FIP 8-K
FTAI Infrastructure Inc. (FIP)
8-K
2025-08-25
For: 2025-08-25
View Original
Added on
April 12, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 25, 2025
(Exact name of registrant as specified in its charter)
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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(Address of principal executive offices)
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(Zip Code)
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(212 ) 798-6100
(Registrant’s telephone number, including area code)
Not applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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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 13e-4(c) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading Symbol(s)
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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).
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.
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On August 25, 2025 (the “Closing Date”), FIP RR Holdings LLC (“RR Holdings”), a subsidiary of FTAI Infrastructure Inc. (the “Company”),
closed the previously announced transactions contemplated by the stock purchase agreement, dated as of August 6, 2025 (the “Agreement”), between RR Holdings
(as successor-in-interest to Percy Acquisition LLC (“Percy”)) and WLE Management Partners, L.P. (“Seller”), pursuant to which RR Holdings purchased all of the issued and outstanding capital stock of The Wheeling Corporation (“Wheeling”)
from Seller (the “Acquisition”). Prior to the closing of the Acquisition, Percy assigned its rights and obligations under the Agreement to RR Holdings, a
wholly-owned subsidiary of Percy. The aggregate cash consideration paid in exchange for all of the issued and outstanding capital stock of Wheeling at closing was approximately $1.05 billion, subject to customary adjustments. A portion of the cash
consideration was placed into escrow to secure any post-closing purchase price adjustment payment obligations under the Agreement.
Voting Trust Agreement
In addition, on the Closing Date, RR Holdings entered into a voting trust agreement (the “Voting Trust Agreement”) with John Giles (the “Voting Trust Trustee”). All of the capital stock of Wheeling was transferred into a voting
trust (the “Voting Trust”) governed by the Voting Trust Agreement pursuant to the rules established by the U.S. Surface Transportation Board (the “STB”). The capital stock of Wheeling held in the Voting Trust will be released to RR Holdings upon approval of the Acquisition by the STB. The Voting Trust is
irrevocable and will terminate (1) upon STB approval of RR Holdings’ control authority over Wheeling & Lake Erie Railway Company (“WLE”) and Akron
Barberton Cluster Railway Company (“AB”), both wholly-owned subsidiaries of Wheeling, or (2) automatically on December 31, 2027, unless extended pursuant to
the terms of the Voting Trust Agreement. If the STB denies RR Holdings’ control authority over WLE and AB, then RR Holdings will have two years, subject to certain extensions, following such denial to sell the capital stock of Wheeling.
Pursuant to the Voting Trust Agreement, the Voting Trust Trustee, among other things: (1) will exercise any and all voting rights regarding the capital stock of
Wheeling; (2) will vote in favor of any proposal or necessary action in order to effect the Acquisition; (3) will vote all capital stock with respect to all matters, including the election or removal of officers or managers, as voted on by the owners
of Wheeling, in the Voting Trust Trustee’s sole discretion, having due regard of the interests of RR Holdings; (4) will maintain complete independence from RR Holdings and its affiliates throughout the term of the Voting Trust, including by not
having any business arrangements with, or owning any stock or securities of, RR Holdings or its affiliates; (5) will not participate or interfere with the day-to-day management of Wheeling, WLE or AB; (6) will not approve any merger or asset
disposition of Wheeling without the prior written consent of RR Holdings; and (7) will not pledge the capital stock of Wheeling or any of the major assets of Wheeling, WLE or AB without the prior written consent of RR Holdings. Furthermore, RR
Holdings may, with prior written approval of the STB, instruct the Voting Trust Trustee in writing to vote in a certain manner, in which case the Voting Trust Trustee must vote in accordance with such written instructions.
Prior to the termination of the Voting Trust, the Voting Trust Trustee, upon receipt of cash distributions from Wheeling, will pay the same to RR Holdings. RR Holdings
will indemnify and hold the Voting Trust Trustee harmless from any losses, liabilities, or expenses arising out of the administration of the Voting Trust (including legal fees and the costs of litigation or regulatory proceedings), except where such
losses are due to the Voting Trust Trustee’s gross negligence or willful misconduct.
The foregoing description of the Voting Trust Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the Voting Trust
Agreement, a copy of which is filed as Exhibit 9.1 hereto.
Bridge Loan Credit Agreement
On the Closing Date, in connection with the Acquisition, the Company entered into a credit agreement (the “Bridge Loan Credit Agreement”) with BARCLAYS, as administrative agent (the “Administrative Agent”) and the lenders party
thereto. The Bridge Loan Credit Agreement provides for a 364-day, $1.25 billion secured bridge loan facility (the “Bridge Loan”). The Bridge Loan will mature
on August 24, 2026.
Interest under the Bridge Loan will accrue at the Adjusted Secured Overnight Financing Rate, plus a margin of 4.00% per annum.
The Bridge Loan Credit Agreement requires that the Bridge Loans be repaid with the proceeds of certain asset sales, casualty condemnations and recovery events, subject
to customary reinvestment rights, and issuances of certain equity and debt securities and borrowing of debt.
The Bridge Loan Credit Agreement contains customary representations and warranties, affirmative covenants, and negative covenants. The negative covenants limit the
Company and its subsidiaries’ ability to, among other things, (i) create liens on the Company’s or such subsidiaries’ assets, (ii) incur indebtedness, (iii) engage in fundamental changes, (iv) make restricted payments (including investments), (v)
engage in certain transactions with affiliates and (vi) enter into agreements restricting the ability of the Company’s subsidiaries to make distributions to the Company.
The Bridge Loan Credit Agreement also contains customary events of default. The occurrence of an event of default could result in the acceleration of all outstanding
amounts under the Bridge Loan.
On the Closing Date, the Company and the Administrative Agent entered into a security agreement, pursuant to which the Company granted a first-priority security interest
in substantially all of its assets, subject to customary exceptions and exclusions.
The foregoing description of the Bridge Loan Credit Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the Bridge
Loan Credit Agreement, a copy of which is filed as Exhibit 10.1 hereto.
RR Holdings Series A Preferred Stock and Warrants
On the Closing Date, in connection with the Acquisition, FIP RR Holdings LLC (“RR Holdings”),
a Delaware limited liability company and an indirect subsidiary of the Company, issued (i) 1,000,000 newly-created Series A Preferred Units (the “Series A
Preferred Units”) and (ii) warrants (the “Warrants”) representing the right to purchase, on the terms and subject to the conditions set forth in
the Warrants, 172,500 common units of RR Holdings at an exercise price of $857.748 per unit (as adjusted in accordance with the Warrant Agreement (as defined below)), for an aggregate purchase price of $1,000,000,000. The Warrants provide the
holders the right to purchase up to 20% of the common units of RR Holdings. The Series A Preferred Units and the Warrants were issued pursuant to a subscription agreement, dated as of August 25, 2025, between RR Holdings and funds managed by Ares
Management.
Amended and Restated Limited Liability Company Agreement
In connection with the issuance and sale of the Series A
Preferred Units and Warrants, RR Holdings, the Company (solely with respect to Section 2.3(c) and Section 12.21 thereto) and the other parties thereto executed the Amended and Restated Limited Liability Company of RR Holdings, dated as of August 25, 2025 (the “LLC Agreement”), for the purpose of, among other things, establishing the preferences, rights and other terms governing the Series A Preferred Units. The LLC Agreement has the following terms with
respect to the Series A Preferred Units:
Distributions on the Series A Preferred Units are payable at a rate equal to (i) 10.0% per annum from the Closing Date until
the third anniversary from the Closing Date, (ii) 12.0% per annum from the first day following the third anniversary of the Closing Date until the sixth anniversary of the date issuance, and (iii) 14.0% per annum from the first day following the
sixth anniversary of the Closing Date and thereafter, in each case, subject to increases in accordance with the terms of the Series A Preferred Units. Specifically, the rate will be (i) increased by 2.0% per annum for any periods following the fifth
anniversary of the Closing Date where the distribution is not paid in cash and (ii) increased by 2.0% per annum upon an Event of Noncompliance (as defined in the LLC Agreement and described below).
Prior to the fifth anniversary of the Closing Date of the Series
A Preferred Units, such distributions will automatically accrue and accumulate on each Series A Preferred Unit, whether or not declared and paid, or they may be paid in cash at the discretion of RR Holdings. After the fifth anniversary of the
Closing Date of the Series A Preferred Units, RR Holdings is required to pay such distributions in cash. From the Closing Date until the fifth anniversary of the Closing Date, RR Holdings may make cash distributions on its common units, including distributions that would provide the Company cash to pay its interest payments on its debt, on the terms and limitations set forth in the
LLC Agreement.
The Series A Preferred Units are mandatorily redeemable upon the occurrence of certain events pursuant to the LLC Agreement,
including, but not limited to, a change of control (each a “Mandatory Redemption Event”). Upon the occurrence of a Mandatory Redemption Event, to the extent
not prohibited by law, RR Holdings will be required to redeem all Series A Preferred Units, Warrants and/or the common units that have been issued upon exercise of the Warrants (the “Warrant Units”) in cash at a redemption price determined in accordance with the LLC Agreement.
At any time and from time to time after the Closing Date of the Series A Preferred Units, to the extent not prohibited by law,
RR Holdings may redeem all, or a portion, of the Series A Preferred Units in cash at a redemption price determined in accordance with the LLC Agreement. If RR Holdings elects to redeem any of the Series A Preferred Units, it will be required to
repurchase the corresponding Warrants and/or Warrant Units in cash at a repurchase price determined in accordance with the LLC Agreement.
Upon an asset sale, RR Holdings is required to offer to
repurchase all of the Series A Preferred Units, Warrants and/or Warrant Units using the net proceeds from such asset sale, or, if the net proceeds are not sufficient to pay the price for all of the Series A Preferred Units, Warrants and/or Warrant
Units, only such number of Series A Preferred Units, Warrants and/or Warrants Units that can be repurchased with such net proceeds.
From and after the seventh anniversary of the Closing Date of the Series A Preferred Units, to the extent not prohibited by
law, holders of a majority of the Series A Preferred Units may request (the “Redemption Demand”) that RR Holdings redeem all (but not less than all) of the
Series A Preferred Units in cash at a redemption price determined in accordance with the LLC Agreement. To the extent the holders of the Series A Preferred Units exercise their rights in accordance with the preceding sentence, RR Holdings will be
required to repurchase the corresponding Warrants and/or Warrant Units in cash at a repurchase price determined in accordance with the LLC Agreement. In the event the Company fails to redeem all of the Series A Preferred Units within 120 days after
receiving the Redemption Demand, the holders of the Series A Preferred Units may force the Company to effect a sale of the company or another transaction constituting a change of control that results in the full redemption of the Series A Preferred
Units.
Upon an Event of Noncompliance, which include, but are not limited to, RR Holding’s (i) failure to redeem the Series A
Preferred Units, Warrants and/or Warrant Units upon a mandatory redemption event, (ii) failure to pay cash dividends for 12 monthly dividend periods (whether or not consecutive) following the fifth anniversary of the Closing Date, (iii) failure to
offer to repurchase the Series A Preferred Units, Warrants and/or Warrant Units upon an asset sale, (iv) failure to redeem all of the Series A Preferred Units prior to the August 25, 2034 and (v) failure to comply with certain of the covenants set
forth in the LLC Agreement, (i) the size of the board of managers of RR Holdings (the “Board”) will automatically increase by a number sufficient to
constitute a majority of the Board, (ii) the holders of a majority of the Series A Preferred Units will have the right to designate and elect a majority of the members of the Board, and (iii) other than with respect to the election of managers, the
Series A Preferred Units will vote with the common unit as a single class (with the number of votes per unit determined in accordance with the LLC Agreement).
The LLC Agreement contains negative covenants limiting certain activities of RR Holdings and its subsidiaries. These covenants,
among other things, limit RR Holdings and its subsidiaries’ ability to (i) incur indebtedness, (ii) issue any new equity securities of RR Holdings, (iii) issue equity interests of any subsidiary of RR Holdings, (iv) amend or repeal the LLC Agreement
in a manner that is adverse to the holders of the Series A Preferred Units, (v) pay dividends or make other distributions, (vi) create liens, (vii) incur distribution or other payment restrictions affecting the Series A Preferred Units, (viii)
transfer or sell assets, including capital stock of subsidiaries, (ix) enter into transactions with affiliates, (x) engage in certain prohibited business activities, and (xi) engage in certain intercompany transactions, in each case, subject to
certain exceptions.
The foregoing description of the LLC Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the LLC Agreement, a copy
of which is filed as Exhibit 10.2 hereto.
Warrant Agreement
In connection with the Acquisition, RR Holdings entered into the Warrant Agreement dated August 25, 2025, with the Company (solely with respect to Section 7 and Section
14 thereto) and the holders party thereto, pursuant to which it issued the Warrants entitling the holders thereof to purchase 172,500 common units of RR Holdings, which will be exercisable beginning the earlier of (i) the fifth anniversary of the
their initial issuance and (ii) the date on which all obligations under the Permanent Debt Financing (as defined in the Warrant Agreement) have been repaid in full and ending at 5:00 p.m., New York City time, on August 25, 2035. The number of common
units purchasable pursuant to the Warrants may be adjusted from time to time to account for equity splits, contributions, dividends, below-market insurances of common equity and similar items. Following the sixth anniversary of the initial Closing
Date of the Warrants, holders are entitled to require RR Holdings to exchange any or all of its Warrants for either (i) cash equal to the fair market value of the warrants on the last business day prior to the exchange or (ii) the number of shares of
common stock, par value $0.01 per share, of the Company with an aggregate current market price on the last trading day prior to the exchange equal to the fair market value of the Warrants on such date.
The foregoing description of the Warrant Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the Warrant Agreement,
a copy of which is filed as Exhibit 10.3 hereto.
| Item 1.02 |
Termination of a Material Definitive Agreement.
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Redemption of the 10.500% Senior Secured Notes due 2027
In connection with the Acquisition, on August 15, 2025, using net proceeds from the Bridge Loans, the Company deposited with U.S. Bank Trust Company, National
Association, as trustee (the “Notes Trustee”), under the indenture
(the “Indenture”) governing the Company’s 10.500% Senior Secured Notes due 2027 (the “Notes”), approximately $646.4 million in trust and irrevocably instructed the Notes Trustee to apply such funds to redeem, on August 26, 2025 (the “Notes Redemption Date”), all outstanding $600,000,000 aggregate principal amount of the Notes at a redemption price equal to
105.250% of the principal amount of the Notes, plus accrued and unpaid interest on the Notes, if any, from June 1, 2025 (the last interest payment date prior to the Notes Redemption Date) to, but excluding, the Notes Redemption Date. Upon deposit of
such redemption amount, the Indenture was satisfied and discharged in accordance with its terms. As a result of the satisfaction and discharge of the Indenture, the Company and each of the guarantors party thereto were released from their respective
obligations under the Indenture, except with respect to those obligations of the Indenture that, by their terms, surviving such satisfaction and discharge, and all liens securing the collateral were released.
The information contained in this Current Report on Form 8-K does not constitute a notice redemption of the Notes. Holders of the Notes should refer to the notice of
redemption delivered to the registered holders of the Notes by the Trustee on August 15, 2025.
| Item 2.01 |
Completion of Acquisition or Disposition of Assets.
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On the Closing Date, the Company completed the Acquisition whereby RR Holdings has acquired all of the issued and outstanding capital stock of Wheeling.
The material terms of the Agreement were previously reported in Item 1.01 of the Current Report on Form 8-K filed on August 6, 2025 (the “August Form 8-K”) with the Securities and Exchange Commission (the “SEC”). The foregoing
description of the Agreement and the Acquisition contemplated thereby does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Agreement, a copy of which was filed with the SEC as Exhibit 10.1 to the
August Form 8-K, and is incorporated into this Item 2.01 by reference.
| Item 2.03 |
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
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The description of the Bridge Loan Credit Agreement included under Item 1.01 of this Current Report on Form 8-K, and the complete terms and conditions thereof attached
hereto as Exhibit 10.1, is incorporated into this Item 2.03 by reference.
| Item 3.02 |
Unregistered Sales of Equity Securities.
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The description of the Series A Preferred Units and Warrants included under Item 1.01 of this Current Report on Form 8-K, and the complete terms and conditions thereof
attached hereto as Exhibit 10.2, respectively, are incorporated into this Item 3.02 by reference. The offering and sale of the Series A Preferred Units and Warrants is exempt from the registration requirements of the Securities Act of 1933, as
amended (the “Securities Act”) pursuant to the exemption for transactions by an issuer not involving any public offering under Section 4(a)(2) of the
Securities Act and Rule 506 of Regulation D of the Securities Act and in reliance on similar exemptions under applicable state laws.
| Item 3.03 |
Material Modification to Rights of Security Holders.
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The description of the Series A Preferred Units and Warrants included under Item 1.01 of this Current Report on Form 8-K are incorporated into this
Item 3.03 by reference.
| Item 8.01 |
Other Events.
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Redemption of the Company Series A Preferred Stock
In connection with the Acquisition, on the Closing Date (the “Preferred Redemption
Date”), the Company redeemed all of its outstanding 300,000 shares of Series A Senior Preferred Stock, par value $0.01 per share (the “Company Series A
Preferred Stock”), at a redemption price per share equal to the greater of (A) the Liquidation Value (as defined in the Certificate of Designations (as defined herein)) of such share of Company Series A Preferred Stock and (B) the Base
Preferred Return Amount (as defined in the Certificate of Designations) with respect thereto, in each case, calculated as of the Preferred Redemption Date, pursuant to the Certificate of Designations governing the Company Series A Preferred Stock
(the “Certificate of Designations”). On the Preferred Redemption Date, the Company paid the holders of the Company Series A Preferred Stock approximately
$1,490 per share, for an aggregate payment of approximately $447.1 million in cash using a portion of the net proceeds from the Bridge Loans. Following the redemption, all designations, rights, preferences, powers, qualifications, restrictions and
imitations of the Company Series A Preferred Stock terminated and no shares of Company Series A Preferred Stock remain outstanding.
| Item 9.01 |
Financial Statements and Exhibits.
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(a) Financial Statements of Business Acquired
The financial statements required by Item 9.01(a) of Form 8-K will be filed by amendment to this Current Report on Form 8-K no later than 71 days following the date on
which this Current Report on Form 8-K was required to be filed pursuant to Item 2.01.
(b) Pro Forma Financial Information
The financial statements required by Item 9.01(b) of Form 8-K will be filed by amendment to this Current Report on Form 8-K no later than 71 days following the date on
which this Current Report on Form 8-K was required to be filed pursuant to Item 2.01.
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Exhibits.
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Exhibit No.
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Description
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| 2.1 | Stock Purchase Agreement, dated as of August 6, 2025, between Percy Acquisition LLC and WLE Management Partners, L.P. (incorporated by reference to Exhibit 10.1 to FTAI Infrastructure Inc.’s Current Report on Form 8-K, filed August 6, 2025). | |
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Voting Trust Agreement, dated as of August 25, 2025, by and among FIP RR Holdings LLC and John Giles.
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Credit Agreement, dated as of August 25, 2025, among FTAI Infrastructure Inc., the guarantors from time to time party thereto, the Lenders from time to time party thereto and
BARCLAYS, as administrative agent.
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Amended and Restated Limited Liability Company Agreement of FIP RR Holdings LLC, dated as of August 25, 2025, by and among FIP RR Holdings LLC, FTAI Infrastructure Inc. (solely with
respect to Section 2.3(c) and Section 12.21) and the other parties thereto.
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Warrant Agreement, dated as of August 25, 2025, by and among FIP RR Holdings LLC, FTAI Infrastructure Inc. (solely with respect to Section 7 and Section 14) and the holders party
thereto.
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104
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Cover Page Interactive Data File (the cover page XBRL tags are embedded within the iXBRL document).
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* The registrant has omitted certain schedules and exhibits pursuant to Item 601(a)(5) of Regulation S-K. The registrant agrees to
furnish supplementally a copy of any omitted schedule or exhibit to the Securities and Exchange Commission upon request.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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Date: August 25, 2025
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FTAI Infrastructure Inc.
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By:
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/s/ Kenneth J. Nicholson
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Kenneth J. Nicholson
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Chief Executive Officer
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Exhibit 9.1
Execution Version
VOTING TRUST AGREEMENT
THIS VOTING TRUST AGREEMENT (“Trust Agreement”), dated as of August 25, 2025, by and among FIP RR Holdings LLC (“FIP RR
Holdings” or “Buyer”) and John Giles (“Trustee”
and, together with FIP RR Holdings, the “Parties” and each a “Party”).
