Priority Lien Obligations” (as each such term is defined in the applicable Intercreditor Agreement), “Junior Priority Indebtedness” or any other such designations hereunder or under the Intercreditor Agreement, any such designation shall be sufficient if the relevant designation is set forth in writing, signed on behalf of the Company by an Officer and delivered to the Trustee, the Collateral Agent and the Collateral Agent in accordance with the terms of the Intercreditor Agreement. For all purposes hereof and the Intercreditor Agreement, the Company hereby designate the Obligations pursuant to the Credit Agreement as “First Lien Obligations” under the Intercreditor Agreement.
Section 12.11.     No Impairment of the Security Interests . Except as otherwise permitted under this Indenture, the Intercreditor Agreement and the Collateral Documents, neither the Company nor any of the Guarantors will be permitted to take any action, or knowingly omit to take any action, which action or omission would have the result of materially impairing the security interest with respect to the Collateral for the benefit of the Trustee, the Collateral Agent and the Holders of the Notes.
Section 12.12.     Insurance . The Company shall maintain insurance, and cause each of its Restricted Subsidiaries to maintain insurance, with financially sound and reputable insurers (and the Company shall use commercially reasonable efforts to name the Collateral Agent as an additional insured as soon as possible after the Issue Date), with respect to such of its properties, against such risks, casualties and contingencies and in such types and amounts as are consistent with sound business practice, it being understood that this Section shall not prevent the use of deductible or excess loss insurance and shall not prevent (i) the Company or any of their Subsidiaries from acting as a self-insurer or maintaining insurance with another Subsidiary or Subsidiaries of the Company so long as such action is consistent with sound business practice or (ii) the Company from obtaining and owning insurance policies covering activities of its Subsidiaries.
 
-183-

ARTICLE XIII
M ISCELLANEOUS
Section 13.1.    [ Reserved ].
Section 13.2.     Notices . Any notice, request, direction, consent or communication made pursuant to the provisions of this Indenture or the Notes shall be in writing and delivered in person, sent by facsimile, sent by electronic mail in pdf format, delivered by commercial courier service or mailed by first class mail, postage prepaid, addressed as follows:
if to the Company, any Guarantor, Parent or MidCo:
Atento Luxco 1 S.A.
4 rue Lou Hemmer
L-1748 Luxembourg-Findel
Attention: Vishal Jugdeb
with a copy to:
Kirkland & Ellis LLP
601 Lexington Avenue
New York, New York 10022
Attention: Joshua N. Korff, P.C. and Brian Hecht, Esq.
Facsimile: +1 (212) 446 4900
with a copy to:
Bain Capital Partners
Devonshire House
Mayfair Place
London
W1J 8AJ
United Kingdom
Facsimile: +44 20 7514 5250
if to the Trustee, at its corporate trust office, which corporate trust office for purposes of this Indenture is at the date hereof located at:
Wilmington Trust, National Association
Corporate Capital Markets
50 South Sixth Street, Suite 1290
Minneapolis, MN 55402-1544
Attention: Atento Administrator
Facsimile: +1 (612) 217-5651
 
-184-

if to the Collateral Agent:
Wilmington Trust (London) Ltd
Third Floor
1 King’s Arms Yard
London
EC2R 7AF
United Kingdom
Attention: Philip Hargreaves and Keith Reader (Atento)
Facsimile: +44 (0) 20 7397 3601
The Company, the Trustee or the Collateral Agent by written notice to each other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication to the Company, the Guarantors, Parent or MidCo shall be deemed to have been given or made as of the date so delivered if personally delivered or if delivered electronically, in pdf format; when receipt is acknowledged, if telecopied; and seven calendar days after mailing if sent by registered or certified mail, postage prepaid (except that a notice of change of address shall not be deemed to have been given until actually received by the addressee). Any notice or communication to the Trustee or the Collateral Agent shall be deemed delivered upon receipt.
Any notice or communication sent to a Holder shall be electronically delivered or mailed to the Holder at the Holder’s address as it appears in the Notes Register and shall be sufficiently given if so sent within the time prescribed.
Failure to mail or deliver electronically a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is sent in the manner provided above, it is duly given, whether or not the addressee receives it, except that notices to the Trustee or the Collateral Agent shall be effective only upon receipt.
Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any Note provides for notice of any event (including any notice of redemption or purchase) to a Holder of a Global Note (whether by mail or otherwise), such notice shall be sufficiently given if given to DTC (or its designee) pursuant to the standing instructions from DTC or its designee.
Section 13.3.    [ Reserved ].
Section 13.4.     Certificate and Opinion as to Conditions Precedent . Upon any request or application by the Company or any of the Guarantors to the Trustee to take or refrain from taking any action under this Indenture, the Notes or the Collateral Documents, the Company or such Guarantor, as the case may be, shall furnish to the Trustee:
(1)    an Officer’s Certificate in form satisfactory to the Trustee (which shall include the statements set forth in Section 13.5 hereof) stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture, the Notes or the Collateral Documents relating to the proposed action have been satisfied; and
 
-185-

(2)    an Opinion of Counsel in form satisfactory to the Trustee (which shall include the statements set forth in Section 13.5 hereof) stating that, in the opinion of such counsel, all such conditions precedent have been satisfied and all covenants have been complied with.
Section 13.5.     Statements Required in Certificate or Opinion . Each certificate or opinion with respect to compliance with a covenant or condition provided for in this Indenture, the Notes or Collateral Documents shall include:
(1)    a statement that the individual making such certificate or opinion has read such covenant or condition;
(2)    a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3)    a statement that, in the opinion of such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4)    a statement as to whether or not, in the opinion of such individual, such covenant or condition has been complied with.
In giving such Opinion of Counsel, counsel may rely as to factual matters on an Officer’s Certificate or on certificates of public officials.
Section 13.6.     When Notes Disregarded . In determining whether the Holders of the required aggregate principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company, any Guarantor or any Affiliate of them shall be disregarded and deemed not to be outstanding, except that, for the purpose of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes which a Trust Officer of the Trustee actually knows are so owned shall be so disregarded. Also, subject to the foregoing, only Notes outstanding at the time shall be considered in any such determination.
Section 13.7.     Rules by Trustee, Paying Agent and Registrar . The Trustee may make reasonable rules for action by, or at meetings of, Holders. The Registrar and the Paying Agent may make reasonable rules for their functions.
Section 13.8.     Legal Holidays . A “Legal Holiday” is a Saturday, a Sunday or other day on which commercial banking institutions are authorized or required to be closed in New York, New York or the state of the place of payment. If a payment date or Redemption Date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected.
 
-186-

Section 13.9.     Governing Law . THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES AND THE RIGHTS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 13.10.     Jurisdiction . The Company and the Guarantors agree that any suit, action or proceeding against the Company or any Guarantor brought by any Holder or the Trustee arising out of or based upon this Indenture, the Note Guarantee or the Notes may be instituted in any state or Federal court in the Borough of Manhattan, New York, New York, and any appellate court from any thereof, and each of them irrevocably submits to the nonexclusive jurisdiction of such courts in any suit, action or proceeding. The Company and the Guarantors irrevocably waive, to the fullest extent permitted by law, any objection to any suit, action, or proceeding that may be brought in connection with this Indenture, the Note Guarantee or the Notes, including such actions, suits or proceedings relating to securities laws of the United States of America or any state thereof, in such courts whether on the grounds of venue, residence or domicile or on the ground that any such suit, action or proceeding has been brought in an inconvenient forum. The Company and the Guarantors agree that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Company or the Guarantors, as the case may be, and may be enforced in any court to the jurisdiction of which the Company or the Guarantors, as the case may be, are subject by a suit upon such judgment. Notwithstanding the above, with respect to any dispute involving a Guarantor incorporated under the laws of the United Mexican States, each of the parties hereto, expressly, irrevocable and unconditionally agrees to submit for itself and its property, to the exclusive jurisdiction of the courts in the Borough of Manhattan, New York, New York, and waives any other jurisdiction to which it may be entitled by reason of its present or future domicile or otherwise.
Section 13.11.     Waivers of Jury Trial . EACH OF THE COMPANY, THE GUARANTORS, THE TRUSTEE AND THE COLLATERAL AGENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE NOTE GUARANTEES AND FOR ANY COUNTERCLAIM THEREIN.
Section 13.12.     USA PATRIOT Act . The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “ USA PATRIOT Act ”), the Trustee and the Collateral Agent, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account. The parties to this Indenture agree that they will provide the Trustee and the Collateral Agent with such information as each may request in order to satisfy the requirements of the USA PATRIOT Act.
 
-187-

Section 13.13.     No Recourse Against Others . No director, member, officer, employee, incorporator or shareholder of the Company or any of its Subsidiaries or Affiliates, or such (other than the Company and the Guarantors), shall have any liability for any obligations of the Company or the Guarantors under the Notes, the Note Guarantees or this Indenture or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the SEC that such a waiver is against public policy.
Section 13.14.     Successors . All agreements of the Company and each Guarantor in this Indenture and the Notes shall bind their respective successors. All agreements of the Trustee in this Indenture shall bind its successors.
Section 13.15.     Multiple Originals . The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
Section 13.16.    [ Reserved ].
Section 13.17.     Table of Contents; Headings . The table of contents, cross reference table and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
Section 13.18.     Force Majeure . In no event shall the Trustee or the Collateral Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, it being understood that the Trustee and the Collateral Agent shall use reasonable best efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 13.19.     Severability . In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
 
-188-

Section 13.20.     Intercreditor Agreement .
(a)    Each Holder, by its acceptance of a Note, authorizes (without any further consent of the Holders of the Notes) (a) the Company to enter into the Intercreditor Agreement, and (b) authorizes and instructs (without any further consent of the Holders of the Notes) the Trustee to enter into the Intercreditor Agreement as Trustee to give effect to the provisions described in the Offering Circular entitled “Description of Certain Indebtedness—Intercreditor Agreement.”
(b)    Each Holder of the Notes, by accepting such Note, will be deemed to have (i) appointed and authorized the Collateral Agent and the Trustee to give effect to the provisions in the Intercreditor Agreement, any additional intercreditor agreements and the Collateral Documents and perform the duties and exercise the rights, powers and discretions that are specifically given to it under the Intercreditor Agreement and the Collateral Documents securing such Indebtedness, together with any other incidental rights, power and discretions; (ii) agreed to be bound by the provisions of the Intercreditor Agreement, any additional intercreditor agreements and the Collateral Documents; and (iii) irrevocably appointed the Collateral Agent and the Trustee to act on its behalf to enter into and comply with the provisions of the Intercreditor Agreement, any additional intercreditor agreements and the Collateral Documents (including the execution of, and compliance with, any waiver, modification, amendment, renewal or replacement expressed to be executed by the Trustee or the Collateral Agent on its behalf).
(c)    The parties acknowledge and agree that Wilmington Trust (London) Limited is entering into the Intercreditor Agreement in its capacity as Security Agent thereunder. In the event of any conflict between this Indenture or any other Note Document and the Intercreditor Agreement, the terms of the Intercreditor Agreement shall govern and control.
Section 13.21.     Appointment of Agent for Service of Process .
(a)    By the execution and delivery of this Indenture or any amendment or supplement hereto, each of the Company, each Guarantor, Parent and MidCo (i) acknowledges that it hereby designates and appoints Contact US Teleservices Inc. (“ Authorized Agent ”) currently located at 5959 Northwest Parkway, San Antonio, Texas 78249, as its authorized agent upon which process may be served in any suit, action or proceeding with respect to, arising out of, or relating to, the Notes, this Indenture or the Note Guarantees, that may be instituted in any Federal or state court in the State of New York, The City of New York, the Borough of Manhattan, or brought under Federal or state securities laws or brought by the Trustee (whether in its individual capacity or in its capacity as Trustee hereunder), and acknowledges that the Authorized Agent has accepted such designation, (ii) submits to the non-exclusive jurisdiction of any such court in any such suit, action or proceeding, and (iii) agrees that service of process upon the Authorized Agent shall be deemed in every respect effective service of process upon each of the Company, each Guarantor, Parent and MidCo, as the case may be, in any such suit, action or proceeding, each of the Company, each Guarantor, Parent and MidCo further agree to take any and all action, including the execution and filing of any and all such documents and instruments as may be necessary to continue such designation and
 
-189-

appointment of the Authorized Agent in full force and effect so long as this Indenture shall be in full force and effect; provided that each of the Company, each Guarantor, Parent and MidCo may and shall (to the extent the Authorized Agent ceases to be able to be served on the basis contemplated herein), by written notice to the Trustee and the Collateral Agent, designate such additional or alternative agents for service of process under this Section 13.21 that (i) maintains an office located in the Borough of Manhattan, The City of New York in the State of New York, (ii) are either (x) counsel for any of the Company, any Guarantor, Parent and MidCo or (y) a corporate service company which acts as agent for service of process for other Persons in the ordinary course of its business and (iii) agrees to act as agent for service of process in accordance with this Section 13.21. Such notice shall identify the name of such agent for process and the address of such agent for process in the Borough of Manhattan, The City of New York, State of New York. Upon the written request of any Holder, the Trustee shall deliver such information to such Holder. Notwithstanding the foregoing, there shall, at all times, be at least one agent for service of process for the Company and the Guarantor appointed and acting in accordance with this Section 13.21.
(b)    Each of the Company, each Guarantor, Parent and MidCo further hereby irrevocably consents and agrees to the service of any and all legal process, summons, notices and documents in any such action, suit or proceeding against them by (i) serving a copy thereof upon any of the relevant Process Agents specified in clause (a) above, or (ii) or by mailing copies thereof by registered or certified air mail, postage prepaid, to each of the Company, each Guarantor, Parent or MidCo, at its address specified in or designated pursuant to this Indenture. Each of the Company, each Guarantor, Parent and MidCo agrees that the failure of any Process Agent specified in clause (a) above, to give any notice of such service to it shall not impair or affect in any way the validity of such service or any judgment rendered in any action or proceeding based thereon.
(c)    Nothing herein shall in any way be deemed to limit the ability of the Trustee or any Holder to serve any such legal process, summons, notices and documents in any other manner permitted by applicable law or to obtain jurisdiction over any of the Company, a Guarantor, Parent or MidCo or bring actions, suits or proceedings against them in such other jurisdictions, and in such manner, as may be permitted by applicable law.
(d)    Each of the Company, each Guarantor, Parent and MidCo hereby irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any of the aforesaid actions, suits or proceedings arising out of or in connection with this Indenture, the Notes or the Note Guarantees brought in the United States federal courts located in the County of New York or the courts of the State of New York located in the County of New York and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
(e)    The provisions of this Section 13.21 shall survive any termination of this Indenture, in whole or in part, and shall survive delivery and payment for the Notes.
 
-190-

Section 13.22.     Waiver of Immunities . To the extent that the Company or any Guarantor or any of its properties, assets or revenues may have or may hereafter become entitled to, or have attributed to them, any right of immunity, on the grounds of sovereignty, from any legal action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, or from attachment in aid of execution of judgment, or from execution of judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any jurisdiction in which proceedings may at any time be commenced, with respect to their obligations, liabilities or any other matter under or arising out of or in connection with this Indenture, the Notes or the Note Guarantees, the Company and each Guarantor hereby irrevocably and unconditionally, to the extent permitted by applicable law, waives and agrees not to plead or claim any such immunity and consents to such relief and enforcement.
Section 13.23.     Judgment Currency . The Company and each Guarantor agrees to indemnify the recipient against any loss incurred by such recipient as a result of any judgment or order being given or made against the Company or any Guarantor for any amount due hereunder and such judgment or order being expressed and paid in a currency (the “ Judgment Currency ”) other than United States dollars and as a result of any variation as between (i) the rate of exchange at which the United States dollar amount is converted into the Judgment Currency for the purpose of such judgment or order, and (ii) the rate of exchange in The City of New York at which such party on the date of payment of such judgment or order is able to purchase United States dollars with the amount of the Judgment Currency actually received by such party if such party had utilized such amount of Judgment Currency to purchase United States dollars as promptly as practicable upon such party’s receipt thereof. The foregoing indemnity shall constitute a separate and independent obligation of the Company and each Guarantor and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, the relevant currency.
[Signature on following pages]
 
-191-

IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed all as of the date and year first written above.

ATENTO LUXCO 1 S.A.	
		
By:	 	/s/ Vishal Jugdeb	
	 	Name:	 	Vishal Jugdeb	
	 	Title:	 	Director	

					
ATENTO BRASIL S.A.	
		
By:	 	/s/ Mario Mota Câmara	
	 	Name:	 	Mario Mota Câmara	
	 	Title:	 	Director Regional Brasil	

					
ATENTO MEXICO HOLDCO, S. DE R.L. DE C.V.	
		
By:	 	/s/ Rodrigo Fernando Llaguno Carranco	
	 	Name:	 	Rodrigo Fernando Llaguno Carranco	
	 	Title:	 	Chief Executive Officer	

					
ATENTO TELESERVICIOS ESPAÑA, S.A.U.	
		
By:	 	/s/ Jose María Pérez Melber	
	 	Name:	 	Jose María Pérez Melber	
	 	Title:	 	Legal Representative	

					
ATENTO S.A.	
		
By:	 	/s/ Vishal Jugdeb	
	 	Name:	 	Vishal Jugdeb	
	 	Title:	 	Director	

					
ATENTO LUXCO MIDCO S.A R.L.	
		
By:	 	/s/ Vishal Jugdeb	
	 	Name:	 	Vishal Jugdeb	
	 	Title:	 	Manager	

			
WILMINGTON TRUST (LONDON) LTD,
as security agent under the Intercreditor Agreement, as Collateral Agent	
		
By:	 	/s/ Keith Reader	
	 	Name:  Keith Reader	
	 	Title:    Authorised Signatory	

			
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Trustee	
		
By:	 	/s/ Hallie E. Field	
	 	Name: Hallie E. Field	
	 	Title: Assistant Vice President	

EXHIBIT A
[FORM OF FACE OF GLOBAL RESTRICTED NOTE]
[Applicable Restricted Notes Legend]
[Depository Legend, if applicable]
[Temporary Regulation S Legend, if applicable]

No. [    ]	  	Principal Amount $[        ] [as revised by the Schedule of Increases and Decreases in Global Note attached hereto] 1	
		
	  	CUSIP NO.                                                                                      	
ATENTO LUXCO 1 S.A.
6.125% Senior Secured Notes due 2022
Atento Luxco 1 S.A., a company (“ société anonyme ”) incorporated under the laws of the Grand Duchy of Luxembourg, promises to pay to [Cede & Co.], or its registered assigns, the principal sum of          Dollars, [as revised by the Schedule of Increases and Decreases in Global Note attached hereto], on August 10, 2022.
Interest Payment Dates: February 10 and August 10, commencing on February 10, 2018  2
Record Dates: January 26 and July 26
Additional provisions of this Note are set forth on the other side of this Note.

1  	Insert in Global Notes only.	
2  	In the case of Notes issued on the Issue Date.	
 
A-1

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

ATENTO LUXCO 1 S.A.	
		
By:	 	                                                                                                 	
	 	Name:	
	 	Title:	
 
A-2

TRUSTEE CERTIFICATE OF AUTHENTICATION
This Note is one of the Notes referred to in the within mentioned Indenture.

WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee	
		
By:	 	                                                                                                 	
	 	Authorized signatory	
Dated:                     
 
A-3

[FORM OF REVERSE SIDE OF NOTE]
ATENTO LUXCO 1 S.A.
6.125% Senior Secured Notes due 2022
Capitalized terms used herein and not defined herein have the meanings ascribed thereto in the Indenture.
1.     Interest
Atento Luxco 1 S.A., a company (“société anonyme”) incorporated under the laws of the Grand Duchy of Luxembourg, promises to pay interest on the principal amount of this Note at6.125% per annum from August 10, 2017 3 until maturity. The Company will pay interest semiannually in arrears every February 10 and August 10 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “ Interest Payment Date ”). Interest on the Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided , that the first Interest Payment Date shall be February 10, 2018. 4 The Company shall pay interest on overdue principal at the rate specified herein, and it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent lawful. Interest on the Notes will be computed on the basis of a 360 day year comprised of twelve 30 day months.
2.     Method of Payment
By no later than 10:00 a.m. (New York City time) on the date on which any principal of, premium, if any, and interest on any Note is due and payable, the Company shall deposit with the Paying Agent a sum sufficient in immediately available funds to pay such principal, premium, interest when due. Interest on any Note which is payable, and is timely paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such Note (or one or more Predecessor Notes) is registered at the close of business on the preceding January 26 and July 26 at the office or agency of the Company maintained for such purpose pursuant to Section 2.3 of the Indenture. The principal of (and premium, if any) and interest on the Notes shall be payable at the office or agency of Paying Agent or Registrar designated by the Company maintained for such purpose (which shall initially be the office of the Trustee maintained for such purpose), or at such other office or agency of the Company as may be maintained for such purpose pursuant to Section 2.3 of the Indenture; provided , however , that, at the option of the Paying Agent, each installment of interest may be paid by (i) check mailed to addresses of the Persons entitled thereto as such addresses shall appear on the Notes Register or (ii) wire transfer to an account located in the United States maintained by the payee, subject to the last sentence of this paragraph. Payments in respect of Notes represented by a

3  	In the case of Notes issued on the Issue Date.	
4  	In the case of Notes issued on the Issue Date.	
 
A-4

Global Note (including principal, premium, if any, and interest) will be made by wire transfer of immediately available funds to the accounts specified by The Depository Trust Company or any successor depository. Payments in respect of Notes represented by Definitive Notes (including principal, premium, if any, and interest) held by a Holder of at least $1,000,000 aggregate principal amount of Notes represented by Definitive Notes will be made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 15 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion). If an Interest Payment Date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected.
3.     Paying Agent and Registrar
The Company initially appoints Wilmington Trust, National Association, the trustee (the “ Trustee ”) as Registrar and Paying Agent for the Notes. The Company may change any Registrar or Paying Agent without prior notice to the Holders. The Company or Guarantor may act as Paying Agent, Registrar or transfer agent.
4.     Indenture
The Company issued the Notes under an Indenture dated as of August 10, 2017 (as it may be amended or supplemented from time to time in accordance with the terms thereof, the “ Indenture ”), among the Company, the Guarantors party thereto and the Trustee and Collateral Agent. The terms of the Notes include those stated in the Indenture. The Notes are subject to all terms and provisions of the Indenture, and Holders are referred to the Indenture for a statement of those terms. In the event of a conflict between the terms of the Notes and the terms of the Indenture, the terms of the Indenture shall prevail.
5.    [ Reserved ]
6.     Guarantees
To guarantee the due and punctual payment of the principal, premium, if any, and interest (including post filing or post-petition interest) on the Notes and all other amounts payable by the Company under the Indenture and the Notes when and as the same shall be due and payable, whether at maturity, by acceleration or otherwise, according to the terms of the Notes and the Indenture, the Guarantors will unconditionally guarantee (and future guarantors, jointly and severally with the Guarantor, will fully and unconditionally Guarantee) such obligations on a senior basis pursuant to the terms of the Indenture.
7.     Redemption
(a)    At any time prior to August 10, 2019, the Company may redeem the Notes in whole or in part, at its option, upon not less than 15 nor more than 60 days’
 
A-5

prior notice, with a copy to the Trustee, to each Holder of the Notes to the address of such Holder appearing in the Notes Register, at a redemption price (expressed as percentages of principal amount of the Notes to be redeemed) equal to 100% of the principal amount of such Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest, if any, to but excluding the date of redemption (the “ Redemption Date ”), subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date.
(b)    At any time and from time to time prior to August 10, 2019, the Company may redeem Notes with the Net Cash Proceeds received by the Company from any Equity Offering at a redemption price equal to 106.125% plus accrued and unpaid interest, if any, to but excluding the Redemption Date, in an aggregate principal amount for all such redemptions not to exceed 40% of the original aggregate principal amount of the Notes (including Additional Notes); provided that (1) in each case the redemption takes place not later than 180 days after the closing of the related Equity Offering, and (2) not less than 50% of the original aggregate principal amount of the Notes issued under the Indenture remains outstanding immediately thereafter, excluding Notes held by the Company or any of the Restricted Subsidiaries, unless all such Notes are redeemed substantially concurrently. The Trustee shall select the Notes to be purchased in the manner described under Sections 5.1 through 5.6 of the Indenture.
(c)    Except pursuant to clauses (a) and (b) of this paragraph 7 or as otherwise set forth below, the Notes will not be redeemable at the Company’s option prior to August 10, 2019.
(d)    At any time and from time to time on or after August 10, 2019, the Company may redeem the Notes in whole or in part, upon not less than 15 nor more than 60 days’ notice, with a copy to the Trustee, to each Holder of the Notes (which notice shall be given in accordance with the provisions of Sections 5.1 through 5.6 of the Indenture) at a redemption price equal to the percentage of principal amount set forth below plus accrued and unpaid interest, if any, on the Notes redeemed, to, but excluding, the applicable Redemption Date, if redeemed during the twelve-month period beginning on August 10 of the year indicated below:

Year	  	Percentage	 	
2019	  	 	103.063	% 	
2020	  	 	101.531	% 	
2021 and thereafter	  	 	100.000	% 	
(e)    Notice of any redemption of the Notes may, at the Issuers’ discretion, be given prior to the completion of a transaction (including an Equity Offering, an incurrence of Indebtedness, a Change of Control or other transaction) and any redemption notice may, at the Issuers’ discretion, be subject to one or
 
A-6

more conditions precedent, including, but not limited to, completion of a related transaction. If such redemption or purchase is so subject to satisfaction of one or more conditions precedent, such notice shall describe each such condition, and if applicable, shall state that, in the Issuers’ discretion, the Redemption Date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption or purchase may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the Redemption Date, or by the Redemption Date as so delayed. In addition, the Issuers may provide in such notice that payment of the redemption price and performance of the Issuers’ obligations with respect to such redemption may be performed by another Person.
(f)    If the optional Redemption Date is on or after a record date and on or before the corresponding interest payment date, the accrued and unpaid interest up to, but excluding, the Redemption Date will be paid on the Redemption Date to the Holder in whose name the Note is registered at the close of business on such record date in accordance with the applicable procedures of DTC, and no additional interest will be payable to Holders whose Notes will be subject to redemption by the Company.
(g)    Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable Redemption Date.
(h)    The Company may, at its option, redeem the Notes, in whole but not in part, at any time upon not less than 15 days’ nor more than 60 days’ written notice to the Holders of the Notes and the Trustee (which notice shall be given in accordance with the provisions of Sections 5.1 through 5.6 of the Indenture), at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to the date fixed for redemption (a “ Tax Redemption Date ”), premium, if any, and all Additional Amounts, if any, then due and which will become due on the Tax Redemption Date as a result of the redemption or otherwise, if the Company determines in that the Company or any Guarantor (including, in each case, a successor entity) is, or on the next date on which any amount would be payable in respect of the Notes, would be obligated to pay Additional Amounts in respect of the Notes pursuant to the terms and conditions thereof, which the Company or Guarantor or successor entity (as the case may be) cannot avoid by the use of reasonable measures available to it (including, without limitation, making payment through a payment agent located in another jurisdiction), as a result of:
(i)    any change in, or amendment to, the laws (or any regulations or rulings promulgated thereunder) of any Relevant Tax Jurisdiction affecting taxation which becomes effective on or after the Issue Date or, in the case of a Relevant Tax Jurisdiction that did not become a Relevant Tax Jurisdiction until after the Issue Date, the date on which such Relevant Tax Jurisdiction became a Relevant Tax Jurisdiction under the Indenture; or
 
A-7

(ii)    any change in, or amendment to, the official written application, administration, or interpretation of the laws, regulations or rulings of any Relevant Tax Jurisdiction (including by virtue of a holding, judgment, or order by a court of competent jurisdiction or change in published practice or revenue guidance), on or after the Issue Date or, in the case of a Relevant Tax Jurisdiction that did not become a Relevant Tax Jurisdiction until after the Issue Date, the date on which such Relevant Tax Jurisdiction became a Relevant Tax Jurisdiction under the Indenture (each of the foregoing clauses (i) and (ii), a “ Change in Tax Law ”).
(i)    Any redemption pursuant to this paragraph 7 shall be made pursuant to the provisions of Sections 5.1 through 5.6 of the Indenture.
The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes; provided however , that under certain circumstances, the Company may be required to offer to purchase Notes under Section 3.5 and Section 3.9 of the Indenture. The Company and its Affiliates, may from time to time seek to purchase the Company’s outstanding debt securities or loans, including the Notes, in privately negotiated or open market transactions, by tender offer or otherwise.
8.     Repurchase Provisions
If a Change of Control Repurchase Event occurs, unless the Company has previously or substantially concurrently therewith delivered a redemption notice with respect to all the outstanding Notes under Section 5.7, the Company shall make an offer to purchase all of the Notes pursuant to the offer described below (the “ Change of Control Offer ”) at a price in cash (the “ Change of Control Payment ”) equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to but excluding the date of repurchase; provided that if the repurchase date is on or after the record date and on or before the corresponding interest payment date, then Holders in whose name the Notes are registered at the close of business on such record date will receive interest on the repurchase date.
In connection with any tender offer for the Notes, including a Change of Control Offer or Asset Disposition Offer, if Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in such tender offer and the Company, or any third party making a such tender offer in lieu of the Company, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company or such third party will have the right upon not less than 15 nor more than 60 days’ prior written notice, given not more than 30 days following such purchase date, to redeem all Notes that remain outstanding following such purchase at a redemption price equal to the price offered to each other Holder in such tender offer plus, to the extent not included in the tender offer payment, accrued and unpaid interest, if any, thereon, to, but not including, the date of such redemption.
 
A-8

Upon certain Asset Sales, the Company may be required to use the Excess Proceeds from such Asset Sales to offer to offer to purchase the maximum aggregate principal amount of Notes (that is $2,000 or an integral multiple of $1,000 in excess thereof) and, at the Company’s option, Pari Passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date fixed for the closing of such offer, in accordance with the procedures set forth in Section 3.5 and in Article V of the Indenture.
9.     Denominations; Transfer; Exchange
The Notes shall be issuable only in fully registered form in minimum denominations of principal amount of $2,000 and any integral multiple of $1,000 in excess thereof. A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay a sum sufficient to cover any tax and fees required by law or permitted by the Indenture. The Registrar need not register the transfer of or exchange of any Note (A) for a period beginning (1) 15 days before the sending of a notice of an offer to repurchase or redeem Notes and ending at the close of business on the day of such sending or (2) 15 days before an Interest Payment Date and ending on such Interest Payment Date or (B) called for redemption, except the unredeemed portion of any Note being redeemed in part.
10.     Persons Deemed Owners
The registered Holder of this Note may be treated as the owner of it for all purposes.
11.    [ Reserved ].
12.     Discharge and Defeasance
Subject to certain exceptions and conditions set forth in the Indenture, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, interest, if any, on the Notes to redemption or maturity, as the case may be.
13.     Amendment, Supplement, Waiver
Subject to certain exceptions contained in the Indenture, the Indenture, the Notes, the Note Guarantees, the Collateral Documents or the Intercreditor Agreement may be amended, supplemented or otherwise modified or a Default thereunder may be waived, with the consent of the Holders of a majority in aggregate principal amount of the outstanding Notes. Without notice to or the consent of any Holder, the Company, the Guarantors, the Trustee and the Collateral Agent, as applicable, may amend or supplement the Indenture, the Notes, the Note Guarantees, the Collateral Documents or the Intercreditor Agreement as provided in the Indenture.
 
A-9

14.     Defaults and Remedies
If an Event of Default (other than an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Company or certain Guarantors) occurs and is continuing, the Trustee by notice to the Company, or the Holders of at least 30% in principal amount of the outstanding Notes by notice to the Company and the Trustee, may declare the principal of, premium, if any, and accrued and unpaid interest, if any, and any other monetary obligations on all the Notes to be due and payable immediately. Upon the effectiveness of such declaration, such principal, premium, interest, if any, and other monetary obligations will be due and payable immediately. If a bankruptcy, insolvency or reorganization of the Company or certain Guarantors occurs and is continuing, the principal of, premium, if any, and accrued and unpaid interest and any other monetary obligations on all the Notes will become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders. Under certain circumstances, the Holders of a majority in principal amount of the outstanding Notes may rescind any such acceleration with respect to the Notes and its consequences.
15.     Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company, Guarantors or their Affiliates with the same rights it would have if it were not Trustee. In addition, the Trustee shall be permitted to engage in transactions with the Company; provided , however , that if the Trustee acquires any conflicting interest, the Trustee must (i) eliminate such conflict within 90 days of acquiring such conflicting interest, (ii) apply to the Commission for permission to continue acting as Trustee or (iii) resign.
16.     No Recourse Against Others
No director, officer, employee, incorporator or shareholder of the Company or any of its Subsidiaries or Affiliates, as such (other than the Company and the Guarantors), shall have any liability for any obligations of the Company or the Guarantors under the Notes, the Note Guarantees, the Collateral Documents, the Intercreditor Agreement or the Indenture or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder by accepting a note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the SEC that such a waiver is against public policy.
17.     Authentication
This Note shall not be valid until an authorized signatory of the Trustee (or an authenticating agent acting on its behalf) manually signs the certificate of authentication on the other side of this Note.
 
A-10

18.     Abbreviations
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the entirety), JT TEN (= joint tenants with rights of survivorship and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gift to Minors Act).
19.     CUSIP and ISIN Numbers
The Company has caused CUSIP and ISIN numbers, if applicable, to be printed on the Notes and has directed the Trustee to use CUSIP and ISIN numbers, if applicable, in notices of redemption or purchase as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption or purchase and reliance may be placed only on the other identification numbers placed thereon.
20.     Governing Law
This Note shall be governed by, and construed in accordance with, the laws of the State of New York.
The Company will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture. Requests may be made to:
Atento Luxco 1 S.A.
4 rue Lou Hemmer
L-1748 Luxembourg-Findel
Attention: Vishal Jugdeb
21.     Security
The Note will be secured by the Collateral on the terms and subject to the conditions set forth in the Indenture and the Collateral Documents. The Trustee and the Collateral Agent, as the case may be, hold the Collateral in trust for the benefit of the Holders of the Notes, in each case pursuant to the Collateral Documents and the Intercreditor Agreement. Each Holder, by accepting this Note, consents and agrees to the terms of the Collateral Documents (including the provisions providing for the foreclosure and release of Collateral) and the Intercreditor Agreement as the same may be in effect or may be amended from time to time in accordance with their terms and the Indenture and authorizes and directs the Trustee and the Collateral Agent to enter into the Collateral Documents and the Intercreditor Agreement, and to perform their obligations and exercise its rights thereunder in accordance therewith.
 
A-11

ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:

 
(Print or type assignee’s name, address and zip code)	

(Insert assignee’s social security or tax I.D. No.)	
 
and irrevocably appoint                      agent to transfer this Note on the books of the Company. The agent may substitute another to act for him.	
		
Date:                       	  	Your Signature:                                                                                 	
	
Signature Guarantee:                                                                                                                                                                                                	
(Signature must be guaranteed)	

Sign exactly as your name appears on the other side of this Note.	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad 15.
The undersigned hereby certifies that it ☐ is / ☐ is not an Affiliate of the Company and that, to its knowledge, the proposed transferee ☐ is / ☐ is not an Affiliate of the Company.
In connection with any transfer or exchange of any of the Notes evidenced by this certificate occurring prior to the date that is one year after the later of the date of original issuance of such Notes and the last date, if any, on which such Notes were owned by the Company or any Affiliate of the Company, the undersigned confirms that such Notes are being:
CHECK ONE BOX BELOW:

(1)	 	☐	  	acquired for the undersigned’s own account, without transfer; or	
			
(2)	 	☐	  	transferred to the Company; or	
			
(3)	 	☐	  	transferred pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended (the “ Securities Act ”); or	
 
A-12

					
(4)	 	☐	  	transferred pursuant to an effective registration statement under the Securities Act; or	
			
(5)	 	☐	  	transferred pursuant to and in compliance with Regulation S under the Securities Act; or	
			
(6)	 	☐	  	transferred to an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) or an “accredited investor” (as defined in Rule 501(a)(4) under the Securities Act), that has furnished to the Trustee a signed letter containing certain representations and agreements (the form of which letter appears as Section 2.8 or 2.10 of the Indenture, respectively); or	
			
(7)	 	☐	  	transferred pursuant to another available exemption from the registration requirements of the Securities Act of 1933, as amended.	
Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any person other than the registered Holder thereof; provided , however , that if box (5), (6) or (7) is checked, the Company may require, prior to registering any such transfer of the Notes, in its sole discretion, such legal opinions, certifications and other information as the Company may reasonably request to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933, as amended, such as the exemption provided by Rule 144 under such Act.

	 		 	 	
	 		 	Signature	
			
Signature Guarantee:	 		 		

(Signature must be guaranteed)	 		 	Signature	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad 15.
TO BE COMPLETED BY PURCHASER IF BOX (1) OR (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of
 
A-13

Rule 144A under the Securities Act of 1933, as amended, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.

 	
Dated:	
 
A-14

[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTES
The following increases or decreases in this Global Note have been made:

Date of Exchange	 	Amount of
decrease in
Principal Amount
of this Global
Note	 	Amount of
increase in
Principal Amount
of this Global
Note	 	Principal Amount
of this Global
Note following
such decrease or
increase	 	Signature of
authorized
signatory of
Trustee or Notes
Custodian	

	 		 		 		 		

	 		 		 		 		

A-15

OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Note purchased by the Company pursuant to Section 3.5 or 3.9 of the Indenture, check either box:
Section 3.5  ☐                   Section 3.9  ☐  
If you want to elect to have only part of this Note purchased by the Company pursuant to Section 3.5 or 3.9 of the Indenture, state the amount in principal amount (must be in denominations of $2,000 or an integral multiple of $1,000 in excess thereof): $         and specify the denomination or denominations (which shall not be less than the minimum authorized denomination) of the Notes to be issued to the Holder for the portion of the within Note not being repurchased (in the absence of any such specification, one such Note will be issued for the portion not being repurchased):                     .

Date:                      	 	Your Signature	  	                                                                                                                                                                                       	
	 		  	(Sign exactly as your name appears on the other side of the Note)	

Signature Guarantee:	 	 	
	 	(Signature must be guaranteed)	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad 15.
 
A-16

EXHIBIT B
Form of Supplemental Indenture to Add Guarantors
SUPPLEMENTAL INDENTURE, (this “ Supplemental Indenture ”) dated as of [            ], 20[    ], by and among the parties that are signatories hereto as Guarantors (the “ Guaranteeing Subsidiary ”), Wilmington Trust, National Association as Trustee, Wilmington Trust (London) Limited as Collateral Agent under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, each of the Company, the Guarantors, the Trustee and the Collateral Agent have heretofore executed and delivered an indenture dated as of August 10, 2017 (as amended, supplemented, waived or otherwise modified, the “ Indenture ”), providing for the issuance of an aggregate principal amount of $400,000,000 of 6.125% Senior Secured Notes due 2022 (the “ Notes ”) of the Company (as defined in the Indenture);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee and the Collateral Agent a supplemental indenture to which the Guaranteeing Subsidiary shall unconditionally guarantee, on a joint and several basis with the other Guarantors, all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture (the “ Note Guarantee ”); and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Company, the Trustee and the Collateral Agent are authorized to execute and deliver this Supplemental Indenture to amend or supplement the Indenture, without the consent of any Holder;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary, the Company, the Trustee and the Collateral Agent mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
ARTICLE I
D EFINITIONS
Section 1.1.     Defined Terms . As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recitals hereto are used herein as therein defined. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
 
B-1

ARTICLE II
A GREEMENT TO BE B OUND ; G UARANTEE
Section 2.1.     Agreement to be Bound . The Guaranteeing Subsidiary hereby becomes a party to the Indenture as a Guarantor and as such will have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Indenture.
Section 2.2.     Guarantee . The Guaranteeing Subsidiary agrees, on a joint and several basis with all the existing Guarantors, to fully, unconditionally and irrevocably Guarantee to each Holder of the Notes and the Trustee the Guaranteed Obligations pursuant to Article X of the Indenture on a senior basis.
Section 2.3.     Guarantee Limitation . The Guarantee granted herein by the Guaranteeing Subsidiary, which is incorporated in Spain, shall be deemed to have given only to the extent such Guarantee does not violate the financial assistance rules and limitations provided in articles 143 or 150 of the Spanish Capital Companies Law. Therefore, the Guarantee granted by the Guaranteeing Subsidiary shall exclude expressly any liabilities that would cause the Guaranteeing Subsidiary to breach in any way whatsoever any financial assistance prohibition.
ARTICLE III
M ISCELLANEOUS
Section 3.1.     Notices . All notices and other communications to the Guarantor shall be given as provided in the Indenture to the Guarantor, at its address set forth below, with a copy to the Company as provided in the Indenture for notices to the Company.
Section 3.2.     Merger and Consolidation . The Guaranteeing Subsidiary shall not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into another Person (other than the Company, the Company or any Restricted Subsidiary that is a Guarantor or becomes a Guarantor concurrently with the transaction) except in accordance with Section 4.1(g) of the Indenture.
Section 3.3.     Release of Guarantee . This Note Guarantee shall be released in accordance with Section 10.2 of the Indenture.
Section 3.4.     Parties . Nothing expressed or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of this Supplemental Indenture or the Indenture or any provision herein or therein contained.
Section 3.5.     Governing Law . This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
Section 3.6.     Severability . In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
 
B-2

Section 3.7.     Benefits Acknowledged . The Guaranteeing Subsidiary’s Note Guarantee is subject to the terms and conditions set forth in the Indenture. The Guaranteeing Subsidiary acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and this Supplemental Indenture and that the guarantee and waivers made by it pursuant to this Note Guarantee are knowingly made in contemplation of such benefits.
Section 3.8.     Ratification of Indenture; Supplemental Indentures Part of Indenture . Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
Section 3.9.     The Trustee and the Collateral Agent . Neither the Trustee nor the Collateral Agent makes any representation or warranty as to the validity or sufficiency of this Supplemental Indenture or with respect to the recitals contained herein, all of which recitals are made solely by the other parties hereto.
Section 3.10.     Counterparts . The parties hereto may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
Section 3.11.     Execution and Delivery . The Guaranteeing Subsidiary agrees that the Note Guarantee shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of any such Note Guarantee.
Section 3.12.     Headings . The headings of the Articles and the Sections in this Supplemental Indenture are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.

B-3

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

[SUBSIDIARY GUARANTOR],
as a Guarantor	
		
By:	 	 	
	 	Name:	
	 	Title:	
	
[ADDRESS FOR NOTICES]	

Acknowledged by:	
	
ATENTO LUXCO 1 S.A.	
		
By:	 	 	
	 	Name:	
	 	Title:	
 
[Signature Page to Supplemental Indenture]

			
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Trustee	
		
By:	 	 	
	 	Name:	
	 	Title:	
 
[Signature Page to Supplemental Indenture]

			
WILMINGTON TRUST (LONDON) LTD,
in its capacity as security agent under the Intercreditor Agreement, as Collateral Agent	
		
By:	 	 	
	 	Name:	
	 	Title:	
 
[Signature Page to Supplemental Indenture]

Exhibit 4.2
 
DATE 8 AUGUST 2017
SUPER SENIOR REVOLVING CREDIT FACILITIES AGREEMENT
relating to
MULTI-CURRENCY REVOLVING FACILITIES
provided to
ATENTO LUXCO 1 AND OTHERS
as Original Borrowers
arranged by
BBVA BANCOMER, S.A., INSTITUCIÓN DE BANCA MÚLTIPLE,
GRUPO FINANCIERO BBVA BANCOMER, GOLDMAN SACHS BANK USA
and
MORGAN STANLEY SENIOR FUNDING, INC.
as Arrangers
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.
as Agent
WILMINGTON TRUST (LONDON) LIMITED
as Security Agent
KIRKLAND & ELLIS INTERNATIONAL LLP
30 St. Mary Axe
London EC3A 8AF
Tel: +44 (0)20 7469 2000
Fax: +44 (0)20 7469 2001
www.kirkland.com

TABLE OF CONTENTS

 	 	 	  	Page	 	
1.	 	DEFINITIONS AND INTERPRETATION	  	 	1	 	
2.	 	THE FACILITY	  	 	53	 	
3.	 	PURPOSE	  	 	62	 	
4.	 	CONDITIONS OF UTILISATION	  	 	63	 	
5.	 	UTILISATION – LOANS	  	 	67	 	
6.	 	UTILISATION – LETTERS OF CREDIT	  	 	71	 	
7.	 	LETTERS OF CREDIT	  	 	80	 	
8.	 	OPTIONAL CURRENCIES	  	 	86	 	
9.	 	ANCILLARY FACILITIES	  	 	87	 	
10.	 	REPAYMENT	  	 	94	 	
11.	 	ILLEGALITY, VOLUNTARY PREPAYMENT AND CANCELLATION	  	 	96	 	
12.	 	MANDATORY PREPAYMENT	  	 	99	 	
13.	 	RESTRICTIONS	  	 	101	 	
14.	 	INTEREST	  	 	102	 	
15.	 	INTEREST PERIODS	  	 	103	 	
16.	 	CHANGES TO THE CALCULATION OF INTEREST	  	 	103	 	
17.	 	FEES	  	 	106	 	
18.	 	TAX GROSS-UP AND INDEMNITIES	  	 	109	 	
19.	 	INCREASED COSTS	  	 	120	 	
20.	 	OTHER INDEMNITIES	  	 	122	 	
21.	 	MITIGATION BY THE LENDERS	  	 	125	 	
22.	 	COSTS AND EXPENSES	  	 	126	 	
23.	 	GUARANTEE AND INDEMNITY	  	 	127	 	
24.	 	REPRESENTATIONS	  	 	134	 	
25.	 	INFORMATION UNDERTAKINGS	  	 	141	 	
26.	 	FINANCIAL COVENANT	  	 	143	 	
27.	 	GENERAL UNDERTAKINGS	  	 	148	 	
28.	 	EVENTS OF DEFAULT	  	 	155	 	
29.	 	CHANGES TO THE LENDERS	  	 	159	 	
30.	 	RESTRICTIONS ON DEBT PURCHASE TRANSACTIONS	  	 	171	 	
31.	 	CHANGES TO THE OBLIGORS	  	 	173	 	
32.	 	ROLE OF THE AGENT, THE ARRANGERS, THE ISSUING BANK AND OTHERS	  	 	176	 	
33.	 	CONDUCT OF BUSINESS BY THE FINANCE PARTIES	  	 	190	 	
34.	 	SHARING AMONG THE LENDERS	  	 	190	 	
35.	 	PAYMENT MECHANICS	  	 	192	 	
36.	 	SET-OFF	  	 	196	 	
37.	 	NOTICES	  	 	197	 	
38.	 	CALCULATIONS AND CERTIFICATES	  	 	200	 	
39.	 	PARTIAL INVALIDITY	  	 	201	 	
40.	 	REMEDIES AND WAIVERS	  	 	201	 	
41.	 	AMENDMENTS AND WAIVERS	  	 	201	 	
42.	 	CONFIDENTIALITY	  	 	217	 	
43.	 	COUNTERPARTS	  	 	221	 	
44.	 	GOVERNING LAW	  	 	221	 	

							
45.	 	ENFORCEMENT	  	 	222	 	
46.	 	EXECUTIVE PROCEEDINGS	  	 	223	 	
SCHEDULE 1 THE ORIGINAL PARTIES	  	224	 	
 	 	Part I The Original Obligors	  	224	 	
 	 	Part II The Original Lenders	  	225	 	
SCHEDULE 2 CONDITIONS PRECEDENT	  	226	 	
 	 	Part I Conditions Precedent to Initial Utilisation	  	226	 	
 	 	Part II Conditions precedent required to be delivered by an Additional Obligor	  	231	 	
SCHEDULE 3 REQUESTS AND NOTICES	  	234	 	
 	 	Part I Utilisation Request Loans	  	234	 	
 	 	Part II Utilisation Request Letters of Credit	  	236	 	
 	 	Part III Form of Ancillary Facility Request	  	238	 	
SCHEDULE 4 FORM OF TRANSFER CERTIFICATE	  	240	 	
SCHEDULE 5 FORM OF ASSIGNMENT AGREEMENT	  	244	 	
SCHEDULE 6 FORM OF ACCESSION DEED	  	248	 	
SCHEDULE 7 FORM OF RESIGNATION LETTER	  	251	 	
SCHEDULE 8 FORM OF ISSUING BANK ACCESSION AGREEMENT	  	252	 	
SCHEDULE 9 TIMETABLES	  	255	 	
 	 	Part I Loans	  	255	 	
 	 	Part II Letters of Credit	  	256	 	
SCHEDULE 10 FORM OF LETTER OF CREDIT	  	257	 	
SCHEDULE 11 MATERIAL COMPANIES	  	261	 	
SCHEDULE 12 AGREED SECURITY PRINCIPLES	  	262	 	
SCHEDULE 13 FORM OF INCREASE CONFIRMATION	  	270	 	
SCHEDULE 14 INFORMATION UNDERTAKINGS	  	274	 	
SCHEDULE 15 GENERAL UNDERTAKINGS	  	277	 	
SCHEDULE 16 EVENTS OF DEFAULT	  	312	 	
SCHEDULE 17 NEW YORK LAW DEFINITIONS	  	316	 	
SCHEDULE 18 FORM OF COMPLIANCE CERTIFICATE	  	370	 	
SCHEDULE 19 ADDITIONAL FACILITY	  	372	 	
 	 	Part I Form of Additional Facility Lender Accession Notice	  	372	 	
 	 	Part II Form of Additional Facility Notice for Additional Facility	  	376	 	
SCHEDULE 20 FORM OF AFFILIATE DESIGNATION NOTICE	  	379	 	

Date              2017
PARTIES
 
(1)	ATENTO LUXCO 1 , a public limited liability company ( soci é t é anonyme ) incorporated and existing under the laws of the Grand Duchy of Luxembourg, with its registered office at 4 rue Lou Hemmer, L-1748 Luxembourg-Findel, registered with the Luxembourg Register of Commerce and Companies ( R.C.S. Luxembourg ) under number B170329 (the “ Company ”);	
 
(2)	THE ENTITIES listed in Part I of Schedule 1 ( The Original Parties ) as original borrowers (the “ Original Borrowers ”);	
 
(3)	THE ENTITIES listed in Part I of Schedule 1 ( The Original Parties as original guarantors (the “ Original Guarantors ”);	
 
(4)	BBVA BANCOMER, S.A., INSTITUCI Ó N DE BANCA M Ú LTIPLE, GRUPO FINANCIERO BBVA BANCOMER, GOLDMAN SACHS BANK USA and MORGAN STANLEY SENIOR FUNDING, INC. as mandated lead arrangers (whether acting individually the “ Arranger ” or together, the “ Arrangers ”);	
 
(5)	THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 ( The Original Parties ) as original lenders (the “ Original Lenders ”);	
 
(6)	BBVA BANCOMER, S.A., INSTITUCI Ó N DE BANCA M Ú LTIPLE, GRUPO FINANCIERO BBVA BANCOMER as the original issuing bank (the “ Original Issuing Bank ”);	
 
(7)	BANCO BILBAO VIZCAYA ARGENTARIA, S.A. as agent of the other Finance Parties (the “ Agent ”); and	
 
(8)	WILMINGTON TRUST (LONDON) LIMITED as security agent and trustee of the other Secured Parties (the “ Security Agent ”).	
IT IS AGREED as follows:
 
1.	DEFINITIONS AND INTERPRETATION	
 
1.1	Definitions	
In this Agreement:
“ Acceptable Bank ” means:
 
 	(a)	a bank or financial institution which is rated at least BBB- by S&P or Fitch or at least Baa3 by Moody’s or a comparable rating from an internationally recognized credit rating agency;	
 
 	(b)	any Finance Party or any Affiliate of a Finance Party; or	
 
 	(c)	any other bank or financial institution approved by the Agent (acting reasonably).	
 
1

“ Accession Date ” means, in relation to an accession of an Additional Facility Lender to this Agreement as a Lender and an Issuing Bank to this Agreement in such capacity, the later of:
 
 	(a)	the proposed accession date specified in the applicable Additional Facility Lender Accession Notice or the Issuing Bank Accession Agreement; and	
 
 	(b)	the date on which the Agent executes the relevant Additional Facility Lender Accession Notice or the Issuing Bank Accession Agreement.	
“ Accession Deed ” means a document substantially in the form set out in Schedule 6 ( Form of Accession Deed ) or any other form agreed by the Agent and the Company (in each case acting reasonably).
“ Additional Borrower ” means a person which becomes a Borrower in accordance with Clause 31 ( Changes to the Obligors ).
“ Additional Facility ” means one or more additional facilities made available pursuant to Clause 2.2 ( Additional Facility ) which are documented under this Agreement including as new or existing facility commitment(s) and/or as an additional tranche or class of, or an increase of, or an extension of, any existing Facility or a previously incurred Additional Facility.
“ Additional Facility Borrower ” means:
 
 	(a)	an Original Borrower;	
 
 	(b)	any member of the Group which is specified as a borrower under an Additional Facility in the applicable Additional Facility Notice and which is a Borrower under this Agreement or will accede as an Additional Borrower in accordance with Clause 31 ( Changes to the Obligors ); or	
 
 	(c)	any member of the Group which accedes as an Additional Borrower under the relevant Additional Facility in accordance with Clause 31 ( Changes to the Obligors ),	
unless in each case, it has ceased to be a Borrower in accordance with Clause 31 ( Changes to the Obligors ).
“ Additional Facility Commencement Date ” means, in respect of an Additional Facility, the date specified as the Additional Facility Commencement Date (being the date when the relevant Additional Facility is available for utilisation) in the relevant Additional Facility Notice relating to that Additional Facility.
“ Additional Facility Commitment ” means:
 
 	(a)	in relation to an Additional Facility Lender, the Base Currency Amount of the amount set out in each Additional Facility Notice signed by that Additional Facility Lender and the amount of any other Additional Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 ( Additional Facility ) or Clause 2.3 ( Increase ); and	
 
2

 	(b)	in relation to any other Lender, the Base Currency Amount of the amount of any Additional Facility Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 ( Additional Facility ) or Clause 2.3 ( Increase ),	
to the extent not cancelled, reduced or transferred by it under this Agreement.
“ Additional Facility Lender ” means any Lender or other bank, trust, financial institution, fund, entity or other person which signs an Additional Facility Notice and confirms its willingness to provide all or a part of an Additional Facility.
“ Additional Facility Lender Accession Notice ” means a notice substantially in the form set out in Part I of Schedule 19 ( Additional Facility ) or any other form agreed between the Agent and the Company (each acting reasonably).
“ Additional Facility Loan ” means a loan made or to be made under any Additional Facility or the principal amount outstanding for the time being of that loan (including any amount which is outstanding prior to the Additional Facility Commencement Date).
“ Additional Facility Notice ” means, in respect of an Additional Facility, a notice substantially in the form set out in Part II of Schedule 19 ( Additional Facility ) (or any other form agreed between the Agent and the Company (each acting reasonably)) delivered by the Company to the Agent in accordance with Clause 2.2 ( Additional Facility ).
“ Additional Facility Utilisation ” means an Additional Facility Loan or a Letter of Credit issued or to be issued under an Additional Facility.
“ Additional Guarantor ” means a person which becomes a Guarantor in accordance with Clause 31 ( Changes to the Obligors ).
“ Additional Notes ” means any additional notes issued from time to time under the Indenture.
“ Additional Obligor ” means an Additional Borrower or an Additional Guarantor.
“ Affiliate ” means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.
“ Affiliate Designation Notice ” means a notice substantially in the form set out in Schedule 20 ( Form of Affiliate Designation Notice ) or any other form agreed between the Agent and the Company (each acting reasonably).
“ Agent ’ s Spot Rate of Exchange ” means the Agent’s spot rate of exchange for the purchase of the relevant currency with the Base Currency in Madrid or other relevant foreign exchange market at or about 11:00 a.m. local time on a particular day.
“ Agreed Certain Funds Obligor ” means the Company and any member of the Group designated as an “Agreed Certain Funds Obligor” by the Company and the Lenders under the relevant Facility who have agreed to provide an Agreed Certain Funds Utilisation in accordance with the provisions of Clause 4.5 ( Utilisations of Facility/Additional Facility during the Agreed Certain Funds Period ).
 
3

“ Agreed Certain Funds Period ” means:
 
 	(a)	in respect of any Original Facility which all of the relevant Lenders providing such Original Facility have agreed shall be provided on a “certain funds basis” in accordance with the provisions of Clause 4.5 ( Utilisations of Facility/Additional Facility during the Agreed Certain Funds Period ), the period specified in a notice delivered by the Company and the relevant Lenders providing such Original Facility to the Agent; and	
 
 	(b)	in respect of an Additional Facility which all of the Additional Facility Lenders providing such Additional Facility have agreed shall be provided on a “certain funds basis” in accordance with the provisions of Clause 4.5 ( Utilisations of Facility/Additional Facility during the Agreed Certain Funds Period ), the period specified in the relevant Additional Facility Notice.	
“ Agreed Certain Funds Utilisation ” means:
 
 	(a)	in respect of any Original Facility which all of the relevant Lenders providing such Original Facility have agreed shall be provided on a “ certain funds basis ” in accordance with the provisions of Clause 4.5 ( Utilisations of Facility/Additional Facility during the Agreed Certain Funds Period ), a Utilisation made or to be made under the relevant Original Facility during the Agreed Certain Funds Period solely for any of the purposes agreed with the relevant Lenders providing such Original Facility; and	
 
 	(b)	in respect of an Additional Facility which all of the Additional Facility Lenders providing such Additional Facility have agreed shall be provided on a “ certain funds basis ” in accordance with the provisions of Clause 4.5 ( Utilisations of Facility/Additional Facility during the Agreed Certain Funds Period ), a Utilisation made or to be made under such Additional Facility during the Agreed Certain Funds Period solely for any of the purposes agreed with the relevant Additional Facility Lenders providing such Additional Facility.	
“ Agreed Security Principles ” means the security principles set out in Schedule 12 ( Agreed Security Principles ).
“ Alternate Rate ” means:
 
 	(a)	the rate for the Certificados de la Tesorería de la Federación for a term of twenty eight (28) or ninety one (91) days published by Banco de México on its official web site (www.banxico.org.mx) (the “ Cetes Rate ”) plus the difference between the Cetes Rate and TIIE determined immediately prior to the date on which TIIE ceases to be published (if such TIIE is higher); or	
 
 	(b)	in the event Banco de México does not publish a substitute rate for TIIE or the Cetes Rate, the Costo de Captación a Plazo de Pasivos en Moneda Nacional published by Banco de México on its official web site (www.banxico.org.mx)	
 
4

 	(the “CCP Rate”) plus the difference between the CCP Rate and the TIIE determined immediately prior to the date in which the TIIE ceases to be published (if such TIIE is higher).	
In the event Banco de México does not publish or ceases to publish, as the case may be, (at the same time) TIIE, the Cetes Rate and the CCP Rate, the Agent (on behalf of the Lenders) shall enter into negotiations (for a period of not more than thirty (30) days) with the Company, in writing and in good faith, to agree an alternative applicable Alternate Rate, provided that :
 
 	(i)	as of the date on which TIIE, the Cetes Rate and the CCP Rate cease to be published, as the case may be, and until such date on which any of such rates or an alternate rate for any of such rates is published or republished, or the Agent and the Company agree on an alternate interest rate, the Alternate Rate shall be the interest rate that was applied to the Interest Period immediately preceding the date on which any of such rates or an alternate rate for any such rates ceased to be published;	
 
 	(ii)	in the event none of such rates (nor an alternate rate for any of such rates) is published during a period of thirty (30) days or more, and the Company and the Agent have not agreed on an alternate interest rate, the applicable interest rate shall be the average of the rates per annum offered by the Reference Banks to banks for inter-bank loans for periods similar to the relevant Interest Period on the first day of the relevant Interest Period or if such day is not a Business Day on the immediately preceding Business Day, which the Agent shall obtain and notify in writing to the Company on the first day of each Interest Period;	
 
 	(iii)	any interest rate determined pursuant to subparagraphs (i) and (ii) above shall cease to apply as soon as Banco de México publishes or republishes TIIE, the Cetes Rate or the CCP Rate (or any alternate for any of such rates); and	
 
 	(iv)	in the event the TIIE Rate, Cetes Rate or CCP Rate, shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.	
“ Ancillary Commencement Date ” means, in relation to an Ancillary Facility, the date on which that Ancillary Facility is first made available, which date shall be a Business Day within the Availability Period for the relevant Facility.
“ Ancillary Commitment ” means, in relation to an Ancillary Lender and an Ancillary Facility, the maximum Base Currency Amount which that Ancillary Lender has agreed (whether or not subject to satisfaction of conditions precedent) to make available from time to time under an Ancillary Facility and which has been authorised as such under Clause 9 ( Ancillary Facilities ), in each case as notified by the Ancillary Lender to the Agent pursuant to Clause 9.2 ( Availability ) to the extent that amount is not cancelled or reduced under this Agreement or the Ancillary Documents relating to that Ancillary Facility and does not exceed that Ancillary Lender’s Commitment.
 
5

“ Ancillary Document ” means each document relating to or evidencing the terms of an Ancillary Facility.
“ Ancillary Facility ” means any ancillary facility made available by an Ancillary Lender in accordance with Clause 9 ( Ancillary Facilities ).
“ Ancillary Facility Request ” means a notice substantially in the form set out in Part III of Schedule 3 ( Requests and Notices ) or any other form agreed by the Agent and the Company (in each case acting reasonably).
“ Ancillary Lender ” means each Lender (or Affiliate of a Lender) which makes available an Ancillary Facility in accordance with Clause 9 ( Ancillary Facilities ).
“ Ancillary Outstandings ” means, at any time, in relation to an Ancillary Lender and an Ancillary Facility then in force the aggregate of the equivalents (as calculated by that Ancillary Lender) in the Base Currency of the following amounts outstanding under that Ancillary Facility:
 
 	(a)	the principal amount under each overdraft facility and on demand short term loan facility (provided that, for the purposes of this definition, any amount of any outstanding utilisation under any BACS facility, other intra-day exposure facilities (or similar) made available by an Ancillary Lender shall be excluded, unless, in relation to that Ancillary Facility, otherwise agreed between the Company and the relevant Ancillary Lender);	
 
 	(b)	the principal amount of each guarantee, bond and letter of credit under that Ancillary Facility; and	
 
 	(c)	the amount fairly representing the aggregate exposure or equivalent outstanding (excluding interest and similar charges) of that Ancillary Lender under each other type of accommodation provided under that Ancillary Facility,	
in each case net of any credit balances on any account of any Borrower of an Ancillary Facility with the Ancillary Lender making available that Ancillary Facility to the extent that the credit balances are freely available to be set off by that Ancillary Lender against liabilities owed to it by that Borrower under that Ancillary Facility and in each case as determined by such Ancillary Lender, acting reasonably and in accordance with the relevant Ancillary Document, or (if not provided for in the relevant Ancillary Document), after consultation with the relevant Borrower, in accordance with its normal banking practice and in accordance with the relevant Ancillary Document.
For the purposes of this definition:
 
 	(i)	in relation to any Utilisation denominated in the Base Currency, the amount of that Utilisation (determined as described in paragraphs (a) to (c) above) shall be used; and	
 
 	(ii)	in relation to any Utilisation not denominated in the Base Currency, the equivalent (calculated as specified in the relevant Ancillary Document or, if not so specified, as the relevant Ancillary Lender may specify, in	
 
6

 	each case in accordance with its usual practice at that time for calculating that equivalent in the Base Currency (acting reasonably)) of the amount of that Utilisation (determined as described in paragraphs (a) to (c) above) shall be used.	
“ Annual Accounting Date ” means the annual financial year-end of the Company.
“ Annual Financial Statements ” means the annual audited financial statements for a Financial Year delivered pursuant to paragraph (a) of Section 1 of Schedule 14 ( Information Undertakings ) in accordance with the provisions of Clause 25.1 ( Information Undertakings ).
“ Anti-Corruption Laws ” means all laws of any jurisdiction applicable to an Obligor from time to time prohibiting bribery or corruption, including, but not limited to, the Bribery Act 2010, the United States Foreign Corrupt Practices Act of 1977 or other similar legislation in other jurisdictions.
“ Approved Jurisdiction ” means:
 
 	(a)	in relation to each Original Facility, Luxembourg, Spain, Mexico and any other jurisdiction approved by the Agent (acting on the instructions of all of the Lenders participating in that Original Facility (each acting reasonably)) and the Company; and	
 
 	(b)	in relation to an Additional Facility, Luxembourg, Spain, Mexico and any jurisdiction set out in the applicable Additional Facility Notice for that Additional Facility and any other jurisdiction approved by the Agent (acting on the instructions of all of the Lenders participating in the Additional Facility (each acting reasonably)) and the Company.	
“ Approved List ” means the list of lenders and potential lenders agreed by the Company and Arrangers before the Closing Date and held by the Agent (as the same may be amended from time to time pursuant to Clause 29.2 ( Conditions of assignment, transfer or sub-participation )).
“ Assignment Agreement ” means an agreement substantially in the form set out in Schedule 5 ( Form of Assignment Agreement ) or any other form agreed between the relevant assignor and assignee and the Company, provided that if that other form does not contain the undertaking set out in the form set out in Schedule 5 ( Form of Assignment Agreement ) it shall not be a Creditor/Creditor Representative Accession Undertaking as defined in, and for the purposes of, the Intercreditor Agreement.
“ Auditors ” means any firm of independent accountants appointed by the Company as its auditors from time to time.
“ Authorisation ” means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration in each case required by any applicable law or regulation.
 
