ALKS 8-K
Alkermes plc. (ALKS)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
(Exact name of registrant as specified in its charter)
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Registrant’s telephone number, including area code: +
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
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Name of each exchange on which registered |
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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Emerging growth company |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement.
Term Loan Credit Facilities
On August 12, 2026, Alkermes plc (the “Company”) entered into Amendment No. 1 to Credit Agreement (the “Amendment”), which amends the Credit Agreement, dated as of February 12, 2026 (the “Credit Agreement”), among the Company, as the TopCo Borrower, Alkermes, Inc., as the U.S. Borrower, Alkermes Finance LLC, as the U.S. Co-Borrower, JPMorgan Chase Bank, N.A., as Administrative Agent, Joint Lead Arranger and Joint Bookrunner, BofA Securities, Inc., as Joint Lead Arranger and Joint Bookrunner, and the lenders party thereto.
The Credit Agreement provides for a senior secured term loan A facility (the “TLA Facility”) in an outstanding principal amount of $745,312,500.00 and a senior secured term loan B facility (the “TLB Facility”) in an outstanding principal amount of $773,062,500. The TLA Facility matures on February 12, 2031 and the TLB Facility matures on August 12, 2031.
The Amendment reduces the interest rate spread (i) under the TLA Facility by 0.75% and (ii) under the TLB Facility by 0.50%, among other changes. After giving effect to the Amendment, borrowings under the TLA Facility will bear interest at an annual rate of, at our option, either (i) the Term SOFR Rate (as defined in the Credit Agreement), plus a Secured Net Leverage Ratio (as defined in the Credit Agreement)-based margin, ranging from 1.75% to 2.25% per annum, or (ii) the Alternate Base Rate (as defined in the Credit Agreement) plus a Secured Net Leverage Ratio-based margin, ranging from 0.75% to 1.25% per annum. Borrowings under the TLB Facility will bear interest at an annual rate of, at our option, either (i) the Term SOFR Rate plus a margin of 2.25% per annum, or (ii) the Alternate Base Rate plus a margin of 1.25% per annum.
The foregoing description of certain provisions of the Amendment and the underlying Credit Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Amendment, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated by reference into this Item 1.01, and the Credit Agreement, a copy of which was filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on February 12, 2026.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
EXHIBIT INDEX
Exhibit No. |
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Description |
10.1 |
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104 |
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Cover page interactive data file (embedded within the Inline XBRL document). |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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ALKERMES PLC |
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Date: August 12, 2026 |
By: |
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/s/ David J. Gaffin |
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David J. Gaffin |
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Secretary |
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Exhibit 10.1
Execution Version
AMENDMENT NO. 1 TO CREDIT AGREEMENT
This Amendment No. 1 to Credit Agreement, dated as of August 12, 2026 (this “Amendment”), to the Credit Agreement, dated as of February 12, 2026 (as amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Credit Agreement”; the Credit Agreement, as amended by this Amendment is herein referred to as the “Amended Credit Agreement”), among Alkermes plc, a company incorporated under the laws of Ireland (registered number 498284) (the “TopCo Borrower”), Alkermes, Inc., a Pennsylvania corporation and an indirect wholly-owned subsidiary of the TopCo Borrower (the “U.S. Borrower”), Alkermes Finance LLC, a Delaware limited liability company and an indirect wholly-owned subsidiary of the TopCo Borrower (the “U.S. Co-Borrower” and together with the U.S. Borrower and the TopCo Borrower, each a “Borrower” and, collectively, the “Borrowers”), the lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Administrative Agent”), is entered into by and among the Borrowers, each of the Subsidiary Guarantors party hereto (with respect to Section 6 hereof), the 2026 Refinancing Tranche B Term Lenders (as defined below), the Initial Tranche A Term Lenders (constituting all of the Initial Tranche A Term Lenders) and the Administrative Agent. Terms defined in the Credit Agreement or the Amended Credit Agreement, as applicable, shall be used in this Amendment with their defined meanings therein unless otherwise defined herein.
W I T N E S S E T H:
WHEREAS, the Borrowers, the Lenders party thereto and the Administrative Agent are parties to the Credit Agreement;
WHEREAS, subject to the terms and conditions of the Credit Agreement, (a) the TLA Borrowers desire to amend the Credit Agreement in order to reduce the Applicable Rate with respect to the Initial Tranche A Term Loans (the “Tranche A Repricing”) and (b) pursuant to Section 9.02 of the Credit Agreement, the Initial Tranche A Term Lenders have agreed to amend the Credit Agreement to give effect to such Tranche A Repricing, as set forth in Exhibit A hereto;
WHEREAS, subject to the terms and conditions of the Credit Agreement, (a) the TLB Borrowers desire to refinance all of the outstanding Initial Tranche B Term Loans (as defined in the Credit Agreement as in effect immediately prior to the effectiveness of this Amendment, the “Existing Tranche B Term Loans”) with Refinancing Term Loans incurred pursuant to Section 2.22 of the Credit Agreement (the “2026 Refinancing Tranche B Term Loans”) and (b) pursuant to Section 2.22 of the Credit Agreement, the TLB Borrowers and the Administrative Agent desire to make such conforming modifications to the Credit Agreement and Exhibits thereto as are necessary to give effect to the 2026 Refinancing Tranche B Term Loans, as set forth in Exhibit A and Exhibit B hereto;
WHEREAS, each of JPMorgan Chase Bank, N.A. (in such capacity, the “Amendment No. 1 Lead Left Arranger”), BofA Securities, Inc., PNC Capital Markets LLC, DNB Carnegie, Inc., U.S. Bank National Association, Fifth Third Bank, National Association, Capital One, National Association, Citizens Bank, N.A. and Truist Bank (or, in each case, any of its affiliates as so designated by it to act in such capacity) has been appointed and will act as a joint lead arranger and joint bookrunner with respect to the Amendment (collectively, in such capacities, the “Amendment No. 1 Lead Arrangers”);
WHEREAS, immediately prior to the Amendment No. 1 Effective Date (as defined below), the TLB Borrowers are hereby notifying the Administrative Agent pursuant to Section 2.22 of the Credit Agreement that they are requesting the establishment and Borrowing of 2026 Refinancing Tranche B Term
2
Loans in the aggregate principal amount specified in the Borrowing Request delivered pursuant to Section 3(h) below to refinance all of the outstanding Existing Tranche B Term Loans under the Credit Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
3
4
5
6
[Signature Pages Follow]
Each of the parties hereto has caused a counterpart of this Amendment to be duly executed and delivered as of the date first above written.
ALKERMES PLC,
as TopCo Borrower
By: /s/ Declan O’Connor
Name: Declan O’Connor
Title: Board Authorized Signatory
ALKERMES, INC.,
as U.S. Borrower
By: /s/ Joshua Reed
Name: Joshua Reed
Title: Senior Vice President, Chief Financial
Officer
ALKERMES FINANCE LLC,
as U.S. Co-Borrower
By: /s/ Joshua Reed
Name: Joshua Reed
Title: Treasurer
ALKERMES IRELAND HOLDINGS LIMITED,
as a Subsidiary Guarantor
By: /s/ Declan O’Connor
Name: Declan O’Connor
Title: Director
ALKERMES FINANCE IRELAND (NO 3) LIMITED,
as a Subsidiary Guarantor
By: /s/ Declan O’Connor
Name: Declan O’Connor
Title: Director
[Signature Page to Amendment No. 1 to Credit Agreement]
ALKERMES PHARMA IRELAND LIMITED,
as a Subsidiary Guarantor
By: /s/ Declan O’Connor
Name: Declan O’Connor
Title: Director
ALKERMES SCIENCE FOUR LIMITED,
as a Subsidiary Guarantor
By: /s/ Declan O’Connor
Name: Declan O’Connor
Title: Director
ALKERMES SCIENCE FIVE LIMITED,
as a Subsidiary Guarantor
By: /s/ Declan O’Connor
Name: Declan O’Connor
Title: Director
DARAVITA PHARMA IRELAND LIMITED,
as a Subsidiary Guarantor
By: /s/ Declan O’Connor
Name: Declan O’Connor
Title: Director
ALKERMES US HOLDINGS, INC.,
as a Subsidiary Guarantor
By: /s/ Joshua Reed
Name: Joshua Reed
Title: Treasurer
[Signature Page to Amendment No. 1 to Credit Agreement]
RODIN THERAPEUTICS, INC.,
as a Subsidiary Guarantor
By: /s/ Joshua Reed
Name: Joshua Reed
Title: Treasurer
AVADEL US HOLDINGS, LLC,
as a Subsidiary Guarantor
By: /s/ Joshua Reed
Name: Joshua Reed
Title: Treasurer
AVADEL CNS PHARMACEUTICALS, LLC,
as a Subsidiary Guarantor
By: /s/ Joshua Reed
Name: Joshua Reed
Title: Treasurer
AVADEL MANAGEMENT, LLC,
as a Subsidiary Guarantor
By: /s/ Joshua Reed
Name: Joshua Reed
Title: Treasurer
AVADEL PHARMACEUTICALS LIMITED,
as a Subsidiary Guarantor
By: /s/ Declan O’Connor
Name: Declan O’Connor
Title: Director
[Signature Page to Amendment No. 1 to Credit Agreement]
FLAMEL IRELAND LIMITED,
as a Subsidiary Guarantor
By: /s/ Declan O’Connor
Name: Declan O’Connor
Title: Director
[Signature Page to Amendment No. 1 to Credit Agreement]
JPMORGAN CHASE BANK, N.A., as Administrative Agent, Initial Tranche A Term Lender and Amendment No. 1 Additional Tranche B Term Lender
By: /s/ Helen D. Davis
Name: Helen D. Davis
Title: Executive Director
[Signature Page to Amendment No. 1 to Credit Agreement]
BANK OF AMERICA, N.A.,
as Initial Tranche A Term Lender
By: /s/ Karen Yap
Name: Karen Yap
Title: Senior Vice President
[Signature Page to Amendment No. 1 to Credit Agreement]
PNC BANK, NATIONAL ASSOCIATION,
as Initial Tranche A Term Lender
By: /s/ Robert Novak
Name: Robert Novak
Title: Senior Vice President
[Signature Page to Amendment No. 1 to Credit Agreement]
DNB CAPITAL LLC,
as Initial Tranche A Term Lender
By: /s/ Dania Hinedi
Name: Dania Hinedi
Title: Senior Vice President
By: /s/ Bret Douglas
Name: Bret Douglas
Title: Senior Vice President
[Signature Page to Amendment No.1 to Credit Agreement]
U.S. BANK NATIONAL ASSOCIATION,
as Initial Tranche A Term Lender
By: /s/ Thomas Whitman
Name: Thomas Whitman
Title: Assistant Vice President
[Signature Page to Amendment No.1 to Credit Agreement]
FIFTH THIRD BANK, NATIONAL ASSOCIATION,
as Initial Tranche A Term Lender
By: /s/ Shailesh Patel
Name: Shailesh Patel
[Signature Page to Amendment No.1 to Credit Agreement]
CAPITAL ONE, NATIONAL ASSOCIATON,
as Initial Tranche A Term Lender
By: /s/ Lindsay Cozzi
Name: Lindsay Cozzi
Title: Duly Authorized Signatory
[Signature Page to Amendment No.1 to Credit Agreement]
CITIZENS BANK, N.A.,
as Initial Tranche A Term Lender
By: /s/ Luis Guiterrez
Name: Luis Gutierrez
Title: Senior Vice President
[Signature Page to Amendment No. 1 to Credit Agreement]
TRUIST BANK,
as Initial Tranche A Term Lender
By: /s/ Anton Brykalin
Name: Anton Brykalin
Title: Director
[Signature Page to Amendment No. 1 to Credit Agreement]
Schedule A
Amendment No. 1 Additional Tranche B Term Lender |
Amendment No. 1 Additional Tranche B Term Commitment |
JPMorgan Chase Bank, N.A. |
100%1 |
1 On the Amendment No. 1 Effective Date, the amount of 2026 Refinancing Tranche B Term Loans underlying the Amendment No. 1 Additional Tranche B Term Commitment was $93,509,548.09.
ANNEX A
LENDER SIGNATURE PAGE TO AMENDMENT NO. 1 TO CREDIT AGREEMENT (THE “AMENDMENT”), RELATING TO THE CREDIT AGREEMENT, DATED AS OF FEBRUARY 12, 2026, BY AND AMONG ALKERMES PLC, AS TOPCO BORROWER, ALKERMES, INC., AS U.S. BORROWER, ALKERMES FINANCE LLC, AS U.S. CO-BORROWER, THE LENDERS FROM TIME TO TIME PARTY THERETO AND JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT (AS AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME PRIOR TO THE DATE HEREOF, THE “CREDIT AGREEMENT”). TERMS DEFINED IN THE CREDIT AGREEMENT OR THE AMENDMENT, AS APPLICABLE, SHALL BE USED HEREIN WITH THEIR DEFINED MEANINGS THEREIN UNLESS OTHERWISE DEFINED HEREIN.
The undersigned Lender hereby irrevocably and unconditionally approves the Amendment and consents to convert 100% of the outstanding principal amount of the Initial Tranche B Term Loans held by such Lender (or such lesser amount as notified to the undersigned by the Administrative Agent prior to the Amendment No. 1 Effective Date) into 2026 Refinancing Tranche B Term Loans in a like principal amount.
[SIGNATURE PAGE FOLLOWS]
ANNEX A
IN WITNESS WHEREOF, the undersigned has caused this Lender Consent to be executed and delivered by a duly authorized officer.
[NAME OF INSTITUTION]
By: ______________________________________
Name:
Title:
If a second signature is necessary:
By: ______________________________________
Name:
Title:
Name of Fund Manager (if any): ________________________
[Signatures of Amendment No. 1 Consenting Tranche B Term Lenders are on file
file with Administrative Agent]
Exhibit A
Amended Credit Agreement
[Attached]
Exhibit A to Amendment No. 1 to Credit Agreement
CREDIT AGREEMENT
dated as of
February 12, 2026,
as amended by Amendment No. 1 to Credit Agreement, dated as of August 12, 2026,
among
ALKERMES PLC,
as the TopCo Borrower,
ALKERMES, INC.,
as the U.S. Borrower,
ALKERMES FINANCE LLC,
as the U.S. Co-Borrower
The Lenders Party Hereto
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
JPMORGAN CHASE BANK, N.A. and BOFA SECURITIES, INC.,
as Joint Lead Arrangers and Joint Bookrunners,
BANK OF AMERICA, N.A.,
as Syndication Agent,
PNC CAPITAL MARKETS LLC, DNB CARNEGIE, INC., U.S. BANK NATIONAL ASSOCIATION, FIFTH THIRD BANK, NATIONAL ASSOCIATION, CAPITAL ONE, NATIONAL ASSOCIATION, CITIZENS BANK, N.A. and TRUIST BANK,
as Co-Documentation Agents
NOTICE: Under the Credit Reporting Act 2013 lenders are required to provide personal and credit information for credit applications and credit agreements of €500 and above to the Central Credit Register. This information will be held on the Central Credit Register and may be used by other lenders when making decisions on your credit applications and credit agreements.
The Central Credit Register is maintained and operated by the Central Bank of Ireland. For information on your rights and duties under the Credit Reporting Act 2013 please refer to the factsheet prepared by the Central Bank of Ireland. This factsheet is available at: www.centralcreditregister.ie
TABLE OF CONTENTS
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Page |
Article I Definitions |
1 |
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Section 1.01 |
Defined Terms |
1 |
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Section 1.02 |
Classification of Loans and Borrowings |
6263 |
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Section 1.03 |
Terms Generally |
6263 |
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Section 1.04 |
Accounting Terms; GAAP; Pro Forma Calculations |
6263 |
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Section 1.05 |
Interest Rates; Benchmark Notification |
6364 |
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Section 1.06 |
Leverage Ratios |
6465 |
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Section 1.07 |
Divisions |
6465 |
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Section 1.08 |
Limited Conditionality Transactions |
6465 |
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Section 1.09 |
Irish terms |
6566 |
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Section 1.10 |
Delayed Draw Term Loans |
6667 |
Article II The Credits |
6667 |
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Section 2.01 |
Commitments |
6667 |
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Section 2.02 |
Loans and Borrowings |
6667 |
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Section 2.03 |
Requests for Borrowings |
6768 |
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Section 2.04 |
Intentionally Omitted |
6769 |
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Section 2.05 |
Intentionally Omitted |
6769 |
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Section 2.06 |
Intentionally Omitted. |
6869 |
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Section 2.07 |
Funding of Borrowings |
6869 |
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Section 2.08 |
Interest Elections |
6869 |
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Section 2.09 |
Termination of Commitments |
6970 |
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Section 2.10 |
Repayment and Amortization of Loans; Evidence of Debt |
6971 |
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Section 2.11 |
Prepayment of Loans |
7072 |
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Section 2.12 |
Fees |
7374 |
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Section 2.13 |
Interest |
7475 |
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Section 2.14 |
Alternate Rate of Interest |
7576 |
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Section 2.15 |
Increased Costs |
7778 |
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Section 2.16 |
Break Funding Payments |
7879 |
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Section 2.17 |
Taxes |
7980 |
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Section 2.18 |
Payments Generally; Allocations of Proceeds; Pro Rata Treatment; Sharing of Setoffs |
8485 |
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Section 2.19 |
Mitigation Obligations; Replacement of Lenders |
8586 |
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Section 2.20 |
Incremental Facilities |
8687 |
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Section 2.21 |
Defaulting Lenders |
9293 |
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Section 2.22 |
Refinancing Facilities. |
9394 |
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Section 2.23 |
Extension of Term Loans. |
9596 |
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Section 2.24 |
Borrower Appointment |
9798 |
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Section 2.25 |
Loan Repurchases |
9899 |
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Section 2.26 |
Illegality |
99100 |
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Section 2.27 |
MIRE Event |
100101 |
Article III Representations and Warranties |
100101 |
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Section 3.01 |
Organization; Powers; Subsidiaries |
100101 |
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Section 3.02 |
Authorization; Enforceability |
100101 |
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Section 3.03 |
Governmental Approvals; No Conflicts |
101102 |
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Section 3.04 |
Financial Condition; No Material Adverse Change |
101102 |
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Section 3.05 |
Properties |
101102 |
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Section 3.06 |
Litigation, Environmental and Labor Matters |
101102 |
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Section 3.07 |
Compliance with Laws and Agreements |
102103 |
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Section 3.08 |
Investment Company Status |
104105 |
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Section 3.09 |
Taxes |
104105 |
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Section 3.10 |
ERISA |
104105 |
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Section 3.11 |
Disclosure |
105106 |
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Section 3.12 |
Liens |
105106 |
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Section 3.13 |
No Default |
105106 |
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Section 3.14 |
Intentionally Omitted |
105106 |
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Section 3.15 |
Solvency |
105106 |
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Section 3.16 |
Intentionally Omitted |
105106 |
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Section 3.17 |
Security Interest in Collateral |
105106 |
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Section 3.18 |
Anti-Corruption Laws and Sanctions |
106107 |
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Section 3.19 |
Intentionally Omitted |
106107 |
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Section 3.20 |
Centre of main interests and establishment |
106107 |
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Section 3.21 |
Margin Regulations |
106107 |
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Section 3.22 |
Acquisition Documents |
106107 |
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Section 3.23 |
Plan Assets; Prohibited Transactions |
106107 |
Article IV Conditions |
106107 |
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Section 4.01 |
Conditions to the Closing Date |
106107 |
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Section 4.02 |
[Reserved] |
110111 |
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Section 4.03 |
Actions During Certain Funds Period |
110111 |
Article V Affirmative Covenants |
110111 |
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Section 5.01 |
Financial Statements and Other Information |
111 |
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Section 5.02 |
Notices of Material Events |
112113 |
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Section 5.03 |
Existence; Conduct of Business |
113114 |
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Section 5.04 |
Payment of Obligations |
113114 |
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Section 5.05 |
Maintenance of Properties; Insurance |
113114 |
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Section 5.06 |
Books and Records; Inspection Rights |
114115 |
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Section 5.07 |
Compliance with Laws and Material Contractual Obligations |
115116 |
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Section 5.08 |
Use of Proceeds |
115116 |
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Section 5.09 |
Subsidiary Guarantors; Pledges; Additional Collateral; Further Assurances |
115116 |
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Section 5.10 |
Post- Closing Date Covenants |
118119 |
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Section 5.11 |
Scheme and Offer |
119120 |
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Section 5.12 |
Centre of main interests and establishment |
120122 |
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Section 5.13 |
Designation of Subsidiaries |
121122 |
Article VI Negative Covenants |
121122 |
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Section 6.01 |
Indebtedness |
122123 |
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Section 6.02 |
Liens |
124126 |
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Section 6.03 |
Fundamental Changes |
128129 |
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Section 6.04 |
Dispositions |
129130 |
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Section 6.05 |
Investments, Loans, Advances, Guarantees and Acquisitions |
131132 |
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Section 6.06 |
Swap Agreements |
134135 |
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Section 6.07 |
Transactions with Affiliates |
134136 |
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Section 6.08 |
Restricted Payments |
135136 |
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Section 6.09 |
Restrictive Agreements |
137138 |
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Section 6.10 |
Junior Indebtedness and Amendments to Junior Indebtedness Documents and Organizational Documents |
138139 |
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Section 6.11 |
Sale and Leaseback Transactions |
140141 |
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Section 6.12 |
Material Intellectual Property |
140141 |
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Section 6.13 |
Financial Covenants |
140141 |
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Section 6.14 |
Covenant Suspension Period |
140141 |
Article VII Events of Default |
141142 |
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Section 7.01 |
Events of Default |
141142 |
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Section 7.02 |
Remedies Upon an Event of Default |
144145 |
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Section 7.03 |
Application of Payments |
145146 |
Article VIII The Administrative Agent |
146147 |
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Section 8.01 |
Authorization and Action |
146147 |
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Section 8.02 |
Administrative Agent’s Reliance, Limitation of Liability, etc. |
148149 |
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Section 8.03 |
Posting of Communications |
149150 |
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Section 8.04 |
The Administrative Agent Individually |
151152 |
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Section 8.05 |
Successor Administrative Agent |
151152 |
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Section 8.06 |
Acknowledgements of Lenders |
152153 |
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Section 8.07 |
Collateral Matters |
153154 |
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Section 8.08 |
Credit Bidding |
155156 |
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Section 8.09 |
Certain ERISA Matters |
155156 |
Article IX Miscellaneous |
157158 |
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Section 9.01 |
Notices |
157158 |
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Section 9.02 |
Waivers; Amendments |
159160 |
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Section 9.03 |
Expenses; Limitation of Liability; Indemnity, etc |
163164 |
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Section 9.04 |
Successors and Assigns |
165166 |
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Section 9.05 |
Survival |
170171 |
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Section 9.06 |
Counterparts; Integration; Effectiveness; Electronic Execution |
170171 |
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Section 9.07 |
Severability |
171172 |
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Section 9.08 |
Right of Setoff |
171172 |
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Section 9.09 |
Governing Law; Jurisdiction; Consent to Service of Process |
172173 |
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Section 9.10 |
WAIVER OF JURY TRIAL |
173174 |
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Section 9.11 |
Headings |
173174 |
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Section 9.12 |
Confidentiality |
173174 |
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Section 9.13 |
USA PATRIOT Act |
174175 |
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Section 9.14 |
Releases of Subsidiary Guarantors |
175176 |
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Section 9.15 |
Appointment for Perfection |
175176 |
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Section 9.16 |
Interest Rate Limitation |
176177 |
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Section 9.17 |
No Fiduciary Duty, etc |
176177 |
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Section 9.18 |
Acknowledgement and Consent to Bail-In of Affected Financial Institutions |
177178 |
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Section 9.19 |
Acknowledgement Regarding Any Supported QFCs |
177178 |
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Section 9.20 |
Marketing Consent |
178179 |
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Section 9.21 |
Obligation Joint and Several |
178179 |
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Section 9.22 |
[Reserved] |
179180 |
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Section 9.23 |
Process Agent |
179180 |
iii
Schedules and Exhibits
SCHEDULES: |
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Schedule 2.01 |
Commitments |
Schedule 3.01 |
Subsidiaries |
Schedule 3.06 |
Litigation |
Schedule 3.07(b) |
Healthcare and Regulatory Matters |
Schedule 6.01 |
Existing Indebtedness |
Schedule 6.02 |
Existing Liens |
Schedule 6.05 |
Existing Investments |
Schedule 6.07 |
Transactions with Affiliates |
Schedule 6.09 |
Restrictive Agreements
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EXHIBITS: |
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|
Exhibit A |
Form of Assignment and Assumption |
Exhibit B |
[Reserved] |
Exhibit C |
[Reserved] |
Exhibit D |
List of Closing Date Documents |
Exhibit E |
Closing Certificate |
Exhibit F-1 |
Form of U.S. Tax Certificate (Foreign Lenders That Are Not Partnerships) |
Exhibit F-2 |
Form of U.S. Tax Certificate (Foreign Participants That Are Not Partnerships) |
Exhibit F-3 |
Form of U.S. Tax Certificate (Foreign Participants That Are Partnerships) |
Exhibit F-4 |
Form of U.S. Tax Certificate (Foreign Lenders That Are Partnerships) |
Exhibit G-1 |
[Reserved] |
Exhibit G-2 |
[Reserved] |
Exhibit H-1 Exhibit H-2 |
Form of Initial Tranche A Term Loan Note Form of Initial2026 Refinancing Tranche B Term Loan Note |
Exhibit I |
Form of Compliance Certificate |
iv
CREDIT AGREEMENT (this “Agreement”), dated as of February 12, 2026, among ALKERMES PLC (as amended, restated, supplemented or otherwise modified from time to time, including by Amendment No. 1 to Credit Agreement, dated as of August 12, 2026, this “Agreement”), among Alkermes plc, a company incorporated under the laws of Ireland (registered number 498284) (the “TopCo Borrower”), Alkermes, Inc., a Pennsylvania corporation and an indirect wholly-owned subsidiary of the TopCo Borrower (the “U.S. Borrower”), Alkermes Finance LLC, a Delaware limited liability company and an indirect wholly owned subsidiary of the TopCo Borrower (the “U.S. Co-Borrower” and together with the U.S. Borrower and the TopCo Borrower, each a “Borrower” and, collectively, the “Borrowers”), the Lenders from time to time party hereto and JPMORGAN CHASE BANKJPMorgan Chase Bank, N.A., as Administrative Agent.