WITNESSETH:
WHEREAS, it is intended that pursuant to and upon the terms
and conditions set forth in that certain Stock Purchase Agreement, dated as of August 6, 2025 (the “Purchase Agreement”), by and among Buyer, as
successor by assignment to Percy Acquisition LLC, and WLE Management Partners, L.P. (the “Seller”), all of the shares of The Wheeling Corporation (the “Company”), a Delaware corporation, will be conveyed to Buyer (the “Transaction”);
WHEREAS, prior to the date hereof, in accordance with Section
10.04 of the Purchase Agreement, Percy Acquisition LLC assigned its rights and obligations under the Purchase Agreement to Buyer pursuant to that certain Assignment and Assumption Agreement, by and between Percy Acquisition LLC and Buyer;
WHEREAS, the Company owns all of the issued and outstanding
shares of the Wheeling & Lake Erie Railway Company (“WLE”), a Delaware corporation and common carrier by rail, and the Akron Barberton Cluster
Railway Company (“AB”), an Ohio corporation and common carrier by rail;
WHEREAS, it is intended that the closing of the Transaction
will occur prior to the issuance by the Surface Transportation Board (the “STB”) of any required approval for, or exemption of, Buyer’s control of the
Company and, therefore, indirect control of WLE and AB;
WHEREAS, Buyer intends, contemporaneously with the closing of
the Transaction, to cause the deposit of the shares of the Company in an independent, irrevocable voting trust (the “Trust”) pursuant to 49 C.F.R. Part
1013 and STB precedent, in order to avoid any allegation or assertion that Buyer or any affiliate of Buyer is controlling or has the power to indirectly control WLE and AB prior to the receipt of any required STB approval or exemption;
WHEREAS, the deposit of the issued and outstanding shares of
the Company into the Trust is for the purpose of providing assurance that Buyer will satisfy its obligation under the ICC Termination Act and STB rules and precedents to avoid premature indirect control of WLE and AB pending STB review and approval
of such control;
WHEREAS, neither the Trustee nor any of its affiliates has any
officers or board members in common or any direct or indirect business arrangements or dealings (as described in Paragraph 10 hereof) with Buyer or the Company or any of their affiliates (including WLE and AB); and
WHEREAS, the Trustee is willing to act as voting trustee in
accordance with the terms of this Trust Agreement and the rules of the STB.
NOW, THEREFORE, the Parties hereto agree as follows:
1. Appointment of Trustee. Buyer hereby irrevocably appoints John Giles as Trustee hereunder, and John Giles hereby accepts said appointment and agrees to act as Trustee under this
Trust Agreement as provided herein.
2. Deposit of Trust Interests.
(a) Immediately upon closing of the Transaction, Buyer
agrees that it will deposit with the Trustee the certificate or certificates for the issued and outstanding shares of the Company purchased by Buyer pursuant to the Transaction. All such certificates shall be duly endorsed or accompanied by
proper instruments duly executed for transfer thereof to the Trustee, and shall be exchanged for one or more Voting Trust Certificates substantially in the form attached hereto as Exhibit A (the “Trust Certificates”), with the blanks therein appropriately filled in and showing Buyer as the registered holder of the Trust Certificates. All of the shares at any time delivered to the Trustee
hereunder are referred to hereinafter as the “Trust Interests.” The Trustee shall present to the Company all certificates representing Trust Interests
for surrender and cancellation of such certificates and for the issuance and delivery to the Trustee of new certificates registered in the name of the Trustee or its nominee, with appropriate legends to reflect the terms and conditions of this
Voting Trust Agreement. Buyer and the Trustee agree that the deposit of the Trust Interests with the Trustee pursuant to this Section 2 shall not result in a change in the beneficial ownership of the Trust Interests and shall not result in a
sale, disposition, lease or exchange with the Trustee of the Trust Interests.
(b) The Parties agree (i) to treat, for U.S. federal
income tax purposes, each beneficial owner of Trust Certificates as the beneficial owner of the underlying Trust Interest and (ii) not to take any position inconsistent with the treatment described in (i) on any tax return, in any tax proceeding
or otherwise except to the extent required by a “determination” within the meaning of Section 1313(a) of the Internal Revenue Code of 1986.
3. Acquisition of Additional Stock or Securities. Buyer agrees that immediately upon receipt, acquisition or purchase by it or any of its affiliates of any additional shares, or any
other voting securities of the Company, it will deposit or cause to be deposited to the Trustee the certificate or certificates representing such additional shares or securities.
4. The Trustee’s Power.
(a) The Trustee shall be present, in person or represented
by proxy, at all annual and special meetings of equity holders of the Company so that all Trust Interests may be counted for the purposes of determining the presence of a quorum at such meetings. The Trustee shall be entitled and it shall be its
duty to exercise any and all voting rights in respect of the Trust Interests either in person or by proxy or consent, as hereinafter provided unless otherwise directed by an order of the STB or a court of competent jurisdiction. Buyer agrees, and
the Trustee acknowledges, that the Trustee shall not participate in or interfere with the management of the Company, WLE or AB and shall take no other actions with respect to the Company, WLE or AB except in accordance with the terms hereof, the
terms of the Purchase Agreement, the certificate of incorporation and bylaws of the Company or any orders of the STB. The Trustee shall exercise all voting rights in respect of the Trust Interests in favor of any proposal or action necessary or
desirable to effect, or consistent with the effectuation of, the acquisition of the Company by Buyer or its designee pursuant to the Purchase Agreement. In exercising the Trustee’s voting rights with respect to the Trust Interests, the Trustee
shall vote in accordance with, and to maintain in effect, the terms and intent of the Purchase Agreement and the certificate of incorporation and bylaws of the Company, including, but not limited to, the following: the Trustee shall not sell,
lease, assign, transfer, alienate, pledge, encumber or hypothecate the Trust Interests or any major assets of the Company, WLE or AB or any right or interest therein, whether voluntarily or by operation of law or by gift or otherwise, nor shall
Trustee cause the Company, WLE or AB to merge or consolidate with or into any other entity, without the prior written authorization of Buyer (other than in connection with a disposition pursuant to Paragraph 9). In addition, until the STB has
issued a final order approving or exempting the Transaction, the Trustee shall vote all Trust Interests to cause any other proposed merger, business combination or similar transaction (including, without limitation, any consolidation, sale of all
or substantially all the assets, reorganization, recapitalization, liquidation or winding up of or by the Company, WLE or AB) involving the Company, WLE or AB, but not involving Buyer or one of its affiliates (other than in connection with a
disposition pursuant to Paragraph 9), not to be effected. The Trustee shall vote all Trust Interests in favor of any proposal or action necessary or desirable to dispose of Trust Interests in accordance with Paragraph 9 hereof.
(b) Except as otherwise expressly provided herein, the
Trustee shall vote all Trust Interests with respect to all matters, including, without limitation, the election or removal of officers or managers, voted on by the owners of the Company (whether at a regular or special meeting or pursuant to a
unanimous written consent) in the Trustee’s sole discretion, having due regard for the interests of the holders of the Trust Certificates as investors in the Company, WLE, and AB, determined without reference to such holders’ interests in
railroads other than WLE or AB or its subsidiaries; provided that the Trustee shall not vote the Trust Interests in favor of taking or doing any act which would violate any provision of the Purchase Agreement (or impede the Company’s performance
thereunder) or violate any provision of the certificate of incorporation and bylaws of the Company. Notwithstanding the foregoing provisions of this Paragraph 4 or any other provision of this Trust Agreement, the registered holder of a Trust
Certificate may at any time—but only with the prior written approval of the STB—instruct the Trustee in writing to vote the Trust Interests represented by such Trust Certificate in any manner, in which case the Trustee shall vote such shares in
accordance with such instructions. In exercising its voting rights in accordance with this Paragraph 4, the Trustee shall take such actions at all annual, special or other meetings of equity holders of the Company or in connection with any action
by consent in lieu of a meeting.
5. Irrevocable Trust. This Trust Agreement and the nomination of the Trustee during the term of the Trust shall be irrevocable by Buyer and its affiliates, and shall terminate only
in accordance with the provisions of Paragraphs 9 and 15 hereof.
6. Subject to Paragraphs 4(a) and 4(b),
the Trustee shall not exercise the voting powers of the Trust Interests in any way so as to create any dependence or intercorporate relationship between or among (i) Buyer and its affiliates, on the one hand and (ii) the Company or its affiliates
(including WLE and AB), on the other hand. The terms “affiliate” or “affiliates” wherever
used in this Trust Agreement shall have the meaning specified in 49 U.S.C. § 11323(c). The Trustee shall not, without the prior approval of the STB, vote the Trust Interests to elect any officer, director, nominee or representative of Buyer or
any of its affiliates as an officer, manager or director of the Company or any affiliate of the Company. The Trustee shall be kept informed with respect to the business operations of the Company by means of the financial statements prepared by
the Company and such other periodic reports as the Trustee may request from time to time. Each of the Parties hereto agrees to promptly furnish to the other Party copies of such financial statements and periodic reports with respect to the
Company, WLE, and AB following receipt thereof. The Trustee shall be fully protected in relying upon such information provided by the Company. The Trustee shall not be liable for any mistakes of fact or law or any error of judgment, or for any
act or omission, except as a result of the Trustee’s willful misconduct or gross negligence.
7. Transfer of Trust Certificates. All Trust Certificates shall be transferable on the books of the Trustee by the registered holder upon the surrender thereof properly assigned, in
accordance with rules from time to time established for this purpose by the Trustee. Until so transferred, the Trustee may treat the registered holder as owner of the applicable Trust Certificates for all purposes. Each transferee of a Trust
Certificate issued hereunder shall, by its acceptance thereof, assent to and become a party to this Trust Agreement, and shall assume all attendant rights and obligations.
8. Dividends and Distributions. Pending the termination of this Trust as hereinafter provided, the Trustee shall, immediately following the receipt of each cash dividend as may be
declared and paid upon the Trust Interests, pay the same over to or as directed by the registered holder or holders of Trust Certificates hereunder, as then known to the Trustee. The Trustee shall receive and hold dividends and distributions
other than cash upon the same terms and conditions as the Trust Interests and shall issue Trust Certificates representing any new or additional securities that may be paid as dividends upon the Trust Interests or otherwise distributed upon the
Trust Interests to the registered holder(s) of Trust Certificates in proportion to their respective interests.
9. Disposition of Trust Interests; Termination of Trust.
(a) This Trust is accepted by the Trustee subject to the
right hereby reserved in Buyer at any time to cause to sell or make any other disposition of the whole or any part of the Trust Interests, whether or not an event described in subparagraph (b) below has occurred. The Trustee shall take all
actions reasonably requested by Buyer with respect to (including, without limitation, exercising all voting rights in respect of Trust Interests in favor of any proposal or action necessary or desirable to effect, or consistent with the
effectuation of) any proposed direct or indirect sale or other disposition of the whole or any part of the Trust Interests by Buyer. The Trustee shall at any time upon the receipt of a direction from Buyer signed by one of its authorized officers
designating the person or entity to whom Buyer has directly or indirectly sold or otherwise disposed of the whole or any part of the Trust Interests and certifying that such person or entity is not an affiliate of Buyer and has all necessary
regulatory authority, if any be required, to purchase the Trust Interests (upon which certification the Trustee shall be entitled to rely), immediately transfer to the person or entity therein named all the Trustee’s right, title and interest in
such amount of the Trust Interests as may be set forth in said direction. If any regulatory authority or approval, including STB approval, is required for such transfer, Buyer will not give any such direction unless and until such regulatory
authority or approval is obtained. If the foregoing direction shall specify all of the Trust Interests, then following transfer of the Trustee’s right, title, and interest therein, and in the event of a sale thereof, upon delivery to or upon the
order of the registered holder(s) of the Trust Certificates of the proceeds of such sale, this Trust shall cease and come to an end. If the foregoing direction is as to only a part of the Trust Interests, then this Trust shall cease as to said
part upon such transfer and distribution of the net proceeds therefrom in the event of sale, but shall remain in full force and effect as to the remaining part of the Trust Interests. In the event of a direct or indirect sale of Trust Interests
by Buyer, the Trustee shall, to the extent the consideration therefor is payable to or controllable by the Trustee, promptly pay, or cause to be paid, upon the order of Buyer or its designee the net proceeds of such sale on a pro rata basis to
the registered holder(s) of the Trust Certificates. It is the intention of this Paragraph that no violations of 49 U.S.C. § 11323 will result from a termination of this Trust.
(b) In the event the STB Approval (as defined below) shall
have been granted, then immediately upon the direction of Buyer and the delivery of a certified copy of such order of the STB or other governmental authority with respect thereof, or, in the event that Subtitle IV of Title 49 of the United States
Code, or other controlling law, is amended to allow Buyer or its affiliates to acquire indirect control of WLE or AB without obtaining STB or other governmental approval, upon delivery of an opinion of independent counsel selected by the Trustee
that no order of the STB or other governmental authority is required, the Trustee shall transfer to or upon the order of the registered holder(s) of Trust Certificates hereunder as then known to the Trustee, its right, title and interest in and
to all of the Trust Interests then held by it in accordance with the terms, conditions and agreements of this Trust Agreement and not theretofore transferred by it as provided in subparagraph (a) hereof, and upon such transfer this Trust shall
cease and come to an end.
(c) In the event that there shall have been an STB Denial
(as defined below), Buyer shall use its reasonable best efforts to, directly or indirectly, (i) sell the Trust Interests to one or more eligible purchasers or (ii) otherwise dispose of the Trust Interests, in each case during a period of two
years after such STB Denial or such extension of that period as the STB shall approve. Any such disposition shall be subject to the jurisdiction of the STB to oversee Buyer’s direct or indirect divestiture of Trust Interests. At all times, the
Trustee shall continue to perform its duties under this Trust Agreement and, should Buyer be unsuccessful in its efforts to directly or indirectly sell or distribute the Trust Interests during the period referred to, the Trustee shall as soon as
practicable sell the Trust Interests for cash to one or more eligible purchasers in such manner and for such price as the Trustee in its discretion shall deem reasonable after consultation with the Buyer. (An “eligible purchaser” hereunder shall be a person or entity that is not affiliated with Buyer and which has all necessary regulatory authority, if any be required, to purchase the
Trust Interests.) Buyer agrees to cooperate with the Trustee in effecting such disposition and the Trustee agrees to act in accordance with any direction made by Buyer as to any specific terms or method of disposition, to the extent not
inconsistent with the requirements of the terms of any STB or court order. The proceeds of the sale shall be distributed on a pro rata basis to or upon the order of the registered holder(s) of the Trust Certificates hereunder as then known to the
Trustee. The Trustee may, in its reasonable discretion, require the surrender to it of the Trust Certificates hereunder before paying to the holder the holder’s share of the proceeds. Upon disposition of all the Trust Interests pursuant to this
Paragraph 9(c), this Trust shall cease and come to an end.
(d) Unless sooner terminated pursuant to any other
provision herein contained, this Trust Agreement shall terminate on December 31, 2027, and may be extended by the Parties hereto, so long as no violation of 49 U.S.C. § 11323 will result from such termination or extension. All Trust Interests and
any other property held by the Trustee hereunder upon such termination shall be distributed on a pro rata basis to or upon the order of the registered holder(s) of Trust Certificates hereunder as then known to the Trustee. The Trustee may, in its
reasonable discretion, require the surrender to it of the Trust Certificates hereunder before the release or transfer of the stock interests evidenced thereby.
(e) The Trustee shall promptly inform the STB of any
transfer or disposition of Trust Interests pursuant to this Paragraph 9.
(f) Except as provided in this Paragraph 9, the Trustee
shall not dispose of, or in any way encumber, the Trust Interests.
(g) Notwithstanding the foregoing, if the STB issues a
declaratory order that the termination of the Trust will not cause Buyer or its affiliates to have indirect control of WLE or AB, the Trustee shall transfer on a pro rata basis to or upon the ordered of the registered holder(s) of Trust
Certificates hereunder as then known to the Trustee, its right, title and interest in and to all of the Trust Interests then held by it in accordance with the terms and conditions of this Trust Agreement and not theretofore transferred by it as
provided in subparagraph (a) hereof, and this Trust shall cease and come to an end. The Trustee may, in its reasonable discretion, require the surrender to it of the Trust Certificates hereunder before the release or transfer of the Trust
Interests evidenced thereby.
(h) As used in this Paragraph 9, the terms “STB Approval” and “STB Denial” shall have the following meanings:
| i. |
“STB Approval” means the issuance by the STB of a decision, which decision shall become effective and
which decision shall not have been stayed or enjoined, that (A) constitutes a final agency action approving, exempting or otherwise authorizing the acquisition of indirect control of WLE and AB by Buyer and its affiliates, without the
imposition of conditions that Buyer, by written notice to the Trustee, has deemed to be unacceptable, and (B) does not require any change in the consideration paid or to be paid pursuant to the Purchase Agreement or other material
provisions thereof, or any change to the certificate of incorporation and bylaws of the Company, unless Buyer, by written notice to the Trustee, has determined any such change to be acceptable to Buyer.
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| ii. |
“STB Denial” means the STB shall have, by an order which shall have become final and no longer subject
to review by the courts, denied the approval or exemption for Buyer to control WLE and AB, referred to in clause (A) of the definition of STB Approval.
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10. Independence of the Trustee. Neither the Trustee nor any affiliate of the Trustee may have (a) any officers, or members of their respective boards of directors, in common with
Buyer or any of its affiliates, or (b) any direct or indirect business arrangements or dealings, financial or otherwise, with Buyer or any of its affiliates, other than dealings pertaining to the establishment and carrying out of this Trust. The
Trustee hereby agrees that during the term of the Trust, the Trustee shall not own any stock or securities of Buyer or any of its affiliates; provided, that, for the avoidance of doubt, the foregoing shall not prohibit the Trustee from owning any
interest in any independently-managed diversified mutual fund that owns stock or securities of Buyer and/or any of its affiliates. Neither Buyer nor its affiliates shall purchase the stock or securities of the Trustee or any affiliate of the
Trustee.
11. Compensation of the Trustee. The Trustee shall be entitled to receive reasonable and customary compensation for all services rendered by it as Trustee under the terms hereof, and
said compensation to the Trustee, together with all counsel fees, taxes, or other expenses reasonably incurred hereunder, shall be promptly paid by Buyer.
12. Trustee May Act Through Agents. The Trustee may at any time or from time to time appoint an agent or agents and may delegate to such agent or agents the performance of any
administrative duty of the Trustee and be entitled to reimbursement for the fees and expenses of such agents.
13. Responsibilities and Indemnification of the Trustee. The Trustee shall not be answerable for the default or misconduct of any agent or attorney appointed by it in pursuance
hereof if such agent or attorney has been selected with reasonable care. The duties and responsibilities of the Trustee shall be limited to those expressly set forth in this Trust Agreement. The Trustee shall be fully protected by acting in
reliance upon any notice, advice, direction or other document or signature reasonably believed by the Trustee to be genuine. The Trustee shall not be responsible for the sufficiency or the accuracy of the form, execution, validity or genuineness
of the Trust Interests, or of any other documents, or for of any endorsement thereon, or for any lack of endorsement thereon, or for any description therein, nor shall the Trustee be responsible or liable in any respect on account of the
identity, authority or rights of the persons executing or delivering or purporting to execute or deliver, any such Trust Interests or other document or endorsement on this Trust Agreement, except for the execution and delivery of this Trust
Agreement by the Trustee. Buyer agrees that it will at all times protect, indemnify and save harmless the Trustee from any loss, damages, liability, cost or expense of any kind or character whatsoever in connection with this Trust except those,
if any, resulting from the gross negligence or willful misconduct of the Trustee, and will at all times itself undertake, assume full responsibility for, and pay on a current basis, but at least quarterly, all costs and expenses of any suit or
litigation of any character, whether or not involving a third party, including any proceedings before the STB, with respect to the Trust Interests or this Trust Agreement, and if the Trustee shall be made a party thereto, or be subject of any
investigation or proceeding (whether formal or informal), Buyer will pay all costs, damages and expenses, including reasonable counsel fees, to which the Trustee may be subject by reason thereof; provided, however, that Buyer shall not be
responsible for the cost and expense of any suit that the Trustee shall settle without first obtaining Buyer’s written consent. The indemnification obligations of Buyer shall survive any termination of this Trust Agreement or the removal,
resignation or other replacement of the Trustee. The Trustee may consult with counsel selected by it, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or omitted or suffered by
the Trustee hereunder in good faith and in accordance with such opinion.
14. Trustee to Give Account to Holders. To the extent requested to do so by Buyer or any registered holder of a Trust Certificate, the Trustee shall furnish to the Party making such
request full information with respect to (i) all property theretofore delivered to it as Trustee, (ii) all property then held by it as Trustee, and (iii) all actions theretofore taken by it as Trustee.