7

“ Availability Period ” means:
 
 	(a)	in relation to each Original Facility, the period from (and including) the Closing Date to (and including) the date falling one (1) Month prior to the Termination Date applicable to that Original Facility; and	
 
 	(b)	in relation to any Additional Facility, the period specified in the Attached Facility Notice delivered by the Company in accordance with Clause 2.2 ( Additional Facility ) for that Additional Facility.	
“ Available Ancillary Commitment ” means, in relation to an Ancillary Facility, an Ancillary Lender’s Ancillary Commitment (which, in the case of a multi-account overdraft, for the purpose of this definition, shall be the Designated Net Amount, unless, in relation to any Ancillary Commitment, otherwise agreed between the Company and the relevant Ancillary Lender) less the Ancillary Outstandings in relation to that Ancillary Facility.
“ Available Commitment ” means, in relation to a Facility, a Lender’s Commitment under that Facility minus (subject to Clause 9.8 ( Affiliates of Lenders as Ancillary Lenders ) and as set out below):
 
 	(a)	the Base Currency Amount of its participation in any outstanding Utilisations (including Letters of Credit and L/C Loans) and the Base Currency Amount of the aggregate of its (and its Affiliates) Ancillary Commitments under that Facility; and	
 
 	(b)	in relation to any proposed Utilisation, the Base Currency Amount of its participation in any other Utilisations that are due to be made under that Facility on or before the proposed Utilisation Date and the Base Currency Amount of its (and its Affiliates’) Ancillary Commitment (which, in the case of a Multi-Account Overdraft, for the purposes of this definition, shall be the Designated Net Amount) in relation to any new Ancillary Facility that is due to be made available on or before the proposed Utilisation Date,	
provided that for the purposes of calculating a Lender’s Available Commitment in relation to any proposed Utilisation under a Facility only, the following amounts shall not be deducted from a Lender’s Commitment under that Facility:
 
 	(i)	that Lender’s (or its Affiliate’s) participation in any Utilisations under that Facility that are due to be repaid or prepaid on or before the proposed Utilisation Date; and	
 
 	(ii)	that Lender’s (or its Affiliate’s) Ancillary Commitments to the extent that they are due to be reduced or cancelled on or before the proposed Utilisation Date.	
“ Available Facility ” means, in relation to a Facility, the aggregate for the time being of each Lender’s Available Commitment in respect of that Facility.
“ Bank Levy ” means any amount payable by any Finance Party or any of its Affiliates on the basis of, or in relation to, its balance sheet or capital base or any part of it or its liabilities or minimum regulatory capital or any combination thereof (including the UK bank levy as set out in the Finance Act 2011 (as amended), the French taxe
 
8

bancaire de risque syst é mique as set out in Article 235 ter ZE of the French Code G é n é ral des imp ô ts , the German bank levy as set out in the German Restructuring Fund Act 2010 ( Restrukturierungsfondsgesetz ) (as amended), the Dutch bankenbelasting as set out in the bank levy act ( Wet bankenbelasting ), the Swedish bank levy as set out in the Swedish Act on State Support to Credit Institutions (Sw. lag (2008:814) lag om statligt st ö d till kreditinstitut ), the Spanish bank levy ( Impuesto sobre los Dep ó sitos en las Entidades de Cr é dito ) as set out in the Law 16/2012 of 27 December 2012) and any other levy or tax in any jurisdiction levied on a similar basis or for a similar purpose or any financial activities taxes (or other taxes) of a kind contemplated in the European Commission consultation paper on financial sector taxation dated 22 February 2011 which has been enacted or which has been formally announced as proposed as at the date of this Agreement.
“ Bank Surcharge ” means United Kingdom corporation tax charged on a banking company pursuant to legislation enacted as set out in clause 17 of and schedule 3 to the Finance (No. 2) Act 2015 and any other surcharge or tax of a similar nature implemented in any other jurisdiction.
“ Base Case Model ” means the financial model in agreed form relating to the Group delivered to the Agent pursuant to Clause 4.1 ( Initial conditions precedent ).
“ Base Currency ” means:
 
 	(a)	in relation to each Original Facility or in relation to any amount where paragraph (b) below is not applicable, US Dollars; and	
 
 	(b)	in relation to any Additional Facility, as agreed between the Company and the applicable Additional Facility Lenders as set out in the relevant Additional Facility Notice.	
“ Base Currency Amount ” means:
 
 	(a)	in relation to a Utilisation, the amount specified in the Utilisation Request delivered by a Borrower for that Utilisation (or, if the amount requested is not denominated in the Base Currency, that amount converted into the Base Currency at the Agent’s Spot Rate of Exchange on the date which is three (3) Business Days before the Utilisation Date or, if later, on the date the Agent receives the Utilisation Request in accordance with the terms of this Agreement and, in the case of a Letter of Credit, subject to the operation of Clause 6.8 ( Revaluation of Letters of Credit ) at six-monthly intervals);	
 
 	(b)	in relation to an Ancillary Commitment, the amount specified as such in the notice delivered to the Agent by the Company pursuant to Clause 9.2 ( Availability ) (or, if the amount specified is not denominated in the Base Currency, that amount converted into the Base Currency at the Agent’s Spot Rate of Exchange on the date which is three (3) Business Days before the Ancillary Commencement Date for that Ancillary Facility or, if later, the date the Agent receives the notice of the Ancillary Commitment in accordance with the terms of this Agreement); and	
 
9

 	(c)	in relation to an Additional Facility Commitment, the amount specified as such in the Additional Facility Notice delivered to the Agent by the Company pursuant to Clause 2.2 ( Additional Facility ) (or, if the amount specified is not denominated in the Base Currency, that amount of the Additional Facility converted into the Base Currency at the Agent’s Spot Rate of Exchange on the date which is three (3) Business Days before the Additional Facility Commencement Date for that Additional Facility or, if later, the date the Agent receives the notice of the Additional Facility in accordance with the terms of this Agreement),	
as adjusted to reflect any repayment, prepayment, consolidation or division of a Utilisation, or (as the case may be) cancellation or reduction of an Ancillary Facility.
“ Borrower ” means:
 
 	(a)	in the case of each Original Facility, an Original Facility Borrower under the relevant Original Facility; and	
 
 	(b)	in the case of an Additional Facility, an Additional Facility Borrower.	
“ Brazil ” means the Federative Republic of Brazil.
“ Brazilian Bankruptcy Law ” means Law No. 11,101, of February 9, 2005, as amended.
“ Brazilian Civil Code ” means Brazilian law No. 10,406 of 10 January 2002.
“ Brazilian Civil Procedure Code ” means Brazilian law No. 13,105 of 16 March 2015.
“ Brazilian Debentures ” means the debentures issued by Atento Brasil S.A. in 2012 and due 2019.
“ Brazilian Guarantor ” means a Guarantor incorporated under the laws of Brazil.
“ Brazilian Obligor ” means an Obligor incorporated in Brazil.
“ Break Costs ” means the amount (if any) by which:
 
 	(a)	the interest (excluding the Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;	
exceeds:
 
 	(b)	the amount which that Lender would be able to obtain by placing an amount equal to the principal amount of that Loan or Unpaid Sum received by it on deposit with a leading bank or, in relation to any Mexican Lender, a Mexican Leading Bank, in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.	
 
10

“ Business Day ” means a day (other than a Saturday or Sunday) on which banks are open for general business in Madrid, Mexico City, London, Luxembourg and New York, and:
 
 	(a)	(in relation to any date for payment or purchase of euro) any TARGET day; and	
 
 	(b)	(in relation to any date for payment or purchase of a currency other than euro) the principal financial centre of the country of that currency.	
“ Capitalized Lease Obligations ” has the meaning given to that term in Schedule 17 ( New York Law Definitions ).
“ Cash Equivalents ” has the meaning given to that term in Schedule 17 ( New York Law Definitions ).
“ Centre of Main Interests ” means the “centre of main interests” as such term is used in Article 3(1) of the Regulation.
“ Change of Control ” has the meaning given to that term in Schedule 17 ( New York Law Definitions ).
“ Charged Property ” means all of the assets of the Obligors and the Parent which from time to time are, or are expressed to be, the subject of the Transaction Security.
“ Clean-Up Default ” means an Event of Default other than an Event of Default referred to in paragraphs (a), (d) or (e) of Section 1 of Schedule 16 ( Events of Default ) as it relates to non-payment/insolvency.
“ Clean-Up Representation ” means any of the representations and warranties made under Clause 24 ( Representations ).
“ Clean-Up Undertaking ” means any of the undertakings specified in Clause 25 ( Information Undertakings ) to Clause 27 ( General Undertakings ).
“ Closing Date ” means the date on which the Notes (other than any Additionl Notes) are issued.
“ Code ” means the US Internal Revenue Code of 1986.
“ Commitment ” means an Original Facility Commitment or an Additional Facility Commitment.
“ Company Permitted Debt ” has the meaning given to that term in Schedule 15 ( General Undertakings ).
“ Compliance Certificate ” means a certificate substantially in the form set out in Schedule 18 ( Form of Compliance Certificate ) or such other form as agreed by the Agent and the Company.
 
11

“ Confidential Information ” means all information relating to the Company, any Obligor, the Group, the Initial Investors, the businesses and activities of any of the foregoing entities, the Finance Documents, the Transaction Documents, or a Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or a Facility from either:
 
 	(a)	the Initial Investors, the Company, any member of the Group, any Investor Affiliate or any of their respective advisers; or	
 
 	(b)	another Finance Party, if the information was obtained by that Finance Party directly or indirectly from the Company, any member of the Group, any Investor Affiliate or any of its advisers,	
in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes information that:
 
 	(i)	is or becomes public information other than as a direct or indirect result of any breach by that Finance Party or any of its Affiliates of Clause 42 ( Confidentiality );	
 
 	(ii)	is identified in writing at the time of delivery as non-confidential by the Company, any member of the Group, any Investor Affiliate or any of its advisers; or	
 
 	(iii)	is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Company or the Group, any Investor Affiliate and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.	
“ Confidentiality Undertaking ” means a confidentiality undertaking substantially in a recommended form of the LMA on the date of this Agreement or in any other form agreed between the Company and the Agent which, in each case, is addressed to, or capable of being relied upon by, the Company without requiring its signature by virtue of reliance on the Third Parties Act and is not capable of being materially amended without the Company’s prior written consent.
“ Consolidated EBITDA ” has the meaning given to that term in Clause 26.1 ( Financial definitions ).
“ Consolidated First Lien Secured Leverage Ratio ” has the meaning given to that term in Schedule 17 ( New York Law Definitions ) calculated with an adjustment to the calculation of Consolidated First Lien Secured Leverage Ratio so that the aggregate amount of all cash and Cash Equivalents held by any member of the Group which can be freely applied to discharge the obligations of members of the Group with respect to
 
12

any Indebtedness incurred shall be deducted from the aggregate outstanding Indebtedness of the Group for the purposes of determining the Consolidated First Lien Secured Leverage Ratio.
“ Consolidated Net Leverage ” has the meaning given to that term in Schedule 17 ( New York Law Definitions ).
“ Covered Jurisdictions ” has the meaning given to that term in paragraph 1(b) of Schedule 12 ( Agreed Security Principles )
“ Credit Facilities Basket ” means the basket available for incurring Indebtedness under and in accordance with the provisions of paragraph (b)(i) of Section 1 of Schedule 15 ( General Undertakings ).
“ Cure Amount ” has the meaning given to that term in paragraph (a) of Clause 26.4 ( Equity Cure )
“ Debt Purchase Transaction ” means, in relation to a person, a transaction where such person:
 
 	(a)	purchases by way of assignment or transfer;	
 
 	(b)	enters into any sub-participation in respect of; or	
 
 	(c)	enters into any other agreement or arrangement having an economic effect substantially similar to a sub-participation in respect of,	
any Commitment or amount outstanding under this Agreement.
“ Declared Default ” means an Event of Default has occurred and is continuing and in respect of which the Agent has served a notice on the Company in accordance with the provisions of Clause 28.6 ( Acceleration ) for the immediate repayment and cancellation of all or any part of a Facility (and the notice in relation to such demand for immediate repayment has not been withdrawn, cancelled or otherwise ceased to have effect).
“ Default ” means an Event of Default or any event or circumstance specified in Clause 28 ( Events of Default ) including those listed in Schedule 16 ( Events of Default ) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default, provided that for the avoidance of doubt any such event or circumstance which requires any determination as to materiality to be made before it may become an Event of Default shall not be a Default until such determination is made.
“ Defaulting Lender ” means any Lender (other than a Lender which is an Investor Affiliate):
 
 	(a)	which has failed to make its participation in a Loan available or has notified the Agent or the Company that it will not make its participation in a Loan available by the Utilisation Date of that Loan in accordance with Clause 5.4 ( Lenders ’ participation ), other than as a result of the occurrence and	
 
13

 	continuance of an Event of Default or the failure by the Borrower to satisfy any conditions precedent for the relevant Utilisation (that have not been waived), or has failed to provide cash collateral (or has notified the relevant Issuing Bank that it will not provide cash collateral) in accordance with Clause 7.4 ( Cash collateral by Non-Acceptable L/C Lender );	
 
 	(b)	which has otherwise rescinded or repudiated a Finance Document other than as a direct result of a breach of any of the terms of a Finance Document by any Obligor or as mandated by law; or	
 
 	(c)	with respect to which an Insolvency Event has occurred and is continuing,	
unless, in the case of paragraph (a) above:
 
 	(i)	its failure to pay is caused by administrative or technical error or a Disruption Event and payment is made within five (5) Business Days of its due date; or	
 
 	(ii)	the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.	
“ Designated Gross Amount ” has the meaning given to that term in paragraph (b)(i)(E) of Clause 9.2 ( Availability ).
“ Designated Net Amount ” has the meaning given to that term in paragraph (b)(i)(E) of Clause 9.2 ( Availability ).
“ Disruption Event ” means either or both of:
 
 	(a)	a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facilities (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or	
 
 	(b)	the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:	
 
 	(i)	from performing its payment obligations under the Finance Documents; or	
 
 	(ii)	from communicating with other Parties in accordance with the terms of the Finance Documents,	
and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.
“ Draw Stop Threshold ” has the meaning given to that term in the definition of Financial Covenant Draw Stop Event.
 
14

“ EURIBOR ” means, in relation to any Loan in euro:
 
 	(a)	the applicable Screen Rate; or	
 
 	(b)	(if no Screen Rate is available for the Interest Period of that Loan) the Reference Bank Rate,	
as of the Specified Time on the Quotation Day for euro and for a period comparable to the Interest Period of that Loan and, if that rate is less than zero, EURIBOR shall be deemed to be zero.
“ Event of Default ” means any event or circumstance specified as such in Clause 28 ( Events of Default ) and Schedule 16 ( Events of Default ).
“ Excluded Swap Obligation ” has the meaning given to that term in the Intercreditor Agreement.
“ Exclusion Date ” has the meaning given to that term in Clause 41.6 ( Non-Responding Lender ( “ Snooze you lose ” ) ).
“ Existing Debt ” means certain outstanding indebtedness of the Group existing immediately prior to the Closing Date under certain existing debt financings, notes and hedging agreements which are to be refinanced and terminated pursuant to the Transaction.
“ Existing Lender ” has the meaning given to that term in Clause 29.1 ( Assignments and transfers by the Lenders ).
“ Existing Security Documents ” means the following security documents existing immediately prior to the Closing Date for the benefit of the creditors of certain of the Group’s Existing Debt:
 
 	(a)	each share pledge entered into by the chargor named therein in favour of Citibank, N.A. London Branch as collateral agent for itself and on behalf of certain secured parties, over the shares in each member of the Group listed in Schedule 11 ( Material Companies );	
 
 	(b)	the Mexican law bank account pledge dated 29 April 2013, entered into by, inter alios, Atento México Holdco, S. de R.L. de C.V. (previously known as Atento Mexicana, S.A. de C.V.) in favour of Citibank, N.A. London Branch as collateral agent for itself and on behalf of certain secured parties, with respect to its bank accounts set out therein;	
 
 	(c)	the Mexican law bank account pledge dated 29 April 2013, entered into by, inter alios, Atento Servicios, S.A. de C.V. in favour of Citibank, N.A. London Branch as collateral agent for itself and on behalf of certain secured parties, with respect to its bank accounts set out therein; and	
 
 	(d)	the Spanish law bank account pledge dated 29 April 2013, entered into by, inter alios, Atento Teleservicios España, S.A.U. in favour of Citibank, N.A. London Branch as collateral agent for itself and on behalf of certain secured parties, with respect to its bank accounts set out therein.	
 
15

“ Expiry Date ” means, for a Letter of Credit, the last day of its Term.
“ Facility ” means each Original Facility or an Additional Facility.
“ Facility Office ” means the office or offices notified by a Finance Party to the Agent in writing on or before the date it becomes a Finance Party (or, following that date, by not less than five (5) Business Days written notice) as the office or offices through which it will perform its obligations under this Agreement.
“ FATCA ” means:
 
 	(a)	sections 1471 to 1474 of the Code or any associated regulations;	
 
 	(b)	any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or	
 
 	(c)	any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.	
“ FATCA Application Date ” means:
 
 	(a)	in relation to a “ withholdable payment ” described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;	
 
 	(b)	in relation to a “ withholdable payment ” described in section 1473(1)(A)(ii) of the Code (which relates to “gross proceeds” from the disposition of property of a type that can produce interest from sources within the US), 1 January 2019; or	
 
 	(c)	in relation to a “ passthru payment ” described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2019,	
or, in each case, such other date from which such payment may become subject to a deduction or withholding required by FATCA as a result of any change in FATCA after the date of this Agreement.
“ FATCA Deduction ” means a deduction or withholding from a payment under a Finance Document required by FATCA.
“ FATCA Exempt Party ” means a Party that is entitled to receive payments free from any FATCA Deduction.
“ Fee Letter ” means:
 
 	(a)	the fee letter dated 20 July 2017 between the Arrangers and the Company (as amended from time to time);	
 
16

 	(b)	any letter or letters entered into by reference to this Agreement between one or more Finance Parties and a member of the Group setting out the fees payable in relation to the Facility including, without limitation, any of the fees referred to in Clause 2.2 ( Additional Facility ), Clause 2.3 ( Increase ) or Clause 17 ( Fees ); and	
 
 	(c)	any agreement setting out fees payable to a Finance Party referred to in paragraph (o) of Clause 2.2 ( Additional Facility ), paragraph (e) of Clause 2.3 ( Increase ), Clause 17.3 ( Agency and Security Agent fee ) or Clause 17.5 ( Interest, commission and fees on Ancillary Facilities ) of this Agreement or under or in relation to any other Finance Document.	
“ Finance Document ” means this Agreement, any Accession Deed, any Ancillary Document, any Fee Letter, any Intercreditor Accession Deed, the Intercreditor Agreement, any Compliance Certificate, any Resignation Letter, any Transaction Security Document, any Utilisation Request, each Additional Facility Notice and Additional Facility Lender Accession Notice, each Increase Confirmation and any other document designated as a “ Finance Document ” by the Agent and the Company.
“ Finance Party ” means the Agent, the Arrangers, the Security Agent, a Lender, any Issuing Bank or any Ancillary Lender.
“ Financial Covenant Draw Stop Event ” has occurred if the Company has delivered a Compliance Certificate demonstrating that the Drawn Super Senior Leverage Ratio set out in paragraph (a) of Clause 26.2 ( Financial Condition - Drawn Super Senior Leverage Ratio ) (the “ Draw Stop Threshold ”) has been exceeded and shall continue until the Company has delivered a Compliance Certificate for a subsequent Test Date demonstrating that the Drawn Super Senior Leverage Ratio is below the Draw Stop Threshold.
“ Financial Quarter ” means each period of three (3) Months ending on or about the last day of each Quarter Date.
“ Financial Statements ” means the Annual Financial Statements or Quarterly Financial Statements.
“ Financial Year ” means the annual accounting period of the Group ending on or about 31 December in each year.
“ Fitch ” has the meaning given to that term in Schedule 17 ( New York Law Definitions ).
“ Fixed Charge Coverage Ratio ” has the meaning given to that term in Schedule 17 ( New York Law Definitions ).
“ Funds Flow Statement ” means a funds flow statement delivered to the Agent under Clause 4.1 ( Initial conditions precedent ).
“ Group ” means the Company and each of its Restricted Subsidiaries from time to time.
 
17

“ Guarantor ” means;
 
 	(a)	for the purposes of Clauses 1.10 ( Luxembourg Terms ), 2.5 ( Obligors ’ Agent ), 18 ( Tax Gross-Up and Indemnities ) , 20 ( Other Indemnities ), 23 ( Guarantee and Indemnity ), 29.14 ( Luxembourg Provisions ), 34 ( Sharing among the Lenders ) to 45 ( Enforcement ) (inclusive) and Schedule 12 ( Agreed Security Principles ) only, an Original Guarantor or an Additional Guarantor; and	
 
 	(b)	for the purposes of any other provision of the Finance Documents, an Original Guarantor (other than each Holdco Guarantor) or an Additional Guarantor,	
unless, in each case, it has ceased to be a Guarantor in accordance with Clause 31 ( Changes to the Obligors ).
“ Holdco ” means Atento S.A., a public limited liability company (société anonyme) incorporated and existing under the laws of the Grand Duchy of Luxembourg, with its registered office at 4 rue Lou Hemmer, L-1748 Luxembourg-Findel, registered with the Luxembourg Register of Commerce and Companies ( R.C.S. Luxembourg ) under number B185761.
“ Holdco Guarantor ” means Holdco or the Parent.
“ Holding Company ” means, in relation to any person, any other company, body corporate or other entity in respect of which it is a Subsidiary.
“ IFRS ” means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.
“ Impaired Agent ” means the Agent at any time when:
 
 	(a)	it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;	
 
 	(b)	the Agent otherwise rescinds or repudiates a Finance Document;	
 
 	(c)	(if the Agent is also a Lender) it is a Defaulting Lender under paragraphs (a) or (b) of the definition of “Defaulting Lender”; or	
 
 	(d)	an Insolvency Event has occurred and is continuing with respect to the Agent,	
unless, in the case of paragraph (a) above:
 
 	(i)	its failure to pay is caused by administrative or technical error or a Disruption Event and payment is made within five (5) Business Days of its due date; or	
 
 	(ii)	the Agent is disputing in good faith whether it is contractually obliged to make the payment in question.	
 
18

“ Increase Confirmation ” means a confirmation substantially in the form set out in Schedule 13 ( Form of Increase Confirmation ) or any other form agreed between the Agent and the Company (in each case acting reasonably).
“ Increase Lender ” has the meaning given to that term in Clause 2.3 ( Increase ).
“ Increased Costs Lender ” means a Lender or an Issuing Bank to whom any Obligor becomes obligated to any amount pursuant to Clause 11.1 ( Illegality ), Clause 16.2 ( Market disruption ), Clause 18 ( Tax Gross-Up and Indemnities ) or Clause 19 ( Increased Costs ).
“ Indebtedness ” has the meaning given to that term in Schedule 17 ( New York Law Definitions ).
“ Indenture ” means the senior secured notes indenture to be entered into between the Company as issuer and the Notes Trustee relating to the terms of the issue of the Notes.
“ Independent Debt Fund ” means a trust, fund, entity or other person (including, without limitation, funds managed or advised by Bain Capital Credit, LLC, and their Affiliates) established primarily for the purpose of making, purchasing or investing in loans or debt securities and which has not been set up solely to make a Debt Purchase Transaction and which is managed or controlled independently (and where customary information barriers are in place) from trusts, funds, partnerships, entities or other persons managed or controlled by the Initial Investors which have an ownership interest in the Group.
“ Industry Competitor ” means any person or entity (or any of its Affiliates) which is a trade competitor of a member of the Group and any controlling shareholder of a trade competitor of a member of the Group, provided that this shall not include any person or entity (or any of its Affiliates) which is a bank, financial institution or trust, fund or other entity whose principal business or a material activity of whom is arranging, underwriting or investing in debt.
“ Initial Investors ” means (a) the Sponsor, (b) funds managed and/or advised by the Sponsor and/or (c) investors designated or appointed by the Sponsor as co-investors to the extent that any direct or indirect voting rights of such co-investor in respect of any member of the Group and the Company are, directly or indirectly, exercisable by such Sponsor (or funds managed and/or advised by the Sponsor).
“ Insolvency Event ” in relation to a Finance Party means that the Finance Party:
 
 	(a)	is dissolved (other than pursuant to a consolidation, amalgamation or merger);	
 
 	(b)	becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;	
 
 	(c)	makes a general assignment, arrangement or composition with or for the benefit of its creditors;	
 
 	(d)	institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over	
 
19

 	it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;	
 
 	(e)	has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:	
 
 	(i)	results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or	
 
 	(ii)	is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;	
 
 	(f)	has exercised in respect of it one or more of the stabilisation powers pursuant to Part 1 of the Banking Act 2009 and/or has instituted against it a bank insolvency proceeding pursuant to Part 2 of the Banking Act 2009 or a bank administration proceeding pursuant to Part 3 of the Banking Act 2009;	
 
 	(g)	has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);	
 
 	(h)	seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made by, a person or entity described in paragraph (d) above);	
 
 	(i)	has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within thirty (30) days thereafter;	
 
 	(j)	causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (i) above; or	
 
 	(k)	takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.	
“ Intellectual Property ” means:
 
 	(a)	any patents, trade marks, service marks, designs, business names, copyrights, database rights, design rights, domain names, moral rights, inventions, confidential information, knowhow and other intellectual property rights and interests (which may now or in the future subsist), whether registered or unregistered; and	
 
20

 	(b)	the benefit of all applications and rights to use such assets of each member of the Group (which may now or in the future subsist).	
“ Intercreditor Accession Deed ” has the meaning given to such term in Part II of Schedule 2 ( Conditions Precedent ).
“ Intercreditor Agreement ” means the intercreditor agreement dated on or after the date of this Agreement between, among others, the Lenders, the Obligors, the Holdco Guarantors, the Security Agent, the Agent and the Notes Trustee.
“ Intercreditor Class ” means, in respect of any Indebtedness permitted under this Agreement which is subject to the terms of the Intercreditor Agreement, the applicable intercreditor ranking that applies to such Indebtedness by reference to the Intercreditor Agreement in effect at such time.
“ Interest Period ” means, in relation to a Loan, each period determined in accordance with Clause 15 ( Interest Periods ) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 14.3 ( Default interest ).
“ Investor Affiliate ” means each Initial Investor and its respective Affiliates, any trust of which an Initial Investor or any of its Affiliates is a trustee, any partnership of which an Initial Investor or any of its Affiliates is a partner and any trust, fund or other entity which is managed by, or is under the (direct or indirect) control of, an Initial Investor or Initial Investors or any of their Affiliates provided that no Independent Debt Fund or member of the Group shall constitute an Investor Affiliate.
“ Interpolated Screen Rate ” means, in relation to any Loan, the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:
 
 	(a)	the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and	
 
 	(b)	the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,	
each as of the Specified Time for the currency of that Loan.
“ Issuing Bank ” means the Original Issuing Bank and any Lender which has notified the Agent that it has agreed to the Company’s request to be an Issuing Bank pursuant to the terms of this Agreement (and if more than one Lender has so agreed, such Lenders shall be referred to, whether acting individually or together, as the “ Issuing Bank ”) provided that , in respect of a Letter of Credit issued or to be issued pursuant to the terms of this Agreement, the “ Issuing Bank ” shall be the Issuing Bank which has issued or agreed to issue that Letter of Credit.
 
21

“ Issuing Bank Accession Agreement ” means an agreement substantially in the form set out in Schedule 8 ( Form of Issuing Bank Accession Agreement ) or any other form agreed by the Agent and the relevant Issuing Bank (in each case acting reasonably).
“ L/C Loan ” is defined in paragraph (c) of Clause 7.2 ( Claims under a Letter of Credit ).
“ L/C Proportion ” means in relation to a Lender in respect of any Letter of Credit, the proportion (expressed as a percentage) borne by that Lender’s Available Commitment to the relevant Available Facility immediately prior to the issue of that Letter of Credit, adjusted to reflect any assignment or transfer under this Agreement to or by that Lender.
“ Legal Opinion ” means any legal opinion delivered to the Agent under Clause 4.1 ( Initial conditions precedent ) or Clause 31 ( Changes to the Obligors ).
“ Legal Reservations ” means:
 
 	(a)	the principle that equitable remedies (or remedies that are analogous to equitable remedies in other jurisdictions) may be granted or refused at the discretion of a court, the principles of reasonableness and fairness, the limitation of enforcement by laws relating to bankruptcy, insolvency, liquidation, reorganisation, pre-insolvency proceedings (including, as refers to Spanish Obligors, transactions that may derive from articles 5 bis, 71 and 71 bis, as well as Additional Provision 4 of the Spanish Insolvency Law), court schemes, moratoria, administration, examinership and other laws generally affecting the rights of creditors and secured creditors and similar principles or limitations under the laws of any applicable jurisdiction;	
 
 	(b)	the time barring of claims under the Limitation Acts or applicable statutes of limitation under any applicable laws of any Relevant Jurisdiction, the possibility that an undertaking to assume liability for or indemnify a person against non-payment of stamp duty may be void and defences of set-off, counterclaim or acquiescence and similar principles or limitations under the laws of any applicable jurisdiction;	
 
 	(c)	the principle that in certain circumstances Security granted by way of fixed charge may be recharacterised as a floating charge or that Security purported to be constituted as an assignment may be recharacterised as a charge;	
 
 	(d)	the principle that additional or default interest imposed pursuant to any relevant agreement may be held to be unenforceable on the grounds that it is a penalty and thus void;	
 
 	(e)	the principle that a court may not give effect to an indemnity for legal costs incurred by an unsuccessful litigant;	
 
 	(f)	the principle that the creation or purported creation of Security over :	
 
 	(i)	any asset not beneficially owned by the relevant charging company at the date of the relevant security document; or	
 
22

 	(ii)	any contract or agreement which is subject to a prohibition on transfer, assignment or charging,	
may be void, ineffective or invalid and may give rise to a breach of the contract or agreement over which Security has purportedly been created;
 
 	(g)	the possibility that a court may strike out a provision of a contract for rescission or oppression, undue influence or similar reason;	
 
 	(h)	the principle that a court may not give effect to any parallel debt provisions, covenants to pay the Security Agent or other similar provisions;	
 
 	(i)	the principles of private and procedural laws of the Relevant Jurisdiction which affect the enforcement of a foreign court judgment;	
 
 	(j)	the principle that a Spanish court may not grant an order for specific performance with respect to contractual obligations other than payment obligations;	
 
 	(k)	the principle that provisions limiting or excluding liability are only effective under Spanish law to the extent that they do not cover gross negligence or wilful misconduct, and that penalty clauses are subject to the general provisions of Spanish law;	
 
 	(l)	as regards any Spanish Obligor or any Spanish entity providing any Transaction Security: (i) the prohibitions of financial assistance which are set forth in articles 143, 149 and 150 of the Spanish Companies Law ( Real Decreto Legislativo 1/2010, de 2 de julio, por el que se aprueba el texto refundido de la Ley de Sociedades de Capital ) or any other legal provision that may substitute such articles in the future; and (ii) any applicable provisions that may limit, restrict or impede from time to time the granting of guarantees and/or Security by an Spanish entity to secure the obligations of its parent company;	
 
 	(m)	the benefits and enforceability limitations and requirements afforded to, or to restrict, Mexican Obligors under Mexican Law;	
 
 	(n)	the benefits and enforceability limitations and requirements afforded to or to restrict, Brazilian Obligors under Brazilian law;	
 
 	(o)	similar principles, rights and defences under the laws of any jurisdiction in which the relevant obligation may have to be performed; or	
 
 	(p)	any other matters which are set out as qualifications or reservations (howsoever described) as to matters of law of general application in the Legal Opinions including, financial assistance or capital protection concerns in relation to the Transaction Documents reflected in the Legal Opinions.	
“ Lender ” means:
 
 	(a)	any Original Lender;	
 
23

 	(b)	any Additional Facility Lender; and	
 
 	(c)	any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in accordance with Clause 2.3 ( Increase ) or Clause 29 ( Changes to the Lenders ),	
which, in each case, has not ceased to be a Lender in accordance with the terms of this Agreement and provided that (among other things as provided by this Agreement) upon (i) termination in full of all Commitments of any Lender in relation to a Facility and (ii) payment in full of all amounts which then are due and payable to such Lender under that Facility, such Lender shall not be regarded as a Lender for that Facility for the purpose of determining whether any provision which requires consultation, consent, agreement or vote with any Lender (or any class thereof) has been complied with.
“ Letter of Credit ” means:
 
 	(a)	a letter of credit, substantially in the form set out in Schedule 10 ( Form of Letter of Credit ) or in any other form requested by the relevant Borrower (or the Company on its behalf) and agreed by the relevant Issuing Bank; or	
 
 	(b)	any guarantee, indemnity, documentary credit, performance bond or other instrument in a form requested by the relevant Borrower (or the Company on its behalf) and agreed by the relevant Issuing Bank.	
“ LIBOR ” means, in relation to any Loan (other than a Loan denominated in EUR):
 
 	(a)	the applicable Screen Rate;	
 
 	(b)	(if no Screen Rate is available for the currency or Interest Period of that Loan) the Interpolated Screen Rate for that Loan; or	
 
 	(c)	if it is not possible to calculate an Interpolated Screen Rate for that Loan, the Reference Bank Rate,	
as of the Specified Time on the Quotation Day for the currency of that Loan and a period comparable to the Interest Period of that Loan, and, if that rate is less than zero, LIBOR shall be deemed to be zero.
“ Limitation Acts ” means the Limitation Act 1980 and the Foreign Limitation Periods Act 1984.
“ LMA ” means the Loan Market Association.
“ Loan ” means a loan made or to be made under a Facility (including an Additional Facility Loan and/or an Original Facility Loan) or the principal amount outstanding for the time being of that loan.
 
24

“ Loan to Own/Distressed Investor ” means any person whose principal business or material activity is in investment strategies whose primary purpose is the purchase of loans or other debt securities with the intention of owning the equity or gaining control of a business (directly or indirectly) provided that :
 
 	(a)	any Affiliates of such persons which are deposit-taking financial institutions authorised by a financial services regulator to carry out the business of banking and which have a long-term credit rating of BBB+ or higher by S&P or Fitch or Baa1 or higher by Moody’s which are managed and controlled independently where any information made available under the Finance Documents is not disclosed or otherwise made available to other Affiliates; and	
 
 	(b)	any Original Lenders,	
shall not, in each case, be a Loan to Own/Distressed Investor.
“ Luxembourg ” means the Grand Duchy of Luxembourg.
“ Luxembourg Obligor ” means any Obligor whose registered office and/or place of central administration is in Luxembourg or whose Centre of Main Interests is in Luxembourg.
“ Major Default ” means with respect to any Permitted Acquisition, the Agreed Certain Funds Obligor(s) (and excluding any procurement obligations on the part of the Agreed Certain Funds Obligor with respect to any other member of the Group or the target entity and its Subsidiaries) in relation to any Event of Default that has occurred and is continuing in relation to:
 
 	(a)	paragraph (a) of Section 1 of Schedule 16 ( Events of Default );	
 
 	(b)	paragraph (b) of Section 1 of Schedule 16 ( Events of Default ) but only to the extent it consists of a breach of any of the other Major Undertakings in any material respect;	
 
 	(c)	Clause 28.2 ( Misrepresentation ) but only to the extent it consists of a breach of any of the Major Representations in any material respect; or	
 
 	(d)	paragraphs (d) and (e) of Section 1 of Schedule 16 ( Events of Default ).	
“ Major Representation ” means with respect to any Permitted Acquisition, the Agreed Certain Funds Obligor(s) (and excluding any procurement obligations on the part of the Agreed Certain Funds Obligor with respect to any other member of the Group or the target entity and its subsidiaries) in relation to a representation and warranty under Clauses 24.2 ( Status ) to 24.6 ( Validity and admissibility in evidence ).
“ Major Undertaking ” means with respect to any Permitted Acquisition, the Agreed Certain Funds Obligor(s) (and excluding any procurement obligations on the part of the Agreed Certain Funds Obligor with respect to any other member of the Group or the target entity and its subsidiaries) in relation to any undertaking set out in:
 
 	(a)	Section 1 ( Limitation on Indebtedness ) of Schedule 15 ( General Undertakings );	
 
 	(b)	Section 2 ( Limitation on Restricted Payments ) of Schedule 15 ( General Undertakings );	
 
25

 	(c)	Section 3 ( Limitation on Liens ) of Schedule 15 ( General Undertakings );	
 
 	(d)	Section 6 ( Limitation on Affiliate Transactions ) of Schedule 15 ( General Undertakings ); and	
 
 	(e)	Section 8 ( Merger and Consolidation ) of Schedule 15 ( General Undertakings ).	
“ Majority Lenders ” means at any time subject to Clause 41.6 ( Non-Responding Lender ( “ Snooze you lose ” ) ) and Clause 41.8 ( Disenfranchisement of Defaulting Lenders ):
 
 	(a)	in the context of a proposed amendment or waiver in relation to a proposed Utilisation of an Original Facility of any of the conditions to funding set out in Clause 4.2 ( Further conditions precedent ), an Original Lender or Original Lenders whose Original Facility Commitments in respect of that Original Facility aggregate more than fifty (50) per cent. of the Total Original Facility 1 Commitments or Total Original Facility 2 Commitments (as applicable) (or, if the Total Original Facility 1 Commitments or Total Original Facility 2 Commitments (as applicable) have been reduced to zero, aggregated more than fifty (50) per cent. of the Total Original Facility 1 Commitments or Total Original Facility 2 Commitments (as applicable) immediately prior to that reduction);	
 
 	(b)	in the context of a proposed amendment or waiver in relation to a proposed Utilisation of an Additional Facility of any of the conditions to funding set out in Clause 4.2 ( Further conditions precedent ), an Additional Lender or Additional Lenders whose Additional Facility Commitments in that Additional Facility aggregate more than fifty (50) per cent. of the Additional Facility Commitments in that Additional Facility (or if such Additional Facility Commitments in that Additional Facility have been reduced to zero, aggregated more than fifty (50) per cent. of the Additional Facility Commitments for that Additional Facility immediately prior to that reduction); and	
 
 	(c)	otherwise a Lender or Lenders whose Commitments aggregate more than fifty (50) per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than fifty (50) per cent. of the Total Commitments immediately prior to that reduction) (and for this purpose the amount of an Ancillary Lender’s Commitments under a Facility shall not be reduced by the amount of its Ancillary Commitment).	
“ Margin ” means:
 
 	(a)	in relation to any Original Facility Loan or Unpaid Sum, 4.25 per cent. per annum; and	
 
 	(b)	in relation to any Additional Facility Loan, the percentage rate per annum specified by the Company (or the relevant Additional Facility Borrower) in the relevant Additional Facility Notice;	
 
26

but if:
 
 	(i)	no Event of Default has occurred and is continuing;	
 
 	(ii)	a period of at least three (3) Months has expired since the Closing Date; and	
 
 	(iii)	the Consolidated First Lien Secured Leverage Ratio in respect of the most recently completed Margin Calculation Period (as shown by the relevant Compliance Certificate delivered by the Company to the Agent) is within a range set out below,	
then the Margin for each Loan:
 
 	(A)	under each Original Facility will be the percentage per annum set out below in the column opposite that range (with no limits on the reduction or increase to be effected on any single reset date):	

Consolidated First Lien Secured
Leverage Ratio	  	Margin
(per cent. per
annum)	 	
Greater than 1.50:1	  	 	4.25	% 	
Equal to or less than 1.50:1 but greater than 1.00:1	  	 	4.00	% 	
Equal to or less than 1.00:1	  	 	3.75	% 	
 
 	(B)	under an Additional Facility will be the percentage per annum agreed with the Additional Facility Lenders and as indicated for that range in the Additional Facility Notice for those Additional Facility Commitments.	
However:
 
 	(i)	any increase or decrease in the Margin for a Loan shall take effect on the date (the “ reset date ”) which is three (3) Business Days from the date of receipt by the Agent of the Compliance Certificate (and the related Financial Statements which are required by this Agreement to be delivered) for that Margin Calculation Period pursuant to Clause 25.2 ( Provision and contents of Compliance Certificate );	
 
 	(ii)	if, following receipt by the Agent of the Annual Financial Statements and related Compliance Certificate, those statements and Compliance Certificate do not confirm the basis for a reduced or increased Margin, then the provisions of Clause 14.2 ( Payment of interest ) shall apply and the Margin for that Loan shall be the percentage per annum determined using the table above (or the table set out in the applicable Additional Facility Notice for the relevant Additional Facility) and the revised Consolidated First Lien Secured Leverage Ratio calculated using the figures in the Compliance Certificate applicable to such Annual Financial Statements;	
 
27

 	(iii)	if, pursuant to paragraph (ii), any amount of Margin has been underpaid, the Company shall promptly pay or procure payment to the Agent of an amount necessary to put the Lenders (but only in respect of the Lenders participating in the relevant Loans both at the time to which the adjustments relate and the time when the adjustments are actually made) in the position they would have been in had the appropriate Margin been applied and any monies received or recovered as a result of such adjustment to the Margin pursuant to paragraph (ii) shall be reimbursed on a pro rata basis amongst the Lenders participating under the relevant Loans as at the date of such receipt or recovery;	
 
 	(iv)	if, pursuant to paragraph (ii), an amount of Margin has been overpaid, such overpaid amount shall be off-set against the next following interest payments to be made under Clause 14.2 ( Payment of interest ) with such interest payments being reduced accordingly (but only in respect of the Lenders participating in the relevant Loans both at the time to which the adjustments relate and the time when the adjustments are actually made) to put the Borrowers in the position they would have been in had the appropriate Margin been applied; and	
 
 	(v)	while an Event of Default has occurred and is continuing, the Margin for each Loan shall be the highest percentage per annum set out above for a Loan under that Facility (or, in respect of any Additional Facility, the highest percentage rate per annum set out in the applicable Additional Facility Notice for the relevant Additional Facility Commitments). Once that Event of Default has been remedied or waived, the Margin for each outstanding Loan at that time will be re-calculated on the basis of the most recently delivered Compliance Certificate and the terms of this definition of “Margin” shall apply (on the assumption that on the date of the most recently delivered Compliance Certificate, no Event of Default had occurred or was continuing) with any reduction in Margin resulting from such recalculation taking effect from the date of such remedy or waiver.	
“ Margin Calculation Period ” means each period of twelve (12) Months ending on the last day of the Financial Year and each period of twelve (12) Months ending on the last day of each Financial Quarter.
“ Material Adverse Effect ” means any event or circumstance which, in each case, after taking into account all mitigating factors or circumstances including, any warranty, indemnity or other resources available to the Group or right of recourse against any third party with respect to the relevant event or circumstance and any obligation of any person in force to provide any additional equity investment:
 
 	(a)	has a material adverse effect on:	
 
 	(i)	the consolidated business, assets or financial condition of the Group (taken as a whole); or	
 
28

 	(ii)	the ability of the Group (taken as a whole) to perform its payment obligations under the Finance Documents; or	
 
 	(b)	subject to the Legal Reservations and any Perfection Requirements, affects the validity or the enforceability of any of the Finance Documents to an extent which is materially adverse to the interests of the Lenders under the Finance Documents taken as a whole and, if capable of remedy, is not remedied within twenty (20) Business Days of the earlier of (i) the Company becoming aware of the issue and (ii) the giving of written notice of the issue by the Agent.	
“ Material Company ” means, at any time:
 
 	(a)	each Original Obligor (other than each Holdco Guarantor);	
 
 	(b)	each Subsidiary of the Company which is listed in Schedule 11 ( Material Companies ) provided that each such Subsidiary will only continue to be a Material Company to the extent it meets the condition in (c) below; and	
 
 	(c)	each member of the Group which has earnings before interest, tax, depreciation and amortisation (calculated on the same basis as Consolidated EBITDA) representing five (5) per cent. or more of Consolidated EBITDA as determined by reference to the most recent Compliance Certificate supplied by the Company in respect of the latest Annual Financial Statements delivered to the Agent provided that, any entity having negative earnings before interest, tax, depreciation and amortisation shall be deemed to have zero earnings before interest, tax, depreciation and amortisation. A report by the Auditors of the Company that a Subsidiary is or is not a Material Company shall, in the absence of manifest error, be conclusive and binding on all Parties.	
“ Mexican Leading Banks ” means, jointly, Banco Nacional de México, S.A., Institución de Banca Múltiple, Integrante del Grupo Financiero Banamex, HSBC México, S.A. Institución de Banca Múltiple, Grupo Financiero HSBC, Banco Santander (México), S.A., Institución de Banca Múltiple, Grupo Financiero Santander and BBVA Bancomer, S.A., Institución de Banca Múltiple, Grupo Financiero BBVA Bancomer.
“ Mexican Lender ” means any Lender the Facility Office of which is located in Mexico.
“ Mexico ” means the “Estados Unidos Mexicanos”, United Mexican States.
“ Month ” means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:
 
 	(a)	(subject to paragraph (b) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;	
 
29

 	(b)	if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and	
 
 	(c)	if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.	
The above rules will only apply to the last Month of any period.
“ Moody ’ s ” has the meaning given to that term in Schedule 15 ( General Undertakings ).
“ New Equity ” means the proceeds of a subscription for shares in, or contribution to, the capital of the Company.
“ New Lender ” has the meaning given to that term in Clause 29 ( Changes to the Lenders ).
“ New Shareholder Injections ” means the aggregate amount of New Equity and/or Subordinated Shareholder Liabilities.
“ Non-Acceptable L/C Lender ” means a Lender (other than an Original Lender) which:
 
 	(a)	is not an Acceptable Bank within the meaning of paragraphs (a) or (b) of the definition of “Acceptable Bank” (other than a Lender which each relevant Issuing Bank has agreed is acceptable to it notwithstanding that fact);	
 
 	(b)	is a Defaulting Lender or an Insolvency Event has occurred in respect of a Holding Company of such Lender; or	
 
 	(c)	has failed to make (or has notified the Agent that it will not make) a payment to be made by it under Clause 7.3 ( Indemnities ) or Clause 32.11 ( Lenders ’ indemnity to the Agent ) or any other payment to be made by it under the Finance Documents to or for the account of any other Finance Party in its capacity as Lender by the due date for payment unless the failure to pay falls within the description of any of those items set out at sub-paragraphs (i) and (ii) of the definition of Defaulting Lender.	
“ Non-Consenting Lender ” means any Lender which does not agree to (or fails to accept or reject a request for) a consent to a departure from, or waiver or amendment of, any provision of the Finance Documents which has been requested by the Company directly or through the Agent where the requested consent, waiver or amendment is one which requires either unanimous, Super Majority Lender, or Lenders forming part of an affected class (as applicable) consent pursuant to this Agreement and has been approved by the Majority Lenders or a majority of the required Lenders being part of an affected class of Lenders or is a Structural Change.
 
30

“ Non-Funding Lender ” means any Lender which:
 
 	(a)	has refused or failed to participate in an Utilisation it is obliged to make under this Agreement; and/or	
 
 	(b)	has given notice to the Company or the Agent that it will not make, or has disaffirmed or repudiated an obligation to participate in, any Utilisation it is obliged to make under this Agreement; and/or	
 
 	(c)	has otherwise rescinded or repudiated a Finance Document or any term of the Finance Documents; and/or	
 
 	(d)	is otherwise a Defaulting Lender.	
“ Notes ” means the aggregate principal amount of 6.125% senior secured notes due 2022 and any Additional Notes issued from time to time under the Indenture.
“ Note Documents ” means the Notes Purchase Agreement, the Indenture, the Notes, the Intercreditor Agreement, any Notes Guarantee (as defined in the Indenture) and the Transaction Security Documents.
“ Notes Purchase Agreement ” means the notes purchase agreement dated on or around the date of this Agreement in connection with the acquisition of the Notes on the Closing Date by the initial purchasers party thereto.
“ Notes Trustee ” means Wilmington Trust, National Association or any successor trustee appointed in accordance with the Indenture.
“ Obligor ” means a Borrower or a Guarantor. For the avoidance of doubt, the Holdco Guarantors will only be an Obligor for the purposes of the provisions specified in paragraph (a) of the definition of Guarantor (and each related definition) and not for any other purposes.
“ Obligors ’ Agent ” means the Company or such other person, appointed to act on behalf of each Obligor in relation to the Finance Documents pursuant to Clause 2.5 ( Obligors ’ Agent ).
“ OFAC ” means the Office of Foreign Assets Control of the United States Department of the Treasury (or any successor thereto).
“ Offering Memorandum ” means the offering memorandum for the Notes.
“ Optional Currency ” means a currency (other than the Base Currency) which complies with the conditions set out in Clause 4.3 ( Conditions relating to Optional Currencies ).
“ Original Facility ” means the Original Facility 1 and/or the Original Facility 2.
“ Original Facility Borrower ” means an Original Facility 1 Borrower or an Original Facilities 2 Borrower.
“ Original Facility 1 Borrower ” means an Original Borrower or any member of the Group which accedes as an Additional Borrower under the Original Facility 1 in accordance with Clause 31 ( Changes to the Obligors ), unless it has ceased to be an Original Facility 1 Borrower in accordance with Clause 31 ( Changes to the Obligors ).
 
31

“ Original Facility 2 Borrower ” means an Original Borrower or any member of the Group which accedes as an Additional Borrower under the Original Facility 2 in accordance with Clause 31 ( Changes to the Obligors ), unless it has ceased to be an Original Facility 2 Borrower in accordance with 31 ( Changes to the Obligors ).
“ Original Facility Commitment ” means the Original Facility 1 Commitment and the Original Facility 2 Commitment.
“ Original Facility Loan ” means an Original Facility 1 Loan or an Original Facility 2 Loan.
“ Original Facility Utilisation ” means an Original Facility 1 Utilisation or an Original Facility 2 Utilisation.
“ Original Facility 1 ” means the multicurrency revolving credit facility made available under this Agreement as described in paragraph (a)(i) of Clause 2.1 ( The Original Facilities ), all or any part of which may be designated as Ancillary Facilities in accordance with Clause 9 ( Ancillary Facilities ).
“ Original Facility 1 Commitment ” means:
 
 	(a)	in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading “Commitment – Original Facility 1 Commitment” in Part II of Schedule 1 ( The Original Parties ) and the amount of any other Original Facility 1 Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 ( Additional Facility ) or Clause 2.3 ( Increase ); and	
 
 	(b)	in relation to any other Lender, the amount in the Base Currency of any Original Facility 1 Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 ( Additional Facility ) or Clause 2.3 ( Increase ),	
to the extent not cancelled, reduced or transferred by it under this Agreement.
“ Original Facility 1 Loan ” means a loan made or to be made under the Original Facility 1 or the principal amount outstanding for the time being of that loan.
“ Original Facility 1 Utilisation ” means an Original Facility 1 Loan or a Letter of Credit issued or to be issued under the Original Facility 1.
“ Original Facility 2 ” means the multicurrency revolving credit facility made available under this Agreement as described in paragraph (a)(ii) of Clause 2.1 ( The Original Facilities ), all or any part of which may be designated as Ancillary Facilities in accordance with Clause 9 ( Ancillary Facilities ).
 
32

“ Original Facility 2 Commitment ” means:
 
 	(a)	in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading “Commitment – Original Facility 2 Commitment” in Part II of Schedule 1 ( The Original Parties ) and the amount of any other Original Facility 2 Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 ( Additional Facility ) or Clause 2.3 ( Increase ); and	
 
 	(b)	in relation to any other Lender, the amount in the Base Currency of any Original Facility 2 Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 ( Additional Facility ) or Clause 2.3 ( Increase ),	
to the extent not cancelled, reduced or transferred by it under this Agreement.
“ Original Facility 2 Loan ” means a loan made or to be made under the Original Facility 2 or the principal amount outstanding for the time being of that loan.
“ Original Facility 2 Utilisation ” means an Original Facility 2 Loan or a Letter of Credit issued or to be issued under the Original Facility.
“ Original Financial Statements ” means the audited consolidated financial statements of the Company for its Financial Year ended 31 December 2016.
“ Original Obligor ” means an Original Borrower or an Original Guarantor.
“ Parent ” means Atalaya Luxco Midco, a private limited liability company (société à responsabilité limitée) incorporated and existing under the laws of the Grand Duchy of Luxembourg, with its registered office at 4 rue Lou Hemmer, L-1748 Luxembourg-Findel, registered with the Luxembourg Register of Commerce and Companies ( R.C.S. Luxembourg ) under number B173142;
“ Participating Member State ” means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
“ Party ” means a party to this Agreement.
“ Perfection Requirements ” means the making or the procuring of the appropriate registrations, filings, endorsements, recording in share registers, stampings, certified translations, execution of Spanish public documents, notarisations, notations in stock registries legalisation by consular authorities and/or other actions and steps required to be made in any Relevant Jurisdiction in order to perfect or in order to achieve the relevant priority of the Transaction Security Documents and/or the Security created thereunder.
“ Permitted Acquisition ” means any acquisition or investment not prohibited by (or otherwise approved under) the terms of this Agreement.
“ Permitted Debt ” has the meaning given to that term in Schedule 15 ( General Undertakings ).
 
33

“ Permitted Financing ” means any Additional Facility or any existing, additional, supplemental or new financing arrangement permitted to be incurred under the terms of this Agreement (including by way of refinancing, replacement, exchange, set-off, discharge or increase of any such Additional Facility or existing additional, supplemental or new financing arrangement).
“ Permitted Liens ” has the meaning given to that term in Schedule 17 ( New York Law Definitions ).
“ Permitted Reorganisation ” means any amalgamation, demerger, merger, voluntary liquidation, consolidation, reorganization, winding up or corporate reconstruction involving a member of the Group (a “ Reorganisation ”) that is made on a solvent basis provided that:
 
 	(a)	any payments or assets distributed in connection with such Reorganisation remain within the Group; and	
 
 	(b)	if any shares or other assets are subject to Transaction Security, equivalent Transaction Security must be granted over such shares or assets of the recipient.	
“ Permitted Structural Adjustment ” means:
 
 	(a)	any increase in a Facility pursuant to Clause 2.2 ( Additional Facility ) or Clause 2.3 ( Increase );	
 
 	(b)	any Structural Change which has received the necessary approvals under paragraph (b) of Clause 41.4 ( Structural Change ); or	
 
 	(c)	any amendment, waiver, consent or release of a Finance Document made in accordance with (or required to implement or effect the provisions of) Clause 2.2 ( Additional Facility ) or Clause 2.3 ( Increase ), Clause 41.7 ( Replacement of Lender ), Clause 41.9 ( Implementation of Additional Facilities and other Permitted Financings and amendment of Transaction Security and Guarantees ) and clause 17 ( New Debt Financings ) of the Intercreditor Agreement.	
“ Permitted Transaction ” means:
 
 	(a)	the Transaction;	
 
 	(b)	any step, circumstance, payment or transaction contemplated by or relating to the Transaction Documents, the Funds Flow Statement, the Structure Memorandum (other than any exit steps described therein) and any intermediate steps or actions necessary to implement the steps, circumstances, payments or transactions described in each such document shall be regarded as a Permitted Transaction;	
 
 	(c)	any step, circumstance or transaction which is mandatorily required by law (including arising under an order of attachment or injunction or similar legal process);	
 
34

 	(d)	any step, circumstance or transaction permitted or contemplated by any Major Undertaking (which, for the avoidance of doubt, in each case will thereby be a “Permitted Transaction” for all Major Undertakings;	
 
 	(e)	any transfer of the shares in, or issue of shares by, the Company or any step, action or transaction including share issue or acquisition or consumption of debt, for the purpose of creating the group structure set out in the Structure Memorandum (other than any exit steps described therein), including inserting another Holding Company directly above the Company, and including in connection therewith, provided that, after completion of such steps, no Change of Control shall have occurred;	
 
 	(f)	any closure of bank accounts in the ordinary course of business provided that if such bank account is subject to any Transaction Security (a “ Pledged Account ”), prior to such release, the relevant Obligor has transferred the balance standing to the credit of such Pledged Account to another bank account held by such Obligor (or another member of the Group) (a “ Recipient Account ”) and the Security Agent is satisfied (acting reasonably) that the relevant Obligor has granted valid and effective Transaction Security over such Recipient Account consistent with the Agreed Security Principles or is not prohibited from transferring the balance standing to the credit of such Pledged Account to another member of the Group or there is no credit balance on such Pledged Account; and	
 
 	(g)	any transaction to which the Agent (acting on the instructions of the Majority Lenders) shall have given prior written consent.	
“ Qualified Securitization Factoring ” has the meaning given to that term in Schedule 17 ( New York Law Definitions ).
“ Quarter Date ” means each of 31 March, 30 June, 30 September and 31 December.
“ Quarterly Financial Statements ” means the financial statements for a financial quarter delivered pursuant to paragraph (b) of Section 1 of Schedule 14 ( Information Undertakings ) in accordance with the provisions of Clause 25.1 ( Information Undertakings ).
“ Quotation Day ” means, in relation to any period for which an interest rate is to be determined:
 
 	(a)	(if the currency is Sterling) the first day of that period;	
 
 	(b)	(if the currency is euro) two (2) TARGET Days before the first day of that period; or	
 
 	(c)	(for any other currency) two (2) Business Days before the first day of that period,	
unless market practice differs in the Relevant Interbank Market for a currency, in which case the Quotation Day for that currency will be determined by the Agent in accordance with market practice in the Relevant Interbank Market (and, if quotations would normally be given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Day will be the last of those days).
 
35

“ Receivables Facility ” has the meaning given to that term in Schedule 17 ( New York Law Definitions ).
“ Reference Bank Rate ” means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by the Reference Banks as the rate at which the relevant Reference Bank could borrow funds in the Relevant Interbank Market in the relevant currency and for the relevant period, were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period.
“ Reference Banks ” means, such banks (including any replacements thereof) as may be appointed by the Agent (acting on the instructions of the Majority Lenders) in consultation with the Company where such bank agrees to be a Reference Bank.
“ Reference Peso Banks ” means Banco Nacional de México, S.A., Integrante del Grupo Financiero Banamex, Banco Santander (México), S.A., Institución de Banca Múltiple, Grupo Financiero Santander; BBVA Bancomer, S.A., Institución de Banca Múltiple, Grupo Financiero BBVA Bancomer and HSBC México, S.A., Institución de Banca Múltiple, Grupo Financiero HSBC.
“ Refinancing Indebtedness ” has the meaning given to that term in Schedule 17 ( New York Law Definitions ).
“ Regulation ” means Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast).
“ Relevant Interbank Market ” means in relation to euro, the European interbank market and, in relation to any other currency, the London interbank market.
“ Relevant Jurisdiction ” means, in relation to a member of the Group or a Holdco Guarantor:
 
 	(a)	its jurisdiction of incorporation;	
 
 	(b)	any jurisdiction where any asset subject to or intended to be subject to the Transaction Security to be created by it is situated;	
 
 	(c)	any jurisdiction where it conducts a material part of its business; and	
 
 	(d)	the jurisdiction whose laws govern the perfection of any of the Transaction Security Documents entered into by it (but only to the extent that such Obligor is required to take perfection steps in that jurisdiction in accordance with the Agreed Security Principles).	
“ Renewal Request ” means a written notice delivered to the Agent in accordance with Clause 6.6 ( Renewal of a Letter of Credit ).
“ Repeating Representations ” means each of the representations set out in Clause 24.2 ( Status ) to Clause 24.7 ( Governing law and enforcement ), Clause 24.15 ( Ranking ), Clause 24.17 ( Legal and beneficial ownership ) and paragraph (b) of Clause 24.23 ( Anti-corruption law/sanction ).
 
36

“ Replacement Amount ” has the meaning given to that term in paragraph (a)(A) of Clause 41.7 ( Replacement of Lender )
“ Resignation Letter ” means a letter substantially in the form set out in Schedule 7 ( Form of Resignation Letter ) or in any other form agreed between the Agent and the Company (in each case acting reasonably).
“ Restricted Party ” means any person that is:
 
 	(a)	a Sanctioned Person;	
 
 	(b)	located or incorporated under the laws of any Sanctioned Country; or	
 
 	(c)	to the best knowledge of any Obligor (acting with due care and enquiry) is otherwise a target of Sanctions.	
“ Restricted Subsidiary ” has the meaning given to that term in Schedule 17 ( New York Law Definitions ).
“ Rollover Loan ” means one or more Loans:
 
 	(a)	made or to be made on the same day that:	
 
 	(i)	a maturing Loan is due to be repaid; or	
 
 	(ii)	a demand by the Issuing Bank pursuant to a drawing in respect of a Letter of Credit or payment of outstandings under an Ancillary Facility is due to be met;	
 
 	(b)	the aggregate amount of which is equal to or less than the amount of the maturing Loan or the relevant claim in respect of that Letter of Credit or Ancillary Facility Utilisation;	
 
 	(c)	in the same currency as the maturing Loan (unless it arose as a result of the operation of Clause 8.2 ( Unavailability of a currency )) or the relevant claim in respect of that Letter of Credit or Ancillary Facility Utilisation; and	
 
 	(d)	made or to be made to the same Borrower for the purpose of:	
 
 	(i)	refinancing that maturing Loan or Ancillary Facility Utilisation; or	
 
 	(ii)	satisfying the relevant claim in respect of that Letter of Credit.	
“ Rollover Utilisation ” means a Rollover Loan, Utilisation of a Facility which is to be used to refinance an Ancillary Outstanding, or to fund a claim under a Letter of Credit or an extension or renewal of a Letter of Credit (including, in accordance with Clause 6.6 ( Renewal of a Letter of Credit )).
 
37

“ Sanctioned Country ” means, at any time, a country or territory which itself is, or whose government is, the target of comprehensive Sanctions (as of the date of this Agreement, being the Crimea region of Ukraine, Cuba, Iran, North Korea and Syria).
“ Sanctioned Person ” means any person that is (or persons that are):
 
 	(a)	listed on, or owned or controlled (as such terms are defined and interpreted by the relevant Sanctions) by a person listed on any Sanctions List;	
 
 	(b)	a government of a Sanctioned Country;	
 
 	(c)	an agency or instrumentality of, or an entity directly or indirectly owned or controlled by, a government of a Sanctioned Country; or	
resident or located in, or incorporated under the laws of any Sanctioned Country, or to the best of the Company’s knowledge otherwise a target of Sanctions.
“ Sanctions ” means any economic, trade or financial sanctions laws, regulations, embargoes or restrictive measures imposed, enacted, administered or enforced from time to time by any Sanctions Authority.
“ Sanctions Authority ” means (a) the United States, (b) the United Nations Security Council, (c) the European Union and any EU member state, (d) the United Kingdom and (e) the respective governmental institutions of any of the foregoing which administer Sanctions, including OFAC, the US State Department, Her Majesty’s Treasury and the US Department of the Treasury.
“ Sanctions List ” means the “Specially Designated Nationals and Blocked Persons” list issued by OFAC, the EU Consolidated List of Financial Sanctions Targets, the Consolidated List of Financial Sanctions Targets issued by Her Majesty’s Treasury, or any similar list issued or maintained and made public by any of the Sanctions Authorities as amended, supplemented or substituted from time to time.
“ Screen Rate ” means:
 
 	(a)	in relation to LIBOR, the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); and	
 
 	(b)	in relation to EURIBOR, the euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate),	
or, in each case, on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters. If such page or service is replaced or ceases to be available, the Agent may specify another page or service displaying the relevant rate after consultation with the Company and the Lenders.
 