The parties hereto agree as follows:
Definitions
“2026 Refinancing Tranche B Term Facility” means the aggregate amount of the 2026 Refinancing Tranche B Term Loan Commitments and the 2026 Refinancing Tranche B Term Loans made thereunder.
“2026 Refinancing Tranche B Term Lender” means each Lender that holds a 2026 Refinancing Tranche B Term Loan Commitment or 2026 Refinancing Tranche B Term Loan.
“2026 Refinancing Tranche B Term Loan Commitment” means, collectively, the Amendment No. 1 Additional Tranche B Term Commitment and the commitment of each Amendment No. 1 Consenting Tranche B Term Lender by its execution of a Lender Consent (as defined in Amendment No. 1) to convert its Amendment No. 1 Converted Tranche B Term Loans into 2026 Refinancing Tranche B Term Loans. On the Amendment No. 1 Effective Date, the 2026 Refinancing Tranche B Term Loan Commitment equals $773,062,500.00.
“2026 Refinancing Tranche B Term Loans” has the meaning set forth in Amendment No. 1.
“ABR”, when used in reference to any Loan or Borrowing, refers to such Loan, or the Loans comprising such Borrowing, bearing interest at a rate determined by reference to the Alternate Base Rate.
“Acceptance Condition” means the condition with respect to the number of acceptances to the Offer which must be secured in order for the Offer to become or be declared unconditional.
“Acquired Product” means any Product and/or related Intellectual Property acquired or licensed by a Loan Party or any Restricted Subsidiary from a Third Party to facilitate the advertisement, design, development, importing, exporting, production, handling, manufacturing, labeling, offering for sale, promotion, sale, testing, use, holding, possession, distribution, storage, security, recordkeeping, or supply of such Product by a Loan Party or a Restricted Subsidiary.
“Acquisition” means the purchase, inbound license or other acquisition, or option to purchase, license or otherwise acquire, whether through a single transaction or a series of related transactions, of (a) a majority of the Equity Interests, whether by purchase of such Equity Interests or upon the exercise of an option or warrant for, or conversion of securities into, such Equity Interests, of another Person, (b) assets of another Person which constitute all or substantially all of the assets of such Person or of a division, line
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of business or other business unit of such Person, or (c) assets consisting of an Acquired Product, royalty rights or similar assets of such Person.
“Acquisition Agreement” means the Transaction Agreement, dated as of October 22, 2025, by and among ALKERMES PLC, an Irish public limited company with registered number 498284 having its registered office at Connaught House, 1 Burlington Road, Dublin 4, Ireland D04 C5Y6, and AVADEL PHARMACEUTICALS PLC, an Irish public limited company with registered number 572535 having its registered office at 10 Earslfort Terrace, Dublin 2, Ireland (as amended by the Acquisition Agreement Amendment and as further amended by any amendments thereto from time to time after November 18, 2025 that do not constitute Materially Adverse Amendments or that have been approved by the Required Lenders).
“Acquisition Agreement Amendment” means that certain Amendment No. 1 to the Transaction Agreement, dated as of November 18, 2025, by and among ALKERMES PLC, an Irish public limited company with registered number 498284 having its registered office at Connaught House, 1 Burlington Road, Dublin 4, Ireland D04 C5Y6, and AVADEL PHARMACEUTICALS PLC, an Irish public limited company with registered number 572535 having its registered office at 10 Earslfort Terrace, Dublin 2, Ireland.
“Acquisition Consideration” means the sum of the cash purchase price for any Permitted Acquisition payable in respect of such Permitted Acquisition (and which, for the avoidance of doubt, but subject to the proviso in this definition, shall include purchase price adjustment, royalty, earnout, contingent payment, progress payments, milestone payments or other deferred payment of a similar nature) plus the aggregate amount of Indebtedness (of the type that are described in clauses (a) through (g) and (l) of the definition of “Indebtedness”) assumed on such date in connection with such Permitted Acquisition; provided that Acquisition Consideration shall not include any sales-based milestone payments or royalty payments to be made after the closing of any Permitted Acquisition and any future payment that is subject to a contingency shall only be considered Acquisition Consideration up to the amount of the reserve, if any, required under GAAP at the time of such sale to be established in respect thereof by the TopCo Borrower or any of its Restricted Subsidiaries.
“Acquisition Documents” means the Scheme Documents or the Offer Documents (as the case may be).
“Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as administrative agent for the Lenders hereunder.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“Agent Fee Letter” means that certain amended and restated agent fee letter, dated as of December 24, 2025, between the TopCo Borrower, the U.S. Borrower and JPMorgan Chase Bank, N.A, as amended, restated, supplemented or otherwise modified from time to time.
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“Agent-Related Person” has the meaning assigned to such term in Section 9.03(d).
“Agreement” has the meaning assigned to such term in the introductory paragraph.
“Allocation Date” has the meaning assigned to such term in Section 2.12(a).
“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus ½ of 1% and (c) the Term SOFR Rate for a one month Interest Period as published two U.S. Government Securities Business Days prior to such day (or if such day is not a U.S. Government Securities Business Day, the immediately preceding U.S. Government Securities Business Day) plus 1%; provided that for the purpose of this definition, the Term SOFR Rate for any day shall be based on the Term SOFR Reference Rate at approximately 5:00 a.m. Chicago time on such day (or any amended publication time for the Term SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFR Reference Rate methodology). Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Term SOFR Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Term SOFR Rate, respectively. If the Alternate Base Rate is being used as an alternate rate of interest pursuant to Section 2.14 (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 2.14(b)), then the Alternate Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the Alternate Base Rate as determined pursuant to the foregoing would be less than the Floor, such rate shall be deemed to be the Floor for purposes of this Agreement.
“Ancillary Document” has the meaning assigned to such term in Section 9.06.
“Amendment No. 1” means that certain Amendment No. 1 to Credit Agreement, dated as of August 12, 2026, by and among the Borrowers, the other Loan Parties party thereto, the Amendment No. 1 Additional Tranche B Term Lender, the Amendment No. 1 Consenting Tranche B Term Lenders, the Initial Tranche A Term Lenders party thereto and the Administrative Agent.
“Amendment No. 1 Additional Tranche B Term Commitment” has the meaning set forth in Amendment No. 1.
“Amendment No. 1 Additional Tranche B Term Lender” has the meaning set forth in Amendment No. 1.
“Amendment No. 1 Consenting Tranche B Term Lender” has the meaning set forth in Amendment No. 1.
“Amendment No. 1 Converted Tranche B Term Loan” means each Existing Tranche B Term Loan held by an Amendment No. 1 Consenting Tranche B Term Lender on the Amendment No. 1 Effective Date that has indicated on its Lender Consent (as defined in Amendment No. 1) that it is requesting to have the entire aggregate principal amount of its Existing Tranche B Term Loans converted to 2026 Refinancing Tranche B Term Loans (or, if less than the entire aggregate principal amount, the amount of such Amendment No. 1 Consenting Tranche B Term Lender’s Existing Tranche B Term Loans notified to such Lender by the Administrative Agent as such Lender’s Amendment No. 1 Converted Tranche B Term Loans).
“Amendment No. 1 Effective Date” means August 12, 2026.
“Amendment No. 1 Lead Arrangers” has the meaning set forth in Amendment No. 1.
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“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the TopCo Borrower or any of its Restricted Subsidiaries from time to time concerning or relating to bribery or corruption, including the U.S. Foreign Corrupt Practices Act of 1977.
“Applicable Facilities Percentage” means with respect to any Lender, (a) (i) prior to the Closing Date, a percentage equal to a fraction the numerator of which is such Lender’s Initial Term Commitments and the denominator of which is the aggregate Initial Term Commitments of all Lenders (if the Initial Term Commitments have been terminated or expired, the Applicable Facilities Percentages shall be determined based upon the Initial Term Commitments most recently in effect, giving effect to any assignments); provided that in the case of Section 2.21 when a Defaulting Lender shall exist, any such Defaulting Lender’s Initial Term Commitments shall be disregarded in such calculation and, (iib) on and after the Closing Date but prior to the Amendment No. 1 Effective Date, a percentage equal to a fraction the numerator of which is the outstanding principal amount of such Lender’s Initial Term Loans and the denominator of which is the outstanding principal amount of the Initial Term Loans of all Lenders. and (c) on and after the Amendment No. 1 Effective Date, a percentage equal to a fraction the numerator of which is the outstanding principal amount of such Lender’s Initial Tranche A Term Loans and 2026 Refinancing Tranche B Term Loans and the denominator of which is the outstanding principal amount of the Initial Tranche A Term Loans and 2026 Refinancing Tranche B Term Loans of all Lenders.
“Applicable Percentage” means with respect to any Lender, (a) with respect to the Initial Tranche A Term Facility, (i) prior to the Closing Date, a percentage equal to a fraction the numerator of which is such Initial Tranche A Term Lender’s Initial Tranche A Term Commitment and the denominator of which is the aggregate Initial Tranche A Term Commitments of all Initial Tranche A Term Lenders (if the Initial Tranche A Term Commitments have been terminated or expired, the Applicable Percentages shall be determined based upon the Initial Tranche A Term Commitments most recently in effect, giving effect to any assignments); provided that in the case of Section 2.21 when a Defaulting Lender shall exist, any such Defaulting Lender’s Initial Tranche A Term Commitment shall be disregarded in such calculation and (ii) on and after the Closing Date, a percentage equal to a fraction the numerator of which is the outstanding principal amount of such Initial Tranche A Term Lender’s Initial Tranche A Term Loan and the denominator of which is the outstanding principal amount of the Initial Tranche A Term Loans of all Initial Tranche A Term Lenders and, (b) with respect to the Initial Tranche B Term Facility, (i) prior to the Closing Date, a percentage equal to a fraction the numerator of which is such Initial Tranche B Term Lender’s Initial Tranche B Term Commitment and the denominator of which is the aggregate Initial Tranche B Term Commitments of all Initial Tranche B Term Lenders (if the Initial Tranche B Term Commitments have been terminated or expired, the Applicable Percentages shall be determined based upon the Initial Tranche B Term Commitments most recently in effect, giving effect to any assignments); provided that in the case of Section 2.21 when a Defaulting Lender shall exist, any such Defaulting Lender’s Initial Tranche B Term Commitment shall be disregarded in such calculation and (ii) on and after the Closing Date but prior to the Amendment No. 1 Effective Date, a percentage equal to a fraction the numerator of which is the outstanding principal amount of such Initial Tranche B Term Lender’s Initial Tranche B Term Loan and the denominator of which is the outstanding principal amount of the Initial Tranche B Term Loans of all Initial Tranche B Term Lenders. and (c) on and after the Amendment No. 1 Effective Date, with respect to the 2026 Refinancing Tranche B Term Loans, a percentage equal to a fraction the numerator of which is the outstanding principal amount of such 2026 Refinancing Tranche B Term Lender’s 2026 Refinancing Tranche B Term Loans and the denominator of which is the outstanding principal amount of the 2026 Refinancing Tranche B Term Loans of all 2026 Refinancing Tranche B Term Lenders.
“Applicable Pledge Percentage” means (a) 100% except as otherwise described in clause (b), and (b) 65%, in the case of a pledge by the U.S. Borrower, the U.S. Co-Borrower or any Domestic Subsidiary (that is not an Excluded Subsidiary) of its voting Equity Interests in a Foreign Subsidiary (other than an Irish Subsidiary) treated as a CFC or a Domestic Foreign Holding Company.
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“Applicable Rate” means, for any day:
(a) with respect to the Initial2026 Refinancing Tranche B Term Loans, (i) with respect to any ABR Loan, 1.751.25% per annum and (ii) with respect to any Term Benchmark Loan or any RFR Loan, 2.752.25% per annum; and
(b) with respect to the Initial Tranche A Term Loans, with respect to any ABR Loan, any Term Benchmark Loan or any RFR Loan, the applicable rate per annum set forth below under the caption “ABR Spread”, “Term Benchmark Spread” or “RFR Spread”, as the case may be:
Secured Net Leverage Ratio |
ABR Spread |
Term Benchmark and RFR Spread |
Category 1 ≤ 1.75 to 1 |
1.500.75% |
2.501.75% |
Category 2 > 1.75 to 1 but ≤ 2.75 to 1 |
1.751.00% |
2.752.00% |
Category 3 > 2.75 to 1 |
2.001.25% |
3.002.25% |
For purposes of this clause (b):
If at any time the Administrative Agent reasonably determines that the financial statements upon which the Applicable Rate was determined were incorrect (whether based on a restatement, fraud or otherwise), the Borrowers shall be required to retroactively pay any additional amount that the Borrowers would have been required to pay if such Financials had been accurate at the time they were delivered; provided that (i) any such additional amount shall be due and payable within thirty (30) calendar days after written notice by the Administrative Agent to the U.S. Borrower (which notice shall include a reasonably detailed calculation of such additional amount) and (ii) non-payment of any such additional amount shall not constitute a Default or Event of Default (whether retroactively or otherwise), and no such amounts shall be deemed overdue (and no amounts shall accrue interest at the applicable default rate set forth in Section
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2.13(d)), at any time prior to the date that is thirty (30) calendar days after such written demand to the U.S. Borrower.
“Approved Electronic Platform” has the meaning assigned to such term in Section 8.03(a).
“Approved Fund” has the meaning assigned to such term in Section 9.04(b).
“Arrangers” means (a) with respect to the Initial Tranche A Term Facility and the Initial Tranche B Term Facility, JPMorgan Chase Bank, N.A. and BofA Securities, Inc., each in its capacity as a joint bookrunner and joint lead arranger hereunder, and (b) with respect to Amendment No. 1, the Amendment No. 1 Lead Arrangers.
“Arranger Fee Letter” means the amended and restated arranger fee letter, dated as of December 24, 2025, among the TopCo Borrower, the U.S. Borrower, the Arrangers and the Co-Documentation Agents (or certain of their Affiliates), as amended, restated, supplemented or otherwise modified from time to time.
“Asset Sale/Casualty Event Percentage” means 100%; provided that the Asset Sale/Casualty Event Percentage shall be reduced to (a) 50% if the Secured Net Leverage Ratio is less than or equal to 2.25:1.00 and (b) 0% if the Secured Net Leverage Ratio is less than or equal to 1.75:1.00.
“Asset Sale/Casualty Event Prepayment Event” has the meaning assigned to such term in the definition of Prepayment Event.
“Assignment and Assumption” means an assignment and assumption agreement entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form (including electronic records generated by the use of an electronic platform) approved by the Administrative Agent.
“Auction Manager” has the meaning assigned to such term in Section 2.25.
“Auction Notice” means an auction notice given by a Purchasing Borrower Party in accordance with the Auction Procedures with respect to an Auction Purchase Offer.
“Auction Procedures” means the auction procedures with respect to Auction Purchase Offers mutually agreed by the Borrowers and the Administrative Agent.
“Auction Purchase Offer” means an offer by a Purchasing Borrower Party to purchase Term Loans of one or more Facilities pursuant to modified Dutch auctions conducted in accordance with the Auction Procedures and otherwise in accordance with Section 2.25.
“Auction Purchase Response Date” means the date by which Term Lenders are required to respond to an Auction Purchase Offer, which shall be specified in the applicable Auction Notice. Such date shall be no later than 5:00 pm (New York City time) on the third Business Day after delivery of such Auction Notice to Term Lenders.
“Available Amount” means at any time, the excess if any, of:
(a) the sum (without duplication) of:
(i) the greater of (x) $63,150,000 and (y) 15% of Consolidated EBITDA for the most recently ended Test Period;
(ii) an amount equal to 50% of cumulative Consolidated Net Income starting with the first day of the first full fiscal quarter of the TopCo Borrower ended after the Closing Date;
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(iii) the Net Proceeds received (or deemed to be received) after the Closing Date and on or prior to such date from any issuance of Equity Interests (other than Disqualified Equity) by the TopCo Borrower (other than any such issuance to any Restricted Subsidiary of the TopCo Borrower);
(iv) the Net Proceeds of Indebtedness (including, for the avoidance of doubt, Disqualified Equity) of the TopCo Borrower, in each case incurred or issued after the Closing Date, which has been exchanged or converted into Equity Interests (other than Disqualified Equity);
(v) the Net Proceeds of Dispositions of Investments made using the Available Amount on or after the Closing Date;
(vi) returns, profits, distributions and similar amounts received (or deemed to be received) in cash or Cash Equivalents on Investments made using the Available Amount; and
(vii) the aggregate amount of Declined Proceeds (calculated from the Closing Date); minus
(b) the sum of all Investments made on or after the Closing Date and prior to such time in reliance on Section 6.05(cc), plus all Restricted Payments made on or after the Closing Date and prior to such time in reliance on Section 6.08(m), plus all Restricted Debt Payments made on or after the Closing Date and prior to such time in reliance on Section 6.10(a)(vii), in each case utilizing the Available Amount or portions thereof in effect on the date of any such Investment, Restricted Payment or Restricted Debt Payment.
“Available Restricted Debt Payments Amount” means, at any time, (i) the amount of Restricted Debt Payments that may be made at the time of determination pursuant to Section 6.10(a)(ii)(x), minus (ii) the amount of the Available Restricted Debt Payments Amount utilized by any Borrower or any Restricted Subsidiary to make Investments in reliance on Section 6.05(t).
“Available Restricted Payments Amount” means, at any time, (i) the amount of Restricted Payments that may be made at the time of determination in reliance on Section 6.08(e), minus (ii) the sum of (a) the amount of the Available Restricted Payments Amount utilized by any Borrower or any Restricted Subsidiary to make Investments in reliance on Section 6.05(t) and (b) the amount of the Available Restricted Payments Amount utilized by any Borrower or any Restricted Subsidiary to make Restricted Debt Payments in reliance on Section 6.10(a)(ii).
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for such Benchmark (or component thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof), as applicable, that is or may be used for determining the length of an Interest Period for any term rate or otherwise, for determining any frequency of making payments of interest calculated pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (e) of Section 2.14.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment
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firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Banking Services” means each and any of the following bank services provided to the TopCo Borrower or any Restricted Subsidiary by the Administrative Agent, any Lender or any of their respective Affiliates (or was a Lender or an Affiliate of a Lender at the time of providing such services): (a) credit cards for commercial customers (including, without limitation, commercial credit cards and purchasing cards), (b) stored value cards, (c) merchant processing services and (d) treasury management services (including, without limitation, controlled disbursement, automated clearinghouse transactions, return items, any direct debit scheme or arrangement, overdrafts and interstate depository network services).
“Banking Services Agreement” means any agreement entered into by the TopCo Borrower or any Restricted Subsidiary in connection with Banking Services.
“Banking Services Obligations” means any and all obligations of the TopCo Borrower or any Restricted Subsidiary, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) in connection with Banking Services.
“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”, as now and hereafter in effect, or any successor statute.
“Bankruptcy Event” means, with respect to any Person, such Person becomes the subject of a voluntary or involuntary bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, examiner, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment or has had any order for relief in such proceeding entered in respect thereof; provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, unless such ownership interest results in or provides such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permits such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.
“Benchmark” means, initially, with respect to any Term Benchmark Loan, the Term SOFR Rate; provided that if a Benchmark Transition Event, and the related Benchmark Replacement Date have occurred with respect to the Term SOFR Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) of Section 2.14.
“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:
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If the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrowers for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent reasonably decides (in consultation with the U.S. Borrower) may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent reasonably decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent reasonably determines (in consultation with the U.S. Borrower) that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent reasonably decides (in consultation with the U.S. Borrower) is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:
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For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means, with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark:
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.14 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.14.
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“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Borrowers” has the meaning assigned to such term in the introductory paragraph.
“Borrower-Related Person” has the meaning assigned to such term in Section 9.03(b).
“Borrowing” means a Loan of the same Type, made, converted or continued on the same date and, in the case of Term Benchmark Loans, as to which a single Interest Period is in effect.
“Borrowing Request” means a request by any Borrower for a Borrowing in accordance with Section 2.03, which shall be substantially in the form approved by the Administrative Agent and separately provided to the Borrowers.
“Business Day” means, any day (other than a Saturday or a Sunday) on which banks are open for business in New York City, Chicago and Ireland; provided that, in addition to the foregoing, a Business Day shall be any such day that is a U.S. Government Securities Business Day (a) in relation to any interest rate settings of any RFR Loan, or any other dealings of such RFR Loans and (b) in relation to Loans referencing the Term SOFR Rate and any interest rate settings, fundings, disbursements, settlements or payments of any such Loans referencing the Term SOFR Rate or any other dealings of such Loans referencing the Term SOFR Rate.