15. Resignation, Succession, Disqualification of Trustee. The Trustee, or any trustee hereafter appointed, may at any time resign by giving 60 days’ written notice of resignation to
Buyer and to the STB. Buyer shall, at least fifteen days prior to the effective date of such notice, appoint a successor trustee which shall satisfy the requirements of Paragraph 10 hereof. If no successor trustee shall have been appointed and
shall have accepted appointment at least fifteen days prior to the effective date of such notice of resignation, the resigning Trustee may petition any authority or court of competent jurisdiction for the appointment of a successor trustee. Upon
written assumption by the successor trustee of the Trustee’s powers and duties hereunder, a copy of the assumption shall be delivered by the Trustee to Buyer and to the STB, and all registered holders of Trust Certificates shall be notified of
such assumption, whereupon the Trustee shall be discharged of its powers and duties hereunder and the successor trustee shall become vested therewith. In the event of any material violation by the Trustee of the terms and conditions of this Trust
Agreement, the Trustee shall become disqualified from acting as trustee hereunder as soon as a successor trustee shall have been selected in the manner provided by this paragraph.
16. Amendment. This Trust Agreement may from time to time be modified or amended by agreement executed by the Trustee and Buyer, and any other registered holder(s) of the Trust
Certificates (i) pursuant to an order of the STB, (ii) with the prior approval of the STB, (iii) in order to comply with any other order of the STB, or (iv) upon receipt of an opinion of counsel satisfactory to the Trustee and the holder(s) of
the Trust Certificates that an order of the STB approving such modification or amendment is not required and that the amendment is authorized under the Purchase Agreement and is consistent with the regulations of the STB regarding voting trusts.
17. Governing Law; Powers of the STB.
(a) This Agreement shall be deemed to be made in and in
all respects shall be interpreted, construed and governed by and in accordance with the law of the state of Delaware without regard to the conflict of law principles thereof (or any other jurisdiction) to the extent that such principles would
direct a matter to another jurisdiction, except that, to the extent any provision hereof may be found inconsistent with the ICC Termination Act of 1995, as amended (the “Act”) or regulation or decisions promulgated thereunder by the STB, such
Act, decisions, and regulations shall control and such provision hereof shall be given effect only to the extent permitted by such Act, decisions, and regulations. In the event that the STB shall, at any time hereafter by final order, find that
compliance with law requires any other or different action by the Trustee than is provided herein, the Trustee shall act in accordance with such final order instead of the provisions of this Trust Agreement.
(b) Unless provided otherwise in the Act, each of the
Parties agrees that: (i) it shall bring any action or proceeding in respect of any claim arising out of or otherwise relating to this Trust Agreement or the Transaction contemplated hereby exclusively in the Court of Chancery of the State of
Delaware, or (and only if) such court finds it lacks subject matter jurisdiction, the Superior Court of the State of Delaware (Complex Commercial Division); provided that if jurisdiction of the subject matter of the proceeding is vested
exclusively in the United States federal courts, such proceedings shall be heard in the United States District Court for the District of Delaware (the “Chosen Courts”) and (ii) solely in connection with such
proceedings, such Party (A) irrevocably and unconditionally submits to the exclusive jurisdiction of the Chosen Courts, (B) waives any objection to the laying of venue in any such action or proceeding in the Chosen Courts, (C) waives any
objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any Party, (D) consents to mailing of process or other papers in connection with such action or proceeding in the manner provided in Paragraph 22 or in
such other manner as may be permitted by applicable law, which shall be valid and sufficient service thereof, and (E) shall not assert as a defense, any matter or claim waived by the foregoing clauses (A) through (D) of this Section 17 or that
any order issued by the Chosen Courts may not be enforced in or by the Chosen Courts.
(c) (c) Each Party acknowledges and agrees that any
controversy which may be in connection with, arise out of or otherwise related to this Trust Agreement, any instrument or other document delivered pursuant to this Trust Agreement or other document delivered pursuant to this Trust Agreement or
the Transaction is likely to involve complicated and difficult issues and therefore each party irrevocably and unconditionally waives to the fullest extent permitted by applicable law any right it may have to a trial by jury with respect to any
proceeding directly or indirectly, in connection with, arising out of or otherwise relating to this Trust Agreement, any instrument or other document delivered pursuant to this Trust Agreement or the Transaction. Each Party hereby acknowledges
and certifies (i) that no representative of the other Party has represented, expressly or otherwise, that such other Party would not, in the event of any action or proceeding, seek to enforce the foregoing waiver, (ii) it understands and has
considered the implications of this waiver, (iii) it makes this waiver voluntarily and (iv) it has been induced to enter into this Trust Agreement and the Transaction, by, among other things, the mutual waivers, acknowledgments, and
certifications contained in this Paragraph 17(c).
18. Counterparts. This Trust Agreement is executed in any number of counterparts, each of which shall constitute an original, and at least one of which shall be retained by Buyer and
by the Trustee.
19. Filing with the STB. A copy of this Trust Agreement and any amendments or modifications thereto shall be submitted to the STB by Buyer.
20. Successors and Assigns. This Trust Agreement shall be binding upon the successors and assigns of the parties hereto, including without limitation successors of Buyer by merger,
consolidation or otherwise.
21. Succession of Functions. For purposes of this Trust Agreement, the term “STB” includes any successor agency or governmental department that is authorized to carry out the
responsibilities now carried out by the STB with respect to voting trusts and control of common carriers.
22. Notices. All notices, requests, instructions, consents, claims, demands, waivers, approvals, and other communications to be given or made hereunder by one or more Parties to one
or more of the other Parties shall be in writing and shall be deemed to have been duly given or made on the date of receipt by the recipient thereof if received prior to 5:00 pm in the place of receipt and such day is a business day (or
otherwise, the next business day), if (a) served by personal delivery or by a nationally recognized overnight courier service upon the Party or Parties to whom it is intended, (b) delivered by registered or certificated mail, return receipt
requested, or (c) sent by email, provided that the email transmission is promptly confirmed by telephone or otherwise. Such communications shall be sent to the respective Parties at the following street addresses or email addresses or at such
other street address or email address for a Party as shall be specified for such purpose in a notice given in accordance with this Paragraph:
If to Buyer to:
FIP RR Holdings LLC
111 West 19th Street, 2nd Floor
New York, New York 10011
Attention: Kenneth Nicholson
Telephone: (212) 479-5350
Email: [email protected]
with a copy (which shall not constitute notice) to:
Sidley Austin LLP
1501 K Street, NW, Suite 900
Washington, DC 20005
Attention: Terence M. Hynes
Telephone: (202) 736-8198
Email: [email protected]
If to the Trustee, to:
John Giles
184 San Juan Dr.
Ponte Vedra Beach, FL 32082
Email: [email protected]
23. Specific Performance. Each of the Parties acknowledges and agrees that the rights of each
Party with respect to the Transaction are special, unique, and of extraordinary character and that if for any reason any of the provisions of this Trust Agreement are not performed in accordance with their specific terms or are otherwise
breached, immediate and irreparable harm or damage would be caused for which money damages would not be an adequate remedy. Accordingly, each Party agrees that, in addition to any other available remedies a Party may have in equity or at law,
each Party shall be entitled to enforce specifically the terms and provisions of this Trust Agreement and to obtain an injunction restraining any breach or violation or threatened breach or violation of the provisions of this Trust Agreement in
the Court of Chancery of the State of Delaware without necessity of posting a bond or other form of security. In the event that any action or proceeding should be brought in equity to enforce the provisions of this Trust Agreement, no Party shall
allege, and each Party hereby waives the defense, there is an adequate remedy at law.
[Signature page follows]
IN WITNESS WHEREOF, Buyer has caused this Trust Agreement to
be executed by its duly authorized officer, and John Giles has executed this Trust Agreement, as Trustee, all as of the day and year first above written.
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FIP RR Holdings LLC
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John Giles, as TRUSTEE
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/s/ Kenneth Nicholson
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/s/ John Giles
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By: Kenneth Nicholson
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[Signature page to Voting Trust Agreement]
Exhibit A
VOTING TRUST CERTIFICATE
FOR
SHARES
OF
THE WHEELING CORPORATION
THIS IS TO CERTIFY that FIP RR
Holdings LLC will be entitled to receive, on the surrender of this Certificate, on the termination of the Voting Trust Agreement hereinafter referred to, or otherwise as provided in Paragraph 9 of said Voting Trust Agreement, a certificate or
certificates, as the case may be, for 54,239.381 shares of The Wheeling Corporation. This Certificate is issued pursuant to, and the rights of the holder hereof are subject to and limited by, the terms of that certain Voting Trust Agreement dated
as of August 25, 2025, by and among FIP RR Holdings LLC and John Giles, an individual (the “Trustee”), a copy of which Voting Trust Agreement is on file in the office of FIP RR Holdings LLC, 111 West 19th Street, 2nd Floor, New York, New York 10011
and open to inspection by any shareholder of The Wheeling Corporation and the holder hereof. The Voting Trust Agreement, unless earlier terminated (or extended) pursuant to the terms thereof, will terminate on December 31, 2027, so long as no
violation of 49 U.S.C. § 11323 will result from such termination.
Exhibit A - Page 1
The holder of this Certificate shall be entitled to the benefits of said Voting Trust Agreement, including the right to receive payment equal to the
cash dividends or distributions, if any, paid by The Wheeling Corporation with respect to the number of shares represented by this Certificate.
This Certificate shall be transferable only on the books of the undersigned Trustee or any successor, to be kept by it, on surrender hereof by the
registered holder in person or by attorney duly authorized in accordance with the provision of said Voting Trust Agreement, and until so transferred, the Trustee may treat the registered holder as the owner of this Voting Trust Certificate for all
purposes whatsoever, unaffected by any notice to the contrary.
By accepting this Certificate, the holder hereof assents to all the provision of, and becomes a party to, said Voting Trust Agreement.
[Signature page follows]
Exhibit A - Page 2
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be signed August 25, 2025.
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John Giles, Trustee
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Execution Version
CREDIT AGREEMENT
among
FTAI INFRASTRUCTURE INC.,
The Several Lenders
from time to time party hereto
and
BARCLAYS BANK PLC,
as Administrative Agent,
Dated as of August 25, 2025
and
MORGAN STANLEY SENIOR FUNDING, INC.
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Page
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SECTION 1.
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DEFINITIONS
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1
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|
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Section 1.1
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Defined Terms
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1
|
|
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Section 1.2
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Other Definitional Provisions
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49
|
|
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Section 1.3
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Timing of Payment or Performance
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50
|
|
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Section 1.4
|
Currency Equivalents Generally
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50
|
|
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Section 1.5
|
Benchmark Replacement
|
51
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|
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Section 1.6
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Calculations
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51
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SECTION 2.
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LOANS
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52
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Section 2.1
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Loans
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52
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Section 2.2
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Pro Rata Shares; Availability of Funds
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52
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Section 2.3
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Use of Proceeds
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53
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Section 2.4
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Evidence of Debt; Register; Lenders’ Books and Records; Promissory Notes
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53
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Section 2.5
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Interest on the Loans
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54
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Section 2.6
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Continuation
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54
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Section 2.7
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Default Interest
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55
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Section 2.8
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Fees
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55
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|
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Section 2.9
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[Reserved]
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55
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|
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Section 2.10
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Voluntary Prepayments
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55
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|
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Section 2.11
|
Mandatory Prepayments; Cash Trap
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56
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Section 2.12
|
Application of Prepayments/Reductions
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59
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Section 2.13
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General Provisions Regarding Payments
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59
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Section 2.14
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Ratable Sharing
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60
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Section 2.15
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Making or Maintaining Loans; Benchmark Replacement
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61
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Section 2.16
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Increased Costs; Capital Requirements
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64
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Section 2.17
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Taxes
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66
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|
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Section 2.18
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Obligation to Mitigate
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69
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|
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Section 2.19
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Removal or Replacement of a Lender
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70
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SECTION 3.
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REPRESENTATIONS AND WARRANTIES
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70
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Section 3.1
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Financial Condition
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71
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Section 3.2
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No Change
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71
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Section 3.3
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Existence; Compliance with Law
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71
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Section 3.4
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Power; Authorization; Enforceable Obligations
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71
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Section 3.5
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No Legal Bar
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72
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Section 3.6
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No Material Litigation
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72
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Section 3.7
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No Default
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72
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Section 3.8
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Ownership of Property; Liens
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72
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|
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Section 3.9
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Intellectual Property
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72
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Section 3.10
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Taxes
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72
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Section 3.11
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Federal Regulations
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73
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Section 3.12
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Labor Matters
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73
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Section 3.13
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ERISA
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73
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Section 3.14
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Investment Company Act
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73
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i
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Section 3.15
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Subsidiaries
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73
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Section 3.16
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Use of Proceeds
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73
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Section 3.17
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Environmental Matters
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73
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Section 3.18
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Accuracy of Information, Etc.
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74
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Section 3.19
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[Reserved]
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74
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Section 3.20
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Solvency
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75
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Section 3.21
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Security Documents
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75
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Section 3.22
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Anti-Money Laundering and Anti-Corruption Laws; Sanctions
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75
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Section 3.23
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Insurance
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76
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SECTION 4.
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CONDITIONS PRECEDENT
|
76
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|
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Section 4.1
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Closing Date
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76
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SECTION 5.
|
AFFIRMATIVE COVENANTS
|
78
|
|
|
Section 5.1
|
Financial Statements
|
79
|
|
|
Section 5.2
|
Certificates; Other Information
|
79
|
|
|
Section 5.3
|
Payment of Taxes
|
80
|
|
|
Section 5.4
|
Conduct of Business and Maintenance of Existence; Compliance with Law
|
81
|
|
|
Section 5.5
|
Maintenance of Property; Insurance
|
81
|
|
|
Section 5.6
|
Inspection of Property; Books and Records; Discussions
|
81
|
|
|
Section 5.7
|
Notices
|
82
|
|
|
Section 5.8
|
Environmental Laws
|
82
|
|
|
Section 5.9
|
Plan Compliance
|
82
|
|
|
Section 5.10
|
Post-Closing Items
|
82
|
|
|
Section 5.11
|
Further Assurances; Additional Collateral, etc.
|
83
|
|
|
Section 5.12
|
Use of Proceeds
|
84
|
|
|
SECTION 6.
|
NEGATIVE COVENANTS
|
84
|
|
|
Section 6.1
|
Limitation on Restricted Payments
|
84
|
|
|
Section 6.2
|
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
|
88
|
|
|
Section 6.3
|
Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock
|
90
|
|
|
Section 6.4
|
Asset Sales
|
94
|
|
|
Section 6.5
|
Transactions with Affiliates
|
95
|
|
|
Section 6.6
|
Liens
|
98
|
|
|
Section 6.7
|
Limitation on Guarantees and Incurrence of Indebtedness by Restricted Subsidiaries
|
98
|
|
|
Section 6.8
|
[Reserved]
|
99
|
|
|
Section 6.9
|
Amalgamation, Merger, Consolidation or Sale of All or Substantially All Assets
|
99
|
|
|
Section 6.10
|
Rail Co. Equity Securities
|
102
|
|
|
SECTION 7.
|
EVENTS OF DEFAULT
|
103
|
|
|
Section 7.1
|
Events of Default
|
103
|
|
|
Section 7.2
|
Application of Proceeds
|
105
|
|
|
SECTION 8.
|
THE ADMINISTRATIVE AGENT
|
106
|
|
|
Section 8.1
|
Appointment and Authority
|
106
|
|
|
Section 8.2
|
Rights as a Lender
|
106
|
|
ii
|
Section 8.3
|
Exculpatory Provisions
|
107
|
|
|
Section 8.4
|
Reliance by Administrative Agent
|
108
|
|
|
Section 8.5
|
Delegation of Duties
|
109
|
|
|
Section 8.6
|
Resignation of Administrative Agent
|
109
|
|
|
Section 8.7
|
Non-Reliance on Administrative Agent and Other Lenders
|
110
|
|
|
Section 8.8
|
No Other Duties, Etc.
|
110
|
|
|
Section 8.9
|
Administrative Agent May File Proofs of Claim
|
110
|
|
|
Section 8.10
|
Erroneous Payments
|
111
|
|
|
Section 8.11
|
Collateral and Guaranty Matters
|
113
|
|
|
Section 8.12
|
Withholding Taxes
|
113
|
|
|
Section 8.13
|
Intercreditor Agreements and Security Documents
|
113
|
|
|
SECTION 9.
|
MISCELLANEOUS
|
114
|
|
|
Section 9.1
|
Amendments and Waivers
|
114
|
|
|
Section 9.2
|
Notices
|
115
|
|
|
Section 9.3
|
No Waiver; Cumulative Remedies
|
117
|
|
|
Section 9.4
|
Survival of Representations and Warranties
|
117
|
|
|
Section 9.5
|
Payment of Expenses; Indemnification
|
118
|
|
|
Section 9.6
|
Successors and Assigns; Participations and Assignments
|
119
|
|
|
Section 9.7
|
Setoff
|
124
|
|
|
Section 9.8
|
Counterparts
|
124
|
|
|
Section 9.9
|
Severability
|
125
|
|
|
Section 9.10
|
Integration
|
125
|
|
|
Section 9.11
|
GOVERNING LAW
|
125
|
|
|
Section 9.12
|
Submission To Jurisdiction; Waivers
|
125
|
|
|
Section 9.13
|
Acknowledgments
|
126
|
|
|
Section 9.14
|
Confidentiality
|
127
|
|
|
Section 9.15
|
Accounting Changes
|
127
|
|
|
Section 9.16
|
WAIVERS OF JURY TRIAL
|
127
|
|
|
Section 9.17
|
Conversion of Currencies
|
128
|
|
|
Section 9.18
|
USA PATRIOT ACT
|
128
|
|
|
Section 9.19
|
Payments Set Aside
|
128
|
|
|
Section 9.20
|
Release of Collateral and Guarantees
|
129
|
|
|
Section 9.21
|
Acknowledgment and Consent to Bail-In of Affected Financial Institutions
|
130
|
|
|
Section 9.22
|
Acknowledgment Regarding Any Supported QFCs
|
130
|
|
|
Section 9.23
|
Equal Priority Intercreditor Agreement
|
131
|
|
|
Section 9.24
|
Junior Priority Intercreditor Agreement
|
131
|
|
|
1.1
|
Commitments
|
|
3.15
|
Subsidiaries
|
|
3.19
|
Filing Jurisdictions
|
|
5.10
|
Post-Closing
|
iii
|
A
|
Form of Compliance Certificate
|
|
B
|
Form of Closing Certificate
|
|
C-1
|
Form of Assignment and Acceptance
|
|
C-2
|
Form of Affiliated Lender Assignment and Acceptance
|
|
D
|
Form of Promissory Note
|
|
E
|
Form of Guarantee Agreement
|
|
F
|
Form of Solvency Certificate
|
|
G-1
|
Form of Funding Notice
|
|
G-2
|
Form of Continuation Notice
|
|
Form of U.S. Tax Compliance Certificate (For Foreign Lenders that are Not Partnerships for U.S. Federal Income Tax Purposes)
|
|
|
Form of U.S. Tax Compliance Certificate (For Foreign Participants that are Not Partnerships for U.S. Federal Income Tax Purposes)
|
|
|
Form of U.S. Tax Compliance Certificate (For Foreign Participants that are Partnerships for U.S. Federal Income Tax Purposes)
|
|
|
H-4
|
Form of U.S. Tax Compliance Certificate (For Foreign Lenders that are Partnerships for U.S. Federal Income Tax Purposes)
|
iv
CREDIT AGREEMENT, dated as of August 25, 2025, among FTAI INFRASTRUCTURE INC., a Delaware corporation (together with any successor thereto, the “Borrower”), the
Guarantors from time to time party hereto, the several banks and other financial institutions or entities from time to time party hereto (the “Lenders”) and BARCLAYS BANK PLC (“Barclays”), as administrative agent (in such capacity,
together with any successor appointed in accordance with Section 8.6, the “Administrative Agent”).