38

“ Secured Obligations ” has the meaning given to that term in the Intercreditor Agreement.
“ Secured Parties ” has the meaning given to that term in the Intercreditor Agreement.
“ Security ” means any mortgage, charge (fixed or floating), pledge, lien, hypothecation, right of set-off, security trust, assignment, reservation of title or other security interest and any other agreement (including a sale and repurchase arrangement) having the commercial effect of conferring security.
“ Security Provider ” means:
 
 	(a)	any member of the Group that is a Holding Company of a Material Company (and which is not an Obligor) which provides Transaction Security over its shares in that Material Company in accordance with paragraph (b) or (c) of Clause 27.8 (Guarantees and Security) (each a “ Group Security Provider ”); or	
 
 	(b)	any direct shareholder of the Company (other than any Holdco Guarantor) which provides Transaction Security over its shares in the Company or any structural intercompany loans owed to it by the Company in accordance with paragraph (d) or (e) of Clause 27.8 (Guarantees and Security) (each a “ Holdco Security Provider ”).	
“ Senior Management ” means each of the chairman, chief executive officer, chief operating officer and chief financial officer of the Group.
“ Separate Loan ” has the meaning given to that term in Clause 10.3 ( Loans provided by a Defaulting Lender ).
“ Specified Time ” means a time determined in accordance with Schedule 9 ( Timetables ).
“ Sponsor ” means individually or collectively, any trust, partnership, investment fund, co-investment vehicles and/or other similar vehicles or accounts, in each case managed or advised by Bain Capital Europe LLP or any respective successors and any Affiliates (other than any portfolio operating companies).
“ Structure Change ” has the meaning given to that term in paragraph (a) of Clause 41.4 ( Structural Change )
“ Structure Memorandum ” means the tax structure memorandum prepared by the Sponsor’s tax, regulatory and financial advisers entitled “ Atento Group Refinancing - Outline Tax Structure Report ” (including, for the avoidance of doubt, the appendices to such structure memorandum which include tax, regulatory and other technical analysis) and delivered pursuant to paragraph 4 of Part I of Schedule 2 ( Conditions Precedent ).
“ Subordinated Shareholder Document ” means any document creating Subordinated Shareholder Liabilities.
 
39

“ Subordinated Shareholder Liabilities ” means any loan or other indebtedness owed by the Company to any of its direct shareholders provided that such loan or indebtedness is subordinated pursuant to the provisions of the Intercreditor Agreement as “Subordinated Liabilities” or on substantially the same terms as the provisions of the Intercreditor Agreement as “Subordinated Liabilities” or otherwise on terms satisfactory to the Agent (acting on the instructions of the Majority Lenders (acting reasonably)).
“ Subsidiary ” means, in relation to any person, any entity which is controlled directly or indirectly by that person and any entity (whether or not so controlled) treated as a subsidiary in the latest financial statements of that person from time to time, and “control” for this purpose means the direct or indirect ownership of the majority of the voting share capital of such entity or the right or ability to direct management to comply with the type of material restrictions and obligations contemplated in this Agreement or to determine the composition of a majority of the board of directors (or like board) of such entity, in each case, whether by virtue of ownership of share capital, contract or otherwise provided that, notwithstanding anything to the contrary no Unrestricted Subsidiary shall be deemed to be a Subsidiary of a member of the Group.
“ Super Majority Lenders ” means at any time subject to Clause 41.6 ( Non-Responding Lender ( “ Snooze you lose ” ) ) and Clause 41.8 ( Disenfranchisement of Defaulting Lenders ), a Lender or Lenders whose Commitments aggregate eighty (80) per cent. or more of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated eighty (80) per cent. or more of the Total Commitments immediately prior to that reduction) (and for this purpose the amount of an Ancillary Lender’s Commitment shall not be reduced by the amount of its Ancillary Commitment).
“ S&P ” has the meaning given to that term in Schedule 17 ( New York Law Definitions ).
“ TARGET2 ” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises a single shared platform and which was launched on 19 November 2007.
“ TARGET Day ” means any day on which TARGET2 is open for the settlement of payments in euro.
“ Tax ” or “ Taxes ” means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty, interest or other additional amount payable in connection with any failure to pay or any delay in paying any of the same).
“ Term ” means each period determined under this Agreement for which the Issuing Bank is under a liability under a Letter of Credit.
“ Termination Date ” means:
 
 	(a)	in respect of the Original Facilities, the date falling four (4) years and six (6) months after the Closing Date; and	
 
40

 	(b)	in respect of any Additional Facility, the date specified in the relevant Additional Facility Notice.	
“ TIIE ” means, for each one-month Interest Period, the Interbank Balance Interest Rate (Tasa de Interés Interbancaria de Equilibrio) for a term of twenty eight (28) days and for each three-month Interest Period the Interbank Balance Interest Rate (Tasa de Interés Interbancaria de Equilibrio) for a term of ninety one (91) days, in each case published by the Mexican Central Bank (Banco de México) in the Federation Official Gazette (Diario Oficial de la Federación) on the first day of such Interest Period, provided that if TIIE ceases to be published, “TIIE” shall mean the rate published by Banco de Mexico as its substitute rate and provided further that if, in any case, that rate is less than zero, TIIE shall be deemed to be zero.
“ Third Parties Act ” has the meaning given to that term in paragraph (a) of Clause 1.5 ( Third party rights ).
“ Total Additional Facility Commitments ” means the aggregate amount of the applicable and designated Additional Facility Commitments under any applicable Additional Facility Notice, being zero at the date of this Agreement
“ Total Commitments ” means the Total Original Facilities Commitments and the Total Additional Facility Commitments.
“ Total Original Facilities Commitments ” means the aggregate of the Total Original Facility 1 Commitments and the Total Original Facility 2 Commitments, being USD 50,000,000 at the date of this Agreement.
“ Total Original Facility 1 Commitments ” means the aggregate of the Original Facility 1 Commitments being USD 30,000,000 at the date of this Agreement.
“ Total Original Facility 2 Commitments ” means the aggregate of the Original Facility 2 Commitments being USD 20,000,000 at the date of this Agreement.
“ Transaction ” means the refinancing of the Group’s Exisitng Debt including the steps set out in the Structure Memorandum together with any associated, facilitating, intermediate or implementing payments, actions, steps or events.
“ Transaction Documents ” means the Note Documents and the Finance Documents.
“ Transaction Security ” means the Security created or expressed to be created in favour of the Security Agent or the Secured Parties (represented by the Security Agent, as the case may be) pursuant to the Transaction Security Documents.
“ Transaction Security Documents ” means any security document required to be executed under Clause 27.8 ( Guarantees and Security ) together with any other document entered into by any Obligor or the Parent or any Security Provider creating or expressed to create any Security over all or any part of its assets in respect of the obligations of any of the Obligors or any Holdco Guarantor under any of the Finance Documents.
 
41

“ Transfer Certificate ” means a certificate substantially in the form set out in Schedule 4 ( Form of Transfer Certificate ) or any other form agreed between the Agent and the Company (each acting reasonably).
“ Transfer Date ” means, in relation to an assignment or a transfer, the later of:
 
 	(a)	the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and	
 
 	(b)	the date on which the Agent executes the relevant Assignment Agreement or Transfer Certificate.	
“ Unpaid Sum ” means any sum due and payable but unpaid by an Obligor under the Finance Documents.
“ Unrestricted Subsidiary ” has the meaning given to that term in Schedule 17 ( New York Law Definitions ).
“ Utilisation ” means an Original Facility Utilisation or an Additional Facility Utilisation or an Ancillary Utilisation.
“ Utilisation Date ” means the date of a Utilisation, being the date on which the relevant Loan is to be made or the relevant Letter of Credit is to be issued.
“ Utilisation Request ” means a notice substantially in the relevant form set out in Part I or Part II of Schedule 3 ( Requests and Notices ).
“ VAT ” means:
 
 	(a)	any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112, as amended from time to time); and	
 
 	(b)	any other tax of a similar nature whether imposed in a member state of the European Union or any other jurisdiction in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed.	
“ Voting Rights ” means, in relation to a Lender, all rights and obligations in relation to its Commitment and participations in the Loans, including all rights in relation to waivers, consents, modifications and amendments and confirmations as to satisfaction of conditions precedent.
“ Withdrawal Event ” means the withdrawal of the jurisdiction of incorporation or residence of one or more Obligors from the Euro and any re-denomination of the Euro into any other currency by the government of that jurisdiction.
 
1.2	Construction	
 
 	(a)	Unless a contrary indication appears, a reference in this Agreement to:	
 
 	(i)	any “ Ancillary Lender ”, the “ Agent ”, any “ Arrangers ”, any “ Finance Party ”, and “ Issuing Bank ”, any “ Lender ”, any “ Obligor ”,	
 
42

 	the “ Company ”, any “ Party ”, the “ Security Agent ” or any other person shall be construed so as to include its successors in title, permitted assigns and permitted transferees (including the surviving entity of any merger involving that person) and, in the case of the Security Agent, any person for the time being appointed as security agent or security agents in accordance with the Finance Documents;	
 
 	(ii)	a document in “ agreed form ” is a document which is previously agreed in writing by or on behalf of the Company and the Agent;	
 
 	(iii)	an “ agency ” of a state includes any local or other authority or other recognised body or agency, central or federal bank, department, government, legislature, minister, ministry, official or public or statutory person (whether autonomous or not) of, or of the government of, that state or any political sub-division in or of that state;	
 
 	(iv)	an “ agreement ” includes any legally binding arrangement, contract, deed or instrument (in each case whether oral, written or entered into by way of a written offer and implicit acceptance);	
 
 	(v)	an “ amendment ” includes any amendment, supplement, variation, novation, modification, replacement, restatement or amendment and restatement (however fundamental) and “ amend ” and “ a mended ” shall be construed accordingly;	
 
 	(vi)	“ assets ” includes properties, assets, businesses, undertakings, revenues and rights of every kind (including uncalled share capital), present and future, actual or contingent and any interest in any of the foregoing;	
 
 	(vii)	a “ consent ” includes an authorisation, permit, approval, consent, exemption, licence, order, filing, registration, recording, notarisation, permission or waiver;	
 
 	(viii)	a “ disposal ” includes any sale, transfer, grant, lease, licence or other disposal, whether voluntary or involuntary, and “dispose” will be construed accordingly;	
 
 	(ix)	the “ European interbank market ” means the interbank market for euro;	
 
 	(x)	the “ equivalent ” in any currency (the “ first currency ”) of any amount in another currency (the “ second currency ”) shall be construed as a reference to the amount in the first currency which could be purchased with that amount in the second currency at the Agent’s Spot Rate of Exchange for the purchase of the first currency with the second currency in the London foreign exchange market at or about 11:00 a.m. on a particular day (or at or about such time and on such date as the Agent may from time to time reasonably determine to be appropriate in the circumstances);	
 
43

 	(xi)	“ financial indebtedness ” means any indebtedness for or in respect of: (i) moneys borrowed and debit balances at banks or other financial institutions; (ii) any acceptance under any acceptance credit or bill discounting facility (or dematerialised equivalent); (iii) any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument other than performance bonds or documentary letters of credit issued in respect of obligations of the Group arising under the ordinary course of trading; (iv) the amount of any liability in respect of finance leases; (v) receivables sold or discounted; (vi) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of such transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close out of such transaction, that amount) shall be taken into account); (vii) any counter indemnity obligation in respect of a guarantee, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution in respect of payment obligations; (viii) any amount raised by the issue of redeemable shares which are redeemable (other than at the option of the issuer) before the date which is six (6) months after the maturity date of the Notes; (ix) any amount of any liability under an advance or deferred purchase agreement if the primary reason behind entering into the agreement is to raise finance; (x) any amount raised under any other transaction (including any forward sale or purchase, sale and sale back or sale and leaseback agreement) having the commercial effect of a borrowing and classified as borrowings under IFRS; and (xi) the amount of any liability in respect of any guarantee for any of the items referred to in (i) to (x);	
 
 	(xii)	a “ Finance Document ” or a “ Transaction Document ” or any other agreement or instrument, is (unless expressed to be a reference to such document, agreement or instrument in its original form or form as at a particular date) a reference to that Finance Document or Transaction Document or other agreement or instrument as amended and includes any increase in, addition to or extension of or other change to any facility under such agreement or instrument, in each case to the extent not prohibited by the terms of this Agreement;	
 
 	(xiii)	a “ guarantee ” includes (other than in Clause 23 ( Guarantee and Indemnity )):	
 
 	(A)	an indemnity, counter-indemnity, guarantee or similar assurance against loss in respect of any indebtedness of any other person; and	
 
 	(B)	any other obligation of any other person, whether actual or contingent, to pay, purchase, provide funds (whether by the advance of money to, the purchase of or subscription for shares or other investments in, any other person, the purchase of assets or services, the making of payments under an agreement or otherwise) for the payment of, to indemnify against the consequences of default in the payment of, or otherwise be responsible for, any indebtedness of any other person;	
 
44

and “ guaranteed ” and “ guarantor ” shall be construed accordingly;
 
 	(xiv)	“ including ” means including without limitation, and “includes” and “included” shall be construed accordingly;	
 
 	(xv)	“ indebtedness ” includes any obligation (whether incurred as principal, guarantee or as surety) for the payment or repayment of money, whether present or future, actual or contingent;	
 
 	(xvi)	“ losses ” includes losses, actions, damages, claims, proceedings, costs, demands, expenses (including legal and other fees) and liabilities of any kind, and loss shall be construed accordingly;	
 
 	(xvii)	the “ Interest Period ” of a Letter of Credit shall be construed as a reference to the Term of that Letter of Credit;	
 
 	(xviii)	a Lender’s “ participation ” in relation to a Letter of Credit, shall be construed as a reference to the relevant amount that is or may be payable by a Lender in relation to that Letter of Credit;	
 
 	(xix)	a “ person ” includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);	
 
 	(xx)	a “ regulation ” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law (but if not having force of law, which is binding or customarily complied with)) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation; and	
 
 	(xxi)	a “ sub-participation ” means any sub-participation or sub-contract (whether written or oral) or any other agreement or arrangement having an economically substantially similar effect, including any credit default or total return swap or derivative (whether disclosed, undisclosed, risk or funded) by a Lender of or in relation to any of its rights or obligations under, or its legal, beneficial or economic interest in relation to, the Facilities and/or Finance Documents to a counterparty, and “ sub-participate ” shall be construed accordingly.	
 
 	(b)	In this Agreement, unless a contrary intention appears:	
 
 	(i)	a reference to a Party includes a reference to that Party’s successors and permitted assignees or permitted transferees but does not include that Party if it has ceased to be a Party under this Agreement;	
 
 	(ii)	references to paragraphs, Clauses, Sections and Schedules are references to, respectively, paragraphs, sections and clauses of, and schedules to, this Agreement and references to this Agreement include its Schedules;	
 
45

 	(iii)	a reference to (or to any specified provision of) any agreement (including any of the Finance Documents) (unless expressed to be a reference to such agreement in its original form or the form as at a particular date) is to that agreement (or that provision) as amended or novated (however fundamentally) and includes any increase in, extension of or change to any facility made available under any such agreement (unless such amendment or novation is contrary to the terms of any Finance Document);	
 
 	(iv)	a reference to a statute, statutory instrument or provision of law is to that statute, statutory instrument or provision of law, as it may be applied, amended or re-enacted from time to time;	
 
 	(v)	a reference to a time of day is, unless otherwise specified, to Madrid time;	
 
 	(vi)	the index to and the headings in this Agreement are for convenience only and are to be ignored in construing this Agreement; and	
 
 	(vii)	the singular includes the plural (and vice versa).	
 
 	(c)	Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.	
 
 	(d)	A Default or an Event of Default is “ continuing ” if it has not been remedied or waived. In addition, (i) if a Default (including an Event of Default) occurs for a failure to deliver a required certificate, notice or other document in connection with another default (an “ Initial Default ”) then, at the time such Initial Default is remedied or waived, such Default (including an Event of Default) for a failure to report or deliver a required certificate, notice or other document in connection with the Initial Default will also be cured without any further action and (ii) any Default for the failure to comply with the time periods prescribed in Clause 25 ( Information Undertakings ) or otherwise to deliver any notice, certificate or other document, as applicable, even though such delivery is not within the prescribed period specified in this Agreement or any other Finance Document shall be deemed to be cured upon the delivery of any such report required by such covenant or notice, certificate or other document, as applicable, even though such delivery is not within the prescribed period specified in this Agreement or any other Finance Document.	
 
 	(e)	A Declared Default is “ continuing ” if the notice of acceleration (or demand) provided by the Agent under Clause 28.6 ( Acceleration ) in connection therewith has not been revoked, withdrawn or cancelled by the Agent (acting on the instructions of the Majority Lenders) or otherwise ceases to have effect.	
 
46

 	(f)	References to any matter being “ permitted ” under this Agreement or any other Finance Document shall include references to such matters not being prohibited or otherwise being approved under this Agreement or such Finance Document.	
 
 	(g)	A Borrower providing “ cash cover ” for a Letter of Credit or an Ancillary Facility means a Borrower paying an amount in the currency of the Letter of Credit (or, as the case may be, Ancillary Facility) to an interest-bearing account (which shall accrue interest at a rate normally offered to corporate depositors on similar deposits by Finance Parties) in the name of the Borrower and the following conditions being met:	
 
 	(i)	the account is with the Agent, or the relevant Issuing Bank (if the cash cover is to be provided in respect of a Letter of Credit), or with the relevant Ancillary Lender (if the cash cover is to be provided in respect of an Ancillary Facility);	
 
 	(ii)	subject to Clause 7.5 ( Cash cover by Borrower ), until no amount is or may be outstanding under that Letter of Credit or Ancillary Facility (as the case may be), withdrawals from the account (other than in respect of accrued interest) may only be made to pay the relevant Issuing Bank or Ancillary Facility Lender (as applicable) amounts due and payable to it under this Agreement in respect of that Letter of Credit or Ancillary Facility as the case may be, and for the purposes of this Agreement, a Letter of Credit or Ancillary Outstanding (as applicable) shall be deemed to be cash covered to the extent of any such provision of cash cover in respect of that Letter of Credit or Ancillary Outstanding (as applicable); and	
 
 	(iii)	if required by the Security Agent, Issuing Bank or Ancillary Lender (as the case may be) the Borrower has executed and delivered a security document (in accordance with the Agreed Security Principles and in substantially the same form as an existing Transaction Security Document) over that account, in form and substance satisfactory to the Security Agent or the Issuing Bank or Ancillary Lender with which that account is held (each acting reasonably), creating a first ranking security interest, but in any event, on terms no more onerous than the existing Transaction Security Documents, over that account.	
Unless a Declared Default has occurred and is “ continuing ”, any interest accruing on any such account will be paid to the order of the relevant Borrower.
 
 	(h)	A Letter of Credit or Ancillary Outstandings are repaid or prepaid (or any derivative form thereof) to the extent that:	
 
 	(i)	a Borrower or any other Obligor provides cash cover for that Letter of Credit or in respect of the Ancillary Outstandings;	
 
 	(ii)	in the case of a Letter of Credit, a Borrower has made a payment of that amount under paragraph (b) of Clause 7.2 ( Claims under a Letter	
 
47

 	of Credit ) in respect of that Letter of Credit or a Borrower has made a reimbursement of that amount in respect of that Letter of Credit under Clause 7.3 ( Indemnities );	
 
 	(iii)	the maximum amount payable under the Letter of Credit or Ancillary Facility (as the case may be) is reduced or cancelled in accordance with its terms in a manner satisfactory to the Issuing Bank in respect of such Letter of Credit or Ancillary Lender in respect of such Ancillary Facility (as the case may be), in each case, acting reasonably;	
 
 	(iv)	the Letter of Credit or relevant Ancillary Facility (as the case may be) expires in accordance with its terms or is otherwise returned by the beneficiary with its written confirmation that it is released and cancelled;	
 
 	(v)	the Issuing Bank or Ancillary Lender (as the case may be) (acting reasonably) is satisfied that it has no further or a reduced liability under that Letter of Credit or Ancillary Facility (as the case may be) and accordingly all of (or such proportion of) the obligations are released or reduced, and has confirmed the same to the Agent accordingly; or	
 
 	(vi)	a bank or financial institution having a long-term credit rating from any of Moody’s, S&P or Fitch at least equal to BBB-/Baa3 (as applicable), or by any other institution satisfactory to the applicable Issuing Bank having issued an unconditional and irrevocable guarantee, indemnity, counter-indemnity or similar assurance against financial loss in respect of all amounts due under that Letter of Credit or Ancillary Facility,	
the amount by which a Letter of Credit is, or Ancillary Outstandings are, repaid or prepaid under paragraphs (i) to (vi) above is the amount of the relevant cash cover, payment, release, cancellation, reduction or assurance.
 
 	(i)	An amount borrowed includes any amount utilised by way of Letter of Credit or under an Ancillary Facility.	
 
 	(j)	A Lender funding its participation in a Utilisation includes a Lender participating in a Letter of Credit.	
 
 	(k)	Amounts outstanding under this Agreement include amounts outstanding under or in respect of any Letter of Credit.	
 
 	(l)	The outstanding or principal amount of a Letter of Credit at any time is the maximum amount that is or may be payable by the relevant Issuing Bank or the Lenders in respect of that Letter of Credit at that time less any amount repaid or prepaid in respect of that Letter of Credit.	
 
 	(m)	A Letter of Credit is completely cancelled, discharged and released in accordance with its terms:	
 
 	(i)	upon the Issuing Bank having paid the amount available under the Letter of Credit;	
 
48

 	(ii)	upon return of the original Letter of Credit to the Issuing Bank together with the beneficiary’s letter of release, or, if such original Letter of Credit has been lost, stolen, mutilated or destroyed, confirmation from the beneficiary of such Letter of Credit that this is the case and indemnities are provided satisfactory to the Issuing Bank (acting reasonably) from the beneficiary and other satisfactory assurances are provided as the Issuing Bank may reasonably require; or	
 
 	(iii)	upon lapse of its Expiry Date and no demand having been received by the Issuing Bank on or before such Expiry Date.	
 
 	(n)	A Borrower’s obligation on Utilisations becoming due and payable includes the Borrower repaying any Letter of Credit in accordance with paragraph (h) above.	
 
 	(o)	Where the Agent is referred to in a Finance Document as acting “ reasonably ” or in a “ reasonable ” manner or as coming to an opinion or determination that is “ reasonable ” (or any similar or analogous wording is used), unless they are not required to do so, this shall mean that the Agent shall, where it has in fact sought such instructions, be acting or coming to an opinion or determination on the instructions of the Majority Lenders, Super Majority Lenders, all Lenders or all Lenders forming part of that affected class (as applicable), acting reasonably and the Agent shall be under no obligation to determine the reasonableness of such instructions from the Majority Lenders, Super Majority Lenders, all Lenders or all Lenders forming of that affected class (as applicable), or whether in giving such instructions the Majority Lenders, Super Majority Lenders, all the Lenders or all Lenders forming of that affected class (as applicable), are acting in a reasonable manner.	
 
 	(p)	Where agreement or approval, acceptability to or satisfaction with or approval of the Agent is referred to (or any similar or analogous wording is used) in relation to a matter not affecting the personal interests of the Agent (including for the avoidance of doubt, any satisfaction, or determination in relation to any condition precedent) this shall mean the agreement or approval, acceptability to or satisfaction with or approval of, (or similar where similar or analogous wording is used, as applicable) the Majority Lenders, Super Majority Lenders, all Lenders or all Lenders forming of that affected class (as applicable) as notified by or on behalf of, the Majority Lenders, Super Majority Lenders, all Lenders or all Lenders forming of that affected class (as applicable) to the Agent.	
 
 	(q)	In respect of (o) and (p) above, the Agent shall not be responsible for any liability occasioned or by any delay or failure on the part of the Majority Lenders, Super Majority Lenders, all Lenders or all Lenders forming of that affected class (as applicable) to give, or have given on their behalf, any such notice or instructions or to form any such opinion unless to the extent caused by fraud, gross negligence or wilful misconduct of the Agent or results from the Agent breaching a term of or any of its obligations under this Agreement or the other Finance Documents.	
 
49

 	(r)	Any corporation into which the Agent or Security Agent may be merged or converted, or any corporation with which the Agent or Security Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Agent or Security Agent shall be a party, or any corporation, including affiliated corporations, to which the Agent or Security Agent shall sell or otherwise transfer:	
 
 	(i)	all or substantially all of its assets; or	
 
 	(ii)	all or substantially all of its corporate trust business,	
shall, on the date when the merger, conversion, consolidation or transfer becomes effective and to the extent permitted by any applicable laws and subject to any credit rating requirements set out in this Agreement become the successor Agent or Security Agent under this Agreement without the execution or filing of any paper or any further act on the part of the parties to this Agreement, unless otherwise required by the Company, and after the said effective date all references in this Agreement to the Agent or Security Agent shall be deemed to be references to such successor corporation. Written notice of any such merger, conversion, consolidation or transfer shall immediately be given to the Company by the Agent or Security Agent.
 
1.3	Currency Symbols and Definitions	
 
 	(a)	“ € ”, “ euro ”, “ Euro ” and “ EUR ” mean the single currency unit of the Participating Member States.	
 
 	(b)	“ $ ”, “ USD ” and “ US Dollars ” means the lawful currency for the time being of the United States.	
 
 	(c)	“ MEX$ ” and “ Mexican Pesos ” means the lawful currency for the time being of Mexico.	
 
1.4	Defined terms	
 
 	(a)	For the purposes of Schedule 14 ( Information Undertakings ), Schedule 15 ( General Undertakings ) and Schedule 16 ( Events of Default ), capitalised words and expressions used in those schedules shall have the meaning ascribed to them in Schedule 17 ( New York Law Definitions ).	
 
 	(b)	For the purposes of interpreting Schedule 14 ( Information Undertakings ), Schedule 15 ( General Undertakings ) and Schedule 16 ( Events of Default ), in the event of a conflict between the defined terms set out in Clause 1.1 ( Definitions ) and the defined terms set out in Schedule 17 ( New York Law Definitions ), the defined terms set out in Schedule 17 ( New York Law Definitions ) shall prevail.	
 
1.5	Third party rights	
 
 	(a)	Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the “ Third Parties Act ”) to enforce or enjoy the benefit of any term of this Agreement or any other Finance Document.	
 
50

 	(b)	Notwithstanding any term of any Finance Document, the consent of any person who is not a Party to this Agreement, or, as the case may be, a Finance Document, is not required to amend, rescind or vary this Agreement or any other Finance Document at any time.	
 
1.6	Personal Liability	
No personal liability shall attach to any director, officer or employee of any member of the Group (or any Affiliate of any member of the Group) for any representation or statement made by that member of the Group or its Affiliate in any Finance Document, certificate or other document signed by a director, officer or employee which is required to be delivered under a Finance Document save in the case of fraud in which case liability (if any) will be determined in accordance with applicable law.
 
1.7	No Initial Investor Recourse	
No Finance Party will have any recourse to any Initial Investor that is not party to a Finance Document (and to the extent an Initial Investor is a party to a Finance Document there shall only be recourse to the extent of its liability under the terms of such Finance Document) in respect of any term of any Finance Document, any statements by Initial Investors, or otherwise.
 
1.8	Intercreditor Agreement	
This Agreement is subject to, and has the benefit of, the Intercreditor Agreement. In the event of any inconsistency between this Agreement and the Intercreditor Agreement, the Intercreditor Agreement shall prevail.
 
1.9	Baskets, Exceptions and Exchange Rate Fluctuations	
 
 	(a)	In the event that any amount or transaction meets the criteria of more than one of the baskets or exceptions set out in Clause 27 ( General Undertakings ) and Schedule 15 ( General Undertakings ), the Company, in its sole discretion, will classify and may from time to time reclassify that amount or transaction to a particular basket or exception and will only be required to include that amount or transaction in one of those baskets or exceptions (and, for the avoidance of doubt, an amount or transaction may at the option of the Company be split between different baskets or exceptions).	
 
 	(b)	When applying any monetary limits or baskets, thresholds and other exceptions to the representations, warranties, undertaking and Events of Default, the equivalent to an amount in the Base Currency shall be calculated under this Agreement and the other Finance Documents at the rate for the conversion of the Base Currency into the relevant currency of the non-Base Currency monetary limit, threshold and other exception which the Company (acting reasonably and in good faith) has used and has notified to the Agent or at the option of the Company at the Agent’s Spot Rate of Exchange, in each case, as at the date of the Group incurring or making the relevant disposal,	
 
51

 	acquisition, investment, lease, loan, debt or guarantee or taking any other relevant action. No Event of Default or breach of any representation and warranty or undertaking under this Agreement or the other Finance Documents shall arise merely as a result of a subsequent change in the Base Currency equivalent or any other currency specified for any basket due to fluctuations in exchange rates.	
 
 	(c)	Unless a contrary indication appears, a reference to a basket amount, threshold or limit expressed in the Base Currency includes the equivalent of such amount, threshold or limit in other currencies.	
 
 	(d)	In ascertaining the Majority Lenders or the Super Majority Lenders or whether any given percentage of the Total Commitments has been obtained to approve any request for a consent, waiver, amendment or other vote under the Finance Documents or for the purpose of the allocation of any repayment or prepayment or for the purposes of taking any step, decision, direction or exercise of discretion which is calculated by reference to drawn amounts any Commitments not denominated in the applicable Base Currency (“Non-Base Currency Commitments”) shall be deemed to be converted into the applicable Base Currency at the rate for the conversion of the such Base Currency into the relevant currency of the Non-Base Currency Commitment which the Company (acting reasonably and in good faith) has used and has notified to the Agent for the purposes of calculating any Additional Facility Commitments in connection with an Additional Facility as at the Additional Facility Commencement Date for the relevant Additional Facility, or if the Company has not notified the Agent of such conversion rate, the Agent’s Spot Rate of Exchange on the date on which that Commitment was provided under this Agreement or, if earlier, the date the aggregate amount of the Non-Base Currency Commitment of the Additional Facility was determined.	
 
1.10	Luxembourg Terms	
In this Agreement, where it relates to a Luxembourg Obligor or other Luxembourg person or the context so requires, a reference to:
 
 	(a)	a “ winding-up ”, “ liquidation ”, “ insolvency ”, “ administration ” or “ dissolution ” includes, without limitation, bankruptcy ( faillite ), insolvency, voluntary or judicial liquidation ( liquidation volontaire ou judiciaire ), composition with creditors ( concordat pr é ventif de faillite ), reprieve from payment ( sursis de paiement ), controlled management ( gestion contr ô l é e ), general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally	
 
 	(b)	a “ receiver ”, “ administrative receiver ”, “ administrator ”, “ liquidator ” or the like includes, without limitation, a juge d é l é gu é , expert-v é rificateur, commissaire, juge-commissaire, mandataire ad hoc, administrateur provisoire, liquidateur or curateur ;	
 
 	(c)	a “ lien ” or “ security interest ” includes any hypoth è que, nantissement, gage, privil è ge, s û ret é r é elle, droit de retention and any type of real security in rem ( s û ret é r é elle ) or agreement or arrangement having a similar effect and any transfer of title by way of security;	
 
52

 	(d)	“ by-laws ” or “ constitutional documents ” includes its up-to-date (restated) articles of association ( statuts coordonnés );	
 
 	(e)	a “ person being unable to pay its debts ” includes that person being in a state of cessation of payments ( cessation de paiements ) and which has lost its creditworthiness ( é branlement de credit ); and	
 
 	(f)	a “ director ” includes a g é rant or an administrateur as applicable.	
 
2.	THE FACILITY	
 
2.1	The Original Facilities	
 
 	(a)	Subject to the terms of this Agreement:	
 
 	(i)	the Lenders under the Original Facility 1 make available a multicurrency revolving credit facility in an aggregate amount the Base Currency Amount of which is equal to the Total Original Facility 1 Commitments; and	
 
 	(ii)	the Lenders under the Original Facility 2 make available a multicurrency revolving credit facility in an aggregate amount the Base Currency Amount of which is equal to the Total Original Facility 2 Commitments.	
 
 	(b)	The Original Facility 1 will be available to the Original Facility 1 Borrowers and the Original Facility 2 will be available to the Original Facility 2 Borrowers.	
 
 	(c)	Subject to the terms of this Agreement and the Ancillary Documents, an Ancillary Lender may make available an Ancillary Facility to any of the Original Facility Borrowers under an Original Facility in place of all or part of its Commitment under that Original Facility.	
 
2.2	Additional Facility	
 
 	(a)	Subject to this Clause 2.2, the Company may, at any time and from time to time following the Closing Date, by delivering to the Agent and the Security Agent a duly completed Additional Facility Notice signed by an authorised signatory and complying with paragraphs (b) and (c) below, establish an Additional Facility by way of (i) the introduction of a new additional commitment or facility as a Facility under this Agreement or (ii) as an additional tranche of or increase in a Facility (including each Original Facility and any previously incurred Additional Facility) under this Agreement.	
 
53

 	(b)	No consent of any Finance Party is required to establish an Additional Facility at any time (other than, in relation to an Additional Facility, the relevant Additional Facility Lenders) provided that (unless otherwise agreed by the Majority Lenders) each of the following applicable conditions are met:	
 
 	(i)	after giving pro forma effect to the borrowing, issuance or incurrence of the principal or equivalent amount of the proposed Additional Facility as if drawn in full on that Additional Facility Commencement Date, the Credit Facilities Basket as at the applicable Additional Facility Commencement Date would not be exceeded;	
 
 	(ii)	no Event of Default is continuing at the time the applicable Additional Facility is committed; and	
 
 	(iii)	such Additional Facility is designated as increasing an existing “Facility” (including each Original Facility or a previously incurred Additional Facility) or as a standalone “Additional Facility” for the purposes of this Agreement and designated as “ Super Senior Lender Liabilities ”, “ Senior Secured Liabilities ” or as “ Second Lien Liabilities ” or as “ Topco Liabilities ” (as applicable) as defined in and for the purposes of the Intercreditor Agreement.	
 
 	(iv)	such Additional Facility:	
 
 	(A)	ranks pari passu with or junior to the Original Facilities; and	
 
 	(B)	if secured, subject to the Finance Parties complying with all relevant obligations under paragraph (g) below, that any Security granted by any member of the Group in respect of obligations of the Group under an Additional Facility constitutes Transaction Security for the purposes of this Agreement and the Intercreditor Agreement.	
 
 	(c)	The Additional Facility Notice shall not be regarded as having been duly completed unless it is signed by the Company and each party thereto and specifies the following matters in respect of such Additional Facility:	
 
 	(i)	the proposed borrower(s) and guarantor(s) in respect of the Additional Facility;	
 
 	(ii)	the person(s) to become Additional Facility Lenders in respect of the Additional Facility and the amount of the commitments of such Additional Facility allocated to each Additional Facility Lender;	
 
 	(iii)	the aggregate amount of the commitments of the Additional Facility and the currency being made available and any other or optional currency or currencies which are available for utilisation under such Additional Facility;	
 
 	(iv)	the purpose and permitted usage of such Additional Facility and any additional conditions to drawdown of such Additional Facility (which may be as agreed between the Company and the Additional Facility Lenders (each acting reasonably) providing that Additional Facility), including any Agreed Certain Funds Period and related conditions;	
 
54

 	(v)	the rate of interest applicable to the Additional Facility (including any applicable margin, basis, floor and/or margin ratchet) and commitment fee and other fees payable in respect of that Additional Facility;	
 
 	(vi)	the Additional Facility Commencement Date and Availability Period for the Additional Facility;	
 
 	(vii)	the Termination Date, repayment profile, amortisation schedule and any mandatory prepayment provisions; and	
 
 	(viii)	each of the requirements of paragraph (b) above and confirmation of each of the conditions set out in paragraph (b) above are satisfied,	
such Additional Facility Notice shall be deemed to have been duly completed if it is signed by each party thereto and specifies the matters in paragraphs (c)(i) to (c)(viii) above in respect of such Additional Facility and, prior to the applicable Additional Facility Commencement Date, without prejudice to the rights of the Agent to request any other information which the Agent or Security Agent may reasonably require in relation to such Additional Facility.
 
 	(d)	Subject to the conditions set out in paragraph (b) of this Clause 2.2 being satisfied, following receipt by the Agent of a duly completed Additional Facility Notice and with effect from the relevant Additional Facility Commencement Date (or any later date on which the conditions set out in paragraph (e) below are satisfied) the relevant Additional Facility shall come into effect and be established in accordance with its terms and:	
 
 	(i)	the Additional Facility Lenders participating in the relevant Additional Facility shall make available that Additional Facility in the aggregate amount set out in the Additional Facility Notice;	
 
 	(ii)	each of the Obligors, the Holdco Guarantors and the Security Providers and each Additional Facility Lender under the relevant Additional Facility shall assume such obligations towards one another and/or acquire such rights against one another as the Obligors, the Holdco Guarantors and the Security Providers and such Additional Facility Lenders would have assumed and/or acquired had the Additional Facility Lenders been Original Lenders in respect of the relevant Additional Facility;	
 
 	(iii)	in relation to an Additional Facility Lender which is not already a Lender, each Additional Facility Lender under the relevant Additional Facility shall become a Party to this Agreement as a Lender;	
 
 	(iv)	each Additional Facility Lender under the relevant Additional Facility shall become a Party as a “Lender” and each Additional Facility Lender under the relevant Additional Facility and each of the other Finance Parties shall assume such obligations towards one another and acquire such rights against one another as those Additional Facility Lenders and those Finance Parties would have assumed and/or acquired had the Additional Facility Lenders been Original Lenders in respect of the relevant Additional Facility; and	
 
55

 	(v)	the Commitments of the other Lenders shall continue in full force and effect.	
 
 	(e)	The establishment of an Additional Facility will only be effective on:	
 
 	(i)	the execution of the Additional Facility Notice relating to such Additional Facility by the Company, the relevant Borrower(s) and the relevant Additional Facility Lender(s) and delivery of such executed notice to the Agent;	
 
 	(ii)	in relation to an Additional Facility Lender which is not already a Lender, receipt by the Agent of an Additional Facility Lender Accession Notice from each person referred to in the relevant Additional Facility Notice as an Additional Facility Lender and, to the extent that it is not already a party to the Intercreditor Agreement in the applicable capacity, the accession of each Additional Facility Lender to the Intercreditor Agreement as a “ Super Senior Lender ”, “ Senior Lender ”, “ Second Lien Lender ” or “ Topco Lender ” (as applicable) as defined in and for the purposes of the Intercreditor Agreement; and	
 
 	(iii)	in relation to an Additional Facility Lender which is not already a Lender, the performance by the Agent of all necessary know your customer or other similar checks under all applicable laws and regulations in relation to that Additional Facility Lender making available an Additional Facility, the completion of which the Agent shall promptly notify to the Company,	
and no Utilisation Request in relation to an Additional Facility shall be valid unless prior to (or simultaneously with) the delivery of the relevant Utilisation request in relation to such Additional Facility, the requirements of this Clause 2.2 have been satisfied.
 
 	(f)	Each Obligor and each Holdco Guarantor:	
 
 	(i)	irrevocably authorises the Company to sign each Additional Facility Notice and to agree, implement and establish Additional Facilities in accordance with this Agreement on its behalf; and	
 
 	(ii)	confirms that its guarantee and indemnity recorded in Clause 23 ( Guarantee and Indemnity ) (or any applicable Accession Deed or other Finance Document) and all Transaction Security granted by it will, subject only to any applicable limitations on such guarantee and indemnity referred to in Clause 23 ( Guarantee and Indemnity ) and any Accession Deed pursuant to which it became an Obligor or a Holdco Guarantor or the terms of the Transaction Security Documents, extend to include the Additional Facility Loans and any other obligations arising under or in respect of the Additional Facility Commitments.	
 
56

 	(g)	Each Party irrevocably authorises, empowers and instructs:	
 
 	(i)	the Agent to acknowledge, execute and confirm acceptance of each Additional Facility Notice;	
 
 	(ii)	the Agent and the Security Agent to acknowledge, execute and confirm acceptance of each Additional Facility Lender Accession Notice and, if applicable, the documentation required for the Additional Facility Lender to accede to the Intercreditor Agreement; and	
 
 	(iii)	the Agent and the Security Agent to execute any necessary amendments, confirmations, supplements or revisions to this Agreement, the Transaction Security Documents and any other Finance Documents as may be required in order to ensure that any Additional Facility, if legally possible, ranks in accordance with the provisions set out in the applicable Additional Facility Notice and, in the case of Additional Facilities which are not designated as “ Super Senior Lender Liabilities ”, as defined in and for the purposes of the Intercreditor Agreement, to include the appropriate class voting mechanics.	
 
 	(h)	The Agent and/or the Security Agent shall as soon as reasonably practicable send to the Company a copy of each executed Additional Facility Notice and, if applicable, Additional Facility Lender Accession Notice and, if applicable, the documentation required for the Additional Facility Lender to accede to the Intercreditor Agreement.	
 
 	(i)	By signing an Additional Facility Notice as an Additional Facility Lender, each such entity agrees to commit the Additional Facility Commitments set out against its name in that notice and, in the case of an entity which is not already a party to this Agreement as a Lender, become a Lender and a Party to this Agreement and to the Intercreditor Agreement.	
 
 	(j)	Notwithstanding any provision of a Finance Document to the contrary, there shall be no obligation or requirement to enter into any hedging arrangement or other derivative transaction in relation to any Additional Facility.	
 
 	(k)	Each Additional Facility Lender, by executing the relevant Additional Facility Notice confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any consent, release, waiver or amendment that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the relevant Additional Facility becomes effective and that it is bound by that decision and by the operations of any other provisions of this Agreement in relation to such consent, release, waiver or amendment.	
 
 	(l)	No Lender will have any obligation to participate in an Additional Facility (unless it has executed and delivered an Additional Facility Lender Accession Notice or otherwise become an Additional Facility Lender in respect of that Additional Facility). By signing an Additional Facility Notice as an Additional Facility Lender, each such entity agrees to commit the Additional Facility Commitments set out against its name in that Additional Facility Notice.	
 
57

 	(m)	The Agent may, and is authorised to, disclose the terms of any Additional Facility Notice to any of the other Finance Parties and will do so promptly upon request by the Company or other Finance Parties.	
 
 	(n)	Clause 29.4 ( Limitation of responsibility of Existing Lenders ) shall apply mutatis mutandis in this Clause 2.2 in relation to an Additional Facility Lender as if references in that Clause to:	
 
 	(i)	an Existing Lender were references to all the Lenders immediately prior to the establishment of the relevant Additional Facility;	
 
 	(ii)	the New Lender were references to that Additional Facility Lender; and	
 
 	(iii)	a re-transfer and re-assignment were references to respectively a transfer and assignment.	
 
 	(o)	The Company may pay to an Additional Facility Lender a fee in the amount and at the times agreed between the Company and the Additional Facility Lender in a Fee Letter.	
 
 	(p)	The establishment, terms or conditions or use of proceeds of any Additional Facility shall be governed by this Clause 2.2 which shall apply irrespective and notwithstanding any other provision of this Agreement and, except to the extent as provided in this Clause 2.2, the terms applicable to any Additional Facility will be those agreed by the Additional Facility Lenders in respect of that Additional Facility and the Company and set out in the applicable Additional Facility Notice, provided that :	
 
 	(i)	if there is any inconsistency between any such term agreed in respect of an Additional Facility and any term of a Finance Document, the term agreed in respect of the Additional Facility shall prevail with respect to such Additional Facility (subject to the other terms and conditions of this Clause 2.2);	
 
 	(ii)	unless otherwise specified in the applicable Additional Facility Notice, the terms of the Additional Facility shall be the same as the terms given to the Original Facilities under this Agreement; and	
 
 	(iii)	the provisions of this Agreement will apply to each Additional Facility and the provisions of Clause 4 ( Conditions Of Utilisation ) and of Clause 5 ( Utilisation – Loans ) will apply to all Utilisations of any Additional Facility, provided that no Utilisation Request in relation to an Additional Facility shall be valid unless prior to (or simultaneously with) such Utilisation Request being delivered the requirements of this Clause 2.2 have been satisfied.	
 
58

2.3	Increase	
 
 	(a)	Subject to Clause 30 ( Restrictions on Debt Purchase Transactions ), the Company may by giving prior notice to the Agent after the effective date of a cancellation of:	
 
 	(i)	the Available Commitments of a Defaulting Lender in accordance with Clause 11.6 ( Right of cancellation in relation to a Defaulting Lender );	
 
 	(ii)	the Commitments of a Lender in accordance with:	
 
 	(A)	Clause 11.1 ( Illegality ); or	
 
 	(B)	paragraph (a) of Clause 11.5 ( Right of cancellation and repayment in relation to a single Lender or Issuing Bank )	
 
 	(iii)	any Commitments of a Lender in accordance with Clause 41.7 ( Replacement of Lender ),	
request that the Commitments relating to any Facility be increased (and the Commitments relating to that Facility shall be so increased) in an aggregate amount in the applicable currency of up to the amount of the Available Commitments or Commitments relating to that Facility so cancelled as follows:
 
 	(A)	the increased Commitments will be assumed by one or more Lenders or other banks, financial institutions, trusts, funds, entities or other persons (each an “ Increase Lender ”) selected by the Company and each of which confirms in writing (whether in the relevant Increase Confirmation or otherwise) its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender;	
 
 	(B)	each of the Obligors, each Holdco Guarantor and each Security Provider and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender;	
 
 	(C)	each Increase Lender shall become a Party as a “Lender” and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender;	
 
 	(D)	the Commitments of the other Lenders shall continue in full force and effect; and	
 
59

 	(E)	any increase in the Commitments relating to a Facility shall take effect on the date specified by the Company in the notice referred to above or any later date on which the conditions set out in paragraph (b) below are satisfied.	
 
 	(b)	An increase in the Commitments relating to a Facility will only be effective on:	
 
 	(i)	the execution by the Agent of an Increase Confirmation from the relevant Increase Lender which the Agent shall, if all the applicable conditions set out in this Clause 2.3 have been satisfied, execute promptly on request;	
 
 	(ii)	in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase:	
 
 	(A)	the Increase Lender entering into the documentation required for it to accede as a party to the Intercreditor Agreement; and	
 
 	(B)	the performance by the Agent of all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender, the completion of which the Agent shall promptly notify to the Company, the Increase Lender and the Issuing Bank upon being so satisfied; and	
 
 	(iii)	in the case of an increase in the Total Commitments, the relevant Issuing Bank consenting to the identity of the relevant Increase Lender (unless that Increase Lender is a person with a long term corporate credit rating equal to or better than BBB- or Baa3 (as applicable) according to at least two of Moody’s, S&P and Fitch).	
 
 	(c)	Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective.	
 
 	(d)	The Increase Lender shall, on the date upon which the increase takes effect, pay to the Agent (for its own account) a fee in an amount equal to the fee which would be payable under Clause 29.3 ( Assignment or transfer fee ) if the increase was a transfer pursuant to Clause 29.5 ( Procedure for Transfer ) and if the Increase Lender was a New Lender.	
 
 	(e)	The Company may pay to the Increase Lender a fee in the amount and at the times agreed between the Company and the Increase Lender in a Fee Letter.	
 
 	(f)	Clause 29.4 ( Limitation of responsibility of Existing Lenders ) shall apply mutatis mutandis in this Clause 2.3 in relation to an Increase Lender as if references in that Clause to:	
 
 	(i)	an “ Existing Lender ” were references to all the Lenders immediately prior to the relevant increase;	
 
60

 	(ii)	the “ New Lender ” were references to that “Increase Lender”; and	
 
 	(iii)	a “ re-transfer ” and “ re-assignment ” were references to respectively a “ transfer ” and “ assignment ”.	
 
 	(g)	The Finance Parties shall be required to enter into any amendment to the Finance Documents (including, without limitation, in relation to any changes to, the taking of, or the release coupled with the retaking of, Transaction Security) required by the Company in order to facilitate or reflect any of the matters contemplated by this Clause 2.3. The Agent and the Security Agent are each authorised and instructed by each Finance Party (without any consent, sanction, authority or further confirmation from them) to execute any such amended or replacement Finance Documents (and shall do so on the request of and at the cost of the Company).	
 
 	(h)	Nothing in this Clause 2.3 shall operate to increase the Total Commitments in effect at that time.	
 
2.4	Finance Parties’ rights and obligations	
 
 	(a)	The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.	
 
 	(b)	The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor, Holdco Guarantor or Security Provider is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor, Holdco Guarantor or Security Provider which relates to a Finance Party’s participation in a Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor, Holdco Guarantor or Security Provider.	
 
 	(c)	A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.	
 
2.5	Obligors’ Agent	
 
 	(a)	Each Obligor (other than the Company) by its execution of this Agreement, an Accession Deed or a Transaction Security Document irrevocably appoints the Company (acting through one or more authorised signatories) to act on its	
 
61

 	behalf as its agent and attorney in fact in relation to the Finance Documents and irrevocably (to the extent permitted by law) authorises:	
 
 	(i)	the Company on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions (including, in the case of a Borrower, Utilisation Requests), to execute on its behalf any Accession Deed, to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect the Obligor, without further reference to or the consent of that Obligor; and	
 
 	(ii)	each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Company,	
and, in each case, the Obligor shall be bound as though the Obligor itself (as applicable) had given the notices and instructions (including, without limitation, any Utilisation Requests) or executed or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication and each Finance Party may rely on any action taken by the Company on behalf of that Obligor.
 
 	(b)	Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Obligors’ Agent or given to the Obligors’ Agent under any Finance Document on behalf of another Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or after such other Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it (to the extent permitted by law). In the event of any conflict between any notices or other communications of the Obligors’ Agent and any other Obligor, those of the Obligors’ Agent shall prevail.	
 
 	(c)	The Brazilian Guarantor shall renew the appointment of the Company to act as its Obligors’ Agent on each anniversary of the date of this Agreement	
 
3.	PURPOSE	
 
3.1	Purpose	
 
 	(a)	Each Original Facility Borrower shall apply all amounts borrowed by it under an Original Facility, towards directly or indirectly financing or refinancing the working capital and/or the general corporate purposes of the Group, including, without limitation, the financing or refinancing of (i) any interest payments under or in connection with the Notes and any original issue discount, fees, costs and expenses arising in connection with the Transaction; (ii) capital expenditure; (iii) any Permitted Acquisition, investment and joint venture; (iv) operational restructurings or reorganisation requirements of the Group; and (v) any working capital related adjustments (however structured) relating to or arising in connection with any Permitted Acquisition.	
 
62

 	(b)	Each Additional Facility Borrower shall apply all amounts borrowed by it under an Additional Facility towards the purposes specified in the Additional Facility Notice relating to the relevant Additional Facility Commitments.	
 
3.2	Monitoring	
No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.
 
4.	CONDITIONS OF UTILISATION	
 
4.1	Initial conditions precedent	
 
 	(a)	The Lenders will only be obliged to comply with Clause 5.4 ( Lenders ’ participation ) in relation to any Utilisation if on or before the Utilisation Date for that Utilisation, the Agent has received all of the documents and other evidence listed in Part 1 of Schedule 2 ( Conditions Precedent ) in form and substance satisfactory to the Agent (acting reasonably) or receipt of such documents and evidence has been waived by the Agent (acting reasonably and acting on the instructions of the Majority Lenders each also acting reasonably). The Agent shall notify the Company and the Lenders promptly upon being so satisfied.	
 
 	(b)	Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (a) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.	
 
4.2	Further conditions precedent	
 
 	(a)	Subject to Clause 4.1 ( Initial conditions precedent ) and paragraph (b) below, the Lenders will only be obliged to comply with Clause 5.4 ( Lenders ’ participation ), in relation to a Utilisation (other than one to which Clause 4.5 ( Utilisations of Facility/Additional Facility during the Agreed Certain Funds Period ) applies), if on the date of the Utilisation Request and on the proposed Utilisation Date:	
 
 	(i)	in the case of any Utilisation (other than a Rollover Utilisation):	
 
 	(A)	no Default has occurred and is continuing or would occur as a result of the proposed Utilisation;	
 
 	(B)	the Repeating Representations are true in all material respects (or, to the extent a materiality test applies, all respects); and	
 
 	(C)	solely in the case of the Original Facilities and any Additional Facility where the relevant Additional Facility Notice specifies that this provision applies, no Financial Covenant Draw Stop Event has occurred and is continuing; and	
 
63

 	(ii)	in the case of a Rollover Utilisation, no Declared Default has occurred and is continuing.	
 
 	(b)	The Agent (acting on the instructions of the relevant Majority Lenders) may waive the requirements set out in paragraph (a) in relation to a proposed Utilisation.	
 
4.3	Conditions relating to Optional Currencies	
 
 	(a)	A currency will constitute an Optional Currency in relation to a Utilisation if:	
 
 	(i)	in the case of the Original Facility 1, it is MEX$;	
 
 	(ii)	in the case of the Original Facility 2, it is EUR; or	
 
 	(iii)	in the case of an Additional Facility, it is EUR, USD, MEX$ or any currencies specified in the Additional Facility Notice relating to the applicable Additional Facility Commitments; or	
 
 	(iv)	otherwise it:	
 
 	(A)	is readily available in the amount required and freely convertible into the Base Currency in the Relevant Interbank Market on the Quotation Day and the Utilisation Date for that Utilisation; and	
 
 	(B)	it has been approved by the Agent (acting on the instructions of all the Lenders participating in the applicable Facility (each acting reasonably)) on or prior to receipt by the Agent of the relevant Utilisation Request for that Utilisation.	
 
 	(b)	If the Agent has received a written request from the Company for a currency to be approved under paragraph (a)(iv) above, the Agent will confirm to the Company by the Specified Time:	
 
 	(i)	whether or not the relevant Lenders participating in that Utilisation have granted their approval; and	
 
 	(ii)	if approval has been granted, the minimum amount for any subsequent Utilisation in that currency (which the Agent shall determine acting reasonably and in consultation with the Company).	
 
4.4	Maximum number of Utilisations	
 
 	(a)	A Borrower (or the Company) may not deliver a Utilisation Request in respect of the Original Facilities if as a result of the proposed Utilisation more than thirty (30) Original Facility Loans (or such higher number as may be agreed by the Company and the Agent) would be outstanding, or if:	
 
 	(i)	more than ten (10) Loans denominated in the Base Currency;	
 
 	(ii)	more than ten (10) Loans denominated in EUR; or	
 
64

 	(iii)	more than ten (10) Loans denominated in MEX$,	
(or in each case such higher number as may be agreed by the Company and the Agent) would be outstanding.
 
 	(b)	A Borrower (or the Company) may not deliver a Utilisation Request in respect of an Additional Facility if as a result of the proposed Utilisation more than the maximum number of utilisations of that Additional Facility (as agreed between the Company and the Agent) would be outstanding.	
 
 	(c)	Any Loan made by a single Lender under Clause 8.2 ( Unavailability of a currency ) shall not be taken into account in this Clause 4.4.	
 
 	(d)	Any Separate Loan shall not be taken into account in this Clause 4.4.	
 
 	(e)	A Borrower (or the Company) may not request that a Letter of Credit be issued under the Original Facilities if as a result of the proposed Utilisation more than thirty (30) Letters of Credit (or such other number as may be agreed by the Company, the Issuing Bank and the Agent) would be outstanding or if:	
 
 	(i)	more than ten (10) Letters of Credit denominated in the Base Currency;	
 
 	(ii)	more than ten (10) Letters of Credit denominated in EUR; or	
 
 	(iii)	more than ten (10) Letters of Credit denominated in MEX$,	
(or in each case such higher number as may be agreed by the Company and the Agent) would be outstanding.
 
4.5	Utilisations of Facility/Additional Facility during the Agreed Certain Funds Period	
 
 	(a)	Subject to Clause 4.1 ( Initial conditions precedent ), during the relevant Agreed Certain Funds Period, a Lender under an Original Facility or an Additional Facility Lender (as the case may be) will only be obliged to comply with Clause 5.4 ( Lenders ’ participation ) in relation to the relevant Agreed Certain Funds Utilisation if:	
 
 	(i)	the Company and each of the Lenders under that Original Facility or relevant Additional Facility Lenders (as the case may be) have agreed that that Original Facility or relevant Additional Facility shall be made available on a “ certain funds basis ” for a specified purpose in connection with a Permitted Acquisition or such other agreed purpose, for such period and on such terms or conditions (if any) as the Company and those Lenders under the relevant Original Facility or relevant Additional Facility Lenders (as the case may be) shall agree and notify in writing to the Agent at least three (3) Business Days (or such shorter period agreed with the Agent) prior to the date of the Utilisation Request; and	
 
65

 	(ii)	on the proposed Utilisation Date:	
 
 	(A)	no Major Default has occurred and is continuing or would result from the proposed Agreed Certain Funds Utilisation;	
 
 	(B)	all the Major Representations are true and correct in all material respects (or, to the extent a materiality test applies, all respect);	
 
 	(C)	no Change of Control has occurred; and	
 
 	(D)	the applicable conditions or events (if any) specified in the relevant Additional Facility Notice or other notice in relation to that Agreed Certain Funds Period and Agreed Certain Funds Utilisation are complied with or satisfied.	
 
 	(b)	During the Agreed Certain Funds Period (save in respect of a Lender under an Original Facility or relevant Additional Facility Lender (as the case may be) in circumstances where, pursuant to paragraph (a) above, that Lender under that Original Facility or Additional Facility Lender (as the case may be) is not obliged to comply with Clause 5.4 ( Lenders ’ participation ) and subject as provided in Clause 11.1 ( Illegality )), none of the Lenders under that Original Facility or relevant Additional Facility Lenders (as the case may be) shall be entitled in respect of an Agreed Certain Funds Utilisation (and the corresponding Commitments to which it relates) to:	
 
 	(i)	cancel any of its Commitments in respect of that Original Facility or Additional Facility Commitments (as the case may be) to the extent to do so would prevent or limit the making of an Agreed Certain Funds Utilisation;	
 
 	(ii)	rescind, terminate or cancel this Agreement or the relevant Facility or exercise any similar right or remedy or make or enforce any claim under the Finance Documents it may have in respect of a Facility to which the provisions of this Clause apply to the extent to do so would directly or indirectly prevent or limit the making of an Agreed Certain Funds Utilisation;	
 
 	(iii)	refuse to participate in the making of an Agreed Certain Funds Utilisation;	
 
 	(iv)	exercise any right of set-off or counterclaim or similar right or remedy which it may exercise in respect of an Agreed Certain Funds Utilisation to the extent to do so would prevent or limit the making of an Agreed Certain Funds Utilisation;	
 
 	(v)	cancel, accelerate or cause repayment or prepayment of any amounts owing under this Agreement or under any other Finance Document or exercise any enforcement rights under any Transaction Security Document in respect of a Facility to which the provisions of this Clause apply to the extent to do so would prevent or limit the making of an Agreed Certain Funds Utilisation;	
 
66

 	(vi)	take any other action or make or enforce any claim (in its capacity as a Lender) to the extent that such action, claim or enforcement would directly or indirectly prevent or limit the making of an Agreed Certain Funds Utilisation; or	
 
 	(vii)	declare that cash cover in relation to a Letter of Credit or an Ancillary Facility is immediately due and payable on demand,	
provided that :
 
 	(A)	immediately upon the expiry of the relevant Agreed Certain Funds Period all such rights, remedies and entitlements shall be available to the Finance Parties notwithstanding that they may not have been used or been available for use during the applicable Agreed Certain Funds Period; and	
 
 	(B)	this Clause 4.5 shall be without prejudice to, and shall not prevent or limit the exercise of, any rights of any of the Finance Parties in respect of any other Facility, Loan, Utilisation or Commitment.	
 
5.	UTILISATION – LOANS	
 
5.1	Delivery of a Utilisation Request	
A Borrower (or the Company on its behalf) may utilise a Facility by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time (or such later time as the Agent may agree).
 
5.2	Completion of a Utilisation Request for Loans	
 
 	(a)	Each Utilisation Request for a Loan shall be irrevocable and will not be regarded as having been duly completed unless:	
 
 	(i)	it identifies the Facility to be utilised ( provided that , in the case of a Loan denominated in the Base Currency, the Original Facilities shall be utilised on a pro rata basis);	
 
 	(ii)	it identifies the relevant Borrower;	
 
 	(iii)	fPeriod applicable to the Facility;	
 
 	(iv)	the currency and amount of the Utilisation comply with Clause 5.3 ( Currency and amount ); and	
 
 	(v)	the proposed Interest Period complies with Clause 15 ( Interest Periods ).	
 
 	(b)	Multiple Utilisations may be requested in a Utilisation Request where the proposed Utilisation Date is on the Closing Date. Unless otherwise agreed with the Agent, only one Utilisation may be requested in each subsequent Utilisation Request.	
 
67

5.3	Currency and amount	
 
 	(a)	The currency specified in a Utilisation Request must be:	
 
 	(i)	in relation to the Original Facilities, the Base Currency or the applicable Optional Currencies; and	
 
 	(ii)	in relation to the Additional Facility, as agreed by the relevant Additional Facility Lenders and specified in the applicable Additional Facility Notice.	
 
 	(b)	The amount of a proposed Utilisation under an Original Facility or an Additional Facility must:	
 
 	(i)	if the currency selected is the Base Currency, be a minimum of USD 1,000,000 (and an integral multiple of USD 1,000,000) or, if less, the Available Facility;	
 
 	(ii)	if the currency selected is MEX$, be a minimum of MEX$ 10,000,000 (and an integral multiple of MEX$ 1,000,000) or, if less, the Available Facility;	
 
 	(iii)	if the currency selected is EUR, be a minimum of EUR 1,000,000 (and an integral multiple of EUR 1,000,000) or, if less, the Available Facility; and	
 
 	(iv)	if the currency selected is any other Optional Currency, the minimum amount specified by the Agent pursuant to paragraph (b)(ii) of Clause 4.3 ( Conditions relating to Optional Currencies ) or, if less, the Available Facility.	
 
5.4	Lenders’ participation	
 
 	(a)	If the conditions set out in this Agreement have been met, and subject to Clause 10.1 ( Repayment of Loans ), each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.	
 
 	(b)	Other than as set out in paragraph (c) below, the amount of each Lender’s participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility in each case in relation to the relevant Facility immediately prior to making the Loan.	
 
 	(c)	If a Utilisation is made to repay Ancillary Outstandings, each Lender’s participation in that Utilisation will be in an amount (as determined by the Agent) which will result as nearly as possible in the aggregate amount of its participation in the Utilisations then outstanding bearing the same proportion to the aggregate amount of the Loans then outstanding as its Commitment bears to the Total Commitments.	
 
 	(d)	The Agent shall determine the Base Currency Amount (if applicable) of each Loan which is to be made in an Optional Currency and notify each Lender of the amount, currency and the Base Currency Amount of each Loan, the	
 
68

 	amount of its participation in that Loan and, if different, the amount of that participation to be made available in accordance with Clause 35.1 ( Payments to the Agent ) by the Specified Time.	
 
5.5	Limitations on Utilisations	
The Original Facilities may not be utilised unless the Notes have been issued but the Original Facilities may be utilised contemporaneously with the Notes being issued.
 
5.6	Cancellation of Commitment	
 
 	(a)	The Total Original Facilities Commitments shall be immediately cancelled on the earlier of:	
 
 	(i)	if the Closing Date has not then occurred, 11:59 pm (in London) on Monday 18 September 2017; and	
 
 	(ii)	the date, prior to the Closing Date, on which the Company (or any of its Affiliates) determines and notifies the Lenders in writing (which notification shall be provided as soon as reasonably practicable after making such determination) that it will not be proceeding with the Transaction.	
 
 	(b)	The Additional Facility Commitments which are unutilised at the end of the Availability Period applicable for those Additional Facility Commitments shall be immediately cancelled at the end of the Availability Period for those Additional Facility Commitments or, in the case of a Permitted Acquisition, if the closing date in respect of that Permitted Acquisition has not occurred prior to the end of the applicable Agreed Certain Funds Period, at the end of that Agreed Certain Funds Period.	
 
5.7	Lender Affiliates	
 
 	(a)	A Lender may nominate (by written notice to the Agent and the Company in an Affiliate Designation Notice) a branch or Affiliate (a “ Designated Affiliate ”) to discharge its obligations to participate in one or more Loans (a “ Designated Loan ”):	
 
 	(i)	as set out in paragraph (f) below; or	
 
 	(ii)	in the Transfer Certificate, Assignment Agreement, Increase Confirmation, Additional Facility Notice or Additional Facility Lender Accession Notice pursuant to which such Lender becomes a Party.	
 
 	(b)	Any branch or Affiliate nominated by a Lender to participate in a Loan shall:	
 
 	(i)	participate therein in compliance with the terms of this Agreement; and	
 
 	(ii)	be entitled, to the extent of its participation, to all the rights and benefits of a Lender under the Finance Documents provided that such rights and benefits shall be exercised on its behalf by its nominating Lender save where law or regulation requires the branch or Affiliate to do so.	
 
69

 	(c)	Each Lender shall remain liable and responsible for the performance of all obligations assumed by a Designated Affiliate on its behalf under this Clause 5.7 and non-performance of a Lender’s obligations by its Designated Affiliate following a nomination under this Clause 5.7 shall not relieve such Lender from its obligations under this Agreement (but without prejudice to a Lender’s rights under Clause 29 ( Changes to the Lenders )).	
 