“Capital Expenditures” means, for any period, the aggregate of, without duplication, (a) all expenditures (whether paid in cash or accrued as liabilities) by the TopCo Borrower and its Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as additions during such period to property, plant or equipment (including replacements, capitalized repairs and improvements during such period) in a consolidated statement of cash flows and reflected in the consolidated balance sheet of the TopCo Borrower and its Restricted Subsidiaries, (b) Capital Lease Obligations incurred by the TopCo Borrower and its Restricted Subsidiaries during such period, (c) Capitalized Software Expenditures and (d) Capitalized Research and Development Costs.
“Capital Lease Obligations” of any Person means, subject to Section 1.04(a), the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases or financing leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
“Capitalized Research and Development Costs” means research and development costs that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of the TopCo Borrower and its Restricted Subsidiaries.
“Capitalized Software Expenditures” shall mean, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by the TopCo Borrower and its Restricted Subsidiaries during such period in respect of licensed or purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of the TopCo Borrower and its Restricted Subsidiaries.
“Cash Equivalents” means any of the following types of Investments, to the extent owned by the TopCo Borrower or any of its Restricted Subsidiaries:
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“Certain Funds Covenant” means any covenant of the Borrowers under any of Sections 5.08, 5.11 (other than clause (xi)), 6.01, 6.02, 6.03, 6.04 and 6.08, in each case, for the avoidance of doubt, not with respect to the Target or any subsidiary of the Target and excluding any procurement obligation with respect to the Target or any subsidiary of the Target.
“Certain Funds Event of Default” means any Event of Default with respect to either of the Borrowers under any of Sections 7.01(a), 7.01(b), 7.01(c) (insofar as it relates to a breach of any Certain Funds Representation), 7.01(d) (insofar as it relates to a breach of any Certain Funds Covenant), 7.01(e) (insofar as it relates to a breach of any Certain Funds Covenant), 7.01(h), 7.01(i) or 7.01(n); provided, however, that any Event of Default under (i) Section 7.01(d) or Section 7.01(e) arising as a result of a breach of Section 5.11(a)(iv), Section 5.11(a)(v), Section 5.11(b)(iii), Section 6.01, Section 6.02, Section 6.03 or Section 6.04 or (ii) Section 7.01(n)(i), shall be deemed not to constitute a Certain Funds Event of Default unless the event or circumstance giving rise to the relevant Event of Default or breach of the Certain Funds Covenant as the case may be is materially prejudicial to the interests of the Lenders under this Agreement taken as a whole in the context of the Transactions.
“Certain Funds Period” means the period from and including the date of this Agreement and ending on the date on which a Mandatory Cancellation Event occurs or exists; it being understood that the Certain Funds Period will end on such date but immediately after the relevant Mandatory Cancellation Event occurs or first exists.
“Certain Funds Purposes” means (a) where the Target Acquisition proceeds by way of a Scheme: (i) payment (directly or indirectly) of the cash consideration payable by the TopCo Borrower to the holders of the Target Shares in consideration of such Target Shares being acquired by the TopCo Borrower; (ii) payment (directly or indirectly) of the cash consideration payable to holders of options to acquire Target Shares or to other holders of equity awards in the Target pursuant to any proposal in respect of those options or other equity awards as required by the Takeover Rules; and (iii) payment (directly or indirectly) of the fees, costs and expenses in respect of the Transactions (including stamp duty); or (b) where the Target Acquisition proceeds by way of an Offer: (i) payment (directly or indirectly) of the cash consideration payable by the TopCo Borrower to the holders of the Target Shares subject to the Offer in consideration of the acquisition of such Target Shares pursuant to the Offer; (ii) payment (directly or indirectly) of the cash consideration payable to the holders of Target Shares pursuant to the exercise by the TopCo Borrower of the Squeeze-Out Rights; (iii) payment (directly or indirectly) of the cash consideration payable to holders of options to acquire Target Shares or to other holders of equity awards in the Target pursuant to any proposal in respect of those options or equity awards as required by the Takeover Rules; and (iv) payment (directly or indirectly) of the fees, costs and expenses in respect of the Transactions (including stamp duty).
“Certain Funds Representation” means any representation and/or warranty as it relates to the Borrowers only under any of Sections 3.01(a) (it being understood that failure to maintain any good standing status or similar status in any jurisdiction shall not constitute a breach of this provision), 3.02, 3.03(b) (with respect to (b)(ii) to the Knowledge of the Borrowers) and the last sentence of 3.18 in each case, for the avoidance of doubt, not with respect to the Target or any Subsidiary of the Target.
“CFC” means a “controlled foreign corporation” within the meaning of Section 957 of the Code.
“Change in Control” means (a) any “person” or “group” (within the meaning of Rule 13d-5 of the Securities Exchange Act of 1934 as in effect on the Closing Date, but excluding any employee benefit plan of such person and its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of such plan) shall become the “beneficial owner” (within the meaning of Rule 13d-3 and 13d-5 of the Securities Exchange Act of 1934 as in effect on the Closing Date), directly or indirectly, of more than 35% of the then outstanding voting securities having ordinary voting power of the
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TopCo Borrower; or (b) the failure of the TopCo Borrower, directly or indirectly through Wholly-Owned Subsidiary Guarantors, to own all of the Equity Interests in the U.S. Borrower and the U.S. Co-Borrower.
“Change in Law” means the occurrence after the date of this Agreement of (a) the adoption of or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) compliance by any Lender (or, for purposes of Section 2.15(b), by any lending office of such Lender or by such Lender’s holding company, if any) with any request, rule, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith or in the implementation thereof and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall, in each case, be deemed to be a “Change in Law,” regardless of the date enacted, adopted, issued or implemented.
“Charges” has the meaning assigned to such term in Section 9.16.
“Class” when used in reference to any Commitment, Loan or Borrowing, refers to whether such Commitment, Loan, or the Loans comprising such Borrowing, are (a) Initial Tranche A Term Loans or Initial Tranche A Term Commitments, (b) prior to the Amendment No. 1 Effective Date, Initial Tranche B Term Loans or Initial Tranche B Term Commitments, (c) on and after the Amendment No. 1 Effective Date, 2026 Refinancing Tranche B Term Loans or 2026 Refinancing Tranche B Term Loan Commitments, (d) Incremental Term Loans with the same terms and conditions or Incremental Commitments in respect thereof, (de) Extended Term Loans (of the same Extension Series), (ef) Refinancing Term Loans with the same terms and conditions or Refinancing Term Loan Commitments in respect thereof and (fg) Incremental Revolving Commitments with the same terms and conditions or Incremental Revolving Loans made pursuant thereto.
“Closing Date” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02).
“CME Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR) (or a successor administrator).
“Code” means the Internal Revenue Code of 1986, as amended.
“Co-Documentation Agent” means with respect to the Initial Tranche A Term Facility and the Initial Tranche B Term Facility, each of PNC Capital Markets LLC, DNB Carnegie, Inc., U.S. Bank National Association, Fifth Third Bank, National Association, Capital One, National Association, Citizens Bank, N.A. and Truist Bank, in its capacity as a co-documentation agent hereunder.
“Collaboration Agreements” means research or development agreements (including co-development), sponsored research agreements, material transfer agreements, licensing agreements (including royalty agreements), collaboration agreements (including joint ventures) and option agreements, in each case relating to uncommercialized product candidates and entered into with a third party.
“Collateral” means any and all property owned, leased or operated by a Person covered by the Collateral Documents and any and all other property of any Loan Party, now existing or hereafter acquired, that may at any time be or become subject to a security interest or Lien in favor of the Administrative Agent,
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on behalf of itself and the Secured Parties, pursuant to the Collateral Documents to secure the Secured Obligations; provided that the Collateral shall exclude Excluded Assets.
“Collateral Documents” means, collectively, the U.S. Security Agreement, the Irish Collateral Documents, the Mortgages, if any, the Intellectual Property Security Agreements and all other agreements, instruments and documents executed in connection with this Agreement that are intended to create, perfect or evidence Liens to secure the Secured Obligations, including, without limitation, all other security agreements, pledge agreements, mortgages, deeds of trust, pledges, assignments or similar agreements, whether heretofore, now, or hereafter executed by any Borrower or any other Loan Party and delivered to the Administrative Agent to secure the Secured Obligations.
“Commitment” means, (a) with respect to any Lender, the Initial Tranche A Term Commitment of such Lender and, the Initial Tranche B Term Commitment of such Lender and the 2026 Refinancing Tranche B Term Loan Commitment of such Lender and (b) as to all Lenders, the aggregate Commitments of all Lenders to make Loans.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Communications” means, collectively, any Borrowing Request, Interest Election Request, notice of prepayment, notice, demand, communication, information, document or other material provided by or on behalf of any Loan Party pursuant to any Loan Document or the transactions contemplated therein which is distributed by the Administrative Agent or any Lender by means of electronic communications pursuant to Section 8.03, including through an Approved Electronic Platform.
“Companies Act” means the Companies Act 2014 of Ireland as amended.
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated Cash Interest Expense” means with reference to any period, the cash interest expense (including cash rent or cash interest expense under Capital Lease Obligations that is treated as interest in accordance with GAAP) of the TopCo Borrower and its Restricted Subsidiaries calculated on a consolidated basis for such period with respect to all outstanding Indebtedness of the TopCo Borrower and its Restricted Subsidiaries allocable to such period in accordance with GAAP (including, without limitation, all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net costs under interest rate Swap Agreements to the extent such net costs are allocable to such period in accordance with GAAP), net of any cash interest income, and excluding the amortization of debt issuance costs and any interest expense actually “paid in kind” or accreted during such period. In the event that the TopCo Borrower or any Restricted Subsidiary shall have completed a Material Acquisition or a Material Disposition since the beginning of the relevant period, Consolidated Cash Interest Expense shall be determined for such period on a pro forma basis as if such acquisition or disposition, and any related incurrence or repayment of Indebtedness, had occurred at the beginning of such period.
“Consolidated EBITDA” means, with reference to any period, Consolidated Net Income for such period plus,
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minus,
For the purposes of calculating Consolidated EBITDA for any period of four consecutive fiscal quarters (each such period, a “Reference Period”), (i) if at any time during such Reference Period the TopCo Borrower or any Restricted Subsidiary shall have made any Material Disposition or any Restricted Subsidiary is designated as an Unrestricted Subsidiary pursuant to Section 5.13, the Consolidated EBITDA for such Reference Period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to (x) any Person (other than an Unrestricted Subsidiary) or other property that is the subject of such Material Disposition or (y) such newly designated Unrestricted Subsidiary, in each case, for such Reference Period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such Reference Period, and (ii) if during such Reference Period (x) the TopCo Borrower or any Restricted Subsidiary shall have made a Material Acquisition or (y) any Unrestricted Subsidiary is designated a Restricted Subsidiary pursuant to Section 5.13, in each case, Consolidated EBITDA for such Reference Period shall be calculated after giving effect thereto on a pro forma basis as if such Material Acquisition or designation occurred on the first day of such Reference Period. As used in this definition, “Material Acquisition” means any Acquisition that involves payments (including contemporaneous payments and payments expected to be made at a later date (including in future fiscal quarters) in the reasonable judgment of the U.S. Borrower) of consideration by the TopCo Borrower and its Restricted Subsidiaries in excess of an aggregate amount of $50,000,000; and “Material Disposition” means any sale, transfer or disposition of property or series of related sales, transfers, or dispositions of property that involves gross proceeds (including contemporaneous gross proceeds and gross proceeds expected to be received at a later date (including in future fiscal quarters) in the reasonable judgment of the U.S. Borrower) to the TopCo Borrower or any Restricted Subsidiaries in excess of an aggregate amount of $50,000,000.
“Consolidated Interest Coverage Ratio” means the ratio, determined as of the last day of the then most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section
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5.01(a) or 5.01(b) of (a) Consolidated EBITDA for the most recently ended four fiscal quarter period to (b) Consolidated Cash Interest Expense, all calculated for the period of four consecutive fiscal quarters ending with the end of such fiscal quarter and all calculated for the TopCo Borrower and its Restricted Subsidiaries on a consolidated basis.
“Consolidated Net Income” means, with reference to any period, the net income (or loss) of the TopCo Borrower and its Restricted Subsidiaries calculated in accordance with GAAP on a consolidated basis (without duplication) for such period; provided that there shall be excluded any income (or loss) of any Person (including for avoidance of doubt, any Unrestricted Subsidiary) other than the TopCo Borrower or a Restricted Subsidiary, but any such income so excluded may be included in such period or any later period to the extent of any cash dividends or distributions actually paid in the relevant period (including for avoidance of doubt, by any Unrestricted Subsidiary) to the TopCo Borrower or any Restricted Subsidiary thereof.
“Consolidated Secured Net Indebtedness” means, at any time of determination, Consolidated Total Net Indebtedness at such time that is secured by any asset of the TopCo Borrower or any of its Restricted Subsidiaries.
“Consolidated Total Assets” means, as of the date of any determination thereof, total assets of the TopCo Borrower and its Restricted Subsidiaries calculated in accordance with GAAP on a consolidated basis as of such date.
“Consolidated Total Indebtedness” means, as of the date of any determination thereof, the sum, without duplication, of the (a) the aggregate Indebtedness of the type that are described in clauses (a), (b) and (h) (other than obligations under any automobile leases) of the definition of “Indebtedness” of the TopCo Borrower and its Restricted Subsidiaries, calculated on a consolidated basis as of such date in accordance with GAAP, (b) the aggregate amount of Indebtedness of the TopCo Borrower and its Restricted Subsidiaries relating to letters of credit (but only to the extent drawn and not reimbursed or cash collateralized), (c) purchase money Indebtedness of the TopCo Borrower and its Restricted Subsidiaries, calculated on a consolidated basis as of such date in accordance with GAAP and (d) Indebtedness of the type referred to in clauses (a), (b) or (c) hereof of another Person guaranteed by the TopCo Borrower or any of its Restricted Subsidiaries up to the specified amount for which repayment is guaranteed, if any.
“Consolidated Total Net Indebtedness” means, at any time of determination, the excess, if any, of (i) Consolidated Total Indebtedness over (ii) the lesser of (x) the amount of unrestricted cash and Cash Equivalents of the TopCo Borrower and its Restricted Subsidiaries and (y) $500,000,000, in each case of (i) and (ii), as of such time.
“Contract Consideration” has the meaning assigned to such term in the definition of Excess Cash Flow.
“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any enforceable agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. The terms “Controlling” and “Controlled” have meanings correlative thereto.
“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
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“Court” means the High Court of Ireland.
“Court Meeting” means the meeting or meetings of Target Shareholders (including any adjournment thereof) convened or to be convened at the direction of the Court for the purposes of considering and, if thought fit, approving the Scheme.
“Court Order” means the order of the Court sanctioning the Scheme under Section 453 of the Companies Act.
“Covenant Holiday Transaction” means a Permitted Acquisition or other similar Investment is consummated or a Collaboration Agreement is entered into in respect of which (a) the TopCo Borrower or any Restricted Subsidiary incurs Indebtedness of $150,000,000 or more and (b) the U.S. Borrower delivers to the Administrative Agent a certificate of a Responsible Officer designating such Permitted Acquisition, other similar Investment or Collaboration Agreement as a “Covenant Holiday Transaction”; provided that in no event shall there be more than two Covenant Holiday Transactions.
“Covenant Holiday Period” means the period of four consecutive fiscal quarters commencing on the first day of the fiscal quarter in which the consummation of a Covenant Holiday Transaction occurs; provided that, if applicable, the two Covenant Holiday Periods shall be separated by a period of at least two full fiscal quarters during which no Covenant Holiday Period is in effect.
“Covenant Suspension Period” means the period commencing with the occurrence of a Covenant Suspension Period Event and ending on the Reinstatement Date.
“Covenant Suspension Period Event” means the corporate credit and/or corporate family ratings of the TopCo Borrower are higher than or equal to BBB- from S&P and Baa3 from Moody’s (in each case, with a stable or positive outlook); provided that no Default or Event of Default has occurred and is continuing.
“Covered Entity” means any of the following:
“Covered Party” has the meaning assigned to such term in Section 9.19.
“CVRs” means any contingent value rights or like instruments issued in connection with the Transactions in accordance with the Acquisition Agreement.
“Credit Exposure” means, as to any Lender at any time, an amount equal to the aggregate principal amount of such Lender’s Loans outstanding at such time.
“Credit Party” means the Administrative Agent or any Lender.
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“Current Assets” means at any date, all amounts (other than cash and Cash Equivalents) that would, in conformity with GAAP, be reflected in “total current assets” (or any like caption) on a consolidated balance sheet of the TopCo Borrower and its Restricted Subsidiaries at such date.
“Current Liabilities” means at any date, all amounts that would, in conformity with GAAP, be reflected in “total current liabilities” (or any like caption) on a consolidated balance sheet of the TopCo Borrower and its Restricted Subsidiaries at such date, but excluding the current portion of any Consolidated Total Indebtedness of the TopCo Borrower and its Restricted Subsidiaries.
“Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal SOFR for the day (such day “SOFR Determination Date”) that is five U.S. Government Securities Business Day prior to (i) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to any Borrower. If by 5:00 p.m. (New York City time) on the second (2nd) U.S. Government Securities Business Day immediately following any SOFR Determination Date, SOFR in respect of such SOFR Determination Date has not been published on the SOFR Administrator’s Website and a Benchmark Replacement Date with respect to the Daily Simple SOFR has not occurred, then SOFR for such SOFR Determination Date will be SOFR as published in respect of the first preceding U.S. Government Securities Business Day for which such SOFR was published on the SOFR Administrator’s Website; provided that if Daily Simple SOFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“DEA” means the Drug Enforcement Administration of the United States of America, and any successor agency thereof.
“Declined Proceeds” has the meaning assigned to such term in Section 2.11(d).
“Default” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Defaulting Lender” means any Lender that (a) has failed, within two (2) Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) [reserved] or (iii) pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified any Loan Party or any Credit Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a Loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after request by a Credit Party, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations as of the date of certification) to fund prospective Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit Party’s receipt of such certification in form and substance satisfactory to it and the Administrative Agent,
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or (d) has become the subject of (i) a Bankruptcy Event or (ii) a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.
“Designated Non-Cash Consideration” means the fair market value (as determined by the U.S. Borrower in good faith) of non-cash consideration received by the Loan Parties and their Restricted Subsidiaries in connection with a Disposition pursuant to Section 6.04(j) that is designated as Designated Non-Cash Consideration by the U.S. Borrower.
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (in one transaction or in a series of transactions and whether effected pursuant to a division or otherwise) of any property by any Person (including any Sale and Leaseback Transaction and any issuance of Equity Interests by a Restricted Subsidiary of such Person), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
“Disqualified Equity” means any Equity Interest which, by its terms (or by the terms of any security or other Equity Interest into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable (other than solely for Equity Interest that is not Disqualified Equity and/or cash in lieu of fractional shares), pursuant to a sinking fund obligation or otherwise (except as a result of a change in control or asset sale so long as any right of the holders thereof upon the occurrence of a change in control or asset sale event shall be subject to the occurrence of the repayment in full of all the Loans and all other Obligations that are accrued and payable and the termination or expiration of the Commitments), (b) is redeemable at the option of the holder thereof (other than solely for Equity Interests that are not Disqualified Equity and/or cash in lieu of fractional shares), in whole or in part (except as a result of a change in control or asset sale so long as any right of the holders thereof upon the occurrence of a change in control or asset sale event shall be subject to the occurrence of the repayment in full of all the Loans and all other Obligations that are accrued and payable and the termination or expiration of the Commitments), (c) requires the payment of any cash dividend or any other scheduled cash payment constituting a return of capital (other than the payment of cash in lieu of redemption of fractional shares) or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity (except as a result of a change in control or asset sale so long as any right of the holders thereof upon the occurrence of a change in control or asset sale event shall be subject to the occurrence of the repayment in full of all the Loans and all other Obligations that are accrued and payable, and the termination or expiration of the Commitments), in the case of each of clauses (a) through (d), prior to the date that is ninety-one (91) days after the Maturity Date; provided that if such Equity Interests are issued to any plan for the benefit of employees of the TopCo Borrower or its Restricted Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity solely because they may be required to be repurchased by the TopCo Borrower or any Restricted Subsidiary thereof in order to satisfy applicable statutory or regulatory obligations.
“Disqualified Institution” means (a) Persons that are specifically identified by the U.S. Borrower to the Administrative Agent in writing prior to the Closing Date, (b) any Person that is reasonably determined by the U.S. Borrower after the Closing Date to be a competitor of any Borrower or its Restricted Subsidiaries and which is specifically identified in a written supplement to the list of “Disqualified Institutions”, which supplement shall become effective three Business Days after delivery thereof to the Administrative Agent and the Lenders at [****] (the “Notice Address”), (c) subject to the consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned) any Person
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specifically identified in a written supplement to the list of “Disqualified Institutions”, which supplement shall become effective three Business Days after the later of (i) delivery thereof to the Administrative Agent at the Notice Address and (ii) the Administrative Agent’s consent and (d) in the case of the foregoing clauses (a), (b) and (c), any of such entities’ Affiliates to the extent such Affiliates (x) are clearly identifiable as Affiliates of such Persons based solely on the similarity of such Affiliates’ and such Persons’ names and (y) are not bona fide debt investment funds. It is understood and agreed that (i) any supplement to the list of Persons that are Disqualified Institutions contemplated by the foregoing clause (b) shall not apply retroactively to disqualify any Persons that have previously acquired an assignment or participation interest in the Loans or Commitments (but solely with respect to such Loans or Commitments, as applicable), (ii) the Administrative Agent shall have no responsibility or liability to determine or monitor whether any Lender or potential Lender is a Disqualified Institution, (iii) the U.S. Borrower’s failure to deliver such list (or supplement thereto) to the Administrative Agent at the Notice Address shall render such list (or supplement) not received and not effective and (iv) “Disqualified Institution” shall exclude any Person the U.S. Borrower has designated as no longer being a “Disqualified Institution” by written notice delivered to the Administrative Agent from time to time at the Notice Address.
“Dollars” or “$” refers to lawful money of the United States of America.
“Domestic Foreign Holding Company” means any Domestic Subsidiary that owns no material assets (directly or through one or more disregarded entities) other than capital stock (including any debt instrument treated as equity for U.S. federal income tax purposes) of (a) one or more Foreign Subsidiaries (other than any Irish Subsidiaries) that are CFCs or (b) one or more other Domestic Foreign Holding Companies.
“Domestic Loan Party” means a Loan Party organized under the laws of a jurisdiction located in the United States of America.
“Domestic Subsidiary” means a Restricted Subsidiary organized under the laws of a jurisdiction located in the United States of America.
“DQ List” has the meaning assigned to such term in Section 9.04(e)(iv).
“ECF Percentage” means 50%; provided that the ECF Percentage shall be reduced to (a) 25% if the Secured Net Leverage Ratio as of the last day of the relevant fiscal year is less than or equal to 2.00:1.00 and (b) 0% if the Secured Net Leverage Ratio as of the last day of the relevant fiscal year is less than or equal to 1.50:1.00, in each case, of the TopCo Borrower and its Restricted Subsidiaries.
“ECF Prepayment Amount” has the meaning assigned to such term in Section 2.11(c)(ii).