WHEREAS, capitalized terms used in these recitals and not otherwise defined shall have the respective meanings set forth for such terms in Section 1.1;
WHEREAS, in connection with that certain Stock Purchase Agreement, dated as of August 6, 2025 (including the schedules, exhibits and disclosure letters thereto, the “Stock
Purchase Agreement”), between Percy Acquisition LLC, a subsidiary of the Borrower (the “Buyer”), and WLE Management Partners, LP relating to the purchase and sale of 100.0% of the equity interests of The Wheeling Corporation, a
Delaware corporation (the “Target”), pursuant to the Stock Purchase Agreement;
WHEREAS, in connection with the foregoing, the Borrower has requested that the Lenders extend credit in the form of Loans to the Borrower in an aggregate principal
amount of $1,250,000,000 (the “Facility”) on the Closing Date;
WHEREAS, the Borrower shall use the proceeds of the Loans, together with the proceeds of the Rail Co. Series A Preferred Units and cash on hand, to, as applicable, (i)
fund the Acquisition, (ii) consummate the Refinancing, (iii) refinance existing leases of the Target and (iv) pay certain fees and expenses incurred in connection with or in anticipation of the foregoing, in each case, on the Closing Date; and
WHEREAS, the Lenders are willing to make available to the Borrower the Loans described herein upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual agreements contained herein, the parties hereto agree as follows:
(a) Indebtedness of any other
Person existing at the time such other Person is consolidated with, amalgamated or merged with or into or became a Subsidiary of such specified Person, including Indebtedness incurred in connection with, or in contemplation of, such other Person
consolidating with, amalgamating or merging with or into or becoming a Subsidiary of such specified Person; and
1
“Adjusted Daily Simple SOFR”: an interest rate per annum equal to Daily Simple SOFR; provided that if the Adjusted 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.
“Adjusted Term SOFR Rate”: for any Interest Period, an interest rate per annum equal to the Term SOFR Rate for such Interest Period; provided that if the Adjusted 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.
“Affected Financial Institution”: (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate”: as to any specified Person, any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control” (including, with
correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. For the purposes of this
Agreement, Fortress and its Affiliates and any publicly traded entity managed by Fortress or any of its Affiliates, shall be deemed to be “Affiliates” of each Loan Party; provided that Mubadala Capital, a wholly owned asset
management subsidiary of Mubadala Investment Company, and its Affiliates (except for Foundation Holdco LP and its controlled affiliates) shall not be deemed “Affiliates” of each Loan Party.
“Affiliated Lender”: any (a) Non-Debt Fund Affiliate, (b) the Borrower and/or (c) any Subsidiary of the Borrower.
“Affiliated Lender Assignment and Acceptance”: an agreement substantially in the form of Exhibit C-2.
“Agent”: the Administrative Agent and any other Person appointed under the Loan Documents to serve in an agent or similar capacity.
2
“Applicable Margin”: (a) with respect to Base Rate
Loans, the Base Rate plus 3.00% per annum, and (b) with respect to Term Benchmark Loans, the Adjusted Term SOFR Rate plus 4.00% per annum.
“Arrangers”: Barclays, Deutsche Bank Securities Inc. and Morgan Stanley Senior Funding, Inc., each in its capacity as a joint lead arranger and
joint bookrunner.
(a) the sale, conveyance,
transfer or other disposition, whether in a single transaction or a series of related transactions, of property or assets (including by way of a sale and leaseback) of the Borrower or any Restricted Subsidiary (each referred to in this definition
as a “disposition”); or
(b) the issuance or sale of
Equity Interests of any Restricted Subsidiary, whether in a single transaction or a series of related transactions (other than preferred stock of Restricted Subsidiaries issued in compliance with Section 6.3 or the issuance of directors’
qualifying shares and shares issued to foreign nationals as required by applicable law);
(i) a disposition of Cash
Equivalents, or dispositions of any surplus, obsolete, unnecessary, unsuitable, damaged or worn-out assets in the ordinary course of business, or dispositions of abandoned, lost, destroyed or stolen assets or assets no longer used, useful or
economically practicable to maintain, or any disposition of inventory or goods held for sale in the ordinary course of business;
(ii) the disposition of all or
substantially all the assets of the Borrower in a manner permitted under Section 6.9 or any disposition that constitutes a Change of Control pursuant to this Agreement;
(iii) the making of any Restricted
Payment or Permitted Investment that is permitted to be made, and is made, under Section 6.1;
(v) any disposition of assets or
issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate Fair Market Value of less than $10,000,000;
(vi) any disposition of property
or assets or issuance of securities by a Restricted Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary to a Restricted Subsidiary;
3
(vii) to the extent qualifying for
tax free treatment under Section 1031 of the Code, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(viii) the lease, assignment,
sub-lease or license of any assets or real or personal property, including the sale of assets to lease customers upon termination of any of the foregoing pursuant to the terms thereof, in each case in the ordinary course of business;
(xii) (1) any disposition of
Securitization Assets in connection with any Qualified Securitization Financing and (2) the sale or discount of accounts receivable arising (x) in connection with the Credit Facilities or (y) in the ordinary course of business in connection with
the compromise or collection thereof or in bankruptcy or similar proceedings;
(xiii) the surrender or waiver of
contract rights or the settlement, release or surrender of contract, tort or other claims of any kind, in each case, in the ordinary course of business;
(xv) the licensing or sub-licensing
of Intellectual Property and software or other general intangibles in the ordinary course of business;
(xvii) sales, transfers and other
dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; and
(xviii) any financing transaction with
respect to property built or acquired by the Borrower or any Restricted Subsidiary after the Closing Date, including sale leasebacks and asset securitizations permitted by this Agreement.
“Assignment and Acceptance”: an agreement substantially in the form of Exhibit C-1 (or, in the case of an assignment to an Affiliated
Lender, an Affiliated Lender Assignment and Acceptance).
4
“Available Tenor”: 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 Section 2.15(a)(v).
“Bail-In Action”: 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”: (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, rule, regulation 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 firms or
other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Event”: with respect to any Person, that such Person has become the subject of a bankruptcy or
insolvency proceeding, or has had a receiver, conservator, trustee, administrator, 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; 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; provided, however, that such ownership interest does not result in or provide such Person with
immunity from the jurisdiction of courts within the United States of America or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority) to reject, repudiate, disavow or disaffirm
any agreements made by such Person.
“Bankruptcy Law”: Title 11, U.S. Code or any similar federal or state law for the
relief of debtors as amended from time to time.
“Base Rate”: 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 1.0% and (c) the Adjusted Term SOFR Rate for a one (1) month Interest Period as published two (2) U.S. Government Securities Business Days prior to such day (or if such day is not a
Business Day, the immediately preceding Business Day) plus 1.0%; provided that for the purpose of this definition, the Adjusted 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 Base Rate
due to a change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate, respectively. If the Base
Rate is being used as an alternate rate of interest pursuant to Section 2.15 (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 2.15(a)(ii)), then the 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 Base Rate as determined pursuant to the foregoing would be less than 1.0% per annum,
such rate shall be deemed to be 1.0% per annum for purposes of this Agreement.
5
“Benchmark”: initially, with respect to any (i) RFR Loan, the Daily Simple SOFR or (ii) 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 Daily Simple SOFR or Term SOFR Rate, as applicable, 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 Section 2.15.
“Benchmark Replacement”: 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:
(b) the sum of: (i) the alternate benchmark rate that has been
selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (x) any selection or recommendation of a replacement benchmark rate or the
mechanism for determining such a rate by the Relevant Governmental Body or (y) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for dollar-denominated syndicated
credit facilities at such time in the United States and (ii) the related Benchmark Replacement Adjustment.
If the Benchmark Replacement as determined pursuant to clause (a) or (b) 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”: 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 Borrower for the applicable Corresponding Tenor giving due consideration to (a) 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 (b) 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”: with respect to any Benchmark Replacement and/or any Term Benchmark Loan, any technical,
administrative or operational changes (including changes to the definition of “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 decides may be appropriate to reflect the adoption and implementation of such Benchmark and to permit the administration thereof by the Administrative Agent in a manner substantially consistent
with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such
Benchmark exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
6
“Benchmark Replacement Date”: with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current
Benchmark:
(a) in the case of clause (a) or (b) of the
definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the
calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(b) in the case of clause (c)
of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such
Benchmark (or such component thereof) to be no longer representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if
any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
“Benchmark Transition Event”: with respect to any Benchmark, the occurrence of one
or more of the following events with respect to such then-current Benchmark:
(a) a public statement or publication of information by or on
behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof),
permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(b) a public statement or publication of information by the
regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Board, the NYFRB, the CME Term SOFR Administrator, an insolvency official with jurisdiction over the administrator for
such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such
Benchmark (or such component), in each case, which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or
indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(c) a public statement or publication of information by the
regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified
future date will no longer be, representative.
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).
7
“Benchmark Unavailability Period”: with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement
Date pursuant to clauses (a) or (b) 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
2.15 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 2.15.
“Beneficial Ownership Certification”: a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“BHC Act Affiliate”: an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Board”: the Board of Governors of the Federal Reserve System of the United States (or any successor).
“Board of Directors”: (a) with respect to any corporation, the board of directors or managers, as applicable, of
the corporation, or any duly authorized committee thereof; (b) with respect to any partnership, the board of directors or other governing body of the general partner of the partnership or any duly authorized committee thereof; and (c) with respect
to any other Person, the board or any duly authorized committee of such Person serving a similar function. Whenever any provision requires any action or determination to be made by, or any approval of, a Board of Directors, such action,
determination or approval shall be deemed to have been taken or made if approved by a majority of the directors on any such Board of Directors (whether or not such action or approval is taken as part of a formal board meeting or as a formal board
approval).
“Borrower Obligations”: the collective reference to the unpaid principal of and interest on the Loans, and all other obligations and liabilities
of the Borrower (including interest accruing at the then applicable rate provided herein after the maturity of the Loans and interest, fees and expenses accruing after the filing of any petition in bankruptcy (or which, but for the filing of such
petition, would be accruing), or the commencement of any insolvency, reorganization or like case or proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest, fees or expenses is allowed or allowable in
such case or proceeding) to any Agent or any Lender, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which arise under, out of, or in connection with, this Agreement, any Guarantee
Agreement, the Security Agreement or the other Loan Documents or any other document made, delivered or given in connection therewith, in each case whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise.
“Borrowing”: Loans 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.
8
“Business Day”: any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of, or are
in fact closed in, the State of New York or the place of payment.
“Buyer”: as defined in the recitals hereto.
(b) in the case of an association
or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
(c) in the case of a partnership,
limited liability company or business trust, partnership, membership or beneficial interests (whether general or limited) or shares in the capital of a company; and
(d) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person (but excluding from the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include
any right of participation with Capital Stock).
“Capitalized Lease Obligation”: an obligation that is required to be classified and accounted for as a financing or capital lease (and, for the
avoidance of doubt, not a straight line or operating lease) for financial reporting purposes in accordance with GAAP, and the amount of Indebtedness represented by such obligation shall be, at the time any determination thereof is to be made, the
amount of the liability in respect of a capital lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) in accordance with GAAP, and the stated maturity thereof
shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be prepaid or terminated by the lessee without payment of a penalty; provided that leases that are
required to be classified and accounted for as capital leases in accordance with GAAP solely because of the duration of the term of the lease or the fact that the present value of the minimum lease payments of the equipment subject to such lease
exceeds 90.0% of the Fair Market Value of such equipment shall not be deemed to be Capitalized Lease Obligations.
“Captive Insurance Subsidiary”: a captive subsidiary of the Borrower formed or
acquired to provide insurance to the Borrower or its Subsidiaries.
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(f) in the case of any Foreign
Subsidiary that is a Restricted Subsidiary, such local currencies held by them from time to time in the ordinary course of business;
(g) securities issued or directly
and fully and unconditionally guaranteed or insured by the United States of America or Canadian government or any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a full faith and credit obligation of such government with maturities of twenty-four (24) months or less from the date of
acquisition;
(h) certificates of deposit, time deposits and eurodollar time deposits with maturities of twenty-four (24) months or less from the date of acquisition, bankers’
acceptances with maturities not exceeding twenty-four (24) months and overnight bank deposits, in each case with any commercial bank having capital and surplus in excess of
$500,000,000;
(i) repurchase obligations for
underlying securities of the types described in clauses (d) and (e) of this definition entered into with any financial institution meeting the qualifications specified in clause (e) of this definition;
(j) commercial paper rated at
least P-2 by Moody’s or at least A-2 by S&P and in each case maturing within twenty-four (24) months after the date of creation thereof;
(k) investment funds investing 95.0% of their assets in
securities of the types described in clauses (a) through (j) of this definition;
(l) readily marketable direct
obligations issued by any state of the United States of America or any political subdivision thereof or any Province of Canada having one of the two highest rating categories obtainable from either Moody’s or S&P with maturities of
twenty-four (24) months or less from the date of acquisition; and
(m) Indebtedness or preferred stock issued by Persons with a rating of “A” or higher from
S&P or “A2” or higher from Moody’s with maturities of twenty-four (24) months or less from the date of acquisition.
Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (a)
through (e) of this definition; provided that such amounts are converted into any currency listed in clauses (a) through (e) of this definition as promptly as practicable and in any event within ten (10) Business
Days following the receipt of such amounts.
“Cash Flow After Debt Service”: with respect to any period, the aggregate of the following for such period:
(a) the Net Income of the Subsidiaries and each of their respective Subsidiaries; plus
(b) Consolidated Depreciation and Amortization Expense for such period to the extent such
depreciation and amortization were deducted in computing Net Income set forth in clause (a) above; plus
(c) any loss (or minus any gain) related to the
disposition of assets; plus
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(d) any other non-cash charges reducing Net Income set forth in clause (a) above for such
period, excluding any such charge that represents an accrual or reserve for a cash expenditure for a future period; plus
(e) any Net Proceeds from any Asset Sales (subject to any applicable reinvestment rights); minus
(f) any voluntary or mandatory prepayments in respect of the principal amount of any Indebtedness
of the Subsidiaries (plus any payments of interest, fees, expenses or charges or any amortization paid in respect of such Indebtedness); minus
(g) the amount of any cash dividends or dividend equivalents paid to the holders of the Rail Co.
Equity Securities to the extent permitted by this Agreement; minus
(h) any maintenance capital expenditures for the period and maintenance capital expenditures
reasonably expected to be incurred in the immediately succeeding period.
“Cash-Trap Account”: a deposit account of the Borrower that has been designated as the “Cash-Trap Account” by the Borrower to the Administrative
Agent and, subject to Section 5.10, is subject to a first-priority perfected security interest and a control agreement in favor of the Administrative Agent for the benefit of the Lenders.
“Cash-Trap Monthly Amount”: with respect to any month, subject to Section 2.11(h), the lesser of (a) 100% of Cash Flow After Debt
Service of all of the Restricted Subsidiaries for such month and (b) the excess of (i) the Required Cash-Trap Account Balance over (ii) the balance in the Cash-Trap Account at the time payment is made pursuant to Section 2.11(h).
“Change in Law”: the occurrence, after the date of this Agreement, of any of the following: (a) the adoption 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) the making or issuance of any request, rule, guideline
or directive (whether or not having the force of law) by any Governmental Authority; 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 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 or issued.
(a) any “person” or “group” (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act), other than one or more Permitted Investors, is or becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of shares representing more than 50.0% of the voting power of the Borrower’s Voting Stock; or
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(b) (i) all or substantially all
the assets of the Borrower and the Restricted Subsidiaries, taken as a whole, are sold or otherwise transferred to any Person other than a Wholly-Owned Restricted Subsidiary or one or more Permitted Investors or (ii) the Borrower consolidates,
amalgamates or merges with or into another Person or any Person consolidates, amalgamates or merges with or into the Borrower, in either case under this clause (b), in one transaction or a series of related transactions in which
immediately after the consummation thereof Persons beneficially owning (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) Voting Stock representing in the aggregate a majority of the total voting power of the Voting Stock of the
Borrower immediately prior to such consummation do not beneficially own (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) Voting Stock representing a majority of the total voting power of the Voting Stock of the Borrower, or the
applicable surviving or transferee Person; provided that this clause (b) shall not apply (1) in the case where immediately after the consummation of the transactions Permitted Investors beneficially own Voting Stock representing
in the aggregate a majority of the total voting power of the Borrower, or the applicable surviving or transferee Person, or (2) to any consolidation, amalgamation or merger of the Borrower with or into (x) a corporation, limited liability company
or partnership or (y) a wholly-owned subsidiary of a corporation, limited liability company or partnership that, in either case, immediately following the transaction or series of transactions, has no Person or group (other than Permitted
Investors), which beneficially owns Voting Stock representing 50.0% or more of the voting power of the total outstanding Voting Stock of such entity and, in the case of clause (y) above, the parent of such wholly-owned subsidiary
guarantees the Borrower Obligations.
For purposes of this definition, any direct or indirect holding company of the Borrower shall not itself be considered a
“person” or “group” for purposes of clause (a) of this definition; provided that no “person” or “group” (other than the Permitted Investors) beneficially owns, directly or indirectly, more than 50.0% of the total voting power of the
Voting Stock of such holding company.
“Closing Date”: August 25, 2025 (the date on which the conditions specified in Section 4.1 are satisfied (or waived in accordance with Section
9.1) and the Loans are funded).
“CME Term SOFR Administrator”: CME Group Benchmark Administration Limited as administrator of the forward-looking
Term SOFR (or a successor administrator selected by the Administrative Agent in its reasonable discretion).
“Collateral”: all of the assets and property of the
Borrower securing or purported to secure any Obligations, other than Excluded Assets.
“Commitment”: the commitment of a Lender to make or otherwise fund a Loan and “Commitments”
means such commitments of all Lenders in the aggregate. The amount of each Lender’s Commitment is set forth on Schedule 1.1. The aggregate amount of the Commitments as of the Closing Date is $1,250,000,000.
“Commonly Controlled Entity”: an entity, whether or not incorporated, that is under common control with the Borrower within the meaning of
Section 4001(a)(14) of ERISA or is part of a group that includes the Borrower and that is treated as a single employer under Section 414(b), (c), (m) or (o) of the Code.
“Compliance Certificate”: a certificate duly executed by a Responsible Officer of the Borrower, substantially in the form of Exhibit A.
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“Connection Income Taxes”: Other Connection Taxes that are imposed on or measured by net income (however
denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated Depreciation and Amortization Expense”:
with respect to any Person for any period, the total amount of depreciation and amortization expense, including any amortization of deferred financing fees, amortization in relation to terminated Hedging Obligations and amortization of lease
discounts and premiums and lease incentives, but excluding any items which are classified as Consolidated Interest Expense in accordance with GAAP, of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise
determined in accordance with GAAP.
“Consolidated Interest Expense”: with respect to any Person for any period,
the sum, without duplication, of:
(a) consolidated interest expense
of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted in computing Consolidated Net Income (including (i) amortization of original issue discount resulting from the issuance of Indebtedness at
less than par, (ii) non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in the mark to market valuation of or hedge ineffectiveness expenses of Hedging Obligations or other derivative instruments
pursuant to Financial Accounting Standards Board Accounting Standards Codification 815-Derivatives and Hedging), and (iii) all commissions, discounts and other fees and charges owed with respect to letters of credit or relating to any Qualified
Securitization Financing; and excluding (i) non-cash interest expense attributable to the amortization of gains or losses resulting from the termination prior to the Closing Date of Hedging Obligations,
(ii) the interest component of Capitalized Lease Obligations and net payments, if any, pursuant to interest rate Hedging Obligations, (iii) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses and any
expensing of other financing fees (including any expense resulting from bridge, commitment and other financing fees), (iv) amortization of fair value debt discounts and (v) any expense resulting from the application of debt modification
accounting or, if applicable, purchase accounting in connection with any acquisition), and
(b) consolidated capitalized
interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued, less
“Consolidated Net Income”: with respect to any Person for any period, the aggregate
of the Net Income, of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided that:
(a) any net after tax
extraordinary, non-recurring or unusual gains or losses, including sales or other dispositions of assets under a Securitization Financing other than in the ordinary course of business (less all fees and expenses relating thereto) or expenses
(including relating to severance, relocation and new product introductions) shall be excluded;
(b) the Net Income for such
period shall not include the cumulative effect of a change in accounting principles during such period;
(c) any net after-tax income
(loss) from disposed or discontinued operations and any net after-tax gains or losses on disposal of disposed or discontinued operations (including operations disposed of during such period whether or not such operations were classified as
discontinued) shall be excluded;
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(d) any net after-tax gains or
losses (less all fees and expenses relating thereto) attributable to asset dispositions other than in the ordinary course of business, as determined in good faith by such Person, shall be excluded;
(e) the Net Income for such
period of any Person that is not a Subsidiary or that is accounted for by the equity method of accounting, shall be excluded; provided, however, that Consolidated Net Income of the Borrower shall be increased by the amount of
dividends or distributions or other payments that are actually paid in cash (or to the extent converted into cash) to the referent Person or a Restricted Subsidiary thereof in respect of such period;
(g) the effects of adjustments resulting from the application of
recapitalization accounting or purchase accounting in relation to any acquisition that is consummated after the Closing Date or the amortization or write-off of any amounts thereof, net of taxes, shall be excluded;
(h) any net after-tax loss from
the early extinguishment of Indebtedness or Hedging Obligations or other derivative instruments shall be excluded;
(i) any net after-tax gains or
losses resulting from the application of Accounting Standards Codification Topic 805 “Business Combinations,” Accounting Standards Codification Topic 350 “Intangibles – Goodwill and Other,” Accounting Standards Codification Topic
360-10-35-15 “Impairment or Disposal of Long-Lived Assets” or Accounting Standards Codification Topic 480-10-25-4 “Distinguishing Liabilities from Equity – Overall – Recognition” shall be excluded;
(j) any net after-tax gain (loss)
arising from changes in the fair value of derivatives shall be excluded;
(l) amortization of (i) fair
value lease premiums and discounts, (ii) lease incentives, (iii) fair value debt discounts, and (iv) debt discounts in respect of Indebtedness issued prior to the Closing Date shall be excluded;
(m) any restoration to income of any contingency reserve of an extraordinary, non-recurring
or unusual nature, except to the extent that provision for such reserve was made out of Consolidated Net Income accrued at any time following the Closing Date shall be excluded;
(n) any net after-tax effect of
accretion of accrued interest on discounted liabilities shall be excluded;
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(p) any net after-tax effect of
non-cash compensation expense recorded from grants of stock appreciation or similar rights, stock options or other rights to officers, directors or employees shall be excluded.