 	(d)	Neither the Company nor any Obligor shall be liable to pay any amount otherwise required to be paid by the Company or an Obligor under Clause 18 ( Tax Gross-Up and Indemnities ) or Clause 19 ( Increased Costs ) (arising as a result of laws or regulations in force or known to be coming into force on the date the relevant branch or Affiliate was nominated) in excess of the amount it would have been obliged to pay if that Lender had not nominated its branch or Affiliate to participate in the applicable Facility or, to the extent that such Lender nominated such branch or Affiliate for particular Loans in the Transfer Certificate, Assignment Agreement, Increase Confirmation, Additional Facility Notice or Additional Facility Lender Accession Notice pursuant to which such Lender became a Party, in excess of the amount which it would have been obliged to pay had that Lender continued to make only those particular Loans through that branch or Affiliate. Each Lender shall promptly notify the Agent and the Company of the Tax jurisdiction from which its branch or Affiliate will participate in the relevant Loans and such other information regarding that branch or Affiliate as the Company may reasonably request.	
 
 	(e)	Any notice or communication to be made to a branch or an Affiliate of a Lender pursuant to Clause 37 ( Notices ):	
 
 	(i)	may be served directly upon the branch or Affiliate, at the address supplied to the Agent by the nominating Lender pursuant to its nomination of such branch or Affiliate, where the Lender or the relevant branch or Affiliate requests this in order to mitigate any legal obligation to deduct Tax from any payment to such branch or Affiliate or any payment obligation which might otherwise arise pursuant to Clause 19.1 ( Increased costs ); or	
 
 	(ii)	in any other circumstance, may be delivered to the Facility Office of the Lender.	
 
 	(f)	If a Lender nominates an Affiliate, that Lender and that Affiliate:	
 
 	(i)	will be treated as having a single Commitment (being the Commitment of that Lender) but for all other purposes (other than those referred to in paragraphs (c) and (e)(ii) above and paragraph (ii) below) will be treated as separate Lenders; and	
 
70

 	(ii)	will be regarded as a single Lender for the purpose of:	
 
 	(A)	voting in relation to any matter in connection with a Finance Document; and	
 
 	(B)	compliance with Clause 29 ( Changes to the Lenders ).	
 
 	(g)	All payments of principal, interest, fees, costs and commissions in connection with a Designated Loan shall be for the account of the relevant Designated Affiliate. For the avoidance of doubt, this shall not apply to any commitment fee which shall be for the account of the relevant Lender.	
 
 	(h)	A Lender that has made a nomination in accordance with paragraph (a) or (f) above may revoke such nomination in relation to any future Loans by giving the Agent at least five (5) Business Days’ written notice.	
 
 	(i)	This Clause 5.7 is without prejudice to a Lender’s right to transfer its Commitments to an Affiliate under Clause 29 ( Changes to the Lenders ).	
 
6.	UTILISATION – LETTERS OF CREDIT	
 
6.1	The Facility	
 
 	(a)	A Facility may be utilised by way of Letters of Credit.	
 
 	(b)	Clause 5 ( Utilisation – Loans ) does not apply to utilisations by way of Letters of Credit.	
 
 	(c)	All Letters of Credit utilised under the terms of this Agreement and denominated in USD or MEX$ shall be issued by the Original Issuing Bank. The Original Issuing Bank shall not be an Issuing Bank for the purposes of Letters of Credit denominated in any other currency.	
 
6.2	Delivery of a Utilisation Request for Letters of Credit	
A Borrower (or the Company on its behalf) may request a Letter of Credit to be issued (for its own, or another member of the Group’s, obligations) by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time (or such later time as the relevant Issuing Bank may agree). Notwithstanding anything to the contrary in this Agreement, an Issuing Bank and a Borrower (or the Company on its behalf) may agree any alternative procedure for utilising and or renewing a Letter of Credit
 
6.3	Completion of a Utilisation Request for Letters of Credit	
Each Utilisation Request for a Letter of Credit shall be irrevocable and will not be regarded as having been duly completed unless:
 
 	(a)	it specifies that it is for a Letter of Credit;	
 
 	(b)	it identifies the Borrower of the Letter of Credit;	
 
 	(c)	it identifies the Facility to be utilised;	
 
71

 	(d)	it identifies the Issuing Bank that has agreed to issue the Letter of Credit;	
 
 	(e)	the proposed Utilisation Date is a Business Day within the Availability Period applicable to the relevant Facility;	
 
 	(f)	the currency and amount of the Letter of Credit comply with Clause 6.4 ( Currency and amount );	
 
 	(g)	the form of Letter of Credit is attached to the Utilisation Request and is approved by the relevant Issuing Bank (acting reasonably) or is substantially in the form set out in Schedule 10 ( Form of Letter of Credit );	
 
 	(h)	the Expiry Date of the Letter of Credit falls on or before the Termination Date in respect of the relevant Facility provided that the Expiry Date may fall after the Termination Date for the relevant Facility if the relevant Borrower has provided cash cover or procures that a back-to-back bank guarantee acceptable to the relevant Issuing Bank (acting reasonably) be issued in favour of the Issuing Bank for that Letter of Credit for the period from the Termination Date for the relevant Facility to (and including) the Expiry Date of the relevant Letter of Credit;	
 
 	(i)	the Term of the Letter of Credit is twelve (12) Months or less (or such longer period agreed with the Issuing Bank);	
 
 	(j)	the delivery instructions for the Letter of Credit are specified;	
 
 	(k)	the beneficiary of the Letter of Credit is identified; and	
 
 	(l)	the Issuing Bank is not precluded from issuing a Letter of Credit by law or regulation to the beneficiary of the Letter of Credit.	
 
6.4	Currency and amount	
 
 	(a)	The currency specified in a Utilisation Request must be the Base Currency or an Optional Currency.	
 
 	(b)	The amount of the proposed Letter of Credit must be:	
 
 	(i)	if the currency selected is the Base Currency, a minimum of USD 1,000,000 (and an integral multiple of USD 1,000,000), or, if less, the Available Facility;	
 
 	(ii)	if the currency selected is MEX$, a minimum of MEX$ 10,000,000 (and an integral multiple of MEX$ 1,000,000), or, if less, the Available Facility; and	
 
 	(iii)	if the currency selected is EUR, a minimum of EUR 1,000,000 (and an integral multiple of EUR 1,000,000), or, if less, the Available Facility;	
 
 	(iv)	if the currency selected is any other Optional Currency, the minimum amount specified by the Agent pursuant to paragraph (b)(ii) of Clause 4.3 ( Conditions relating to Optional Currencies ) or, if less, the Available Facility.	
 
72

6.5	Issue of Letters of Credit	
 
 	(a)	If the conditions set out in this Agreement have been met, the relevant Issuing Bank shall issue the Letter of Credit on the Utilisation Date.	
 
 	(b)	Subject to Clause 4.1 ( Initial conditions precedent ), an Issuing Bank will only be obliged to comply with paragraph (a) above in relation to a Letter of Credit other than one to which paragraph (c) below applies, if on the date of the Utilisation Request or Renewal Request and on the proposed Utilisation Date:	
 
 	(i)	in the case of any Utilisation (other than a Rollover Utilisation) (A) no Default has occurred and is continuing or would occur as a result from the proposed Utilisation, (B) the Repeating Representations to be made by each Obligor or Holdco Guarantor are true in all material respects (or in the case of such representations and warranties which are subject to a materiality threshold or qualification in accordance with their terms, are correct in all respects) and (C) solely in the case of the Original Facilities and any Additional Facility where the relevant Additional Facility Notice specifies that this provision applies, no Financial Covenant Draw Stop Event has occurred and is continuing; and	
 
 	(ii)	in the case of a Letter of Credit to be renewed or extended in accordance with Clause 6.6 ( Renewal of a Letter of Credit ), no Declared Default has occurred and is continuing.	
 
 	(c)	Subject to Clause 4.1 ( Initial conditions precedent ) and notwithstanding the conditions of paragraph (b) above during any Agreed Certain Funds Period, the Issuing Bank will only be obliged to comply with paragraph (a) above in relation to a Letter of Credit which is an Agreed Certain Funds Utilisation, if on the date of the Utilisation Request and on the proposed Utilisation Date:	
 
 	(i)	no Major Default has occurred and is continuing or would result from the issue of the proposed Letter of Credit;	
 
 	(ii)	all the Major Representations are true in all material respects (or, to the extent a materiality test applies, all respects);	
 
 	(iii)	no Change of Control has occurred; and	
 
 	(iv)	the applicable additional conditions or events (if any) specified in the relevant Additional Facility Notice or other notice in relation to the Agreed Certain Funds Period and Agreed Certain Fund Utilisation complied with or satisfied,	
in each case, provided that, during any Agreed Certain Funds Period, an extension of a Letter of Credit shall be permitted unless a Declared Default had occurred relating to the Facility.
 
73

 	(d)	During any Agreed Certain Funds Period save in circumstances where, pursuant to paragraph (c) above, an Issuing Bank is not obliged to comply with paragraph (a) above and subject as provided in Clause 11.2 ( Illegality in relation to Issuing Bank ), that Issuing Bank shall not be entitled to in respect of an Agreed Certain Funds Utilisation (and the corresponding Commitments to which it relates):	
 
 	(i)	cancel any of its Commitments in respect of the relevant Facility to the extent to do so would prevent or limit the making of a Letter of Credit which is an Agreed Certain Funds Utilisation;	
 
 	(ii)	rescind, terminate or cancel this Agreement or the relevant Facility or exercise any similar right or remedy or make or enforce any claim under the Finance Documents it may have to the extent to do so would directly or indirectly prevent or limit the making of a Letter of Credit which is an Agreed Certain Funds Utilisation;	
 
 	(iii)	refuse to participate in the making of a Letter of Credit which is an Agreed Certain Funds Utilisation;	
 
 	(iv)	exercise any right of set-off or counterclaim or similar right or remedy which it may exercise in respect of a Utilisation to the extent to do so would prevent or limit the making of a Letter of Credit which is an Agreed Certain Funds Utilisation;	
 
 	(v)	cancel, accelerate or cause repayment or prepayment of any amounts owing under this Agreement or under any other Finance Document or exercise any enforcement rights under any Transaction Security Document to the extent to do so would prevent or limit the issuing of a Letter of Credit which is an Agreed Certain Funds Utilisation;	
 
 	(vi)	take any other action or make or enforce any claim (in its capacity as Issuing Bank) to the extent that such action, claim or enforcement would directly or indirectly prevent or limit the Issuing of a Letter of Credit which is an Agreed Certain Funds Utilisation; or	
 
 	(vii)	declare that cash cover in relation to a Letter of Credit is immediately due and payable on demand,	
provided that :
 
 	(A)	immediately upon the expiry of the relevant Agreed Certain Funds Period all such rights, remedies and entitlements shall be available to the Issuing Bank notwithstanding that they may not have been used or been available for use during the relevant Agreed Certain Funds Period; and	
 
 	(B)	this Clause 6.5 shall be without prejudice to, and shall not prevent or limit the exercise of, any rights of any of the Finance Parties in respect of any other Facility, Loan, Utilisation or Commitment.	
 
74

 	(e)	The amount of each Lender’s participation in each Letter of Credit will be equal to the proportion borne by its Available Commitment to the relevant Available Facility immediately prior to the issue of the Letter of Credit.	
 
 	(f)	The Agent shall determine the Base Currency Amount of each Letter of Credit which is to be issued in an Optional Currency and shall notify the relevant Issuing Bank and each Lender of the details of the requested Letter of Credit and its participation in that Letter of Credit by the Specified Time.	
 
 	(g)	An Issuing Bank may issue a Letter of Credit in the form of a SWIFT message or other form of communication customary in the relevant market but has no obligation to do so.	
 
 	(h)	An Issuing Bank has no duty to enquire of any person whether or not any of the conditions set out in paragraph (b) have been met. An Issuing Bank may assume that those conditions have been met until it has been expressly notified to the contrary by the Agent. An Issuing Bank will have no liability to any person for issuing a Letter of Credit based on such assumption.	
 
 	(i)	An Issuing Bank is solely responsible for the form of the Letter of Credit that it issues. The Agent has no duty to monitor the form of that document.	
 
 	(j)	Subject to paragraph (i) of Clause 32.7 ( Rights and discretions ), an Issuing Bank and the Agent shall provide each other with any information reasonably requested by the other that relates to a Letter of Credit and its issue.	
 
6.6	Renewal of a Letter of Credit	
 
 	(a)	A Borrower (or the Company on its behalf) may request that any Letter of Credit issued on behalf of that Borrower be renewed by delivery to the relevant Issuing Bank and the Agent of a Renewal Request in substantially similar form to a Utilisation Request for a Letter of Credit by the Specified Time.	
 
 	(b)	Subject to the provision in paragraph (b)(i) of Clause 6.5 ( Issue of Letters of Credit ), the Finance Parties shall treat any Renewal Request in the same way as a Utilisation Request for a Letter of Credit except that the condition set out in paragraph (g) of Clause 6.3 ( Completion of a Utilisation Request for Letters of Credit ) shall not apply.	
 
 	(c)	The terms of each renewed Letter of Credit shall be the same as those of the relevant Letter of Credit immediately prior to its renewal, except that:	
 
 	(i)	its amount may be less than the amount of the Letter of Credit immediately prior to its renewal; and	
 
 	(ii)	its Term shall start on the date which was the Expiry Date of the Letter of Credit immediately prior to its renewal, (or if a different date is specified, on that date) and shall end on the proposed Expiry Date specified in the Renewal Request.	
 
75

 	(d)	Subject to paragraph (e) below, if the conditions set out in this Agreement have been met, the relevant Issuing Bank shall amend and re-issue any Letter of Credit pursuant to a Renewal Request.	
 
 	(e)	Where a new Letter of Credit is to be issued to replace by way of renewal of an existing Letter of Credit, the relevant Issuing Bank is not required to issue that new Letter of Credit until the Letter of Credit being replaced has been returned to the Issuing Bank or the Issuing Bank is satisfied either that it will be returned to it or otherwise that no liability can arise under it.	
 
 	(f)	In the event that a Renewal Request is given to an Issuing Bank, such Issuing Bank shall inform the Agent of its receipt of the same within such time period as such Issuing Bank and the Agent may agree.	
 
6.7	Reduction of a Letter of Credit	
 
 	(a)	If, on or before the proposed Utilisation Date of a Letter of Credit, any of the Lenders under the relevant Facility is a Non-Acceptable L/C Lender and:	
 
 	(i)	that Lender has failed to provide cash collateral to the Issuing Bank in accordance with Clause 7.4 ( Cash collateral by Non-Acceptable L/C Lender ); and	
 
 	(ii)	either:	
 
 	(A)	the Issuing Bank has not required the relevant Borrower to provide cash cover pursuant to Clause 7.5 ( Cash cover by Borrower ); or	
 
 	(B)	the relevant Borrower has failed to provide cash cover to the Issuing Bank in accordance with Clause 7.5 ( Cash cover by Borrower ),	
the relevant Issuing Bank may reduce the amount of that Letter of Credit by an amount equal to the amount of the participation of that Non-Acceptable L/C Lender in respect of that Letter of Credit and that Non-Acceptable L/C Lender shall be deemed not to have any participation (or obligation to indemnify the Issuing Bank) in respect of that Letter of Credit for the purposes of the Finance Documents.
 
 	(b)	The relevant Issuing Bank shall notify the Agent and the Company of each reduction made pursuant to this Clause 6.7.	
 
 	(c)	This Clause 6.7 shall not affect the participation of each other Lender in that Letter of Credit.	
 
6.8	Revaluation of Letters of Credit	
 
 	(a)	If any Letters of Credit are denominated in an Optional Currency, the Agent shall, in respect of each such Letter of Credit, at six (6) monthly intervals after the date of the Letter of Credit (the “ Revaluation Date ”) calculate the amount (the “ Notional Amount ”) which is the equivalent in the Base Currency of the	
 
76

 	outstanding principal amount of that Letter of Credit on the basis of the Agent’s Spot Rate of Exchange on the date of calculation. The Agent shall notify the Company of the amount, if any, by which the Notional Amount of any Letter of Credit exceeds the Base Currency Amount of such Letter of Credit (the “ Excess Amount ”).	
 
 	(b)	Subject to paragraph (c) below, in the event the Excess Amount in relation to a Letter of Credit is more than five (5) per cent. of the Base Currency Amount of such Letter of Credit, the Company shall procure that the Borrower for whose account that Letter of Credit has been issued provides, within three (3) Business Days of demand by the Agent, cash cover to the Agent in respect of that Letter of Credit in the currency in which Letter of Credit is denominated in an amount which would, on the date of calculation, have resulted in the Notional Amount of the outstanding principal amount of that Letter of Credit (after taking into account all cash cover for such Letter of Credit) being equal to the Base Currency Amount of such Letter of Credit.	
 
 	(c)	In the event that a Borrower has previously provided cash cover for a Letter of Credit pursuant to this Clause 6.8 and on any subsequent date of calculation under this Clause 6.8, the Notional Amount of the outstanding principal amount of that Letter of Credit (after taking into account all cash cover for such Letter of Credit) is equal to or less than its Base Currency Amount, the Agent shall, provided no Event of Default has occurred and is continuing, release such amount of such cash cover as would result in the Notional Amount of the outstanding principal amount of that Letter of Credit (after taking into account all cash cover for such Letter of Credit) not exceeding the Base Currency Amount of such Letter of Credit.	
 
 	(d)	The Company shall only be obliged to comply with paragraph (a) above in respect of a Revaluation Date to the extent that on such Revaluation Date the Facility Utilised Amount (as defined below) exceeds the aggregate amount of all the Commitments. For these purposes, on any Revaluation Date, the “ Facility Utilised Amount ” is the aggregate of:	
 
 	(i)	the amount of all outstanding Utilisations denominated in the Base Currency;	
 
 	(ii)	the principal amount of all outstanding Letters of Credit, if any, denominated in the Base Currency;	
 
 	(iii)	the equivalent in the Base Currency on the basis of the Agent’s Spot Rate of Exchange on such Letter of Credit of all outstanding Utilisations denominated in an Optional Currency;	
 
 	(iv)	the Notional Amounts of each outstanding Letter of Credit (after taking into account all cash cover for such Letter of Credit, if any, denominated in an Optional Currency);	
 
 	(v)	the amount of any Ancillary Outstandings denominated in the Base Currency; and	
 
77

 	(vi)	the equivalent in the Base Currency (on the basis of the Agent’s Spot Rate of Exchange on such Revaluation Date) of all Ancillary Outstandings denominated in an Optional Currency.	
 
6.9	Reduction or expiry of Letter of Credit	
If the amount of any Letter of Credit is wholly or partially reduced or it is repaid or prepaid or it expires prior to its Expiry Date, the relevant Issuing Bank and the Borrower that requested (or on behalf of which the Company requested) the issue of that Letter of Credit shall promptly notify the Agent of the details upon becoming aware of them.
 
6.10	Appointment of additional Issuing Banks	
Any Lender which has agreed to the Company’s request to be an Issuing Bank pursuant to the terms of this Agreement shall become an Issuing Bank for the purposes of this Agreement upon notifying the Agent and the Company that it has so agreed to be an Issuing Bank and acceding to this Agreement and the Intercreditor Agreement as an Issuing Bank and on making that notification that Lender shall become bound by the terms of this Agreement as an Issuing Bank.
 
6.11	Effect of Termination Date	
 
 	(a)	Each Letter of Credit shall be repaid by the Borrower of that Letter of Credit (or the Company on its behalf) on the Termination Date applicable to the relevant Facility, (or such earlier date in accordance with this Agreement) provided that if any Letter of Credit has an Expiry Date ending on or after the Termination Date applicable to the applicable Facility, without prejudice to the repayment obligation in Clause 6.8 ( Revaluation of Letters of Credit ), on such Termination Date each such Letter of Credit shall be repaid unless, in the case of a Letter of Credit with an Expiry Date falling after such Termination Date:	
 
 	(i)	the relevant Issuing Bank agrees that such Letter of Credit shall continue as between that Issuing Bank, and the relevant member of the Group on a bilateral basis and not as part of or under the Finance Documents; and	
 
 	(ii)	save for any rights and obligations against any other Finance Party under the Finance Documents arising prior to such Termination Date applicable to the relevant Facility, no rights and obligations in respect of the Letter of Credit shall, as between the Finance Parties, continue, any cash cover or other collateral provided by any Lender in relation to such Letter of Credit shall be released on the Termination Date, and the Transaction Security shall not (following release thereof by the Security Agent) support any such Letter of Credit in respect of any claims that arise after such Termination Date and, in such circumstances, from the Termination Date pursuant to paragraph (b) of Clause 7.3 ( Indemnities ) and Clause 7.4 ( Cash collateral by Non-Acceptable L/C Lender ) shall not apply to any such Letter of Credit or to any claim made or purported to be made under a Letter of Credit made after the Termination Date applicable to the relevant Facility.	
 
78

6.12	Existing Letters of Credit and Ancillary Facilities	
 
 	(a)	A Borrower (or the Company) may by notice in writing to the Agent request that any letter of credit, guarantee, bond, indemnity, documentary or like credit or any other instrument of suretyship or payment, issued, undertaken or made prior to the Closing Date by any person which is a Lender under the relevant Facility (or an Affiliate of such a Lender) on behalf or at the request of any member of the Group be deemed to be issued under an Ancillary Facility or the relevant Facility and with effect from the later of the date specified in such notice (the “ Grandfathering Date ”) (being a date not less than three (3) Business Days, or such short period as the Agent may agree, after the date such notice is delivered to the Agent) and the Closing Date, such instrument (the “ Relevant Instrument ”) shall be treated as outstanding under an Ancillary Facility or a Letter of Credit for all purposes under the relevant Facility or Ancillary Facility (as the case may be), provided that :	
 
 	(i)	the Relevant Instrument has been approved by the Agent (acting reasonably) or otherwise satisfies the criteria for issuing Letters of Credit under, or providing Ancillary Facilities in accordance with, the terms of this Agreement;	
 
 	(ii)	the relevant entity that is the borrower of the Relevant Instrument or on whose behalf it has been issued will either (x) accede to this Agreement as a Borrower on the Grandfathering Date in accordance with Clause 31 ( Changes to the Obligors ) or (y) (in the case of an Ancillary Facilities) be approved as an Affiliate of a Borrower by the Lender providing such Relevant Instrument in accordance with Clause 9.10 ( Affiliates of Borrowers ); and	
 
 	(iii)	the Agent receives in each case in form and substance satisfactory to the Agent (acting reasonably) together with the notice specified in this Clause 6.12:	
 
 	(A)	sufficient information in order to satisfy any know your client/anti-money laundering requirements; and	
 
 	(B)	copies of any such instruments detailing the amounts lent and the identity of the Lenders.	
 
 	(b)	The Lender concerned (or as the case may be, the Affiliate of the Lender concerned) will (unless it is already an Ancillary Lender, or, as the case may be, an Issuing Bank) become an Ancillary Lender or, as the case may be, an Issuing Bank with respect to each Relevant Instrument issued, undertaken or made by it, in each case subject to the Agent having received notification in writing from the Lender concerned (or, as the case may be, the Affiliate of the Lender concerned) that it agrees to the Relevant Instrument being treated as outstanding under an Ancillary Facility or, as the case may be, a Letter of Credit for all purposes under this Agreement.	
 
79

7.	LETTERS OF CREDIT	
 
7.1	Immediately payable	
 
 	(a)	If a Letter of Credit or any amount outstanding under a Letter of Credit is expressed to be immediately payable, the Borrower that requested (or on behalf of which the Company requested) the issue of that Letter of Credit shall repay or prepay that Letter of Credit or that amount promptly on demand by the relevant Issuing Bank.	
 
 	(b)	Each Issuing Bank shall immediately notify the Agent of any demand received by it under and in accordance with any Letter of Credit (including details of the Letter of Credit under which such demand has been received and the amount demanded). The Agent shall immediately on receipt of any such notice notify the Company, the Borrower for whose account that Letter of Credit was issued and each of the Lenders under the relevant Facility.	
 
7.2	Claims under a Letter of Credit	
 
 	(a)	Each Borrower and Lender irrevocably and unconditionally authorises the relevant Issuing Bank to pay any claim made or purported to be made under a Letter of Credit requested by that Borrower (or requested by the Company on its behalf) and which appears on its face to be in order (in this Clause 7.2, a “ claim ”).	
 
 	(b)	Each Borrower that requested the relevant Letter of Credit shall within three (3) Business Days of demand or, if such payment is being funded by a Loan, shall promptly on demand pay to the Agent for the account of the relevant Issuing Bank an amount equal to the amount under that claim.	
 
 	(c)	In respect of Letters of Credit utilised under a Facility, on receipt of any demand under paragraph (a) above the relevant Borrower shall (unless the Company notifies the Agent otherwise) be deemed to have delivered to the Agent a duly completed Utilisation Request which complies with the provisions of Clause 5.2 ( Completion of a Utilisation Request for Loans ) for requesting a Loan provided that the amount of such Loan as applicable is less than or equal to the relevant Available Facility (an “ L/C Loan ”):	
 
 	(i)	in an amount and currency equal to the amount and currency of the relevant claim (if applicable, net of any available cash cover);	
 
 	(ii)	for an Interest Period of one (1) Month or such other period of one (1), two (2), three (3) or six (6) Months as notified by the relevant Borrower or the Company to the Agent prior to the Utilisation Date; and	
 
 	(iii)	with a Utilisation Date falling three (3) Business Days after the date of receipt of the relevant demand.	
and, for the avoidance of doubt, the Lenders shall be required to comply with their obligations under Clause 5.4 ( Lenders ’ participation ) in respect of such L/C Loan. The proceeds of any such Loan shall be used to pay the relevant claim.
 
80

 	(d)	Each Borrower and each Lender acknowledges that an Issuing Bank:	
 
 	(i)	is not obliged to carry out any investigation or seek any confirmation from any other person before paying a claim; and	
 
 	(ii)	deals in documents only and will not be concerned with the legality of a claim or any underlying transaction or any available set-off, counterclaim or other defence of any person.	
 
 	(e)	The obligations of a Borrower and each Lender under this Clause 7.2 will not be affected by:	
 
 	(i)	the sufficiency, accuracy or genuineness of any claim or any other document; or	
 
 	(ii)	any incapacity of, or limitation on the powers of, any person signing a claim or other document.	
 
7.3	Indemnities	
 
 	(a)	Each Borrower shall promptly on demand indemnify an Issuing Bank against any cost, loss or liability incurred by that Issuing Bank (otherwise than by reason of the Issuing Bank’s gross negligence or wilful misconduct or breach of the terms of this Agreement) in acting as the Issuing Bank under any Letter of Credit requested by (or on behalf of) that Borrower.	
 
 	(b)	Each Lender shall (according to its L/C Proportion) immediately on demand indemnify an Issuing Bank against any cost, loss or liability incurred by that Issuing Bank (otherwise than by reason of the Issuing Bank’s gross negligence or wilful misconduct or breach of the terms of this Agreement) in acting as the Issuing Bank under any Letter of Credit (unless the relevant Issuing Bank has been reimbursed by an Obligor pursuant to a Finance Document).	
 
 	(c)	If any Lender is not permitted (by its constitutional documents or any applicable law) to comply with paragraph (b) above, then that Lender will not be obliged to comply with paragraph (b) and shall instead be deemed to have taken, on the date the Letter of Credit is issued (or if later, on the date the Lender’s participation in the Letter of Credit is transferred or assigned to the Lender in accordance with the terms of this Agreement), an undivided interest and participation in the Letter of Credit in an amount equal to its L/C Proportion of that Letter of Credit. On receipt of demand from the Agent, that Lender shall pay to the Agent (for the account of the relevant Issuing Bank) an amount equal to its L/C Proportion of the amount demanded.	
 
 	(d)	The Borrower which requested (or on behalf of which the Company requested) a Letter of Credit shall promptly on demand reimburse any Lender for any payment it makes to the Issuing Bank under this Clause 7.3 in respect of that Letter of Credit except to the extent arising out of the negligence, wilful misconduct of, or material breach of the terms of this Agreement in relation to such Letter of Credit by, such Lender.	
 
81

 	(e)	The obligations of each Lender or Borrower under this Clause 7.3 are continuing obligations and will extend to the ultimate balance of sums payable by that Lender or Borrower in respect of any Letter of Credit, regardless of any intermediate payment or discharge in whole or in part.	
 
 	(f)	The obligations of any Lender or Borrower under this Clause 7.3 will not be affected by any act, omission, matter or thing which, but for this Clause 7.3, would reduce, release or prejudice any of its obligations under this Clause 7.3 (without limitation and whether or not known to it or any other person) including:	
 
 	(i)	any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under a Letter of Credit or any other person;	
 
 	(ii)	the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;	
 
 	(iii)	the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under a Letter of Credit or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;	
 
 	(iv)	any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor, any beneficiary under a Letter of Credit or any other person;	
 
 	(v)	any amendment (however fundamental) or replacement of a Finance Document, any Letter of Credit or any other document or security;	
 
 	(vi)	any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any Letter of Credit or any other document or security; or	
 
 	(vii)	any insolvency or similar proceedings.	
 
 	(g)	In respect of any Letter of Credit:	
 
 	(i)	promptly following the issue of the Letter of Credit, the Agent shall deliver to the Company a copy of the Letter of Credit that was delivered directly to the beneficiary by an electronic message delivered by SWIFT (according to the system authorized and designed by the Society for Worldwide Interbank Financial Telecommunications), or any other means where there is record that the Letter of Credit was issued;	
 
82

 	(ii)	the relevant Borrower acknowledges that the applicable Utilisation shall be made by the issuance of the Letter of Credit from the relevant Issuing Bank to the beneficiary;	
 
 	(iii)	if the Borrower requires any amendment to a Letter of Credit, the Borrower must deliver the corresponding written request to the relevant Issuing Bank in the applicable form used by the relevant Issuing Bank. The request must contain the reasons for requesting the amendment which will need to be agreed by the relevant Issuing Bank, the relevant Lenders and the beneficiary; and	
 
 	(iv)	the Borrower acknowledges and agrees that, once a Letter of Credit is issued in favour of a beneficiary, such Letter of Credit may not be cancelled or modified without written consent from the beneficiary, the relevant Issuing Bank and the relevant Lenders. Once the beneficiary presents the corresponding Letter of Credit for payment, the payment made to the beneficiary under such Letter of Credit will be final and free from any responsibility from the relevant Issuing Bank or the relevant Lenders;	
 
 	(h)	The following shall apply to a Letter of Credit issued by the Original Issuing Bank:	
 
 	(i)	(1) The Reglas y Usos Uniformes relativos a Créditos Documentarios, revisión 2007 publicación número 600 of the International Chamber of Commerce ( C á mara Internacional de Comercio ) (UCP 600), or (2) any that may substitute them;	
 
 	(ii)	the Suplemento a las UCP 500 para la Presentación Electrónica of the International Chamber of Commerce ( C á mara Internacional de Comercio ) (e UCP), or any that may substitute it;	
 
 	(iii)	the Práctica Bancaria Internacional Standard para la Revisión de Documentos, publicación 681 of the International Chamber of Commerce ( C á mara Internacional de Comercio ) (ISBP);	
 
 	(iv)	the International Standby Practices Publication 590;	
 
 	(v)	the Incoterms accepted by the International Chamber of Commerce, according to the updated and published version of 2010, or those that may substitute it. Incoterms will only apply in the particular cases in which the parties adopt the corresponding terminology and in cases of foreign trade operations; and	
 
 	(vi)	if any modifications to the foregoing occur, the parties will adapt to such amendments as may be applicable, without need of any written consent. Articles 46 section VIII, and 71 of the Mexican Credit Institutions Law ( Ley de Instituciones de Cr é dito ) shall also apply, given the case.	
 
83

7.4	Cash collateral by Non-Acceptable L/C Lender	
 
 	(a)	If, at any time, a Lender is a Non-Acceptable L/C Lender, the relevant Issuing Bank may, by notice to that Lender, request that Lender to pay and that Lender shall pay, on or prior to the date falling three (3) Business Days after the request by that Issuing Bank, an amount equal to that Lender’s L/C Proportion of:	
 
 	(i)	the outstanding amount of a Letter of Credit and in the currency of that Letter of Credit to an interest-bearing account held in the name of that Lender with the Issuing Bank; or	
 
 	(ii)	in the case of a proposed Letter of Credit, the amount of that proposed Letter of Credit	
 
 	(b)	The Non-Acceptable L/C Lender to whom a request has been made in accordance with paragraph (a) above shall enter into a security document or other form of collateral arrangement over the account, in form and substance satisfactory to the Issuing Bank, as collateral for any amounts due and payable under this Agreement by that Lender to the relevant Issuing Bank in respect of that Letter of Credit.	
 
 	(c)	Until no amount is or may be outstanding under that Letter of Credit, withdrawals from the account may only be made to pay to the relevant Issuing Bank amounts due and payable to the relevant Issuing Bank by the Non-Acceptable L/C Lender in respect of that Letter of Credit.	
 
 	(d)	Each Lender shall notify the Agent and the Company:	
 
 	(i)	on the date of this Agreement or on any later date on which it becomes such a Lender in accordance with Clause 2.3 ( Increase ) or Clause 29 ( Changes to the Lenders Changes To The Lenders) whether it is a Non-Acceptable L/C Lender; and	
 
 	(ii)	as soon as practicable upon becoming aware of the same, that it has become a Non-Acceptable L/C Lender,	
and an indication in Schedule 1 ( The Original Parties ), in a Transfer Certificate, in an Assignment Agreement, Additional Facility Notice, Additional Facility Lender Accession Notice, an Increase Confirmation or an Issuing Bank Accession Agreement to that effect will constitute a notice under paragraph (d)(i) to the Agent and, upon delivery in accordance with Clause 29.11 ( Maintenance of Register and provision of Assignment Agreements, Transfer Certificates, Additional Facility Notices, Additional Facility Lender Accession Notice, Increase Confirmations and Issuing Bank Accession Agreement ).
 
 	(e)	Any notice received by the Agent pursuant to paragraph (d) above shall constitute notice to the relevant Issuing Bank of that Lender’s status and the Agent shall, upon receiving each such notice, promptly notify the relevant Issuing Bank of that Lender’s status as specified in that notice.	
 
84

 	(f)	If a Lender who has provided cash collateral in accordance with this Clause 7.4:	
 
 	(i)	ceases to be a Non-Acceptable L/C Lender; and	
 
 	(ii)	no amount is due and payable by that Lender in respect of a Letter of Credit,	
that Lender may, at any time it is not a Non-Acceptable L/C Lender, by notice to the relevant Issuing Bank request that an amount equal to the amount of the cash provided by it as collateral in respect of that Letter of Credit (together with any accrued interest) standing to the credit of the relevant account held with the Issuing Bank be returned to it and the relevant Issuing Bank shall pay that amount to the Lender within three (3) Business Days after the request from the Lender (and shall cooperate with the Lender in order to procure that the relevant security or collateral arrangement is released and discharged).
 
7.5	Cash cover by Borrower	
 
 	(a)	If a Lender which is a Non-Acceptable L/C Lender fails to provide cash collateral (or notifies the relevant Issuing Bank that it will not provide cash collateral) in accordance with Clause 7.4 ( Cash collateral by Non-Acceptable L/C Lender ) and the relevant Issuing Bank notifies the Obligors’ Agent (with a copy to the Agent) that it requires the Borrower of the relevant Letter of Credit or proposed Letter of Credit to provide cash cover to an account with the relevant Issuing Bank in an amount equal to that Lender’s L/C Proportion of the outstanding amount of that Letter of Credit and in the currency of that Letter of Credit then that Borrower shall do so within five (5) Business Days (or such longer date as is agreed with the relevant Issuing Bank (acting reasonably)) after the notice is given.	
 
 	(b)	Notwithstanding paragraph (g) of Clause 1.2 ( Construction ), the relevant Issuing Bank shall permit the withdrawal of amounts up to the level of that cash cover from the account if:	
 
 	(i)	it is satisfied that the relevant Lender is no longer a Non-Acceptable L/C Lender;	
 
 	(ii)	the relevant Lender’s obligations in respect of the relevant Letter of Credit are transferred to a New Lender in accordance with the terms of this Agreement; or	
 
 	(iii)	an Increase Lender has agreed to undertake the obligations in respect of the relevant Lender’s L/C Proportion of the Letter of Credit.	
 
 	(c)	To the extent that a Borrower has complied with its obligations to provide cash cover in accordance with this Clause 7.5, the relevant Lender’s L/C Proportion in respect of that Letter of Credit will remain (but that Lender’s obligations in relation to that Letter of Credit may be satisfied in accordance with paragraph (g)(ii) of Clause 1.2 ( Construction )). However, the relevant Borrower’s obligation to pay any Letter of Credit fee in relation to the relevant	
 
85

 	Letter of Credit to the Agent (for the account of that Lender) in accordance with paragraph (b) of Clause 17.4 ( Fees payable in respect of Letters of Credit ) will be reduced proportionately as from the date on which it complies with that obligation to provide cash cover (and for so long as the relevant amount of cash cover continues to stand as collateral).	
 
 	(d)	The relevant Issuing Bank shall promptly notify the Agent of the extent to which a Borrower provides cash cover pursuant to this Clause 7.5 and of any change in the amount of cash cover so provided.	
 
7.6	Rights of contribution	
No Obligor will be entitled to any right of contribution or indemnity from any Finance Party in respect of any payment it may make under this Clause 7.6.
 
7.7	Lender as Issuing Bank	
A Lender which is also an Issuing Bank shall be treated as a separate entity in those capacities and capable, as a Lender, of contracting with itself as an Issuing Bank.
 
8.	OPTIONAL CURRENCIES	
 
8.1	Selection of currency	
A Borrower (or the Company on its behalf) shall select the currency of an Original Facility Utilisation or an Additional Facility Utilisation in a Utilisation Request.
 
8.2	Unavailability of a currency	
 
 	(a)	If before the Specified Time on any Quotation Day:	
 
 	(i)	a Lender notifies the Agent that the Optional Currency requested is not readily available to it in the amount required; or	
 
 	(ii)	a Lender notifies the Agent that compliance with its obligation to participate in a Loan in the proposed Optional Currency would contravene a law or regulation applicable to it,	
the Agent will give notice to the relevant Borrower (or the Company on its behalf) to that effect by the Specified Time on that day. In this event, any Lender that gives notice pursuant to this Clause 8.2 will be required to participate in the Loan in the Base Currency (in an amount equal to that Lender’s proportion of the Base Currency Amount, or in respect of a Rollover Loan, an amount equal to that Lender’s proportion of the Base Currency Amount of the Rollover Loan that is due to be made) and its participation will be treated as a separate Loan denominated in the Base Currency during that Interest Period.
 
 	(b)	Any part of a Loan treated as a separate Loan under this Clause 8.2 will not be taken into account for the purposes of any limit on the number of Loans or currencies outstanding at any one time.	
 
86

 	(c)	A Loan will still be treated as such if it is not denominated in the same currency as the maturing Loan by reason only of the operation of this Clause 8.2.	
 
8.3	Agent’s calculations	
Each Lender’s participation in a Loan will be determined in accordance with paragraph (b) of Clause 5.4 ( Lenders ’ participation ).
 
9.	ANCILLARY FACILITIES	
 
9.1	Type of Facility	
An Ancillary Facility may be by way of any of the following (or any combination of the following):
 
 	(a)	an overdraft, cheque clearing, automatic payment or other current account or similar facility;	
 
 	(b)	a guarantee, bonding, documentary or stand-by letter of credit facility;	
 
 	(c)	a short term loan facility;	
 
 	(d)	a derivatives facility;	
 
 	(e)	a foreign exchange facility; or	
 
 	(f)	any other facility or accommodation required in connection with the business of the Group and which is agreed by the Company with an Ancillary Lender.	
 
9.2	Availability	
 
 	(a)	A Borrower (or the Company on its behalf) and a Lender agree and except as otherwise provided in this Agreement, the Lender may provide an Ancillary Facility on a bilateral basis in place of all or part of that Lender’s unutilised Commitment (which shall (except for the purposes of determining the Majority Lenders or the Super Majority Lenders and of Clause 41.7 ( Replacement of Lender )) be reduced by the amount of the Ancillary Commitment under that Ancillary Facility).	
 
 	(b)	An Ancillary Facility shall not be made available unless, not later than three (3) Business Days prior to the Ancillary Commencement Date for an Ancillary Facility (or such shorter period as may be agreed by the Company and the Agent), the Agent has received from the Company:	
 
 	(i)	a notice in writing of the establishment of an Ancillary Facility and specifying:	
 
 	(A)	the proposed Borrower(s) (or Affiliate(s) of a Borrower) which may use the Ancillary Facility;	
 
 	(B)	the proposed Ancillary Lender;	
 
87

 	(C)	the proposed type of Ancillary Facility to be provided;	
 
 	(D)	the proposed Ancillary Commencement Date and expiry date of the Ancillary Facility;	
 
 	(E)	the proposed Ancillary Commitment, the maximum amount of the Ancillary Facility and, if the Ancillary Facility is an overdraft facility comprising more than one account its maximum gross amount (that amount being the “Designated Gross Amount”) and its maximum net amount (that amount being the “Designated Net Amount”); and	
 
 	(F)	the proposed currency of the Ancillary Facility (if not denominated in the Base Currency); and	
 
 	(ii)	any other information which the Agent may reasonably request in connection with the Ancillary Facility.	
 
 	(c)	The Agent shall promptly notify the Ancillary Lender and the other Lenders of the establishment of an Ancillary Facility.	
 
 	(d)	No amendment or waiver of a term of any Ancillary Facility shall require the consent of any Finance Party other than the relevant Ancillary Lender unless such amendment or waiver itself relates to or gives rise to a matter which would require an amendment of or under this Agreement (including, for the avoidance of doubt, under this Clause 9 ( Ancillary Facilities )). In such a case, the provisions of this Agreement with regard to amendments and waivers will apply.	
 
 	(e)	Subject to compliance with paragraph (b) above:	
 
 	(i)	the Lender concerned will become an Ancillary Lender; and	
 
 	(ii)	the Ancillary Facility will be available,	
with effect from the date agreed by the Company and the Ancillary Lender.
 
9.3	Terms of Ancillary Facilities	
 
 	(a)	Except as provided below, the terms of any Ancillary Facility will be those agreed by the Ancillary Lender and the Company.	
 
 	(b)	However, those terms:	
 
 	(i)	must be based upon normal commercial terms at that time (except as varied by this Agreement);	
 
 	(ii)	may allow only Borrowers (or Affiliates of Borrowers nominated pursuant to Clause 9.10 ( Affiliates of Borrowers )) to use the Ancillary Facility;	
 
88

 	(iii)	may not allow the Ancillary Outstandings to exceed the Ancillary Commitment;	
 
 	(iv)	may not allow the Ancillary Commitment of a Lender to exceed the Available Commitment of that Lender (excluding for these purposes any reduction in the Available Commitments attributable to such Ancillary Commitment); and	
 
 	(v)	unless otherwise agreed with the relevant Ancillary Lender must require that the Ancillary Commitment is reduced to nil, and that all Ancillary Outstandings are repaid (or cash cover provided in respect of all the Ancillary Outstandings) not later than the Termination Date for the applicable Facility (or such earlier date as the Commitment of the relevant Ancillary Lender (or its Affiliate) is reduced to zero).	
 
 	(c)	If there is any inconsistency between any term of an Ancillary Facility and any term of this Agreement, this Agreement shall prevail except for:	
 
 	(i)	Clause 38.3 ( Day count convention ) which shall not prevail for the purposes of calculating fees, interest or commission relating to an Ancillary Facility;	
 
 	(ii)	an Ancillary Facility comprising more than one account where the terms of the Ancillary Documents shall prevail to the extent required to permit the netting of balances on those accounts; and	
 
 	(iii)	where the relevant term of this Agreement would be contrary to, or inconsistent with, the law governing the relevant Ancillary Document, in which case that term of this Agreement shall not prevail.	
 
 	(d)	Interest, commission and fees on Ancillary Facilities are dealt with in Clause 17.5 ( Interest, commission and fees on Ancillary Facilities ).	
 
9.4	Repayment of Ancillary Facility	
 
 	(a)	An Ancillary Facility shall cease to be available on the Termination Date in relation to the relevant Facility or such earlier date on which its expiry date occurs or on which it is cancelled in accordance with the terms of this Agreement unless otherwise agreed in writing with the relevant Ancillary Lender pursuant to Clause 9.11 ( Adjustment for Ancillary Facilities upon acceleration ).	
 
 	(b)	If an Ancillary Facility expires or is cancelled (in whole or in part) in accordance with its terms or by agreement between the parties thereto, the Ancillary Commitment of the Ancillary Lender shall be reduced accordingly (and its Commitment shall be increased accordingly) by an amount equal to the amount of the Ancillary Commitment of that Ancillary Facility (or if less, that part of it which has expired or been cancelled).	
 
 	(c)	No Ancillary Lender may demand repayment or prepayment of any amounts or demand cash cover for any liabilities made available or incurred by it under its Ancillary Facility (except where the Ancillary Facility is provided on a net	
 
89

 	limit basis to the extent required to bring any gross outstandings down to the net limit) prior to its expiry date unless:	
 
 	(i)	the relevant Total Commitments have been cancelled in full, or all outstanding Utilisations under the relevant Facility have become due and payable in accordance with the terms of this Agreement, or the Agent has declared all outstanding Utilisations under the relevant Facility immediately due and payable, or the expiry date of the Ancillary Facility occurs;	
 
 	(ii)	it becomes unlawful in any applicable jurisdiction for the Ancillary Lender to perform any of its obligations as contemplated by this Agreement or to fund, issue or maintain its participation in its Ancillary Facility; or	
 
 	(iii)	the Ancillary Outstandings (if any) under that Ancillary Facility can be refinanced by a Utilisation under the relevant Facility pursuant to which that Ancillary Outstanding was incurred and the Ancillary Lender gives sufficient notice to enable such a Utilisation to be made to refinance those Ancillary Outstandings.	
 
 	(d)	For the purposes of determining whether or not the Ancillary Outstandings under an Ancillary Facility mentioned in paragraph (c)(iii) above can be refinanced by a Utilisation under the relevant Facility pursuant to which that Ancillary Outstanding was incurred:	
 
 	(i)	the relevant Commitment of the Ancillary Lender will be increased by the amount of its Ancillary Commitment; and	
 
 	(ii)	the Utilisation may (so long as paragraph (c)(i) above does not apply) be made irrespective of whether a Default is outstanding or any other applicable condition precedent is not satisfied (but only to the extent that the proceeds are applied in refinancing those Ancillary Outstandings) and irrespective of whether Clause 4.4 ( Maximum number of Utilisations ) or paragraph (a)(iv) of Clause 5.2 ( Completion of a Utilisation Request for Loans ) applies.	
 
 	(e)	On the making of a Utilisation of a Facility to refinance all or part of any Ancillary Outstandings under the same Facility:	
 
 	(i)	each Lender will participate in that Utilisation in an amount (as determined by the Agent) which will result as nearly as possible in the aggregate amount of its participation in the relevant Facility Utilisations then outstanding bearing the same proportion to the aggregate amount of the relevant Facility Utilisations then outstanding as its relevant Commitment bears to the relevant Total Commitments; and	
 
 	(ii)	the relevant Ancillary Facility shall be cancelled to the extent of such refinancing.	
 
90

 	(f)	In relation to an Ancillary Facility which comprises an overdraft facility where a Designated Net Amount has been established, the Ancillary Lender providing that Ancillary Facility shall only be obliged to take into account for the purposes of calculating compliance with the Designated Net Amount those credit balances which it is permitted to take into account by the then current law and regulations in relation to its reporting of exposures to the applicable regulatory authorities as netted for capital adequacy purposes.	
 
9.5	Ancillary Outstandings	
Each Borrower and each Ancillary Lender agrees with and for the benefit of each Lender that:
 
 	(a)	the Ancillary Outstandings under any Ancillary Facility provided by that Ancillary Lender shall not exceed the Ancillary Commitment applicable to that Ancillary Facility and where the Ancillary Facility is an overdraft facility comprising more than one account, Ancillary Outstandings under that Ancillary Facility shall not exceed the Designated Net Amount in respect of that Ancillary Facility; and	
 
 	(b)	where all or part of the Ancillary Facility is an overdraft facility comprising more than one account, the Ancillary Outstandings (calculated on the basis that the words in brackets starting ‘net of’ and ending ‘under that Ancillary Facility’ of the definition of that term were deleted) shall not exceed the Designated Gross Amount applicable to that Ancillary Facility.	
 
9.6	Voluntary cancellation of Ancillary Facilities	
The Company may, if it gives the Agent and the relevant Ancillary Lender not less than five (5) Business Days’ prior notice, cancel the whole or any part of the Ancillary Commitment under an Ancillary Facility.
 
9.7	Information	
Each Borrower and each Ancillary Lender shall, promptly upon request by the Agent, supply the Agent with any information relating to the operation of an Ancillary Facility (including the Ancillary Outstandings) as the Agent may reasonably request from time to time. Each Borrower consents to all such information being released to the Agent and the other Finance Parties.
 
9.8	Affiliates of Lenders as Ancillary Lenders	
 
 	(a)	Subject to the terms of this Agreement, an Affiliate of a Lender may become an Ancillary Lender. In such case, (other than for the purposes of Clause 18 ( Tax Gross-Up and Indemnities )) the Lender and its Affiliate shall be treated as a single Lender whose Commitment is the amount set out opposite the relevant Lender’s name in Part II of Schedule 1 ( The Original Parties ) and/or the amount of any Commitment transferred to or assumed by that Lender under this Agreement, to the extent (in each case) not cancelled, reduced or transferred by it under this Agreement. For the purposes of calculating the Lender’s Available Commitment, the Lender’s Commitment shall be reduced to the extent of the aggregate of the Ancillary Commitments of its Affiliates.	
 
91

 	(b)	The Company shall specify any relevant Affiliate of a Lender in any notice delivered by the Company to the Agent pursuant to paragraph (b)(i) of Clause 9.2 ( Availability ).	
 
 	(c)	An Affiliate of a Lender which becomes an Ancillary Lender shall accede to the Intercreditor Agreement as an Ancillary Lender and any person which so accedes to the Intercreditor Agreement shall, at the same time, become a party to this Agreement as an Ancillary Lender in accordance with clause 20.7 (New Ancillary Lender) of the Intercreditor Agreement.	
 
 	(d)	If a Lender assigns all of its rights and benefits or transfers all of its rights and obligations to a New Lender (as defined in Clause 29 ( Changes to the Lenders )), its Affiliate shall cease to have any obligations under this Agreement or any Ancillary Document.	
 
 	(e)	Where this Agreement or any other Finance Document imposes an obligation on an Ancillary Lender and the relevant Ancillary Lender is an Affiliate of a Lender which is not a party to that document, the relevant Lender shall ensure that the obligation is performed by its Affiliate.	
 
9.9	Commitment amounts	
Notwithstanding any other term of this Agreement, each Lender shall ensure that at all times its Commitment in respect of a Facility is not less than:
 
 	(a)	its Ancillary Commitment in respect of that Facility; and	
 
 	(b)	the Ancillary Commitment of its Affiliate in respect of that Facility,	
in each case, excluding for these purposes any reduction in such Lender’s Commitment in respect of that Facility attributable to such Ancillary Commitment.
 
9.10	Affiliates of Borrowers	
 
 	(a)	Subject to the terms of this Agreement, an Affiliate of a Borrower (which is a member of the Group) may with the approval of the relevant Ancillary Lender become a borrower with respect to an Ancillary Facility.	
 
 	(b)	The Company shall specify any relevant Affiliate of a Borrower (which is a member of the Group) in any notice delivered by the Company to the Agent pursuant to paragraph (b)(i) of Clause 9.2 ( Availability ).	
 
 	(c)	If a Borrower ceases to be a Borrower under this Agreement in accordance with paragraph (a) of Clause 31.3 ( Resignation of an Obligor ), its Affiliate shall cease to have any rights under this Agreement, or any Ancillary Document.	
 
 	(d)	Where this Agreement or any other Finance Document imposes an obligation on a Borrower under an Ancillary Facility and the relevant Borrower is an Affiliate of a Borrower which is not a party to that document, the relevant Borrower shall ensure that the obligation is performed by its Affiliate.	
 
92

 	(e)	Any reference in this Agreement or any other Finance Document to a Borrower being under no obligations (whether actual or contingent) as a Borrower under such Finance Document shall be construed to include a reference to any Affiliate of a Borrower being under no obligations under any Finance Document or Ancillary Document.	
 
9.11	Adjustment for Ancillary Facilities upon acceleration	
 
 	(a)	In this Clause 9.11:	
Revolving Outstandings means, in relation to a Lender, the aggregate of the equivalent in the Base Currency of (i) its participation in each Utilisation then outstanding under a particular Facility (together with the aggregate amount of all accrued interest, fees and commission owed to it as a Lender under such Facility), and (ii) if the Lender is also an Ancillary Lender, the Ancillary Outstandings in respect of Ancillary Facilities provided by that Ancillary Lender (together with the aggregate amount of all accrued interest, fees and commission owed to it as an Ancillary Lender in respect of the Ancillary Facility).
Total Revolving Outstandings means the aggregate of all Revolving Outstandings.
 
 	(b)	If a Declared Default occurs, each Lender and each Ancillary Lender shall promptly adjust by corresponding transfers (to the extent necessary) their claims in respect of amounts outstanding to them under a Facility and each Ancillary Facility relating to that Facility to ensure that after such transfers the Revolving Outstandings of each Lender in respect of that Facility bear the same proportion to the Total Revolving Outstandings in respect of that Facility as such Lender’s Commitment in respect of that Facility bears to the Total Commitments in respect of that Facility, each as at the date the notice of such Declared Default is served under Clause 28.6 ( Acceleration ).	
 
 	(c)	If an amount outstanding under an Ancillary Facility is a contingent liability and that contingent liability becomes an actual liability or is reduced to zero after the original adjustment is made under paragraph (a) above, then each Lender and Ancillary Lender will make a further adjustment by corresponding transfers (to the extent necessary) to put themselves in the position they would have been in had the original adjustment been determined by reference to the actual liability or, as the case may be, zero liability and not the contingent liability.	
 
 	(d)	Prior to the application of the provisions of paragraph (a) of this Clause 9.11, an Ancillary Lender that has provided an overdraft comprising more than one account under an Ancillary Facility shall set off any liabilities owing to it under such overdraft facility against credit balances on any account comprised in such overdraft facility.	
 
93

 	(e)	All calculations to be made pursuant to this Clause 9.11 shall be made by the Agent based upon information provided to it by the Lenders and Ancillary Lenders.	
 
9.12	Continuation of Ancillary Facilities	
 
 	(a)	A Borrower and an Ancillary Lender may, as between themselves only, agree to continue to provide the same Ancillary Facilities following the Termination Date or, as the case may be, the date the relevant Commitments are otherwise cancelled under this Agreement (the “ Cancellation Date ”).	
 
 	(b)	If any arrangement contemplated in paragraph (a) above is to occur, each relevant Borrower and the Ancillary Lender shall each confirm that to be the case in writing to the Agent. Upon the Termination Date or, as the case may be, Cancellation Date, any such Ancillary Facility shall continue as between the said entities on a bilateral basis and not as part of, or under, the Finance Documents. Save for any rights and obligations against any Finance Party under the Finance Documents arising prior to the Termination Date or, as the case may be, Cancellation Date, no such rights or obligations in respect of such Ancillary Facility shall, as between the Finance Parties, continue and the Transaction Security shall not support any such facility in respect of any matters that arise after the Termination Date or, as the case may be, Cancellation Date.	
 
10.	REPAYMENT	
 
10.1	Repayment of Loans	
 
 	(a)	Subject to paragraph (b) and Clause 10.2 ( Rollover of Loans ) below, each Borrower which has drawn a Loan shall repay that Loan on the last day of its Interest Period.	
 
 	(b)	Any amount of any Loan outstanding on the Termination Date shall be repaid on that date.	
 
10.2	Rollover of Loans	
 
 	(a)	Without prejudice to each Borrower’s obligation under paragraph (a) of Clause 10.1 ( Repayment of Loans ), if one or more Loans are to be made available to a Borrower:	
 
 	(i)	on the same day that a maturing Loan is due to be repaid by that Borrower;	
 
 	(ii)	in the same currency as the maturing Loan (unless it arose as a result of the operation of Clause 8.2 ( Unavailability of a currency )); and	
 
 	(iii)	in whole or in part for the purpose of refinancing the maturing Loan;	
 
94

the aggregate amount of the new Loans shall be treated as if applied in or towards repayment of the maturing Loan so that:
 
 	(A)	if the amount of the maturing Loan exceeds the aggregate amount of the new Loans under the relevant Facility:	
 
 	(1)	the relevant Borrower will only be required to pay an amount in cash in the relevant currency equal to that excess; and	
 
 	(2)	each Lender’s participation (if any) in the new Loans under that Facility shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender’s participation (if any) in the maturing Loan and that Lender will not be required to make its participation in the new Loans under that Facility available in cash; and	
 
 	(B)	if the amount of the maturing Loan is equal to or less than the aggregate amount of the new Loans under the relevant Facility:	
 
 	(1)	the relevant Borrower will not be required to make any payment in cash; and	
 
 	(2)	each Lender will be required to make its participation in the new Loans under that Facility available in cash only to the extent that its participation (if any) in the new Loans under that Facility exceeds that Lender’s participation (if any) in the maturing Loan and the remainder of that Lender’s participation in the new Loans under that Facility shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender’s participation in the maturing Loan.	
 
10.3	Loans provided by a Defaulting Lender	
 
 	(a)	At any time when a Lender becomes a Defaulting Lender, the maturity date of each of the participations of that Lender in the Loans then outstanding will be automatically extended to the relevant Termination Date and will be treated as separate Loans (the “ Separate Loans ”) under the relevant Facility denominated in the currency in which the relevant participations are outstanding.	
 
 	(b)	A Borrower to whom a Separate Loan is outstanding may prepay all or part of that Separate Loan by giving at least three (3) Business Days (or such shorter time period as agreed between the Borrower and the Agent) prior notice to the Agent. The Agent will forward a copy of a prepayment notice received in accordance with this paragraph (b) to the Defaulting Lender concerned as soon as practicable on receipt.	
 
 	(c)	Interest in respect of a Separate Loan will accrue for successive Interest Periods selected by the Borrower by the time and date specified by the Agent (acting reasonably) and subject to the other rights of the Group under this Agreement in respect of Defaulting Lenders will be payable by that Borrower to the Defaulting Lender on the last day of each Interest Period of that Separate Loan.	
 
95

 	(d)	The terms of this Agreement relating to Loans generally shall continue to apply to Separate Loans other than to the extent inconsistent with paragraphs (a) to (c) above, in which case those paragraphs shall prevail in respect of any Separate Loan.	
 
11.	ILLEGALITY, VOLUNTARY PREPAYMENT AND CANCELLATION	
 
11.1	Illegality	
If after the date of this Agreement (or, if later, the date the relevant Lender becomes a Party), it becomes unlawful in any applicable jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or to fund, issue or maintain its Commitment or participation in any Utilisation:
 
 	(a)	that Lender shall promptly notify the Agent upon becoming aware of that event and the Agent shall notify the Company as soon as reasonably practicable after receiving such notice;	
 
 	(b)	upon the Agent notifying the Company, the Commitment of that Lender will be immediately reduced and cancelled to the extent necessary to comply with applicable laws; and	
 
 	(c)	each Borrower shall repay that Lender’s reduced and cancelled participation in the Utilisations made to that Borrower (or procure the transfer of that Lender’s participation at par to another Lender willing to accept such transfer) on the last day of the Interest Period for each Utilisation occurring after the Agent has notified the Company or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law).	
 
11.2	Illegality in relation to Issuing Bank	
If after the date of this Agreement (or, if later, the date on which the relevant Letter of Credit is issued) it becomes unlawful for an Issuing Bank to issue or leave outstanding any Letter of Credit, then:
 
 	(a)	that Issuing Bank shall promptly notify the Agent upon becoming aware of that event;	
 
 	(b)	upon the Agent notifying the Company, the Issuing Bank shall not be obliged to issue any Letter of Credit to the extent that such issuance would be unlawful;	
 
 	(c)	to the extent it would be unlawful for any such Letter of Credit to remain outstanding, the Company shall procure that the relevant Borrower shall use all reasonable endeavours to procure the release of each Letter of Credit affected by such change in law issued by that Issuing Bank and outstanding at such time on or before the date specified by the Issuing Bank in the notice	
 
96

 	delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) or provide cash cover in respect of such Letter of Credit; and	
 
 	(d)	unless any other Lender is or has agreed to be an Issuing Bank pursuant to the terms of this Agreement, a Facility under which the relevant Lender was the Issuing Bank shall cease to be available for the issue of Letters of Credit until such time as another Lender agrees to be an Issuing Bank.	
 
11.3	Voluntary cancellation	
 
 	(a)	The Company may, if it gives the Agent not less than three (3) Business Days (or such shorter period as the Agent (acting on the instructions of the Majority Lenders under the relevant Facility (each acting reasonably) may agree)) prior notice, cancel the whole or any part (being a minimum amount of USD 1,000,000 and an integral multiple of USD 1,000,000, in each case, or their respective equivalents in other currencies) of an Available Facility.	
 
 	(b)	Any cancellation under this Clause 11.3 shall reduce the Commitments of the Lenders rateably under the applicable Facility.	
 
11.4	Voluntary prepayment of Utilisations	
 
 	(a)	A Borrower to which a Utilisation has been made may, if it or the Company gives the Agent not less than three (3) Business Days (or such shorter period as the Agent (acting on the instructions of the Majority Lenders under the relevant Facility (each acting reasonably) may agree) prior notice, prepay the whole or any part of that Utilisation (but, if in part, being an amount that reduces the Base Currency Amount of that Utilisation by a minimum amount of USD 1,000,000 (or its equivalent in other currencies) and an integral multiple of USD 1,000,000 (or their respective equivalent in other currencies)).	
 
 	(b)	The Company or a Borrower may elect to apply a prepayment made under this Clause 11.4 against any or all of the Loans in such proportions as it selects in its sole discretion.	
 
11.5	Right of cancellation and repayment in relation to a single Lender or Issuing Bank	
 
 	(a)	If:	
 
 	(i)	any sum payable to any Finance Party by an Obligor is required to be increased under paragraph (d) of Clause 18.2 ( Tax gross-up );	
 
 	(ii)	any Finance Party claims indemnification from the Company or an Obligor under Clause 18.3 ( Tax indemnity ) or Clause 19.1 ( Increased costs ); or	
 
 	(iii)	any Lender invokes Clause 16.2 ( Market disruption );	
 
97

then, subject to paragraph (c) below:
 
 	(A)	if the circumstance relates to a Lender, the Company may:	
 
 	(1)	require the transfer or assignment in accordance with this Agreement of all or any part (but at par only) of that Lender’s Commitments and participations in the Utilisations to a person nominated by the Company willing to accept that transfer or assignment; or	
 
 	(2)	give the Agent notice of cancellation of all or any part of that Lender’s Commitments and the Company’s intention to procure the repayment of all or any part of that Lender’s participations in the Utilisations, whereupon the relevant part of the Commitments of that Lender shall immediately be reduced to zero;	
 
 	(B)	if the circumstance relates to an Ancillary Lender, the Company may give the Agent notice of cancellation of all or any part of that person’s Ancillary Commitment and the Company’s intention to procure the repayment of all or any part of the utilisations of any Ancillary Facility granted by that person, whereupon the relevant part of that Ancillary Commitment of that person shall immediately be reduced to zero; and	
 
 	(C)	if the circumstance relates to an Issuing Bank:	
 
 	(1)	the Company may give the Agent notice of cancellation of the appointment as Issuing Bank under this Agreement in relation to any Letters of Credit to be issued in the future and the Company’s intention to procure either the reduction to zero of that Issuing Bank’s contingent liability under any Letter of Credit or the provision of full cash cover in respect of the Issuing Bank’s maximum contingent liability under each outstanding Letter of Credit or to otherwise repay in full each Letter of Credit issued by that Issuing Bank; and	
 
 	(2)	if the Company gives notice under paragraph (C)(1) above, the Facility shall cease to be available for the issue of Letters of Credit by the relevant Issuing Bank.	
 
 	(b)	On the last day of each Interest Period which ends after the Company has given notice under paragraph (a)(A)(2), (a)(B) or (a)(C)(1) above (or, if earlier, the date specified by the Company in that notice), each Borrower to which a Utilisation or utilisation of an Ancillary Facility is outstanding shall repay that Lender’s participation in that Utilisation or the utilisation of the Ancillary Facility granted by that Ancillary Lender (or, if applicable, the relevant part thereof) together with, in each case, all interest and other amounts accrued under the Finance Documents or, as the case may be, provide full cash cover in respect of any Letter of Credit issued by that Issuing Bank (or, if applicable, otherwise repay the relevant Letter of Credit).	
 
98

 	(c)	The Company may only exercise its rights under paragraph (a) above if:	
 
 	(i)	in the case of paragraphs (a)(i) and (a)(ii) above, the circumstance giving rise to the requirement or indemnification continues or, in the case of paragraph (a)(iii) above, no more than ten (10) days have elapsed since the relevant invoking of Clause 16.2 ( Market disruption ); and	
 
 	(ii)	it gives the Agent and the relevant Lender not less than five (5) Business Days’ prior notice.	
 