“ECP” means an “eligible contract participant” as defined in Section 1(a)(18) of the Commodity Exchange Act or any regulations promulgated thereunder and the applicable rules issued by the Commodity Futures Trading Commission and/or the SEC.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
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“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Yield” means, as to any Indebtedness, the effective yield applicable thereto calculated by the Administrative Agent in consultation with the U.S. Borrower in a manner consistent with generally accepted financial practices, taking into account (a) interest rate margins, (b) interest rate floors, (c) any amendment to the relevant interest rate margins and interest rate floors prior to the applicable date of determination and (d) original issue discount and upfront or similar fees (based on assumed four-year average life to maturity or lesser remaining average life to maturity), but excluding any advisory, arrangement, commitment, consent, structuring, success, underwriting, ticking, unused line fees, amendment fees and/or any similar fees payable in connection therewith that are not generally shared with the relevant lenders.
“Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.
“Environmental Laws” means all laws, regulations, orders and similar legally binding requirements of any relevant Governmental Authority relating to pollution or protection of the environment or natural resources, the management, release or threatened release of any Hazardous Material or to the protection of human health and safety from the presence of Hazardous Materials; provided that, Environmental Laws do not include any Healthcare Laws.
“Environmental Liability” means any Liability resulting from (a) any violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the indoor or outdoor environment or (e) any contract pursuant to which Liability is assumed or imposed with respect to any of the foregoing.
“Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other similar rights entitling the holder thereof to purchase or acquire any such equity interest, but excluding any debt securities convertible (including Permitted Convertible Debt) into any of the foregoing.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with any Loan Party, is treated as a single employer under Section 414(b) or (c) of the Code or Section 4001(14) of ERISA or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Sections 414(m) and (o) of the Code.
“ERISA Event” means (a) any “reportable event,” as defined in Section 4043 of ERISA with respect to a Plan (other than an event for which the 30 day notice period is waived); (b) the failure to satisfy the “minimum funding standard” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived, with respect to any Plan; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by any Loan Party or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by any Loan Party or any ERISA Affiliate from the
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PBGC or a Plan administrator of any notice indicating an intention to terminate any Plan or to appoint a trustee to administer any Plan; (f) the incurrence by any Loan Party or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal of any Loan Party or any ERISA Affiliate from any Plan or Multiemployer Plan; or (g) the receipt by any Loan Party or any ERISA Affiliate from a Multiemployer Plan of any notice, or the receipt by any Multiemployer Plan from any Loan Party or any ERISA Affiliate of any notice, concerning the imposition upon any Loan Party or any ERISA Affiliate of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent, within the meaning of Section 4245 of ERISA.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“Events of Default” has the meaning assigned to such term in Section 7.01.
“Excess Cash Flow” means for any Excess Cash Flow Period of the TopCo Borrower, calculated on a consolidated basis with respect to the TopCo Borrower and its Restricted Subsidiaries, the excess, if any, of:
(a) the sum, without duplication, of (i) Consolidated Net Income for such fiscal year, (ii) the amount of all non-cash charges (including depreciation and amortization) deducted in arriving at such Consolidated Net Income, (iii) decreases in Working Capital for such fiscal year (other than any such decreases arising from acquisitions or dispositions, in each case, outside the ordinary course of business by the TopCo Borrower and its Restricted Subsidiaries), (iv) the aggregate net amount of non-cash loss on the Disposition of property by the TopCo Borrower and its Restricted Subsidiaries during such fiscal year (other than Dispositions in the ordinary course of business), to the extent deducted in arriving at such Consolidated Net Income, (v) cash gains in respect of Swap Agreements during such period to the extent not included in arriving at Consolidated Net Income and (vi) non-cash expense related to pension and other post-employment benefits to the extent deducted in arriving at Consolidated Net Income, over
(b) the sum, without duplication, of
(i) the amount of all non-cash income included in arriving at such Consolidated Net Income,
(ii) [reserved],
(iii) the aggregate amount of all voluntary prepayments of Indebtedness (excluding any Loans, Pari Passu Indebtedness and prepayments in respect of any revolving credit facility to the extent not accompanied by a permanent reduction in commitments thereunder) of the TopCo Borrower and its Restricted Subsidiaries made during such fiscal year (excluding prepayments made with the proceeds of long-term Indebtedness (other than extensions of credit under any revolving credit or similar facility)) and the aggregate amount of purchases by a Purchasing Borrower Party of Indebtedness (excluding any Loans, Pari Passu Indebtedness and prepayments in respect of any revolving credit facility to the extent not accompanied by a permanent reduction in commitments thereunder) of the TopCo Borrower and its Restricted Subsidiaries pursuant to a Dutch auction or open market purchases (including, without limitation, non-pro rata and privately negotiated purchases) during such fiscal year (in each case, (x) determined by the cash consideration in respect of the Indebtedness purchased by such Purchasing Borrower Party and (y) excluding purchases made with the proceeds of long-term Indebtedness (other than extensions of credit under any revolving credit or similar facility)),
(iv) the aggregate amount of all regularly scheduled principal payments of Indebtedness of the TopCo Borrower and its Restricted Subsidiaries made during such fiscal year (including the Term Loans)
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(excluding (i) repayments in respect of any revolving credit facility to the extent not accompanied by a permanent reduction in commitments thereunder and (ii) repayments made with the proceeds of long-term Indebtedness (other than extensions of credit under any revolving credit or similar facility)),
(v) increases in Working Capital for such fiscal year (other than any such increases arising from acquisitions or dispositions, in each case, outside the ordinary course of business by the TopCo Borrower and its Restricted Subsidiaries),
(vi) the aggregate net amount of non-cash gain on the Disposition of property by the TopCo Borrower and its Restricted Subsidiaries during such fiscal year (other than Dispositions in the ordinary course of business), to the extent included in arriving at such Consolidated Net Income,
(vii) to the extent not otherwise deducted from Consolidated Net Income, Taxes paid in cash during such fiscal year,
(viii) to the extent not otherwise deducted from Consolidated Net Income, interest expense and any cash payments in respect of premium, make-whole or penalty payments in respect of Indebtedness of the TopCo Borrower and its Restricted Subsidiaries for such year,
(ix) [reserved],
(x) to the extent not otherwise deducted from Consolidated Net Income, cash charges,
(xi) without duplication of amounts deducted from Excess Cash Flow in prior periods and, at the option of the U.S. Borrower, the aggregate cash consideration (x) required to be paid by the TopCo Borrower and its Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such period relating to Permitted Acquisitions or other Investments anticipated to be consummated that are permitted pursuant to Section 6.05 (other than any intercompany investments) and (y) expected to be paid in connection with planned Capital Expenditures of the TopCo Borrower and its Restricted Subsidiaries (the “Planned Expenditures”), in each case during the period of four consecutive fiscal quarters of the TopCo Borrower following the end of the applicable fiscal year for which Excess Cash Flow is being calculated (except to the extent financed with the proceeds of long-term Indebtedness (other than any extensions of credit under any revolving credit or similar facility)); provided that to the extent the aggregate amount of cash actually utilized to finance such Permitted Acquisitions, Investments or Capital Expenditures during such period of four consecutive fiscal quarters is less than the Contract Consideration and the Planned Expenditures, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such period of four consecutive fiscal quarters,
(xii) cash expenditures in respect of Swap Obligations during such period to the extent not deducted in arriving at such Consolidated Net Income,
(xiii) any payment of cash to be amortized or expensed over a future period and recorded as a long-term asset (so long as any such amortization or expense in such future period is added back to Excess Cash Flow in such future period) (excluding the principal amount of long-term Indebtedness (other than any extensions of credit under any revolving credit or similar facility) incurred in connection with such payment),
(xiv) cash payments in respect of long-term liabilities (other than Indebtedness) of the TopCo Borrower and its Restricted Subsidiaries, including cash pension and other post-employment contributions or payments to the extent not deducted in arriving at such Consolidated Net Income, and
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(xv) the amount of Restricted Payments paid in cash during such period by the TopCo Borrower (except to the extent financed with the proceeds of long-term Indebtedness (other than extensions of credit under any revolving credit or similar facility).
“Excess Cash Flow Period” means each fiscal year of the TopCo Borrower, commencing with the first full fiscal year ending after the Closing Date.
“Excess Cash Flow Application Date” has the meaning assigned to such term in Section 2.11(c)(ii).
“Excluded Accounts” shall mean “Excluded Accounts” as defined in the U.S. Security Agreement.
“Excluded Assets” means: (1) any Excluded Real Property and all leasehold interests in real property, (2) any “intent-to-use” application for registration of a trademark filed in the United States Patent and Trademark Office pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051 (the “Lanham Act”), prior to the filing and acceptance of a “Statement of Use” and issuance of a “Certificate of Registration” pursuant to Section 1(d) of the Lanham Act or the accepted filing of an “Amendment to Allege Use” whereby such intent-to-use trademark application is converted to a “use in commerce” application pursuant to Section 1(c) of the Lanham Act, in each case, solely to the extent, if any, that and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of any registration that issues from such “intent-to-use” application under applicable federal law, (3) assets in respect of which pledges and security interests (x) are prohibited or restricted by any law or regulation or any contractual obligation (including any requirement to obtain the consent of any third party) (other than consent from the TopCo Borrower or any Subsidiary), in each case other than to the extent that such prohibition would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408, 9-409 or other applicable provisions of the UCC of any relevant jurisdiction or any other applicable law; provided that, immediately upon the ineffectiveness, lapse or termination of any such prohibitions or restrictions, such assets shall automatically cease to constitute Excluded Assets or (y) would require a governmental (including regulatory) consent, approval, license or authorization in order to provide the lien that is required on the Closing Date or at the time the relevant Subsidiary Guarantor becomes a Subsidiary Guarantor, (4) Equity Interests in any entity other than Wholly-Owned Subsidiaries to the extent pledges thereof are not permitted by such entity’s organizational or joint venture documents or any contractual obligation of such Person, to the extent such contractual obligation is permitted under the Loan Documents (unless any such restriction would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408, 9-409 or other applicable provisions of the UCC of any relevant jurisdiction or any other applicable law), (5) assets subject to certificates of title, (6) letter of credit rights (other than to the extent representing Supporting Obligations) with an individual value of less than $15,000,000, (7) commercial tort claims with an individual value of less than $15,000,000, (8) any lease, license or other agreement or any property subject thereto or subject to a purchase money security interest or similar arrangement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or purchase money arrangement or create a right of termination in favor of any other party thereto, other than in favor of any Borrower or any Subsidiary Guarantor (other than (x) proceeds and receivables thereof, the assignment of which is expressly deemed effective under the UCC notwithstanding such prohibition, (y) to the extent that any such term has been waived or (z) to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408, 9-409 or other applicable provisions of the UCC of any relevant jurisdiction or any other applicable law) or any asset subject to Liens securing permitted acquired Indebtedness (limited to the acquired assets and to the extent a grant of a security interest therein is prohibited thereby or otherwise requires a consent); provided that, immediately upon the ineffectiveness, lapse or termination of any such term, such assets in this clause 8 shall automatically cease to constitute Excluded Assets, (9) Excluded Accounts, (10) foreign assets (other than (a) Equity Interests in Material Foreign Subsidiaries not in excess of the Applicable Pledge Percentage, (b) Equity Interests in Irish Subsidiaries (other than Excluded Subsidiaries) and (c) other assets owned by Irish Subsidiaries), (11) Equity Interests in Domestic Foreign Holding Companies and First Tier Foreign Subsidiaries (other than Irish Subsidiaries) that are CFCs, in
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each case, in excess of the Applicable Pledge Percentage; (12) accounts receivable and related assets transferred, pledged, factored, sold or purportedly transferred pursuant to, and in accordance with, a permitted receivables financing and any deposit account that is used to hold collections on any of such accounts receivable and related assets; (13) Equity Interests in any Subsidiary that is a captive insurance company, not-for-profit subsidiary, special purpose entity or any Subsidiary acquired pursuant to a permitted Acquisition whose pledge is restricted pursuant to permitted assumed Indebtedness with respect thereto; (14) Margin Stock; (15) any assets to the extent a security interest in such asset would result in material adverse tax consequences to the TopCo Borrower or its direct or indirect Subsidiaries as reasonably determined by the U.S. Borrower in consultation with the Administrative Agent, (16) Equity Interests in Unrestricted Subsidiaries and (17) those assets as to which the Administrative Agent and the U.S. Borrower reasonably agree that the cost, burden, difficulty or consequence of obtaining such a security interest or perfection thereof outweighs, or are excessive in relation to, the practical benefit to the Lenders of the security to be afforded thereby. Notwithstanding the foregoing, Excluded Assets shall not include any proceeds, products, substitutions or replacements of Excluded Assets (unless such proceeds, products, substitutions or replacements would otherwise constitute Excluded Assets).
“Excluded Real Property”: means (a) any owned real property having a fair market value of $25,000,000 or less, as determined in good faith by the U.S. Borrower as of the Closing Date or otherwise at the time of acquisition thereof, (b) any real property located outside of the United States and (c) any leasehold rights and interests in real property.
“Excluded Subsidiary” means (a) any Domestic Foreign Holding Company, (b) any Domestic Subsidiary that is a direct or indirect Subsidiary of a Domestic Foreign Holding Company or a CFC (other than any CFC that is an Irish Subsidiary), (c) any Subsidiary (i) that is prohibited or restricted from Guaranteeing the Secured Obligations by (A) any law or regulation or (B) any contractual obligation (including any requirement to obtain the consent of any third party (other than consent from the TopCo Borrower or any Subsidiary)) that, in the case of this clause (B), exists on the Closing Date or at the time such Subsidiary becomes a Subsidiary and was not incurred in contemplation of its becoming a Subsidiary (including pursuant to assumed Indebtedness, so long as such Indebtedness is permitted to be assumed under this Agreement); provided that the Borrowers shall use reasonable endeavors to overcome such prohibition or restriction, (ii) that would require a governmental (including regulatory) consent, approval, license or authorization in order to provide a Guarantee of the Secured Obligations that is required on the Closing Date or at the time such Subsidiary becomes a Subsidiary or (iii) for which the provision of a Guarantee by such Subsidiary of the Secured Obligations would result in adverse tax consequences to the TopCo Borrower or its direct or indirect Subsidiaries as determined in good faith by the U.S. Borrower in consultation with the Administrative Agent, (d) any Subsidiary that is a captive insurance company, a not-for-profit subsidiary or special purpose entity, (e) any Subsidiary that is not a direct or indirect wholly-owned Subsidiary of the TopCo Borrower, (f) any Foreign Subsidiary other than any Irish Subsidiary, (g) any Unrestricted Subsidiary and (h) those Restricted Subsidiaries as to which the Administrative Agent and the U.S. Borrower reasonably agree that the cost, burden, difficulty or consequence of obtaining a Guarantee of the Secured Obligations from such Subsidiary outweighs, or are excessive in relation to, the practical benefit to the Lenders of the Guarantee to be afforded thereby. For the avoidance of doubt and notwithstanding anything to the contrary set forth herein or in any other Loan Document, in no event shall the U.S. Borrower be an Excluded Subsidiary.
“Excluded Swap Obligation” means, with respect to any Loan Party, any Specified Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Specified Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason to constitute an ECP at the time the Guarantee of such Loan Party or
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the grant of such security interest becomes or would become effective with respect to such Specified Swap Obligation. If a Specified Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Specified Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrowers under Section 2.19(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.17, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest in a Loan or Commitment or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.17(f), (d) any withholding Taxes imposed under FATCA and (e) in respect of payments made in respect of the Initial Tranche A Term Facility, any Incremental Term A Loan or any other term “A” Term Loan hereunder, Taxes imposed by Ireland if, (i) on the date on which the payment falls due, the payment could have been made to the relevant Lender without a deduction or withholding on account of Tax if the Lender had been an Irish Qualifying Lender, but on that date that Lender is not or has ceased to be an Irish Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Irish Treaty or any published practice or published concession of any relevant taxing authority; or (ii) the relevant Lender is an Irish Treaty Lender and the Borrower making the payment is able to demonstrate that the payment could have been made to the Lender without deduction or withholding on account of Tax had that Lender complied with its obligations under Section 2.17(f)(iii) below.
“Exclusive License” means any license to develop and commercialize a drug or other product line of any Person with a term greater than 10 years and made on an exclusive basis.
“Existing Term Loans” has the meaning assigned to such term in Section 2.23(a).
“Existing Term Tranche” has the meaning assigned to such term in Section 2.23(a).
“Existing Tranche B Term Loans” means all of the outstanding Initial Tranche B Term Loans in effect immediately prior to the Amendment No. 1 Effective Date.
“Extended Term Loans” has the meaning assigned to such term in Section 2.23(a).
“Extended Term Tranche” has the meaning assigned to such term in Section 2.23(a).
“Extending Lender” has the meaning assigned to such term in Section 2.23(c).
“Extension Amendment” has the meaning assigned to such term in Section 2.23(d).
“Extension Election” has the meaning assigned to such term in Section 2.23(c).
“Extension Request” has the meaning assigned to such term in Section 2.23(a).
“Extension Series” has the meaning assigned to such term in Section 2.23(a).
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“Facility” means (a) the Initial Tranche A Term Facility, (b) prior to the Amendment No. 1 Effective Date, the Initial Tranche B Term Facility or, (c) on and after the Amendment No. 1 Effective Date, the 2026 Refinancing Tranche B Term Facility or (d) any other given Class of Loans or Incremental Commitments, as the context may require.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
“FCA” means the U.K. Financial Conduct Authority.
“FDA” has the meaning assigned to such term in Section 3.07(b)(i).
“Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as shall be set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as the effective federal funds rate; provided that, if the Federal Funds Effective Rate as so determined would be less than 0.00%, such rate shall be deemed to be 0.00% for the purposes of this Agreement.
“Federal Health Care Program” means any “federal health care program” as defined in 42 U.S.C. §1320a-7b(f), as amended from time to time, including Medicare, managed Medicare, state Medicaid programs, managed Medicaid, state Medicaid waiver programs, state CHIP programs, TRICARE, “state health care programs” as defined in 42 U.S.C. §1320a-7(h), and similar federal, state or local health care programs or successor programs funded in whole or in part by, or for the benefit of, any Governmental Authority.
“Federal Reserve Board” means the Board of Governors of the Federal Reserve System of the United States of America.
“Fee Letters” means the Arranger Fee Letter and the Agent Fee Letter.
“Final Release Conditions” has the meaning assigned to such term in Section 9.14(c).
“Financial Covenants” means the covenants set forth in Section 6.13 of this Agreement.
“Financial Officer” means, with respect to any Person, (a) the chief financial officer, vice president of finance, principal accounting officer, treasurer or controller of such Person or (b) any other individual designated as a “Financial Officer” of such Person by any of the foregoing officers of such Person described in clause (a) in writing to the Administrative Agent and reasonably acceptable to the Administrative Agent.
“Financials” means the annual or quarterly financial statements, and accompanying certificates and other documents, of the TopCo Borrower and its Subsidiaries required to be delivered pursuant to Section 5.01(a) or 5.01(b).
“First Lien Intercreditor Agreement” means an intercreditor agreement with respect to any Liens on the Collateral that are intended to rank pari passu with the Liens securing the Obligations in a form reasonably satisfactory to the Administrative Agent (pursuant to Required Lenders Negative Consent) and the Borrowers.
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“First Tier Foreign Subsidiary” means each Foreign Subsidiary with respect to which any one or more of the Loan Parties directly owns more than 50% of such Foreign Subsidiary’s issued and outstanding Equity Interests.
“Fixed Incremental Amount” means, as of any date of determination, (a) the greater of (i) $421,000,000 and (ii) 100% of Consolidated EBITDA for the most recently ended Test Period less (b) the aggregate principal amount of Incremental Term Loans, Incremental Term Commitments, Incremental Revolving Commitments and Incremental Equivalent Debt established prior to such date in reliance on the Fixed Incremental Amount and not subsequently reclassified as having been incurred in reliance on the Incremental Ratio Basket.
“Flood Insurance Laws” means, collectively, (i) the National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (ii) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (iii) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the Alternate Base Rate, the Term SOFR Rate or the Daily Simple SOFR, as applicable. For the avoidance of doubt the initial Floor for each of the Term SOFR Rate and Daily Simple SOFR shall be 0.00% and the initial Floor for the Alternate Base Rate shall be 1.00%.
“Foreign Lender” means a Lender that is not a U.S. Person.
“Foreign Subsidiary” means any Restricted Subsidiary which is not a Domestic Subsidiary.
“GAAP” means generally accepted accounting principles in the United States of America.
“General Meeting” means the general meeting of the Target Shareholders (or any adjournment thereof) to be convened in connection with the implementation of a Scheme.
“General Meeting Resolutions” means the resolutions to be proposed at and voted on at the General Meeting for the purposes of, amongst other things, approving the Scheme, as will be set out in the Scheme Circular.
“Good Clinical Practices” means standards for the design, conduct, performance, monitoring, auditing, recording, analysis, and reporting of clinical trials promulgated by applicable Regulatory Authorities, including 21 C.F.R. Parts 11, 50, 54, 56 and 312.
“Good Laboratory Practices” means standards for conducting non-clinical laboratory studies promulgated by applicable Regulatory Authorities, including those set forth in 21 C.F.R. Part 58.
“Good Manufacturing Practices” means current good manufacturing practices promulgated by applicable Regulatory Authorities, including those set forth in 21 C.F.R. Parts 210 and 211, 600, 606, 610 and 820.
“Governmental Authority” means the government of the United States of America, the European Union or any other nation or any political subdivision thereof, whether state or local or otherwise, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
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“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided, that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Guarantee shall be deemed to be an amount equal to the lesser of (a) the stated or determinable amount of the primary payment obligation in respect of which such Guarantee is made and (b) the maximum amount for which the guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Guarantee, unless such primary payment obligation and the maximum amount for which such guaranteeing Person may be liable are not stated or determinable, in which case the amount of the Guarantee shall be such guaranteeing Person’s maximum reasonably possible liability in respect thereof as reasonably determined by the U.S. Borrower in good faith.
“Guaranty” means that certain Guaranty dated as of the Closing Date (including any and all supplements thereto) and executed by the Loan Parties, as amended, restated, supplemented or otherwise modified from time to time.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants or contaminants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls and all other substances or wastes regulated pursuant to, or that may result in Liability under, any Environmental Law due to their deleterious nature.