In addition, to the extent not already included in the Consolidated Net Income of such Person and its Restricted
Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall include the amount of proceeds received from business interruption insurance and reimbursements of any expenses and charges that are covered by
indemnification or other reimbursement provisions in connection with any Permitted Investment or any sale, conveyance, transfer or other disposition of assets permitted under this Agreement.
Notwithstanding the foregoing, for the purpose of Section 6.1 only (other than Section 6.1(b)(xx) thereof), there
shall be excluded from Consolidated Net Income any income arising from any sale or other disposition of Restricted Investments made by the Borrower and the Restricted Subsidiaries, any repurchases and redemptions of Restricted Investments from the
Borrower and the Restricted Subsidiaries, or any repayments of loans and advances which constitute Restricted Investments by the Borrower or any Restricted Subsidiary, in each case only to the extent such amounts increase the amount of Restricted
Payments permitted under Section 6.1 pursuant to Section 6.1(b)(xx) thereof.
“Contingent Obligations”: with respect to any Person, any obligation of such Person
guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of
such Person, whether or not contingent:
(a) to purchase any such primary
obligation or any property constituting direct or indirect security therefor;
(ii) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; or
(c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.
“Continuation Date”: the effective date of a continuation or conversion, as the case may be, as set forth in the applicable Continuation Notice.
“Contractual Obligation”: as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its Property is bound.
“control”: as defined in the definition of “Affiliate” hereto.
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“Control Investment Affiliate”: as to any Person, any other Person that (a) directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person and (b) exists primarily for the purpose of making equity or debt investments in one or more companies. For purposes of this definition, “control” of a Person means the power, directly or indirectly, to
direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.
“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.
(a) a “covered entity” as that term is defined in, and
interpreted in accordance with, 12 C.F.R. § 252.82(b);
(b) a “covered bank” as that term is defined in, and
interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(c) a “covered FSI” as that term is defined in, and
interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Credit Facilities”: one or more debt facilities, indentures or commercial paper facilities providing for revolving credit loans, term loans,
notes, debentures, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against receivables), letters of credit or other long-term indebtedness, including
any guarantees, collateral documents, mortgages, instruments and agreements executed in connection therewith, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof and
any indentures or credit facilities or commercial paper facilities with banks or other institutional lenders or investors that replace, refund or refinance any part of the loans, notes, other credit facilities or commitments thereunder, including
any such replacement, refunding or refinancing facility or indenture that increases the amount borrowable thereunder or alters the maturity thereof.
“Customer Contracts”: contracts entered into by the Borrower or any of its Restricted Subsidiaries for the sale,
lease and/or other provision of products, goods and services by the Borrower or any such Restricted Subsidiary (i) that require the payment to the Borrower or any Restricted Subsidiary of a minimum amount or the delivery of the Borrower or any
Restricted Subsidiary of minimum volumes, which payments are required pursuant to such contracts to continue for a period of time ending no earlier than June 1, 2027 (the provisions of the contracts that require such payments, the “Minimum
Delivery Clauses”) and (ii) for which the payments to the Borrower or any Restricted Subsidiary or delivery by the Borrower or any Restricted Subsidiary, as applicable, pursuant to the Minimum Delivery Clauses have commenced.
“Daily Simple SOFR”: for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the
Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided that if the Administrative Agent
decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
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“Debt Fund Affiliate”: any Affiliate of the Borrower, Fortress or a Permitted Investor (other than a natural person, the Borrower or any of its
Subsidiaries) that is a bona fide debt fund or investment vehicle that is primarily engaged in, or advises (or whose general partner or manager advises (as appropriate)) funds or other investment vehicles that are primarily engaged in, making,
purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit or securities in the ordinary course and with respect to which no personnel making investment decisions in respect of such affiliate are engaged
in making investment decisions with respect to the equity investment in the Borrower and its Subsidiaries.
“Debtor Relief Laws”: the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, examinership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
“Default”: any of the events or conditions specified in Section 7.1, whether or not any requirement for the giving of notice, the lapse
of time, or both, has been satisfied. For the avoidance of doubt, a Demand Failure Event shall not constitute or result in a Default.
“Default Right”: the meaning assigned to that term in, and interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
(a) has failed, within two (2) Business Days of the date
required to be funded or paid, (i) to fund any portion of its Loans or (ii) to pay 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 in such writing, including, if applicable, by reference to a specific Default) has not been
satisfied,
(b) has notified the Borrower 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 in such writing, including, if applicable, by reference to a specific Default) to funding a Loan cannot be satisfied) or generally under other agreements in which it
commits to extend credit,
(c) has failed, within three (3) Business Days after request by
a Credit Party made in good faith to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations to fund prospective Loans; 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, or
(d) has, or has a direct or indirect parent company that has, become the subject of a
Bankruptcy Event or Bail-In Action.
Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d)
above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.19) upon delivery of written notice of such determination to the Borrower and each other Lender.
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“Designated Preferred Stock”: preferred stock of the Borrower that is issued after
the Closing Date for cash and is designated as Designated Preferred Stock, the cash proceeds of which are contributed to the capital of the Borrower.
“Disposition”: with respect to any Property, any sale, lease, license, sale and leaseback, assignment, conveyance, transfer, exchange or other
disposition thereof (or the granting of any option or other right to do any of the foregoing), including any sale, assignment, transfer or other disposal (and whether effected pursuant to a Division or otherwise), with
or without recourse, of any notes or accounts receivable or any rights and claims associated therewith; the terms “Dispose” and “Disposed of” shall have correlative meanings.
“Disqualified Institution”: (a) certain Persons previously identified by name in writing by the Borrower to the Arrangers on or prior to the
Closing Date, (b) any Person that is a competitor of the Borrower and/or any of its Subsidiaries that in either case has been identified by name in writing by the Borrower to the Administrative Agent and (c) any Affiliate of any Person described in
clauses (a) or (b) above (other than a Debt Fund Affiliate of any Person described in clause (b) above) identified by name in writing by the Borrower to the Administrative Agent or that is clearly identifiable as an Affiliate of a
Person described in clause (a) or (b) above solely on the basis of such Affiliate’s name; provided that no such written notice or identification shall apply retroactively to disqualify any Person that has previously acquired
an assignment or participation interest in the Loans or Commitments that were effective prior to the effective date of such designation.
“Disqualified Stock”: with respect to any Person, any Capital Stock of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is
mandatorily redeemable, other than as a result of a change of control or asset sale, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder
thereof, other than as a result of a change of control or asset sale, in whole or in part, in each case prior to the date ninety-one (91) days after the Maturity Date; provided
that if such Capital Stock is issued to any plan for the benefit of employees of the Borrower or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to
be repurchased by the Borrower or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
“Division”: the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”)
among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.
“Division Successor”: any Person that, upon the consummation of a Division of a Dividing Person, holds all or any portion of the assets,
liabilities and/or obligations previously held by such Dividing Person immediately prior to the consummation of such Division. A Dividing Person which retains any of its assets, liabilities and/or obligations after a Division shall be deemed a
Division Successor upon the occurrence of such Division.
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“EBITDA”: with respect to any Person for any period, the Consolidated Net Income of
such Person for such period, plus (without duplication):
(b) provision for taxes based on
income or profits, plus franchise or similar taxes, of such Person for such period deducted in computing Consolidated Net Income; plus
(c) Consolidated Interest Expense
(and other components of Fixed Charges to the extent changes in GAAP after the Closing Date result in such components reducing Consolidated Net Income) of such Person for such period to the extent the same was deducted in calculating such
Consolidated Net Income, including any non-cash interest charges calculated in accordance with GAAP; plus
(d) Consolidated Depreciation and
Amortization Expense of such Person for such period to the extent such depreciation and amortization were deducted in computing Consolidated Net Income; plus
(e) any fees, expenses or charges,
or any amortization thereof, related to any equity offering, Permitted Investment, acquisition, disposition, recapitalization or Indebtedness permitted to be incurred by this Agreement (whether or not successful) or any repayment of Indebtedness,
including such fees, expenses or charges related to the issuance of the Demand Notes or the offering of the Refinancing Notes, and deducted in computing Consolidated Net Income, and including, in each case, any such transaction consummated prior
to the Closing Date and any such transaction undertaken but not completed, and any charges or non-recurring costs incurred during such period as a result of any such transaction; plus
(g) the amount of any
restructuring charge or reserve deducted in such period in computing Consolidated Net Income, including any one-time costs incurred in connection with acquisitions after the Closing Date; plus
(h) any other non-cash charges reducing Consolidated Net Income
for such period, excluding any such charge that represents an accrual or reserve for a cash expenditure for a future period; plus
(i) the amount of any
non-controlling interest expense deducted in calculating Consolidated Net Income (less the amount of any cash dividends paid to the holders of such minority interests); plus
(j) expenses related to the
implementation of new accounting pronouncements and other regulatory requirements; plus
(k) any net loss (or minus any gain) resulting from currency exchange risk Hedging Obligations; plus
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(m) Securitization Fees and the
amount of loss on sale of Securitization Assets and related assets to a Securitization Subsidiary in connection with a Qualified Securitization Financing, to the extent deducted in determining Consolidated Net Income; less
(n) non-cash items increasing
Consolidated Net Income of such Person for such period, excluding any items which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period; plus
(o) any other extraordinary,
non-recurring or unusual losses (or minus any other extraordinary, non-recurring or unusual gain); plus
(q) (i) with respect to any Customer Contract for which the
Borrower believes in good faith that it will receive payment, solely for the first four fiscal quarters following the commencement of the payments to the Borrower or any Restricted Subsidiary or delivery by the Borrower or any Restricted
Subsidiary, as applicable, pursuant to the Minimum Delivery Clauses thereof, the aggregate amount of “run rate” income that would have been earned pursuant to the Minimum Delivery Clauses of Customer Contracts entered into on or prior to the last
day of such period (net of actual income earned pursuant to such Customer Contracts during such period) as estimated by the Borrower in good faith as if such Customer Contract had been entered into at the beginning of such period and determined
assuming the contracted pricing pursuant to the Minimum Delivery Clauses for such Customer Contract was applicable during the entire period, less (ii) any actual income earned but not received under any
Customer Contract that was canceled or otherwise terminated in accordance with its terms during such period, or for which the Borrower has received notice that such cancellation or termination will occur;
all as determined on a consolidated basis for such Person and its Restricted Subsidiaries in accordance with GAAP.
“EEA Financial Institution”: (a) any institution established in any EEA Member Country which is subject to the
supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition or (c) any institution established in an EEA Member Country which
is a subsidiary of an institution described in clause (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country”: (a) any of the member states of the European Union, (b) Iceland, (c) Liechtenstein and (d)
Norway.
“EEA Resolution Authority”: 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.
“Electronic Signature”: 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.
“Environment”: ambient air, indoor air, surface water, drinking water, groundwater, land surface, subsurface strata, sediments and natural
resources such as wetlands, flora and fauna.
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“Environmental Claim”: any investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order, or other order
or directive (conditional or otherwise), by any Governmental Authority or any other Person, arising (a) pursuant to or in connection with any actual or alleged violation of any Environmental Law; (b) in connection with the presence, Release of, or
exposure to, any Hazardous Materials; or (c) in connection with any actual or alleged damage, injury, threat, or harm to the Environment.
“Environmental Laws”: any and all Laws regulating, relating to or imposing liability or standards of conduct concerning pollution, protection or regulation of the Environment or human health or safety in connection with exposure to Hazardous Materials, as has been, is now, or may at any time hereafter be,
in effect and including the common law insofar as it relates to any of the foregoing.
“Environmental Permits”: any and all Permits required under, or issued pursuant to, any Environmental Law and including the common law insofar
as it relates to any of the foregoing.
“Equal Lien Priority”: with respect to specified Indebtedness, such Indebtedness is secured by a Lien that is
equal in priority to the Liens on specified Collateral (but without regard to control of remedies) and is subject to the Equal Priority Intercreditor Agreement (or such other intercreditor agreement having substantially similar terms as the Equal
Priority Intercreditor Agreement, taken as a whole).
“Equal Priority Intercreditor Agreement”: shall have the meaning assigned to such term in the definition of “Equal Priority Obligations.”
“Equal Priority Obligations”: any Obligations with respect to any Indebtedness permitted to be incurred under this Agreement that are (and are
permitted by this Agreement to be) secured by a Lien that is equal in priority to the Liens securing the Obligations and is subject to a customary market form (as reasonably determined by the Administrative Agent and the Borrower as set forth in an
Officer’s Certificate delivered to the Borrower) equal priority intercreditor agreement among the Administrative Agent and the authorized agents of any holders of Equal Priority Obligations (such intercreditor agreement, as the same may be amended,
restated, renewed, replaced or otherwise modified from time to time, an “Equal Priority Intercreditor Agreement”).
“Equity Interests”: Capital Stock and all warrants, options or other rights to acquire Capital Stock, but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock.
“ERISA”: the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
“EU Bail-In Legislation Schedule”: the EU Bail-In Legislation Schedule published by the Loan Market Association
(or any successor Person), as in effect from time to time.
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“Event of Default”: any of the events or conditions specified in Section 7.1(a); provided that any
requirement for the giving of notice, the lapse of time, or both, has been satisfied. For the avoidance of doubt, a Demand Failure Event shall not constitute or result in an Event of
Default.
“Exchange Act”: the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
(a) (i) the Equity Interests of any (A) Captive Insurance
Subsidiary, (B) not-for-profit or special purpose Subsidiary, (C) Excluded Pledged Subsidiary or (D) Securitization Subsidiary and/or (ii) Voting Stock representing in excess of 65.0% of the Voting Stock of any CFC or FSHCO, except in the case of
this clause (ii) to the extent that a pledge of such excess Voting Stock would not reasonably be expected to result in an adverse tax consequence to the Borrower or any Restricted Subsidiary;
(b) any intent-to-use (or similar) trademark application prior
to the filing and acceptance of a “Statement of Use” or “Amendment to Allege Use” notice and/or filing with respect thereto;
(c) any asset, the grant of a security interest in which would
(i) require any governmental consent, approval, license or authorization that has not been obtained, (ii) be prohibited by applicable requirements of law, except, in each case of clause (i) above and this clause (ii), to the
extent such requirement or prohibition would be rendered ineffective under the UCC or any other applicable law notwithstanding such requirement or prohibition; it being understood that the term “Excluded Asset” shall not include proceeds or
receivables arising out of any asset described in clause (i) or clause (ii) to the extent that the assignment of such proceeds or receivables is expressly deemed to be effective under the UCC or any other applicable law
notwithstanding the relevant requirement or prohibition or (iii) result in material adverse tax consequences to the Borrower or any of its direct or indirect Subsidiaries as reasonably determined by the Borrower in consultation with the
Administrative Agent;
(d) (i) any leasehold real property interests and (ii) any fee
owned real property that is not a Material Real Estate Asset or that is located in a “special flood zone,” unless the portion of such property that is located in the “special flood zone” is legally subdivided, in which case only the portion of
such property, including any improvements thereon, that is in the “special flood zone”;
(e) any interest in any partnership, joint venture or
non-Wholly-Owned Subsidiary that cannot be pledged without (i) the consent of one or more third parties other than the Borrower or any of its Restricted Subsidiaries under the Organizational Documents (and/or shareholders’ or similar agreement)
of such partnership, joint venture or non-Wholly-Owned Subsidiary or (ii) giving rise to a “right of first refusal,” a “right of first offer” or a similar right permitted or otherwise not prohibited by the terms of this Agreement that may be
exercised by any third party other than the Borrower or any of its Restricted Subsidiaries in accordance with the Organizational Documents (and/or shareholders’ or similar agreement) of such partnership, joint venture or non-Wholly-Owned
Subsidiary except, in each case of clause (i) above and this clause (ii), to the extent such requirement or prohibition would be rendered ineffective under the UCC or any other applicable law notwithstanding such requirement or
prohibition;
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(f) (i) assets subject to certificates of title, (ii)
letter-of-credit rights not constituting supporting obligations of other Collateral and (iii) commercial tort claims with a value (as reasonably estimated by the Borrower) of less than $10,000,000, except, in each case of clauses (i)
through (iii), to the extent a security interest therein can be perfected solely by the filing of a UCC financing statement;
(h) any lease, license or other agreement or contract or any
asset subject thereto (including pursuant to a purchase money security interest, Capitalized Lease Obligations or similar arrangement) that is, in each case, permitted by this Agreement to the extent that the grant of a security interest therein
would violate or invalidate such lease, license or agreement or contract or purchase money, Capitalized Lease Obligations or similar arrangement, in each case, to the extent permitted by this Agreement, or trigger a right of termination in favor
of any other party thereto (other than the Borrower or any of its Restricted Subsidiaries) after giving effect to the applicable anti-assignment provisions of the UCC or any other applicable law; it being understood that the term “Excluded Asset”
shall not include any proceeds or receivables arising out of any asset described in this clause (h) to the extent that the assignment of such proceeds or receivables is expressly deemed to be effective under the UCC or any other
applicable law notwithstanding the relevant requirement or prohibition;
(i) any asset with respect to which the Borrower and the
Administrative Agent have reasonably determined that the cost, burden, difficulty or consequence (including any effect on the ability of the Borrower or any Guarantor to conduct its operations and business in the ordinary course of business) of
obtaining or perfecting a security interest therein outweighs the benefit of a security interest to the Administrative Agent for the benefit of the Secured Parties, which determination is evidenced in writing; provided that such asset
does not secure (or purport to secure) any Equal Priority Obligations or Junior Priority Obligations;
(j) Securitization Assets (i) disposed of to any
Securitization Subsidiary in connection with a Qualified Securitization Financing or (ii) otherwise pledged, factored, transferred or sold in connection with any Qualified Securitization Financing; and
(k) any governmental licenses or state or local franchises,
charters or authorizations, to the extent a security interest in any such license, franchise, charter or authorization would be prohibited or restricted thereby (including any legally effective prohibition or restriction) except to the extent
such requirement or prohibition would be rendered ineffective under the UCC or any other applicable law notwithstanding such requirement or prohibition; it being understood that the term “Excluded Asset” shall not include proceeds or receivables
arising out of any the foregoing assets to the extent that the assignment of such proceeds or receivables is expressly deemed to be effective under the UCC or any other applicable law notwithstanding the relevant requirement or prohibition.
Terms defined in the UCC that are not otherwise defined in this Agreement are used in this definition as defined in the UCC.
“Excluded Pledged Subsidiary”: (a) any Subsidiary that is prohibited by applicable
law from having a Lien granted on its Equity Interests except to the extent such prohibition would be rendered ineffective under the UCC or any other applicable law notwithstanding such prohibition, (b) [reserved], (c) any Subsidiary that is not a
Material Subsidiary and (d) any Subsidiary that is prohibited by the terms of a contractual obligation not otherwise prohibited by this Agreement that is in effect on the date such Subsidiary is acquired by the Borrower, so long as such prohibition
was not incurred in connection with or in contemplation of the acquisition of such Subsidiary, from having a Lien granted on its Equity Interests.
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“Existing Indebtedness”: Indebtedness in existence on the Closing Date of the Borrower and the Restricted Subsidiaries, plus
interest accruing thereon, other than any Indebtedness that will be terminated upon consummation of the Refinancing.