11.6	Right of cancellation in relation to a Defaulting Lender	
 
 	(a)	If any Lender becomes a Defaulting Lender, the Company may, at any time whilst the Lender continues to be a Defaulting Lender, give the Agent three (3) Business Days’ notice of cancellation of all or any part of each Available Commitment of that Lender.	
 
 	(b)	On the notice referred to in paragraph (a) above becoming effective, each Available Commitment (or part thereof) of the Defaulting Lender shall immediately be reduced to zero.	
 
 	(c)	The Agent shall as soon as practicable after receipt of a notice referred to in paragraph (a) above, notify all the Lenders.	
 
12.	MANDATORY PREPAYMENT	
 
12.1	Exit	
 
 	(a)	Upon the occurrence of a Change of Control,	
 
 	(i)	all undrawn Commitments shall be immediately cancelled and no Lender shall have an obligation to fund or participate in any new Utilisation or utilisation of an Ancillary Facility and, in the case of an Issuing Bank, such Issuing Bank shall have no obligation to issue any new Letter of Credit; and	
 
 	(ii)	all outstanding Utilisations and Ancillary Outstandings, together with accrued interest, and all other amounts accrued or owing under the Finance Documents shall become immediately due and payable and the relevant Borrower will immediately prepay all such Utilisations, Ancillary Outstandings and other amounts owing and procure that any cash collateral provided by a Lender is released.	
 
 	(b)	Notwithstanding the provisions of paragraph (a) above, an Ancillary Lender or, as the case may be, Issuing Bank may, as between itself and the relevant member of the Group, agree to continue to provide such Ancillary Facility or, as the case may be, Letter(s) of Credit, in which case, after notification thereof to the Agent such arrangements shall continue on a bilateral basis and not as part of, or under, the Finance Documents and save for any rights and obligations against any other Finance Party under the Finance Documents arising prior to such cancellation, no such rights or obligations in respect of	
 
99

 	the Letter(s) of Credit or, as the case may be, Ancillary Facility shall, as between the Finance Parties, continue and the Transaction Security shall not, following release thereof by the Security Agent, secure any such Letter(s) of Credit or Ancillary Facility in respect of any claims that arise after such cancellation.	
 
12.2	Note Purchase Condition	
 
 	(a)	The Company shall ensure that an amount as required by Clause 27.5 ( Notes Purchases ) shall be applied in prepayment of the Utilisations and in cancellation of undrawn Commitments, in the manner and to the extent required by the other provisions of this Clause 12 and Clause 27.5 ( Notes Purchases ).	
 
 	(b)	Unless the Company makes an election under paragraph (c) below, the Borrowers shall make prepayments and cancellations under this Clause 12 on (or prior to) the Notes Purchase in relation to which such prepayment is required.	
 
 	(c)	Subject to paragraph (d) below, the Company may elect, by no less than three (3) Business Days’ notice in writing to the Agent (or such shorter period as the Majority Lenders may agree), that any prepayment of a Utilisation due under this Clause 12.2, may be made on the last day of the Interest Period relating to that Utilisation. If the Company makes that election then an amount of the Utilisation equal to the amount of the relevant prepayment shall be due and payable on the last day of its Interest Period.	
 
 	(d)	If the Company has made an election under paragraph (c) above but an Event of Default has occurred and is continuing, that election shall no longer apply and a proportion of the Utilisation in respect of which the election was made equal to the amount of the relevant prepayment shall be immediately due and payable (unless the Majority Lenders otherwise agree in writing).	
 
12.3	Application of mandatory prepayments	
A cancellation and, if applicable, a prepayment required to be made under Clause 12.2 ( Note Purchase Condition ) shall be applied in the following order:
 
 	(a)	first, in cancellation of Available Commitments under each Facility pro rata (and the Available Commitments of the Lenders will be cancelled rateably);	
 
 	(b)	secondly, in prepayment of Utilisations (but provided that outstanding Loans shall be prepaid before outstanding Letters of Credit) and cancellation of corresponding Commitments (pro rata across each Facility); and	
 
 	(c)	then, in repayment and cancellation of the Ancillary Outstandings and Ancillary Commitments.	
 
100

13.	RESTRICTIONS	
 
13.1	Notices of Cancellation or Prepayment	
Any notice of cancellation, prepayment, authorisation or other election given by any Party under Clause 11 ( Illegality, Voluntary Prepayment and Cancellation ) and Clause 12 ( Mandatory Prepayment ) shall (subject to the terms of those Clauses) unless a contrary indication appears in this Agreement, specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment. In the event that a Borrower delivers a conditional or revocable notice of cancellation and/or prepayment under this Agreement, which it shall be permitted to do, that Borrower shall be liable for any Break Costs and all other costs, loss or liability attributable to such notice being revoked in the event it does not make any relevant prepayment on the date specified.
 
13.2	Interest and other amounts	
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs if not made on the last day of an Interest Period, without premium or penalty.
 
13.3	Reborrowing of a Facility	
Unless a contrary indication appears in this Agreement, any part of a Facility which is prepaid or repaid may be reborrowed in accordance with the terms of this Agreement.
 
13.4	Prepayment in accordance with Agreement	
 
 	(a)	No Borrower shall repay or prepay all or any part of the Utilisations or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.	
 
 	(b)	Should there be more than one Borrower and/or Loan that is required to be partially prepaid pursuant to the terms of this Agreement, the Company may designate:	
 
 	(i)	which such Borrowers shall effect prepayment of Loans and the respective amounts to be prepaid by each such Borrower; and	
 
 	(ii)	which such Loans shall be prepaid under the Facilities and the amount of each such Loan to be prepaid, provided that the aggregate amount prepaid on each repayment date complies with the requirements of this Clause 13.4.	
 
13.5	No reinstatement of Commitments	
Subject to Clause 2.3 ( Increase ) no amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
 
101

13.6	Agent’s receipt of Notices	
If the Agent receives a notice under Clause 11 ( Illegality, Voluntary Prepayment and Cancellation ), and Clause 12 ( Mandatory Prepayment ) it shall promptly forward a copy of that notice or election to either the Company or the affected Lender or Issuing Bank, as appropriate.
 
14.	INTEREST	
 
14.1	Calculation of interest	
The rate of interest on each Loan for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:
 
 	(a)	Margin; and	
 
 	(b)	LIBOR in relation to any Loan in USD or a currency other than euro and Mexican Pesos, EURIBOR in relation to any Loan in euro or, TIIE in relation to any Loan in Mexican Pesos (or in respect of an Additional Facility, the applicable screen rate set out in the Additional Facility Notice for the relevant Additional Facility).	
 
14.2	Payment of interest	
The Borrower to which a Loan has been made shall pay accrued interest on that Loan on the last day of each Interest Period (and, if the Interest Period is longer than six (6) Months, on the dates falling at six (6) monthly intervals after the first day of the Interest Period).
 
14.3	Default interest	
 
 	(a)	To the extent permitted under applicable law, if an Obligor or Holdco Guarantor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is one (1) per cent. per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). Any interest accruing under this Clause 14.3 shall be immediately payable by the Obligor or Holdco Guarantor on demand by the Agent.	
 
 	(b)	If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:	
 
 	(i)	the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan;	
 
102

 	(ii)	the rate of interest applying to the overdue amount during that first Interest Period shall be one (1) per cent. higher than the rate which would have applied if the overdue amount had not become due; and	
 
 	(iii)	default interest (if unpaid) due by an Obligor or Holdco Guarantor, and arising on an overdue amount will be compounded (to the extent permitted under applicable law) with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.	
 
14.4	Notification of rates of interest	
The Agent shall promptly notify the Lenders and the relevant Borrower (or the Company) of the determination of a rate of interest under this Agreement.
 
15.	INTEREST PERIODS	
 
15.1	Selection of Interest Periods and Terms	
 
 	(a)	A Borrower (or the Company on behalf of a Borrower) may select an Interest Period for a Loan in the Utilisation Request for that Loan.	
 
 	(b)	Subject to this Clause 15, a Borrower (or the Company on behalf of a Borrower) may select an Interest Period of one (1), two (2), three (3) or six (6) Months (save that for any Loans denominated in MEX$, the Interest Period may only be twenty eight (28) days or ninety one (91) days) or any other period agreed between the relevant Borrower (or the Company on its behalf) and the Agent (acting on the instructions of the Majority Lenders participating in the relevant Loan (save for any Interest Period that is longer than six (6) months where the consent of all Lenders participating in the relevant Loan shall be required)).	
 
 	(c)	An Interest Period for a Loan shall not extend beyond the Termination Date applicable to the relevant Facility.	
 
 	(d)	A Loan has one Interest Period only.	
 
15.2	Non-Business Days	
If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).
 
16.	CHANGES TO THE CALCULATION OF INTEREST	
 
16.1	Absence of quotations	
Subject to Clause 16.2 ( Market disruption ), if EURIBOR or, if applicable, LIBOR is to be determined by reference to the Reference Banks but a Reference Bank does not supply a quotation by the Specified Time on the Quotation Day, the applicable EURIBOR or LIBOR shall be determined on the basis of the quotations of the remaining Reference Banks. In the event the Mexican Central Bank (Banco de
 
103

México) does not publish the TIIE, either temporarily or definitively, the Loans denominated in Mexican Pesos will bear interest at a rate equal to the sum of the Alternate Rate determined from time to time plus the Margin.
 
16.2	Market disruption	
 
 	(a)	If a Market Disruption Event occurs in relation to a Loan for any Interest Period, then the rate of interest on each Lender’s share of that Loan for the Interest Period shall be the percentage rate per annum which is the sum of:	
 
 	(i)	the Margin; and	
 
 	(ii)	the rate notified to the Agent by that Lender as soon as practicable and in any event by close of business on the date falling three (3) Business Days after the Quotation Day (or, if earlier, on the date falling three (3) Business Days prior to the date on which interest is due to be paid in respect of that Interest Period), to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in that Loan from whatever source it may reasonably select.	
 
 	(b)	If:	
 
 	(i)	the percentage rate per annum notified by a Lender pursuant to paragraph (a)(ii) above is less than EURIBOR or, if applicable, LIBOR; or	
 
 	(ii)	a Lender has not notified the Agent of a percentage rate per annum pursuant to paragraph (a)(ii) above,	
the cost to that Lender of funding its participation in that Loan for that Interest Period shall be deemed, for the purposes of paragraph (a) above, to be EURIBOR or, if applicable, LIBOR.
 
 	(c)	In this Agreement:	
“ Market Disruption Event ” means (in respect of any Loan other than a Loan denominated in Mexican Pesos):
 
 	(i)	at or about noon on the Quotation Day for the relevant Interest Period the Screen Rate is not available and none or only one of the Reference Banks supplies a rate to the Agent to determine EURIBOR or, if applicable, LIBOR for the relevant currency and Interest Period; or	
 
 	(ii)	before close of business in Madrid on the Quotation Day for the relevant Interest Period, the Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed thirty five (35) per cent. of that Loan) that the cost to it of funding its participation in that Loan from whatever source it may reasonably select would be in excess of EURIBOR or, if applicable, LIBOR.	
 
104

 	(d)	If the Agent is advised by a Mexican Lender or Mexican Lenders (whose participations in a Loan denominated in MEX$ (a “ Peso Loan ”) exceed 35 per cent. of that Peso Loan) that, by reason of any changes or events arising after the date of this Agreement affecting the Mexican interbank market, the TIIE or the Alternate Rate, as the case may be, for any Interest Period will be less than the cost to such Mexican Lender of making or maintaining its Loan for such Interest Period, then the Agent will give notice thereof (a “ Mexican Market Disruption Notice ”) to the Borrower and the Mexican Lenders:	
 
 	(i)	if a Mexican Market Disruption Notice is given, the Company and the affected Mexican Lenders shall enter into negotiations in good faith for a period of thirty (30) days to determine the rate necessary (the “negotiation period”), for the then current and subsequent Interest Periods, to compensate the affected Mexican Lenders for their cost of obtaining, as of the commencement of such Interest Periods, funds for such Interest Periods in an amount equal to the applicable principal amount of such Mexican Lenders’ participation in each Peso Loan for a period with a duration equal to each such Interest Period. If the affected Mexican Lenders and the Company agree in writing upon a substitute rate on or before the last day of the negotiation period, the interest rate determined pursuant to such alternative basis shall be the “Substitute Rate” for the relevant Interest Periods and the Peso Loans shall bear interest from and after the later of (A) the date of such agreement and (B) the expiration of the Interest Period during which the Mexican Market Disruption Notice was delivered, at a rate per annum equal to the sum of the Substitute Rate plus the Margin;	
 
 	(ii)	if the Mexican Lenders and the Company fail to agree on such alternative basis within the negotiation period, the Agent shall forthwith give notice to the Company and the affected Mexican Lenders (a “ Rate Setting Notice ”) of such failure. The interest rate to be included in the Rate Setting Notice shall then be the average of the rates that reflect the cost of each Reference Peso Bank that provides such information to the Agent for borrowing funds in Pesos for the Relevant Interest Period, calculated based on information provided to the Agent by each such Reference Peso Banks (the “ New Substitute Rate ”). The Agent shall be required to request quotes from all the Reference Peso Banks but will only be required to use those actually received by it. From and after the later of (A) the date on which a Rate Setting Notice is given and (B) the expiration of the Interest Period during which the Mexican Market Disruption Notice was delivered, the Peso Loans will bear interest, payable on the last Business Day of each month while such circumstances are in effect, at a rate per annum equal to the sum of the Margin plus the New Substitute Rate specified in such Rate Setting Notice;	
 
 	(iii)	any Substitute Rate or New Substitute Rate shall cease to apply to any Peso Loans upon notice from the Agent to the Company and the Mexican Lenders that the circumstances giving rise to such Mexican Market Disruption Notice no longer exist; and	
 
105

 	(iv)	any alternative basis agreed pursuant to this paragraph (d) shall be binding on all Parties.	
 
16.3	Alternative basis of interest or funding	
 
 	(a)	If a Market Disruption Event occurs and the Agent or the Company so requires, the Agent and the Company shall enter into negotiations (for a period of not more than thirty (30) days) with a view to agreeing a substitute basis for determining the rate of interest in respect of any affected Loan.	
 
 	(b)	Any alternative basis agreed pursuant to paragraph (a) above shall, with the prior consent of all the Lenders (such consent not to be unreasonably withheld or delayed) and the Company, be binding on all Parties, provided that:	
 
 	(i)	any alternative basis agreed pursuant to paragraph (a) shall automatically be binding on a Defaulting Lender;	
 
 	(ii)	any alternative basis agreed pursuant to paragraph (a) shall automatically be binding on any Lender which does not accept or reject a request for any such consent before 5.00 p.m. Madrid time on the date falling ten (10) Business Days’ from the date of that request being made (or such other time and date as the Company may specify, with the consent of the Agent if less than ten (10) Business Days from the date of such request being made); and	
 
 	(iii)	any Lender which rejects a request for any such consent shall be deemed to be a Non-Consenting Lender for the purposes of this Agreement.	
 
16.4	Break Costs	
 
 	(a)	Each Borrower shall, within three (3) Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.	
 
 	(b)	Each Lender shall as soon as reasonably practicable after demand by the Agent, provide to the Agent (with a copy to the Company) a certificate confirming the amount of its Break Costs (giving reasonable details of the calculation of its Break Costs) for any Interest Period in which they accrue.	
 
17.	FEES	
 
17.1	Commitment fee	
 
 	(a)	The Company shall pay (or procure there is paid) to the Agent (for the account of each Lender participating in the relevant Facility) a commitment fee in the Base Currency computed:	
 
 	(i)	in respect of each Original Facility, at a rate of thirty five (35) per cent. of the then applicable Margin per annum on that Lender’s Available Commitment under that Original Facility for the period from (and including) the Closing Date to (and including) the last day of the Availability Period applicable to the Original Facilities; and	
 
106

 	(ii)	in respect of an Additional Facility, at the rate and for the period (if any) specified in the relevant Additional Facility Notice on that Additional Facility Lender’s Available Commitment under the relevant Additional Facility.	
 
 	(b)	The accrued commitment fee is payable in arrears on the last day of each successive period of three (3) Months which ends during the relevant Availability Period, on the last day of the relevant Availability Period and, if cancelled in full, on the cancelled amount of the relevant Lender’s Commitment under Original Facilities or Additional Facility (as applicable) at the time the cancellation is effective provided that no commitment fee shall accrue or become payable prior to the Closing Date.	
 
 	(c)	No commitment fee is payable to the Agent (for the account of a Lender) on any Available Commitment of that Lender for any day on which that Lender is a Defaulting Lender.	
 
17.2	Arrangement fee	
The Company shall pay (or procure there is paid) to the Agent (for the account of the Arrangers) an arrangement fee in the amount and at the times agreed in a Fee Letter provided that such fee shall not be payable if the Closing Date does not occur.
 
17.3	Agency and Security Agent fee	
The Company shall pay (or procure there is paid) to:
 
 	(a)	the Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter; and	
 
 	(b)	the Security Agent (for its own account) a security agency fee in the amount and at the times agreed in a Fee Letter,	
provided that , in each case, such fee shall not be payable if the Closing Date does not occur.
 
17.4	Fees payable in respect of Letters of Credit	
 
 	(a)	Subject to paragraph (e) below, the Company or the relevant Borrower shall pay (or procure there is paid) to the Agent (for the account of each Issuing Bank) a fronting fee at the rate of 0.125 per cent. per annum (unless otherwise agreed by the relevant Borrower (or the Company) and the relevant Issuing Bank) on the outstanding amount which is counter-indemnified by the other Lenders of each Letter of Credit requested by it (less in each case any amount which has been repaid, prepaid or cancelled, and in each case, excluding the amount which is counter indemnified by the relevant Issuing Bank and its Affiliates in the Letter of Credit if that Issuing Bank (and/or an Affiliate of it) is also a Lender), for the period from the issue of that Letter of Credit until its Expiry Date (or the date of its repayment, prepayment or cancellation, if earlier).	
 
107

 	(b)	Subject to paragraph (e) below, the Company or each Borrower shall pay (or procure there is paid) to the Agent (for the account of each Lender) a Letter of Credit fee in the Base Currency (computed at the rate equal to the then applicable Margin for a Loan under the Facility under which the Letter of Credit is issued) on the outstanding amount of each Letter of Credit requested by it (less in each case any amount which has been repaid, prepaid or cancelled) for the period from the issue of that Letter of Credit until its Expiry Date (or the date of its repayment, prepayment or cancellation, if earlier). This fee shall be distributed according to each Lender’s L/C Proportion of that Letter of Credit.	
 
 	(c)	The accrued fronting fee and Letter of Credit fee on a Letter of Credit shall be payable in arrears on the last day of each successive period of three (3) months (or such shorter period as shall end on the Expiry Date (or the date of its repayment, prepayment or cancellation, if earlier) for that Letter of Credit) starting on the date of issue of that Letter of Credit. The accrued fronting fee and Letter of Credit fee is also payable to the relevant Issuing Bank or the Agent (as applicable) on the cancelled amount of any Lender’s Commitment at the time the cancellation is effective if that Commitment is cancelled in full and the Letter of Credit is prepaid or repaid in full.	
 
 	(d)	The Company or the relevant Borrower shall pay (or procure there is paid) to the Issuing Bank (for its own account) an issuance/administration fee in the amount and at the times specified in a Fee Letter.	
 
 	(e)	If the Company (or another member of the Group) provides (or procures) cash cover for any part of a Letter of Credit then no fronting fee or Letter of Credit fee shall be payable in respect of that part of the Letter of Credit that is cash covered.	
 
17.5	Interest, commission and fees on Ancillary Facilities	
The rate and time of payment of interest, commission, fees and any other remuneration in respect of each Ancillary Facility shall be determined by agreement between the relevant Ancillary Lender and the Borrower of that Ancillary Facility based upon normal market rates and terms.
 
17.6	No Deal, No Fee	
Notwithstanding any other provision of this Agreement or any other Finance Document, no fees, commissions, costs or expenses (other than reasonable and properly incurred legal fees and expenses (up to any cap that may be separately agreed) in connection with the drafting and the negotiating of the Finance Documents) under any Finance Document shall be payable if the Closing Date does not occur.
 
108

17.7	Defaulting Lenders	
Unless otherwise agreed in writing by the Company and notwithstanding anything to the contrary in the Finance Documents:
 
 	(a)	no commitment fee shall accrue (or be payable) on the Available Commitment of a Lender whilst that Lender is a Defaulting Lender; and	
 
 	(b)	no other fees, costs or expenses shall, in each case, be payable to a Lender whilst that Lender is a Defaulting Lender (and the fees payable under the Finance Documents shall be reduced accordingly).	
 
18.	TAX GROSS-UP AND INDEMNITIES	
 
18.1	Tax Definitions	
“ Change of Law ” means any change which occurs after the date of this Agreement or, if later, after the date on which the relevant Lender became a Lender pursuant to this Agreement (as applicable) in any law, regulation or treaty (or in the interpretation, administration or application of any law, regulation or treaty) or any published practice or published concession of any relevant tax authority.
“ Eligible Institution ” means any bank (public or private) which has delivered all information and documents and fulfilled all requirements as applicable under Mexican Income Tax Law ( Ley del Impuesto Sobre la Renta ) and its regulations and the miscellaneous tax resolution in force ( resoluci ó n miscel á nea fiscal )or the relevant Mexican Treaty (in the case of the Mexican Treaty, as detailed in such law, regulations and resolutions, as applicable) to be entitled to the lowest rate of withholding by Mexican entities of income consisting on interest charged by foreign banks to Mexican entities, available under Mexican law, which now is 4.9% (four point nine percent).
“ Luxembourg Qualifying Lender ” means a Lender which is beneficially entitled to interest payable by a Luxembourg Obligor to that Lender in respect of an advance under a Finance Document and is:
 
 	(a)	a Lender which fulfils the conditions imposed by Luxembourg law in order for a payment of interest not to be subject to (or as the case may be, exempted from) any Tax Deduction; or	
 
 	(b)	a Lender which is a Luxembourg Treaty Lender.	
“ Luxembourg Treaty Lender ” means, in relation to a payment of interest by or in respect of a Luxembourg Obligor under a Finance Document, a Lender which:
 
 	(a)	is treated as a resident of a Luxembourg Treaty State for the purposes of the relevant Luxembourg Treaty;	
 
 	(b)	does not carry on business in Luxembourg through a permanent establishment with which that Lender’s participation in the Loan is effectively connected; and	
 
109

 	(c)	fulfils any conditions which must be fulfilled under the Luxembourg Treaty and complies with any necessary procedural formalities required for residents of that Luxembourg Treaty State to benefit from a full exemption from Tax imposed by Luxembourg on interest payments due to that Lender under a Finance Document.	
“ Luxembourg Treaty State ” means a jurisdiction having a double tax agreement (the “Luxembourg Treaty”) with Luxembourg which makes provision for full exemption for Tax imposed by Luxembourg on interest payments.
“ Mexican Obligor ” means an Obligor which is resident for Tax purposes in Mexico.
“ Mexican Qualifying Lender ” means a Lender which is beneficially entitled to interest payable by a Mexican Obligor to that Lender in respect of an advance under a Finance Document and is,
 
 	(a)	corporate entities resident for Tax purposes in Mexico according to Mexican tax law;	
 
 	(b)	an Eligible Institution; or	
 
 	(c)	a Mexican Treaty Lender.	
“ Mexican Treaty Lender ” means, in relation to a payment of interest by or in respect of a Mexican Obligor under a Finance Document, a Lender which:
 
 	(a)	is treated as a resident of a Mexican Treaty State for the purposes of the relevant Mexican Treaty;	
 
 	(b)	does not carry on business in Mexico through a permanent establishment with which that Lender’s participation in the Loan is effectively connected; and	
 
 	(c)	fulfils any conditions which must be fulfilled under the Mexican Treaty and complies with any necessary procedural formalities required for residents of that Mexican Treaty State to benefit from a full exemption from Tax imposed by Mexico on interest payments due to that Lender under a Finance Document.	
“ Mexican Treaty State ” means a jurisdiction having a double tax agreement (the “ Mexican Treaty ”) with Mexico which makes provision for full exemption for Tax imposed by Mexico on interest payments.
“ Spanish Obligor ” means an Obligor which is resident for Tax purposes in Spain.
“ Spanish Qualifying Lender ” means a Lender which is beneficially entitled to interest payable by a Spanish Obligor to that Lender in respect of an advance under a Finance Document and is:
 
 	(a)	any legal entity resident for tax purposes in a European Union Member State, other than Spain (“ EU Lender ”), that:	
 
 	(i)	does not obtain income from the Finance Documents or from any Utilisation through a country or jurisdiction deemed as a tax haven for Spanish tax purposes (in accordance with the Royal Decree 1080/1991, of 5 July (Real Decreto 1080/1991, de 5 de julio));	
 
110

 	(ii)	does not operate, in respect of the Finance Documents or any Utilisation, through a permanent establishment located in Spain or a country or jurisdiction that is not a European Union Member State; and	
 
 	(iii)	provides the Obligors with a valid (as per the applicable Spanish tax regulations) certificate of tax residency in a European Union Member State, other than Spain, duly issued by the relevant Tax authorities of its jurisdiction of incorporation before any payment under the Finance Documents is due or paid (whichever occurs first). Such certificate of tax residency must be dated within the year prior to the relevant payment being due or paid (whichever occurs first) under a Finance Document and, if applicable, refer to the year in which the payment is due or paid (whichever occurs first).	
 
 	(b)	any Spanish resident credit entity registered in the Special Registries of the Bank of Spain as mentioned in paragraph (c) of Article 61 of Corporate Income Tax Regulations approved by Royal Decree 634/2015 of 10 July (Real Decreto 634/2015 de 10 de julio);	
 
 	(c)	a permanent establishment located in Spain of a non-Spanish resident financial entity as mentioned in the second paragraph of Article 8.1 of Non-Resident Income Tax Regulations approved by Royal Decree 1776/2004 of 30 July (Real Decreto 1776/2004 de 30 julio);	
 
 	(d)	a securitisation fund ( fondo de titulizaci ó n ) referred to in paragraph (k) of Section 61 of Royal Decree 634/2015 of 10 July (Real Decreto 634/2015 de 10 julio) approving the Corporate Income Tax Regulations; or	
 
 	(e)	a Spanish Treaty Lender	
“ Spanish Treaty Lender ” means, in respect of a payment by or in respect of a Spanish Obligor under a Finance Document, a Lender which is beneficially entitled to such payment and:
 
 	(a)	is treated as a resident of a Spanish Treaty State for the purposes of the relevant Spanish Treaty;	
 
 	(b)	does not carry on a business in Spain through a permanent establishment with which that Lender’s participation in the Finance Documents is effectively connected;	
 
 	(c)	is entitled to the benefits of the Spanish Treaty without limitation; and	
 
 	(d)	provides to the Spanish Obligor, before the relevant payment under the Finance Documents is made by that Spanish Obligor, of a valid and in-force certificate validly issued by the relevant Tax authority of that Lender’s country or jurisdiction of tax residency evidencing that such Lender is resident in a	
 
111

 	Spanish Treaty State for the purposes of the applicable Spanish Treaty State and for the purpose of making the payment without Tax Deduction. Such certificate of tax residency must be dated within the year prior to the relevant payment being due or paid (whichever occurs first) under a Finance Document and, if applicable, refer to the year in which the payment is due or paid (whichever occurs first)	
“ Spanish Treaty State ” means a jurisdiction having a double taxation agreement (the “ Spanish Treaty ”) with Spain which makes provision for full exemption for Tax imposed by Spain on interest payments.
“ Qualifying Lender ” means:
 
 	(a)	a Luxembourg Qualifying Lender;	
 
 	(b)	a Spanish Qualifying Lender; or	
 
 	(c)	a Mexican Qualifying Lender.	
“ Tax Credit ” means a credit against, relief from, or repayment or remission of any Tax.
“ Tax Deduction ” means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction.
“ Tax Payment ” means an increased payment made by an Obligor to a Finance Party under Clause 18.2 ( Tax gross-up ) or a payment made under Clause 18.3 ( Tax indemnity ).
Unless a contrary indication appears, in this Clause 18 a reference to “ determines ” or “ determined ” means a determination made in the absolute discretion of the person making the determination acting reasonably and in good faith.
 
18.2	Tax gross-up	
 
 	(a)	Each Obligor must make all payments to be made by it under the Finance Documents without any Tax Deduction, in each case unless a Tax Deduction is required by law.	
 
 	(b)	The Company shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from a Lender it shall promptly notify the Company and that Obligor.	
 
 	(c)	If a Lender becomes aware that it ceases to be, a Qualifying Lender it shall as soon as is reasonably practicable notify the Agent. If the Agent receives such notification from a Lender it shall as soon as is reasonably practicable notify the Company and that Obligor.	
 
112

 	(d)	If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from the Obligor shall be increased to an amount which leaves (after making any Tax Deduction) an amount equal to the payment which would have been due if no such Tax Deduction had been required.	
 
 	(e)	A payment shall not be increased under paragraph (d) above by reason of a Tax Deduction on account of Tax imposed by Luxembourg, if on the date on which the payment falls due:	
 
 	(i)	that Lender is not or has ceased to be a Luxembourg Qualifying Lender other than as a result of any Change of Law; or	
 
 	(ii)	the relevant Lender is a Luxembourg Treaty Lender and the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under paragraph (j) below; or	
 
 	(iii)	such Tax Deduction is required by virtue of the Luxembourg law dated 23 December 2005 as amended from time to time.	
 
 	(f)	A payment shall not be increased under paragraph (d) above by reason of a Tax Deduction on account of Tax imposed by Mexico, if on the date on which the payment falls due:	
 
 	(i)	that Lender is not or has ceased to be a Mexican Qualifying Lender other than as a result of any Change of Law; or	
 
 	(ii)	the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under paragraph (j) and (k) (as applicable) below.	
 
 	(g)	A payment shall not be increased under paragraph (d) above by reason of a Tax Deduction on account of Tax imposed by Spain, if on the date on which the payment falls due:	
 
 	(i)	the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Spanish Qualifying Lender, but on that date that Lender is not, or has ceased to be, a Spanish Qualifying Lender other than as a result of any Change of Law; or	
 
 	(ii)	the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under paragraphs (j) and (l) (as applicable) below	
 
 	(h)	If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.	
 
 	(i)	Within thirty days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to any evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.	
 
113

 	(j)	A Lender (or, as relevant, Issuing Bank) and each Obligor which makes a payment to which that Lender (or, as relevant, Issuing Bank) is entitled shall co-operate in completing promptly any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without any Tax Deduction and maintain that authorisation where an authorisation expires or otherwise ceases to have effect.	
 
 	(k)	Each Mexican Qualifying Lender that ceases to be a resident of Mexico for tax purposes shall, at the request of a Mexican Obligor or deliver or furnish to that Mexican Obligor, any form, certificate or other document reasonably requested by that Mexican Obligor if (i) such filing, delivery or furnishing of information is consistent with applicable laws, regulations, or a treaty, (ii) such filing, delivery or furnishing of information would reduce or eliminate any Tax payment.	
 
 	(l)	In respect of a Loan to a Borrower which is tax resident in Spain, each Spanish Qualifying Lender which is not resident in Spain for Tax purposes shall, as soon as reasonably practicable after the date on which it becomes a Party, but before any payment of interest is due or made to that Party, whichever comes first, deliver to the Company through the Agent a certificate of tax residence (or the specific form required under the relevant Treaty) duly issued by the competent Tax authorities of its country of residence evidencing such Spanish Qualifying Lender as resident for Tax purposes in that country and, if a Treaty Lender in respect of Spain, accrediting such Spanish Treaty Lender as resident in the relevant jurisdiction within the meaning of the Spanish Treaty and declaring that it is entitled to the benefits of the relevant Treaty. Each such Spanish Qualifying Lender not resident in Spain for Tax purposes shall, at the written request of the Company, deliver a new certificate of residence each time the existing certificate expires in accordance with Spanish Law.	
 
 	(m)	Each Lender which becomes a Party on the day on which this Agreement shall state whether it is:	
 
 	(i)	in respect of a Luxembourg Obligor:	
 
 	(A)	not a Luxembourg Qualifying Lender;	
 
 	(B)	a Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender); or	
 
 	(C)	a Luxembourg Treaty Lender;	
 
 	(ii)	in respect of a Mexican Obligor:	
 
 	(A)	not a Mexican Qualifying Lender;	
 
 	(B)	a Mexican Qualifying Lender (other than a Mexican Treaty Lender); or	
 
114

 	(C)	a Mexican Treaty Lender; and	
 
 	(iii)	in respect of a Spanish Obligor:	
 
 	(A)	not a Spanish Qualifying Lender;	
 
 	(B)	a Spanish Qualifying Lender (other than a Spanish Treaty Lender or an EU Lender);	
 
 	(C)	an EU Lender; or	
 
 	(D)	a Spanish Treaty Lender.	
 
18.3	Tax indemnity	
 
 	(a)	Except as provided by paragraph (b) below, the Company shall, or shall procure that another member of the Group will, within ten (10) Business Days of demand by the Agent, indemnify a Protected Party against any loss or liability which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in relation to a payment received or receivable from an Obligor under a Finance Document.	
 
 	(b)	Paragraph (a) above shall not apply:	
 
 	(i)	with respect to any Tax assessed on a Finance Party under the laws of the jurisdiction in which:	
 
 	(A)	that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for Tax purposes;	
 
 	(B)	that Finance Party has a permanent establishment to which income under this Agreement is attributed in respect of amounts received or receivable in that jurisdiction; or	
 
 	(C)	that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction,	
if that Tax is imposed on or calculated by reference to the net income or gross receipts received or receivable (but not any sum deemed to be received or receivable such as a Tax Deduction); or
 
 	(ii)	to the extent that any such loss, liability or cost:	
 
 	(A)	is compensated for by an increased payment pursuant to paragraph (d) of Clause 18.2 ( Tax gross-up ) or would have been so compensated but for the operation of paragraph (e), (f) or (g) of Clause 18.2 ( Tax gross-up );	
 
 	(B)	related to a FATCA deduction required to be made by a Party;	
 
115

 	(C)	is suffered or incurred with respect to any Bank Levy (or any payment attributable to, or liability arising as a consequence of, a Bank Levy); or	
 
 	(D)	is compensated for by an increase payment pursuant to Clause 18.6 ( Stamp Taxes ) or Clause 18.7 ( Value Added Tax ) would have been so compensated but an exclusion in Clause 18.6 ( Stamp Taxes ) or Clause 18.7 ( Value Added Tax );	
 
 	(E)	is suffered or incurred with respect to the Bank Surcharge or any payment attributable to, or liability arising as a consequence of, the Bank Surcharge.	
 
 	(c)	A Protected Party making, or intending to make, a claim under paragraph (a) above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent will notify the Company and the affected Obligor.	
 
 	(d)	A Protected Party shall, on receiving a payment from an Obligor under paragraph (a) above, notify the Agent.	
 
18.4	Tax Credit	
If an Obligor makes a Tax Payment and the relevant Finance Party determines that it has obtained and utilised a Tax Credit which is attributable to that Tax Payment (or an increased payment of which that Tax Payment forms part or to a Tax Deduction in consequence of which that Tax Payment was required), that Finance Party shall pay to the relevant Obligor such amount as that Finance Party determines will leave that Finance Party (after that payment) in the same after-Tax position as it would have been in if the Tax Payment had not been required to be made by that Obligor.
 
18.5	Lender Status Confirmation	
 
 	(a)	Each Lender which becomes a Party to this Agreement after the date of this Agreement shall indicate, in the Transfer Certificate, the Assignment Agreement, the Increase Confirmation, Issuing Bank Accession Agreement or the Additional Facility Lender Accession Notice which it executes on becoming a Party, and for the benefit of the Agent and without liability to any Obligor, which of the following categories it falls in:	
 
 	(i)	in respect of a Luxembourg Obligor:	
 
 	(A)	not a Luxembourg Qualifying Lender;	
 
 	(B)	a Luxembourg Qualifying Lender (other than a Luxembourg Treaty Lender); or	
 
 	(C)	a Luxembourg Treaty Lender;	
 
 	(ii)	in respect of a Mexican Obligor:	
 
 	(A)	not a Mexican Qualifying Lender;	
 
116

 	(B)	a Mexican Qualifying Lender (other than a Mexican Treaty Lender); or	
 
 	(C)	a Mexican Treaty Lender; and	
 
 	(iii)	in respect of a Spanish Obligor:	
 
 	(A)	not a Spanish Qualifying Lender;	
 
 	(B)	a Spanish Qualifying Lender (other than a Spanish Treaty Lender or an EU Lender);	
 
 	(C)	an EU Lender; or	
 
 	(D)	a Spanish Treaty Lender.	
 
 	(b)	If an Original Lender, a New Lender, an Increase Lender, an additional Issuing Bank or an Additional Facility Lender fails to indicate its status in respect of any Borrower in accordance with this Clause 18.5 then such Original Lender, New Lender, Increase Lender, additional Issuing Bank or Additional Facility Lender shall be treated for the purposes of this Agreement (including by each Obligor) as if it is not a Qualifying Lender until such time as it notifies the Agent or the Company in case of an Original Lender which category applies (and the Agent, upon receipt of such notification, shall inform the Company). For the avoidance of doubt, a Transfer Certificate, Assignment Agreement, Increase Confirmation, Issuing Bank Accession Agreement or Additional Facility Lender Accession Notice shall not be invalidated by any failure of a Lender to comply with this Clause 18.5.	
 
18.6	Stamp Taxes	
The Company shall, or shall procure that another member of the Group will, within ten (10) Business Days of demand by the Agent, indemnify each Finance Party against any cost, loss or liability that Finance Party incurs in relation to any stamp duty, registration or other similar Tax payable in connection with any Finance Document, except for any such Tax payable in connection with:
 
 	(a)	any Assignment Agreement, Increase Confirmation or Transfer Certificate (as the case may be) or any other document (in each case) relating to the voluntary assignment, transfer or sub-participation by the relevant Finance Party of any of its rights and/or obligations under any Finance Document save for the avoidance of doubt that where the relevant document is entered into pursuant to Clause 11.5 ( Right of cancellation and repayment in relation to a single Lender or Issuing Bank ), Clause 21 ( Mitigation by the Lenders ) or Clause 41.7 ( Replacement of Lender ), such document shall not be treated for the purposes of this Clause 18.6 as relating to such voluntary assignment, transfer or sub-participation; or	
 
 	(b)	a voluntary registration made by the relevant Finance Party to the extent that such registration is not necessary to maintain, enforce, compel or otherwise assist the rights of a Finance Party under the Finance Document.	
 
117

18.7	Value Added Tax	
 
 	(a)	All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party).	
 
 	(b)	If VAT is or becomes chargeable on any supply made by any Finance Party (the “Supplier”) to any other Finance Party (the “Recipient”) under a Finance Document, and any Party other than the Recipient (the “Relevant Party”) is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):	
 
 	(i)	(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and	
 
 	(ii)	(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.	
 
 	(c)	Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.	
 
 	(d)	Any reference in this Clause 18.7 to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference a person who is treated as making the supply, or (as appropriate) receiving the supply, under the VAT group rules (as provided for in Article 11 of the Council Directive 2006/112/EC or as otherwise implemented by the any relevant member state of the European Union or any other similar legislation in any other jurisdiction) (including, for the avoidance of doubt, pursuant to section 43 of the United Kingdom Value Added Tax Act 1994).	
 
118

 	(e)	In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party’s VAT registration and such other information as is reasonably requested in connection with such Finance Party’s VAT reporting requirements in relation to such supply.	
 
18.8	FATCA Information	
 
 	(a)	Subject to paragraph (c) below, each Party shall, within ten (10) Business Days of a reasonable request by another Party:	
 
 	(i)	confirm to that other Party whether it is:	
 
 	(A)	a FATCA Exempt Party; or	
 
 	(B)	not a FATCA Exempt Party; and	
 
 	(ii)	supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party’s compliance with FATCA; and	
 
 	(iii)	supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party’s compliance with any other law, regulation, or exchange of information regime.	
 
 	(b)	If a Party confirms to another Party pursuant to (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.	
 
 	(c)	Paragraph (a) above shall not oblige any Finance Party to do anything, and paragraph (a)(iii) above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:	
 
 	(i)	any law or regulation;	
 
 	(ii)	any fiduciary duty; or	
 
 	(iii)	any duty of confidentiality.	
 
 	(d)	If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.	
 
119

18.9	FATCA Deduction	
 
 	(a)	Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.	
 
 	(b)	Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction) notify the Party to whom it is making the payment and, in addition, shall notify the Company, the Agent and the other Finance Parties.	
 
19.	INCREASED COSTS	
 
19.1	Increased costs	
 
 	(a)	Subject to Clause 19.3 ( Exceptions ), the Company shall pay (or procure there is paid), within three (3) Business Days of a demand by the Agent, for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date it became a party to this Agreement, or (ii) compliance with any law or regulation made after the date of this Agreement (or, if later, the date it became a Party to this Agreement) or (iii) the implementation of or application of, or compliance with Basel III or any law or regulation which implements or applies Basel III.	
 
 	(b)	In this Agreement, “Increased Costs” means:	
 
 	(i)	a reduction in the rate of return from the Facility or on a Finance Party’s (or its Affiliate’s) overall capital;	
 
 	(ii)	an additional or increased cost; or	
 
 	(iii)	a reduction of any amount due, paid or payable under any Finance Document,	
which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its Commitment or an Ancillary Commitment or providing an Additional Facility Notice or funding or performing its obligations under any Finance Document or Letter of Credit.
 
19.2	Increased cost claims	
 
 	(a)	A Finance Party intending to make a claim pursuant to Clause 19.1 ( Increased costs ) shall promptly notify the Agent of the event giving rise to the claim and whether it intends to make a claim, following which the Agent shall promptly notify the Company.	
 
120

 	(b)	Each Finance Party shall, as soon as practicable after receipt of a demand by the Agent, provide a certificate (giving reasonable details of the circumstances giving rise to such claim and of the calculation of such Increased Costs) confirming the amount of its Increased Costs.	
 
19.3	Exceptions	
 
 	(a)	Clause 19.1 ( Increased costs ) does not apply to the extent any Increased Cost:	
 
 	(i)	is attributable to a Tax Deduction required by law to be made by an Obligor;	
 
 	(ii)	is attributable to a FATCA Deduction required to be made by a Party (or any payment attributable to, or liability arising, as a consequence of a FATCA Deduction);	
 
 	(iii)	is compensated for by Clause 18.3 ( Tax indemnity ) (or would have been compensated for under Clause 18.3 ( Tax indemnity ) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 18.3 ( Tax indemnity ) applied);	
 
 	(iv)	is attributable to the breach by the relevant Finance Party or its Affiliates of any law, regulation or treaty or any term of any Finance Document;	
 
 	(v)	is suffered or incurred with respect to any Bank Levy (or any payment attributable to, or liability arising as a consequence of, a Bank Levy); or	
 
 	(vi)	is compensated for by an increase payment pursuant to Clause 18.6 ( Stamp Taxes ) or Clause 18.7 ( Value Added Tax ) or would have been so compensated but for an exclusion in Clause 18.6 ( Stamp Taxes ) or Clause 18.7 ( Value Added Tax );	
 
 	(vii)	is attributable to the implementation or application of or compliance with the “International Convergence of Capital Measurement and Capital Standards, a Revised Framework” published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement or, if later, the date the relevant Finance Party became a Party to this Agreement (but excluding any amendment to Basel II arising out of Basel III (as defined in sub-paragraph (b)(ii) below) (“ Basel II ”) or any other law or regulation which implements Basel II (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates) unless a Finance Party was or reasonably should have been aware of the Increased Cost on the date it became a Finance Party under this Agreement;	
 
121

 	(viii)	attributable to any penalty having been imposed by the relevant central bank or monetary or fiscal authority upon the Finance Party (or any Affiliate of it) making such claim by virtue of its having exceeded any country or sector borrowing limits or breached any directives imposed upon it;	
 
 	(ix)	is suffered or incurred with respect to the Bank Surcharge or any payment attributable to or liability arising as a consequence of, this Bank Surcharge; or	
 
 	(x)	is not promptly (and in any event within 30 days) notified to the Borrower in accordance with Clause 19.2.	
 
 	(b)	In this Agreement:	
 
 	(i)	reference to a “ Tax Deduction ” has the same meaning given to the term in Clause 18.1 ( Tax Definitions); and	
 
 	(ii)	“ Basel III ” means:	
 
 	(A)	the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010; and	
 
 	(B)	any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”.	
 
20.	OTHER INDEMNITIES	
 
20.1	Currency indemnity	
 
 	(a)	If any sum due from an Obligor under the Finance Documents (a “ Sum ”), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the “ First Currency ”) in which that Sum is payable into another currency (the “ Second Currency ”) for the purpose of:	
 
 	(i)	making or filing a claim or proof against that Obligor; or	
 
 	(ii)	obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings against the Obligor,	
then that Obligor shall as an independent obligation, within three (3) Business Days of receipt of a demand, indemnify the Arrangers and each other Finance Party to whom that Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person (acting
 
122

reasonably and in good faith) at the time of its receipt of that Sum provided that if the amount produced or payable as a result of the conversion is greater than the relevant Sum due, the relevant Finance Party will, unless a Declared Default has occurred and is continuing, refund any such excess amount to the relevant Obligor.
 
 	(b)	Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.	
 
20.2	Other indemnities	
 
 	(a)	The Company shall (or shall procure that an Obligor will), within three (3) Business Days of receipt of a demand (which shall be accompanied by reasonable calculations or details of the amount demanded), indemnify the Arrangers and each other Secured Party against any cost, loss or liability incurred by it as a result of:	
 
 	(i)	the occurrence of any Event of Default;	
 
 	(ii)	a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 34 ( Sharing among the Lenders );	
 
 	(iii)	funding, or making arrangements to fund, its participation in a Utilisation requested by a Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default, negligence or wilful misconduct by that Finance Party alone);	
 
 	(iv)	issuing or making arrangements to issue a Letter of Credit requested by the Company or a Borrower in a Utilisation Request but not issued by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of the default, negligence or wilful misconduct by that Finance Party alone); and	
 
 	(v)	a Utilisation (or part of a Utilisation) not being prepaid in accordance with a notice of prepayment given by a Borrower or the Company.	
 
 	(b)	The Company shall within ten (10) Business Days of demand indemnify and hold harmless each Finance Party, each Affiliate of a Finance Party and each director, officer, agent, advisers and employee (as applicable) of a Finance Party or its Affiliate (each an “ Indemnified Party ”), against any cost, expense, damages, claims, loss or liability (including, except as specified below without limitation, legal fees and limited, in the case of legal fees and expenses, to one counsel to such Indemnified Party taken as a whole and in the case of a conflict of interest, one additional counsel to the affected Indemnified Parties similarly situated, taken as a whole (and if reasonably necessary one local counsel in any relevant jurisdiction)) incurred by or awarded against that Indemnified Party in connection with or arising out of the	
 
123

 	Transaction or the funding of the Transaction (including but not limited to those incurred in connection with any litigation, arbitration or administrative proceedings or regulatory enquiry concerning the Transaction) unless such damages, claims, loss or liability resulted:	
 
 	(i)	directly from fraud, the gross negligence or wilful misconduct of such Indemnified Party or results directly from such Indemnified Party breaching a term of, or any obligation under, any of the Finance Documents or any Confidentiality Undertaking given by that Indemnified Party; or	
 
 	(ii)	from or relates to any dispute solely among Indemnified Parties (other than with any Agent Security Agent, Issuing Bank or Arranger acting in its capacity as such) and not arising out of any act (including any misrepresentation) or omission of the Company or other entity controlled by the Sponsors.	
 
 	(c)	Each Indemnified Party may rely on this Clause 20.2 subject to Clause 1.5 ( Third party rights ) and the Third Parties Act.	
 
 	(d)	If any event occurs in respect of which indemnification may be sought from the Company, the relevant Indemnified Party shall only be indemnified if (where legally permissible to do so and without being under any obligation to so notify to the extent that it is not lawfully permitted to do so) it:	
 
 	(i)	notifies the Company in writing within a reasonable time after the relevant Indemnified Party becomes aware of such event and this provision provided that failure to notify the Company shall not relieve the Company from any liability that it may have under this Clause 20 except to the extent that the Company has been prejudiced through the forfeiture of its rights or defences by such failure;	
 
 	(ii)	consults with the Company fully and promptly with respect to the conduct of the relevant claim, action or proceeding;	
 
 	(iii)	conducts such claim, action or proceeding properly and diligently; and	
 
 	(iv)	does not settle any such claim, action or proceeding without the Company’s prior written consent (such consent not to be unreasonably withheld or delayed).	
The Indemnified Party shall also be entitled to appoint their own legal counsel in each applicable jurisdiction in respect of any such claim, action or proceeding.
 
 	(e)	The Finance Parties shall not have any duty or obligation, whether as fiduciary for any Indemnified Party or otherwise, to recover any payment made or required to be made under this Clause 20.2.	
 
 	(f)	No Indemnified Party shall be responsible or have any liability to any member of the Group or any Affiliate thereof or anyone else for consequential losses or damages.	
 
124

20.3	Indemnity to the Agent	
The Company shall promptly indemnify the Agent against:
 
 	(a)	any reasonable third party cost, loss or liability incurred by the Agent (acting reasonably) as a result of:	
 
 	(i)	investigating any event which it reasonably believes is a Default;	
 
 	(ii)	acting or relying on any notice, request or instruction from an Obligor, an Affiliate of an Obligor, an Initial Investor, an Affiliate of an Initial Investor or from the management of any member of the Group which it reasonably believes to be genuine, correct and appropriately authorised; or	
 
 	(iii)	instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement; and	
 
 	(b)	any cost, loss or liability (including, without limitation, for negligence or any other category of liability whatsoever) incurred by the Agent (otherwise than by reason of the Agent’s gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 35.11 ( Disruption to Payment Systems etc. ) notwithstanding the Agent’s negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) in acting as Agent under the Finance Documents.	
 
21.	MITIGATION BY THE LENDERS	
 
21.1	Mitigation	
 
 	(a)	Each Finance Party shall, in consultation with the Company, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 11.1 ( Illegality ) (or, in respect of the Issuing Bank, Clause 11.2 ( Illegality in relation to Issuing Bank )), Clause 18 ( Tax Gross-Up and Indemnities ) or Clause 19 ( Increased Costs ) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.	
 
 	(b)	Paragraph (a) above does not in any way limit the obligations of any Obligor, Holdco Guarantor or Security Provider under the Finance Documents.	
 
21.2	Limitation of liability	
 
 	(a)	The Company shall (or shall procure that an Obligor will) promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 21.1 ( Mitigation ).	
 
125

 	(b)	A Finance Party is not obliged to take any steps under Clause 21.1 ( Mitigation ) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it in a material respect.	
 
22.	COSTS AND EXPENSES	
 
22.1	Transaction expenses	
The Company shall promptly on demand after receipt of the corresponding invoice pay (or procure payment) to the Agent, the Arrangers and the Issuing Bank the amount of all reasonable third party out-of-pocket costs and expenses (including legal fees subject to any agreed caps and notarial costs (if any)) properly incurred by any of them in connection with the negotiation, preparation, printing, execution and perfection of:
 
 	(a)	this Agreement and any other Finance Document executed on or prior to the date of this Agreement; and	
 
 	(b)	any other Finance Documents (other than Transfer Certificates or Assignment Agreements) executed after the date of this Agreement,	
subject, in each case, to the Closing Date having occurred (other than in respect of legal fees up to the cap agreed by the Company) and on a basis and up to an amount as agreed between the Arrangers and the Company from time to time.
 
22.2	Amendment costs	
If:
 
 	(a)	an Obligor, Holdco Guarantor or Security Provider requests an amendment, waiver, consent or release in relation to any Finance Document or any release of any Transaction Security; or	
 
 	(b)	an amendment is required pursuant to Clause 2.2 ( Additional Facility ) or Clause 35.10 ( Change of currency ),	
the Company shall, within ten (10) Business Days of demand after receipt of the corresponding invoice, reimburse (or procure reimbursement of) the Agent for the amount of all reasonable third party out-of-pocket costs and expenses (including legal fees subject to any agreed caps and notarial costs (if any)) properly incurred by the Agent in responding to, evaluating, negotiating or complying with that request or requirement.
 
22.3	Enforcement and preservation costs	
The Company shall, within five (5) Business Days of demand, pay (or procure there is paid) to the Arrangers and each other Finance Party the amount of all costs and expenses (including legal fees) incurred by it in connection with the enforcement of or the preservation of any rights under any Finance Document and the Transaction Security and any proceedings instituted by or against the Security Agent as a consequence of taking or holding the Transaction Security or enforcing these rights.
 
126

22.4	Transfer costs and expenses	
Notwithstanding any other term of this Agreement or the other Finance Documents, if a Finance Party assigns or transfers any of its rights, benefits or obligations under the Finance Documents or enters into any sub-participation, no member of the Group shall be required to pay any fees, costs, expenses or other amounts relating to, or arising in connection with, that assignment, transfer or sub-participation, (including, without limitation, any Taxes and any amounts (including notarial fees), relating to the registration, perfection or amendment of the Transaction Security during or after the date of this Agreement) unless such assignment, transfer or sub-participation, is being made pursuant to the provisions of Clause 41.7 ( Replacement of Lender ).
 
22.5	Cost Details	
 
 	(a)	Notwithstanding any other term of this Agreement or the other Finance Documents, no member of the Group shall be required to pay any fees, costs, expenses or other amounts (other than principal and interest) unless:	
 
 	(i)	it has first been provided with reasonable details of the circumstances giving rise to such payment and of the calculation of the relevant amount (including, where applicable, details of hours worked, rates and individuals involved); and	
 
 	(ii)	in the case of costs and expenses, it has received satisfactory evidence that such costs and expenses have been properly incurred (including that all security costs relate only to Transaction Security Documents entered into, or related actions taken, in accordance with the Agreed Security Principles or approved in advance by the Company).	
 
 	(b)	Paragraph (a) above shall not apply to any costs or expenses described under Clause 22.3 ( Enforcement and preservation costs ).	
 
23.	GUARANTEE AND INDEMNITY	
 
23.1	Guarantee and Indemnity	
 
 	(a)	Each Guarantor irrevocably and unconditionally jointly and severally and at all times subject to Clause 23.12 ( Guarantee Limitations: General ) to Clause 23.16 ( Guarantee Limitation - Brazil ) below and to any limitations set out in any Accession Deed by which a Guarantor becomes a Party:	
 
 	(i)	guarantees to each Finance Party punctual performance by each other Obligor of all that Obligor’s obligations under the Finance Documents;	
 
 	(ii)	undertakes with each Finance Party that whenever another Obligor does not pay any amount when due (allowing for any applicable grace period) under or in connection with any Finance Document, that Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and	
 
 	(iii)	agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an	
 
127

 	independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability it incurs as a result of an Obligor not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due.	
 
 	(b)	The amount payable by a Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 23 if the amount claimed had been recoverable on the basis of a guarantee.	
 
23.2	Continuing Guarantee	
This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Obligor under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.
 
23.3	Reinstatement	
If any discharge, release or arrangement (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is made by a Finance Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, administration or otherwise, without limitation, then the liability of each Guarantor under this Clause 23 will continue or be reinstated as if the discharge, release or arrangement had not occurred.
 
23.4	Waiver of defences	
Subject to Clause 23.12 ( Guarantee Limitations: General ) to Clause 23.16 ( Guarantee Limitation - Brazil ) below and to any limitations set out in any Accession Deed by which a Guarantor becomes a Party, the obligations of each Guarantor under this Clause 23 will not be affected by an act, omission, matter or thing which, but for this Clause 23, would reduce, release or prejudice any of its obligations under this Clause 23 (without limitation and whether or not known to it or any Finance Party) including:
 
 	(a)	any time, waiver or consent granted to, or composition with, any Obligor or other person;	
 
 	(b)	the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;	
 
 	(c)	the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;	
 
 	(d)	any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;	
 
 	(e)	any amendment, novation, supplement, extension restatement (however fundamental and whether or not more onerous) or replacement of a Finance	
 
128

 	Document or any other document or security including, without limitation, any change in the purpose of, any extension of or increase in any facility or the addition of any new facility under any Finance Document or other document or security;	
 
 	(f)	except with respect to a Brazilian Guarantor any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or	
 
 	(g)	any insolvency or similar proceedings, except, with respect to a Brazilian Guarantor, if such Brazilian Guarantor becomes subject to any bankruptcy, insolvency or reorganisation proceeding.	
 
23.5	Waiver of Mexican law	
In addition, without limiting the generality of Clause 23.4 ( Waiver of defences ), each Guarantor incorporated under the laws of Mexico (a “ Mexican Guarantor ”) hereby irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, all rights and benefits of orden, excusión, división, quita, novación, espera and/or modificación and any other rights specified in Articles 2813, 2814, 2815, 2816, 2817, 2818, 2819, 2820, 2821, 2822, 2823, 2826, 2827, 2829, 2837, 2838, 2839, 2840, 2844, 2845, 2846, 2847, 2848 and 2849, and any other related or applicable Articles of the Código Civil Federal of Mexico and the Código Civil of each State of the Mexican Republic. With respect to paragraph (a)(iii) of Clause 23.1 ( Guarantee and Indemnity ), each Mexican Guarantor also irrevocably and unconditionally waives to the rights specified in Article 2842 of the Código Civil Federal of Mexico and the correlative article of the Código Civil of each State of the Mexican Republic.
 
23.6	Guarantor Intent	
Without prejudice to the generality of Clause 23.4 ( Waiver of defences ), but subject to Clause 23.12 ( Guarantee Limitations: General ) to Clause 23.16 ( Guarantee Limitation - Brazil ) below and to any limitations and exceptions provided in this Clause 23 set out in any Accession Deed by which it became a Guarantor, each Guarantor expressly confirms that it intends that this guarantee shall extend from time to time to any (however fundamental and of whatsoever nature and whether or not more onerous) variation, increase, extension or addition of or to any of the Finance Documents and/or any facility or amount made available under any of the Finance Documents (including pursuant to a Structural Change), including, for the purposes of or in connection with any of the following: business acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing any other indebtedness; making facilities available to new borrowers; any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and any fees, costs and/or expenses associated with any of the foregoing.
 
23.7	Immediate recourse	
Each Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Guarantor under this Clause 23. This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.
 
129

23.8	Appropriations	
Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may:
 
 	(a)	refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts in respect of claims made under this Clause 23, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and	
 
 	(b)	in respect of any amounts received or recovered by any Finance Party after a claim pursuant to this Clause 23 in respect of any sum due and payable by any Obligor under this Agreement, place such amounts in a suspense account (bearing interest at a market rate usual for accounts of that type) unless and until such moneys are sufficient in aggregate to discharge in full all amounts then due and payable under the Finance Documents.	
 
23.9	Deferral of Guarantors’ rights	
 
 	(a)	Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full and unless the Agent otherwise directs, no Guarantor will exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents or by reason of any amount being payable, or liability arising, under this Clause 23:	
 
 	(i)	to be indemnified by an Obligor;	
 
 	(ii)	to claim any contribution from any other guarantor of any Obligor’s obligations under the Finance Documents;	
 
 	(iii)	to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party;	
 
 	(iv)	other than where the Finance Party has acted fraudulently or with wilful misconduct to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under Clause 23.1 ( Guarantee and Indemnity );	
 
 	(v)	to exercise any right of set-off against any Obligor; and/or	
 
130

 	(vi)	to claim or prove as a creditor of any Obligor in competition with any Finance Party,	
unless the exercise of any such right is necessary or advisable to avoid any risk of personal or criminal liability for any current or former managing director of that Guarantor.
 
 	(b)	If a Guarantor receives any benefit, payment or distribution in relation to such rights, it shall, other than to the extent such Guarantor is permitted to retain such benefit, payment or distribution in accordance with the Intercreditor Agreement hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Finance Parties by the Obligors under or in connection with the Finance Documents to be repaid in full on trust for, or if the concept of trust is not recognised in the jurisdiction of incorporation of that Guarantor, for the benefit of, the Finance Parties and shall promptly pay or transfer the same, but subject to the limitations and exceptions provided in this Clause 23 or in any Accession Deed by which it became a Guarantor, to the Agent or as the Agent may direct for application in accordance with Clause 35 ( Payment Mechanics ).	
 
23.10	Release of Guarantors’ right of contribution	
If any Guarantor (a “ Retiring Guarantor ”) ceases to be a Guarantor in accordance with the terms of the Finance Documents, then on the date such Retiring Guarantor ceases to be a Guarantor:
 
 	(a)	that Retiring Guarantor is released by each other Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Guarantor arising by reason of the performance by any other Guarantor of its obligations under the Finance Documents; and	
 
 	(b)	each other Guarantor waives any rights it may have by reason of the performance of its obligations under the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under any Finance Document or of any other security taken pursuant to, or in connection with, any Finance Document where such rights or security are granted by or in relation to the assets of the Retiring Guarantor.	
 
23.11	Additional security	
This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Finance Party.
 
23.12	Guarantee Limitations: General	
 
 	(a)	Without limiting any specific exemptions set out below:	
 
 	(i)	no Obligor’s obligations and liabilities under this Clause 23.12 and under any other guarantee or indemnity provision in a Finance Document (the “ Guarantee Obligations ”) will extend to include any obligation or liability; and	
 
131

 	(ii)	no Transaction Security granted by an Obligor will secure any Guarantee Obligation,	
to the extent doing so would be unlawful financial assistance (notwithstanding any applicable exemptions and/or undertaking of any applicable prescribed whitewash or similar financial assistance procedures) in respect of the acquisition of shares in itself or its Holding Company under the laws of its jurisdiction of incorporation.
 
 	(b)	If, notwithstanding paragraph (a) above, the giving of the guarantee in respect of the Guarantee Obligations or Transaction Security would be unlawful financial assistance, then, to the extent necessary to give effect to paragraph (a) above, the obligations under the Finance Documents will be deemed to have been split into two tranches; “ Tranche 1 ” comprising those obligations which can be secured by the Guarantee Obligations or Transaction Security without breaching or contravening relevant financial assistance laws and “ Tranche 2 ” comprising the remainder of the obligations under the Finance Documents. The Tranche 2 obligations will be excluded from the Guarantee Obligations and will be allocated to the Facility (or Loans) to which those obligations relate, to the extent that that can be determined. To the extent that the relevant Facility cannot be determined, the Tranche 2 obligations will be allocated pro rata across the Facilities.	
 
23.13	Additional Guarantee Limitations	
Any Additional Guarantor’s obligations will be subject to any limitation on the amount guaranteed or to the extent of the recourse of the beneficiaries of the guarantee which is contained in the Accession Deed (if applicable) and on the terms consistent with the Agreed Security Principles by which that Additional Guarantor becomes a Guarantor.
 
23.14	Guarantee Limitation - Luxembourg	
 
 	(a)	Notwithstanding any other provisions to the contrary in this Agreement (other than paragraph (d) below) or any other Finance Document, the guarantee granted by Holdco, the Parent and the Company (the “ Luxembourg Guarantors ”) under this Clause 23 (the “ Luxembourg Guarantee ”) for the obligations of any Luxembourg Obligor shall be limited at any time to an aggregate amount not exceeding the higher of:	
 
 	(i)	95% of such Luxembourg Guarantor’s actif net determined as at the date on which a demand is made under the Luxembourg Guarantee, increased by the amount of any Intra-Group Liabilities; and	
 
 	(ii)	95% of such Luxembourg Guarantor’s actif net determined as at the date of this Agreement or, determined on the date hereof, increased by the amount of any Intra-Group Liabilities.	
 
 	(b)	For the purpose of determining the amount of the actif net referred to above, the assets of the Luxembourg Guarantor will be valued at their market value rather than their book value, as determined by a bank of good repute or a	
 
132

 	Luxembourg independent auditor ( réviseur d’entreprises agréé ), to be appointed by the Agent in its absolute discretion at the cost of the Luxembourg Guarantor and instructed by the Agent to act independently. The Luxembourg Guarantor acknowledges that it is not entitled to challenge the appointment of and the valuation made by a bank of good repute or the Luxembourg independent auditor ( réviseur d’entreprises agréé ).	
 
 	(c)	“Intra-Group Liabilities” as referred to above, shall for the purposes of this Clause 23.14 mean any amounts owed by the Luxembourg Guarantor to any other member of the group of companies to which it belongs (including, for the avoidance of doubt, any amounts owed that are represented by hybrid instruments such as preferred equity certificates) and that have not been financed (directly or indirectly) by a borrowing under the Finance Documents.	
 