“Health Care Laws” means: (a) all local, state, federal and foreign health care laws, including but not limited to laws related to (i) health care fraud and abuse, including the Federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b), the Federal False Claims Act (31 U.S.C. §§ 3729, et seq.), the Federal Civil Monetary Penalties Law (42 U.S.C. § 1320a-7a), the Federal Program Fraud Civil Remedies Act (31 U.S.C. § 3801 et seq.), the Federal Health Care Fraud law (18 U.S.C. § 1347), the criminal false claims and false statements statutes (e.g., 42 U.S.C. § 1320a-7b(a), 18 U.S.C. §§ 286, 287, 1347, 1349, and 1001), the Stark law (42 U.S.C. § 1395nn), the Physician Payment Sunshine Act (42 U.S.C. § 1320a-7h), the Federal Health Care Program Overpayment Statute (42 U.S.C. § 1320a-7k(d)) and the exclusion authorities (42 U.S.C. § 1320a-7); (ii) the Medicare Secondary Payor Statute (42 U.S.C. § 1395y(b)); (iii) the Clinical Laboratory Improvement Amendments (42 U.S.C. § 263a); (iv) health information privacy, including the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d et seq.), the Health Information Technology for Economic and Clinical Health Act of 2009 (42 U.S.C. §§ 17921 et seq.), the U.S. Federal Trade Commission health breach notification rule, and state laws regulating health information, consumer health data, medical records, and privacy, security, and breaches; (v) the safety, efficacy, research, formulation, design, development, manufacture, ownership, testing, storage, security, diversion, trafficking, transportation, distribution, supply, packaging, recordkeeping, processing, production, handling, use, distribution, marketing, labeling, promotion, advertising, holding, possession, import or export, disposal, or sale or offer for sale of any product, controlled substance, controlled substance analogue, listed chemical, active pharmaceutical ingredient, or any other such substance, service, operation or activity of the Loan Parties, including, without limitation, (v) the U.S. Federal Food, Drug and Cosmetic Act (21 U.S.C. § 301 et seq.) (the “FDCA”); (w) the Controlled Substances Act (21 U.S.C. § 801 et seq.), the Controlled
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Substances Import and Export Act (21 U.S.C. § 951 et seq.), and the Comprehensive Drug Abuse Prevention and Control Act of 1970 (Pub. L. No. 91-513) (collectively, the “CSA”); (x) the Poison Prevention Packaging Act of 1970 (Pub. L. No. 91-601); (y) the Public Health Service Act (42 U.S.C. § 201 et seq.)(the “PHSA”); and (z) those laws and other requirements of the FDA, Drug Enforcement Administration and any successor agency thereto (“DEA”), U.S. Department of Justice and any successor agency thereto (“DOJ”), Ireland’s Health Products Regulatory Authority (“HPRA”), European Medicines Agency (“EMA”), and similar federal, state, local, and foreign Regulatory Authorities; and (vi) Good Manufacturing Practices, good distribution practices, Good Laboratory Practices, and Good Clinical Practices; (b) laws applicable to Federal Health Care Programs, including the Medicare statute (Title XVIII of the Social Security Act) and the Medicaid Statute (Title XIX of the Social Security Act), and laws applicable to claims for reimbursement submitted by the Loan Parties or their respective businesses to any third-party payor that is not a Federal Health Care Program; (c) licensure, quality, safety and accreditation requirements under applicable federal, state, local or foreign laws or regulations or healthcare-related Governmental Authority; (d) the Inflation Reduction Act; (e) government pricing and price reporting laws, and the processing of any applicable rebate, chargeback or adjustment, under such laws, including the Medicaid Drug Rebate Program (42 U.S.C. § 1396r-8) and any state supplemental rebate program, Medicare average sales price reporting (42 U.S.C. § 1395w-3a), PHSA (including 42 U.S.C. § 256b), the VA Federal Supply Schedule (38 U.S.C. § 8126) or any state pharmaceutical assistance program, Federal Supply Schedule of the General Services Administration or U.S. Department of Veterans Affairs agreement, and any similar or successor government programs; (f) with respect to (a)-(e), any similar laws of any Governmental Authority (including any successor Governmental Authority that implements, enforces or otherwise has authority relating to such laws); (g) the regulations promulgated under, pursuant to, or that implement the laws in (a)-(f); and (h) any amendments to the laws and regulations in (a)-(g).
“Health Care Permits” has the meaning assigned to such term in Section 3.07(b)(vi).
“Hostile Acquisition” means (a) the acquisition of the Equity Interests of a Person through a tender offer or similar solicitation of the owners of such Equity Interests which has not been approved (prior to such acquisition) by the board of directors (or any other applicable governing body) of such Person or by similar action if such Person is not a corporation and (b) any such acquisition as to which such approval has been withdrawn.
“Incremental Amendment” means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent (solely for purposes of giving effect to Section 2.20) and each applicable Borrower executed by (a) each applicable Borrower, (b) the Administrative Agent and (c) each Lender that agrees to provide all or any portion of the Incremental Term Facility or Incremental Revolving Facility being incurred pursuant thereto in accordance with Section 2.20.
“Incremental Cap” means:
(a) the Voluntary Prepayment Amount, plus
(b) the Fixed Incremental Amount; plus
(c) an additional amount so long as, in the case of this clause (c), on a pro forma basis after giving effect to the incurrence of the applicable Indebtedness and the application of the proceeds thereof and in the case of any revolving credit facility or delayed draw term loan facility, assuming a full drawing of such revolving credit facility or delayed draw term loan facility, as applicable, (i) if such Incremental Facility or Incremental Equivalent Debt is secured by Liens on Collateral that rank pari passu with the Liens securing the Obligations, the Secured Net Leverage Ratio does not exceed 3.75:1.00, (ii) if such Incremental Equivalent Debt is (x) secured by Liens on Collateral that rank junior to the Liens securing the Obligations or (y) secured by Liens on assets that do not constitute Collateral, the Secured Net Leverage
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Ratio does not exceed 4.25:1.00 and (iii) if such Incremental Equivalent Debt is unsecured, the Total Net Leverage Ratio does not exceed 4.75:1.00 (this clause (c), the “Incremental Ratio Basket”),
provided that (i) any Incremental Facility or Incremental Equivalent Debt may be incurred under one or more of clauses (a), (b) or (c) of this definition as selected by the U.S. Borrower in its sole discretion, (ii) if any Incremental Facility or Incremental Equivalent Debt is intended to be incurred or implemented in reliance on the Incremental Ratio Basket and any other of clauses (a) and/or (b) of this definition in a single transaction or series of related transactions, (x) the permissibility of the portion of such Incremental Facility or Incremental Equivalent Debt that is incurred or implemented in reliance on the Incremental Ratio Basket will be determined without giving effect to (1) any portion of such Incremental Facility or Incremental Equivalent Debt to be incurred or implemented in reliance on clauses (a) and/or (b) of this definition and/or (2) any simultaneous or substantially concurrent incurrence of any Indebtedness based on a basket or exception that is not based on a financial ratio, but giving full pro forma effect to the use of proceeds of the entire amount of the loans and commitments that will be incurred in reliance on each applicable provision of the Incremental Cap and the related transactions, and (y) thereafter, the permissibility of the portion of the Incremental Facility or Incremental Equivalent Debt to be incurred or implemented, as applicable, under clauses (a) and/or (b) of this definition will be determined, (iii) unless the U.S. Borrower elects otherwise, any Incremental Facility or Incremental Equivalent Debt will be deemed incurred first under the Incremental Ratio Basket to the extent permitted (and calculated prior to giving effect to any simultaneous or subsequent incurrence of any Indebtedness based on a basket or exception that is not based on a financial ratio, with any balance incurred under clauses (a) and/or (b) of this definition), and (iv) any portion of any Incremental Facility or Incremental Equivalent Debt incurred or implemented in reliance on clauses (a) and/or (b) of this definition will, unless the U.S. Borrower otherwise elects, automatically be reclassified from time to time after the incurrence or implementation of such Incremental Facility or Incremental Equivalent Debt as having been incurred in reliance on the Incremental Ratio Basket if the leverage ratio test under the Incremental Ratio Basket is satisfied on a pro forma basis at such time.
“Incremental Commitment” means an Incremental Revolving Commitment or a commitment to provide an Incremental Term Loan.
“Incremental Equivalent Debt” has the meaning assigned to such term in Section 2.20(j).
“Incremental Facility” means an Incremental Revolving Facility and/or an Incremental Term Facility, as the context may require.
“Incremental Lender” has the meaning assigned to such term in Section 2.20(b).
“Incremental Loans” has the meaning assigned to such term in Section 2.20(a).
“Incremental Ratio Basket” has the meaning assigned to such term in clause (c) of the definition of “Incremental Cap”.
“Incremental Revolving Commitments” means the revolving commitments in respect of any Incremental Revolving Facility.
“Incremental Revolving Facility” has the meaning assigned to such term in Section 2.20(a).
“Incremental Revolving Facility Lender” means, with respect to any Incremental Revolving Facility, each Revolving Lender providing any portion of such Incremental Revolving Facility.
“Incremental Revolving Loans” has the meaning assigned to such term in Section 2.20(a).
“Incremental Delayed Draw Facility” has the meaning assigned to such term in Section 2.20(a).
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“Incremental Term Increase Facility” has the meaning assigned to such term in Section 2.20(a).
“Incremental Term Facility” has the meaning assigned to such term in Section 2.20(a).
“Incremental Term A Loans” has the meaning assigned to such term in Section 2.20(a)(v).
“Incremental Term Commitments” means the commitments to provide an Incremental Term Loan in respect of any Incremental Term Facility.
“Incremental Term Loans” has the meaning assigned to such term in Section 2.20(a).
“Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) [reserved], (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding (x) trade accounts payable in the ordinary course of business, (y) any earn-out, deferred, royalty, milestone or similar obligations until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP and if not paid after becoming due and payable and (z) expenses accrued in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed; provided that if such Person has not assumed or otherwise become liable in respect of such Indebtedness, such obligations shall be deemed to be in an amount equal to the lesser of (i) the amount of such Indebtedness and (ii) the fair market value of such property at the time of determination (in the U.S. Borrower’s good faith estimate), (g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (j) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (k) all obligations of such Person under Sale and Leaseback Transactions and (l) all obligations of such Person in respect of Disqualified Equity. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor by operation of law as a result of such Person’s ownership interest in such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. The amount of Indebtedness (including any Guarantees constituting Indebtedness) for which recourse is limited either to a specified amount or to an identified asset of such Person shall be deemed to be equal to the lesser of (x) such specified amount and (y) the fair market value of such identified asset as determined by such Person in good faith. Notwithstanding anything to the contrary in this definition, the term “Indebtedness” shall not include (i) deferred or prepaid revenue, (ii) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller (and for the avoidance of doubt, “Indebtedness” shall not include the CVRs), (iii) obligations under Sale and Leaseback Transactions to the extent such obligations are not reflected as a liability on the consolidated balance sheet of the TopCo Borrower, (iv) milestone payments, (v) obligations under any Swap Agreements, including any such obligations which is a forward equity commitment or confirmation or forward equity sale agreement, any Permitted Bond Hedge Transaction or any Permitted Warrant Transaction, (vi) accruals for payroll and other similar employee liabilities accrued in the ordinary course of business or (vii) any obligations under a Receivables Purchase Transaction (to the extent such obligations are not or are not required to be shown as liabilities on the balance sheet of such Person in accordance with GAAP).
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a) hereof, Other Taxes.
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“Indemnitee” has the meaning assigned to such term in Section 9.03(c).
“Ineligible Institution” has the meaning assigned to such term in Section 9.04(b).
“Information” has the meaning assigned to such term in Section 9.12.
“Initial Term Commitment” means, with respect to each Initial Term Lender, such Initial Term Lender’s Initial Tranche A Term Commitment and/or Initial Tranche B Term Commitment.
“Initial Term Lenders” means the Initial Tranche A Term Lenders and the Initial Tranche B Term Lenders.
“Initial Term Loans” means the Initial Tranche A Term Loans and the Initial Tranche B Term Loans.
“Initial Tranche A Term Commitment” means, with respect to any Initial Tranche A Term Lender, the amount set forth on Schedule 2.01 opposite such Initial Tranche A Term Lender’s name under the heading “Initial Tranche A Term Commitment”, or in the Assignment and Assumption contemplated hereby pursuant to which such Initial Tranche A Term Lender shall have assumed its Initial Tranche A Term Commitment, as applicable, and giving effect to (a) any reduction in such amount from time to time pursuant to Section 2.09 and (ii) any reduction or increase in such amount from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial aggregate amount of the Initial Tranche A Term Commitments on the Closing Date is $750,000,000.00.
“Initial Tranche A Term Facility” means the Initial Tranche A Term Commitments and the Initial Tranche A Term Loans made thereunder.
“Initial Tranche A Term Lender” means each Lender that holds an Initial Tranche A Term Commitment or Initial Tranche A Term Loan.
“Initial Tranche A Term Loan” has the meaning assigned to such term in Section 2.01.
“Initial Tranche A Term Loan Credit Exposures” means, as to any Initial Tranche A Term Lender, an amount equal to the aggregate principal amount of such Initial Tranche A Term Lender’s Initial Tranche A Term Loans outstanding at such time.
“Initial Tranche A Term Loan” has the meaning assigned to such term in Section 2.01.
“Initial Tranche B Term Commitment” means, with respect to any Initial Tranche B Term Lender, the amount set forth on Schedule 2.01 opposite such Initial Tranche B Term Lender’s name under the heading “Initial Tranche B Term Commitment”, or in the Assignment and Assumption contemplated hereby pursuant to which such Initial Tranche B Term Lender shall have assumed its Initial Tranche B Term Commitment, as applicable, and giving effect to (a) any reduction in such amount from time to time pursuant to Section 2.09 and (ii) any reduction or increase in such amount from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial aggregate amount of the Initial Tranche B Term Commitments on the Closing Date iswas $775,000,000.00.
“Initial Tranche B Term Facility” means the Initial Tranche B Term Commitments and the Initial Tranche B Term Loans made thereunder.
“Initial Tranche B Term Lender” means each Lender that holds an Initial Tranche B Term Commitment or Initial Tranche B Term Loan.
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“Initial Tranche B Term Loan” has the meaning assigned to such term in Section 2.01.
“Intellectual Property” shall mean all right, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including, without limitation, copyrights, patents, trademarks (including the goodwill associated therewith), trade secrets, technology, know-how and processes, and all applications and registrations for any of the foregoing, and all rights to sue or otherwise recover for any past, present and future infringement, dilution, misappropriation, or other violation or impairment thereof, including the right to receive all proceeds therefrom, including without limitation license fees, royalties, income, payments, claims, damages and proceeds of suit, now or hereafter due and/or payable with respect thereto.
“Intellectual Property Security Agreement” means any agreement executed on or after the Closing Date confirming or effecting the grant of any Lien on or security interest in United States registered or applied for patents, trademarks and copyrights owned by any Loan Party and exclusive licenses of United States registered copyrights granted to a Loan Party, as applicable, by any Loan Party to the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, in accordance with this Agreement and the U.S. Security Agreement or the Irish Collateral Documents.
“Interest Election Request” means a request by any Borrower to convert or continue a Borrowing in accordance with Section 2.08, which shall be substantially in the form approved by the Administrative Agent and separately provided to the Borrower.
“Interest Payment Date” means (a) with respect to any ABR Loan, the last day of each March, June, September and December and the Maturity Date, (b) with respect to any Term Benchmark Loan, the last day of each Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Term Benchmark Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period, and the Maturity Date and (c) with respect to any RFR Loan, (1) each date that is on the numerically corresponding day in each calendar month that is one month after the Borrowing of such Loan (or, if there is no such numerically corresponding day in such month, then the last day of such month) and (2) the Maturity Date.
“Interest Period” means with respect to any Term Benchmark Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, three or six months thereafter, as any Borrower may elect; provided that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (ii) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period and (iii) no tenor that has been removed from this definition pursuant to Section 2.14(e) shall be available for specification in such Borrowing Request or Interest Election Request unless reinstated pursuant to Section 2.14(e). For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
“Investment” has the meaning assigned to such term in Section 6.05.
“Irish Collateral Documents” means the Irish Security Agreement, any Irish Share Charge and any other Collateral Document governed by the laws of Ireland.
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“Irish Loan Party” means a Loan Party organized under the laws of Ireland.
“Irish Qualifying Lender” means a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Loan Document and is:
(i) a body corporate that is resident for the purposes of Tax in a member state of the European Communities (other than Ireland) or in a territory with which Ireland has an Irish Treaty that is in effect by virtue of section 826(1) TCA or in a territory with which Ireland has signed an Irish Treaty which will come into effect once all the ratification procedures set out in section 826(1) TCA have been completed (residence for these purposes to be determined in accordance with the laws of the territory of which the Lender claims to be resident) where that member state or territory imposes a Tax that generally applies to interest receivable in that member state or territory by companies from sources outside that member state or territory; or
(ii) a body corporate where interest payable in respect of an advance:
provided in each case at (i), (ii), (iii) or (iv) the Lender is not (or in the case of (iv), the ultimate recipients of the interest are not) carrying on a trade or business in Ireland through an agency or branch with which the interest payment is connected; or
(i) which advances money in the ordinary course of a trade which includes the lending of money; and
(ii) in whose hands any interest payable in respect of monies so advanced is taken into account in computing the trading income of that body corporate; and
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“Irish Security Agreement” means an Irish law-governed debenture entered into by the TopCo Borrower, each Irish Subsidiary party thereto and the Administrative Agent, as may be modified, amended or supplemented from time to time.
“Irish Share Charge” means any Irish law-governed share charge entered into by any Loan Party that is a Material Domestic Subsidiary that owns Equity Interests in any Irish Subsidiary and the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, creating Liens over the Equity Interests in any such Irish Subsidiary, that is in form and substance reasonably satisfactory to the Administrative Agent, as such share charge may be modified, amended or supplemented from time to time.
“Irish Subsidiary” means any Restricted Subsidiary that is incorporated or organized under the laws of Ireland.
“Irish Treaty” has the meaning assigned to such term in the definition of “Irish Treaty State”.
“Irish Treaty Lender” means, subject to the completion of procedural formalities, a Lender (other than a Lender falling within paragraph (b) of the definition of Irish Qualifying Lender) which is treated as a resident of an Irish Treaty State for the purposes of an Irish Treaty and does not carry on a business in Ireland through a permanent establishment with which that Lender’s participation in this Agreement is effectively connected.
“Irish Treaty State” means a jurisdiction which has a double taxation agreement with Ireland (an “Irish Treaty”) which is in effect and makes provision for full exemption from Tax imposed by Ireland on interest.
“IRS” means the United States Internal Revenue Service.
“JPMorgan” has the meaning assigned to such term in Section 9.20.
“Junior Indebtedness” means, collectively, any Indebtedness for borrowed money of the TopCo Borrower or any of its Restricted Subsidiaries that is (x) secured by a Lien on the Collateral that is junior in priority to the Lien on the Collateral securing the Secured Obligations or (y) Subordinated Indebtedness.
“Junior Indebtedness Documents” means any document, agreement or instrument evidencing or governing any Junior Indebtedness.
“Junior Lien Intercreditor Agreement” means an intercreditor agreement with respect to any Liens on the Collateral that are intended to rank junior to the Liens securing the Obligations in a form reasonably satisfactory to the Administrative Agent (pursuant to Required Lenders Negative Consent) and the Borrowers.
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“Knowledge” or “knowledge” shall mean and refer to (i) the actual knowledge of a Responsible Officer of any Loan Party or (ii) the knowledge that such Responsible Officer would have obtained if such officer had engaged in good faith and diligent performance of such officer’s duties. For the avoidance of doubt, “know”, “known” and “knew,” words, or phrases of similar import, relating to the knowledge or the awareness of any Loan Party used in this Agreement or any other Loan Document, shall have the respective correlative meaning thereto.
“Latest Maturity Date” means, at any date of determination and with respect to the specified Loans or Commitments (or in the absence of any such specification, all outstanding Loans and Commitments hereunder), the latest Maturity Date applicable to any such Loans or Commitments hereunder at such time, including the latest maturity date of any Incremental Term Loans, any Incremental Commitments, any Extended Term Loan or any Refinancing Term Loans, in each case as extended in accordance with this Agreement from time to time.
“LCT Election” has the meaning assigned to such term in Section 1.08.
“LCT Test Date” has the meaning assigned to such term in Section 1.08.
“Legal Reservations” has the meaning set forth in Section 3.02.
“Lender Parent” means, with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a wholly-owned subsidiary.
“Lender-Related Person” has the meaning assigned to such term in Section 9.03(b).
“Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall have become a Lender hereunder pursuant to an Assignment and Assumption or otherwise, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption or otherwise. Unless the context otherwise requires, the term “Lenders” includes (a) prior to the Amendment No. 1 Effective Date, the Initial Tranche A Term Lenders and the Initial Tranche B Term Lenders and (b) on and after the Amendment No. 1 Effective Date, the Initial Tranche A Term Lenders and the 2026 Refinancing Tranche B Term Lenders.
“Liabilities” means any losses, claims (including intraparty claims), demands, damages or liabilities of any kind.
“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset; provided that in no event shall an operating lease constitute a Lien.
“Limited Conditionality Transaction” means (a) any Acquisition or similar Investment, in each case permitted by this Agreement, the consummation of which is not conditioned on the availability of, or on obtaining, third party financing and (b) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness requiring irrevocable notice (which may be conditional) in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment.
“Loan Documents” means this Agreement (including schedules and exhibits hereto), the Collateral Documents, the Guaranty, the Fee Letters, any other fee letters, and all other agreements, instruments, documents and certificates identified in Section 4.01 executed and delivered to, or in favor of, the Administrative Agent or any Lenders; provided that Loan Documents shall not include any Banking
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Services Agreement or Swap Agreement. Any reference in this Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to this Agreement or such Loan Document as the same may be in effect at any and all times such reference becomes operative.
“Loan Parties” means, collectively, the Borrowers and the Subsidiary Guarantors.
“Loans” means the loans made by the Lenders to the Borrowers pursuant to this Agreement, including the Term Loans and if applicable, the Incremental Loans, the Refinancing Term Loans and the Extended Term Loans.
“Long Stop Date” means the “End Date” (as defined in the Acquisition Agreement, as in effect on the date hereof), including, for the avoidance of doubt, as such date may be automatically extended pursuant to and in accordance with the definition of “End Date” set forth in the Acquisition Agreement, as in effect on the date hereof.
“Mandatory Cancellation Event” means the occurrence of any of the following conditions or events:
(a) where the Target Acquisition proceeds by way of a Scheme: (i) a Court Meeting is held to approve the Scheme at which a vote is held to approve the Scheme Resolutions, but the Scheme Resolutions are not so approved by the Target Shareholders by the requisite majorities at such Court Meeting; (ii) a General Meeting is held to pass the General Meeting Resolutions at which a vote is held to approve the General Meeting Resolutions, but the General Meeting Resolutions are not so approved by the requisite majorities of the Target Shareholders at such General Meeting; (iii) applications for the sanction of the Scheme and the issuance of the Court Order are made to the Court but the Court declines to sanction the Scheme and refuses to grant the Court Order; (iv) either the Scheme lapses or is withdrawn with the consent of the Panel; (v) [reserved]; (vi) a Court Order is issued but not filed with the Registrar within twenty-one days of its issuance; (vii) the date which is 15 days after the Scheme Effective Date (or if the Panel consents to any extension of the period for settlement of consideration pursuant to the Takeover Rules, the date of expiry of such extended period); or (viii) 5:00 p.m., New York City time, on the Long Stop Date, unless the Scheme Effective Date has occurred prior thereto, in which case clause (vii) above shall apply, unless, in respect of clause (iv) above, for the purpose of switching from a Scheme to an Offer, within five Business Days of such event the U.S. Borrower has delivered an Offer Conversion Notice to the Administrative Agent, and then within 10 Business Days (or such later period as the Administrative Agent may agree in its sole discretion) after delivery of such notice does with the consent of the Panel issue, an Offer Press Release that includes an Acceptance Condition that is not lower than the Minimum Acceptance Level, in which case no Mandatory Cancellation Event shall have occurred pursuant to clause (iv) above) and provided that the postponement or adjournment of any Court Meeting or General Meeting shall not constitute a Mandatory Cancellation Event if such Court Meeting or General Meeting is capable of being re-convened on a future date prior to 5:00 p.m., New York City time, on the Long Stop Date;
(b) where the Target Acquisition proceeds by way of an Offer: (i) such Offer lapses, terminates or is withdrawn; (ii) the date upon which all payments made or to be made for Certain Funds Purposes have been paid in full in cleared funds; or (iii) 5:00 p.m., New York City time, on the Long Stop Date;
(c) [reserved];
(d) the Commitments are utilized in full; and
(e) the Target becomes a Wholly-Owned Subsidiary of the TopCo Borrower and the TopCo Borrower has paid for all the Target Shares beneficially owned by it;
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provided that, for the avoidance of doubt, a switch from a Scheme to an Offer or from an Offer to a Scheme in compliance with this Agreement (or, for the avoidance of doubt, any amendment to the terms or conditions of a Scheme or an Offer in compliance with this Agreement) shall not constitute a lapse, termination or withdrawal for the purposes of this definition.