“Fair Market Value”: the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress
or necessity of either party, determined in good faith by the chief executive officer, chief financial officer, chief accounting officer or controller of the Borrower or the Restricted Subsidiary, which determination will be conclusive (unless
otherwise provided in this Agreement).
“FASB”: the Financial Accounting Standards Board of the American Institute of Certified Public Accountants.
“Federal Funds Effective Rate”: 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 the Floor, such rate shall be deemed to be the Floor for the purposes of this Agreement.
“Fee Letter”: that certain Fee Letter, dated as of August 6, 2025, by and among the Borrower, Barclays and Deutsche Bank Securities Inc., as
amended restated, amended and restated, supplemented or otherwise modified from time to time.
“Fitch”: Fitch Ratings or any of its successors or assigns that is a nationally recognized statistical rating
organization within the meaning of Rule 3(a)(62) under the Exchange Act.
“Fixed Charge Coverage Ratio”: with respect to any Person for any period, the ratio of EBITDA of such Person for
such period to the Fixed Charges of such Person for such period.
(b) all cash dividend payments
(excluding items eliminated in consolidation) on any series of preferred stock (including the Series B GCM Securities, the Rail Co. Series A Preferred Units and any series of Designated Preferred Stock) or any Refunding Capital Stock of such
Person; and
(c) all cash dividend payments
(excluding items eliminated in consolidation) on any series of Disqualified Stock.
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“Floor”: 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 Adjusted Term SOFR Rate or the Adjusted Daily Simple SOFR, as applicable. For the avoidance of doubt the initial Floor for each of the Federal Funds Effective Rate, the NYFRB
Rate, the Adjusted Term SOFR Rate and the Adjusted Daily Simple SOFR shall be zero.
“Foreign Employee Benefit Plan”: any employee benefit plan as defined in Section 3(3) of ERISA which is
maintained or contributed to for the benefit of the employees of the FTAI Group Members, but which is not covered by ERISA pursuant to ERISA Section 4(b)(4).
“Foreign Subsidiary”: with respect to any Person, any Subsidiary of such Person that is not organized or existing
under the laws of the United States of America, any state thereof or the District of Columbia.
“FSHCO”: any Subsidiary of the Borrower, substantially all of whose assets are Equity
Interests in, and (if applicable) indebtedness of, one or more Subsidiaries that are CFCs or other Subsidiaries described in this definition of “FSHCO.”
“GAAP”: generally accepted accounting principles in the United States of America which are in effect on the Closing Date (except with respect to accounting for capital leases, as to which such principles in effect for the Borrower on December 31, 2018, shall apply). At any time after the Closing Date, the Borrower may
elect to apply IFRS accounting principles in lieu of GAAP for purposes of calculations hereunder and, upon any such election, references herein to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided in this Agreement); provided
that calculation or determination in this Agreement that requires the application of GAAP for periods that include fiscal quarters ended prior to the Borrower’s election to apply IFRS shall remain as previously calculated or determined in
accordance with GAAP. The Borrower shall give notice of any such election made in accordance with this definition to the Administrative Agent.
“Governmental Authority”: any federal, state, provincial, municipal, national or other government, governmental department, commission, board,
bureau, authority, court, central bank, agency, regulatory body or instrumentality or political subdivision thereof or any entity, officer or examiner exercising executive, legislative, judicial, regulatory or administrative functions of or
pertaining to any government or any court, in each case whether associated with a state of the United States, the United States, or a foreign entity or government (including any supranational bodies such as the European Union or the European
Central Bank).
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“Guarantee Agreements”: collectively, (a) the Guarantee Agreement, substantially in the form of Exhibit E,
in favor of the Administrative Agent for the benefit of the Lenders and governed by the Laws of the State of New York, and (b) any such other guarantee made in favor of the Administrative Agent for the benefit of the Lenders in form and substance
reasonably satisfactory to the Administrative Agent, in each case, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“Guarantor Obligations”: all obligations and liabilities of any Guarantor (including interest, fees and expenses after the filing of any
petition in bankruptcy (or which, but for the filing of such petition, would be accruing), or the commencement of any insolvency, reorganization, examinership or like proceeding, relating to such Guarantor, whether or not a claim for post-filing or
post-petition interests, fees or expenses is allowed or allowable in such proceeding) which arise under or in connection with this Agreement, any Guarantee Agreement, any other Loan Document, in each case whether on account of principal, interest,
guarantee obligations, reimbursement obligations, fees, indemnities, costs, expenses or otherwise.
“Guarantors”: any Person that executes a Guarantee in accordance with the provisions of this Agreement and its
respective successors and assigns, in each case, until the Guarantee of such Person has been released in accordance with the provisions of this Agreement. As of the Closing Date, there are no Guarantors.
“Hazardous Materials”: any material, substance, chemical, or waste (or combination thereof) that (a) is listed, defined, designated, regulated
or classified as hazardous, toxic, radioactive, dangerous, a pollutant, a contaminant, or words of similar meaning or effect under any Environmental Law; or (b) can form the basis of any liability under any Environmental Law, including any
Environmental Law relating to petroleum, petroleum products, asbestos, urea formaldehyde, radioactive materials, polychlorinated biphenyls and toxic mold.
(a) currency exchange, interest
rate, inflation or commodity swap agreements, currency exchange, interest rate, inflation or commodity cap agreements and currency exchange, interest rate, inflation or commodity collar agreements; and
(b) other agreements or
arrangements designed to protect such Person against fluctuations in currency exchange, interest rates, inflation or commodity prices.
“Historical Borrower Financial Statements”: (a) audited consolidated balance sheets
and related consolidated statements of operations, comprehensive (loss) income, changes in equity and cash flows for the three (3) most recently completed fiscal years of the Borrower ended prior to the Closing Date (and the related audit reports);
and (b) unaudited consolidated balance sheets and related consolidated statements of operations, comprehensive (loss) income, changes in equity and cash flows for each subsequent fiscal quarter of the Borrower ended more than forty-five (45) days
prior to the Closing Date.
“Historical Target Financial Statements”: (a) consolidated, audited balance sheets as of June 30, 2024, and June 30, 2023, in each case, the
related statements of income, changes in stockholder’s equity and cash flows for the years then ended, (b) (i) the unaudited, consolidated balance sheet of the Target and its Subsidiaries as of March 31, 2025, and the related statements of income,
changes in stockholder’s equity and cash flows for the fiscal year-to-date period then ended and (ii) the unaudited, consolidated balance sheet of the Target and its Subsidiaries as of May 31, 2025, and the related statements of income, changes in
stockholder’s equity and cash flows for the eleven (11)-month period then ended and (c) such other financial statements actually received by the Borrower with respect to the Target and its Subsidiaries pursuant to Section 5.11 of the Stock Purchase
Agreement.
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“IFRS”: the International Financial Reporting Standards issued by the International Accounting Standards Board, as in effect from time to time,
to the extent applicable to the relevant financial statements.
(ii) evidenced by bonds, notes,
debentures or similar instruments or letters of credit or bankers’ acceptances (or, without double counting, reimbursement agreements in respect thereof);
(iii) representing the balance
deferred and unpaid of the purchase price of any property (including Capitalized Lease Obligations but excluding any lease obligations that do not constitute a Capitalized Lease Obligation pursuant to the proviso contained in the definition
thereof), except (A) any such balance that constitutes a trade payable or similar obligation to a trade creditor, in each case accrued in the ordinary course of business, (B) any earn-out obligations until such obligation becomes a liability on
the balance sheet of such Person in accordance with GAAP and is no longer contingent and (C) any purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the
seller; or
if and to the extent that any of the foregoing Indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet
(excluding the footnotes thereto) of such Person prepared in accordance with GAAP;
(b) to the extent not otherwise
included, any obligation by such Person to be liable for, or to pay, as obligor, guarantor or otherwise, on the Indebtedness of another Person, other than by endorsement of negotiable instruments for collection in the ordinary course of business;
provided that the amount of Indebtedness of any Person for purposes of this clause (b) shall be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) solely in the case of Non-Recourse
Indebtedness of the Borrower or a Restricted Subsidiary, the Fair Market Value of the property encumbered thereby as determined by such Person in good faith; and
(c) to the extent not otherwise
included, Indebtedness of another Person secured by a Lien on any asset owned by such Person, whether or not such Indebtedness is assumed by such Person;
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provided that, notwithstanding the foregoing, Indebtedness shall be deemed not to include: (1) Contingent Obligations, (2) obligations under or in
respect of a Qualified Securitization Financing, (3) reimbursement obligations under commercial letters of credit (provided, however, that unreimbursed amounts under letters of credit shall be counted as Indebtedness on or after
three (3) Business Days after such amount is drawn), (4) intercompany liabilities arising from cash management, tax and accounting operations and (5) intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of
any rollover or extensions of term) and made in the ordinary course of business.
The amount of Indebtedness of any Person outstanding at any time in the case of a revolving credit or similar facility
shall be the total amount of funds borrowed and then outstanding. The amount of Indebtedness of any Person outstanding at any date shall be determined as set forth in this definition or otherwise provided in this Agreement, and shall equal the
amount that would appear on a balance sheet of such Person (excluding any notes thereto) prepared on the basis of GAAP.
“Independent Financial Advisor”: an accounting, appraisal, investment banking firm or consultant to Persons
engaged in Similar Businesses of nationally recognized standing that is, in the good faith judgment of the Borrower, qualified to perform the task for which it has been engaged.
“Intellectual Property”: the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including copyrights, patents, trademarks, proprietary technology, proprietary know-how and proprietary processes, and all rights to sue at law or in equity for any infringement or
other violation thereof, including the right to receive all proceeds and damages therefrom.
“Interest Payment Date”: with respect to (a) any Base Rate Loan, the last Business Day of March, June, September and December of each year,
commencing on the first such date to occur after the Closing Date; and the final maturity date of such Loan; and (b) any Term Benchmark Loan, the last day of each Interest Period applicable to such Loan and the final
maturity of such Loan; provided that, in the case of each Interest Period of longer than three (3) months, “Interest Payment Date” shall also include each date that is three (3) months, or an integral multiple thereof, after the
commencement of such Interest Period.
“Interest Period”: with respect to any Term Benchmark Borrowing, an interest period of one (1), three (3) or six (6) months (or, to the extent agreed by each Lender, any other period), as selected by the Borrower in the applicable Funding Notice or Continuation Notice, (a) initially, commencing on the Closing Date or Continuation Date
thereof, as the case may be; and (b) thereafter, commencing on the day on which the immediately preceding Interest Period expires; provided (i) if an Interest Period would otherwise expire on a day that is not a
Business Day, such Interest Period shall expire on the next succeeding Business Day unless no further Business Day occurs in such month, in which case such Interest Period shall expire on the immediately preceding
Business Day; (ii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause
(iii) of this definition, end on the last Business Day of a calendar month; and (iii) no Interest Period with respect to any portion of Loans shall extend beyond the Maturity Date.
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“Interest Rate Determination Date”: with respect to any Interest Period, the date that is two (2) Business Days
prior to the first (1st) day of such Interest Period.
“Investment Grade Rating”: a rating equal to or higher than BBB- (or the equivalent) by Fitch, Baa3 (or the
equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other Rating Agency.
“Investments”: with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of loans (including guarantees), advances or capital contributions (excluding accounts receivable, trade credit, advances to customers, commission, travel, moving and
similar advances to officers, directors and employees, in each case made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other Person and
investments that are required by GAAP to be classified on the balance sheet (excluding the footnotes) of the Borrower in the same manner as the other investments included in this definition to the extent such transactions involve the transfer of
cash or other property; provided that endorsements of negotiable instruments and documents in the ordinary course of business will not be deemed to be an Investment. For purposes of Section 6.1, in
the case of a Person that ceases to be a Subsidiary, “Investments” shall include the portion (proportionate to the Borrower’s equity interest in such Person) of the Fair Market Value of the net assets of such Person at the time that such Person
ceased to be a Subsidiary. The amount of any Investment outstanding at any time shall be the original cost of such Investment (determined, in the case of an Investment made with assets
of the Borrower or any Restricted Subsidiary, based on the net book value of the assets invested), reduced by any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash by the Borrower or a Restricted Subsidiary in respect of such Investment.
“Junior Lien Priority”: with respect to specified Indebtedness, such Indebtedness is secured by a Lien that is junior in priority to the Liens
on specified Collateral and is subject to a Junior Priority Intercreditor Agreement (or such other intercreditor agreement having substantially similar terms as the Junior Priority Intercreditor Agreement, taken as a whole).
“Junior Priority Collateral Agent”: the Junior Priority Representative for the holders of any initial Junior Priority Obligations.
“Junior Priority Obligations”: the Obligations with respect to any Indebtedness permitted to be incurred under this Agreement and having Junior
Lien Priority relative to the Obligations; provided that such Lien is permitted to be incurred under this Agreement; provided, further, that the holders of such indebtedness or their Junior Priority Representative shall
become party to a Junior Priority Intercreditor Agreement.
“Junior Priority Representative”: any duly authorized representative of any holders of Junior Priority Obligations, which representative is
named as such in the Junior Priority Intercreditor Agreement or any joinder thereto.
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“Law”: all international, foreign, Federal, state and local statutes, treaties, rules, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed
duties, licenses, authorizations and permits of, any Governmental Authority.
“Lenders”: the Persons listed on Schedule 1.1 and any other Person that shall have become a party hereto
pursuant to an Assignment and Acceptance, other than any such Person that shall have ceased to be a party hereto pursuant to an Assignment and Acceptance; provided, however, that Section 9.5 shall continue to apply to each
such Person that ceases to be a party hereto pursuant to an Assignment and Acceptance as if such Person is a “Lender.”
“Lien”: with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or
other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction; provided that in no event shall an operating lease be deemed to constitute a Lien.
“LLC”: any Person that is a limited liability company under the laws of its jurisdiction of formation.
“Loan Documents”: this Agreement, any Guarantee Agreement, the Security Documents, any Equal Priority Intercreditor Agreement, any Junior
Priority Intercreditor Agreement and the Promissory Notes.
“Loan Exposure”: with respect to any Lender, as of any date of determination, the outstanding principal amount of
the Loans of such Lender; provided, at any time prior to the making of the Loans, the Loan Exposure of any Lender shall be equal to such Lender’s Commitment.
“Management Equity”: profits interests, restricted Capital Stock or options to acquire Capital Stock of the
Borrower issued to directors, management or employees of the Borrower and its Subsidiaries, which profits interests, Capital Stock or options may be convertible into, or exchangeable or exercisable for, Capital Stock of or options to acquire
Capital Stock of the Borrower.
“Material Adverse Effect”: any circumstances or conditions that would have a material adverse effect on (a) the
ability of the Borrower to perform its payment obligations under this Agreement or any other Loan Document, (b) the rights or remedies of the Administrative Agent and the Lenders under this Agreement or any other Loan
Document or (c) the business, assets, properties, liabilities or financial condition of the FTAI Group Members, taken as a whole.
“Material Real Estate Asset”: any “fee-owned” real estate asset located in the United States owned by the Borrower
or any Guarantor on the Closing Date or acquired by the Borrower or any Guarantor after the Closing Date, in each case, having a fair market value in excess of $10,000,000 as of the date of acquisition thereof (or the date of substantial completion
of any material improvement thereon or new construction thereof).
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“Material Subsidiary”: (i) each Subsidiary of the Borrower that, as of the last day of the fiscal quarter of the Borrower most recently ended,
had total revenues (excluding intercompany revenues) for such quarter in excess of 2.0% of the consolidated total revenues of the Borrower and its Subsidiaries for such quarter in accordance with GAAP and (ii) any group comprising Wholly-Owned
Subsidiaries that each would not have been a Material Subsidiary under clause (i) above but that, taken together, as of the last day of the fiscal quarter of the Borrower most recently ended, had total revenues (excluding intercompany revenues) for
such quarter in excess of 5.0% of the consolidated total revenues of the Borrower and its Subsidiaries for such quarter in accordance with GAAP.
“Minimum Delivery Clauses”: as defined in the definition of “Customer Contracts” hereto.
“Moody’s”: Moody’s Investors Service, Inc. or any of its successors or assigns that is a nationally recognized
statistical rating organization within the meaning of Rule 3(a)(62) under the Exchange Act.
“Multiemployer Plan”: a plan that is a multiemployer plan as defined in Section 4001(a)(3) of ERISA with respect to which the Borrower or any
Commonly Controlled Entity has an obligation to make contributions or has any actual or contingent liability.
“Net Equity Proceeds”: with respect to the sale, issuance or exercise after the Closing Date by the Borrower or
its Restricted Subsidiaries of any Capital Stock or any capital contribution by any Person to the Borrower or any such Restricted Subsidiary, the excess of (a) the gross cash proceeds (other than in respect of the Rail Co. Equity Securities)
received by the Borrower or any such Restricted Subsidiary from such sale, issuance or exercise, over (b) all underwriting commissions and legal, investment banking, brokerage, accounting and other professional fees, sales commissions and
disbursements actually incurred in connection with such sale or issuance which have not been paid and are not payable to the Borrower or any such Restricted Subsidiary or an Affiliate thereof in connection therewith.
“Net Income”: with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends.
“Net Proceeds”: an amount equal to the aggregate cash proceeds received by the Borrower or any Restricted
Subsidiary in respect of any Asset Sale received in any Asset Sale, net of the direct costs relating to such Asset Sale, including legal, accounting and investment banking fees, and brokerage and sales commissions, payments made in order to obtain
necessary consents required by agreement or by applicable law, any relocation expenses incurred as a result thereof, taxes paid or payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing
arrangements), or Recovery Events, in each case, net of other fees and expenses, including title and recordation expenses, amounts required to be applied to the repayment of principal, premium, if any, and interest on Indebtedness secured by a Lien
permitted under this Agreement required (other than required by Section 6.4(b)(i)) to be paid as a result of such transaction and any deduction of appropriate amounts to be provided by the Borrower as a reserve in accordance with GAAP
against any liabilities associated with the asset disposed of in such transaction and retained by the Borrower after such sale or other disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to
environmental matters or against any indemnification obligations associated with such transaction.
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“Non-Debt Fund Affiliate”: any Affiliate of the Borrower, Fortress or the Permitted Investors other than (a) a natural person, (b) the Borrower
and its Subsidiaries and/or (c) any Debt Fund Affiliate.
“Non-Public Information”: material non-public information (within the meaning of United States federal, state or other applicable securities
laws) with respect to the Borrower and its Subsidiaries or their securities.
“Non-Recourse Indebtedness”: with respect to any Person, Indebtedness of such Person and any refinancing Indebtedness thereof for which the sole legal recourse for collection
of principal and interest on such Indebtedness is against the specific property identified in the instruments evidencing or securing such Indebtedness.
“NYFRB Rate”: 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. 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 be less than the Floor, such rate shall be deemed to be the Floor for purposes of this Agreement.
“Obligations”: the collective reference to (a) the Borrower Obligations, and (b) the Guarantor Obligations, in
each case, including any Loans (plus any accrued and unpaid interest) held by the Administrative Agent as a result of an Erroneous Payment Deficiency Assignment in accordance with Section 8.10 and/or
with respect to which it has Erroneous Payment Subrogation Rights.
“Officer”: the Chairman of the board of directors, the Chief Executive Officer, the President, any Executive Vice President, Senior Vice
President or Vice President, the Chief Financial Officer, the Treasurer, the Secretary or any Assistant Secretary of the Borrower.
“Officer’s Certificate”: a certificate signed on behalf of the Borrower by an Officer of the Borrower that is the
principal executive officer, the principal financial officer, the treasurer, the principal accounting officer or the secretary of the Borrower, that meets the requirements set forth in this Agreement.
“Opinion of Counsel”: an opinion from legal counsel (who may be counsel to the Borrower) that meets the
requirements of this Agreement.
“Organizational Documents”: (a) in the case of any corporation, the certificate of incorporation and bylaws (or
similar documents) of such person, (b) in the case of any limited liability company, the certificate of formation and operating agreement (or similar documents) of such person, (c) in the case of any limited partnership, the certificate of
formation and limited partnership agreement (or similar documents) of such person, (d) in the case of any general partnership, the partnership agreement (or similar document) of such person, (e) in the case of any trust, the declaration of trust
and trust agreement (or similar document) of such person and (f) in any other case, the functional equivalent of the foregoing.
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“Other Connection Taxes”: 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 any connection arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or
perfected a security interest under, engaged in any other transaction pursuant to and/or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes”: any and all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes arising from any
payment made hereunder or under any other Loan Document or from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document (and
any interest, additions to Tax or penalties applicable thereto), except any such Taxes that are Other Connection Taxes imposed as a result of an assignment by a Lender (other than an assignment made pursuant to Section 2.19).