 	(d)	The above guarantee limitation shall not apply to (i) any amounts borrowed by the Luxembourg Guarantor or any of its direct or indirect subsidiaries under the Finance Documents and (ii) any amounts borrowed under the Finance Documents and on-lent, or otherwise made available, to the Luxembourg Guarantor or any of its direct or indirect subsidiaries (in any form whatsoever). For the avoidance of doubt, the above guarantee limitation only applies to the Guarantee granted by a Luxembourg Obligor for the obligations of any Luxembourg Obligor and shall not affect or prejudice in any way the Guarantee granted by the Luxembourg Guarantor for the obligations of any other Obligors.	
 
23.15	Guarantee Limitation - Spain	
 
 	(a)	Notwithstanding anything set out to the contrary in this Agreement or any other Finance Document, the guarantees, obligations and liabilities of any Spanish Obligor expressed to be assumed under any Clause of this Agreement or any other Finance Document (including any Transaction Security Document) to which it is a party shall be deemed not to have been assumed, given or undertaken in respect of, and shall not extend to, any guarantee, obligation or liability to the extent that the same would constitute financial assistance under articles 143, 149 or 150 of the Spanish Companies Law ( Real Decreto Legislativo 1/2010, de 2 de julio, por el que se aprueba el texto refundido de la Ley de Sociedades de Capital ) or under any other foreign law that is mandatorily applicable to a Spanish Obligor. Therefore, the guarantee granted by a Spanish Obligor shall exclude expressly any liabilities that would cause the Spanish Obligor to breach in any way whatsoever any financial assistance prohibitions. Such limitations of the liabilities and obligations of any Spanish Obligor may have the effect of reducing the amount of the obligations or liabilities assumed to zero.	
 
 	(b)	Accordingly, the obligations and liabilities of any Spanish Obligor under this Agreement or any other Finance Document shall not include and shall not be extended to any repayment obligations in respect of financing used in or towards payment of or refinance of the purchase price or subscription for the shares or quotas in Spanish Obligors and/or the acquisition of or subscription for the shares or quotas in its controlling corporation directly or indirectly (or, where the company is a Spanish limited liability company (sociedad de responsabilidad limitada), of any company of its group).	
 
133

 	(c)	The limitations set forth in paragraphs (a) and (b) above shall apply mutatis mutandis to any Transaction Security created by a Spanish Obligor under a Transaction Security Document and to any guarantee, indemnity and any similar obligation resulting in a payment obligation and payment, including but not limited to set-off, pursuant to the Finance Documents and made by any Spanish Obligor.	
 
 	(d)	In addition, the guarantee granted by any Spanish Obligor is subject to any provisions that may limit, restrict, impede from time to time the granting of a guarantee by a Spanish company to secure the obligations of its parent company or any other companies within its group.	
 
23.16	Guarantee Limitation - Brazil	
 
 	(a)	Notwithstanding any provision of this Agreement, each Brazilian Guarantor unconditionally and irrevocably waives, to the fullest extent permitted under the laws of Brazil, any benefit it may be entitled to under Articles 366, 827, 829, 830, 834, 835, 838 and 839 of the Brazilian Civil Code and Article 794 of the Brazilian Civil Procedure Code.	
 
 	(b)	Enforcement of the Guarantee against a Brazilian Guarantor may be limited to bankruptcy, insolvency, liquidation, reorganization and other laws of general application relating or affecting the rights of creditors; in particular, if the obligation under the guarantee given by a Brazilian Guarantor is deemed to be a free of charge obligation ( obriga ç ã o a t í tulo gratuito ), no assurances can be given that such obligation will be enforceable against a Brazilian Guarantor under judicial reorganisation or bankruptcy proceedings filed by or brought against such Guarantor, pursuant to the Brazilian Bankruptcy Law.	
 
24.	REPRESENTATIONS	
 
24.1	General	
 
 	(a)	Each Obligor (or, in the case of Clause 24.11 ( No Misleading Information ) and Clause 24.21 ( Financial Statements ), the Company (solely)) makes the representations and warranties set out in this Clause 24 to each Finance Party at the times specified in Clause 24.24 ( Times when representations made ) and, unless otherwise indicated, only with respect to itself and not with respect to any other Obligor or member of the Group.	
 
 	(b)	Each Holdco Guarantor makes the representations and warranties set out in this Clauses 24.2 ( Status ) to 24.7 ( Governing law and enforcement ) and, in the case of the Parent only, Clause 24.17 ( Legal and beneficial ownership ) to each Finance Party at the times specified in Clause 24.24 ( Times when representations made ), only with respect to itself.	
 
134

24.2	Status	
 
 	(a)	It and each member of the Group is either a public limited liability company, limited partnership, a company with limited liability, a corporation, a general partnership or other entity duly incorporated (or, as the case may be, organised or established) and validly existing under the law of its jurisdiction of incorporation (or, as the case may be, organisation or establishment).	
 
 	(b)	It and each member of the Group has the power to own its assets and carry on its business as it is being conducted save to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.	
 
24.3	Binding obligations	
Subject to the Legal Reservations and Perfection Requirements:
 
 	(a)	the obligations expressed to be assumed by it in each Finance Document to which it is a party are legal, valid, binding and enforceable obligations; and	
 
 	(b)	(without limiting the generality of paragraph (a) above), each Transaction Security Document to which it is a party creates the security interests which that Transaction Security Document purports to create and those security interests are valid and effective in all material respects.	
 
24.4	Non-conflict with other obligations	
The entry into and performance by it of, and the transactions contemplated by, the Finance Documents to which it is a party do not (and will not) subject to the Legal Reservations and Perfection Requirements:
 
 	(a)	contravene any law or regulation applicable to it to an extent which has or is likely to have a Material Adverse Effect;	
 
 	(b)	conflict with the constitutional documents of any Obligor or any member of the Group in any material respect; or	
 
 	(c)	breach any agreement or instrument binding upon it or any member of the Group or any of its or any member of the Group’s assets or constitute a default or termination event (however described) under any such agreement or instrument, in each case, to the extent or in a manner that such conflict gives rise to a Material Adverse Effect.	
 
24.5	Power and authority	
 
 	(a)	It has (or will have on the relevant date(s)) the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Finance Documents to which it is or will be a party and the transactions contemplated by those Finance Documents.	
 
 	(b)	No limit on its powers will be exceeded as a result of the borrowing, grant of security or giving of guarantees or indemnities contemplated by the Finance Documents to which it is a party.	
 
135

24.6	Validity and admissibility in evidence	
All Authorisations required:
 
 	(a)	to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party; and	
 
 	(b)	(subject to the Legal Reservation and Perfection Requirements) to make the Finance Documents to which it is a party admissible in evidence in its Relevant Jurisdictions,	
have been (or will by the required date be) obtained or effected and are (or will by the required date be) in full force and effect.
 
24.7	Governing law and enforcement	
Subject to the Legal Reservations and Perfection Requirements:
 
 	(a)	the choice of governing law expressed in the relevant Finance Documents to which it is a party, will be recognised and enforced in its Relevant Jurisdiction; and	
 
 	(b)	any judgment obtained in relation to a Finance Document, to which it is a party, in the jurisdiction of the governing law of that Finance Document will be recognised and enforced in its Relevant Jurisdiction.	
 
24.8	No insolvency	
None of the circumstances set out in paragraphs (d) and (e) of Section 1 of Schedule 16 ( Events of Default ) applicable to it or any member of the Group have, in each case, subject to the thresholds and exceptions set out in such Sections and the other provisions of such Sections have arisen or (to the best of its knowledge and belief) been threatened against it or any member of the Group, and, in each case, excluding such actions, proceedings, steps or process which have been discharged, revoked or otherwise lapsed.
 
24.9	No default	
 
 	(a)	No Event of Default (or, when this representation is made on the date of this Agreement and on the Closing Date only, no Default) has occurred and is continuing or is reasonably likely to result from the making of any Utilisation or the entry into or the performance of any Finance Document.	
 
 	(b)	No other event or circumstance has occurred and is continuing which constitutes (or which would, with the expiry of a grace period or the giving of notice under the relevant document or any combination of any of the foregoing, constitute) a default or termination event (however described) under any other agreement or instrument which is binding on it (or Holdco or the Parent) or to which its assets (or the assets of Holdco or the Parent) are subject, in each case, which has or could reasonably be expected to have a Material Adverse Effect.	
 
136

24.10	Taxation	
 
 	(a)	Neither it nor Holdco or the Parent is materially overdue in the filing of any Tax returns (taking into account any extension or grace period) and neither it nor Holdco or the Parent is overdue in the payment of any amount in respect of Tax (taking into account any extension or grace period) unless the failure to pay the Tax could not reasonably be expected to have a Material Adverse Effect.	
 
 	(b)	No claims are being asserted against it (or Holdco or the Parent) with respect to Taxes which are likely to be determined adversely to it (or Holdco or the Parent) and which, if so adversely determined, would have or would reasonably be expected to have a Material Adverse Effect.	
 
 	(c)	The Company is resident for Tax purposes solely in the Luxembourg.	
 
24.11	No Misleading Information	
Save as disclosed in writing to the Agent and the Arrangers prior to the date on which these representations are made in accordance with Clause 24.24 ( Times when representations made ), all material written factual information provided by it to a Finance Party in connection with this Agreement was true and accurate in all material respects (taken as a whole) as at the date it was provided and is not misleading in any material respect.
 
24.12	No proceedings pending or threatened	
No litigation, arbitration or administrative proceedings or investigations of, or before, any court, arbitral body or agency which, are reasonably likely to be adversely determined, and which if so adversely determined have or could reasonably be expected to have a Material Adverse Effect have (to the best of its knowledge and belief (having made due and careful enquiry)) been started or threatened against it, Holdco or the Parent or their assets.
 
24.13	No breach of laws	
Neither it nor Holdco or the Parent has breached any law or regulation which breach has or could reasonably be expected to have a Material Adverse Effect.
 
24.14	Security and Indebtedness	
 
 	(a)	No Security exists over all of the assets of any member of the Group other than as permitted by this Agreement.	
 
 	(b)	No member of the Group has any Indebtedness outstanding other than as permitted by this Agreement.	
 
24.15	Ranking	
Its payment obligations under the Finance Documents rank at least pari passu with the claims of all of its other unsecured and unsubordinated creditors except for obligations mandatorily preferred by law applying to companies generally.
 
137

24.16	Good title to assets	
It has good title to, or valid leases or licences of, or otherwise is entitled to use, the assets necessary to carry on its business as it is presently being conducted, except, where the failure to do so does not or could not reasonably be expected to have a Material Adverse Effect.
 
24.17	Legal and beneficial ownership	
It is the sole legal and beneficial owner of the respective assets over which it purports to grant Transaction Security.
 
24.18	Shares	
 
 	(a)	There are no agreements in force which provide for the issue or allotment of, or grant any person the right to call for the issue or allotment of, any of its share or loan capital that is subject to the Transaction Security (including any option or right of pre-emption or conversion) other than as required under applicable law or as permitted by this Agreement.	
 
 	(b)	The constitutional documents of each Obligor whose shares are subject to the Transaction Security do not and could not restrict or inhibit any transfer of those shares on creation or enforcement of the Transaction Security (except as provided for by mandatory provisions of law).	
 
24.19	Intellectual Property	
It and each member of the Group:
 
 	(a)	is the sole legal and beneficial owner of or has licensed to it or are otherwise entitled to use all the Intellectual Property which is material in the context of its business and which is required by it in order to carry on its business as it is being conducted save where failure to do so could not reasonably be expected to have a Material Adverse Effect;	
 
 	(b)	so far as it is aware, does not in carrying on its businesses, infringe any Intellectual Property of any third party in any respect which has or could reasonably be expected to have a Material Adverse Effect; and	
 
 	(c)	has taken all formal or procedural actions (including payment of fees) required to maintain any material Intellectual Property owned by it save where such failure to do so could not reasonably be expected to have a Material Adverse Effect.	
 
24.20	Centre of Main Interest and establishments	
For the purposes of the Regulation, its Centre of Main Interest is situated in its jurisdiction of incorporation and it has no “establishment” (as that term is defined in the Regulation) in any other jurisdiction.
 
138

24.21	Financial Statements	
 
 	(a)	On the date of this Agreement, the Original Financial Statements and, at any other time, its most recent Financial Statements delivered pursuant to Clause 25 ( Information Undertakings ):	
 
 	(i)	have been prepared in all material respects in accordance with IFRS consistently applied unless otherwise referred to in such Financial Statements (or the notes thereto) and to the extent appropriate in the context of Quarterly Financial Statements, save as disclosed to the Agent prior to the date of delivering of those Financial Statements; and	
 
 	(ii)	give a true and fair view of (if audited) or fairly present (if unaudited), in each case, in all material respects its consolidated financial condition and operations of the Group in respect of, and as at the end of, the period with respect to which those Financial Statements were drawn up subject, in the case of Quarterly Financial Statements, to year-end adjustments (but without prejudice to the ability of the Finance Parties to rely on the Quarterly Financial Statements for the purpose of determining compliance with Clause 26.2 ( Financial Condition - Drawn Super Senior Leverage Ratio ).	
 
 	(b)	The forecasts supplied under this Agreement were arrived at after careful consideration and were based on recent historical information and on the basis of assumptions which were reasonable as at the date they were prepared and supplied it being understood that such forecasts may be subject to significant uncertainties and contingencies which are beyond the Group’s control and that no assurance can be given that the forecasts will be realised.	
 
24.22	Holding Companies	
It has not traded, carried on any other business, acquired any assets or incurred any liabilities or commitments other than:
 
 	(a)	establishment and administration costs;	
 
 	(b)	any Permitted Transaction;	
 
 	(c)	Tax liabilities and other customary liabilities for a holding company;	
 
 	(d)	the payment of any fees, costs and expenses, stamp, registration, land and other taxes incurred in connection with a Permitted Transaction;	
 
 	(e)	in connection with any arrangements entered into (or proposed to be entered into) for the purpose of financing and/or refinancing amounts outstanding under the Finance Documents; and	
 
 	(f)	ownership of shares in its Subsidiaries (if applicable) and other assets acquired pursuant to the Transaction Documents, intra-group debit and credit balances (or other intra-Group liabilities) or cash and cash equivalents or making loans to or borrowing loans from entities as shown in the Structure Memorandum.	
 
139

24.23	Anti-corruption law/sanction	
 
 	(a)	The Company and each member of the Group has conducted its businesses in compliance with applicable Anti-Corruption Laws and Sanctions and has instituted and maintained policies and procedures reasonably designed to promote and achieve compliance with applicable Anti-Corruption Laws and applicable Sanctions.	
 
 	(b)	Neither it nor any member of the Group is a Sanctioned Person and none of its directors or officers, or to its knowledge, employees or any of its agents that will act in any capacity in connection with or who will benefit from the Facilities is a Sanctioned Person.	
 
 	(c)	Neither it, nor any of their directors or officers, or to its knowledge, employees or any of its agents that will act in any capacity in connection with or who will benefit from the Facilities:	
 
 	(i)	has engaged in any transaction or activity that could reasonably be expected to result in its being designated as a Sanctioned Person or violating applicable Anti-Corruption Laws; and/or	
 
 	(ii)	has received written notice of any claim, action, suit, proceedings or investigation involving it with respect to applicable Sanctions.	
 
 	(d)	No Loan, use of proceeds or other transaction contemplated by this Agreement will violate applicable Anti-Corruption Laws or applicable Sanctions.	
 
 	(e)	Neither it, nor to the Company’s knowledge, any of its directors, officers or Affiliates is the target of Sanctions or is located or organised within a Sanctioned Country, in each case, in breach of applicable Sanctions.	
 
 	(f)	This Clause 24.23 shall not be interpreted or applied in relation to it, any Holding Company, any other Obligor, Topco, any member of the Group or any Finance Party to the extent that the obligations under this Clause 24.23 violate or expose such entity or any director, officer or employee thereof to any liability under any applicable anti-boycott or blocking law, regulation or statute that is in force from time to time in the European Union (and/or any of its member states) or the United Kingdom that are applicable to such entity (including EU Regulation (EC) 2271/96).	
 
24.24	Times when representations made	
 
 	(a)	All the representations and warranties in this Clause 24 are made by each Obligor (and the applicable representations and warranties listed in paragraph (b) of Clause 24.1 ( General ) are made by each Holdco Guarantor) on the date of this Agreement and on the Closing Date.	
 
 	(b)	The Repeating Representations are deemed to be made by each Obligor and Holdco Guarantor on the date of each Utilisation Request and on the first day of each Interest Period (other than, in each case, in respect of a Rollover Utilisation).	
 
140

 	(c)	The Repeating Representations (other than the representations and warranties set out in Clause 24.17 ( Legal and beneficial ownership )) are deemed to be made by each Additional Obligor on the day on which it becomes (or it is proposed that it becomes) an Additional Obligor.	
 
 	(d)	The Repeating Representations are deemed to be made by each Additional Obligor on the day on which it grants any Transaction Security.	
 
 	(e)	Each representation or warranty deemed to be made after the date of this Agreement shall be made by reference to the facts and circumstances existing at the date the representation or warranty is deemed to be made.	
 
25.	INFORMATION UNDERTAKINGS	
The undertakings in this Clause 25 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.
 
25.1	Information Undertakings	
The Company shall comply with the information undertakings set out in Schedule 14 ( Information Undertakings ).
 
25.2	Provision and contents of Compliance Certificate	
 
 	(a)	The Company shall supply a Compliance Certificate to the Agent with each set of its Annual Financial Statements and each set of its Quarterly Financial Statements delivered in accordance with the provisions of Clause 25.1 ( Information Undertakings ) above.	
 
 	(b)	Each Compliance Certificate shall be signed by one director or an authorised signatory of the Company and set out (in reasonable detail):	
 
 	(i)	in respect of the Compliance Certificate delivered with each set of Quarterly Financial Statements only:	
 
 	(A)	to the extent the financial covenant is tested in accordance with the provisions of Clause 26 ( Financial Covenant ), computations as to compliance with Clause 26 ( Financial Covenant ); and	
 
 	(B)	computations as to the determination of the Margin.	
 
 	(ii)	in respect of the Compliance Certificate delivered with the Annual Financial Statements only:	
 
 	(A)	to the extent the financial covenant is tested in accordance with the provisions of Clause 26 ( Financial Covenant ), computations as to compliance with Clause 26 ( Financial Covenant ) and shall be reported on by the Company’s auditors as to the proper extraction of the numbers used in the financial covenant calculations by reference to the relevant Annual	
 
141

 	Financial Statements provided that (x) such Auditors have not adopted a general policy that they will not provide such report and (y) if the Company’s Auditors as a matter of practice in respect of such report require the Finance Parties to sign an engagement, hold harmless, non-reliance or other similar letter with them, the Finance Parties have entered into any such letters with the Company’s Auditors; and	
 
 	(B)	computations as to the determination of the Margin.	
 
25.3	“Know your customer” checks	
 
 	(a)	If:	
 
 	(i)	the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;	
 
 	(ii)	any change in the status of an Obligor, Holdco Guarantor or Security Provider or the composition of the shareholders of an Obligor or Holdco Guarantor after the date on which it become a Finance Party under this Agreement; or	
 
 	(iii)	a proposed assignment or transfer by a Lender of any of its rights and/or obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer,	
obliges the Agent or any Lender (or, in the case of paragraph (iii) above, any prospective new Lender) to comply with “know your customer” or similar identification procedures in circumstances where the necessary information required by it is not otherwise available to it, each Obligor and Holdco Guarantor shall (and the Company shall procure that each Security Provider shall) promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in the case of the event described in paragraph (iii) above, on behalf of any prospective new Lender (provided it has entered into a Confidentiality Undertaking)) in order for the Agent, such Lender or, in the case of the event described in paragraph (iii) above, any prospective new Lender to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
 
 	(b)	Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the Agent to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.	
 
142

 	(c)	The Company shall, by not less than five (5) Business Days’ (or such shorter period as may be agreed with the Agent) prior written notice to the Agent, notify the Agent (which shall promptly notify the Lenders) of its intention to request that one of its Subsidiaries becomes an Additional Obligor pursuant to Clause 31 ( Changes to the Obligors ).	
 
 	(d)	Following the giving of any notice pursuant to paragraph (c) above, if the accession of such Additional Obligor obliges the Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective new Lender (provided it has entered into a Confidentiality Undertaking) in order for the Agent or such Lender or any prospective new Lender to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the accession of such Subsidiary to this Agreement as an Additional Obligor.	
 
26.	FINANCIAL COVENANT	
 
26.1	Financial definitions	
In this Agreement:
“ Consolidated EBITDA ” shall have the same meaning given to that term in Schedule 17 ( New York Law Definitions ) and when determining Consolidated EBITDA for any period, the Company shall be permitted to give pro forma effect to the adjustments which are referred to in the definition of Fixed Charge Coverage Ratio to the extent such adjustments relate to Consolidated EBITDA for the purposes of calculating the Fixed Charge Coverage Ratio (but without double-counting any adjustments permitted in accordance with Clause 26.3 ( Financial Testing ) below).
“ Consolidated Pro Forma EBITDA ” means, for any Relevant Period, Consolidated EBITDA as adjusted in accordance with Clause 26.3 ( Financial Testing ) below.
“ Drawn Super Senior Facilities Debt ” means, at any time, the aggregate Base Currency Amount of all outstanding Loans less the aggregate amount of cash and Cash Equivalents held by each member of the Group to the extent freely available for debt service.
“ Drawn Super Senior Leverage Ratio ” has the meaning given to that term in paragraph (a) of Clause 26.2 ( Financial Condition - Drawn Super Senior Leverage Ratio ).
“ Relevant Period ” means each period of twelve (12) months ending on or about the last day of each Test Date.
“ Restructuring Costs ” means one-off, exceptional or extraordinary costs or expenses relating to employee relocation, retraining, severance and termination, business
 
143

interruption, reorganisation and other restructuring or cost-cutting measures, the rationalisation, re-branding, start-up, reduction or elimination of product lines, assets or businesses, the consolidation, relocation, or closure of retail, administrative or production locations and other similar items (for the avoidance of doubt, excluding any related capital expenditure).
“ Test Condition ” means, on any Test Date, the aggregate outstanding amount of all Loans (excluding any utilisations of a Facility by way of Letters of Credit (or bank guarantees) or Ancillary Facilities) on the last day of the Relevant Period exceeds thirty five (35) per cent. of the Total Commitments at such date, or if higher, the Total Commitments as at the date of this Agreement.
“ Test Date ” means each of 31 March, 30 June, 30 September and 31 December.
“ Test Periods ” means the period commencing on the day immediately following a Test Date and ending on the next occurring Test Date.
 
26.2	Financial Condition - Drawn Super Senior Leverage Ratio	
 
 	(a)	If the Test Condition is met on a Test Date (beginning on the first Test Date to occur after two full Test Periods have elapsed after the Closing Date), the Company shall ensure that on such Test Date the ratio of Drawn Super Senior Facilities Debt as at the last day of the Relevant Period ending on such Test Date to Consolidated Pro Forma EBITDA (each as shown in the relevant Compliance Certificate) (the “ Drawn Super Senior Leverage Ratio ”) in respect of that Relevant Period will not exceed 0.35:1.	
 
 	(b)	Notwithstanding any other provision of this Agreement or any other Finance Document, the Company shall not be required to provide any calculations or confirmations with respect to the Drawn Super Senior Leverage Ratio with respect to any Relevant Period in respect of which the Test Condition is not met.	
 
 	(c)	For the avoidance of doubt, and notwithstanding any other provision of this Agreement or any other Finance Document, no Debt for Equity Swap (as such term is defined in clause 5.2 (Permitted Second Lien Payments) and clause 6.2 (Permitted Topco Payments) the Intercreditor Agreement) shall cure or prevent any drawstop under this Clause 26.2.	
 
 	(d)	For the avoidance of doubt, failure to satisfy the financial covenant in paragraph (a) above shall not (or be deemed to) directly or indirectly constitute, or result in, a breach of any representation, warranty, undertaking or other term in the Finance Documents or a Default or an Event of Default.	
 
26.3	Financial Testing	
 
 	(a)	If the Test Condition is met on a Test Date, the covenant contained in this Clause 26 will be tested by reference to the relevant Quarterly Financial Statements for the relevant Test Date unless in any such case the Annual Financial Statements required to be delivered to the Agent under this Agreement for the Relevant Period or any part thereof are available on the relevant date on which such covenant is tested, in which case such Annual Financial Statements shall be used instead.	
 
144

 	(b)	The components of each definition in (or referred to in) Clause 26.1 ( Financial definitions ) will be calculated in accordance with the Finance Documents and as applicable with IFRS (with any impact from purchase price accounting being excluded).	
 
 	(c)	For the purpose of this Clause 26 and to the extent the Drawn Super Senior Leverage Ratio or any financial definition contained in this Clause 26 is used as the basis (in whole or in part) for permitting any transaction or making any determination under this Agreement (including on a pro forma basis), no item shall be included or excluded more than once in any calculation.	
 
 	(d)	For the purposes of this Clause 26 in respect of any Relevant Period and to the extent the Drawn Super Senior Leverage Ratio or any financial definition contained in this Clause 26 is used as the basis (in whole or in part) for permitting any transaction or making any determination under this Agreement (including on a pro forma basis), the exchange rates (including for the purposes of determining any interest rate) used for determination of Drawn Super Senior Facilities Debt for that Relevant Period shall be the interest rate and/or exchange rate calculated in accordance with paragraph (e) below.	
 
 	(e)	Subject to paragraph (d) above, for the purposes of this Clause 26 in respect of any Relevant Period, the exchange rate (including for the purposes of determining any interest rate) used in the calculation of Consolidated EBITDA and Consolidated Pro Forma EBITDA shall be the weighted average exchange rates for the Relevant Period or otherwise consistent with the exchange rate methodology applied in the Financial Statements delivered under and pursuant to the terms of this Agreement or pursuant to Schedule 17 ( New York Law Definitions ), in each case, as selected and determined by the Company.	
 
 	(f)	At the election of the Company, the financial covenant and definitions contained in this Clause 26 including the definition of Consolidated Pro Forma EBITDA tested at any time for all purposes in this Agreement shall be calculated to give pro forma effect to any acquisitions, disposals or restructuring, reorganisation or cost saving initiatives (such initiatives being “ Group Initiatives ”) for the financial covenant and definitions and for each applicable Relevant Period (including the portion thereof (or for the entire period) to the extent occurring prior to the relevant event) and taking into account throughout (without double counting any synergies and cost savings actually achieved) reasonably expected synergies and cost savings in the 12 month period immediately following the completion of such acquisitions or dispositions or Group Initiatives and to give pro forma effect to any related incurrence, assumption or repayments of Indebtedness, and for the purposes of any calculation of:	
 
 	(i)	Consolidated Pro Forma EBITDA, the aggregate earnings before interest, tax, depreciation and amortisation (calculated on the same basis as Consolidated EBITDA but on an unconsolidated bases (except to the extent that the entity or business acquired itself has Subsidiaries)	
 
145

 	(“ EBITDA ”) of any entity, business, material fixed assets that is acquired during a Relevant Period shall be included for the full Relevant Period (as adjusted by any reasonably expected synergies and cost savings arising from such acquisitions or investments as well as any related Group Initiatives as set out above)) and shall exclude any non-recurring costs and other expenses related to such acquisitions or investments or Group Initiatives; and	
 
 	(ii)	Consolidated Pro Forma EBITDA, the Consolidated EBITDA of any entity, business or material fixed assets that is sold during the Relevant Period ending on or at any time after the first testing date for the financial covenant shall be excluded for the full Relevant Period as adjusted by any reasonably expected synergies and cost savings arising from such sale, transfer or disposition as well as any related Group Initiatives as set out above and shall exclude any non-recurring costs and other expenses related to such sales, transfers, dispositions or Group Initiatives.	
 
 	(g)	To the extent the Drawn Super Senior Leverage Ratio or any financial definition contained in this Clause 26 is used as the basis (in whole or part) for permitting any transaction, making any utilisation under a Facility or making any determination under this Agreement (including on a pro forma basis) at any time after a Test Date, Drawn Super Senior Facilities Debt shall be reduced to take into account any repayment of Drawn Super Senior Facilities Debt made on or before the relevant date and shall be increased to take into account any incurrence or assumption of Drawn Super Senior Facilities Debt made on or before the relevant date.	
 
 	(h)	Where any cost savings or synergies are included in any calculation for the purposes of this Clause 26, a confirmation of the aggregate amount of such cost savings and synergies will be provided by the chief executive officer or chief financial officer.	
 
 	(i)	Notwithstanding anything to the contrary (including anything in the financial definitions set out in this Agreement), when calculating any financial definition or ratio under the Finance Documents, the Company shall be permitted to exclude all or any part of any expenditure or other negative item (and/or the impact thereof) directly or indirectly relating to or resulting from:	
 
 	(i)	the impact from purchase price accounting; and/or	
 
 	(ii)	the Group being a regulated business whose business activities are subject to licence, supervision and regulation by entities, agencies, governmental authorities or other persons that has regulatory authority over the business or operations of any member of the Group; and/or	
 
 	(iii)	Restructuring Costs.	
 
 	(j)	In relation to operational leases, to the extent such operational leases are required to be treated under IFRS as finance leases as opposed to operating leases as a result of a change in IFRS after the date hereof, such obligations shall be treated in accordance with IFRS as at the date of this Agreement.	
 
146

26.4	Equity Cure	
 
 	(a)	No drawstop or other non-compliance will occur under Clause 26.2 ( Financial Condition - Drawn Super Senior Leverage Ratio ) above if prior to, or within twenty (20) Business Days (the “ Cure Period ”) after, the date that the Quarterly Financial Statements (or Annual Financial Statements) for the Relevant Period in which such failure to comply was first evidenced (the “ Applicable Period ”) are due to be delivered in accordance with the provisions of this Agreement, the Group received the proceeds of New Shareholder Injections, in an amount at least sufficient to ensure that the financial covenant in Clause 26.2 ( Financial Condition - Drawn Super Senior Leverage Ratio ) would be complied with if tested again as at the last day of the same Relevant Period (the “ Cure Amount ”) on the basis that the full amount of any New Shareholder Injections so provided in accordance with this Clause shall be included for the Relevant Period as if provided immediately prior to the last date of such Relevant Period by giving effect to the following adjustments by increasing the amount of Consolidated EBITDA (an “ Cure Right ”) by the amount of the New Shareholder Injections (in an amount at least sufficient to ensure that the financial covenant in Clause 26.2 ( Financial Condition - Drawn Super Senior Leverage Ratio ) would be complied with if tested again as at the last day of the same Relevant Period) provided that, in relation to any such New Shareholder Injections so provided in accordance with this Clause:	
 
 	(i)	the Company shall be entitled to exercise a Cure Right it may have to prevent or cure breaches of the financial covenant under this Clause 26.4, on no more than four (4) occasions after the Closing Date and on no more than two (2) occasions in any in four (4) consecutive Test Periods;	
 
 	(ii)	any New Shareholder Injections so provided and any adjustments made to Consolidated Pro Forma EBITDA under this Clause 26.4 shall not apply when calculating the applicable Margin for the Applicable Period;	
 
 	(iii)	any New Shareholder Injections so provided and any adjustments to Consolidated EBITDA under this Clause 26.4 will be taken into account for the Applicable Period and each of the next three (3) successive Relevant Periods;	
 
 	(iv)	there shall be no requirement to apply any Cure Amount in prepayment of the Facilities;	
 
 	(v)	other than for the purpose of calculating Consolidated EBITDA in accordance with, and for the purposes of, the provisions of this Clause 26.4, any New Shareholder Injections allocated or applied as a Cure Right shall not count towards any other permission or usage under or in respect of the Finance Documents;	
 
147

 	(vi)	in relation to any New Shareholder Injections so provided prior to the date of delivery of the relevant Compliance Certificate for the Relevant Period:	
 
 	(A)	the Compliance Certificate for that Relevant Period shall set out the revised financial covenant for the Relevant Period by giving effect to the Cure Right under this Clause 26.4 and confirming that such New Shareholder Injections have been provided; and	
 
 	(B)	if such New Shareholder Injections are provided on or prior to the last date of that Relevant Period, the unspent amount of such New Shareholder Injections will not be double counted with the amount of such New Shareholder Injections deemed provided in accordance with sub-paragraph (A) above; and	
 
 	(vii)	in relation to any such New Shareholder Injections so provided following the date of delivery of the relevant Compliance Certificate for the Relevant Period, immediately following the proceeds of those New Shareholder Injections being provided to it, the Company provides a revised Compliance Certificate to the Agent (signed by the chief executive officer or chief financial) setting out the revised financial covenant for the Relevant Period by giving effect to the adjustments to Consolidated EBITDA under this Clause 26.4.	
 
 	(b)	Notwithstanding any other term of the Finance Documents, if the financial covenant in Clause 26.2 ( Financial Condition - Drawn Super Senior Leverage Ratio ) has been breached, but is complied with when tested, or the Test Condition is not met on the next subsequent, Test Date (the “ Second Period ”) or Utilisations under the Original Facilities have been prepaid within the Cure Period and following such prepayment the Test Condition is no longer met, then, the relevant failure to comply or prior breach of the financial covenant set out in Clause 26.2 ( Financial Condition - Drawn Super Senior Leverage Ratio ), drawstop or other non-compliance arising therefrom shall be treated as having been cured and shall not (or be deemed to) directly or indirectly constitute, or result in, a drawstop or breach of any representation, warranty, undertaking or other term in the Finance Documents or a Default or an Event of Default, unless a Declared Default has arisen before delivery of the Compliance Certificate in respect of the Second Period.	
 
27.	GENERAL UNDERTAKINGS	
The undertakings in this Clause 27 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.
 
27.1	General undertakings	
Each Obligor shall comply with the covenants set out in Schedule 15 ( General Undertakings ).
 
148

27.2	Authorisations	
Each Obligor and each Holdco Guarantor shall promptly obtain, comply with and do all that is necessary to maintain in full force and effect any Authorisation required under any law or regulation of a Relevant Jurisdiction to:
 
 	(a)	enable it to perform its obligations under the Finance Documents to which it is a party;	
 
 	(b)	ensure (subject to the Legal Reservations and Perfection Requirements) the legality, validity and enforceability in all material respects and admissibility in evidence of any Finance Document to which it is a party; and	
 
 	(c)	carry on its business where failure to do so has or could reasonably be expected to have a Material Adverse Effect.	
 
27.3	Compliance with laws	
Each Obligor and each Holdco Guarantor shall comply in all respects with all laws to which it may be subject, if failure so to comply has a Material Adverse Effect.
 
27.4	Centre of Main Interest	
Each Obligor and each Holdco Guarantor shall not take any positive action to deliberately change the location of its Centre of Main Interest, for the purposes of the Regulation where that change would be reasonably likely to be materially adverse to the interests of the Finance Parties.
 
27.5	Notes Purchases	
 
 	(a)	Subject to paragraph (b) below, no Obligor shall (and the Company shall procure that no member of the Group shall) prepay, purchase, defease or redeem (or otherwise retire for value) any Notes (or offer to do so) (each a “ Notes Purchase ”) prior to their scheduled repayment date unless at the time the Company (or another member of the Group) legally commits to make the Notes Purchase:	
 
 	(i)	the Agent has received a written confirmation from an authorised signatory of the Company confirming that either:	
 
 	(A)	the aggregate principal face amount of all Notes that are the subject of Notes Purchases (including the current Notes Purchase) does not exceed fifty (50) per cent. of the original aggregate principal face amount of the Notes as at the Closing Date or (without double counting) when initially incurred at any time after the Closing Date (the “ Notes Purchase Basket ”); or	
 
 	(B)	to the extent the aggregate principal face amount of all Notes that are the subject of Notes Purchases (including the current Notes Purchase) has (or would) exceed the Notes Purchase Basket, the Company shall ensure that an amount of the	
 
149

 	Commitments are permanently cancelled and, if applicable, Utilisations are prepaid (as the Company may select in its sole discretion) in the same proportion by which the Notes in excess of the Notes Purchase Basket are prepaid, purchased, defeased or redeemed (or otherwise retired for value) until the Total Commitments have been reduced to USD 15,000,000 (or its equivalent in any other currency or currencies).	
For the purposes of determining the “ aggregate principal amount of all Notes Purchases ”, the aggregate amount of (i) any fees, make whole payments, call premiums and other amounts not constituting principal with respect to such Notes Purchases and (ii) proceeds of Refinancing Indebtedness applied towards such Notes Purchases shall be excluded.
 
 	(b)	Notwithstanding the provisions of paragraph (a) above, neither the Company nor any other member of the Group shall be restricted from making any Notes Purchase:	
 
 	(i)	with the proceeds of any New Shareholder Injections, from time to time, applied towards a Notes Purchase;	
 
 	(ii)	with the proceeds of any Refinancing Indebtedness, from time to time, applied towards a Notes Purchase;	
 
 	(iii)	with proceeds which could otherwise be paid out of the Group (whether by way of dividend, reduction of capital, loan, redemption, repayment or prepayment of any amount payable under the Subordinated Documents (as defined in the Intercreditor Agreement), payment of a fee or other payment) and such payment is not prohibited under Section 2 (Limitation on Restricted Payments) of Schedule 15 ( General Undertakings ) and the terms of the Intercreditor Agreement; or	
 
 	(iv)	following a Change of Control provided that any such Notes Purchase after the occurrence of a Change of Control shall only be permitted to the extent the Company has fully complied with (or will comply with) its obligations under Clause 12.1 ( Exit ) in connection with any such Notes Purchase.	
 
 	(c)	The Company shall (and shall procure that each member of the Group shall) cancel all Notes prepaid, purchased, defeased or redeemed following a Notes Purchase unless there is a material tax consequence of doing so.	
 
27.6	Anti-Corruption law and Sanction	
 
 	(a)	Each Obligor shall (and the Company shall ensure that each other member of the Group will):	
 
 	(i)	conduct its businesses in compliance with applicable Anti-Corruption Laws and applicable Sanctions; and	
 
150

 	(ii)	maintain policies and procedures reasonably designed to promote and achieve compliance with such applicable Anti-Corruption Laws and applicable Sanctions.	
 
 	(b)	Each Obligor shall (and the Company shall ensure that each other member of the Group will) procure that, so far as it is able, any director or officer acting on behalf of the foregoing, is not a Sanctioned Person and does not act on behalf of a Sanctioned Person in violation of any Sanctions.	
 
 	(c)	Each Obligor shall (and the Company shall ensure that each other member of the Group will):	
 
 	(i)	not use any revenue or benefit derived from any activity or dealing with a Sanctioned Person or in a Sanctioned Country in discharging any obligation due or owing to the Lenders to the extent that such activity or dealing is not permitted pursuant to a general or specific license from OFAC, any license or authorization from HM Treasury, the European Union, or any European Union Member State, or any other registration, authorization, permit, license exemption, or license from any other applicable Governmental Authority; and	
 
 	(ii)	to the extent permitted by law as soon as reasonably practicable after becoming aware of them supply to the Agent reasonable details of any claim, action, suit, proceedings or investigation that is formally commenced against it with respect to Sanctions by any applicable Sanctions Authority.	
 
 	(d)	Each Obligor shall not (and the Company shall ensure that no member of the Group will):	
 
 	(i)	permit or authorise any other person to, directly or, to the Obligors’ best knowledge, indirectly, use, lend, make payments of, contribute or otherwise make available, all or any part of the proceeds of the Facilities or other transactions contemplated by this Agreement to fund any trade, business or other activities:	
 
 	(A)	involving or for the benefit of any Sanctioned Person or in any Sanctioned Country in breach of Sanctions applicable to it or any Finance Party; or	
 
 	(B)	any other manner that could reasonably be expected to result in it or any Finance Party being in breach of any applicable Sanctions or becoming a Sanctioned Person; or	
 
 	(ii)	directly or, to the Obligors’ best knowledge, indirectly, use the proceeds of any Loan (or lend, contribute or otherwise make available such proceeds to any person) in furtherance of an offer, payment, promise to pay, or authorisation of the payment or giving of money, or anything else of value, to any person in violation of any applicable Anti-Corruption Laws.	
 
151

 	(e)	Each Obligor shall (and the Company shall procure that each other member of the Group will):	
 
 	(i)	use all reasonable endeavours to ensure compliance with Sanctions; and	
 
 	(ii)	to the extent permitted by law and promptly upon becoming aware of them, supply to the Agent details of any claim, action, suit, proceedings or investigations against it or any other member of the Group with respect to Sanctions.	
 
 	(f)	This Clause 27.6 shall not be interpreted or applied in relation to it, any Holding Company, any Obligor, any member of the Group or any Finance Party to the extent that the obligations under this Clause 27.6 would violate or expose such entity or any directors, officer or employee thereof to any liability under any applicable anti-boycott or blocking law, regulation or statute that is in force from time to time in the European Union (and/or any of its member states) or the United Kingdom that are applicable to such entity (including EU Regulation (EC) 2271/96).	
 
 	(g)	This Clause 27.6 shall not be interpreted or applied in relation to it, any Holding Company, any Obligor, any member of the Group or any Finance Party to the extent that the obligations under this Clause 27.6 would prevent the Obligor from engaging in business, transactions, activities or other conduct pursuant to a general or specific license from OFAC, any license or authorization from HM Treasury, the European Union, or any European Union Member State, or any other registration, authorization, permit, license exemption, or license from any other applicable Governmental Authority.	
 
27.7	Further assurance	
 
 	(a)	Subject to the Agreed Security Principles and the terms of the Transaction Security Documents, each Obligor and the Parent shall promptly do all such acts or execute all such documents (including assignments, transfers, mortgages, charges, notices and instructions) as the Security Agent may reasonably specify (and in such form as the Security Agent may reasonably require in favour of the Security Agent or its nominee(s)):	
 
 	(i)	to perfect the Security created or intended to be created under or evidenced by the Transaction Security Documents (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any rights, powers and remedies of the Security Agent or the Finance Parties provided by or pursuant to the Finance Documents or by law; and/or	
 
 	(ii)	following the occurrence of a Declared Default, to facilitate the realisation of the assets which are, or are intended to be, the subject of the Transaction Security.	
 
152

 	(b)	Subject to the Agreed Security Principles and the terms of the Transaction Security Documents, each Obligor shall (and the Company shall procure that the Parent will) take all such action reasonably requested of it by the Security Agent (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Transaction Security conferred or intended to be conferred on the Security Agent or the Finance Parties by or pursuant to the Finance Documents.	
 
 	(c)	In relation to any provision of this Agreement which requires the Obligors (or, as applicable, the Parent) to deliver any document for the purposes of granting any guarantee or Security for the benefit of all or any of the Finance Parties, the Security Agent agrees to execute as soon as reasonably practicable any such agreed form document which is presented to it for execution.	
 
27.8	Guarantees and Security	
 
 	(a)	On the Closing Date, subject to the Agreed Security Principles, the Parent shall (i) grant Transaction Security over all of the issued share capital of the Company and (ii) deliver (or procure the delivery) to the Agent and/or the Security Agent (as applicable) of the deliverables required to be so delivered under the Transaction Security Document documenting such Transaction Security together with such legal opinions of the appropriate legal advisers equivalent to those set out in Part II of Schedule 2 ( Conditions Precedent ) that are reasonably required by the Agent in connection with the granting of such Transaction Security (in each case, in form and substance satisfactory to the Agent (acting reasonably)).	
 
 	(b)	Subject to the Agreed Security Principles, the Company shall ensure that each member of the Group listed in Schedule 11 ( Material Companies ) or (in the case of the granting of Transaction Security over shares pursuant to sub-paragraph (ii) below) each direct Holding Company of such member of the Group will:	
 
 	(i)	on the date falling no later than the earlier of (i) the date falling fifteen (15) Business Days after the Closing Date and (ii) the date on which such member of the Group becomes a guarantor under the Notes, accedes to this Agreement as an Additional Guarantor in accordance with Clause 31.4 ( Additional Guarantors ); and	
 
 	(ii)	on the date falling no later than the date falling one hundred and twenty (120) days after the Closing Date, grants Transaction Security over the shares and bank accounts that were subject to Security under the Existing Security Documents and over the shares held in Atento Brasil S.A. and Atento Argentina S.A.	
 
 	(c)	Subject to the Agreed Security Principles, for each Financial Year following the Closing Date (beginning with the Financial Year ended 31 December 2017), the Company shall ensure that each member of the Group that is not a Guarantor and which is or becomes a Material Company (by reference to the most recent Annual Financial Statements delivered to the Agent) or (in the case of the granting of Transaction Security over shares pursuant to	
 
153

 	sub-paragraph (ii) below) each direct Holding Company of such member of the Group will:	
 
 	(i)	on the date no later than the date falling fifteen (15) Business Days of delivery of the Annual Financial Statements for that relevant Financial Year (which consolidates that member of the Group within those Annual Financial Statements and demonstrates that it is or has become a Material Company), accedes to this Agreement as an Additional Guarantor in accordance with Clause 31.4 ( Additional Guarantors ); and	
 
 	(ii)	on the date no later than the date falling one hundred and twenty (120) days after the delivery of such Annual Financial Statements, grants Transaction Security in favour of the Security Agent to the extent required by the Agreed Security Principles.	
 
 	(d)	Subject to the Agreed Security Principles, on or before the date falling fifteen (15) Business Days after that date that the Company incurs any Indebtedness under any structural intercompany loan made to it by a direct shareholder of the Company, (i) the creditor of such structural intercompany loan shall grant Transaction Security over such structural intercompany loan and (ii) that creditor shall accede to the Intercreditor Agreement as a Third Party Security Provider (as defined in the Intercreditor Agreement) and shall deliver (or procure the delivery) to the Agent, corporate authorisations and legal opinions of the appropriate legal advisers, in each case, equivalent to those set out in Part II of Schedule 2 (Conditions Precedent) (but as if references to a Group Security Provider were to a Holdco Security Provider) that are reasonably required by the Agent in connection with the granting of such Transaction Security (in each case, in form and substance satisfactory to the Agent (acting reasonably)).	
 
 	(e)	The Company shall ensure that, at all times following the granting of Transaction Security over all of the issued share capital of the Company pursuant to paragraph (a) above, (i) the entire issued share capital of the Company shall be the subject of Transaction Security and (ii) to the extent that any person other than the Parent directly owns shares in the Company, that person shall accede to the Intercreditor Agreement as a Third Party Security Provider (as defined in the Intercreditor Agreement) and shall deliver (or procure the delivery) to the Agent, corporate authorisations and legal opinions of the appropriate legal advisers, in each case, equivalent to those set out in Part II of Schedule 2 ( Conditions Precedent ) (but as if references to a Group Security Provider were to a Holdco Security Provider) that are reasonably required by the Agent in connection with the granting of such Transaction Security (in each case, in form and substance satisfactory to the Agent (acting reasonably)).	
 
 	(f)	Other than Transaction Security (as defined in the Intercreditor Agreement), the Parent (and the Company shall procure that each Holdco Security Provider) shall not permit any Security over any of its assets that are required by the terms of this Agreement to be subject to Transaction Security.	
 
154

27.9	Conditions Subsequent	
 
(a)	On the Closing Date, the Company shall deliver to the Agent, a copy of the Creditor/Agent Accession Undertaking (as defined in the Intercreditor Agreement) duly executed by the Wilmington Trust, Nation Association in its capacity as Senior Secured Notes Trustee (as defined in the Intercreditor Agreement) under which it agrees to be bound by the Intercreditor Agreement as a Senior Secured Notes Trustee as if it had been an original party to the Intercreditor Agreement in such capacity.	
 
(b)	The Company shall deliver to the Agent:	
 
 	(i)	on or prior to 22 August 2017, a certificate given by an authorised signatory of the Company confirming that all Indebtedness of the Group under the Brazilian Debentures has been discharged; and	
 
 	(ii)	on or prior to 6 September 2017, evidence that (i) all documentation necessary to effect the release of Security granted over the shares representing the capital stock of Atento Brasil S.A. in respect of the Brazilian Debentures has been executed by all applicable parties and (ii) such documentation has been filed for registration with the applicable registries in Brazil.	
 
28.	EVENTS OF DEFAULT	
 
28.1	Events of Default	
Each of the events or circumstances set out in this Clause 28 (other than in Clauses 28.6 ( Acceleration ) to Clause 28.8 ( Excluded Matters ) (inclusive)) and in Section 1 of Schedule 16 ( Events of Default ) is an Event of Default.
 
28.2	Misrepresentation	
Any representation or statement made or deemed to be made by an Obligor, a Holdco Guarantor or a Security Provider in the Finance Documents or in any other document delivered by or on behalf of an Obligor, a Holdco Guarantor or a Security Provider under or in connection with any Finance Document is or proves to have been incorrect or misleading in any material respect, when made or deemed to be made, unless the underlying circumstances causing such misrepresentation (if capable of remedy) are remedied within sixty (60) days of the earlier of the date the applicable Obligor, Holdco Guarantor or a Security Provider became aware of the misrepresentation and the date of the Agent giving notice to the Company of such misrepresentation.
 
28.3	Unlawfulness and invalidity	
 
 	(a)	It is or becomes unlawful for an Obligor, a Holdco Guarantor or a Security Provider that is a party to the Intercreditor Agreement to perform any of its obligations under the Finance Documents to which it is a party or any Transaction Security created or expressed to be created or evidenced by the Transaction Security Documents ceases to be effective and this individually or cumulatively materially and adversely affects the interests of the Lenders under the Finance Documents.	
 
155

 	(b)	Any material obligation or obligations of any Obligor, any Holdco Guarantor or any Security Provider that is a party to the Intercreditor Agreement are not or cease to be (subject to the Legal Reservations and Perfection Requirements) legal, valid, binding or enforceable and the cessation individually or cumulatively materially and adversely affects the interests of the Lenders under the Finance Documents.	
 
 	(c)	No Event of Default will occur under this Clause 28.3 unless the circumstances described in paragraphs (a) to (b) above:	
 
 	(i)	materially and adversely affect the interests of the Lenders as a whole; or	
 
 	(ii)	are capable remedy and are not remedied within sixty (60) days of the Agent giving notice to the Company.	
 
28.4	Intercreditor Agreement	
 
 	(a)	Any party to the Intercreditor Agreement (other than a Finance Party or the Notes Trustee) fails to comply with the material provisions of, or does not perform its material obligations under, the Intercreditor Agreement; or	
 
 	(b)	a representation or warranty given by that party (other than a Finance Party or the Notes Trustee) in the Intercreditor Agreement is incorrect in any material respect,	
and, if the non-compliance or circumstances giving rise to the misrepresentation are capable of remedy, it is not remedied within sixty (60) days of the Agent giving notice to the Company of that party’s non-compliance or misrepresentation and that failure individually or cumulatively materially and adversely affects the interests of the Lenders under the Finance Documents.
 
28.5	Repudiation and rescission of agreements	
An Obligor, a Holdco Guarantor or a Security Provider rescinds or purports to rescind or repudiates or purports to repudiate a Finance Document or any of the Transaction Security.
 
28.6	Acceleration	
On and at any time after the occurrence of an Event of Default which is continuing the Agent may, and shall if so directed by the Majority Lenders, by written notice to the Company:
 
 	(a)	cancel the Total Commitments and/or Ancillary Commitments at which time they shall immediately be cancelled;	
 
 	(b)	declare that all or part of the Utilisations, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, at which time they shall become immediately due and payable;	
 
156

 	(c)	declare that all or part of the Utilisations be payable on demand, at which time they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders;	
 
 	(d)	declare that cash cover in respect of each Letter of Credit is immediately due and payable at which time it shall become immediately due and payable;	
 
 	(e)	declare that cash cover in respect of each Letter of Credit is payable on demand at which time it shall immediately become due and payable on demand by the Agent on the instructions of the Majority Lenders;	
 
 	(f)	declare all or any part of the amounts (or cash cover in relation to those amounts) outstanding under the Ancillary Facilities to be immediately due and payable, at which time they shall become immediately due and payable;	
 
 	(g)	declare that all or any part of the amounts (or cash cover in relation to those amounts) outstanding under the Ancillary Facilities be payable on demand, at which time they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders; and/or	
 
 	(h)	exercise or direct the Security Agent to exercise any or all of its rights, remedies, powers or discretions under the Finance Documents.	
 
28.7	Clean-Up Period	
Notwithstanding any other term of this Agreement or any other Finance Document, during the period (the “ Clean-Up Period ”) commencing, in respect of any Permitted Acquisition made after the Closing Date, from the date of closing of that Permitted Acquisition to the date falling one hundred and twenty (120) days thereafter:
 
 	(a)	any intercompany debt between members of the Group and any person acquired as part of that Permitted Acquisition;	
 
 	(b)	any breach of a Clean-Up Representation or a Clean-Up Undertaking; or	
 
 	(c)	any Event of Default constituting a Clean-Up Default,	
will be deemed not to be a breach of representation or warranty in any material respect, a breach of covenant or an Event of Default (as the case may be) (and the intercompany debt described in paragraph (a) above shall be permitted without restriction) if (in each case):
 
 	(i)	it would have been (if it were not for this provision) a breach of representation or warranty in any material respect, a breach of covenant or an Event of Default only by reason of circumstances relating exclusively to any person, undertaking or business which is the direct or indirect subject of the relevant Permitted Acquisition (or any obligation to procure or ensure in relation to such person, undertaking or business);	
 
157

 	(ii)	(other than with respect to (a) above) it is capable of remedy and, if the Company is aware of the relevant circumstances at the time, reasonable steps are being taken to remedy it;	
 
 	(iii)	the circumstances giving rise to it have not been procured by or approved by the Company or any member of the Group provided that, in either case, knowledge of the breach of representation or warranty, breach of covenant or Event of Default does not equate to procurement or approval by that person; and	
 
 	(iv)	it could not reasonably be expected to have a Material Adverse Effect.	
If the relevant circumstances are continuing after the Clean-Up Period, there shall be a breach of representation or warranty, breach of covenant or Event of Default as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties).
 
28.8	Excluded Matters	
 
 	(a)	Notwithstanding any other term of this Agreement or the other Finance Documents:	
 
 	(i)	none of the steps, transactions, reorganisations or events (however described, set out in, specified in, or contemplated in or by, the Structure Memorandum (or the actions or the intermediate steps necessary to implement any of those steps, actions or events)); nor	
 
 	(ii)	a Withdrawal Event; nor	
 
 	(iii)	prior to the Closing Date, no breach of any representation, warranty, undertaking or other term of (or default or event of default under) any document relating to any Existing Debt arising as a direct or indirect result of any member of the Group entering into and/or performing its obligations under any Finance Document (or carrying out the Transaction or any other transactions contemplated by the Transaction Documents),	
shall in any case, constitute, or result in (x), a breach of any representation or, warranty, in this Agreement or the other Finance Documents, (y) a breach of undertaking or other term in this Agreement or the other Finance Documents or (z) constitute a Default or an Event of Default and, in each case, each such event shall be expressly permitted by the terms of this Agreement and the other Finance Documents.
 
 	(b)	Prior to the Closing Date, to the extent that any term of any Finance Document entered into prior to the Closing Date would breach any representation, warranty, undertaking or other term of (or cause a default or event of default under) the Existing Debt, the obligations arising under such term shall take effect to the maximum extent possible without breaching any representation, warranty, undertaking or other term of (or causing a default or event of default under) the Existing Debt. Any limitation applied to a term pursuant to this paragraph shall cease to apply immediately upon the occurrence of the Closing Date.	
 
158

29.	CHANGES TO THE LENDERS	
 
29.1	Assignments and transfers by the Lenders	
Subject to this Clause 29, a Lender (the “ Existing Lender ”) may:
 
 	(a)	assign any of its rights;	
 
 	(b)	transfer (including by way of novation) any of its rights and obligations; or	
 
 	(c)	sub-participate any of its rights or obligations,	
under any Finance Document to:
 
 	(i)	another bank or financial institution or to a trust, fund or other entity, in each case, which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets; or	
 
 	(ii)	any other person approved in writing by the Company,	
(the “ New Lender ”).
 
29.2	Conditions of assignment, transfer or sub-participation	
 
 	(a)	Up to (and including) the Closing Date, the prior written consent of the Company (in its sole discretion) is required for any assignment, transfer or sub-participation (but only if any Voting Rights under the Finance Documents pass or may pass as a result of such sub-participation) made by an Existing Lender unless such assignment, transfer or sub-participation is to its Affiliate or to another Lender or an Affiliate of a Lender.	
 
 	(b)	After the Closing Date, the prior written consent of the Company (not to be unreasonably withheld or delayed and deemed to be given if the Company fails to reply within ten (10) Business Days of receipt of a written request) is required for any assignment, transfer or sub-participation (but only if any Voting Rights under the Finance Documents pass or may pass as a result of such sub-participation) made by an Existing Lender unless such assignment, transfer or sub-participation is:	
 
 	(i)	to its Affiliate or to another Lender or an Affiliate of a Lender provided that , such person is an entity which is (other than in the case of an assignment, transfer or sub-participation to an Affiliate of a Lender) a deposit taking financial institution authorised by a financial services regulator or similar regulatory body and which (in all cases) has a long term credit rating (or, in the case of an Affiliate of a Lender only, such Affiliate’s obligations under this Agreement are unconditionally guaranteed by an Affiliate that holds a long term credit rating) of BBB- or higher by S&P or Fitch, or Baa3 or higher by Moody’s (an “ Approved Lender ”);	
 
159

 	(ii)	to a person included on the Approved List provided that , such person is an Approved Lender; or	
 
 	(iii)	made at a time when an Event of Default under paragraphs (a), (d) or (e) of Section 1 of Schedule 16 ( Events of Default ) has occurred and is continuing,	
provided that :
 
 	(A)	in all cases (including under sub-paragraphs (b)(i), (b)(ii) and (b)(iii) above):	
 
 	(1)	the existing Lender informs the Company in writing at least ten (10) Business Days prior to the relevant transfer, assignment or sub-participation (provided that) this sub-paragraph (1) shall not apply in the cases under sub-paragraph (b)(iii) above); and	
 
 	(2)	no transfer, assignment or sub-participation shall be made to any of the following persons unless the prior written consent of the Company (in its sole discretion) is obtained:	
 
 	(I)	an Industry Competitor;	
 
 	(II)	any person that is (or would, upon becoming a Lender, be) a Defaulting Lender; or	
 
 	(III)	a Loan to Own/Distressed Investor for so long as an Event of Default under paragraphs (a), (d) or (e) of Section 1 of Schedule 16 ( Events of Default ) has not occurred and is not continuing,	
 
 	(B)	if the assignment, transfer or sub-participation is in respect of an Additional Facility, the restrictions (if any) specified in the relevant Additional Facility Notice establishing such Additional Facility Commitments are complied with; and	
 
 	(C)	if the Company fails to respond to a written request for consent to a transfer, assignment or sub-participation within ten (10) Business Days of such request, such consent shall be deemed as granted.	
 
 	(c)	The Company and the Agent (acting on the instructions of the Majority Lenders) may, each acting reasonably, by agreement amend or revise the Approved List from time to time. In addition to the foregoing, the Company may unilaterally remove up to five (5) names from the Approved List in each Financial Year by notice to the Agent with immediate effect. Promptly upon receipt of such notice from the Company, the Agent shall notify the Lenders	
 
160

 	upon which the removal shall take immediate effect (but, for the avoidance of doubt, without prejudice to any Transfer Certificate or Assignment Agreement executed and delivered to the Agent prior to the Lenders’ receipt of such notice that otherwise complies with this Clause 29). The Lenders shall be entitled to propose replacement names (through the Agent) which the Company agrees to consider in good faith (but shall be under no obligation to procure that such names are added to the Approved List).	
 
 	(d)	If the consent of the Company is required for any assignment, transfer or sub-participation, for all purposes under this Agreement and the other Finance Documents that assignment, transfer or sub-participation shall only become effective if the prior written consent of the Company has been granted or (if applicable) such consent is deemed to be given in accordance with the provisions of this Clause.	
 
 	(e)	If any assignment, transfer or sub-participation is carried out in breach of this Clause 29, such assignment, transfer or sub-participation shall be void and deemed to have not occurred.	
 
 	(f)	Unless the Company and the Agent otherwise agree and except as provided below, if an Existing Lender assigns, transfers or sub-participates all or any part of its participation in the Facility or its rights and obligations under this Agreement to a person (other than to one of its Affiliates or another Lender), such assignment, transfer or sub-participation must be in a minimum amount of USD 1,000,000 (or its equivalent in other currencies) and in integral multiples of USD 1,000,000 (or its equivalent in other currencies) or if it is an assignment, transfer or sub-participation of all of the Existing Lender’s existing participation in that Facility, in an amount equal to such existing participation.	
 
 	(g)	Unless the Company and the Agent otherwise agree and except as provided above, if on the same date two or more Existing Lenders are transferring part of their participation in a Facility to the same transferee or assignee, the minimum amount so transferred by any Existing Lender to the transferee or assignee may be less than USD 1,000,000 (or its equivalent in other currencies) if the aggregate amount transferred or assigned to that transferee or assignee on that date is at least USD 1,000,000 (or its equivalent in other currencies) and provided that each of the Existing Lenders and the New Lender has, after the transfer, assignment or sub-participation, a participation in that Facility in a minimum amount of USD 1,000,000 (or its equivalent in other currencies) or, if it is a transfer, assignment or sub-participation of all of the Existing Lender’s existing participation in that Facility, in the case of the New Lender, in an amount equal to such existing participation and, in the case of the Existing Lender that is transferring, assigning or sub-participating all of its existing participation, zero.	
 
 	(h)	In determining compliance with paragraphs (f) and (g) above, any amount transferred, assigned or sub-participated by or to an Affiliate shall be aggregated with any amounts transferred, assigned or sub-participated by or to an Affiliate, and any amount held by any New Lender or its Affiliate in different currencies shall be aggregated as at the time of the relevant transfer, assignment or sub-participation by reference to the Agent’s Spot Rate of Exchange for such currencies at the time of such transfer or assignment or sub-participation.	
 
161

 	(i)	An assignment will only be effective:	
 
 	(i)	on receipt by the Agent of a copy of the prior written consent of the Company to the assignment as required pursuant to paragraph (a) or (b) above or evidence satisfactory to the Agent and the Company that such consent is not required or (if applicable) such consent is deemed to be given in accordance with the provisions of this Clause;	
 
 	(ii)	on receipt by the Agent (whether in the Assignment Agreement or otherwise) of written confirmation from the New Lender (in form and substance satisfactory to the Agent and the Company (each acting reasonably)) that the New Lender will assume the same obligations to the other Finance Parties and the other Secured Parties as it would have been under if it was an Original Lender;	
 
 	(iii)	if the procedure in Clause 29.6 ( Procedure for assignment ) being complied with;	
 
 	(iv)	unless the New Lender is already a party to the Intercreditor Agreement in its capacity as a Lender, the New Lender entering into the documentation required for it to accede as a party to the Intercreditor Agreement; and	
 
 	(v)	following the performance by the Agent of all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender, the completion of which the Agent shall promptly notify to the Existing Lender and the New Lender.	
 
 	(j)	A transfer will only be effective:	
 
 	(i)	on receipt by the Agent of a copy of the prior written consent of the Company to the transfer as required pursuant to paragraph (a) or (b) above or receipt by the Agent and the Company of written confirmation from the relevant Existing Lender that such consent is not required or (if applicable) such consent is deemed to be given in accordance with the provisions of this Clause;	
 
 	(ii)	on receipt by the Agent (whether in the Transfer Certificate or otherwise) of written confirmation from the New Lender (in form and substance satisfactory to the Agent and the Company (each acting reasonably)) that the New Lender will assume the same obligations to the other Finance Parties and the other Secured Parties as it would have been under if it was an Original Lender;	
 
 	(iii)	if the procedure set out in Clause 29.5 ( Procedure for Transfer ) is complied with;	
 
162

 	(iv)	unless the New Lender is already a party to the Intercreditor Agreement in its capacity as a Lender, the New Lender entering into the documentation required for it to accede as a party to the Intercreditor Agreement; and	
 
 	(v)	following the performance by the Agent of all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to such transfer to a New Lender, the completion of which the Agent shall promptly notify to the Existing Lender and the New Lender.	
 
 	(k)	An Existing Lender may not assign or transfer any of its rights or obligations under this Agreement or the other Finance Documents or change its Facility Office if as a result of such assignment or transfer or change of Facility Office, an Obligor would be obliged to repay all or part of the Existing Lender’s participation in a Facility in accordance with Clause 11.1 ( Illegality ).	
 
 	(l)	If:	
 
 	(i)	a Lender assigns, transfers or sub-participates any of its rights or obligations under the Finance Documents or changes the office or offices through which it performs its obligations under this Agreement (“Lending Office”); and	
 
 	(ii)	as a result of circumstances existing at the date the assignment, transfer or change of Lending Office occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Lending Office under Clause 18 ( Tax Gross-Up and Indemnities ) or Clause 19 ( Increased Costs ),	
then the New Lender or Lender acting through its new Lending Office is only entitled to receive payment under the relevant Clauses to the same extent as the Existing Lender or Lender acting through its previous Lending Office would have been if the sub-participation assignment, transfer or change had not occurred. This paragraph (l) applies in respect of any assignment, transfer, sub-participation or change of Lending Office made on or after the date of this Agreement.
 