“Margin Stock” means margin stock within the meaning of Regulations U and X, as applicable.
“Market Capitalization” means an amount equal to (a) the sum of (i) the total number of issued and outstanding shares of common stock of the TopCo Borrower on the date of the declaration of a Restricted Payment permitted pursuant to clause (q) of Section 6.08 multiplied by (ii) the arithmetic mean of the closing prices per share of such shares on the principal securities exchange on which such shares are traded for the 30 consecutive trading days immediately preceding the date of declaration of such Restricted Payment.
“Material Acquisition” has the meaning assigned to such term in the definition of “Consolidated EBITDA”.
“Material Adverse Effect” means a material adverse effect on (a) the business, assets, operations or financial condition of the TopCo Borrower and its Restricted Subsidiaries taken as a whole, (b) the ability of any Loan Party to perform any of its payment obligations under the Loan Documents or (c) the validity or enforceability of this Agreement or any other Loan Documents or the rights or remedies (taken as a whole) of the Administrative Agent and the Lenders thereunder.
“Material Disposition” has the meaning assigned to such term in the definition of “Consolidated EBITDA”.
“Material Domestic Subsidiary” means each Domestic Subsidiary (i) which, as of the most recent fiscal quarter of the TopCo Borrower, for the period of four consecutive fiscal quarters then ended, for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or 5.01(b), the most recent financial statements referred to in Section 3.04(a)), contributed greater than 5.0% of Consolidated EBITDA for such period or (ii) which contributed greater than 5.0% of Consolidated Total Assets as of the last day of such fiscal quarter; provided that, if at any time the aggregate amount of Consolidated EBITDA or Consolidated Total Assets attributable to all Domestic Subsidiaries that are not Material Domestic Subsidiaries exceeds 10.0% of Consolidated EBITDA for any such period or 10.0% of Consolidated Total Assets as of the end of any such fiscal quarter, the U.S. Borrower shall designate sufficient Domestic Subsidiaries as “Material Domestic Subsidiaries” to eliminate such excess, and such designated Subsidiaries shall for all purposes of this Agreement constitute Material Domestic Subsidiaries; provided, further, that any Domestic Subsidiary that is a Subsidiary of the TopCo Borrower and beneficially owns, directly or indirectly, any Equity Interests of the U.S. Borrower shall be deemed to be a Material Domestic Subsidiary.
“Material Foreign Subsidiary” means each Foreign Subsidiary which, as of the most recent fiscal quarter of the TopCo Borrower, for the period of four consecutive fiscal quarters then ended, for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or 5.01(b), the most recent financial statements referred to in Section 3.04(a)), (a) contributed greater than 5.0% of Consolidated EBITDA for such period or (b) contributed greater than 5.0% of Consolidated Total Assets as of the last day of such fiscal quarter; provided that, if at any time the aggregate amount of Consolidated EBITDA or Consolidated Total Assets attributable to all Foreign Subsidiaries that are not Material Foreign Subsidiaries exceeds 10.0% of Consolidated EBITDA for any such period or 10.0% of Consolidated Total Assets as of the end of any such fiscal quarter, the U.S. Borrower shall designate sufficient Foreign Subsidiaries as
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“Material Foreign Subsidiaries” to eliminate such excess, and such designated Subsidiaries shall for all purposes of this Agreement constitute Material Foreign Subsidiaries; provided, further, that any Foreign Subsidiary that is a Subsidiary of the TopCo Borrower and beneficially owns, directly or indirectly, any Equity Interests of the U.S. Borrower shall be deemed to be a Material Foreign Subsidiary.
“Material Indebtedness” means Indebtedness (other than the Loans and any intercompany Indebtedness solely between or among the TopCo Borrower and its Restricted Subsidiaries), or obligations in respect of one or more Swap Agreements, of any one or more of the TopCo Borrower and its Restricted Subsidiaries in an aggregate principal amount exceeding $75,000,000. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of the TopCo Borrower or any Restricted Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the TopCo Borrower or such Restricted Subsidiary would be required to pay if such Swap Agreement were terminated at such time.
“Material Irish Subsidiary” means any Irish Subsidiary that is a Material Foreign Subsidiary.
“Material Subsidiary” means a Material Domestic Subsidiary or a Material Foreign Subsidiary.
“Materially Adverse Amendment” means a modification, amendment or waiver to or of the terms or conditions of the Acquisition Documents compared to the terms and conditions that are included in the Scheme Press Release and executed Acquisition Agreement (as in effect on November 18, 2025) which (when taken as a whole and having regard to the Transactions as a whole) is materially adverse to the interests of the Lenders (taken as a whole) under the Loan Documents; provided that any modification, amendment or waiver (including the treatment of a condition as having been satisfied) (i) that changes the purchase price in connection with the Target Acquisition, so long as (A) any increase in the purchase price is either (x) no greater than 10% of the purchase price set forth in the Acquisition Documents (as in effect on November 18, 2025) or (y) not funded with additional Indebtedness and (B) any reduction in the purchase price is no greater than 10% of the purchase price set forth in the Acquisition Documents (as in effect on November 18, 2025), (ii) that is required or requested pursuant to the Takeover Rules or by a court of competent jurisdiction, any other applicable law, regulation or regulatory body or the Panel (including any refusal by the Panel to allow the invocation of a condition) or reasonably determined by the TopCo Borrower as being necessary or desirable to comply with any of the foregoing requirements or requests, (iii) reducing the Acceptance Condition to not less than the Minimum Acceptance Level, (iv) in the case of an Offer, that is an extension or reduction of the period in which holders of the Target Shares may accept the Offer (other than an extension beyond 81 days from the date on which the Offer Documents are issued) or in the case of a Scheme, that is an adjournment or change to the date of the Court Meeting or General Meeting, (v) necessary to effect the switch from a Scheme to an Offer (or vice versa), (vi) in respect of or relating to a term or condition to the Target Acquisition which the TopCo Borrower reasonably believes that it would not be entitled, in accordance with Rule 13.3(a) of the Takeover Rules, to invoke so as to cause the Target Acquisition not to proceed, to lapse or be withdrawn provided that the other conditions to the Target Acquisition have been, or will contemporaneously be, satisfied or waived, or (vii) contemplated by, or otherwise permitted under the terms of this Agreement or any other Loan Documents in each case, shall not be a Materially Adverse Amendment. In the case of an Offer, if the TopCo Borrower or any person acting in concert with the TopCo Borrower (within the meaning of the Takeover Rules) makes a statement that the TopCo Borrower has waived any conditions to the Offer, such waiver shall be considered to be a voluntary waiver for the purposes of this definition and not a requirement of the Takeover Rules or the Panel.
“Maturity Date” means (a) with respect to the Initial Tranche A Term Facility, the date that is five (5) years after the Closing Date, (b) with respect to the Initial2026 Refinancing Tranche B Term Facility, the date that is five and a half (5.5) years after the Closing Date, (c) with respect to any Class of Incremental
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Loans or Incremental Revolving Commitments, the final maturity date as specified in the applicable Incremental Amendment, (d) with respect to any Class of Extended Term Loans, the final maturity date as specified in the applicable Extension Request accepted by the respective Lender or Lenders and (e) with respect to any Class of Refinancing Term Loans, the final maturity date as specified in the applicable Refinancing Facility Agreement; provided that if such date is not a Business Day, the Maturity Date shall be the immediately preceding Business Day.
“Maximum Rate” has the meaning assigned to such term in Section 9.16.
“Minimum Acceptance Level” has the meaning specified in Section 5.11(a)(ii).
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
“Mortgage” means each mortgage, charge, deed of trust or other agreement which conveys or evidences a Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the Secured Parties, on real property of a Loan Party, including any amendment, restatement, modification or supplement thereto.
“Mortgaged Property” means any real property that is the subject of a Mortgage pursuant to Section 5.09(b).
“Mortgage Instruments” means such title reports, ALTA title insurance policies (with commercially reasonable endorsements), evidence of zoning compliance, property insurance, flood certifications and flood insurance (and, if applicable FEMA form acknowledgements of insurance), commercially reasonable opinions of counsel, ALTA surveys, appraisals, environmental assessments and reports, mortgage tax affidavits, if applicable and other similar information and related certifications as are requested by, and in form and substance reasonably acceptable to, the Administrative Agent from time to time.
“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“Net Proceeds” means, with respect to any event, (a) the cash proceeds received in respect of such event, including (i) any cash received in respect of any non-cash proceeds (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but excluding any interest payments), but only as and when received, (ii) in the case of a casualty, cash insurance proceeds and (iii) in the case of a condemnation or similar event, cash condemnation awards and similar cash payments, net of (b) the sum of (i) all reasonable fees and out-of-pocket expenses and underwriting discounts and commissions paid to third parties (other than Affiliates) in connection with such event, (ii) in the case of a sale, transfer or other disposition of an asset (including pursuant to a Sale and Leaseback Transaction or a casualty event or a condemnation or similar proceeding), the amount of all payments required to be made as a result of such event to repay Indebtedness (other than Loans and Incremental Equivalent Debt (or Permitted Refinancing Indebtedness in respect thereof)) secured by such asset or otherwise subject to mandatory prepayment as a result of such event and (iii) the amount of all taxes paid (or reasonably estimated to be payable) and the amount of any reserves established to fund contingent liabilities reasonably estimated to be payable, in each case during the year that such event occurred or the next succeeding year and that are directly attributable to such event (as determined reasonably and in good faith by a Financial Officer).
“New Incremental Revolving Facility” has the meaning assigned to such term in Section 2.20(a).
“New Incremental Term Facility” has the meaning assigned to such term in Section 2.20(a).
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“Non-Consenting Lender” has the meaning assigned to such term in Section 9.02(e).
“NYFRB” means the Federal Reserve Bank of New York.
“NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m., New York City time, on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined would be less than 0.00%, such rate shall be deemed to be 0.00% for purposes of this Agreement.
“NYFRB’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or any successor source.
“Obligations” means all unpaid principal of and accrued and unpaid interest on the Loans, all accrued and unpaid fees and all expenses, reimbursements, indemnities and other obligations and indebtedness (including interest and fees accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), obligations and liabilities of any of the TopCo Borrower and the other Loan Parties (including the U.S. Borrower and the U.S. Co-Borrower) to any of the Lenders, the Administrative Agent or any indemnified party, individually or collectively, existing on the Closing Date or arising thereafter, direct or indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, arising by contract, operation of law or otherwise, arising or incurred under this Agreement or any of the other Loan Documents or in respect of any of the Loans made or reimbursement or other obligations incurred or any instruments at any time evidencing any thereof.
“OFAC” means the Office of Foreign Assets Control of the U.S. Department of the Treasury.
“Offer” means a contractual takeover offer made by the TopCo Borrower for all of the Target Shares other than any Target Shares that at the date of the offer are already held by the TopCo Borrower on the terms contained in the Offer Documents (as those Offer Documents may from time to time be amended in accordance with the terms of this Agreement).
“Offer Conversion Notice” has the meaning given to that term in Section 5.11(a)(vii).
“Offer Documents” means the Offer Press Release and the offer document to be sent by the TopCo Borrower and/ or Target to the holders of Target Shares (and which may form part of the proxy statement sent by the Target to its shareholders).
“Offer Press Release” means the press release announcing, in compliance with Rule 2.7 of the Takeover Rules, a firm intention to make an offer for the Target which is to be implemented by way of an Offer following service of an Offer Conversion Notice.
“Offer Unconditional Date” means the date on which the Offer becomes or is declared unconditional in all respects.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its
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obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19).
“Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight eurodollar transactions by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.
“Panel” means the Irish Takeover Panel.
“Pari Passu Indebtedness” means Incremental Equivalent Debt secured by Liens on the Collateral that rank pari passu with the Liens securing the Obligations.
“Participant” has the meaning assigned to such term in Section 9.04(c).
“Participant Register” has the meaning assigned to such term in Section 9.04(c).
“Patriot Act” means the USA PATRIOT Act of 2001.
“Payment” has the meaning assigned to such term in Section 8.06(c).
“Payment Notice” has the meaning assigned to such term in Section 8.06(d).
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“Permitted Acquisition” means any Acquisition (but excluding in any event a Hostile Acquisition) if, at the time of and immediately after giving effect thereto, (a) no Event of Default has occurred and is continuing or would arise immediately after giving effect (including giving effect on a pro forma basis) thereto, (b) the business of the Person whose Equity Interests are being acquired or the division or line of business being acquired or relating to the assets acquired would be permitted under Section 6.03(b), (c) all actions required to be taken with respect to such acquired or newly formed Subsidiary under Section 5.09 shall have been taken or will be taken within the periods permitted under Section 5.09, (d) if the aggregate Acquisition Consideration in respect of such Acquisition exceeds $50,000,000, the U.S. Borrower shall have delivered to the Administrative Agent a certificate of a Financial Officer of the U.S. Borrower, in a form reasonably satisfactory to the Administrative Agent, certifying that the applicable requirements set forth in this definition have been satisfied with respect to such Acquisition, (e) in the case of an Acquisition involving the TopCo Borrower, the TopCo Borrower is the surviving entity of any applicable merger and/or consolidation, in the case of an Acquisition involving the U.S. Borrower, the U.S. Borrower is the surviving entity of any applicable merger and/or consolidation and in the case of an Acquisition involving a Subsidiary Guarantor, a Subsidiary Guarantor is the surviving entity of any applicable merger and/or consolidation, (f) the aggregate Acquisition Consideration (other than any portion of such Acquisition made in reliance on Section 6.05(z)) paid in respect of any such Acquisition of a Person that does not become a Loan Party or of assets which are not owned by a Loan Party, when taken together with the aggregate
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Acquisition Consideration (other than any portion of such Acquisitions made in reliance on Section 6.05(z)) paid in respect of all other similar Acquisitions made in reliance on this clause (f), does not exceed the greater of $105,250,000 and 25% of Consolidated EBITDA for the most recently ended Test Period and (g) if any Initial Tranche A Term Loans are outstanding at such time, the TopCo Borrower will be in pro forma compliance with the Financial Covenants.
“Permitted Bond Hedge Transaction” means any call or capped call option (or substantively equivalent derivative transaction) relating to the TopCo Borrower’s common stock (or other securities or property following a merger event, reclassification or other change of the common stock of the TopCo Borrower) that is (A) purchased or otherwise entered into by the TopCo Borrower in connection with the issuance of any Permitted Convertible Debt, (B) settled in common stock of the TopCo Borrower (or such other securities or property), cash or a combination thereof (such amount of cash determined by reference to the price of the TopCo Borrower’s common stock or such other securities or property), and cash in lieu of fractional shares of common stock of the TopCo Borrower and (C) on terms and conditions customary for bond hedge transactions in respect of transactions related to public market convertible indebtedness (pursuant to a public offering or an offering under Rule 144A or Regulation S of the Securities Act) as reasonably determined by the U.S. Borrower; provided, that, the purchase price for such Permitted Bond Hedge Transaction, less the proceeds received by the TopCo Borrower from the sale of any related Permitted Warrant Transaction (or in the case of capped calls, where such proceeds are not received but are reflected in a reduction of the premium), does not result in the incurrence of additional Indebtedness by the TopCo Borrower (other than Indebtedness from the issuance of Permitted Convertible Debt in connection with such Permitted Bond Hedge Transaction).
“Permitted Convertible Debt” means senior Indebtedness issued by the TopCo Borrower, the U.S. Borrower, the U.S. Co-Borrower or a Subsidiary Guarantor having a feature which entitles the holder thereof to convert or exchange all or a portion of such Indebtedness into Equity Interests of the TopCo Borrower; provided, that (i) such Permitted Convertible Debt shall be unsecured, (ii) such Permitted Convertible Debt is not guaranteed by any Subsidiary of the TopCo Borrower other than the U.S. Borrower, the U.S. Co-Borrower and the Subsidiary Guarantors, (iii) Permitted Convertible Debt shall not include any financial maintenance covenants and shall only include covenants and defaults that are customary for public market convertible indebtedness (pursuant to a public offering or an offering under Rule 144A or Regulation S of the Securities Act), as determined by the U.S. Borrower in its good faith judgment, (iv) no Event of Default shall have occurred and be continuing at the time of incurrence of such Permitted Convertible Debt or would immediately result therefrom and (v) such Permitted Convertible Debt shall not mature, and is otherwise not subject to any mandatory prepayment, redemption, defeasance, scheduled amortization or other scheduled payments of principal, in each case prior to the date that is 91 days after the Maturity Date (it being understood that no provision requiring an offer to purchase such Permitted Convertible Debt as a result of a change of control, asset sale or other fundamental change shall violate the foregoing restriction).
“Permitted Encumbrances” means:
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provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness (other than clauses (d), (e) and (i)).
“Permitted Refinancing Amount” means, with respect to any Indebtedness being refinanced, an amount equal to (a) any accrued and unpaid interest on such refinanced Indebtedness, plus (b) the amount of any reasonable tender or redemption premium paid thereof or any penalty or premium required to be paid under the terms of the instrument or documents governing such refinanced Indebtedness, plus (c) any reasonable costs, fees and expenses incurred in connection with the issuance of the refinancing Indebtedness and the refinancing of such refinanced Indebtedness.
“Permitted Refinancing Indebtedness” means any Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund (collectively, to “Refinance”), the Indebtedness being Refinanced (or previous refinancings thereof constituting Permitted Refinancing Indebtedness); provided, that (a) such Indebtedness shall constitute Permitted Refinancing Indebtedness only to the extent the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so Refinanced (plus the Permitted Refinancing Amount), (b) (i) the Weighted Average Life to Maturity of such Permitted Refinancing Indebtedness is not shorter than the remaining Weighted Average Life To Maturity of the Indebtedness being Refinanced, (ii) the maturity of such Permitted Refinancing Indebtedness is not earlier than the earlier of the stated maturity of the Indebtedness being Refinanced and the Latest Maturity Date applicable to any existing Class of Term Loans and (iii) such Permitted Refinancing Indebtedness is not subject to any mandatory prepayment, redemption, defeasance, scheduled amortization or other scheduled payments of principal, in each case prior to the earlier of the stated maturity of the Indebtedness being Refinanced and the Latest Maturity Date applicable to any existing Class of Term Loans (it being understood that no provision requiring an offer to purchase such Indebtedness as a result of change of control or asset sale or other fundamental change shall violate the foregoing restriction), (c) if the Indebtedness being Refinanced is subordinated in right of payment to the Obligations or any Guarantees thereof, such Permitted Refinancing Indebtedness shall be subordinated in right of payment to such Obligations or such Guarantees on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being Refinanced as determined by the U.S. Borrower in its good faith judgment, (d) no Permitted Refinancing Indebtedness shall have different obligors, or greater guarantees or security, than the Indebtedness being Refinanced (provided that (i) Indebtedness (a) of any Loan Party may be Refinanced to add or substitute as an obligor another Loan Party and (b) of any Restricted Subsidiary that is not a Loan Party may be Refinanced to add or substitute as an obligor another Restricted Subsidiary that is not a Loan Party, in each case to the extent then permitted under Article VI; and (ii) other guarantees and security may be added to the extent then permitted under Article VI) and (e) if the Indebtedness being Refinanced is secured by any Collateral (whether equally and
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ratably with, or junior to, the Secured Parties or otherwise), such Permitted Refinancing Indebtedness may be secured by such Collateral (including any collateral pursuant to after-acquired property clauses to the extent any such collateral would have secured the Indebtedness being Refinanced) on terms not materially less favorable to the Secured Parties than those contained in the documentation (including any intercreditor agreement) governing the Indebtedness being Refinanced, as determined in good faith by the U.S. Borrower.
“Permitted Warrant Transaction” means any call option, warrant or right to purchase (or substantively equivalent derivative transaction) relating to the TopCo Borrower’s common stock (or other securities or property following a merger event, reclassification or other change of the common stock of the TopCo Borrower) sold by the TopCo Borrower, substantially concurrently with any purchase by the TopCo Borrower of a Permitted Bond Hedge Transaction and settled in common stock of the TopCo Borrower, cash or a combination thereof (such amount of cash determined by reference to the price of the TopCo Borrower’s common stock or such other securities or property), and cash in lieu of fractional shares of common stock of the TopCo Borrower, with a strike price higher than the strike price of the Permitted Bond Hedge Transaction.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which any Loan Party or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Planned Expenditures” has the meaning given to such term in the definition of “Excess Cash Flow”.
“Plan Assets” has the meaning assigned to such term in Section 3.23.
“Plan Asset Regulations” means 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA, as amended from time to time.
“Pledged Subsidiary” means (i) each Domestic Subsidiary, (ii) each Irish Subsidiary and (iii) each First Tier Foreign Subsidiary (other than an Irish Subsidiary) which is a Material Foreign Subsidiary.
“Prepayment Event” means:
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“Press Release” means an Offer Press Release or a Scheme Press Release.
“Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.
“Proceeding” means any claim, litigation, investigation, action, suit, arbitration or administrative, judicial or regulatory action or proceeding in any jurisdiction.
“Process Agent” has the meaning assigned to such term in Section 9.23.
“Products” means any current or future product, drug, controlled substance, controlled substance analogue, listed chemical, active pharmaceutical ingredient, or any other such substance, biologic, or medical device that is researched, formulated, designed, developed, tested, manufactured, owned, packaged, recorded, processed, produced, handled, stored, secured, used, held, possessed, labeled, tested, commercialized, imported, exported, transported, distributed, supplied, promoted, marketed, advertised, disposed, sold or offered for sale by or on behalf of the TopCo Borrower and its Restricted Subsidiaries, including, without limitation, marketed products and products under development.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Purchasing Borrower Party” means any Borrower or any Restricted Subsidiary.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“QFC Credit Support” has the meaning assigned to such term in Section 9.19.
“Receivables Purchase Assets” means, in connection with a Receivables Purchase Transaction, (i) accounts receivable, notes receivables and/or other payment intangibles, (ii) interests therein and/or related assets or rights, including any collection accounts with respect thereto and (iii) the proceeds of any of the foregoing.
“Receivables Purchase Transaction” means an arrangement whereby the TopCo Borrower or any of its Restricted Subsidiaries (including a special purpose subsidiary) sells, on a non-recourse basis, except to the extent customary in a “true sale” arrangement, its accounts receivable in connection with the collection of such accounts receivable in the ordinary course of business.
“Recipient” means (a) the Administrative Agent and (b) any Lender, as applicable.
“Reference Period” has the meaning assigned to such term in the definition of Consolidated EBITDA.
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“Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is the Term SOFR Rate, 5:00 a.m. (Chicago time) on the day that is two U.S. Government Securities Business Days preceding the date of such setting, (2) if the RFR for such Benchmark is Daily Simple SOFR, then four U.S. Government Securities Business Days prior to such setting or (3) if such Benchmark is none of the Term SOFR Rate or Daily Simple SOFR, the time determined by the Administrative Agent in its reasonable discretion.
“Refinancing Facility Agreement” means an agreement in form and substance reasonably satisfactory to the Administrative Agent, among the Borrowers, the Administrative Agent and one or more Refinancing Term Lenders, establishing Refinancing Term Loan Commitments and effecting such other amendments hereto and to the other Loan Documents as are contemplated by Section 2.22.
“Refinancing Term Lender” has the meaning assigned to such term in Section 2.22(a).
“Refinancing Term Loans” has the meaning assigned to such term in Section 2.22(a).
“Refinancing Term Loan Commitments” has the meaning assigned to such term in Section 2.22(a).