“Overnight Bank Funding Rate”: for any day, the rate comprised of both overnight federal funds and overnight eurodollar transactions denominated in Dollars 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.
“PATRIOT Act”: the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III
of Pub. L. 107-56 (signed into law October 26, 2001)).
“Pension Plan”: a “pension plan,” as such term is defined in Section 3(2) of ERISA, which is subject to Title IV
of ERISA (other than a Multiemployer Plan), and to which the Borrower may have liability, including any liability by reason of the Borrower’s (a) being jointly and severally liable for liabilities of any Commonly Controlled Entity in connection
with such Pension Plan, (b) having been a substantial employer within the meaning of Section 4063 of ERISA at any time during the preceding five (5) years, or (c) being deemed to be a contributing sponsor under Section 4069 of ERISA.
“Permit”: any permit, license, approval, consent, order, right, certificate, judgment, writ, injunction, award, determination, direction,
decree, registration, notification, authorization, franchise, privilege, grant, waiver, exemption and other similar concession or bylaw, rule or regulation of, by or from any Governmental Authority.
“Permitted Asset Swap”: the concurrent purchase and sale or exchange of Related Business Assets or a combination
of Related Business Assets and cash or Cash Equivalents between the Borrower or any of its Restricted Subsidiaries and another Person; provided that any cash or Cash Equivalents received must be applied in accordance with Section 6.4.
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(b) Indebtedness incurred by Rail Co. and/or its Subsidiaries
after the Closing Date in an aggregate principal amount not to exceed $50,000,000 at any time outstanding; and
(c) Indebtedness incurred by Delaware River Partners Holdco LLC
and/or its Subsidiaries after the Closing Date in an aggregate principal amount not to exceed $25,000,000 at any time outstanding.
(c) any Investment by the
Borrower or any Restricted Subsidiary in a Person if as a result of such Investment:
(ii) such Person, in one
transaction or a series of related transactions, is consolidated, amalgamated or merged with or into, or transfers or conveys substantially all its assets to, or is liquidated into, the Borrower or a Restricted Subsidiary;
(d) any Investment in securities
or other assets not constituting cash or Cash Equivalents and received in connection with an Asset Sale made pursuant to Section 6.4 or any other disposition of assets not constituting an Asset Sale;
(e) any Investment existing on the
Closing Date or made pursuant to the terms of any agreement (including binding and contingent commitments) in effect on the Closing Date or an Investment that replaces, refinances or refunds an Investment existing on the Closing Date; provided
that the amount of any such new Investment is in an amount that does not exceed the amount replaced, refinanced or refunded (after giving effect to write-downs or write-offs with respect to such Investment);
(f) advances to, or guarantees
of Indebtedness of, officers, directors and employees of the Borrower or any Restricted Subsidiary not in excess of $10,000,000 outstanding at any one time, in the aggregate;
(i) in exchange for any other
Investment or accounts receivable held by the Borrower or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the Borrower of such other Investment or accounts
receivable (including any trade creditor or customer);
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(iii) as a result of a foreclosure
by the Borrower or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;
(i) loans to officers, directors
and employees of the Borrower or any Restricted Subsidiary for business-related travel expenses, moving expenses and other similar expenses, in each case incurred in the ordinary course of business;
(k) Investments the payment for
which consists of Equity Interests of the Borrower (exclusive of Disqualified Stock);
(n) Investments consisting of
purchases, acquisitions and remanufacturing of inventory, supplies, material or equipment or other assets, or purchases, acquisitions, licenses, sub-licenses or leases or subleases of Intellectual Property or other assets, in each case in the
ordinary course of business;
(o) Investments consisting of
licensing, sub-licensing, leasing and subleasing of assets (including of real or personal property and Intellectual Property rights and other general intangibles) to other Persons in the ordinary course of business or pursuant to joint marketing
arrangements with other Persons;
(q) any Investments received in
compromise or resolution of (i) obligations of trade creditors or customers that were incurred in the ordinary course of business of the Borrower or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of any trade creditor or customer; or (ii) litigation, arbitration or other disputes with Persons who are not Affiliates;
(r) Investments of a Restricted
Subsidiary acquired after the Closing Date or of an entity consolidated, amalgamated or merged with or into a Restricted Subsidiary in a transaction that is not prohibited by Section 6.9 after the Closing Date to the extent that such
Investments were not made in contemplation of such acquisition, consolidation, amalgamation or merger and were in existence on the date of such acquisition, consolidation, amalgamation or merger;
(t) Investments relating to any
Securitization Subsidiary that, in the good faith determination of the Borrower, are necessary or advisable to effect any Qualified Securitization Financing;
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(u) any Investment in any Subsidiary
of the Borrower or any joint venture in connection with intercompany cash management arrangements or related activities arising in the ordinary course of business;
(v) Investments made in the
ordinary course of business in connection with obtaining, maintaining or renewing client and customer contracts and loans or advances made to, and guarantees with respect to obligations of, distributors, suppliers, licensors and licensees in the
ordinary course of business;
(y) Investments made in Clean Planet Energy USA LLC in an
aggregate principal outstanding amount not to exceed $100,000,000.
“Permitted Investors”: the collective reference to Fortress and its Control Investment Affiliates; provided
that the definition of “Permitted Investors” shall not include any Control Investment Affiliate whose primary purpose is the operation of an ongoing business (excluding any business whose primary purpose is the investment of capital or assets).
“Permitted Jurisdiction”: any of the United States of America, any state thereof or the District of Columbia.
(a) pledges or deposits by such
Person under workmen’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a
party, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S. government bonds to secure surety, customs or appeal bonds to which such Person is a party, or deposits as security for contested taxes or
import duties or for the payment of rent, or premiums to insurance carriers, in each case incurred in the ordinary course of business;
(b) Liens imposed by law, such as
carriers’, warehousemen’s, materialmen’s, landlords’, workmen’s, suppliers’, repairmen’s and mechanics’ Liens and other similar Liens arising in the ordinary course of business, in each case for sums not yet overdue for a period of more than
thirty (30) days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for
review;
(c) Liens for taxes, assessments
or other governmental charges or levies (x) not yet overdue for a period of more than thirty (30) days or (y) which are being contested in good faith by appropriate proceedings and for which adequate reserves are maintained on the books of such
Person in conformity with GAAP;
(d) Liens in favor of issuers of
performance and surety bonds or bid bonds or with respect to other regulatory requirements or letters of credit issued pursuant to the request of and for the account of such Person in the ordinary course of its business;
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(e) minor survey exceptions,
minor encumbrances, minor title deficiencies, easements or reservations of, or rights of others for, licenses, rights-of-way, covenants, encroachments, protrusions, sewers, electric lines, telegraph and telephone lines and other similar purposes,
or zoning or other restrictions as to the use of real properties or Liens incidental, to the conduct of the business of such Person or to the ownership of its properties which were not incurred in connection with Indebtedness and which do not in
the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;
(g) Liens securing Indebtedness
constituting Equal Priority Obligations under any Credit Facilities incurred and outstanding pursuant to Section 6.3(b)(i);
(h) Liens on assets or property
of or Equity Interests in a Person at the time such Person becomes a Subsidiary; provided that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary; provided,
further, that such Liens may not extend to any other property owned by the Borrower or any Restricted Subsidiary;
(i) Liens on assets or property
at the time the Borrower or any Restricted Subsidiary acquired such assets or property, including any acquisition by means of a consolidation, amalgamation or merger with or into the Borrower or any Restricted Subsidiary; provided that
the Liens may not extend to any other property owned by the Borrower or any Restricted Subsidiary;
(j) Liens securing Indebtedness or
other obligations of the Borrower or a Restricted Subsidiary owing to the Borrower or another Restricted Subsidiary permitted to be incurred in accordance with Section 6.3;
(k) Liens securing Hedging
Obligations and any guarantees thereof permitted to be incurred pursuant to Section 6.3(b)(x);
(l) Liens on specific items of
inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other
goods;
(m) licenses, sub-licenses, leases
and subleases (including of real or personal property and Intellectual Property rights and other general intangibles) granted to others in the ordinary course of business;
(n) Liens arising from Uniform
Commercial Code financing statement filings regarding operating leases or consignments entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(p) Liens on equipment of the
Borrower or any Restricted Subsidiary granted in the ordinary course of business to the Borrower’s client at which such equipment is located;
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(q) Liens on Securitization
Assets and related assets incurred in connection with a Qualified Securitization Financing;
(r) Liens securing Indebtedness
permitted to be incurred pursuant to Section 6.3(b)(iv) and obligations secured ratably thereunder; provided that such Liens extend only to the assets and/or Capital Stock of the applicable Persons pursuant to which the purchase,
lease, improvement, development, construction, remanufacturing, refurbishment, handling and repositioning or repair is financed and any replacements, additions and accessions thereto and any income or profits thereof; provided, further,
that individual financings provided by a lender may be cross collateralized to other financings provided by such lender or its affiliates;
(s) Liens to secure any
refinancing, refunding, extension, renewal or replacement (or successive refinancing, refunding, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in clauses (f), (h),
(i), (j), (k), (o), (r), (dd), (kk) and (mm) and this clause (s) of this definition; provided that (x) such new Lien shall be limited to all or part of the same
property that secured the original Lien (plus improvements on such property), (y) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (A) the
outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (f), (h), (i), (j), (k), (o), (r), (dd), (kk) and (mm) and
this clause (s) of this definition at the time the original Lien became a Permitted Lien under this Agreement, and (B) an amount necessary to pay any fees and expenses, including premiums, underwriting discounts and defeasance costs
related to such refinancing, refunding, extension, renewal or replacement and (z) the new Lien has no greater priority and the holders of the Indebtedness secured by such Lien have no greater intercreditor rights relative to the Obligations and
the Lenders than the original Liens and the related Indebtedness;
(t) other Liens securing obligations (other than Indebtedness for borrowed money) the principal
amount of which does not exceed at any one time outstanding $10,000,000;
(u) Liens securing judgments,
attachments or awards for the payment of money not constituting an Event of Default under Section 7.1(a)(v) so long as (i) such judgment is being contested in good faith and any appropriate legal proceedings that may have been duly
initiated for the review of such judgment have not been finally terminated or the period within which such proceedings may be initiated has not expired or (ii) such Liens are supported by an indemnity by a third party with an Investment Grade
Rating;
(v) Liens in favor of customs and
revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
(w) Liens (i) of a collection bank
arising under Section 4-210 of the Uniform Commercial Code, or any comparable or successor provision, on items in the course of collection, (ii) attaching to commodity trading accounts or other commodity brokerage accounts incurred in the
ordinary course of business, and (iii) in favor of banking institutions arising as a matter of law encumbering deposits (including the right of setoff) and which are within the general parameters customary in the banking industry;
(x) Liens encumbering reasonable
customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;
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(y) Liens that are contractual
rights of setoff (i) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Borrower or any of its Restricted
Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower and its Restricted Subsidiaries or (iii) relating to purchase orders and other agreements entered into with
customers of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(z) Liens arising out of
conditional sale, title retention, consignment or similar arrangements for the sale or purchase of goods entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;
(bb) Liens placed on the Capital
Stock of any non-Wholly-Owned Subsidiary or joint venture in the form of a transfer restriction, purchase option, call or similar right of a third-party joint venture partner;
(ee) bankers’ Liens, rights of
setoff and other similar Liens existing solely with respect to cash and Cash Equivalents on deposit in one or more accounts maintained by the Borrower or its Restricted Subsidiaries, in each case granted in the ordinary course of business in
favor of the bank or banks with which such accounts are maintained, securing amounts owing to such bank with respect to cash management and operating account arrangements, including those involving pooled accounts and netting arrangements; provided
that, unless such Liens are non-consensual and arise by operation of law, in no case shall any such Liens secure (either directly or indirectly) the repayment of any Indebtedness;
(ff) Liens on property or assets
under construction (and related rights) in favor of a contractor or developer arising from progress or partial payments by a third party relating to such property or assets;
(gg) any reservations, limitations,
provisos or conditions, if any, expressed in any grants from any governmental or similar authority;
(hh) specific marine mortgages and
maritime liens or foreign equivalents on property or assets of the Borrower or any Guarantor;
(ll) Liens securing Indebtedness
of any Restricted Subsidiary that is not a Guarantor permitted to be incurred subsequent to the Closing Date pursuant to Section 6.3;
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(nn) Liens on property subject to sale-leaseback transactions permitted under this Agreement.
For purposes of determining compliance with this definition, (A) Permitted Liens need not be incurred solely by reference to one category of Permitted Liens described in this definition
but are permitted to be incurred in part under any combination thereof and (B) in the event that a Lien (or any portion thereof) meets the criteria of one or more of the categories of Permitted Liens described in this definition, the Borrower may,
in its sole discretion, classify or reclassify such item of Permitted Liens (or any portion thereof) in any manner that complies with this definition and the Borrower may divide and classify a Lien in more than one of the types of Permitted Liens
in one of the above clauses of this definition.
“Person”: any individual, corporation, limited liability company, partnership,
joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
“Pledged Equity”: the shares of Capital Stock of any Person in which the Borrower has granted a security interest
to the Administrative Agent, for the benefit of the Secured Parties, pursuant to the Security Agreement, together with any other shares, stock or partnership unit certificates, options or rights of any nature whatsoever in respect of such Capital
Stock that may be issued or granted to, or held by, the Borrower.
“Preferred Equity Commitment Letter”: that certain Preferred Equity Commitment Letter, dated August 6, 2025, between Ares Management LLC, acting
on behalf of one or more affiliated or managed funds, investment vehicles or accounts, and the Borrower.
“Primary Obligations”: as defined in the definition of “Contingent Obligations” hereto.
“Primary Obligor”: as defined in the definition of “Contingent Obligations” hereto.
“Prime Rate”: 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 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 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.
“Principal Office”: the Administrative Agent’s “Principal Office” as set forth in Section 9.2, or such other office or office of a third
party or sub-agent, as appropriate, as the Administrative Agent may from time to time designate in writing to the Borrower and each Lender.
“Pro Forma Financial Statements”: (a) a pro forma consolidated statements of income of the Borrower and its Subsidiaries as of and for the six
(6)-month period ended June 30, 2025 or the three (3)-month period ending March 31, 2025, (b) a pro forma consolidated statements of income of the Borrower and its Subsidiaries as of and for the twelve (12)-month period ended December 31, 2024, and
(c) a pro forma consolidated balance sheet and related consolidated statement of income of the Borrower and its Subsidiaries as of June 30, 2025, or as of March 31, 2025.
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“Pro Rata Share”: at any time, with respect to any Lender, the percentage obtained by dividing (i) the Loan Exposure of that Lender by (ii) the
aggregate Loan Exposure of all Lenders. If at any time there is no Loan Exposure of any Lender, the Pro Rata Shares shall be determined based upon the Loan Exposure most recently in effect.
“Property”: any right or interest in or to property of any kind whatsoever, whether real or immovable, personal or moveable or mixed and whether
tangible or intangible, corporeal or incorporeal, including Equity Interests.
“Public Lenders”: Lenders that do not wish to receive Non-Public Information with respect to the Borrower and its Subsidiaries or their
securities.
“QFC”: has the meaning assigned to the term “qualified financial contract” in, and interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“Qualified Proceeds”: assets that are used or useful in, or Capital Stock of any Person engaged in, a Similar
Business; provided that the Fair Market Value of any such assets or Capital Stock shall be determined by the Borrower in good faith.
“Qualified Securitization Financing”: any Securitization Financing of a Securitization Subsidiary, the financing
terms, covenants, termination events and other provisions of which, including any Standard Securitization Undertakings, shall be market terms.
“Rail Co. Equity Securities”: the Rail Co. Series A Preferred Units together with warrants to purchase common limited liability company units of
Rail Co.
“Rail Co. LLCA”: the Limited Liability Company Agreement of Rail Co., by and among Rail Co. and the unitholders party thereto, as filed with the Secretary of State of the
State of Delaware in connection with the issuance of the Rail Co. Equity Securities.
“Rail Co. Series A Preferred Units”: the series A limited liability company units issued by Rail Co.
“Rating Agencies”: Fitch, Moody’s and S&P or if any of Fitch, Moody’s or S&P or all three shall not make a rating on the Loans publicly
available, one or more nationally recognized statistical rating organizations within the meaning of Rule 3(a)(62) under the Exchange Act, as the case may be, selected by the Borrower which shall be substituted for any of Fitch, Moody’s or S&P
or all three, as the case may be.
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“Recovery Event”: the actual receipt of any settlement of or payment in respect of
any property or casualty insurance claim or any condemnation proceeding relating to any asset of the Borrower or any of its Subsidiaries.
“Reference Time”: with respect to any setting of the then-current Benchmark means (a) if such Benchmark is the Term SOFR Rate, 5:00 a.m.
(Chicago time) on the day that is two (2) Business Days preceding the date of such setting, (b) if such Benchmark is Daily Simple SOFR, then four (4) Business Days prior to such setting or (c) 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”: (a) the redemption, repayment, repurchase or satisfaction and discharge of all of the Borrower’s outstanding 10.500% Senior
Secured Notes due 2027 issued pursuant to that certain Indenture, dated as of July 7, 2022 (as supplemented by the First Supplemental Indenture, dated as of July 25, 2022, the Second Supplemental Indenture, dated as of August 1, 2022, and the Third
Supplemental Indenture, dated as of July 5, 2023), among the Borrower, as the issuer, the guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee and notes collateral agent, in accordance with the terms set forth in
such indenture and (b) the redemption, repayment or repurchase of all of the Borrower’s outstanding Series A Senior Preferred Stock as of the Closing Date in accordance with terms set forth in the Borrower’s Certificate of Designations governing
its Series A Senior Preferred Stock.
“Refinancing Notes”: any debt securities represented by bonds, debentures, notes or similar instruments, in each case, issued by the Borrower in connection with the
Refinancing, whether issued in a public offering or private placement, including pursuant to Section 4(a)(2) of the Securities Act or Rule 144A, Regulation S or Regulation D under the Securities Act, in each case, the proceeds of which are applied
in accordance with Section 2.11(c).
“Regulatory Approval Asset Sale”: any Asset Sale of all or any part of the equity in or assets of the Target resulting from a failure to obtain
the applicable regulatory approvals required in connection with the consummation of the Acquisition.
“Related Business Assets”: assets (other than cash or Cash Equivalents) used or useful in a Similar Business; provided
that any assets received by the Borrower or a Restricted Subsidiary in exchange for assets transferred by the Borrower or a Restricted Subsidiary shall not be deemed to be Related Business Assets if they consist of securities of a Person, unless
upon receipt of the securities of such Person, such Person would become a Restricted Subsidiary.
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“Related Fund”: with respect to any Lender, any fund that (x) invests in commercial loans and (y) is managed or advised by the same investment
advisor as such Lender, by such Lender or an Affiliate of such Lender.
“Related Parties”: with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees and
advisors of such Person and of such Person’s Affiliates.
“Release”: any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in, into, onto or through the Environment, or from, into or through any structure or facility.
“Relevant Governmental Body”: the Board and/or the NYFRB, or a committee officially endorsed or convened by the Board and/or the NYFRB, or any
successor thereto.
“Relevant Rate”: (a) with respect to any Term Benchmark Borrowing, the Adjusted Term SOFR Rate or (b) with respect
to any RFR Borrowing, the Adjusted Daily Simple SOFR, as applicable.
“Repauno Credit Agreement”: that certain Credit Agreement, dated as of May 28, 2025, among DRP Urban Renewal 4, LLC, Delaware River Partners
LLC, the several lenders from time to time party thereto and Deutsche Bank Trust Company Americas, as administrative agent.
“Required Cash-Trap Account Balance”: an amount equal to one year of interest on the Loans (which amount shall be calculated, as of any date of
determination, based on the interest rate then in effect and the outstanding principal amount of the Loans at such time).
“Required Lenders”: one or more Lenders collectively having or holding more than
50.0% of the aggregate Loans of all Lenders; provided that, prior to the making of the Loans, such determination shall be made based on the unused Commitments of the Lenders.
“Requirements of Law”: as to any Person, the certificate of incorporation and bylaws or other organizational or governing documents of such
Person, and any Law applicable to or binding upon such Person or any of its Property or to which such Person or any of its Property is subject.
“Resolution Authority”: an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK
Resolution Authority.
“Responsible Officer”: with respect to any FTAI Group Member, the chief executive officer, president, chief financial officer, vice president,
treasurer, assistant treasurer, controller, secretary, assistant secretary, board member or manager of such FTAI Group Member, or any other authorized officer or signatory of such FTAI Group Member reasonably acceptable to the Administrative Agent.