 	(m)	A copy of a Confidentiality Undertaking required pursuant to any term of this Agreement (together with any amendments to the Confidentiality Undertaking) entered into by the Existing Lender and the proposed New Lender shall, unless otherwise agreed by the Company (or unless no information is disclosed to any person under or in reliance on that Confidentiality Undertaking), be provided to the Company at least five (5) Business Days prior to any information is disclosed under or in reliance on that Confidentiality Undertaking (and in any event before any agreement or documentation is entered into in relation to any assignment, transfer or sub-participation) and a copy of any amendment to the Confidentiality Undertaking will be provided to the Company promptly upon such amendment taking effect.	
 
163

 	(n)	Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms, for the avoidance of doubt, that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer or assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.	
 
29.3	Assignment or transfer fee	
Unless the Agent otherwise agrees and excluding an assignment or transfer to an Affiliate of a Lender the New Lender shall, on the date upon which an assignment or transfer takes effect, pay to the Agent (for its own account) a fee of USD 3,500.
 
29.4	Limitation of responsibility of Existing Lenders	
 
 	(a)	Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:	
 
 	(i)	the legality, validity, effectiveness, adequacy or enforceability of the Transaction Documents, the Transaction Security or any other documents;	
 
 	(ii)	the financial condition of any Obligor, Holdco Guarantor or Security Provider;	
 
 	(iii)	the performance and observance by any Obligor, any other member of the Group, any Holdco Guarantor or any Security Provider of its obligations under the Transaction Documents or any other documents; or	
 
 	(iv)	the accuracy of any statements (whether written or oral) made in or in connection with any Transaction Document or any other document,	
and any representations or warranties implied by law are excluded.
 
 	(b)	Each New Lender confirms to the Existing Lender, the other Finance Parties that it:	
 
 	(i)	has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and each Holdco Guarantor and each Security Provider and, in each case, its related entities in connection with its participation in this Agreement and the other Finance Documents and has not relied exclusively on any information provided to it by the Existing Lender or any other Finance Party in connection with any Transaction Document or the Transaction Security; and	
 
 	(ii)	will continue to make its own independent appraisal of the creditworthiness of each Obligor and each Holdco Guarantor and each Security Provider and, in each case, its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.	
 
164

 	(c)	Each New Lender confirms to the Company that it has all Authorisations required for lending to the Borrowers under the relevant Facility.	
 
 	(d)	Nothing in any Finance Document obliges an Existing Lender to:	
 
 	(i)	accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this Clause 29.4; or	
 
 	(ii)	support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Transaction Documents or otherwise.	
 
29.5	Procedure for Transfer	
 
 	(a)	Subject to the conditions set out in Clause 29.2 ( Conditions of assignment, transfer or sub-participation ) a transfer is effected in accordance with paragraph (b) below when the Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to paragraph (b), as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate.	
 
 	(b)	The Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.	
 
 	(c)	Subject to Clause 29.12 ( Pro rata interest settlement ), on the Transfer Date:	
 
 	(i)	to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents and in respect of the Transaction Security each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and in respect of the Transaction Security and their respective rights against one another under the Finance Documents and in respect of the Transaction Security shall be cancelled (being the “ Discharged Rights and Obligations ”);	
 
 	(ii)	each of the Obligors, the Holdco Guarantors, the Security Providers and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor, Holdco Guarantor, Security Provider or other member of the Group and the New Lender have assumed and/or acquired the same in place of that Obligor, Holdco Guarantor, Security Provider and the Existing Lender;	
 
165

 	(iii)	the Agent, the Arrangers, the Security Agent, the New Lender, the other Lenders, each Issuing Bank and any relevant Ancillary Lender shall acquire the same rights and assume the same obligations between themselves and in respect of the Transaction Security as they would have acquired and assumed had the New Lender been an Original Lender with the rights, and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Agent, the Arrangers, the Security Agent, each Issuing Bank and any relevant Ancillary Lender and the Existing Lender shall each be released from further obligations to each other under the Finance Documents; and	
 
 	(iv)	the New Lender shall become a Party as a “Lender”.	
 
29.6	Procedure for assignment	
 
 	(a)	Subject to the conditions set out in Clause 29.2 ( Conditions of assignment, transfer or sub-participation ) an assignment may be effected in accordance with paragraph (b) below when the Agent executes an otherwise duly completed Assignment Agreement delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Assignment Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Assignment Agreement.	
 
 	(b)	The Agent shall only be obliged to execute an Assignment Agreement delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assignment to such New Lender.	
 
 	(c)	Subject to Clause 29.12 ( Pro rata interest settlement ), on the Transfer Date:	
 
 	(i)	the Existing Lender will assign absolutely to the New Lender its rights under the Finance Documents and in respect of the Transaction Security expressed to be the subject of the assignment in the Assignment Agreement;	
 
 	(ii)	the Existing Lender will be released from the obligations (the “ Relevant Obligations ”) expressed to be the subject of the release in the Assignment Agreement (and any corresponding obligations by which it is bound in respect of the Transaction Security); and	
 
 	(iii)	the New Lender shall become a Party as a “Lender” and will be bound by obligations equivalent to the Relevant Obligations.	
 
 	(d)	Lenders may utilise procedures other than those set out in this Clause 29.6 to assign their rights under the Finance Documents (but not, without the consent	
 
166

 	of the relevant Obligor or unless in accordance with Clause 29.5 ( Procedure for Transfer ), to obtain a release by that Obligor from the obligations owed to that Obligor by the Lenders nor the assumption of equivalent obligations by a New Lender) provided that they comply with the conditions set out in Clause 29.2 ( Conditions of assignment, transfer or sub-participation ).	
 
29.7	Sub-Participations	
 
 	(a)	Following the Closing Date, to the extent the Company’s consent would otherwise be required under Clause 29.2, a Lender may sub-participate or sub-contract any of its rights, obligations or Commitments or any participation in any outstanding Utilisation without the Company’s consent if:	
 
 	(i)	such Lender remains a Lender under this Agreement with all rights and obligations pertaining thereto and remains liable under this Agreement and the other Finance Documents, in relation to those obligations;	
 
 	(ii)	an Obligor would not be obliged to repay all or part of a Lender’s participation in the Facility in accordance with Clause 11.1 ( Illegality ) as a result of such sub-participation;	
 
 	(iii)	as a result of laws or regulations in force or known to be coming into force at the time of the sub-participation, an Obligor would be obliged to make payment to the Lender of any amount required to be paid by an Obligor under Clause 18 ( Tax Gross-Up and Indemnities ) or Clause 19 ( Increased Costs ) that Lender shall not be entitled to receive or claim any amount under those Clauses;	
 
 	(iv)	save to the extent that an Event of Default under paragraphs (a), (d) or (e) of Section 1 of Schedule 16 ( Events of Default ) has occurred and is continuing, the Lender retains exclusive control over all rights and obligations in relation to the participations and Commitments that are the subject of the relevant agreement or arrangement, including all voting and similar rights (for the avoidance of doubt, free of any agreement or understanding pursuant to which it is required to or will consult with any other person in relation to the exercise of any such rights and/or obligations), unless:	
 
 	(A)	the proposed sub-participant is a person to whom the relevant rights and obligations could have been assigned or transferred in accordance with the terms of this Clause 29; and	
 
 	(B)	(subject to any confidentiality restrictions binding on the relevant Finance Party) prior to entering into the relevant agreement or arrangement the relevant Lender provides the Company with full details of that proposed sub-participation agreement and any voting, consultation or other rights (directly or indirectly) to be granted to the sub-participant;	
 
167

 	(v)	the relationship between the Lender and the proposed sub-participant is that of a contractual debtor and creditor (including in the bankruptcy or similar event of the Lender or an Obligor); and	
 
 	(vi)	the proposed sub-participant will, under no circumstances, (A) be subrogated to, or be substituted in respect of, the relevant Lender’s claims under this Agreement, or (B) otherwise have any contractual relationship with, or rights against the Obligors under or in connection with this Agreement (in its capacity as sub-participate under that relevant arrangement),	
and any sub-participation or sub-contract which occurs in breach of these provisions shall be void and deemed not to have occurred.
 
 	(b)	The Company shall be entitled to require the Finance Parties to provide information in reasonable detail regarding the identities and participations of each of the Lenders and any sub-participants under a sub-participation and the relevant Finance Parties shall provide such information as soon as reasonably practical after receipt of such a request, provided that a Lender shall not be required to disclose the identity of a sub-participant under a sub-participation if that Lender retains exclusive control over all rights and obligations in relation to the Commitments (including all Voting Rights) that are the subject of the relevant sub-participation free of any agreement or understanding pursuant to which it is required to or will consult with any other person in relation to the exercise of any such rights and/or obligation.	
 
29.8	Security over Lenders’ rights	
In addition to the other rights provided to Lenders under this Clause 29, each Lender may without consulting with or obtaining consent from any Obligor (but subject to paragraph (d) of Clause 29.2 ( Conditions of assignment, transfer or sub-participation ), at any time charge, assign or otherwise create Security in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender including in respect of:
 
 	(a)	any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and	
 
 	(b)	in the case of any Lender which is a fund, any charge, assignment or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities,	
except that no such charge, assignment or Security shall at any time:
 
 	(i)	release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or other Security for the Lender as a party to any of the Finance Documents; or	
 
168

 	(ii)	require any payments to be made by an Obligor or grant to any person any more extensive rights than those required to be made or granted to the relevant Lender under the Finance Documents.	
 
29.9	Additional and replacement Issuing Banks	
 
 	(a)	Any person may with the consent of the Company become an Issuing Bank.	
 
 	(b)	An Issuing Bank may (with the consent of the Company) resign on giving thirty (30) days’ notice (or such shorter period as the Company may agree) to the Company and the Agent. Any such resignation will not extend to or affect Letters of Credit issued before the resignation.	
 
 	(c)	A person will only become an Issuing Bank when:	
 
 	(i)	it delivers an Issuing Bank Accession Agreement to the Agent; and	
 
 	(ii)	the Agent executes the Issuing Bank Accession Agreement (provided that the Agent shall execute any Issuing Bank Accession Agreement which on its face appears duly completed promptly on receipt).	
 
29.10	Assignments and transfers – Issuing Bank Consent	
 
 	(a)	The consent of any Issuing Bank appointed in respect of a Facility is required for an assignment or transfer of an Existing Lender’s rights and/or obligations under that Facility (such consent not to be unreasonably withheld or delayed), other than any assignment or transfer to a person with a long term credit rating of at least BBB- or Baa3 (as applicable) according to at least two of Moody’s, S&P and Fitch.	
 
 	(b)	The rights and obligations of the Existing Lender in respect of any Letter of Credit outstanding on the date of any relevant assignment or transfer will not be assigned or transferred unless that assignment or transfer is permitted pursuant to paragraph (a) above and (if so permitted), the rights and obligations of the Existing Lender and the New Lender pursuant to Clause 7.3 ( Indemnities ) with respect to any Letter of Credit outstanding on the date of any assignment or transfer and expressed to be the subject of the assignment or transfer in the Assignment Agreement or the Transfer Certificate (as the case may be) shall be adjusted to those which they would have been had such Existing Lender and such New Lender had the Commitments expressed to be the subject of the assignment or transfer in the Assignment Agreement or the Transfer Certificate (as the case may be) on the date that Letter of Credit was issued.	
 
29.11	Maintenance of Register and provision of Assignment Agreements, Transfer Certificates, Additional Facility Notices, Additional Facility Lender Accession Notice, Increase Confirmations and Issuing Bank Accession Agreement	
 
 	(a)	The Agent shall maintain a copy of each Assignment Agreement, Transfer Certificate, Additional Facility Notice, Additional Facility Lender Accession Notice, Increase Confirmation and Issuing Bank Accession Agreement delivered to it.	
 
169

 	(b)	The Agent shall, as soon as reasonably practicable after it has received or executed an Assignment Agreement, Transfer Certificate, Additional Facility Notices, Additional Facility Lender Accession Notice, Increase Confirmation or Issuing Bank Accession Agreement send to the Company a copy of that Assignment Agreement, Transfer Certificate, Additional Facility Notices, Additional Facility Lender Accession Notice, Increase Confirmation or Issuing Bank Accession Agreement. The Agent shall provide, upon the request of the Company, in relation to any specified Transfer Certificate, Assignment Agreement, Additional Facility Notice, Additional Facility Lender Accession Notice, Increase Confirmation or Issuing Bank Accession Agreement, a copy of such document to the Company within five (5) Business Days of receipt of such request.	
 
 	(c)	The Agent shall maintain a register (the “Register”) on which it will record the name and addresses of the Lenders, the Commitments of, and the outstanding principal amount of the Utilisations (and stated interest) owing or attributable to each Lender pursuant to the terms of this Agreement from time to time.	
 
 	(d)	The entries in the Register shall be conclusive and binding for all purposes absent manifest error, and the Obligors, the Holdco Guarantors, the Security Providers, the Agent and the Lenders shall treat each person whose name is recorded in the Register pursuant to the terms of this Agreement as a Lender hereunder for all purposes of this Agreement. Any failure to make or update the Register, or any error in the Register, will not affect any Obligor’s or Holdco Guarantor’s or Security Provider’s obligations in respect of the Utilisations.	
 
 	(e)	The Agent will promptly update the Register on the relevant Transfer Date or Accession Date.	
 
 	(f)	The Register shall be available for inspection by the Company, at any reasonable time and from time to time upon reasonable prior notice and the Agent will provide a copy of the Register to the Company on request within five (5) Business Days and in any event at six (6) monthly intervals from the date of this Agreement.	
 
29.12	Pro rata interest settlement	
If the Agent has notified the Lenders that it is able to distribute interest payments on a “pro rata basis” to Existing Lenders and New Lenders then (in respect of any transfer pursuant to Clause 29.5 ( Procedure for Transfer ) or any assignment pursuant to Clause 29.6 ( Procedure for assignment ) the Transfer Date of which, in each case, is after the date of such notification and is not on the last day of an Interest Period):
 
 	(a)	any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date (“ Accrued Amounts ”) and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer than six (6) Months, on the next of the dates which falls at six (6) monthly intervals after the first day of that Interest Period); and	
 
170

 	(b)	the rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts so that, for the avoidance of doubt:	
 
 	(i)	when the Accrued Amounts become payable, those Accrued Amounts will be payable for the account of the Existing Lender; and	
 
 	(ii)	the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 29.12, have been payable to it on that date, but after deduction of the Accrued Amounts.	
 
29.13	Accession of Additional Facility Lender	
Any person which provides Additional Facility Commitments or an Additional Facility Loan shall become a party to the Intercreditor Agreement as a Lender and shall, at the same time, become a Party to this Agreement as a Lender by executing an Additional Facility Lender Accession Notice.
 
29.14	Luxembourg Provisions	
Each Party hereby expressly accepts and confirms, for the purposes of articles 1278 and 1281 of the Luxembourg Civil Code, that notwithstanding any assignment, transfer and/or novation permitted under and made in accordance with the provisions of this Agreement, the Finance Documents to which such party is a party, any Security and the guarantee given under this Agreement or any Finance Documents shall be preserved for the benefit of any assignee. The relevant Party shall to the extent necessary, as soon as reasonably practicable after it has executed an Assignment Agreement, send to the relevant Luxembourg Obligor a copy of that Assignment Agreement. Each Obligor specifically recognises hereby that the sending of a copy to the Company of such Assignment Agreement pursuant to paragraph (b) of Clause 29.11 ( Maintenance of Register and provision of Assignment Agreements, Transfer Certificates, Additional Facility Notices, Additional Facility Lender Accession Notice, Increase Confirmations and Issuing Bank Accession Agreement ) above shall be deemed in relation to the Finance Documents sufficient to fulfil the notification requirement of Article 1690 of the Luxembourg Civil Code (to the extent applicable).¶
 
30.	RESTRICTIONS ON DEBT PURCHASE TRANSACTIONS	
 
30.1	Debt Purchase Transactions	
 
 	(a)	Neither an Investor Affiliate nor a member of the Group may (and the Company shall ensure that no member of the Group will):	
 
 	(i)	enter into any Debt Purchase Transaction; or	
 
 	(ii)	beneficially own all or any part of the share capital of a company that is, a Lender or a party to a Debt Purchase Transaction.	
 
171

If any Debt Purchase Transaction is carried out in breach of this Clause 30, such Debt Purchase Transaction shall be void and deemed to have not occurred.
 
 	(b)	Nothing in this Clause 30 shall apply to an Independent Debt Fund.	
 
30.2	Disenfranchisement of members of the Group, Unrestricted Subsidiaries or an Investor Affiliates	
Each member of the Group, Unrestricted Subsidiary or Investor Affiliate that becomes a Lender pursuant to Clauses 2.2 ( Additional Facility ) or 2.3 ( Increase ) and each such person that provides a Facility or has a Commitment transferred to it or a Commitment is assumed by it in accordance with this Agreement (including, without limitation, any Additional Facility) irrevocably acknowledges and agrees that (for so long as it remains an Investor Affiliate, Unrestricted Subsidiary or a member of the Group):
 
 	(a)	in relation to any meeting or conference call to which all the Lenders are invited to attend or participate, unless the Agent otherwise agrees, it shall not attend or participate in the same or be entitled to receive the agenda or any minutes of the same;	
 
 	(b)	in its capacity as Lender, unless the Agent otherwise agrees, it shall not be entitled to receive any report or other document prepared at the behest of, or on the instructions of, the Agent or one or more of the Lenders;	
 
 	(c)	in ascertaining the Majority Lenders or Super Majority Lenders or whether any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments has been obtained to give an instruction or approve any request for a consent, waiver, amendment, or other vote under the Finance Documents such Commitment owned by such member of the Group, Unrestricted Subsidiary or Investor Affiliate (as applicable) shall be deemed to be zero; and	
 
 	(d)	subject to paragraph (a) above, for the purposes of Clause 41.2 ( All Lender Matters ), such member of the Group, Unrestricted Subsidiary or Investor Affiliate (as applicable) shall be deemed not to be a Lender,	
 
 	(e)	provided that, in each case, such consent, waiver, amendment or other vote:	
 
 	(f)	does not result or is not intended to result in any Commitment of that member of the Group, Unrestricted Subsidiary or Investor Affiliate under a particular Facility being treated in any manner which is inconsistent with the treatment proposed to be applied to any other Commitment under such Facility; or	
 
 	(g)	is not materially detrimental (in comparison to the other Finance Parties) to the rights and/or interests of that member of the Group, Unrestricted Subsidiary or Investor Affiliate solely in its capacity as a Finance Party (and, for the avoidance of doubt, excluding its interests as a holder of equity in the Company (whether directly or indirectly)), and each member of the Group, Unrestricted Subsidiary or Investor Affiliate (as applicable) upon becoming a	
 
172

 	Party expressly agrees and acknowledges that the operation of this paragraph shall not of itself be so detrimental to it in comparison to the other Finance Parties or otherwise.	
 
31.	CHANGES TO THE OBLIGORS	
 
31.1	Assignment and transfers by Obligors	
Notwithstanding any provision of this Agreement, no Obligor or Holdco Guarantor may assign any of its rights or transfer any of its rights or obligations under the Finance Documents (other than in accordance with Clause 31.2 ( Additional Borrowers ) to Clause 31.4 ( Additional Guarantors ) or pursuant to a Permitted Reorganisation or as otherwise expressly permitted by the terms of this Agreement).
 
31.2	Additional Borrowers	
 
 	(a)	Subject to compliance with the provisions of paragraphs (c) and (d) of Clause 25.3 ( “ Know your customer ” checks ), the Company may request that any member of the Group (or any person which will, on or prior to becoming a Borrower, be a member of the Group) becomes a Borrower under an Original Facility or an Additional Facility. That member of the Group shall become a Borrower under the relevant Original Facility or an Additional Facility if:	
 
 	(i)	it is:	
 
 	(A)	incorporated in the same jurisdiction as another approved or existing Borrower;	
 
 	(B)	identified in the Structure Memorandum as being the jurisdiction of incorporation of a Borrower;	
 
 	(C)	incorporated in an Approved Jurisdiction;	
 
 	(D)	in the case of a member of the Group which will borrow under an Ancillary Facility only, approved by the relevant Ancillary Lender (acting reasonably); or	
 
 	(E)	otherwise approved by all of the Lenders (acting reasonably) participating in the relevant Facility;	
 
 	(ii)	the Company, or the acceding Borrower, delivers to the Agent a duly completed and executed Accession Deed;	
 
 	(iii)	the Company confirms that no Event of Default has occurred and is continuing or would occur as a result of that member of the Group becoming an Additional Borrower;	
 
 	(iv)	it is already a Guarantor or, if required by the Agent (acting on instruction of Majority Lenders and in accordance with the Agreed Security Principles) it becomes a Guarantor in accordance with Clause 31.4 ( Additional Guarantors ) prior to or at the same time as becoming a Borrower; and	
 
173

 	(v)	the Agent has received all of the documents and other evidence listed in Part II of Schedule 2 ( Conditions Precedent ) in relation to that Additional Borrower, each in form and substance satisfactory to the Agent (acting reasonably) or receipt of such documents and evidence has been waived by the Agent (acting reasonably and only on the instructions of the Majority Lenders participating in the relevant Facility to which it will be a Borrower under each also acting reasonably).	
 
 	(b)	The Agent shall in connection with any accession of a Borrower under this Clause 31.2:	
 
 	(i)	use reasonable endeavours to agree and/or confirm satisfaction of the documents and evidence to be received by it pursuant to Part II of Schedule 2 ( Conditions Precedent ) within any time period reasonably requested by the Company (or in the absence of such request, promptly); and	
 
 	(ii)	notify the Company and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it (acting reasonably)) all the documents and other evidence listed in Part II of Schedule 2 ( Conditions Precedent ).	
 
31.3	Resignation of an Obligor	
 
 	(a)	The Company may request that an Obligor ceases to be a Borrower by delivering a Resignation Letter to the Agent.	
 
 	(b)	The Company may request that an Obligor ceases to be a Guarantor by delivering a Resignation Letter to the Agent if:	
 
 	(i)	that Obligor or any member of the Group which is its Holding Company is the subject of a transaction not prohibited by this Agreement pursuant to which it will cease to be a member of the Group;	
 
 	(ii)	that Obligor is the subject of a Permitted Reorganisation pursuant to which it is to be liquidated, wound up or dissolved (or pursuant to which it will otherwise cease to exist or will no longer be a Material Company);	
 
 	(iii)	that Obligor is designated as an Unrestricted Subsidiary in accordance with the terms of this Agreement or any event occurs after which the Obligor is no longer a Restricted Subsidiary;	
 
 	(iv)	that Obligor is permitted to resign as a guarantor and obligor under the Indenture (as applicable) as in effect on the Closing Date; or	
 
 	(v)	the Super Majority Lenders have consented to the resignation of that Obligor.	
 
174

 	(c)	The Agent shall accept a Resignation Letter and notify the Company and the other Finance Parties of its acceptance if:	
 
 	(i)	in the case of the resignation of a Borrower:	
 
 	(A)	the Company has confirmed that no Event of Default has occurred and is continuing or would result from the acceptance of the Resignation Letter;	
 
 	(B)	no amounts utilised by it as a Borrower remain outstanding under this Agreement (or will be outstanding at the time of resignation); and	
 
 	(C)	it is under no actual or contingent obligations as a Borrower under this Agreement (for the avoidance of doubt, excluding any general obligation to comply with the terms of this Agreement); or	
 
 	(ii)	in the case of the resignation of a Guarantor:	
 
 	(A)	the Company has confirmed that no Event of Default has occurred and is continuing or would result from the acceptance of the Resignation Letter;	
 
 	(B)	that Guarantor is not a Borrower (unless it will also cease to be a Borrower at or prior to the time at which its resignation as a Guarantor becomes effective); and	
 
 	(C)	no payment is due and payable from that Guarantor under Clause 23.1 ( Guarantee and Indemnity ); or	
 
 	(iii)	where the relevant Obligor is resigning as both a Borrower and a Guarantor, each of the conditions set out in this paragraph (c) are satisfied.	
 
 	(d)	Subject to paragraph (e) below, upon notification by the Agent to the Company of its acceptance of the resignation of a Borrower or a Guarantor, that entity shall cease to be a Borrower or a Guarantor (as applicable) and shall have no further rights or obligations (whether actual or contingent) under the Finance Documents as a Borrower or a Guarantor (as applicable).	
 
 	(e)	The resignation of a Borrower shall not be effective until the date of or until the confirmation of the Company referred to in paragraph (c)(i)(A) above is received, at which time that entity shall cease to be a Borrower and shall have no further rights or obligations under the Finance Documents as a Borrower.	
 
 	(f)	At the request of the Company, the Lenders shall execute as many documents as are necessary to document the resignation and release of the relevant Borrower or Guarantor, as applicable, from any liability whatsoever arising from this Agreement and the rest of the Finance Documents, including in the case of a Spanish Borrower or Spanish Obligor, any Spanish public document that is required for these purposes.	
 
175

31.4	Additional Guarantors	
 
 	(a)	Subject to compliance with the provisions of paragraphs (c) and (d) of Clause 25.3 ( “ Know your customer ” checks ), the Company may request that any of its Subsidiaries become a Guarantor.	
 
 	(b)	A member of the Group shall become a Guarantor if, subject to the Agreed Security Principles:	
 
 	(i)	the Company, or the acceding Guarantor, delivers to the Agent a duly completed and executed Accession Deed; and	
 
 	(ii)	the Agent has received all of the documents and other evidence listed in Part II of Schedule 2 ( Conditions Precedent ) in relation to that Additional Guarantor, each in form and substance satisfactory to the Agent (acting reasonably) or receipt of such documents and evidence has been waived by the Agent (acting reasonably and only on the instructions of the Majority Lenders each also acting reasonably) other than all such documentation and evidence that relates to the granting of Transaction Security provided that such documentation and evidence shall be required to be delivered at the time such Transaction Security is granted in accordance with 27.8 .( Guarantees and Security ) instead of at the time that such member of the Group becomes a Guarantor.	
 
 	(c)	The Agent shall in connection with any accession of a Guarantor under this Clause 31.4:	
 
 	(i)	use reasonable endeavours to agree and/or confirm satisfaction of the documents and evidence to be received by it pursuant to Part II of Schedule 2 ( Conditions Precedent ) within any time period reasonably requested by the Company (or in the absence of such request, promptly); and	
 
 	(ii)	notify the Company and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it (acting reasonably)) all the documents and other evidence listed in Part II of Schedule 2 ( Conditions Precedent ).	
 
 	(d)	The Agent may agree with the Company that the requirements under paragraph (b)(ii) above are to be delivered and/or satisfied at a date later than the date on which the relevant entity becomes an Additional Guarantor.	
 
32.	ROLE OF THE AGENT, THE ARRANGERS, THE ISSUING BANK AND OTHERS	
 
32.1	Appointment of the Agent	
 
 	(a)	Each of the Arrangers, the Lenders and the Issuing Bank(s) appoints the Agent to act as its agent and attorney-in-fact under and in connection with the Finance Documents.	
 
176

 	(b)	Each of the Arrangers, the Lenders and the Issuing Bank authorises the Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities, confirmation, determinations, approvals, satisfactions, opinions and discretions specifically given to the Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions expressly including appearing before notaries to grant or execute any public or private deed related to this mandate (including without limitation, any Spanish public document) and, specifically, those deemed necessary or appropriate according to the mandate received (including, but not limited to, documents of amendment or ratification of this Agreement).	
 
 	(c)	A Finance Party that cannot authorise or empower, or has not authorised or empowered, the Agent to act on its behalf, irrevocably undertakes to appear and execute with the Agent to enable the Agent to exercise any right, power, authority or discretion vested in it as Agent pursuant to this Agreement and to execute any document or instrument (including, without limitation, any Spanish public document).	
 
 	(d)	In addition, for Mexican law purposes, each Arranger, Lender and Issuing Bank hereby grants to the Agent a comisión mercantil con representación in accordance with Articles 273, 274, and other applicable Articles of the Commerce Code ( Código de Comercio ) of Mexico to act on its behalf as its agent in connection with the Finance Documents, in the terms and for the purposes set forth in this Clause 32.	
 
32.2	Instructions	
 
 	(a)	The Agent shall:	
 
 	(i)	unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by:	
 
 	(A)	all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision;	
 
 	(B)	the Super Majority Lender if the relevant Finance Document stipulates the matter is a Super Majority Lender decision;	
 
 	(C)	the applicable Lenders forming part of an affected class if the relevant Finance Documents stipulates the matter is a decision for that affected class of Lenders; and	
 
 	(D)	in all other cases, the Majority Lenders;	
 
 	(ii)	not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (i) above.	
 
 	(b)	The Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Lender or group of Lenders,	
 
177

 	from that Lender or group of Lenders) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.	
 
 	(c)	Save in the case of decisions stipulated to be a matter for any other Lender or group of Lenders under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties save for the Security Agent.	
 
 	(d)	The Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion (acting reasonably and in good faith) require for any cost, loss or liability which it may incur in complying with those instructions.	
 
 	(e)	In the absence of instructions, the Agent may act (or refrain from acting) as it considers to be in the best interest of the Lenders.	
 
 	(f)	The Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender’s consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (f) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Transaction Security Documents or enforcement of the Transaction Security or Transaction Security Documents.	
 
32.3	Duties of the Agent	
 
 	(a)	The Agent’s duties under the Finance Documents are solely mechanical and administrative in nature.	
 
 	(b)	Subject to paragraph (c) below, the Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent for that Party by any other Party.	
 
 	(c)	Without prejudice to Clause 29.11 ( Maintenance of Register and provision of Assignment Agreements, Transfer Certificates, Additional Facility Notices, Additional Facility Lender Accession Notice, Increase Confirmations and Issuing Bank Accession Agreement ) and paragraph (e) of Clause 7.4 ( Cash collateral by Non-Acceptable L/C Lender ), paragraph (b) above shall not apply to any Assignment Agreement, Transfer Certificate, Additional Facility Notice, Additional Facility Lender Accession Notice, Increase Confirmation or any Issuing Bank Accession Agreement.	
 
 	(d)	Except where a Finance Document specifically provides otherwise, the Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.	
 
178

 	(e)	If the Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.	
 
 	(f)	If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent, the Arrangers or the Security Agent) under this Agreement it shall promptly notify the other Finance Parties.	
 
 	(g)	The Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).	
 
 	(h)	The Agent shall provide to the Company within five (5) Business Days of a request by the Company (acting reasonably), a list (which may be in electronic form) setting out the names of the Lenders as at the date of that request, their respective Commitments, the address and fax number (and the department or officer, if any, for whose attention any communication is to be made) of each Lender for any communication to be made or document to be delivered under or in connection with the Finance Documents, the electronic mail address and/or any other information required to enable the sending and receipt of information by electronic mail or other electronic means to and by each Lender to whom any communication under or in connection with the Finance Documents may be made by that means and the account details of each Lender for any payment to be distributed by the Agent to that Lender under the Finance Documents.	
 
 	(i)	Upon the Agent becoming an Impaired Agent each Lender shall be given a copy of the list of Lenders by the Borrower.	
 
 	(j)	In connection with the ratification and incorporation of any Finance Document into a Spanish public document, the Agent shall act as the agent of each Finance Party and is hereby authorised on behalf of each Finance Party to enter into, enforce the rights of each Finance Party under and generally represent each Finance Party in respect of the granting of a Spanish public document.	
 
32.4	Role of the Arrangers	
Except as specifically provided in the Finance Documents, the Arrangers have no obligations of any kind to any other Party under or in connection with any Finance Document.
 
32.5	No fiduciary duties	
 
 	(a)	Nothing in any Finance Document constitutes the Agent, the Arrangers and/or any Issuing Bank as a trustee or fiduciary of any other person.	
 
 	(b)	None of the Agent, the Security Agent, the Arrangers, any Issuing Bank or any Ancillary Lender shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.	
 
179

32.6	Business with the Group	
The Agent, the Security Agent, the Arrangers, each Issuing Bank and each Ancillary Lender may accept deposits from, lend money to and generally engage in any kind of banking or other business with the Company and any member of the Group.
 
32.7	Rights and discretions	
 
 	(a)	The Agent, the Security Agent and each Issuing Bank may:	
 
 	(i)	rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;	
 
 	(ii)	assume that:	
 
 	(A)	any instructions received by it from or on behalf of the Majority Lenders, any Lenders or any group of Lenders are duly given in accordance with the terms of the Finance Documents; and	
 
 	(B)	unless it has received notice of revocation, that those instructions have not been revoked; and	
 
 	(iii)	rely on a certificate from any person:	
 
 	(A)	as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or	
 
 	(B)	to the effect that such person approves of any particular dealing, transaction, step, action or thing,	
as sufficient evidence that that is the case and, in the case of paragraph (A) above, may assume the truth and accuracy of that certificate.
 
 	(b)	The Agent and the Security Agent may assume (unless it has received notice to the contrary in such capacity) that:	
 
 	(i)	no Default has occurred (unless it has actual knowledge of a Default arising under paragraph 1 of Section 1 of Schedule 16 ( Events of Default ));	
 
 	(ii)	any right, power, authority or discretion vested in any Party or any group of Lenders has not been exercised; and	
 
 	(iii)	any notice or request made by the Company (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of the Company or all the Obligors, the Holdco Guarantors or the Security Providers.	
 
 	(c)	The Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.	
 
180

 	(d)	Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Agent (and so separate from any lawyers instructed by the Lenders) if the Agent in its reasonable opinion deems this to be required.	
 
 	(e)	The Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.	
 
 	(f)	The Agent may act in relation to the Finance Documents through its officers, employees and agents and the Agent shall not:	
 
 	(i)	be liable for any error of judgment made by any such person; or	
 
 	(ii)	be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part of any such person,	
unless such error or such loss was directly caused by the Agent’s gross negligence or wilful misconduct.
 
 	(g)	Unless a Finance Document expressly provides otherwise the Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.	
 
 	(h)	Without prejudice to the generality of paragraph (g) above, the Agent may:	
 
 	(i)	may disclose; and	
 
 	(ii)	on the written request of the Company or the Majority Lenders shall, as soon as reasonably practicable, disclose,	
the identity of an Increased Costs Lender, a Non-Consenting Lender, a Non-Acceptable L/C Lender, a Defaulting Lender and/or a Non-Funding Lender to the Company and to the other Finance Parties.
 
 	(i)	Notwithstanding any other provision of any Finance Document to the contrary, none of the Agent, the Arrangers or any Issuing Bank are obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any applicable law or regulation or a breach of a fiduciary duty or duty of confidentiality.	
 
 	(j)	Notwithstanding any provision of any Finance Document to the contrary, the Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.	
 
181

 	(k)	The Agent is not obliged to disclose to any Finance Party any details of the rate notified to the Agent by any Lender for the purpose of paragraph (a)(ii) of Clause 16.2 ( Market disruption ).	
 
32.8	Responsibility for documentation	
None of the Agent and the Security Agent, the Arrangers, any Issuing Bank or any Ancillary Lender is responsible or liable for:
 
 	(a)	the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Agent, the Arrangers, an Issuing Bank, an Ancillary Lender, the Company, an Obligor or any other person given in or in connection with any Finance Document, Structure Memorandum or the transactions contemplated in the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;	
 
 	(b)	the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or the Transaction Security or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Transaction Security; or	
 
 	(c)	any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.	
 
32.9	No duty to monitor	
The Agent shall not be bound to enquire:
 
 	(a)	whether or not any Default has occurred;	
 
 	(b)	as to the performance, default or any breach by any Party of its obligations under any Finance Document; or	
 
 	(c)	whether any other event specified in any Finance Document has occurred.	
 
32.10	Exclusion of Liability	
 
 	(a)	Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Agent, the Issuing Bank or any Ancillary Lender), none of the Agent, any Issuing Bank, or any Ancillary Lender will be liable (including, without limitation, for negligence or any other category of liability whatsoever) for:	
 
 	(i)	any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document or the Transaction Security, unless directly caused by its gross negligence or wilful misconduct or breach of the Finance Documents;	
 
182

 	(ii)	exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Finance Document, the Transaction Security or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document or the Transaction Security; or	
 
 	(iii)	without prejudice to the generality of paragraphs (i) and (ii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of:	
 
 	(A)	any act, event or circumstance not reasonably within its control; or	
 
 	(B)	the general risks of investment in, or the holding of assets in, any jurisdiction,	
including (in each case and without limitation) such damages, costs, losses, diminution in value or liability arising as a result of: nationalisation, expropriation or other governmental actions; any regulation, currency restriction, devaluation or fluctuation; market conditions affecting the execution or settlement of transactions or the value of assets (including any Disruption Event); breakdown, failure or malfunction of any third party transport, telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism, insurrection or revolution; or strikes or industrial action.
 
 	(b)	No Party (other than the Agent, an Issuing Bank or an Ancillary Lender (as applicable)) may take any proceedings against any officer, employee or agent of the Agent, the Issuing Bank or an Ancillary Lender, in respect of any claim it might have against the Agent, an Issuing Bank or an Ancillary Lender or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document or any Transaction Document and any officer, employee or agent of the Agent, an Issuing Bank or any Ancillary Lender may rely on this Clause 32.10 subject to Clause 1.5 ( Third party rights ) and the provisions of the Third Parties Act.	
 
 	(c)	The Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Agent if the Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Agent for that purpose.	
 
 	(d)	Nothing in this Agreement shall oblige the Agent or the Arranger to carry out:	
 
 	(i)	any “know your customer” or other checks in relation to any person; or	
 
 	(ii)	any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Lender,	
 
183

on behalf of any Lender and each Lender confirms to the Agent and the Arrangers that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Agent or the Arrangers.
 
 	(e)	Without prejudice to any provision of any Finance Document excluding or limiting the Agent’s liability, any liability of the Agent arising under or in connection with any Finance Document or the Transaction Security shall be limited to the amount of actual loss which has been suffered (as determined by reference to the date of default of the Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Agent at any time which increase the amount of that loss. In no event shall the Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Agent has been advised of the possibility of such loss or damages.	
 
32.11	Lenders’ indemnity to the Agent	
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Agent, within three (3) Business Days of demand, against any cost, loss or liability (including, without limitation, for negligence or any other category of liability whatsoever) incurred by the Agent (otherwise than by reason of the Agent’s gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 35.11 ( Disruption to Payment Systems etc. ) notwithstanding the Agent’s negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) in acting as Agent under the Finance Documents (unless the Agent has been reimbursed by an Obligor pursuant to a Finance Document).
 
32.12	Resignation of the Agent	
 
 	(a)	The Agent may resign and appoint one of its Affiliates acting through an office in the United Kingdom as successor by giving notice to the Lenders and the Company.	
 
 	(b)	Alternatively the Agent may resign by giving thirty (30) days’ notice to the Lenders and the Company, in which case the Majority Lenders (after consultation with the Company) may appoint a successor Agent (acting through an office in the United Kingdom).	
 
 	(c)	If the Majority Lenders have not appointed a successor Agent in accordance with paragraph (b) above within twenty (20) days after notice of resignation was given, the retiring Agent (after consultation with the Company) may appoint a successor Agent (acting through an office in the United Kingdom).	
 
 	(d)	The retiring Agent shall, at its own cost, make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents.	
 
184

 	(e)	The Agent’s resignation notice shall only take effect upon the appointment of a successor.	
 
 	(f)	Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (d)) above) but shall remain entitled to the benefit of Clause 20.3 ( Indemnity to the Agent ) and this Clause 32 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date). Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.	
 
 	(g)	After consultation with the Company, the Majority Lenders may, by notice to the Agent, require it to resign in accordance with paragraph (b) above. In this event, the Agent shall resign in accordance with paragraph (b) above.	
 
 	(h)	The Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Agent pursuant to paragraph (c) above) if on or after the date which is three months before the earliest FATCA Application Date relating to any payment to the Agent under the Finance Documents, either:	
 
 	(i)	the Agent fails to respond to a request under Clause 18.8 ( FATCA Information ) and the Company or a Lender reasonably believes that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;	
 
 	(i)	the information supplied by the Agent pursuant to Clause 18.8 ( FATCA Information ) indicates that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or	
 
 	(ii)	the Agent notifies the Company and the Lenders that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;	
and (in each case) the Company or a Lender reasonably believes that a Party will be required to make a FATCA Deduction that would not be required if the Agent were a FATCA Exempt Party, and the Company or that Lender, by notice to the Agent, requires it to resign.
 
32.13	Replacement of the Agent	
 
 	(a)	After consultation with the Company, the Majority Lenders may, by giving thirty (30) days’ notice to the Agent (or, at any time the Agent is an Impaired Agent, by giving any shorter notice determined by the Majority Lenders) replace the Agent by appointing a successor Agent (acting through an office in the United Kingdom).	
 
 	(b)	The retiring Agent shall (at its own cost if it is an Impaired Agent and otherwise at the expense of the Lenders) make available to the successor	
 
185

 	Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents.	
 
 	(c)	The appointment of the successor Agent shall take effect on the date specified in the notice from the Majority Lenders to the retiring Agent. As from this date, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (b) above) but shall remain entitled to the benefit of Clause 20.3 ( Indemnity to the Agent ) and this Clause 32 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date).	
 
 	(d)	Any successor Agent and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.	
 
32.14	Resignation of the Issuing Bank	
 
 	(a)	An Issuing Bank may resign and appoint one of its Affiliates acting through an office in the United Kingdom as successor by giving notice to the Lenders and the Company.	
 
 	(b)	Alternatively an Issuing Bank may resign by giving thirty (30) days’ notice to the Lenders and the Company, in which case the Majority Lenders (after consultation with the Company) may appoint a successor Issuing Bank (acting through an office in the United Kingdom). The Issuing Bank’s resignation notice shall take effect immediately upon the expiry of such thirty (30) day notice period unless a successor Issuing Bank has not been appointed in which case such notice shall be ineffective until a successor Issuing Bank has been appointed.	
 
 	(c)	If the Majority Lenders have not appointed a successor Issuing Bank in accordance with paragraph (b) above within twenty (20) days after notice of resignation was given, the retiring Issuing Bank (after consultation with the Company) may (but shall have no obligation to) appoint a successor Issuing Bank (acting through an office in the United Kingdom).	
 
 	(d)	The retiring Issuing Bank shall, at its own cost, make available to any successor Issuing Bank such documents and records and provide such assistance as the successor Issuing Bank may reasonably request for the purposes of performing its functions as Issuing Bank under the Finance Documents.	
 
 	(e)	The Issuing Banks resignation notice shall only take effect upon the appointment of a successor.	
 
 	(f)	Upon the resignation of the Issuing Bank having become effective in accordance with paragraph (b) above, the retiring Issuing Bank shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (d) above) but shall remain entitled to the benefit of this Clause 32.	
 
186

 	(g)	Any successor Issuing Bank and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor Issuing Bank had been an original Party.	
 
 	(h)	The Company may, by notice to the Issuing Bank, require it to resign in accordance with paragraph (b) above. In this event, the Issuing Bank shall resign in accordance with paragraph (b).	
 
32.15	Confidentiality	
 
 	(a)	In acting as agent for the Finance Parties, the Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.	
 
 	(b)	If information is received by another division or department of the Agent, it may be treated as confidential to that division or department and the Agent shall not be deemed to have notice of it.	
 
 	(c)	Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent nor the Arrangers are obliged to disclose to any other person (i) any confidential information or (ii) any other information if the disclosure would or might in its reasonable opinion constitute a breach of any law or a breach of a fiduciary duty.	
 
32.16	Relationship with the Lenders	
 
 	(a)	Subject to Clause 29.12 ( Pro rata interest settlement ), the Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Agent’s principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office:	
 
 	(i)	entitled to or liable for any payment due under any Finance Document on that day; and	
 
 	(ii)	entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,	
Unless it has received not less than five (5) Business Days’ prior notice from that Lender to the contrary in accordance with the terms of this Agreement.
 
 	(b)	Each Lender shall supply the Agent with any information that the Security Agent may reasonably specify (through the Agent) as being necessary or desirable to enable the Security Agent to perform its functions as Security Agent. Each Lender shall deal with the Security Agent exclusively through the Agent and shall not deal directly with the Security Agent.	
 
 	(c)	Any Lender may by notice to the Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or dispatched to that Lender under the Finance Documents. Such notice shall contain the address, fax number and (where communication by electronic mail or other electronic means is permitted under Clause 37.6 ( Electronic	
 
187

 	communication )) electronic mail address and/or any other information required to enable the sending and receipt of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute address, fax number, electronic mail address (or such other information), department and officer by that Lender for the purposes of Clause 37.2 ( Addresses ) and paragraph (a)(iii) of Clause 37.6 ( Electronic communication ) and the Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender.	
 
32.17	Credit appraisal by the Lenders, Issuing Bank and Ancillary Lenders	
Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Lender, each Issuing Bank and Ancillary Lender confirms to the Agent, the Arrangers, each Issuing Bank and each Ancillary Lender that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Finance Document including but not limited to:
 
 	(a)	the financial condition, status and nature of each member of the Group, each Holdco Guarantor and each Security Provider;	
 
 	(b)	the legality, validity, effectiveness, adequacy or enforceability of any Finance Document, the Transaction Security and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Transaction Security;	
 
 	(c)	whether that Finance Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the Transaction Security, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or Transaction Security;	
 
 	(d)	the adequacy, accuracy and/or completeness of the Structure Memorandum and any other information provided by the Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and	
 
 	(e)	the right or title of any person in or to, or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security or the existence of any Security affecting the Charged Property.	
 
32.18	Deduction from amounts payable by the Agent	
If any Party owes an amount to the Agent under the Finance Documents the Agent may, after giving notice to that Party, deduct an amount not exceeding that amount from any payment to that Party which the Agent would otherwise be obliged to make
 
188

under the Finance Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance Documents that Party shall be regarded as having received any amount so deducted.
 
32.19	Reliance and engagement letters	
Each Finance Party and Secured Party confirms that each of the Arrangers and the Agent has authority to accept on its behalf (and ratifies the acceptance on its behalf of any letters, certificates or reports already accepted by the Arrangers or Agent) the terms of any reliance letter, hold harmless letter or engagement or similar letters relating to the Structure Memorandum or any reports, certificates or letters provided by accountants, auditors, legal counsels or other persons in connection with the Finance Documents or the transactions contemplated in the Finance Documents and to bind it in respect of the Structure Memorandum or reports, certificates or letters and to sign such letters on its behalf and further confirms that it accepts the terms and qualifications set out in such letters.
 
32.20	Role of the Security Agent	
 
 	(a)	The Security Agent shall, at all times, act in accordance with the terms set forth in the Intercreditor Agreement.	
 
 	(b)	The declaration of trust pursuant to which the Security Agent declares itself trustee of the Transaction Security (to the extent permitted by the applicable law), which it will hold on trust for the Secured Parties, is contained in the Intercreditor Agreement.	
 
 	(c)	In acting or otherwise exercising its rights or performing its duties under any of the Finance Documents, the Security Agent shall act in accordance with the provisions of this Agreement and the Intercreditor Agreement and shall seek any necessary instruction or direction from the Agent. In so acting, the Security Agent shall have the rights, benefits, protections, indemnities and immunities set out in this Agreement and the Intercreditor Agreement.	
 
 	(d)	In the event there is an inconsistency or conflict between the rights, duties, benefits, obligations, protections, immunities or indemnities of the Security Agent (the “Security Agent Provisions”) as contained in this Agreement and/or the Intercreditor Agreement, on the one hand, and in any of the other Finance Documents, on the other hand, the Security Agent Provisions contained in this Agreement and/or the Intercreditor Agreement shall prevail and apply.	
 
 	(e)	The Security Agent is hereby authorised by the Secured Parties to sign or countersign any Assignment Agreement, Transfer Certificate, Additional Facility Notice, Additional Facility Lender Accession Notice, Increased Confirmation or Issuing Bank Accession Agreement or similar document in connection therewith without investigation or inquiry, if, on its face, it appears to conform to the form contemplated in this Agreement.	
 
189

33.	CONDUCT OF BUSINESS BY THE FINANCE PARTIES	
No provision of this Agreement will:
 
 	(a)	interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit; or	
 
 	(b)	oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim unless expressly specified in the other provisions of this Agreement; or	
 
 	(c)	oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.	
 
34.	SHARING AMONG THE LENDERS	
 
34.1	Payments to Finance Parties	
 
 	(a)	Subject to paragraph (b) below, if a Finance Party (a “ Recovering Finance Party ”) receives or recovers (including by way of set-off) any amount from an Obligor other than in accordance with Clause 35 ( Payment Mechanics ) (a “ Recovered Amount ”) and applies that amount to a payment due under the Finance Documents then:	
 
 	(i)	the Recovering Finance Party shall, within three (3) Business Days, notify details of the receipt or recovery, to the Agent;	
 
 	(ii)	the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Agent and distributed in accordance with Clause 35 ( Payment Mechanics ), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and	
 
 	(iii)	the Recovering Finance Party shall, within three (3) Business Days of demand by the Agent, pay to the Agent an amount (the “Sharing Payment”) equal to such receipt or recovery less any amount which the Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 35.6 ( Partial payments ).	
 
 	(b)	Paragraph (a) above shall not apply to any amount received or recovered by an Issuing Bank or an Ancillary Lender in respect of any cash cover provided for the benefit of that Issuing Bank or that Ancillary Lender.	
 
34.2	Redistribution of payments	
The Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it between the Finance Parties (other than the Recovering Finance Party) (the “Sharing Finance Parties”) in accordance with Clause 35.6 ( Partial payments ) towards the obligations of that Obligor to the Sharing Finance Parties.
 
190

34.3	Recovering Finance Party’s rights	
On a distribution by the Agent under Clause 34.2 ( Redistribution of payments ) of a payment received by a Recovering Finance Party from an Obligor, as between the relevant Obligor and the Recovering Finance Party, an amount of the Recovered Amount equal to the Sharing Payment will be treated as not having been paid by that Obligor unless and to the extent such treatment would otherwise be prohibited by any limitation set out in Clause 23 ( Guarantee and Indemnity ).
 
34.4	Reversal of redistribution	
If any part of the Sharing Payment received or recovered by a Recovering Finance Party becomes repayable and is repaid by that Recovering Finance Party, then:
 
 	(a)	each Sharing Finance Party shall, upon request of the Agent, pay to the Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the “ Redistributed Amount ”); and	
 
 	(b)	as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Obligor, unless and to the extent such treatment would otherwise be prohibited by any limitation set out in Clause 23 ( Guarantee and Indemnity ).	
 
34.5	Exceptions	
 
 	(a)	This Clause 34 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant Obligor.	
 
 	(b)	A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:	
 
 	(i)	it notified the other Finance Party of the legal or arbitration proceedings; and	
 
 	(ii)	the other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.	
 
34.6	Ancillary Lenders	
This Clause 34 shall not apply to any receipt or recovery by a Lender in its capacity as an Ancillary Lender at any time prior to service of notice under Clause 28.6 ( Acceleration ). Following service of notice under Clause 28.6 ( Acceleration ), this Clause 34 shall apply to all receipts or recoveries by Ancillary Lenders except to the extent that the receipt or recovery represents a reduction from the Designated Gross Amount for an Ancillary Facility to its Designated Net Amount.
 
191

35.	PAYMENT MECHANICS	
 
35.1	Payments to the Agent	
 
 	(a)	On each date on which an Obligor or a Lender is required to make a payment under a Finance Document excluding a payment under the terms of an Ancillary Document, that Obligor or Lender shall make the same available to the Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment.	
 
 	(b)	Payment shall be made to such account in the principal financial centre of the country of that currency (or, in relation to euro, in a principal financial centre in a Participating Member State or London) with such bank as the Agent specifies by not less than five (5) Business Days’ notice.	
 
35.2	Distributions by the Agent	
Each payment received by the Agent under the Finance Documents for another Party shall, subject to Clause 35.3 ( Distributions to an Obligor ) and Clause 35.4 ( Clawback ) be made available by the Agent as soon as practicable after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such account as that Party may notify to the Agent by not less than five (5) Business Days’ notice with a bank in the principal financial centre of the country of that currency (or, in relation to euro, in the principal financial centre of a Participating Member State or London).
 
35.3	Distributions to an Obligor	
The Agent may (with the consent of the Obligor or in accordance with Clause 36 ( Set-Off )) apply any amount received by it for that Obligor in or towards payment (on the date and in the currency and funds of receipt) of any amount due from that Obligor under the Finance Documents or in or towards purchase of any amount of any currency to be so applied.
 
35.4	Clawback	
 
 	(a)	Where a sum is to be paid to the Agent under the Finance Documents for another Party, the Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.	
 
 	(b)	If the Agent pays an amount to another Party and it proves to be the case that the Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment to the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds.	
 
192

35.5	Impaired Agent	
 
 	(a)	If, at any time, the Agent becomes an Impaired Agent, an Obligor or a Lender which is required to make a payment under the Finance Documents to the Agent in accordance with Clause 35.1 ( Payments to the Agent ) may instead either pay that amount direct to the required recipient or pay that amount to an interest-bearing account held with an Acceptable Bank within the meaning of paragraph (a) of the definition of “Acceptable Bank” and in relation to which no Insolvency Event has occurred and is continuing, in the name of the Obligor or the Lender making the payment and designated as a trust account for the benefit of the Party or Parties beneficially entitled to that payment under the Finance Documents. In each case such payments must be made on the due date for payment under the Finance Documents.	
 
 	(b)	All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the beneficiaries of that trust account pro rata to their respective entitlements.	
 
 	(c)	A Party which has made a payment in accordance with this Clause 35.5 shall be discharged of the relevant payment obligation under the Finance Documents and shall not take any credit risk with respect to the amounts standing to the credit of the trust account.	
 
 	(d)	Promptly upon the appointment of a successor Agent in accordance with Clause 32.13 ( Replacement of the Agent ), each Party which has made a payment to a trust account in accordance with this Clause 35.5 shall give all requisite instructions to the bank with whom the trust account is held to transfer the amount (together with any accrued interest) to the successor Agent for distribution in accordance with Clause 35.2 ( Distributions by the Agent ).	
 
35.6	Partial payments	
 
 	(a)	If the Agent receives a payment for application against amounts due in respect of any Finance Documents that is insufficient to discharge all the amounts then due and payable by an Obligor under those Finance Documents, the Agent shall apply that payment towards the obligations of that Obligor under those Finance Documents in the following order:	
 
 	(i)	first, in or towards payment pro rata of any unpaid fees, costs and expenses of the Agent, the Arrangers, the Issuing Bank and the Security Agent under those Finance Documents;	
 
 	(ii)	secondly, in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under those Finance Documents;	
 
 	(iii)	thirdly, in or towards payment pro rata of any principal due but unpaid under those Finance Documents and any amount due but unpaid under Clause 7.2 ( Claims under a Letter of Credit ) and Clause 7.3 ( Indemnities ); and	
 
193

 	(iv)	fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.	
 
 	(b)	The Agent shall, if so directed by the Majority Lenders, vary the order set out in paragraphs (a)(ii) to (iv) above.	
 
 	(c)	Paragraphs (a) and (b) above will override any appropriation made by an Obligor.	
 
 	(d)	Notwithstanding paragraphs (a) to (c) above or any other term of the Finance Documents, amounts received from any Guarantor shall not be applied to any obligation that is an Excluded Swap Obligation of such Guarantor.	
 
35.7	Set-off by Obligors	
 
 	(a)	All payments to be made by an Obligor under the Finance Documents shall be calculated and be made, save to the extent contemplated in Clause 10.1 ( Repayment of Loans ) and Clause 18.4 ( Tax Credit ), without (and free and clear of any deduction for) set-off or counterclaim ( provided that nothing in the Finance Documents shall prevent, or shall be construed so as to prevent, any member of the Group (a) setting-off any amount or payment due from a Defaulting Lender against any amount or payment owed by a member of the Group and provided further that in the event of any such set-off by a member of the Group, for the purposes of the Finance Documents, the Agent or, as the case may be, the Security Agent shall treat such set-off as reducing only payments due to the relevant Defaulting Lender and/or (b) exercising any right of counterclaim against a Defaulting Lender or any amount or payment due from a Defaulting Lender).	
 
 	(b)	The Agent shall not be liable in any way for any action taken by it pursuant to paragraph (a) above and, for the avoidance of doubt, the provisions of Clause 32.10 ( Exclusion of Liability ) shall apply in relation thereto.	
 
35.8	Business Days	
 
 	(a)	Any payment which is due to be made under the Finance Documents on a day that is not a Business Day shall be made on the next Business Day in the same calendar Month (if there is one) or the preceding Business Day (if there is not).	
 
 	(b)	During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.	
 
35.9	Currency of account	
 
 	(a)	Subject to paragraphs (b) to (e) below, the Base Currency is the currency of account and payment for any sum due from an Obligor under any Finance Document.	
 
194

 	(b)	A repayment of a Utilisation or Unpaid Sum or a part of a Utilisation or Unpaid Sum shall be made in the currency in which that Utilisation or Unpaid Sum is denominated on its due date.	
 
 	(c)	Each payment of interest shall be made in the currency in which the sum in respect of which the interest is payable was denominated when that interest accrued.	
 
 	(d)	Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred (unless otherwise agreed with the Party to which such payment is to be made).	
 
 	(e)	Any amount expressed to be payable in a currency other than the Base Currency shall be paid in that other currency.	
 
35.10	Change of currency	
 
 	(a)	Unless otherwise prohibited by law, if a single currency or currency unit becomes the lawful currency of two or more countries or if a single currency or currency unit ceases to be the lawful currency of one or more country or if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:	
 
 	(i)	any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country (or, as the case may be, the relevant single currency) shall be translated into, or paid in, the currency or currency units of that country designated by the Agent (after consultation with the affected Lenders and the Company and in each case acting reasonably); and	
 
 	(ii)	any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank or as otherwise imposed by law for the conversion of that currency or currency unit into the other, rounded up or down by the Agent (acting reasonably), or at such other rate as may be agreed by the Company and the Agent (each acting reasonably, in good faith and in accordance with the provisions of sub-paragraph (i) above).	
 
 	(b)	Without prejudice to paragraph (a) above, if a change in any currency of any relevant country occurs (or if a single currency or currency unit ceases to be the lawful currency of one or more country) after the date of this Agreement, the Finance Documents will be amended to the extent to which the Agent, acting reasonably and in good faith and after consultation with the Company, determines to be necessary to satisfy the requirements of, and reflect the matters contemplated by, paragraph (a) above, to reflect the change in currency or any generally accepted financial conventions and market practice in the Relevant Interbank Market relating to dealing in any new currency and, in each case, so far as is reasonably practicable, to put the Obligors in no worse a position than that which they would have been had such change or event not taken place. Any such changes agreed upon in writing by the Agent and the Company shall be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause 41 ( Amendments And Waivers ).	
 
195

35.11	Disruption to Payment Systems etc.	
If either the Agent determines (in its discretion) that a Disruption Event has occurred or the Agent is notified by the Company that a Disruption Event has occurred:
 
 	(a)	the Agent may, and shall if requested to do so by the Company, consult with the Company with a view to agreeing with the Company such changes to the operation or administration of the Facilities as the Agent may deem necessary in the circumstances;	
 
 	(b)	the Agent shall not be obliged to consult with the Company in relation to any changes mentioned in paragraph (a) above if, in its opinion (acting reasonably and in good faith), it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;	
 
 	(c)	the Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) above but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;	
 
 	(d)	any such changes agreed upon by the Agent and the Company shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause 41 ( Amendments And Waivers );	
 
 	(e)	the Agent shall not be liable for any damages, costs or losses whatsoever (including, without limitation for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 35.11; and	
 
 	(f)	the Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.	
 
36.	SET-OFF	
 
 	(a)	Provided that an Event of Default has occurred and is continuing, a Finance Party may set-off any matured obligation due from an Obligor under the Finance Documents (to the extent beneficially owned by that Finance Party) against any matured obligation owed by that Finance Party to that Obligor, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off (observing in relation to a Brazilian Guarantor, the applicable Brazilian foreign exchange and regulatory rules).	
 
 	(b)	Any credit balances taken into account by an Ancillary Lender when operating a net limit in respect of any overdraft under an Ancillary Facility shall on enforcement of the Finance Documents be applied first in reduction of the overdraft provided under that Ancillary Facility in accordance with its terms.	
 
196

37.	NOTICES	
 
37.1	Communications in writing	
Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by fax or letter.
 
37.2	Addresses	
The address and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under or in connection with the Finance Documents is:
 
 	(a)	in the case of the Company, that identified in its signature page to this Agreement;	
 
 	(b)	in the case of each Lender, each Issuing Bank, each Ancillary Lender or any other Obligor, that notified in writing to the Agent on or prior to the date on which it becomes a Party; and	
 
 	(c)	in the case of the Agent or the Security Agent, that identified in its signature page to this Agreement,	
or any substitute address, fax number or department or officer as the Party may notify to the Agent (or the Agent may notify to the other Parties, if a change is made by the Agent) by not less than five (5) Business Days’ notice.
 
37.3	Delivery	
 
 	(a)	Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective:	
 
 	(i)	if by way of fax, when received in legible form; or	
 
 	(ii)	if by way of letter, when it has been left at the relevant address or five (5) Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address,	
and, if a particular department or officer is specified as part of its address details provided under Clause 37.2 ( Addresses ), if addressed to that department or officer.
 
 	(b)	Any communication or document to be made or delivered to the Agent or the Security Agent will be effective only when actually received by the Agent or Security Agent and then only if it is expressly marked for the attention of the department or officer identified with the Agent’s or Security Agent’s signature below (or any substitute department or officer as the Agent or Security Agent shall specify for this purpose).	
 
197

 	(c)	All notices from or to an Obligor shall be sent through the Agent. The Company may make and/or deliver as agent of each Obligor notices and/or requests on behalf of each Obligor.	
 
 	(d)	Any communication or document made or delivered to the Company in accordance with this Clause 37.3 will be deemed to have been made or delivered to each of the Obligors.	
 
 	(e)	Any communication or document which becomes effective in accordance with paragraphs (a) to (d) above after 5:00 p.m. in the place of receipt shall be deemed only to become effective on the following day.	
 
37.4	Notification of address and fax number	
Promptly upon receipt of notification of an address or fax number or change of address or fax number pursuant to Clause 37.2 ( Addresses ) or changing its own address or fax number, the Agent shall notify the other Parties.
 
37.5	Communication when Agent is Impaired Agent	
If the Agent is an Impaired Agent the Parties may, instead of communicating with each other through the Agent, communicate with each other directly and (while the Agent is an Impaired Agent) all the provisions of the Finance Documents which require communications to be made or notices to be given to or by the Agent shall be varied so that communications shall be made and notices given to or by all the relevant Parties directly. This provision shall not operate after a replacement Agent has been appointed.
 
37.6	Electronic communication	
 
 	(a)	Any communication to be made between the Agent or the Security Agent and a Lender or an Obligor under or in connection with the Finance Documents may be made by electronic mail or other electronic means if the Agent, the Security Agent, the relevant Lender and the relevant Obligor (as applicable):	
 
 	(i)	agree that, unless and until notified to the contrary, this is to be an accepted form of communication (with such agreement to be deemed given by each person which is a Party at the date of this Agreement);	
 
 	(ii)	notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and	
 
 	(iii)	notify each other of any change to their address or any other such information supplied by them.	
 
 	(b)	Any electronic communication made between the Parties will be effective only when actually received in readable form and in the case of any electronic communication made by a Party to the Agent or the Security Agent only if it is addressed in such a manner as the Agent or, as the case may be, the Security Agent shall specify for this purpose.	
 
198

 	(c)	Any electronic communication which becomes effective in accordance with paragraphs (a) and (b) above after 5:00 p.m. in the place of receipt shall be deemed only to become effective on the following Business Day.	
 
 	(d)	Any reference in a Finance Document to a communication being sent or received shall be construed to include that communication being made available in accordance with this Clause 37.6.	
 
37.7	Use of websites	
 
 	(a)	The Company may satisfy its obligation under this Agreement to deliver any information in relation to those Lenders (the “ Website Lenders ”) who accept this method of communication (and each Lender shall be deemed to accept this method of communication unless it has expressly notified the Agent to the contrary) by posting (either directly or by way of another Finance Party posting) this information onto an electronic website designated by the Company and the Agent (the “ Designated Website ”) if:	
 
 	(i)	the Agent expressly agrees that it will accept communication of the information by this method;	
 
 	(ii)	both the Company and the Agent are aware of the address of and any relevant password specifications for the Designated Website; and	
 
 	(iii)	the information is in a format previously agreed between the Company and the Agent.	
If any Lender (a “ Paper Form Lender ”) does not agree to the delivery of information electronically then the Agent shall notify the Company accordingly and the Company shall at its own cost supply the information to the Agent (in sufficient copies for each Paper Form Lender) in paper form. In any event, if requested by the Agent, the Company shall at its own cost supply the Agent with at least one copy in paper form of any information required to be provided by it.
 