“Register” has the meaning assigned to such term in Section 9.04(b)(ii).
“Regulation D” means Regulation D of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof.
“Regulation U” means Regulation U of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof.
“Regulation X” means Regulation X of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof.
“Regulatory Authority” has the meaning assigned to such term in Section 3.07(b)(i).
“Reinstatement Date” has the meaning assigned to such term in Section 6.14(b).
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective partners, directors, officers, managers, employees, agents and advisors of such Person and such Person’s Affiliates.
“Relevant Governmental Body” means, the Federal Reserve Board and/or the NYFRB, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto.
“Relevant Rate” means (i) with respect to any Term Benchmark Borrowing, the Term SOFR Rate or (ii) with respect to any RFR Borrowing, Daily Simple SOFR, as applicable.
“Repricing Transaction” means (a) any repayment, refinancing, substitution or replacement of all or a portion of the Initial2026 Refinancing Tranche B Term Loans substantially concurrently with the incurrence by any Loan Party of any secured syndicated term loans (other than a customary bank term loan “A” or customary bank bridge loan) having an Effective Yield that is less than the Effective Yield applicable to the Initial2026 Refinancing Tranche B Term Loans so prepaid, repaid, refinanced, substituted or replaced and (b) any amendment, waiver or other modification to this Agreement that would have the effect of reducing the Effective Yield applicable to the Initial2026 Refinancing Tranche B Term Loans; provided that the primary purpose (as determined by the U.S. Borrower in good faith) of such prepayment,
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repayment, refinancing, substitution, replacement, amendment, waiver or other modification was to reduce the Effective Yield applicable to the Initial2026 Refinancing Tranche B Term Loans; provided, further, that in no event shall any such prepayment, repayment, refinancing, substitution, replacement, amendment, waiver or other modification in connection with a Change in Control or Transformative Acquisition constitute a Repricing Transaction. Any determination by the Administrative Agent of the Effective Yield for purposes of the definition shall be conclusive and binding on all Lenders, and the Administrative Agent shall have no liability to any Person with respect to such determination absent bad faith, gross negligence or willful misconduct.
“Required Initial Tranche A Term Lenders” means, subject to Section 2.21, Initial Tranche A Term Lenders having Initial Tranche A Term Loan Credit Exposures representing more than 50% of the sum of total Initial Tranche A Term Loan Credit Exposures at such time or if no such Initial Tranche A Term Loan Credit Exposures are then outstanding, Initial Tranche A Term Lenders holding more than 50% of the outstanding Initial Tranche A Term Commitments at such time.
“Required Lenders” means, subject to Section 2.21, Lenders having Credit Exposures representing more than 50% of the sum of the total Credit Exposures at such time or if no such Credit Exposures are then outstanding, Lenders holding more than 50% of the outstanding Commitments at such time.
“Required Lenders Negative Consent” means, with respect to any instrument, agreement, term or condition provided for in this Agreement or any other Loan Document, that such instruction, agreement, term or condition has been presented to the Lenders by the Administrative Agent and the same has not been objected to in writing by the Required Lenders within five (5) Business Days following the Administrative Agent’s delivery of notice thereof. Following such five (5) Business Days period without objection by the Required Lenders, the Administrative Agent and the applicable Loan Parties shall be permitted to enter into, execute and deliver such instrument or agreement, and/or such term or condition shall be deemed satisfied, in each case under this Agreement and the other Loan Documents.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means the chief executive officer, the president, a Financial Officer or other executive officer (or in the case of an Irish Subsidiary, director) of a Loan Party.
“Restricted Debt Payment” has the meaning assigned to such term in Section 6.10(a).
“Restricted Margin Stock” means Margin Stock owned by the TopCo Borrower or any of its Restricted Subsidiaries which represents not more than 25% of the aggregate value (determined in accordance with Regulation U), on a consolidated basis, of the property and assets of the TopCo Borrower and its Restricted Subsidiaries (including any Margin Stock) that is subject to Section 2.11(b) and the provisions of Article VI.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in the TopCo Borrower or any Restricted Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests in the TopCo Borrower or any Restricted Subsidiary or any option, warrant or other similar right to acquire any such Equity Interests in the TopCo Borrower or any Restricted Subsidiary; provided, (i) that the issuance of, entry into (including any payments of premiums in connection therewith), performance of obligations under, and conversion, exercise, repurchase, redemption, settlement or early termination or cancellation of (whether in whole or in part and including by netting or set-off) (in each case, whether in cash, common stock of the TopCo Borrower or, following a merger event or other change of the common
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stock of the TopCo Borrower, other securities or property) any Permitted Convertible Debt (subject to Section 6.10(a)), any Permitted Warrant Transactions or any Permitted Bond Hedge Transactions, or the satisfaction of any condition that would permit or require any of the foregoing, including any payment or delivery in connection with a Permitted Warrant Transaction or Permitted Bond Hedge Transaction by (a) delivery of shares of the TopCo Borrower’s common stock upon net share settlement thereof and any related purchase of such common stock required to be made in connection with such delivery, (b) set-off or payment of an early termination payment or similar payment thereunder, in each case, in the TopCo Borrower’s common stock upon any early termination thereof or (c) in the event of cash settlement upon settlement, any payment of a cash settlement or equivalent amount, in each case, shall not constitute a Restricted Payment by the TopCo Borrower and (ii) any dividend or other distribution of Unrestricted Margin Stock by the TopCo Borrower or any of its Restricted Subsidiaries shall not constitute a Restricted Payment by the TopCo Borrower or any of its Restricted Subsidiaries.
“Restricted Subsidiary” means any Subsidiary other than an Unrestricted Subsidiary.
“Revolving Commitment” means any revolving credit commitment added pursuant to Section 2.20.
“Revolving Commitment Increase” has the meaning assigned to such term in Section 2.20(a).
“Revolving Lender” means each lender that holds a Revolving Commitment and/or a Revolving Loan.
“Revolving Loan” means any revolving loan added hereunder pursuant to Section 2.20.
“RFR Borrowing” means, as to any Borrowing, the RFR Loans comprising such Borrowing.
“RFR Loan” means a Loan that bears interest at a rate based on the Daily Simple SOFR.
“S&P” means S&P Global Ratings, a division of S&P Global Inc. and any successor thereto.
“Sale and Leaseback Transaction” means any sale or other transfer of any property or asset (other than Unrestricted Margin Stock) by any Person with the intent to lease such property or asset as lessee.
“Sanctioned Country” means, at any time, a country, region or territory which is itself the target of comprehensive Sanctions (at the time of this Agreement, the Crimea, so-called Donetsk People’s Republic, Kherson, so-called Luhansk People’s Republic, and Zaporizhzhia regions of Ukraine, Cuba, Iran and North Korea).
“Sanctioned Person” means, at any time, a person with whom or which transactions contemplated are prohibited by Sanctions, including as a result of being (a) listed on any Sanctions-related list, (b) organized, located or a resident in a Sanctioned Country, or (c) 50% or more owned or controlled, individually or in the aggregate, by any such Person or Persons described in the foregoing clauses (a) or (b).
“Sanctions” means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by OFAC or the U.S. Department of State or (b) the United Nations Security Council, (c) the European Union, (d) any European Union member state, or (e) His Majesty’s Treasury of the United Kingdom.
“Scheme” means a scheme of arrangement made pursuant to Chapter 1 of Part 9 of the Companies Act to be proposed by the Target to its shareholders substantially on the terms set out in the Scheme Press Release (as such scheme may be amended in accordance with the terms of this Agreement).
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“Scheme Circular” means the circular (including any supplemental circular) to the shareholders of the Target issued or to be issued by the Target setting out the proposals for the Scheme and containing the notices of the Court Meeting and the General Meeting (and which may form part of the proxy statement sent by the Target to its shareholders).
“Scheme Documents” means the Scheme Press Release, the Scheme Circular and the Court Order.
“Scheme Effective Date” means the date on which the Scheme becomes effective in accordance with its terms.
“Scheme Press Release” means the press release made by or on behalf of the TopCo Borrower on November 18, 2025, announcing, in compliance with Rule 2.7 of the Takeover Rules, a firm intention to make an offer for the Target Shares which is to be implemented by means of the Scheme.
“Scheme Resolutions” means the resolutions to be considered and voted on at the Court Meeting, as will be set out in the Scheme Circular.
“SEC” means the Securities and Exchange Commission of the United States of America or any Governmental Authority succeeding to any of its principal functions.
“Secured Net Leverage Ratio” means the ratio, determined as of the last day of the then most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, the last day of the last fiscal quarter included in the financial statements referred to in Section 3.04(a)), of (a) Consolidated Secured Net Indebtedness outstanding, to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters ending with the end of such fiscal quarter, all calculated for the TopCo Borrower and its Restricted Subsidiaries on a consolidated basis.
“Secured Obligations” means all Obligations, together with all Swap Obligations or Banking Services Obligations owing to the Administrative Agent, one or more Lenders or their respective Affiliates (or any Person that was a Lender or an Affiliate of a Lender at the time any such Swap Obligations or Banking Services Obligations were incurred); provided that the definition of “Secured Obligations” shall not create or include any guarantee by any Loan Party of (or grant of security interest by any Loan Party to support, as applicable) any Excluded Swap Obligations of such Loan Party for purposes of determining any obligations of any Loan Party.
“Secured Parties” means the holders of the Secured Obligations from time to time and shall include (i) each Lender in respect of its Loans, (ii) the Administrative Agent and the Lenders in respect of all other present and future obligations and liabilities of the TopCo Borrower and each Restricted Subsidiary of every type and description arising under or in connection with this Agreement or any other Loan Document, (iii) each Lender and Affiliate of such Lender in respect of Swap Agreements and Banking Services Agreements entered into with such Person by the TopCo Borrower or any Restricted Subsidiary, (iv) each indemnified party under Section 9.03 in respect of the obligations and liabilities of the Borrowers to such Person hereunder and under the other Loan Documents, and (v) their respective successors and (in the case of a Lender, permitted) transferees and assigns.
“Securities Act” means the United States Securities Act of 1933.
“Share Repurchase Program” means that certain share repurchase program of the TopCo Borrower announced on February 15, 2024.
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“SOFR” means a rate per annum equal to the secured overnight financing rate as administered by the SOFR Administrator on the SOFR Administrator’s Website.
“SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the NYFRB’s Website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“SOFR Determination Date” has the meaning assigned to such term in the definition of “Daily Simple SOFR”.
“SOFR Rate Day” has the meaning assigned to such term in the definition of “Daily Simple SOFR”.
“Solvent” means, as to any Person as of any date of determination, that on such date (a) the amount of the “present fair salable value” (as determined by in accordance with applicable federal and state laws governing determination of insolvency of debtors) of the assets of such Person (on a going concern basis) is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair saleable value of such Person (on a going concern basis) is not less than the amount that will be required to pay the probable liability of such Person on its debts, including contingent debts, as they become absolute and matured in the ordinary course of business, (c) such Person will be able to pay its debts as they mature in the ordinary course of business and (d) such Person will not have, as of such date of determination, an unreasonably small amount of capital with which to conduct its business. The amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“Specified Event of Default” means an Event of Default arising under any of Section 7.01(a), Section 7.01(b), Section 7.01(h) or Section 7.01(i).
“Specified Investments” has the meaning assigned to such term in Section 6.05(ee).
“Specified Swap Obligation” means, with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act or any rules or regulations promulgated thereunder.
“Squeeze-Out” means the procedures set out in Chapter 2 of Part 9 of the Companies Act for the compulsory acquisition of all of the outstanding shares in the Target which the TopCo Borrower has not acquired, contracted to acquire or in respect of which it has not received valid acceptances.
“Squeeze-Out Notice” means a notice issued to a holder of Target Shares who has not accepted the Offer by the TopCo Borrower in accordance with the Companies Act implementing the procedures required for a Squeeze-Out.
“Squeeze-Out Rights” means the rights of the TopCo Borrower pursuant to Chapter 2 of Part 9 of the Companies Act to acquire any remaining Target Shares which are the subject of the Offer.
“Subordinated Indebtedness” means any Indebtedness of the TopCo Borrower or any Restricted Subsidiary the payment of which is contractually subordinated to payment of the obligations under the Loan Documents.
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“subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, Controlled or held.
“Subsidiary” means any subsidiary of the TopCo Borrower, including, for avoidance of doubt, the U.S. Borrower and the U.S. Co-Borrower.
“Subsidiary Guarantor” means each Material Domestic Subsidiary (other than the U.S. Borrower and the U.S. Co-Borrower), each Material Irish Subsidiary and each other Restricted Subsidiary that is a party to the Guaranty. The Subsidiary Guarantors on the Closing Date are identified as such in Schedule 3.01 hereto.
“Supported QFC” has the meaning assigned to such term in Section 9.19.
“Supporting Obligations” has the meaning set forth in Article 9 of the UCC.“Swap Agreement” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the TopCo Borrower or the Restricted Subsidiaries shall be a Swap Agreement. Notwithstanding anything to the contrary in the foregoing, neither any Permitted Bond Hedge Transaction nor any Permitted Warrant Transaction shall be a Swap Agreement.
“Swap Obligations” means any and all obligations of the TopCo Borrower or any Restricted Subsidiary, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (a) any and all Swap Agreements permitted hereunder with the Administrative Agent, a Lender or any of their respective Affiliates (or a Person that was the Administrative Agent, a Lender or an Affiliate of the Administrative Agent or a Lender at the time such Swap Agreement was entered into), and (b) any and all cancellations, buy backs, reversals, terminations or assignments of any such Swap Agreement transaction.
“Syndication Agent” means Bank of America, N.A., in its capacity as syndication agent hereunder.
“Synthetic Lease” means at any time, any lease (including leases that may be terminated by the lessee at any time) of any property (a) that is accounted for as an operating lease under GAAP and (b) in respect of which the lessee retains or obtains ownership of the property so leased for U.S. federal income tax purposes, other than any such lease under which such Person is the lessor.
“Takeover Rules” means the Irish Takeover Panel Act 1997, Takeover Rules, 2022, as administered by the Panel.
“Target” means AVADEL PHARMACEUTICALS PLC, a company incorporated under the laws of the Ireland (registered number 572535).
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“Target Acquisition” means the acquisition by the TopCo Borrower of the Target Shares to be effected by way of Offer or Scheme on the terms of the Acquisition Documents and, if applicable, a Squeeze-Out.
“Target Group” means the Target and its subsidiaries from time to time.
“Target Shareholders” means the registered holders of Target Shares at the relevant time.
“Target Shares” means the issued and unconditionally allotted ordinary shares in the Target as at the date of this Agreement and any further such shares which may be issued or unconditionally allotted, on or after the date of this Agreement pursuant to the exercise of any subscription or conversion rights, options or otherwise.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“TCA” means the Taxes Consolidation Act 1997 of Ireland.
“Term Benchmark” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Term SOFR Rate, unless such Loan or Borrowing is an ABR Loan or ABR Borrowing bearing interest at a rate determined by reference to clause (c) of the definition of Alternate Base Rate.
“Term Lender” means each Lender that holds a Term Loan Commitment or a Term Loan.
“Term Loan Commitment” means, with respect to any Term Lender, the Initial Tranche A Term Commitment, the Initial Tranche B Term Commitment, the 2026 Refinancing Tranche B Term Loan Commitment, the Incremental Term Commitment and the Refinancing Term Loan Commitment of such Lender.
“Term Loans” means (a) the Initial Tranche A Term Loans, (b) prior to the Amendment No. 1 Effective Date, the Initial Tranche B Term Loans, (c) on and after the Amendment No. 1 Effective Date, the 2026 Refinancing Tranche B Term Loans, (d) any Incremental Term Loans, (e) any Refinancing Term Loans and (f) any Extended Term Loans.
“Term SOFR Determination Day” has the meaning assigned to it under the definition of Term SOFR Reference Rate.
“Term SOFR Rate” means, with respect to any Term Benchmark Borrowing and for any tenor comparable to the applicable Interest Period, the Term SOFR Reference Rate at approximately 5:00 a.m., Chicago time, two U.S. Government Securities Business Days prior to the commencement of such tenor comparable to the applicable Interest Period, as such rate is published by the CME Term SOFR Administrator; provided that if the Term SOFR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Term SOFR Reference Rate” means, for any day and time (such day, the “Term SOFR Determination Day”), with respect to any Term Benchmark Borrowing denominated in Dollars and for any tenor comparable to the applicable Interest Period, the rate per annum published by the CME Term SOFR Administrator and identified by the Administrative Agent as the forward-looking term rate based on SOFR. If by 5:00 pm (New York City time) on such Term SOFR Determination Day, the “Term SOFR Reference
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Rate” for the applicable tenor has not been published by the CME Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Rate has not occurred, then, so long as such day is otherwise a U.S. Government Securities Business Day, the Term SOFR Reference Rate for such Term SOFR Determination Day will be the Term SOFR Reference Rate as published in respect of the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate was published by the CME Term SOFR Administrator, so long as such first preceding U.S. Government Securities Business Day is not more than five (5) U.S. Government Securities Business Days prior to such Term SOFR Determination Day.
“Test Period” means, as of any date, the period of four consecutive fiscal quarters then most recently ended for which financial statements under Section 5.01(a) or Section 5.01(b), as applicable, have been delivered (or are required to have been delivered) (or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or 5.01(b), the most recent financial statements referred to in Section 3.04(a)).
“Third Party” means any Person other than the TopCo Borrower or any of its Subsidiaries.
“TLA Borrowers” means the U.S. Borrower and the TopCo Borrower.
“TLB Borrowers” means the U.S. Borrower and the U.S. Co-Borrower.
“TLB Ticking Fee” has the meaning assigned to such term in Section 2.12(a).
“TopCo Borrower” has the meaning assigned to such term in the introductory paragraph.
“Total Net Leverage Ratio” means the ratio, determined as of the last day of the then most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of the first financial statements pursuant to Section 5.01(a) or 5.01(b), the last day of the last fiscal quarter included in the financial statements referred to in Section 3.04(a)), of (a) Consolidated Total Net Indebtedness outstanding, to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters ending with the end of such fiscal quarter, all calculated for the TopCo Borrower and its Restricted Subsidiaries on a consolidated basis.
“Trade Date” has the meaning assigned to such term in Section 9.04(e)(i).
“Transactions” means (a) the Target Acquisition (and, if applicable, any other acquisition of Target Shares in connection with the Target Acquisition, including pursuant to a Squeeze-out), (b) the Borrowers’ obtaining up to $1,525,000,000.00 of gross proceeds from the borrowing of the Initial Term Loans on the Closing Date, (c) the issuance of CVRs, (d) the payments described in Section 5.08 and (e) the transactions related to the foregoing.
“Transformative Acquisition” means any acquisition by the TopCo Borrower or any of its Restricted Subsidiaries of an unrelated Third Party that is either (a) not permitted by the terms hereof or (b) if permitted by the terms hereof immediately prior to the consummation of such acquisition, would not provide the TopCo Borrower and its Restricted Subsidiaries with adequate flexibility under this Agreement for the continuation and/or expansion of their combined operations following such consummation (as determined by the U.S. Borrower in good faith).
“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Term SOFR Rate, the Alternate Base Rate or Daily Simple SOFR.
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“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided that, if by reason of any mandatory provisions of law, the perfection, the effect of perfection or non-perfection or priority of the security interests granted to the Administrative Agent pursuant to this Security Agreement are governed by the Uniform Commercial Code as in effect in a jurisdiction of the United States other than New York, then “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of such perfection, effect of perfection or non-perfection or priority.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“United States” or “U.S.” means the United States of America.
“Unliquidated Obligations” means, at any time, any Secured Obligations (or portion thereof) that are contingent in nature or unliquidated at such time, including any Secured Obligation that is: (i) any obligation (including any guarantee) that is contingent in nature at such time; (ii) inchoate indemnity obligations; or (iii) an obligation to provide collateral to secure any of the foregoing types of obligations.
“Unrestricted Margin Stock” means any Margin Stock owned by the TopCo Borrower or any of its Restricted Subsidiaries which is not Restricted Margin Stock.
“Unrestricted Subsidiary” means (a) any Subsidiary of the TopCo Borrower (other than the U.S. Borrower and the U.S. Co-Borrower) that is designated as an Unrestricted Subsidiary by the U.S. Borrower pursuant to Section 5.13 and (b) any Subsidiary of an Unrestricted Subsidiary.
“U.S. Borrower” has the meaning assigned to such term in the introductory paragraph.
“U.S. Co-Borrower” has the meaning assigned to such term in the introductory paragraph.
“U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.
“U.S. Security Agreement” means that certain Pledge and Security Agreement (including any and all supplements thereto), dated as of the Closing Date, among the Domestic Loan Parties, the Irish Loan Parties party thereto, each other Loan Party that owns Equity Interests of a Domestic Subsidiary and the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, and any other pledge or security agreement entered into after the date of this Agreement by any Domestic Loan Party or any other Loan Party that owns Equity Interests of any Domestic Subsidiary (in each case, as
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required by this Agreement or any other Loan Document), as the same may be amended, restated, supplemented or otherwise modified from time to time.
“U.S. Special Resolution Regime” has the meaning assigned to it in Section 9.19.
“U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 2.17(f)(ii)(B)(3).
“VAT” means:
(a) value added tax as provided for in the Value-Added Tax Consolidation Act 2010 of Ireland;
(b) any value added tax imposed by the Value Added Tax Act 1994 of the United Kingdom;
(c) 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); and
(d) any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraphs (a), (b) and (c) above, or imposed elsewhere.
“Voluntary Prepayment Amount” means as of any date, an amount equal to (a) the sum of the aggregate principal amount of all optional prepayments of Term Loans, Incremental Revolving Loans and Pari Passu Indebtedness made after the Closing Date and any cash payments in respect of buybacks of Term Loans by the Borrowers and their respective Subsidiaries in accordance with Section 2.25 (excluding (i) prepayments and buybacks made with the proceeds of long-term Indebtedness (other than extensions of credit under any revolving credit or similar facility) and (ii) prepayments in respect of any revolving credit facility to the extent not accompanied by a permanent reduction in commitments thereunder) less (b) the aggregate principal amount of Incremental Term Loans, Incremental Term Commitments, Incremental Revolving Commitments and Incremental Equivalent Debt established prior to such date in reliance on the Voluntary Prepayment Amount and not subsequently reclassified as having been incurred in reliance on the Incremental Ratio Basket.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required scheduled payments of principal, including payment at final maturity, in respect thereof by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness; provided that the effect of any prepayment made in respect of such Indebtedness shall be disregarded in making such calculation.
“Wholly-Owned Subsidiary” means a Subsidiary with respect to which 100% of the issued and outstanding Equity Interests are owned directly or indirectly by the TopCo Borrower (other than (i) directors’ qualifying shares; (ii) shares issued to foreign nationals to the extent required by applicable law; and (iii) shares held by a Person on trust for, or otherwise where the beneficial interest is held by, the TopCo Borrower (directly or indirectly)).
“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
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“Withholding Agent” means any Loan Party and the Administrative Agent.