 	(b)	The Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Company and the Agent.	
 
 	(c)	The Company (or the Finance Party operating the Designated Website) shall promptly upon becoming aware of its occurrence notify the Agent (unless the Agent is operating the Designated Website) if:	
 
 	(i)	the Designated Website cannot be accessed due to technical failure;	
 
 	(ii)	the password specifications for the Designated Website change;	
 
 	(iii)	any new information which is required to be provided under this Agreement is posted onto the Designated Website;	
 
 	(iv)	any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or	
 
199

 	(v)	the Company becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.	
If the Company notifies the Agent under paragraph (c)(i) or paragraph (c)(v) above, all information to be provided by the Company under this Agreement after the date of that notice shall be supplied in paper form unless and until the Agent and each Website Lender is satisfied that the circumstances giving rise to the notification are no longer continuing.
 
 	(d)	Any Website Lender may request, through the Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The Company shall at its own cost comply with any such request within ten (10) Business Days of receiving written details from the Agent.	
 
37.8	English language	
 
 	(a)	Any notice given under or in connection with any Finance Document must be in English.	
 
 	(b)	All other documents (other than the constitutional documents of any Obligor) provided under or in connection with any Finance Document must be:	
 
 	(i)	in English; or	
 
 	(ii)	if not in English, and if so required by the Agent (acting reasonably), accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.	
 
38.	CALCULATIONS AND CERTIFICATES	
 
38.1	Accounts	
In any litigation or arbitration proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained by a Finance Party are prima facie evidence of the matters to which they relate.
 
38.2	Certificates and determinations	
 
 	(a)	Any certification or determination by a Finance Party of a rate or amount under any Finance Document is, in the absence of manifest error, conclusive evidence of the matters to which it relates.	
 
 	(b)	Where any person gives a certificate on behalf of any parties to the Finance Documents pursuant to any provision thereof and such certificate proves to be incorrect, the individual shall incur no personal liability in consequence of such certificate being incorrect save where such individual acted fraudulently in giving such certificate (in which case any liability of such individual shall be determined in accordance with applicable law).	
 
200

38.3	Day count convention	
Any interest, commission or fee accruing under a Finance Document will accrue from day to day and is calculated on the basis of the actual number of days elapsed and a year of three hundred and sixty (360) days or, in any case where the practice in the Relevant Interbank Market differs, in accordance with that market practice.
 
39.	PARTIAL INVALIDITY	
If, at any time, any provision of the Finance Documents is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.
 
40.	REMEDIES AND WAIVERS	
No failure to exercise, nor any delay in exercising, on the part of any Finance Party or Secured Party, any right or remedy under the Finance Documents shall operate as a waiver of any such right or remedy or constitute an election to affirm any of the Finance Documents. No election to affirm any of the Finance Documents on the part of any Finance Party or Secured Party shall be effective unless it is in writing. No single or partial exercise of any right or remedy shall prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in each Finance Document are cumulative and not exclusive of any rights or remedies provided by law.
 
41.	AMENDMENTS AND WAIVERS	
 
41.1	Required consents	
 
 	(a)	This Clause 41 is subject to the terms of the Intercreditor Agreement.	
 
 	(b)	Subject to the other provisions of this Clause 41 (including Clause 41.2 ( All Lender Matters ) to Clause 41.5 ( Other Exceptions ) and Clause 41.9 ( Implementation of Additional Facilities and other Permitted Financings and amendment of Transaction Security and Guarantees )) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Company and any such amendment or waiver will be binding on all Parties.	
 
 	(c)	The Agent (or, if applicable, the Security Agent) may effect, on behalf of any Finance Party, any amendment, waiver, consent or release permitted by this Clause 41 and any amendment waiver, consent or release made or effected in accordance with the provisions of this Clause 41, or in accordance with any other term of this Agreement or any other Finance Documents shall, in each case, be binding on all Parties. In the event that any of the Finance Parties is not entitled to grant to the Agent the authority referred to in this Agreement it shall be obliged to appear with the Agent, upon the request of the Agent, to formalise any actions or measures that are required. By virtue of this Agreement, each of the Finance Parties shall be obliged to cooperate with the	
 
201

 	Agent, including to participate in the negotiation and execution of the documents, either in public or private that may be required for the execution and effectiveness of the provisions contained in this Agreement.	
 
 	(d)	Each Finance Party irrevocably and unconditionally authorises and instructs the Agent without any further consent, sanction, authority or further confirmation from them (for the benefit of the Agent and the Company) to execute any documentation relating to a proposed amendment or waiver as soon as the requisite Lender consent is received in accordance with this Clause 41 (or on such later date as may be agreed by the Agent and Company). Without prejudice to the foregoing, the Finance Parties shall enter into any documentation necessary to implement an amendment or waiver once that amendment or waiver has been approved by the requisite number of Lenders determined in accordance with this Clause 41 (or on such later date as may be agreed by the Agent and Company).	
 
 	(e)	The Company may effect, as agent of each Obligor, any amendment or waiver permitted by this Clause 41 and each Obligor agrees to any such amendment or waiver permitted by this Clause 41 which is agreed to by the Company. This includes any amendment or waiver which would, but for this paragraph (e), require the consent of all of the Guarantors.	
 
41.2	All Lender Matters	
Subject to Clause 41.4 ( Structural Change ), Clause 41.5 ( Other Exceptions ), Clause 41.9 ( Implementation of Additional Facilities and other Permitted Financings and amendment of Transaction Security and Guarantees ) and other than as expressly permitted by the provisions of this Agreement (including this Clause 41) or any other Finance Document, an amendment, waiver or (in the case of a Transaction Security Document) a consent of, or in relation to, any term of any Finance Document that has the effect of changing or which relates to:
 
 	(a)	the definition of “ Change of Control ”, “ Majority Lenders ” or “ Super Majority Lenders ” in Clause 1.1 ( Definitions );	
 
 	(b)	any provision which expressly requires the consent of all the Lenders;	
 
 	(c)	Clause 2.4 ( Finance Parties ’ rights and obligations );	
 
 	(d)	any obligation on an Obligor to make a prepayment pursuant to Clause 12.1 ( Exit ) and Clause 12.2 ( Note Purchase Condition ) subject to the rights of Lenders to waive any requirement to be prepaid in accordance with paragraph (c) of Clause 41.5 ( Other Exceptions ) below;	
 
 	(e)	Clause 29 ( Changes to the Lenders ) to the extent further restricting or limiting the rights of the Lenders to assign, transfer or sub-participate their rights or obligations under the Finance Documents or imposing additional conditions on such rights;	
 
 	(f)	Clause 34 ( Sharing among the Lenders );	
 
 	(g)	this Clause 41; and	
 
202

 	(h)	any amendment (other than any Permitted Structural Adjustment) to the order of priority or subordination under the Intercreditor Agreement to the extent such amendment or waiver (or any consent or release to be agreed thereunder or in relation thereto) would adversely affect the interests of the Lenders under this Agreement (in their capacity as such) and any Permitted Structural Adjustment shall not be deemed to adversely affect the interests of the Lenders,	
shall not be made without the prior consent of all the Lenders unless, in each case, any amendment, waiver, consent or release is required to implement or reflect any Permitted Structural Adjustment.
 
41.3	Super Majority Lender Matters	
Subject to Clause 41.4 ( Structural Change ), Clause 41.5 ( Other Exceptions ), Clause 41.9 ( Implementation of Additional Facilities and other Permitted Financings and amendment of Transaction Security and Guarantees ) and other than as expressly permitted by the provisions of this Agreement (including this Clause 41) or any other Finance Document, an amendment, waiver or (in the case of a Transaction Security Document) a consent of, or in relation to, any term of any Finance Document that has the effect of changing or which relates to:
 
 	(a)	the nature or scope of:	
 
 	(i)	the guarantee and indemnity granted under Clause 23 ( Guarantee and Indemnity );	
 
 	(ii)	the Charged Property; or	
 
 	(iii)	the manner in which the proceeds of enforcement of the Transaction Security are distributed; or	
 
 	(b)	the release of all or substantially all of:	
 
 	(i)	any guarantee and indemnity granted under Clause 23 ( Guarantee and Indemnity ); or	
 
 	(ii)	any Transaction Security,	
shall not be made without the prior consent of the Super Majority Lenders, in each case, unless:
 
 	(A)	that release is conditional upon or is to become effective on or following the prepayment and cancellation in full of all amounts due and owing under the Finance Documents;	
 
 	(B)	the Company certifies that such release is required to effect or, implement a disposal, the incurrence of any Indebtedness (and grant of any Security in connection therewith), or a Permitted Reorganisation or Permitted Transaction permitted under and in accordance with the terms of this Agreement (including, in the case of such a disposal of shares in an Obligor, the release of	
 
203

 	not only any Transaction Security over those shares but also any guarantee or Transaction Security granted by that Obligor or any of its Subsidiaries), provided that if that disposal, financing, Permitted Reorganisation or Permitted Transaction is not immediately consummated, a new guarantee and new Transaction Security on the same terms as those released is immediately granted over the assets which were released from such Transaction Security;	
 
 	(C)	such release is pursuant to a resignation of an Obligor which resigns as a Guarantor in accordance with the provisions of Clause 31.3 ( Resignation of an Obligor );	
 
 	(D)	that release is required to effect or implement a Permitted Structural Adjustment (or otherwise expressly permitted by or not prohibited (or otherwise approved) by this Agreement) provided that, where applicable, any such release shall be without prejudice to any obligation under this Agreement to provide replacement Transaction Security);	
 
 	(E)	such action is otherwise expressly permitted by or not prohibited (or otherwise approved) under the provisions of clauses 14 ( Non-Distressed Disposals, Distressed Disposals and Disposal Proceeds ) and 17 (New Debt Financings ) of the Intercreditor Agreement; or	
 
 	(F)	that release is otherwise contemplated under (and made in accordance with) the Intercreditor Agreement or this Agreement and/or made or permitted pursuant to (and implemented in accordance with) another provision of the Finance Documents,	
and, in each case, the Company confirms that (x) such release is permitted under the terms of the Notes and (y) has been or is or will be simultaneously given and as a result no consent, sanction, authority or further confirmation from any Secured Party for that release shall be required and the Security Agent is irrevocably authorised and instructed to take such action provided for in this Clause 41.3 and pursuant to and in accordance with the provisions of the Intercreditor Agreement.
 
41.4	Structural Change	
 
 	(a)	For the purposes of this Agreement:	
“ Existing Tranche ” means any Commitment in respect of, and any Loan made under, an existing Facility;
“ New Tranche ” means any additional tranche, loan, facility or commitment; and
 
204

“ Structural Change ” means an amendment, waiver or variation of the terms of some or all of the Finance Documents that results in or is intended to result from or has the effect of changing or which relates to:
 
 	(i)	the introduction of a New Tranche in any currency or currencies (including by way of subdivision of an existing tranche or Facility) under this Agreement which ranks pari passu with, or junior to, the Original Facilities;	
 
 	(ii)	any increase in, or addition to or extension of any Commitment or Total Commitment of any Lender other than in accordance with Clause 2.2 ( Additional Facility ) or Clause 2.3 ( Increase );	
 
 	(iii)	any extension of the Availability Period in respect of any Commitment of any Lender;	
 
 	(iv)	any redenomination into another currency of any Commitment of any Lender (other than with respect to a Withdrawal Event);	
 
 	(v)	a reduction in the Margin (other than in accordance with the definition of Margin) or a reduction in the amount of any payment of principal, interest, fees or commission or other amount owing or payable to a Lender under the Finance Documents;	
 
 	(vi)	any extension to the date of payment of any amount owing or payable to a Lender under the Finance Documents;	
 
 	(vii)	any amendment to, or change in, the currency of any payment of principal, interest, fees, commission or other amount owing or payable to a Lender under the Finance Documents (other than with respect to a Withdrawal Event); or	
 
 	(viii)	any change (including changes to, the taking of or the release coupled with the retaking of Security and/or guarantees and changes to and/or additional intercreditor arrangements), consequential on, incidental to or required to implement or effect or reflect any of the adjustments referred to in paragraphs (i) to (vii) above (inclusive).	
 
 	(b)	If any amendment, waiver or consent is a Structural Change, that amendment, waiver or consent shall only require the prior consent of the Company and each Lender that is participating in that Structural Change and shall not require the consent of any other Lender.	
 
 	(c)	A proposed Structural Change which would have the effect of amending or altering the agreed priority or subordination provisions in clauses 2.1 ( Creditor Liabilities ) and 2.2 ( Transaction Security ) of the Intercreditor Agreement as between different classes of debt may not be made other than in accordance with the provisions of Clause 26 ( Consents, Amendments and Override ) of the Intercreditor Agreement.	
 
205

41.5	Other Exceptions	
 
 	(a)	Notwithstanding anything to the contrary, no consent from any Lenders shall be required in connection with the implementation of (and any related amendment as part of the implementation of) any Permitted Structural Adjustment and any amendment, waiver, consent or release of a Finance Document made in connection with such Permitted Structural Adjustment shall be binding on all Parties without further consent, sanction, authority or other confirmation of any Party.	
 
 	(b)	Any amendment or waiver which relates to the rights or obligations applicable to a particular Utilisation, Facility or class of Lenders and which does not materially and adversely affect the rights or interests of Lenders in respect of other Utilisations, Facilities or another class of Lender shall only require the consent of the Majority Lenders, Super Majority Lenders, all Lenders or all Lenders forming part of that affected class (as applicable) as if references in this paragraph to “Majority Lenders”, “Super Majority Lenders” or “Lenders” were only to Lenders participating in that Utilisation, Facility or forming part of that affected class. For the avoidance of doubt, this paragraph is without prejudice to the ability to effect, make or grant any amendment, waiver, consent or release pursuant to or in accordance with paragraph (a) above.	
 
 	(c)	Each individual Lender may waive its right to a prepayment (including, without any limitation, by way of amendment or waiver to any of the provisions) under Clause 12.1 ( Exit ) and Clause 12.2 ( Note Purchase Condition ) or any other amounts which have become due and payable to it under this Agreement or any other Finance Documents.	
 
 	(d)	A Declared Default, an Event of Default or Default may be revoked or waived (as applicable) with the consent of the Majority Lenders provided that a non-payment Event of Default under paragraph (a) of Section 1 of Schedule 16 ( Events of Default ) may not be waived without consent of each Lender to which the relevant overdue payment is owing. Any notice, demand, declaration or other step or action taken under or pursuant to Clause 28.6 ( Acceleration ) may be revoked with the consent of the Majority Lenders.	
 
 	(e)	Notwithstanding anything to the contrary in the Finance Documents, a Finance Party may unilaterally waive, relinquish or otherwise irrevocably give up all or any of its rights under any Finance Document with the consent of the Company.	
 
 	(f)	No amendment or waiver of a term of any Fee Letter or other side letter shall require the consent of any Finance Party other than the parties to such Fee Letter or side letter.	
 
 	(g)	Subject to compliance with Clause 9.3 (Terms of Ancillary Facilities), no amendment or waiver of a term of any Ancillary Document shall require the consent of any Finance Party other than the relevant Ancillary Lender.	
 
 	(h)	Notwithstanding anything to the contrary, no amendment or waiver of this Agreement or any other Finance Document made or effected in accordance	
 
206

 	with the provisions of, Clause 2.2 ( Additional Facility ) or Clause 2.3 ( Increase ) shall require the consent, sanction, authority or further confirmation of any Finance Party (unless expressly required under the provisions of such Clauses) and shall be binding on all Parties.	
 
 	(i)	Any term of the Finance Documents (other than any Fee Letter or any Ancillary Document) may be amended or waived by the Company and the Agent (or, if applicable, the Security Agent) without the consent, sanction, authority or further confirmation of any other Party if that amendment or waiver is :	
 
 	(i)	to cure defects or omissions, resolve ambiguities or inconsistencies (including any manifest error) or reflect changes of a minor, technical or administrative nature;	
 
 	(ii)	to make any amendments to any term or definition of Schedule 14 ( Information Undertakings ) to Schedule 17 ( New York Law Definitions ) to provide for any change to conform the provisions of these schedules to the terms of the Indenture as of the Closing Date;	
 
 	(iii)	consequential on, incidental to, or required to implement an approved amendment, waiver, consent or release provided that such waiver or amendment does not adversely affect the interests of the other Lenders whose consent is not required for the applicable amendment; or	
 
 	(iv)	otherwise for the benefit of all of the Lenders.	
 
 	(j)	An amendment or waiver which relates adversely to the specific rights or obligations of the Agent, the Arrangers, any Issuing Bank, the Security Agent or any Ancillary Lender (each in their capacity as such) may not be effected without the consent of the Agent, the Arrangers, any Issuing Bank, such Security Agent or the relevant Ancillary Lender provided that nothing in this provision shall entitle any Party to refuse its consent to any release of a guarantee or Transaction Security which would otherwise be permitted under Clause 41.9 ( Implementation of Additional Facilities and other Permitted Financings and amendment of Transaction Security and Guarantees ) and clause 17 (New Debt Financings) of the Intercreditor Agreement or another provision of the Finance Documents.	
 
 	(k)	Any amendment or waiver which relates only to the provisions governing transfers, assignments or sub-participations by Lenders and which makes such provisions more restrictive for any of the Lenders shall only require the consent of each Lender who will be subject to the resulting additional restrictions.	
 
 	(l)	If the Company or the Agent (at the request of the Company) has requested the Finance Parties (or any of them) to give a consent in relation to, or to agree a release, waiver or amendment of, any provision of the Finance Documents or other vote of Lenders under the terms of this Agreement, then in the case of:	
 
 	(i)	any Finance Party who has delivered a consent or agreement to such request, on and from the date of notification thereof to the Agent;	
 
207

 	(ii)	any Excluded Lender, on and from the Exclusion Date; and	
 
 	(iii)	any other Non-Consenting Lender and its applicable participation, (without prejudice to paragraph (ii) above), on and from the date such Lender is replaced in accordance with the provisions of Clause 41.7 ( Replacement of Lender ),	
a consent or agreement to such request shall be treated and deemed as having been made by such Finance Party and Non-Consenting Lender and received by the Agent, and (unless otherwise agreed by the Company or stipulated by the relevant Lender), subject to paragraph (m) below, such consent or agreement shall from such time be irrevocable and binding on such Finance Party, Excluded Lender and Non-Consenting Lender (as applicable) and any permitted assignee, transferee or counterparty to a sub-participation.
 
 	(m)	Any Finance Party (not being an Excluded Lender) or its permitted assignee or transferee that has expressly not consented or not agreed to a request for an amendment, waiver, consent or release shall always have the right to change or revoke their decision and subsequently deliver to the Agent a consent or agreement to such request at any time during the period for which the vote and request process is open for consents and acceptances as notified by the Agent to such Lender (and subject to any extension of such period as agreed between the Company and the Agent).	
 
41.6	Non-Responding Lender (“Snooze you lose”)	
If:
 
 	(a)	any Lender fails to accept or reject a request for a consent, waiver or amendment of or in relation to any of the terms of any Finance Document or other vote of Lenders under the terms of this Agreement within ten (10) Business Days (unless the Company and the Agent agree to a longer time period in relation to any request including where such longer time period may be agreed following the submission of such request) of that request being made (such Lender being a “ Non-Responding Lender ” and the last day of such period, being the “ Exclusion Date ”); or	
 
 	(b)	any Lender fails to assist with any step required to implement the Company’s right to prepay or to replace that Lender pursuant to and as contemplated by Clause 41.7 ( Replacement of Lender ) within two (2) Business Days of a specific request to do so by the Company,	
then, in each case, that Lender (an “ Excluded Lender ”) shall be automatically excluded from participating in that vote, and its Commitment and/or participation shall not be included (or, as applicable, required) for the purpose of calculating the Total Commitments or participations under a Facility, and the Excluded Lender will not be treated as a Lender when ascertaining whether any relevant percentage (including, for the avoidance of doubt, unanimity) of Total Commitments, participations and/or the number of Lenders or agreement of any specified group of Lenders has been obtained to approve that request.
 
208

41.7	Replacement of Lender	
 
 	(a)	If at any time any Finance Party becomes:	
 
 	(i)	a Non-Consenting Lender;	
 
 	(ii)	a Non-Funding Lender;	
 
 	(iii)	an Increased Costs Lender; or	
 
 	(iv)	Non-Acceptable L/C Lender,	
then the Company may, on not less than five (5) Business Days prior written notice (a “ Replacement Notice ”) to the Agent and such Finance Party (a “ Replaced Finance Party ”):
 
 	(A)	replace such Replaced Finance Party by requiring such Replaced Finance Party to (and such Replaced Finance Party shall) transfer pursuant to Clause 29 ( Changes to the Lenders ) on such dates as specified in the Replacement Notice all (and not part only) of its rights and obligations under this Agreement to one or more Lenders or other persons (each a “ Replacement Lender ”) selected by the Company and, in the case of any transfer or assignment of a Commitment or participation in a Utilisation which is in accordance with the provisions of paragraph (a) of Clause 29.10 (Assignments and transfers – Issuing Bank Consent), which confirms its (or their) willingness to assume and does assume all or part of the obligations of the Replaced Finance Party (including the assumption of the Replaced Finance Party’s participations or unfunded or undrawn participations (as the case may be) on the same basis as the Replaced Finance Party) for a purchase price in cash payable at the time of transfer in an amount equal to the applicable outstanding principal amount of such Replaced Finance Party’s participation in the outstanding Utilisations or Ancillary Outstandings and all related accrued interest and/or Letter of Credit fees, Break Costs and other amounts payable in relation thereto under the Finance Documents in respect of such transferred participation (the “ Replacement Amount ”);	
 
 	(B)	prepay (or procure that another member of the Group prepays) on such date(s) specified in the Replacement Notice all or any part of that Lender’s participation in the outstanding Utilisations or Ancillary Outstandings and all related accrued interest and/or Letter of Credit fees, Break Costs and other amounts payable in relation thereto under the Finance Documents in respect of such participation; and/or	
 
209

 	(C)	cancel all or part of any undrawn Commitments or Ancillary Commitments of that Replaced Finance Party on such date(s) specified in the Replacement Notice,	
provided that , in each case, the Company or any other member of the Group shall not be required to pay any prepayment fees or penalties (however described) payable under this Agreement or any other Finance Document to that Non-Consenting Lender, Non-Funding Lender, Increased Costs Lender or Non-Acceptable L/C Lender (as applicable).
 
 	(b)	Any notice delivered under paragraph (a) above (or any subsequent notice for this purposes) exercising any rights under paragraph (A) above shall be accompanied by a Transfer Certificate or Assignment Agreement (as the case may be) complying with Clause 29.5 ( Procedure for Transfer ) or Clause 29.6 ( Procedure for assignment ) as the case may be and any other related documentation to effect such transfer or assignment, which Transfer Certificate or Assignment Agreement (as the case may be) and any other related documentation to effect such transfer or assignment shall be promptly (and by no later than two (2) Business Days from receiving such Transfer Certificate or Assignment Agreement and any other related documentation to effect such transfer or assignment) executed by the relevant Replaced Finance Party and returned to the Company.	
 
 	(c)	Notwithstanding the requirements of Clause 29 ( Changes to the Lenders ) or any other provisions of the Finance Documents, if a Replaced Finance Party does not execute and/or return a Transfer Certificate or Assignment Agreement (as the case may be) and any other related documentation to effect such transfer or assignment as required by paragraph (b) within two (2) Business Days of delivery by the Company, the relevant transfer or transfers or assignment or assignments shall automatically and immediately be effected for all purposes under the Finance Documents on payment of the Replacement Amount to the Agent (for the account of the relevant Replaced Finance Party) and the Agent may (and is authorised by each Finance Party to) execute, without requiring any further consent, sanction, authority or further confirmation from any other Party, a Transfer Certificate or Assignment Agreement and any other related documentation to effect such transfer or assignment on behalf of any relevant Replaced Finance Party which is required to transfer its rights and obligations or assign its rights under this Agreement pursuant to paragraph (a) above which shall be effective for the purposes of Clause 29.2 ( Conditions of assignment, transfer or sub-participation ) and Clause 29.5 ( Procedure for Transfer ) or Clause 29.6 ( Procedure for assignment ). The Agent shall not be liable in any way for any action taken by it pursuant to this paragraph (c) or paragraph (b) above and, for the avoidance of doubt, the provisions of Clause 32.10 ( Exclusion of Liability ) shall apply in relation thereto.	
 
 	(d)	Unless otherwise agreed by the Majority Lenders or provided pursuant to another provision of this Agreement the replacement or prepayment of, a Lender pursuant to this Clause 41.7 shall be subject to the following conditions:	
 
 	(i)	the Company shall have no right to replace the Agent or a Security Agent (in each case in such capacity) pursuant to paragraph (a) above;	
 
210

 	(ii)	the Company may only exercise its replacement or prepayment rights pursuant to paragraph (a) above in respect of any relevant Replaced Finance Party within ninety (90) days of becoming entitled to do so (or, if later, on or prior to the date ninety (90) days after the date on which the Company receives notice in writing that such Lender has become a Non-Consenting Lender, a Non-Funding Lender, an Increased Costs Lender or a Non-Acceptable L/C Lender (as the case may be) on each occasion such Lender is a Non-Consenting Lender, a Non-Funding Lender, an Increased Costs Lender or a Non-Acceptable L/C Lender;	
 
 	(iii)	that prepayment or purchase shall be funded directly or indirectly with New Shareholder Injections and/or the proceeds from any Permitted Debt;	
 
 	(iv)	neither the Agent nor the Lender shall have any obligation to the Company to find a Replacement Lender for the purposes of paragraph (a) above; and	
 
 	(v)	in no event shall a Lender being replaced pursuant to paragraph (a) above be required to pay or surrender to the relevant Replacement Lender (or any other person) any of the fees received by it pursuant to the Finance Documents.	
 
41.8	Disenfranchisement of Defaulting Lenders	
 
 	(a)	For so long as a Defaulting Lender has any Available Commitment unless otherwise agreed by the Company, in ascertaining the Majority Lenders, the Super Majority Lenders, all Lenders or any other class of Lenders (as applicable) or whether any given percentage (including, for the avoidance of doubt, unanimity) of any of the Total Commitments, has been obtained to approve any request for a consent, waiver, amendment or other vote under the Finance Documents:	
 
 	(i)	that Defaulting Lender’s Commitments will be reduced by the amount of its Available Commitments; and	
 
 	(ii)	that Defaulting Lender will not be treated as a Lender for the purposes of Clause 41.2 ( All Lender Matters ) to Clause 41.5 ( Other Exceptions ) if it has no participation in any outstanding Utilisations.	
 
 	(b)	For the purposes of this Clause 41.8, the Agent may assume that the following Lenders are Defaulting Lenders:	
 
 	(i)	any Lender which has notified the Agent that it has become a Defaulting Lender; and	
 
211

 	(ii)	any Lender in relation to which it is aware that any of the events or circumstances referred to in paragraphs (a), (b) or (c) of the definition of “ Defaulting Lender ” has occurred,	
unless it has received notice to the contrary from the Lender concerned (together with any supporting evidence reasonably requested by the Agent) or the Agent is otherwise aware that the Lender has ceased to be a Defaulting Lender.
 
41.9	Implementation of Additional Facilities and other Permitted Financings and amendment of Transaction Security and Guarantees	
 
 	(a)	The Agent and/or the Security Agent, as the case may be, shall, on behalf of the Finance Parties (unless a Finance Party is required under applicable law to do so in its own name, in which case the relevant Finance Party shall) and is hereby authorised to enter into such agreement or agreements with the Obligors and/or the holders of the Liabilities pursuant to any Additional Facility or other Permitted Financing and/or their agents and trustees to enter into any confirmation, amendment, replacement of or supplement to the Finance Documents (including without limitation, any amendment, waiver or release in respect of any Transaction Security Document or any grant of Transaction Security pursuant to a new Transaction Security Document, provided that any such release is coupled with a substantially simultaneous re-granting on substantially the same terms or as otherwise contemplated or permitted by this Clause) and/or take any other action (subject to the Agreed Security Principles) as is necessary or appropriate in order to:	
 
 	(i)	give effect to the terms of any Additional Facility or other Permitted Financing; or	
 
 	(ii)	facilitate the establishment of any Additional Facility or other Permitted Financing or Permitted Structural Adjustment entered into in compliance with this Agreement,	
in each case subject to the provisions of this Clause 41 and provided that such Additional Facility or other Permitted Financing or Permitted Structural Adjustment is permitted by and entered into in compliance with this Agreement and the Intercreditor Agreement (and the Company confirms that is the case).
 
 	(b)	The Agent and the Security Agent are irrevocably authorised and instructed by each other Finance Party (without the requirement for any further authorisation or consent from any other Finance Party) to enter into such documentation and take any such action contemplated or permitted by this Clause and shall do so promptly on request and at the expense of the Company. Except where otherwise required by applicable law, any such amendment shall not require the consent of any Finance Party and shall be effective and binding on all Parties upon the execution thereof by the Obligors, each Agent and the Security Agent.	
 
212

 	(c)	Each Obligor confirms:	
 
 	(i)	the authority of the Company to:	
 
 	(A)	give effect to the terms of any Additional Facility or other Permitted Financing; and	
 
 	(B)	agree, implement and establish any Additional Facility or other Permitted Financing or Permitted Structural Adjustment in accordance with this Agreement; and	
 
 	(ii)	that its guarantee and indemnity set out in this Agreement (or any applicable Accession Deed or other Finance Document), any equivalent provision of any other Permitted Financing, and all Security granted by it will (to the extent provided pursuant to the terms of the relevant Additional Facility or other Permitted Financing or Permitted Structural Adjustment) entitle the Lenders under any Additional Facility and the persons providing the Permitted Financing or Permitted Structural Adjustment to benefit from such guarantee and indemnity and such Security (subject only to any applicable limitations on such guarantee and indemnity set out in in Clause 23 ( Guarantee and Indemnity ) or any Accession Deed or other document pursuant to which it became an Obligor) and extend to include all obligations arising under or in respect of any Additional Facility or other Permitted Financing or Permitted Structural Adjustment as applicable.	
 
 	(d)	Notwithstanding the foregoing, nothing in this Clause shall oblige the Security Agent, the Agent or any other Finance Party to execute any document if it would impose personal liabilities or obligations on, or adversely affect the rights, duties or immunities of the Security Agent, the Agent or such Finance Party ( provided that the incurrence of such Additional Facility or other Permitted Financing or Permitted Structural Adjustment shall not be deemed to adversely affect the rights of any Finance Party) and nothing in this Clause shall be construed as a commitment to advance or arrange any Additional Facility or other Permitted Financing or Permitted Structural Adjustment. The Agent and the Security Agent are authorised and instructed by the Finance Parties to execute any document or take any other action set out in this Clause 41 on behalf of the Finance Parties.	
 
 	(e)	Subject to the Intercreditor Agreement, if an Obligor disposes of any asset (or any member of the Group disposes of shares in an Obligor or any Holding Company of an Obligor) in a manner not prohibited by the terms of this Agreement (including pursuant to a Permitted Reorganisation, a Permitted Transaction and the implementation of other actions permitted under the Finance Documents whether or not requiring a consent thereunder) or with the prior consent of the Agent (pursuant to the terms of this Agreement) and such asset (or shares) is subject to Transaction Security, the Security Agent and/or the relevant Finance Party(ies) (as applicable) shall, at the cost and request of the Company, release Transaction Security over that asset (or shares) which are the subject of such transaction and, in the case of any such disposal of shares in an Obligor or a Holding Company of an Obligor to a person who is not a member of the Group, over the respective assets of such Obligor and its	
 
213

 	Subsidiaries (and the shares in any such Obligor and/or Subsidiary), issue any certificate of non-crystallisation of any floating charge (and carry out any other related action (including related notification and filings for cancelling any registration as may be required in connection with such release of security) that may reasonably be required or considered necessary or desirable in connection with that disposal and release, provided that , in the case of any Permitted Reorganisation, the requirements of the definition of Permitted Reorganisation are complied with.	
 
 	(f)	The Security Agent is permitted, authorised and (if requested by the Company) shall enter into amendment agreements in relation to the relevant Transaction Security Documents to facilitate (if permitted by law) the automatic release of Transaction Security over assets which are disposed of in connection with a Qualified Securitization Factoring or any other Receivables Facility.	
 
 	(g)	Provided that such arrangement:	
 
 	(i)	is legally possible; and	
 
 	(ii)	the operation of the following provisions are not reasonably likely to have a material adverse effect on: the borrowing, incurring, underwriting, placing, distribution or any other similar action; obtaining any consent, approval, release or waiver or agreement to any amendment in connection therewith (in the good faith judgment of the board of directors of the Company (for which it can conclusively rely on advice and market feedback of the arrangers of the Additional Facility or other Permitted Financing) for any Additional Facility or other Permitted Financing (sub-paragraphs (i) and (ii) together the “ Security Condition ”), for any Additional Facility or other Permitted Financing or any other Secured Obligations arising as a result of or in connection with a Permitted Structural Adjustment to rank in accordance with the Intercreditor Class,	
then, if and to the extent any Additional Facility or other Permitted Financing or any other Secured Obligations arising as a result of or in connection with such a Permitted Structural Adjustment (which (in each case) are intended to be (and which are permitted to be) secured on the Transaction Security) cannot be secured by the then existing Transaction Security Documents (the “ Initial Security Documents ”)) without the Security under such Initial Security Documents first being released), the Parties agree that any such Liabilities arising from any Additional Facility or other Permitted Financing or any other Secured Obligations arising as a result of or in connection with such a Permitted Structural Adjustment may (to the extent permitted by applicable law, the Security Condition and the Agreed Security Principles) be secured pursuant to the execution of additional security documents (the “ Additional Security Documents ”)) on a second or lesser ranking basis but will nonetheless be deemed and treated for the purpose of this Agreement and the Intercreditor Agreement (including clause 15 (Application of Proceeds) of the Intercreditor Agreement)) as secured by the Initial Security Documents and the Additional Security Documents pari passu with other Liabilities which
 
214

would otherwise have the same ranking as contemplated by such Additional Facility or other Permitted Financing or any other Secured Obligations arising as a result of or in connection with a Permitted Structural Adjustment.
 
 	(h)	In addition, notwithstanding any other term, condition or restriction in any other Finance Document, but subject to the other provisions of this Clause the Parties agree that in order to:	
 
 	(i)	give effect to the terms of any Additional Facility or other Permitted Financing; or	
 
 	(ii)	facilitate the establishment of any Additional Facility or other Permitted Financing or Permitted Structural Adjustment entered into in compliance with this Agreement and which is intended to be (and which is permitted to be) secured on the Transaction Security,	
each Obligor is and the Security Agent is authorised to enter into any new Transaction Security Document and/or amend or waive any terms of an existing Transaction Security Document and/or release any asset from Transaction Security subject to such release being coupled with a simultaneous re-granting and (in each case) subject to the following conditions:
 
 	(A)	any new Transaction Security which:	
 
 	(1)	gives effect to the terms of any Additional Facility or other Permitted Financing; or	
 
 	(2)	facilitates the establishment of any Additional Facility or other Permitted Financing or Permitted Structural Adjustment entered into in compliance with this Agreement and which is intended to be (and which is permitted to be ) secured on the Transaction Security,	
shall be (x) subject to the Agreed Security Principles and applicable law, granted in favour of the Security Agent for and on behalf of the relevant Lenders (as applicable) and other creditors (as the case may be) and the then existing Finance Parties; (y) (if applicable) on terms substantially the same (except that it shall also secure the relevant Liabilities arising from any such Additional Facility or other Permitted Financing or any other Secured Obligations arising as a result of or in connection with a Permitted Structural Adjustment) as the terms of the existing Transaction Security over equivalent asset(s); and (z) for the purposes of this Agreement, treated as securing amounts not in priority to the then existing Transaction Security; and
 
 	(B)	(if the Security Condition is not satisfied) any amendment or waiver of a Transaction Security Document or release or	
 
215

 	release and re-grant of Transaction Security shall only be undertaken:	
 
 	(1)	if required as a result of any Additional Facility or other Permitted Financing or any other Secured Obligations arising as a result of or in connection with a Permitted Structural Adjustment or to the extent necessary under applicable law to ensure that any Additional Facility or other Permitted Financing and any other Secured Obligations arising as a result of or in connection with a Permitted Structural Adjustment ranks in accordance with the Intercreditor Class; and	
 
 	(2)	if any asset is to be released from Transaction Security, promptly upon giving effect to that release, subject to the Agreed Security Principles and applicable law, replacement Transaction Security is granted in favour of the Security Agent for and on behalf of the relevant Lenders and other creditors (as the case may be) and the existing Finance Parties on substantially the same terms of the Transaction Security released (except that it shall also secure the relevant Liabilities arising from any such Additional Facility or other Permitted Financing or any other Secured Obligations arising as a result of or in connection with a Permitted Structural Adjustment).	
 
 	(i)	The Transaction Security Documents may be amended, varied, waived or modified with the agreement of the relevant Obligor and the Security Agent acting in accordance with the Intercreditor Agreement and this Clause 41.9.	
 
 	(j)	Nothing shall restrict the Finance Parties benefiting from any existing Transaction Security Document from enforcing and/or releasing the existing Transaction Security Documents in accordance with, and to the extent permitted by, this Agreement and the Intercreditor Agreement and subject to the terms of such existing Transaction Security Document.	
 
 	(k)	Each of the Finance Parties agrees not to take any action to challenge the validity or enforceability of any additional Transaction Security Documents by reason of it being expressed to be second ranking (or any other lower ranking).	
 
 	(l)	Any decision to enforce any Transaction Security Document shall be taken in accordance with the provisions of the Intercreditor Agreement regardless of the ranking of the relevant Transaction Security.	
 
 	(m)	No Finance Party benefiting from any existing Transaction Security Document shall incur any liability to the beneficiaries of the additional Transaction Security Documents for the manner of exercise or any non-exercise of their rights, remedies, powers, authority or discretions under such already existing Transaction Security or for any waivers, consents or releases.	
 
216

 	(n)	As regards any Transaction Security Documents and Guarantees executed in Spain or Peru, if required to do so, the Finance Parties shall grant a specific power of attorney in favour of the Security Agent, duly notarised and apostilled, in order to authorize the Agent and the Security Agent to execute any amendment of that Transaction Security and guarantees according with the terms of this Clause 41.9.	
 
42.	CONFIDENTIALITY	
 
42.1	Confidential Information	
Each Finance Party agrees to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause 42.2 ( Disclosure of Confidential Information ) and Clause 42.3 (Disclosure to numbering service providers), and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to its own confidential information.
 
42.2	Disclosure of Confidential Information	
Any Finance Party may disclose:
 
 	(a)	to any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners, reinsurers and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;	
 
 	(b)	to any person:	
 
 	(i)	to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents or which succeeds (or which may potentially succeed) it as Agent or Security Agent and, in each case, to any of that person’s Affiliates, Representatives and professional advisers provided that if the intended recipient is a person to whom the Finance Party would be required to obtain the consent of the Company in order to transfer or assign or sub-participate a Commitment to such person, that the Finance Party must obtain the prior written consent of the Company prior to the making of such disclosure;	
 
 	(ii)	with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person’s Affiliates, Representatives and professional advisers provided that if the intended recipient is a	
 
217

 	person to whom the Finance Party would be required to obtain the consent of the Company in order to transfer, assign or sub-participate a Commitment to such person, that Finance Party must obtain the prior written consent of the Company prior to the making of such disclosure;	
 
 	(iii)	appointed by any Finance Party or by a person to whom paragraph (b)(i) or (b)(ii) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf;	
 
 	(iv)	who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (b)(i) or (b)(ii) above provided that if the intended recipient is a person to whom the Finance Party would be required to obtain the consent of the Company in order to transfer, assign or sub-participate a Commitment to such person, that Finance Party must obtain the prior written consent of the Company prior to the making of such disclosure;	
 
 	(v)	to whom information is required by law or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;	
 
 	(vi)	to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 29.8 (Security over Lenders’ rights);	
 
 	(vii)	to whom information is required by law to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes;	
 
 	(viii)	who is a Party;	
 
 	(ix)	(in the case of the Security Agent) who is a Receiver (as defined in the Intercreditor Agreement); and	
 
 	(x)	with the consent of the Company;	
in each case, such Confidential Information as that Finance Party shall (acting in good faith) consider appropriate provided that if:
 
 	(A)	in relation to paragraphs (b)(i)), (b)(ii) and (b)(iii) above, the person to whom the Confidential Information is to be given has first entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;	
 
 	(B)	in relation to paragraph (b)(iv) above, the person to whom the Confidential Information is to be given has first entered into a	
 
218

 	Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information; and	
 
 	(C)	in relation to paragraphs (b)(v), (b)(vi) and (b)(viii) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party (acting reasonably and in good faith), it is not practicable so to do in the circumstances,	
and a copy of any such Confidentiality Undertaking and any amendment thereto shall be provided to the Company within ten (10) Business Days of request by the Company;
 
 	(c)	to any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or (b)(ii) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this paragraph (c) if the service provider to whom the Confidential Information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers amended to the extent necessary to ensure that it is addressed to, or capable of being relied upon by, the Company without requiring its signature by virtue of reliance on the Third Parties Act and is not capable of being materially amended without the prior written consent of the Company or such other form of confidentiality undertaking agreed between the Company and the relevant Finance Party, and a copy of any such Confidentiality Undertaking and any amendment thereto shall be provided to the Company within ten (10) Business Days of request by the Company; and	
 
 	(d)	to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors if the rating agency to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information.	
 
42.3	Disclosure to numbering service providers	
 
 	(a)	Any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide identification numbering services in respect of this Agreement, the Facilities and/or one or more Obligors the following information:	
 
 	(i)	names of Obligors;	
 
219

 	(ii)	country of domicile of Obligors;	
 
 	(iii)	place of incorporation of Obligors;	
 
 	(iv)	date of this Agreement;	
 
 	(v)	the governing law of this Agreement;	
 
 	(vi)	the names of the Agent and the Arrangers;	
 
 	(vii)	date of each amendment and restatement of this Agreement;	
 
 	(viii)	amount of Total Commitments;	
 
 	(ix)	nature of the Facilities;	
 
 	(x)	currencies of the Facilities;	
 
 	(xi)	ranking of the Facilities;	
 
 	(xii)	Termination Date for the Facilities;	
 
 	(xiii)	changes to any of the information previously supplied pursuant to paragraphs (i) to (xii) above; and	
 
 	(xiv)	such other information agreed between such Finance Party and the Company,	
to enable such numbering service provider to provide its usual syndicated loan numbering identification services.
 
 	(b)	The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facilities and/or one or more Obligors by a numbering service provider and the information associated with each such number may be disclosed to users of its services in accordance with the standard terms and conditions of that numbering service provider.	
 
 	(c)	The Agent shall notify the Company and the other Finance Parties of:	
 
 	(i)	the name of any numbering service provider appointed by the Agent in respect of this Agreement, any Facility and/or one or more Obligors; and	
 
 	(ii)	the number or, as the case may be, numbers assigned to this Agreement, any Facility and/or one or more Obligors by such numbering service provider.	
 
42.4	Entire agreement	
This Clause 42 constitutes the entire agreement between the Parties in relation to the obligations of the Finance Parties under the Finance Documents regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.
 
220

42.5	Inside information	
Each of the Finance Parties acknowledges that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and each of the Finance Parties undertakes not to use any Confidential Information for any unlawful purpose.
 
42.6	Notification of disclosure	
Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the Company:
 
 	(a)	of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (b)(v) of Clause 42.2 ( Disclosure of Confidential Information ) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and	
 
 	(b)	upon becoming aware that Confidential Information has been disclosed in breach of this Clause 42.	
 
42.7	Continuing obligations	
The obligations in this Clause 42 are continuing and, in particular, shall survive and remain binding on each Finance Party for a period of twelve (12) Months from the earlier of:
 
 	(a)	the date on which all amounts payable by the Obligors under or in connection with the Finance Documents have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and	
 
 	(b)	the date on which such Finance Party otherwise ceases to be a Finance Party.	
 
43.	COUNTERPARTS	
Each Finance Document may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of the Finance Document and a counterpart of a Finance Document by email attachment or telecopy shall be an effective mode of delivery.
 
44.	GOVERNING LAW	
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law, except for Schedule 14 ( Information Undertakings ), Schedule 15 ( General Undertakings ), Schedule 16 ( Events of Default ) and Schedule 17 ( New York Law Definitions ) of this Agreement and any non-contractual obligations arising out of or in connection with those schedules, which shall be interpreted in accordance with the law of the State of New York (without prejudice to the fact that this Agreement is governed by English law).
 
221

45.	ENFORCEMENT	
 
45.1	Jurisdiction of English courts	
 
 	(a)	The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement or the consequences of its nullity) or any non-contractual obligations arising out of or in connection with this Agreement (a “Dispute”) including in relation to Schedule 14 ( Information Undertakings ), Schedule 15 ( General Undertakings ), Schedule 16 ( Events of Default ) and Schedule 17 ( New York Law Definitions ) of this Agreement and any non-contractual obligations arising out of or in connection with those schedules.	
 
 	(b)	The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.	
 
 	(c)	Subject to paragraph (d) below, this Clause 45.1 is for the benefit of the Finance Parties and Secured Parties only. As a result, no Finance Party or Secured Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties and Secured Parties may take concurrent proceedings in a number of jurisdictions.	
 
 	(d)	Notwithstanding anything to the contrary in this Clause 45.1, with respect to any Dispute involving any Mexican Obligor, each of the parties hereto:	
 
 	(i)	expressly, irrevocably and unconditionally agrees to submit for itself and its property, to the exclusive jurisdiction of the English courts; and	
 
 	(ii)	waives any other jurisdiction to which it may be entitled by reason of its present or future domicile or otherwise.	
 
45.2	Service of Process	
 
 	(a)	Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales):	
 
 	(i)	irrevocably appoints Kirkland & Ellis International LLP, 30 St Mary Axe, London, EC3A 8AF (Fax: +44(0) 207 469 2001 Attn: Neel Sachdev/Ben Myers/Marimba Odundo-Méndez) as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and	
 
 	(ii)	agrees that failure by an agent for service of process to notify the relevant Obligor of the process will not invalidate the proceedings concerned.	
 
222

 	(b)	If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Company (on behalf of all the Obligors) must promptly (and in any event within ten (10) Business Days of such event taking place) appoint another agent on terms acceptable to the Agent (acting reasonably and in good faith).	
 
 	(c)	An Obligor may irrevocably appoint another person as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document, subject to notifying the Agent accordingly. In the case of any replacement of an existing agent for service of process, following the new process agent’s appointment and notification to the Agent of such new appointment, the existing process agent may resign.	
 
46.	EXECUTIVE PROCEEDINGS	
 
46.1	Notarial document	
 
 	(a)	This Agreement, the Intercreditor Agreement, each Spanish Transaction Security and each Accession Deed in respect of any Spanish Obligor as well as any amendments hereto or thereto, will be formalised in a Spanish Public Document to be granted on the date on which the Spanish Transaction Security is formalized and at the cost of the Company.	
 
 	(b)	Consequently, as from such date, this Agreement will acquire the status of a notarial document for all purposes contemplated in Article 517 of the Spanish Civil Procedural Law (Law 1/2000 of 7th January) (Ley de Enjuiciamiento Civil) (the “Civil Procedure Law”).	
 
46.2	Determination of Debt	
For the purpose of the provisions of Article 572 et seq. of the Spanish Civil Procedural Law, it is expressly agreed by the Parties that the determination of the due amounts to be claimed through executive proceedings shall be calculated by the Agent (or the relevant Lender, as the case may be) following its accounting provisions and that any amounts so calculated shall be deemed true, net, due and payable.
 
46.3	Authority to obtain notarised copies	
Each Party hereby expressly authorises the Agent (and any other Finance Party, as appropriate) to request and obtain from the Spanish notary public before whom this Agreement is formalised, any further notarised copy, and the cost of the first copy ( primera copia o copia autorizada ) of such notarisation shall be borne by the Spanish Obligors. The cost of any further copies ( segundas y ulteriores copias ) shall be borne by the Finance Parties.
This Agreement has been entered into on the date stated at the beginning of this Agreement.
 
223

SIGNATURE PAGES TO THE
SUPER SENIOR REVOLVING CREDIT AGREEMENT

THE COMPANY	
	
/s/ Vishal Jugdeb	
ATENTO LUXCO 1 S.A.	
as the Company	
	
Name: Vishal Jugdeb	
	
Title: Authorised signatory	
Notice Details :

Address:	  	4 rue Lou Hemmer, L-1748 Luxembourg-Findel	
		
Email:	  	VJugdeb@baincapital.lu	
		
Attention:	  	Mr. Vishal Jugdeb	

	
THE ORIGINAL BORROWERS	
	
/s/ Vishal Jugdeb	
ATENTO LUXCO 1 S.A.
as Original Borrower	
	
Name: Vishal Jugdeb	
	
Title: Authorised signatory	

Notice Details :	  		
		
Address:	  	4 rue Lou Hemmer, L-1748 Luxembourg-Findel	
		
Email:	  	VJugdeb@baincapital.lu	
		
Attention:	  	Mr. Vishal Jugdeb	

			
/s/ José María Pérez-Melber	
ATENTO TELESERVICIOS ESPAÑA, S.A.U.
as Original Borrower	
	
Name: José María Pérez-Melber	
	
Title: Managing Director and Attorney	

Notice Details :	  		
		
Address:	  	C/ Santiago de Compostela 94, 6ª planta	
		
Email:	  	JoseMaria.PerezMelber@atento.com / carmen.ingelmo@atento.com	
		
Attention:	  	José María Pérez-Melber	

	
/s/ Rodrigo Llaguno Carranco	
ATENTO MEXICO HOLDCO, S. DE R.L. DE C.V.	
as Original Borrower	
	
Name: Rodrigo Llaguno Carranco	
	
Title: Legal Representative	

Notice Details :	  		
		
Address:	  	Eje 2 Poniente Monterrey, No. 100, Colonia Roma, Ciudad de México	
		
Email:	  	rfavela@atento.com	
		
Attention:	  	Rodrigo Favela Bárcenas	

	
THE ORIGINAL GUARANTORS	
	
/s/ Vishal Jugdeb	
ATENTO LUXCO 1 S.A.
as Original Guarantor	
	
Name: Vishal Jugdeb	
	
Title: Authorised signatory	

Notice Details :	  		
		
Address:	  	4 rue Lou Hemmer, L-1748 Luxembourg-Findel	
		
Email:	  	VJugdeb@baincapital.lu	
		
Attention:	  	Mr. Vishal Jugdeb	

	
/s/ Vishal Jugdeb	
ATALAYA LUXCO MIDCO S.À R.L.
as Original Guarantor	
	
Name: Vishal Jugdeb	
	
Title: Authorised signatory	

Notice Details :	  		
		
Address:	  	4 rue Lou Hemmer, L-1748 Luxembourg-Findel	
		
Email:	  	VJugdeb@baincapital.lu	
		
Attention:	  	Mr. Vishal Jugdeb	

	
/s/ Vishal Jugdeb	
ATENTO S.A.
as Original Guarantor	
	
Name: Vishal Jugdeb	
	
Title: Authorised signatory	

Notice Details :	  		
		
Address:	  	4 rue Lou Hemmer, L-1748 Luxembourg-Findel	
		
Email:	  	VJugdeb@baincapital.lu	
		
Attention:	  	Mr. Vishal Jugdeb	

	
/s/ José María Pérez-Melber	
ATENTO TELESERVICIOS ESPAÑA, S.A.U.
as Original Guarantor	
	
Name: José María Pérez-Melber	
	
Title:   Managing Director and Attorney	

Notice Details :	  		
		
Address:	  	C/ Santiago de Compostela 94, 6ª planta	
		
Email:	  	JoseMaria.PerezMelber@atento.com / carmen.ingelmo@atento.com	
		
Attention:	  	José María Pérez-Melber	

	
/s/ Rodrigo Llaguno Carranco	
ATENTO MEXICO HOLDCO, S. DE R.L. DE C.V.	
as Original Guarantor	
	
Name: Rodrigo Llaguno Carranco	
	
Title:   Legal Representative	

Notice Details:	
		
Address:	  	Eje 2 Poniente Monterrey, No. 100, Colonia Roma, Ciudad de México	
		
Email:	  	rfavela@atento.com	
		
Attention:	  	Rodrigo Favela Bárcenas	

					
	 		 		
ATENTO BRASIL S.A.
as Original Guarantor	
			
/s/ Mário Mota Câmara	 		 	/s/ Alessandro Piero Porro	
Name: Mr. Mário Mota Câmara	 		 	Title: Mr. Alessandro Piero Porro	
Title:   Diretor Regional Brasil	 		 	Title: Diretor Executivo de Finanças	

Notice Details :	
		
Address:	  	Rua Professor Manoelito de Ornellas, 303, 8o andar, Chácara Santo Antônio, CEP 04719-040	
		
Email:	  	Alessandro.Porro@atento.com	
		
Attention:	  	Mr. Alessandro Piero Porro	

THE ARRANGERS

/s/ Ricardo Francisco Fernandez de Mazarambroz Arespacochaga	 		 	/s/ Angel Gimenez Palazon	
BBVA BANCOMER S.A.,	 		 	BBVA BANCOMER S.A.,	
INSTITUCION DE BANCA MULTIPLE,	 		 	INSTITUCION DE BANCA MULTIPLE,	
GRUPO FINANCIERO BBVA BANCOMER	 		 	GRUPO FINANCIERO BBVA BANCOMER	
as Arranger	 		 	as Arranger	
			
Name: Ricardo Francisco Fernandez
           de Mazarambroz Arespacochaga	 		 	Name: Angel Gimenez Palazon	
			
Title:   Authorized Sigantory	 		 	Title:   Authorized Sigantory	
Notice Details :

Address:	  	Torre Bancomer Paseo de la Reforma 510, Piso 16, Colonia Juarez,
Delegacion Cuauhtemoc 06600, CMDX (Mexico)	
		
Email:	  	corporate_lending_mex.group@bbva.com;
institutional_clients_mex.group@bbva.com	
		
Attention:	  	Angel Gimenez Palazon	

	
/s/ Charles D. Johnston	
GOLDMAN SACHS BANK USA	
as Arranger	
	
Name: Charles D. Johnston	
	
Title: Authorized Signatory	
Notice Details :

Address:	  	Peterborough Court, 133 Fleet Street London EC4A 2BB	
		
Email:	  	LoanDocumentation@LN.email.gs.com;
ficc-bankloan-servicing-ldn@gs.com	
		
Attention:	  	Saymona Sohl, Yajnesh Shetty	

/s/ Michael King

MORGAN STANLEY SENIOR FUNDING, INC.
as Arranger	
	
Name: Michael King	
	
Title: Vice President	

Notice Details :	  		
		
Address:	  	Morgan Stanley Loan Servicing
1300 Thames Street Wharf, 4th Floor
Baltimore, MD 21231	
		
Email:	  	msloanservicing@morganstanley.com	
		
Attention:	  	Morgan Stanley Loan Servicing	

THE ORIGINAL LENDERS

/s/ Ricardo Francisco Fernandez de Mazarambroz Arespacochaga	 		 	/s/ Angel Gimenez Palazon	
BBVA BANCOMER S.A.,	 		 	BBVA BANCOMER S.A.,	
INSTITUCION DE BANCA MULTIPLE,	 		 	INSTITUCION DE BANCA MULTIPLE,	
GRUPO FINANCIERO BBVA BANCOMER	 		 	GRUPO FINANCIERO BBVA BANCOMER	
as Original Lender	 		 	as Original Lender	
			
Name: Ricardo Francisco Fernandez
           de Mazarambroz Arespacochaga	 		 	Name: Angel Gimenez Palazon	
			
Title:  Authorized Signatory	 		 	Title:   Authorized Signatory	
Notice Details :

Address:	  	Torre Bancomer Paseo de la Reforma 510, Piso 16, Colonia Juarez,
Delegacion Cuauhtemoc 06600, CMDX (Mexico)	
		
Email:	  	corporate_lending_mex.group@bbva.com;
institutional_clients_mex.group@bbva.com	
		
Attention:	  	Angel Gimenez Palazon	

			
/s/ Charles D. Johnston	
GOLDMAN SACHS BANK USA
as Original Lender	
	
Name: Charles D. Johnston	
	
Title: Authorized Signatory	
Notice Details :

Address:	  	Peterborough Court, 133 Fleet Street London EC4A 2BB	
		
Email:	  	LoanDocumentation@LN.email.gs.com;
ficc-bankloan-servicing-ldn@gs.com	
		
Attention:	  	Saymona Sohl, Yajnesh Shetty	

	
/s/ Michael King	
MORGAN STANLEY SENIOR FUNDING, INC.
as Original Lender	
	
Name: Michael King	
	
Title: Vice President	

Notice Details :	 		
		
Address:	 	Morgan Stanley Loan Servicing
1300 Thames Street Wharf, 4th Floor
Baltimore, MD 21231	
		
Email:	 	msloanservicing@morganstanley.com	
		
Attention:	 	Morgan Stanley Loan Servicing	

THE ORIGINAL ISSUING BANK

/s/ Ricardo Francisco Fernandez de Mazarambroz Arespacochaga	 		 	/s/ Angel Gimenez Palazon	
BBVA BANCOMER S.A.,	 		 	BBVA BANCOMER S.A.,	
INSTITUCION DE BANCA MULTIPLE,	 		 	INSTITUCION DE BANCA MULTIPLE,	
GRUPO FINANCIERO BBVA BANCOMER	 		 	GRUPO FINANCIERO BBVA BANCOMER	
as Original Issuing Bank	 		 	as Original Issuing Bank	
			
Name: Ricardo Francisco Fernandez	 		 	Name: Angel Gimenez Palazon	
            de Mazarambroz Arespacochaga	 		 		
			
Title:   Authorized Signatory	 		 	Title:   Authorized Signatory	

Notice Details :	  		
		
Address:	  	Torre Bancomer Paseo de la Reforma 510, Piso 16, Colonia Juarez,
Delegacion Cuauhtemoc 06600, CMDX (Mexico)	
		
Email:	  	corporate_lending_mex.group@bbva.com;	
	  	institutional_clients_mex.group@bbva.com	
		
Attention:	  	Angel Gimenez Palazon	

THE AGENT

/s/ Ignacio Rodríguez Cobos	 		 	/s/ M a Dolores González González	
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.	 		 	BANCO BILBAO VIZCAYA ARGENTARIA, S.A.	
as Agent	 		 	as Agent	
			
Name: Ignacio Rodríguez Cobos	 		 	Name: M a Dolores González González	
			
Title:	 		 	Title:	
Administration Notice Details:

Address:	  	BBVA - Agencias - Operaciones Préstamos Sindicados Ciudad BBVA - C/
Azul 4, Edificio Asia Planta 1, 28050 Madrid	
		
Email:	  	agencias.sindicados@bbva.com
graciela.cebrian@bbva.com
ignacio.jara.@bbva.com	
		
Attention:	  	Graciela Cebrián Díaz-Heredero / Ignacio Jara Ortega	
Contacts for documentation delivery and monitoring:
Contact details for documentation delivery and monitoring (covenants, transaction security, waivers, amendments, etc.)

Address:	  	BBVA - Portfolio Monitoring Corporate Loans EMEA & USA Ciudad BBVA,
Sauceda Street, 28, Oceania Building, 2nd floor, 28050 Madrid	
		
E-mail:	  	corporate.monitoring@bbva.com	
		
Attention:	  	Esther Parramon Jimemez	
		
Telephone Number	  	+34 91 537 93 64 +34 673488719	

	
THE SECURITY AGENT	
	
/s/ Keith Reader	
WILMINGTON TRUST (LONDON) LIMITED
as Security Agent	
	
Name: Keith Reader	
	
Title: Authorised Signatory	

Notice Details :	  		
		
Address:	  	Third Floor, 1King’s Arms Yard, London. EC2R 7AF	
		
Email:	  	kreader@wilmingtontrust.com / phargreaves@wilmingtontrust.com	
		
Attention:	  	Keith Reader / Philip Hargreaves	

Exhibit 99.1

	  	
 
PRESS RELEASE	
Atento Announces Closing of Offering of Senior Secured Notes
SAO PAULO, August 10, 2017 – Atento S.A. (“Atento” or the “Company”) (NYSE: ATTO), the largest provider of customer relationship management and business process outsourcing solutions (CRM/BPO) in Latin America and among the top five providers worldwide, today announced that its wholly-owned subsidiary, Atento Luxco 1 S.A. (the “Issuer”), has closed its previously announced private offering of US$400 million in aggregate principal amount of 6.125% Senior Secured Notes due 2022 (the “Notes”). Atento also today announced its entry into a new super senior revolving credit facility which will provide for aggregate borrowings of up to $50 million and mature on the date falling four and a half years after today’s date. Atento intends to use the net proceeds from the offering of the Notes, together with cash on hand, to redeem all of the Issuer’s outstanding 7.375% Senior Secured Notes due 2020 and all of the existing debentures due 2019 of its subsidiary Atento Brasil.
The Notes are guaranteed on a senior secured basis by certain of Atento’s wholly-owned subsidiaries. The Notes and the guarantees will be secured, subject to permitted liens and other limitations, by a first-priority lien on the capital stock of the Issuer and each of the guarantors within 120 days following the issue date of the Notes.
The Notes and related guarantees were offered only to qualified institutional buyers in reliance on Rule 144A under the Securities Act of 1933, as amended (the “Act”), or outside the United States, to persons other than “U.S. persons” in compliance with Regulation S under the Act. The Notes and related guarantees have not been and will not be registered under the Act or the securities laws of any other jurisdiction and may not be offered or sold in the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Act.
This press release is for informational purposes only and is not an offer to buy or the solicitation of an offer to sell any securities. Any offers of the Notes will be made only by means of a private offering circular.
About Atento
Atento is the largest provider of customer relationship management and business process outsourcing (CRM BPO) services in Latin America, and among the top five providers globally, based on revenues. Atento is also a leading provider of nearshoring CRM/BPO services to companies that carry out their activities in the United States. Since 1999, Atento has developed its business model in 13 countries where it employs 150,000 people. Atento has over 400 clients to whom it offers a wide range of CRM/BPO services through multiple channels. Atento’s clients are mostly leading multinational corporations in sectors such as telecommunications, banking and financial services, health, retail and public administrations, among others. Atento’s shares trade under the symbol ATTO on the New York Stock Exchange (NYSE). In 2016, Atento was named one of the World’s 25 Best Multinational Workplaces by Great Place to Work ® for the fourth consecutive year. For more information visit www.atento.com .
Forward-Looking Statements
This press release contains forward-looking statements. Forward-looking statements can be identified by the use of words such as “may,” “should,” “expects,” “plans,” “anticipates,” “believes,” “estimates,” “predicts,” “intends,” “continue” or similar terminology. These statements reflect only Atento’s current expectations and are not guarantees of future performance or results. These statements are subject to risks and uncertainties that could cause actual results to differ materially from those contained in the forward-looking statements. These risks and uncertainties include, but are not limited to, competition in Atento’s highly competitive industries; increases in the cost of voice and data services or significant interruptions in these services; Atento’s ability to keep pace with its clients’ needs for rapid technological change and systems availability; the continued deployment and adoption of emerging technologies; the loss, financial difficulties or bankruptcy of any key clients; the effects of global economic trends on the businesses of Atento’s clients; the non-exclusive nature of Atento’s client contracts and the absence of revenue commitments; security and privacy breaches of the systems Atento uses to protect personal data; the cost of pending and future litigation; the cost of defending Atento against intellectual property infringement claims; extensive regulation affecting many of Atento’s businesses; Atento’s ability to protect its proprietary information or technology; service interruptions to Atento’s data and operation centers; Atento’s ability to retain key personnel and attract a sufficient number of qualified employees; increases in labor costs and turnover rates; the political, economic and other conditions in the countries where Atento operates; changes in foreign exchange rates; Atento’s ability to complete future acquisitions and integrate or achieve the objectives of its recent and future acquisitions; future impairments of our substantial goodwill, intangible assets, or other long-lived assets; and Atento’s ability to recover consumer receivables on behalf of its clients. In addition, Atento is subject to risks related to its level of indebtedness. Such risks include Atento’s ability to generate sufficient cash to service its indebtedness and fund its other liquidity needs; Atento’s ability to comply with covenants contained in its debt instruments; the ability to obtain additional financing; the incurrence of significant additional indebtedness by Atento and its subsidiaries; and the ability of Atento’s lenders to fulfill their lending commitments. Atento is also subject to other risk factors described in documents filed by the company with the United States Securities and Exchange Commission.
These forward-looking statements speak only as of the date on which the statements were made. Atento undertakes no obligation to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise.
Investor Relations
Shay Chor
+55 11 3293 5926
shay.chor@atento.com
Felipe Joaquim Martins de Souza
+55 11 3779-8053
felipe.souza@atento.com
Media Relations
Maite Cordero
+34 91 740 74 47
media@atento.com