“Working Capital” means at any date, the excess of Current Assets on such date over Current Liabilities on such date.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
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in each case, at the option of the U.S. Borrower (the U.S. Borrower’s election to exercise such option in connection with any Limited Conditionality Transaction, an “LCT Election”), the date of determination of whether any such action is permitted hereunder shall be deemed to be the date the definitive agreements or irrevocable notice for such Limited Conditionality Transaction are entered into or delivered, as applicable (the “LCT Test Date”), and if, after giving pro forma effect to the Limited Conditionality Transaction (and the other transactions to be entered into in connection therewith), the TopCo Borrower or any of its Restricted Subsidiaries would have been permitted to take such action on the relevant LCT Test Date in compliance with such ratio, test or basket, such ratio, test (including compliance with representations, warranties, Defaults and Events of Default) or basket shall be deemed to have been complied with; provided that, with respect to clause (b) of this Section 1.08, to the extent the relevant action requires no Default or Event of Default (as applicable) to have occurred, no Default or Event of Default (as applicable) shall exist and be continuing at the time of the LCT Test Date and no Specified Event of Default shall exist and be continuing immediately prior to or immediately after giving effect to such Limited Conditionality Transaction.
For the avoidance of doubt, if the U.S. Borrower has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date would have failed to have been complied with, or any representation or warranty would be breached or any Default or Event of Default blocker would apply, as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated EBITDA of the TopCo Borrower or the Person subject to such Limited Conditionality Transaction, or as a result of the occurrence of any Default or Event of Default or other event, in each case, at or prior to the consummation of the relevant transaction or action, such baskets, tests or ratios will not be deemed to have failed to have been complied with as a result of such fluctuations, such representation and warranty shall be deemed to not have been breached, and such Default or Event of Default shall be deemed not to have occurred. If the U.S. Borrower has made an LCT Election for any Limited Conditionality Transaction, then in connection with any calculation of any ratio or test (other than that set forth in Section 6.13 itself, but including any other provision of this Agreement that references compliance with Section 6.13) with respect to the incurrence of Indebtedness or Liens, the making of Restricted Payments, the making of any Investment, the designation of an Unrestricted Subsidiary or Restricted Subsidiary, the making of Restricted Debt Payments, or mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the TopCo Borrower (each, a “Subsequent Transaction”) following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Conditionality Transaction is consummated or the date that the definitive agreement or irrevocable notice for such Limited Conditionality Transaction is terminated or expires without consummation of such Limited Conditionality Transaction, for purposes of determining whether such Subsequent Transaction is permitted under this Agreement, any such ratio or test shall be required to be satisfied on a pro forma basis assuming such Limited Conditionality Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated.
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(i) a “dissolution” includes such entity being struck off by the Registrar of Companies in Ireland;
(ii) “duly organized” means duly incorporated;
(iii) an “examiner” has the meaning given to that term in section 508 of the Companies Act and “examinership” shall be construed in accordance with Part 10 of the Companies Act;
(iv) “inability to pay debts” and/or “unable to pay its debts” and/or any similar term (in each case, however described in any Loan Document) includes that person being unable to pay its debts within the meaning of Section 509(3)(a), Section 509(3)(c) or Section 570 of the Companies Act; and
(v) “Ireland” means Ireland, excluding Northern Ireland, and the word “Irish” shall be construed accordingly.
The Credits
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If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Term Benchmark Borrowing, then the applicable Borrower shall be deemed to have selected an Interest Period of one month’s duration. The Borrowing Request delivered with respect to the borrowing of Loans on the Closing Date may, at the option of the applicable Borrower, be conditioned on the consummation (or substantially concurrent consummation) of the Target Acquisition on such date, in which case such Borrowing Request may be withdrawn by such Borrower, or the date of such borrowing of Loans specified therein may be extended to another date (which must be a Business Day), in each case, by notice to the Administrative Agent if such condition is not satisfied (which must be received by the Administrative Agent not later than the time by which the Lenders are required to make available to the Administrative Agent their respective Loans as set forth below).
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If any such Interest Election Request requests a Term Benchmark Borrowing but does not specify an Interest Period, then the applicable Borrowers shall be deemed to have selected an Interest Period of one month’s duration.
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The TLB Ticking Fee shall be earned, due and payable on the Closing Date. The TLB Ticking Fee shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).
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then the Administrative Agent shall give notice thereof to the U.S. Borrower and the Lenders by telephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the U.S. Borrower and the Lenders that the circumstances giving rise to such notice no longer exist and (y) each applicable Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.08, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Term Benchmark Borrowing shall instead be deemed to be an Interest Election Request, as applicable, for (1) an RFR Borrowing so long as (A) adequate and reasonable means (as determined by the Administrative Agent) exist for ascertaining the Daily Simple SOFR and (B) Daily Simple SOFR will (as determined by the Administrative Agent) adequately and fairly reflect the cost to the Lenders of making or maintaining their Loans included in such Borrowing or (2) an ABR Borrowing if clauses (1)(A) and (1)(B) above are satisfied. Furthermore, if any Term Benchmark Loan is outstanding on the date of the U.S. Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.14(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the U.S. Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) each applicable Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.08, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as clauses (1)(A) and (1)(B) of the immediately preceding sentence are met or (y) an ABR Loan if clauses (1)(A) and (1)(B) of the immediately preceding sentence are not satisfied.
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and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, continuing, converting or maintaining any Loan (or of maintaining its obligation to make any such Loan) or to reduce the amount of any sum received or receivable by such Lender or such other Recipient hereunder (whether of principal, interest or otherwise), then the applicable Borrowers will pay to such Lender or such other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered as reasonably determined by the Administrative Agent or such Lender (which determination shall be made in good faith (and not on an arbitrary or capricious basis) and generally consistent with similarly situated customers of the Administrative Agent or such Lender, as applicable, under agreements having provisions similar to this Section 2.15, after consideration of such factors as the Administrative Agent or such Lender, as applicable, then reasonably determines to be relevant).
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Each Recipient agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the U.S. Borrower and the Administrative Agent in writing of its legal inability to do so.
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In the event that the Administrative Agent, the U.S. Borrower and the Lenders each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage (determined in accordance with clause (a)(i) or (b)(i) of the definition thereof, as applicable, regardless of whether the Closing Date has occurred), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
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The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section 2.22, including any amendments necessary to treat the applicable Refinancing Term Loans as a new “Class” of Loans hereunder.
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Representations and Warranties
Each Borrower represents and warrants to the Lenders that on the Closing Date (it being understood that the conditions to the Closing Date are solely those set out in Section 4.01):
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Conditions
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(ii) each promissory note (if any) required to be pledged by any Loan Party pursuant to the U.S. Security Agreement, endorsed in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof.
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in each case without any term or condition of the Scheme or Offer (as applicable) having been waived or amended in any respect in breach of the terms of this Agreement.
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(B) a copy of the Scheme Circular, certified as a true and correct copy by a Responsible Officer of the U.S. Borrower; and
(C) a copy of the Scheme Press Release, certified as a true and correct copy by a Responsible Officer of the U.S. Borrower; and
(D) a certificate of the U.S. Borrower signed by a Responsible Officer thereof attaching a copy of the Court Order, a copy of the General Meeting Resolutions and the Scheme Resolutions, in each case, certified as a true and correct copy;
(A) a certificate of the U.S. Borrower signed by a Responsible Officer certifying:
(B) a copy of the Offer Documents, certified as a true and correct copy by a Responsible Officer of the U.S. Borrower; and
(C) a copy of the Offer Press Release, certified as a true and correct copy by a Responsible Officer of the U.S. Borrower.
For purposes of determining whether the conditions specified in this Section 4.01 have been satisfied on the Closing Date, by signing this Agreement, the Administrative Agent and each Lender shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent and such Lender.
The Administrative Agent shall notify the Borrowers and the Lenders of the Closing Date, and such notice shall be conclusive and binding.
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provided that immediately upon the expiration of the Certain Funds Period, all such rights, remedies and entitlements shall be available to the Lenders if applicable at such time notwithstanding that they may not have been used or been available for use during the Certain Funds Period.
Affirmative Covenants
Commencing on the Closing Date, until the Commitments have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full (other than Unliquidated Obligations and Obligations expressly stated to survive such payment and termination), each Borrower covenants and agrees with the Lenders that:
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Documents required to be delivered pursuant to Section 5.01(a) or (b) may be delivered electronically and posted on the TopCo Borrower’s behalf on an Internet or intranet website, if any, to which the Administrative Agent has access (whether a commercial, third-party website or whether sponsored by the Administrative Agent) or on EDGAR (the Electronic Data Gathering, Analysis and Retrieval system of the SEC) or any successor thereto.
Notwithstanding anything to the contrary in Section 5.01(e), none of the TopCo Borrower or any Subsidiary will be required to disclose any documents, information or other matter that (i) constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent (or any designated representative) is then prohibited by law, rule, regulation or any agreement binding on any Loan Party or any Subsidiary or (iii) is subject to attorney-client or similar privilege or constitutes attorney work-product.
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Each notice delivered under this Section 5.02 (i) shall be in writing, (ii) shall contain a heading or a reference line that reads “Notice under Section 5.02 of the Alkermes Credit Agreement dated as of February 12, 2026” and (iii) shall be accompanied by a statement of a Financial Officer or other executive officer of the U.S. Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.
Notwithstanding anything to the contrary in this Section 5.02, none of the TopCo Borrower or any Restricted Subsidiary will be required to disclose any documents, information or other matter that (i) constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent (or any designated representative) is then prohibited by law, rule, regulation or any agreement binding on any Loan Party or any Restricted Subsidiary or (iii) is subject to attorney-client or similar privilege or constitutes attorney work-product.
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The designation of any Restricted Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the TopCo Borrower in such Subsidiary on the date of designation in an amount equal to the fair market value of the TopCo Borrower or its Restricted Subsidiary’s (as applicable) Investment therein (as reasonably determined by a Responsible Officer of the U.S. Borrower). The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute (i) an incurrence at the time of designation of any Investment, Indebtedness and/or Liens on the assets of such Subsidiary existing at such time and (ii) a return on any Investment by the applicable Loan Party or Restricted Subsidiary in Unrestricted Subsidiaries pursuant to the previous sentence in an amount equal to the fair market value at the date of such designation of such Loan Party or Restricted Subsidiary’s Investment in such Subsidiary.
Negative Covenants
Commencing on the Closing Date, until the Commitments have expired or terminated and the principal of and interest on each Loan and all fees due and payable hereunder have been paid in full (other than Unliquidated Obligations and Obligations expressly stated to survive such payment and termination), each Borrower covenants and agrees with the Lenders that:
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For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be incurred solely by reference to one category described in this Section 6.01, but is permitted to be incurred in part under any combination thereof and (B) in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (dd) above, the Borrowers may, in their sole discretion, divide or classify or later divide, classify or reclassify all or a portion of such item of Indebtedness in a manner that complies with this Section 6.01 and will only be required to include the amount and type of such Indebtedness (or any portion thereof) in one or more of the above clauses; provided that all Indebtedness outstanding under the Loan Documents will at all times be deemed to be outstanding in reliance only on the exception in Section 6.01(a).
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For purposes of determining compliance with this Section 6.02, (A) a Lien need not be incurred solely by reference to one category described in this Section 6.02, but is permitted to be incurred in part under any combination thereof and (B) in the event that a Lien securing an item of Indebtedness or other obligation (or any portion thereof) meets the criteria for more than one of the categories of Liens described in clauses (a) through (hh) above, the Borrowers may, in their sole discretion, divide or classify or later divide, classify or reclassify all or a portion of such Lien in a manner that complies with this Section 6.02 and will only be required to include the amount and type of such Lien in one or more of the above clauses; provided that all Liens securing Indebtedness outstanding under the Loan Documents will at all times be deemed to be outstanding in reliance only on the exception in Section 6.02(a).
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provided that any such merger or consolidation involving a Person that is not a Wholly-Owned Subsidiary immediately prior to such merger or consolidation shall not be permitted unless it is also permitted by Section 6.05.
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For purposes of determining compliance with this Section 6.04, (A) a Disposition need not be made solely by reference to one category described in this Section 6.04, but is permitted to be made in part under any combination thereof and (B) in the event that a particular Disposition meets the criteria of more than one of the categories of Dispositions described in clauses (a) through (s) above, the Borrowers may, in their sole discretion, divide or classify all or a portion of such Disposition in a manner that complies with this Section 6.04 and will only be required to include the amount and type of such Disposition (or any portion thereof) in one or more of the above clauses.
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For purposes of covenant compliance with this Section 6.05, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment, less any amount paid, repaid, returned, distributed or otherwise received in cash or Cash Equivalents in respect of such Investment. Notwithstanding the foregoing, no Investment in an Unrestricted
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Subsidiary is permitted under this Section 6.05, unless such Investment is permitted pursuant to clause (s), (t) and/or (dd) above.
Furthermore, for purposes of determining compliance with this Section 6.05, (A) an Investment need not be incurred solely by reference to one category described in this Section 6.05, but is permitted to be incurred in part under any combination thereof and (B) in the event that a particular Investment meets the criteria of more than one of the categories of Investments described in clauses (a) through (dd) above, the Borrowers may, in their sole discretion, divide or classify all or a portion of such Investment in a manner that complies with this Section 6.05 and will only be required to include the amount and type of such Investment (or any portion thereof) in one or more of the above clauses.
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For purposes of determining compliance with this Section 6.08, (A) a Restricted Payment need not be made solely by reference to one category described in this Section 6.08, but is permitted to be made in part under any combination thereof and (B) in the event that a particular Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described in clauses (a) through (o) above, the Borrowers may, in their sole discretion, divide or classify all or a portion of such Restricted Payment in a manner that complies with this Section 6.08 and will only be required to include the amount and type of such Restricted Payment (or any portion thereof) in one or more of the above clauses.
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For purposes of determining compliance with this Section 6.10(a), (A) a Restricted Debt Payment need not be made solely by reference to one category described in this Section 6.10(a), but is permitted to be made in part under any combination thereof and (B) in the event that a particular Restricted Debt Payment meets the criteria of more than one of the categories of Restricted Debt Payments described in clauses (i) through (vii) above, the Borrowers may, in their sole discretion, divide or classify all or a portion of such Restricted Debt Payment in a manner that complies with this Section 6.10(a) and will only be required to include the amount and type of such Restricted Debt Payment (or any portion thereof) in one or more of the above clauses.
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(c) On the Reinstatement Date, all Indebtedness incurred during the Covenant Suspension Period shall be classified as having been outstanding on the Closing Date, so that it is classified as permitted under Section 6.01(b).
(d) Calculations made after the Reinstatement Date of the amount available to be made as Restricted Payments under Section 6.08 shall be made as though Section 6.08 had been in effect prior to, but not during, the Covenant Suspension Period. Accordingly, Restricted Payments made during the Covenant Suspension Period shall not reduce the amount available to be made as Restricted Payments under Section 6.08.
(e) Notwithstanding that the Suspended Covenants may be reinstated, no Default or Event of Default will be deemed to have occurred as a result of a failure to comply with the Suspended Covenants during a Covenant Suspension Period (or on the Reinstatement Date or after a Covenant Suspension Period based solely on events that occurred during the Covenant Suspension Period).
(g) The U.S. Borrower will provide prompt written notice to the Administrative Agent of any Covenant Suspension Period Event and any Reinstatement Date. The Administrative Agent is not required under this Agreement to monitor the ratings of the Term Loans or to give notice to the Lenders of the occurrence of any Covenant Suspension Period Event or any Reinstatement Date.
Events of Default
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If an Event of Default described in Section 7.01(h) or 7.01(i) occurs with respect to any Borrower, subject to Section 4.03, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other Secured Obligations accrued hereunder and under any other Loan Document, shall automatically become due and payable, in each case, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers.
In addition to any other rights and remedies granted to the Administrative Agent and the Lenders in the Loan Documents, the Administrative Agent on behalf of the Lenders may exercise all rights and remedies of a secured party under the UCC or any other applicable law. Without limiting the generality of the foregoing, the Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Loan Party or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived by each Borrower on behalf of itself and its Subsidiaries), may in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, or consent to the use by any Loan Party of any cash collateral arising in respect of the Collateral on such terms as the Administrative Agent deems reasonable, and/or may forthwith sell, lease, assign give an option or options to purchase or otherwise dispose of and deliver, or acquire by credit bid on behalf of the Secured Parties, the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of the Administrative Agent or any Lender or elsewhere, upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery, all without assumption of any credit risk. The Administrative Agent or any Lender shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption in any Loan Party, which right or equity is hereby waived and released by each Borrower on behalf of itself and its Subsidiaries. Each Borrower further agrees on behalf of itself and its Subsidiaries, at the Administrative Agent’s request, to assemble the Collateral and make it available to the Administrative Agent at places which the Administrative Agent shall reasonably select, whether at the premises of any Borrower, another Loan Party or elsewhere. The Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Article VII, after deducting all reasonable and documented out-of-pocket costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any other way relating to the Collateral or the rights of the Administrative Agent and the Lenders hereunder, including
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reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Secured Obligations, in such order as set forth in Section 7.03, and only after such application and after the payment by the Administrative Agent of any other amount required by any provision of law, including Section 9-615(a)(3) of the New York Uniform Commercial Code, need the Administrative Agent account for the surplus, if any, to any Loan Party. To the extent permitted by applicable law, each Borrower on behalf of itself and its Subsidiaries waives all Liabilities it may acquire against the Administrative Agent or any Lender arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least ten (10) days before such sale or other disposition.
The Administrative Agent
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender and each other Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders or the other Secured Parties, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under
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Section 9.03). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Secured Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
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The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agent’s Lien thereon or any certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the Lenders or any other Secured Party for any failure to monitor or maintain any portion of the Collateral.
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Miscellaneous
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ALKERMES PLC
Connaught House
1 Burlington Road
Dublin 4, Ireland D04 C5Y6
Attention: Joshua Reed
Senior Vice President, Chief Financial Officer
Email: [****]
With a copy (which shall not constitute notice) to:
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza,
New York NY 10006
Attention: Amy R. Shapiro
Email: [****]
ALKERMES, INC.
900 Winter Street
Waltham, MA 02451
Attention: Joshua Reed
Senior Vice President, Chief Financial Officer
Email: [****]
With a copy (which shall not constitute notice) to:
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza,
New York NY 10006
Attention: Amy R. Shapiro
Email: [****]
ALKERMES, INC.
900 Winter Street
Waltham, MA 02451
Attention: Joshua Reed
Senior Vice President, Chief Financial Officer
Email: [****]
With a copy (which shall not constitute notice) to:
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza,
New York NY 10006
Attention: Amy R. Shapiro
Email: [****]
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Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices delivered through Approved Electronic Platforms, to the extent provided in clause (b) below, shall be effective as provided in said clause (b).
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For the purposes of this Section 9.04(b), the terms “Approved Fund” and “Ineligible Institution” have the following meanings:
“Approved Fund” means any Person (other than a natural person or a Disqualified Institution) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Ineligible Institution” means (a) a natural person, (b) any Borrower, any Subsidiary of any Borrower or any Affiliate of any Borrower, (c) a Defaulting Lender or its Lender Parent, (d) a company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person or relative(s) thereof or (e) a Disqualified Institution.
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EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN THE IMMEDIATELY PRECEDING PARAGRAPH FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWERS, THE MEMBERS OF THE TARGET GROUP AND THEIR RESPECTIVE AFFILIATES AND RELATED PARTIES OR THE RESPECTIVE SECURITIES OF EACH OF THE FOREGOING, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY ANY BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWERS, THE OTHER LOAN PARTIES, THE MEMBERS OF THE TARGET GROUP AND THEIR RESPECTIVE AFFILIATES AND RELATED PARTIES OR THE RESPECTIVE SECURITIES OF EACH OF THE FOREGOING. ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWERS AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.
For the avoidance of doubt, nothing in this Section 9.12 shall prohibit any person from voluntarily disclosing or providing any information within the scope of this Section 9.12 to any governmental, regulatory or self-regulatory organization to the extent that any such prohibition on disclosure set forth in this Section 9.12 shall be prohibited by the laws or regulations applicable to such governmental, regulatory or self-regulatory organization.
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In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC
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and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
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[Signature Pages FollowIntentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective authorized officers as of the day and year first above written.
ALKERMES PLC, as the TopCo Borrower
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JPMORGAN CHASE BANK, N.A.,
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1
[Signature Page to Credit Agreement]
Exhibit B
Exhibit H-2
[Attached]
Exhibit B to Amendment No. 1 to Credit Agreement
EXHIBIT H-2
FORM OF
INITIAL2026 REFINANCING TRANCHE B TERM LOAN NOTE
[_____] [__], 2026
FOR VALUE RECEIVED, the undersigned, ALKERMES, INC., a Pennsylvania corporation and an indirect wholly-owned subsidiary of the TopCo Borrower (as defined below) (the “U.S Borrower”) and ALKERMES FINANCE LLC, a Delaware limited liability company and an indirect wholly-owned subsidiary of the TopCo Borrower (the “U.S. Co-Borrower” and together with the U.S. Borrower, each a “TLB Borrower” and collectively, the “TLB Borrowers”) HEREBY UNCONDITIONALLY PROMISE TO PAY, on a joint and several basis, to [NAME OF LENDER] (the “Lender”) the principal amount of (i) DOLLARS ($[•]), or, if less, (ii) the aggregate unpaid principal amount of all Initial2026 Refinancing Tranche B Term Loans owing to the Lender pursuant to the “Credit Agreement” (as defined below). The principal amount shall be paid in the amounts and on the dates specified in Section 2.10(b) of the Credit Agreement. Capitalized terms used herein and not otherwise defined herein are as defined in the Credit Agreement.
The undersigned TLB Borrowers promise to pay, on a joint and several basis, interest on the unpaid principal amount of all Initial2026 Refinancing Tranche B Term Loans owing to the Lender at a rate or rates per annum determined in accordance with the terms of the Credit Agreement. Interest hereunder is due and payable at such times and on such dates as set forth in the Credit Agreement.
This promissory note (the “Note”) is one of the notes referred to in, and is entitled to the benefits of, that certain Credit Agreement dated as of February 12, 2026 by and among ALKERMES PLC, a company incorporated under the laws of Ireland (registered number 498284) (the “TopCo Borrower” and together with the U.S. Borrower and the U.S. Co-Borrower, each a “Borrower” and, collectively, the “Borrowers”), the U.S. Borrower, the U.S. Co-Borrower, the lenders from time to time party thereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”). The Credit Agreement, among other things, contains provisions for acceleration of the maturity hereof upon the happening of certain stated events and also for prepayments of the principal hereof prior to the maturity hereof upon the terms and conditions therein specified.
This Note is guaranteed as provided in the Guaranty and secured by the Collateral Documents. Reference is hereby made to the Collateral Documents for a description of the collateral thereby mortgaged, warranted, bargained, sold, released, conveyed, assigned, transferred, pledged and hypothecated, the nature and extent of the security for this Note, the rights of the holder of this Note, the Administrative Agent in respect of such security and otherwise.
Demand, presentment, protest and notice of nonpayment and protest are hereby waived by the TLB Borrowers. Whenever in this Note reference is made to the Administrative Agent, the Lender or the TLB Borrowers, such reference shall be deemed to include, as applicable, a reference to their respective successors and assigns. Subject to Section 9.04 of the Credit Agreement, the provisions of this Note shall be binding upon and shall inure to the benefit of said successors and assigns. Each TLB Borrower’s successors and assigns shall include, without limitation, a receiver, trustee or debtor in possession of or for such TLB Borrower.
Upon the occurrence of the Final Release Conditions, this Note shall be deemed automatically cancelled.
Exhibit H-2 - 1
THIS NOTE SHALL NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS OF THE CREDIT AGREEMENT. TRANSFERS OF THIS NOTE MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF THE CREDIT AGREEMENT.
This Note shall be construed in accordance with and governed by the law of the State of New York.
Exhibit H-2 - 2
IN WITNESS WHEREOF, the undersigned have caused this Note to be duly executed by its authorized officer as of the day and year first above written.
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Exhibit H-2 - 3