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“Restricted Subsidiary”: at any time, any direct or indirect Subsidiary of the Borrower (including any Foreign Subsidiary). For the avoidance of
doubt, The Wheeling Corporation, a Delaware Corporation, and each of its Subsidiaries, shall be deemed to be a Restricted Subsidiary on the Closing Date.
“S&P”: S&P Global Ratings, a division of S&P Global Inc., or any of its successors or assigns that is
a nationally recognized statistical rating organization within the meaning of Rule 3(a)(62) under the Exchange Act.
“SEC”: the Securities and Exchange Commission (or successors thereto or an analogous Governmental Authority)
“Securities Act”: the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated
thereunder.
“Securitization Assets”: the accounts receivable, lease, royalty or other revenue streams and other rights to
payment and all related assets (including contract rights, books and records, all collateral securing any and all the foregoing, all contracts and all guarantees or other obligations in respect of any and all the foregoing and other assets that are
customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving any and all the foregoing) and the proceeds thereof in each case pursuant to a Securitization
Financing.
“Securitization Fees”: distributions or payments made directly or by means of discounts with respect to any Securitization Asset or participation interest therein issued or
sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any Qualified Securitization Financing.
“Securitization Financing”: one or more transactions or series of transactions that may be entered into by the Borrower and/or any Restricted Subsidiary pursuant to which
the Borrower or any Restricted Subsidiary may sell, convey or otherwise transfer Securitization Assets to (a) a Securitization Subsidiary (in the case of a transfer by the Borrower or any of the Restricted Subsidiaries that are not Securitization
Subsidiaries) or (b) any other Person (in the case of a transfer by a Securitization Subsidiary), or may grant a security interest in any Securitization Assets of the Borrower or any Restricted Subsidiary.
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“Securitization Subsidiary”: a Restricted Subsidiary (or another Person formed for the purposes of engaging in a Qualified Securitization Financing in which the Borrower or
any Restricted Subsidiary makes an Investment and to which the Borrower or any Restricted Subsidiary transfers Securitization Assets and related assets) that engages in no activities other than in connection with the financing of Securitization
Assets of the Borrower or a Restricted Subsidiary, all proceeds thereof and all rights (contingent and other), collateral and other assets relating thereto, and any business or activities incidental or related to such business, and which is
designated by the Borrower or such other Person (as provided below) as a Securitization Subsidiary and (a) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which (i) is guaranteed by the Borrower or any
Restricted Subsidiary, other than another Securitization Subsidiary (excluding guarantees of obligations pursuant to Standard Securitization Undertakings), (ii) is recourse to or obligates the Borrower or any Restricted Subsidiary, other than
another Securitization Subsidiary, in any way other than pursuant to Standard Securitization Undertakings or (iii) subjects any property or asset of the Borrower or any Restricted Subsidiary, other than another Securitization Subsidiary, directly
or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings and (b) to which none of the Borrower or any other Restricted Subsidiary, other than another Securitization
Subsidiary, has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results. Any such designation by the Borrower or such other Person shall be evidenced by a
resolution of the Borrower or such other Person giving effect to such designation.
“Security Agreement”: the Security Agreement, dated as of the Closing Date, by and among the Borrower and the Administrative Agent.
“Security Documents”: collectively, the Security Agreement, other security agreements relating to the Collateral
securing the Obligations, any joinders related to the foregoing, any Equal Priority Intercreditor Agreement, any Junior Priority Intercreditor Agreement, the deposit account control agreement with respect to the Cash-Trap Account and the
instruments filed and recorded in appropriate jurisdictions to preserve and protect the Liens on the Collateral securing the Obligations (including, without limitation, financing statements under the Uniform Commercial Code of the relevant states),
each for the benefit of the Administrative Agent.
“Series B GCM Certificate of
Designations”: Certificate of Designations, dated February 26, 2025, governing the Series B GCM Securities.
“Significant Subsidiary”: any Restricted Subsidiary that would be a “significant subsidiary” as defined in Article
1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the Closing Date.
“Similar Business”: any business conducted or proposed to be conducted by the Borrower and its Restricted
Subsidiaries on the date of the Closing Date or any business that is similar, reasonably related, incidental or ancillary thereto, including for the avoidance of doubt, any business that is generally considered to be an infrastructure business.
“SOFR”: a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator”: the NYFRB (or a successor administrator of the secured overnight financing rate).
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“Solvent”: with respect to any Person on any date of determination, that on such date (a) the fair value of the
assets of such Person exceeds the total amount of debts and liabilities, direct, subordinated, contingent or otherwise, of such Person, (b) the present fair salable value of the property of such Person is greater than the amount that will be
required to pay the probable liability of such Person on its debts and other liabilities, direct, subordinated, contingent or otherwise, as such other debts and other liabilities become absolute and matured, (c) such Person will be able to pay its
debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured and (d) such Person will not have unreasonably small capital with which to conduct the businesses in which they are
engaged as such businesses are conducted as of such date and are proposed to be conducted after such date. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“Specified Representations”: the representations and warranties with respect to the Borrower set forth in Sections 3.3(a), 3.4(a),
3.5 (as related to Contractual Obligations under the Organizational Documents), 3.11, 3.14, 3.20, 3.21 (except with respect to any items referred to on Schedule 5.10 of this Agreement), 3.22(a)
(solely with respect to the PATRIOT Act), 3.22(b) (as related to the use of proceeds of the Loans) and 3.22(c) (as related to the use of proceeds of the Loans) of this Agreement.
“Specified Stock Purchase Agreement Representations”: the representations made by the Target in the Stock Purchase Agreement that are material
to the interests of the Lenders, but only to the extent that the Borrower has the right to terminate its obligations under the Stock Purchase Agreement or decline to consummate the Acquisition as a result of a breach of such representations in the
Stock Purchase Agreement (after giving effect to any applicable notice and cure provisions).
“Standard Securitization Undertakings”: representations, warranties, covenants and indemnities entered into by the Borrower or any Restricted
Subsidiary that are customary for a seller or servicer of assets in a Securitization Financing.
“Subject Transaction”: with respect to any Test Period, (a) any acquisition, whether by purchase, merger or otherwise, of all or substantially
all of the assets of, or any business line, unit or division of, any Person or the Equity Interests of any Person (and, in any event, including any Investment in (i) any Restricted Subsidiary the effect of which is to increase the Borrower’s or any
Restricted Subsidiary’s respective equity ownership in such Restricted Subsidiary or (ii) any joint venture for the purpose of increasing the Borrower’s or its relevant Restricted Subsidiary’s ownership interest in such joint venture), in each case
that is not prohibited by this Agreement, (b) any disposition of all or substantially all of the assets or Equity Interests of any Subsidiary (or any facility, business unit, line of business, product line or division of the Borrower or a
Restricted Subsidiary) not prohibited by this Agreement and (c) any incurrence or prepayment, repayment, redemption, repurchase, defeasance, satisfaction and discharge or refinancing of Indebtedness.
“Subordinated Indebtedness”: (a) with respect to the Borrower, any Indebtedness of the Borrower which is by its terms subordinated in right of
payment to the Obligations, and (b) with respect to any Guarantor, any Indebtedness of such Guarantor which is by its terms subordinated in right of payment to the Guarantee of such Guarantor.
(a) any corporation, association,
or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50.0% of the total voting power of shares of
Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time of determination owned
or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof; and
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(i) more than 50.0% of the
capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that
Person or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise, and
(ii) such Person or any
Restricted Subsidiary of such Person is a controlling general partner or otherwise controls such entity.
Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall
refer to a Subsidiary or Subsidiaries of the Borrower.
“Taxes”: 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.
“Term Benchmark Borrowing”: as to any Borrowing, the Term Benchmark Loans comprising such Borrowing.
“Term Benchmark Loan”: a Loan bearing interest at a rate determined by reference to the Term SOFR Rate.
“Term SOFR Determination Day”: has the meaning assigned to it under the definition of “Term SOFR Reference Rate.”
“Term SOFR Rate”: 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 (2) 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.
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“Term SOFR Reference Rate”: 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 determined by the Administrative Agent as the forward-looking term rate based on SOFR. If by 5:00 p.m. (New York City time) on such
Term SOFR Determination Day, the “Term SOFR Reference 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 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 Business Day is not more than three (3) Business Days prior to such Term SOFR Determination Day.
“Termination Conditions”: collectively, (a) the payment in full in cash of the Obligations (other than Unasserted Contingent Obligations) and (b) the expiration or termination of the Commitments.
“Test Period”: the four (4) fiscal quarters then most recently ended for which financial statements are available.
“Total Assets”: the total assets of the Borrower and the Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP, as
shown on the most recent balance sheet of the Borrower for which internal financial statements are available immediately preceding the date on which any calculation of Total Assets is being made, with such pro forma adjustments for transactions
consummated on or prior to or simultaneously with the date of the calculation as are appropriate and consistent with the pro forma adjustment provisions set forth in this Agreement.
“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 Term SOFR Rate or the Base Rate.
“UK Financial Institution”: any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form
time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to 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”: the Bank of England or any other public administrative authority having responsibility for the resolution of any UK
Financial Institution.
“Unadjusted Benchmark Replacement”: the Benchmark Replacement excluding the Benchmark Replacement Adjustment; provided that, if the
Unadjusted Benchmark Replacement as so determined would be less than 0.00%, the Unadjusted Benchmark Replacement will be deemed to be 0.00% for the purposes of this Agreement.
“Unasserted Contingent Obligations”: at any time, Obligations for taxes, costs, indemnifications, reimbursements, damages and other liabilities
(excluding Obligations in respect of the principal of, and interest and premium (if any) on, any Obligation) in respect of which no assertion of liability and no claim or demand for payment has been made (and, in the case of Obligations for
indemnification, no notice for indemnification has been issued by the indemnitee at such time).
“Uniform Commercial Code” or “UCC”: the Uniform Commercial Code (or any similar equivalent jurisdiction) as
in effect in any applicable jurisdiction from time to time.
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“U.S. Government Securities Business Day”: any day except for (a) a Saturday, (b) a Sunday or (c) 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. Special Resolution Regimes”: as defined in Section 9.22 hereto.
“Voting Stock”: of any Person, as of any date, means the Capital Stock of such Person that is at the time
entitled to vote in the election of the board of directors of such Person.
“Weighted Average Life to Maturity”: when applied to any Indebtedness, Disqualified Stock or preferred stock, as the case may be, at any date,
the quotient obtained by dividing:
(a) the sum of the products
obtained by multiplying (i) the amount of each (A) then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of such Indebtedness or (B) redemption or
similar payment, in respect of such Disqualified Stock or preferred stock by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between the date of determination and the making of such payment; by
“Wholly-Owned Subsidiary”: a Subsidiary of the Borrower, 100.0% of the
outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares and shares issued to foreign nationals as required by
applicable law) shall at the time be owned by the Borrower or by one or more Wholly-Owned Subsidiaries of the Borrower.
“Write-Down and Conversion Powers”: (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.
Section 1.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in this Agreement shall
have the defined meanings when used in the other Loan Documents or any certificate or other document made or delivered pursuant hereto or thereto.
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(b) As used herein and in the other Loan
Documents, and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to the Borrower and its respective Subsidiaries not defined in Section 1.1 and accounting terms partly defined in Section
1.1, to the extent not defined, shall (subject to Section 9.15) have the respective meanings given to them under GAAP.
(c) The words “hereof,” “herein” and
“hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless
otherwise specified. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.”
(d) The meanings given to terms defined
herein shall be equally applicable to both the singular and plural forms of such terms.
(e) As used herein and in the other Loan
Documents, references to agreements or other Contractual Obligations shall, unless otherwise specified, be deemed to refer to such agreements or Contractual Obligations as amended, restated, replaced, refinanced, supplemented or otherwise
modified from time to time (subject to any restrictions on such amendments, restatements, replacements, refinancings, supplements or other modifications set forth herein or in any other Loan Document). Any reference to any Law shall include
all statutory and regulatory provisions consolidating, amending, replacing or interpreting such Law and any reference to any Law shall, unless otherwise specified, refer to such Law as amended, supplemented or otherwise modified from time to
time.
(f) The words “asset” and “property” shall
be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(g) Any reference herein to any Person
shall be construed to include such Person’s permitted successors and assigns.
Section 1.3 Timing of Payment or Performance. When the
payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment (other than as described in the definition of “Interest
Period” and in Section 2.5) or performance shall extend to the immediately succeeding Business Day.
Section 1.4 Currency Equivalents Generally.
(a) For purposes of determining compliance
with Sections 6.1, 6.3 and 6.6 with respect to any amount of Indebtedness or Investment in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred solely as a result of changes in
rates of currency exchange occurring after the time such Indebtedness or Investment is incurred (so long as such Indebtedness or Investment, at the time incurred, made or acquired, was permitted hereunder).
(b) For purposes of this Agreement and the
other Loan Documents, where the permissibility of a transaction or determination of required actions or circumstances depend upon compliance with, or are determined by reference to, amounts stated in Dollars, any requisite currency translation
shall be based on the exchange rate in effect on the Business Day immediately preceding the date of such transaction or determination and shall not be affected by subsequent fluctuations in exchange rates.
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Section 1.5 Benchmark Replacement. The Administrative Agent
does not warrant nor accept any responsibility nor shall the Administrative Agent have any liability with respect to (i) any Benchmark Replacement Conforming Changes, (ii) the administration, submission or any matter relating to the rates in the
definition of “Adjusted Term SOFR Rate” or with respect to any rate that is an alternative, comparable or successor rate thereto or (iii) the effect of any of the foregoing.
Section 1.6 Calculations.
(a) All financial ratios, tests, covenants,
calculations and measurements (including Fixed Charge Coverage Ratio, Consolidated Interest Expense, Fixed Charges, Consolidated Net Income, Total Assets and EBITDA) contained in this Agreement that are calculated with respect to any period
during which any Subject Transaction occurs shall be calculated with respect to such period and each such Subject Transaction on a pro forma basis. Further, if, subsequent to the commencement of the period for which the financial ratio, test,
covenant, calculation or measurement is being calculated but prior to the event for which such calculation is made (the “Calculation Date”) (i) any Subject Transaction has occurred or (ii) any Person that subsequently became a Restricted
Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries or any joint venture since the beginning of such period has consummated any Subject Transaction, then, in each case, any
applicable financial ratio, test, covenant, calculation or measurement shall be calculated on a pro forma basis for such period as if such Subject Transaction (including, without duplication of any amounts otherwise reflected in EBITDA for the
applicable Test Period, the “run rate” income described, and calculated as set forth in clause (q) of the definition of “EBITDA”) had occurred at the beginning of the applicable Test Period (or, in the case of Total Assets, as of the last day
of such Test Period).
(b) For purposes of financial ratios, tests,
covenants, calculations and measurements (including Fixed Charge Coverage Ratio, Consolidated Interest Expense, Fixed Charges, Consolidated Net Income, Total Assets and EBITDA), whenever pro forma effect is to be given to a transaction, the pro
forma calculations shall be made in good faith by a responsible financial or accounting officer of the Borrower (including pro forma expense and cost reductions, regardless of whether these cost savings could then be reflected in pro forma
financial statements in accordance with Regulation S-X promulgated under the Securities Act or any other regulation or policy of the SEC related thereto). If any Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness).
Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower to be the rate of interest implicit in such Capitalized Lease
Obligation in accordance with GAAP. For purposes of making the computations referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance
of such Indebtedness during the applicable period. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be
deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower may designate.
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Section 2. LOANS
Section 2.1 Loans.
(a) Commitments. Subject to the
terms and conditions hereof, each Lender severally agrees to make a loan (a “Loan”) to the Borrower on the Closing Date in an amount equal to such Lender’s Commitment. The Borrower may make only one borrowing under the Commitment, which
shall be on the Closing Date. Any amount borrowed under this Section 2.1(a) and subsequently repaid or prepaid may not be reborrowed. Subject to Sections 2.10 and 2.11, all amounts owed hereunder with respect to the
Loans shall be paid in full no later than the Maturity Date. Each Lender’s Commitment shall terminate immediately and without further action on the Closing Date upon the funding of the Loans.
(b) Borrowing Mechanics for Loans.
(i) The Borrower shall
deliver to the Administrative Agent a fully executed Funding Notice no later than three (3) days prior to the Closing Date (or such later time as may be acceptable to the Administrative Agent). Promptly upon receipt by the Administrative Agent
of such Funding Notice, the Administrative Agent shall notify each Lender of the proposed borrowing.
(ii) Each Lender shall
make its Loan available to the Administrative Agent not later than 10:00 a.m. (New York City time) on the Closing Date, by wire transfer of same day funds in Dollars, at the Principal Office. Upon satisfaction or waiver of the conditions
precedent specified herein, the Administrative Agent shall make the proceeds of the Loans available to the Borrower on the Closing Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Loans received by the
Administrative Agent from Lenders to be credited to the account of the Borrower at the Principal Office or to such other account as may be designated in writing to the Administrative Agent by the Borrower.
Section 2.2 Pro Rata Shares; Availability of
Funds.
(a) Pro Rata Shares. All Loans shall be
made, and all participations purchased, by Lenders simultaneously and proportionately to their respective Pro Rata Shares, it being understood that no Lender shall be responsible for any default by any other Lender in such other Lender’s
obligation to make a Loan requested hereunder or purchase a participation required hereby nor shall any Commitment of any Lender be increased or decreased as a result of a default by any other Lender in such other Lender’s obligation to make a
Loan requested hereunder or purchase a participation required hereby.
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(b) Availability of Funds. Unless
the Administrative Agent shall have been notified by any Lender prior to the Closing Date that such Lender does not intend to make available to the Administrative Agent the amount of such Lender’s Loan requested on the Closing Date, the
Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on the Closing Date and the Administrative Agent may, in its sole discretion, but shall not be obligated to, make available to the
Borrower a corresponding amount on the Closing Date. If such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender, together with interest thereon, for each day from the Closing Date until the date such amount is paid to the Administrative Agent, at the customary rate set by the Administrative Agent for the correction of errors among
banks for three (3) Business Days and thereafter at the rate payable hereunder for Base Rate Loans. If such corresponding amount is not in fact made available to the Administrative Agent forthwith upon the Administrative Agent’s demand
therefor, the Administrative Agent shall promptly notify the Borrower and the Borrower shall immediately pay such corresponding amount to the Administrative Agent together with interest thereon, for each day from the Closing Date until the date
such amount is paid to the Administrative Agent, at the rate payable hereunder for Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative
Agent shall promptly remit to the Borrower the amount of such duplicative interest paid by the Borrower for such period. In the event that (i) the Administrative Agent declines to make a requested amount available to the Borrower until such
time as all applicable Lenders have made payment to the Administrative Agent, (ii) a Lender fails to fund to the Administrative Agent all or any portion of the Loans required to be funded by such Lender hereunder prior to the time specified in
this Agreement and (iii) such Lender’s failure results in the Administrative Agent failing to make a corresponding amount available to the Borrower on the Closing Date, at the Administrative Agent’s option, such Lender shall not receive
interest hereunder with respect to the requested amount of such Lender’s Loans for the period commencing with the time specified in this Agreement for receipt of payment by the Borrower through and including the time of the Borrower’s receipt
of the requested amount. Nothing in this Section 2.2(b) shall be deemed to relieve any Lender from its obligation to fulfill its Commitments hereunder or to prejudice any rights that the Borrower may have against any Lender as a result
of any default by such Lender hereunder.
Section 2.3 Use of Proceeds. The proceeds of the Loans
shall be applied by the Borrower to fund the uses specified in the recitals hereto.
Section 2.4 Evidence of Debt; Register; Lenders’ Books and
Records; Promissory Notes.
(a) Lenders’ Evidence of Debt. Each
Lender shall maintain on its internal records an account or accounts evidencing the Borrower Obligations to such Lender, including the amounts of the Loans made by it and each repayment and prepayment in respect thereof. Any such recordation
shall be conclusive and binding on the Borrower and each other Loan Party, absent manifest error; provided that the failure to make any such recordation, or any error in such recordation, shall not affect the Borrower Obligations in
respect of any Loans; and provided, further, in the event of any inconsistency between the Register and any Lender’s records, the recordations in the Register
shall govern.
(b) Register. The Administrative
Agent (or its agent or sub-agent appointed by it) shall maintain at its Principal Office a register for the recordation of the names and addresses of Lenders (and each assignee thereof) and the Commitments and Loans (and related interest
amounts) of each Lender from time to time (the “Register”). The Register shall be available for inspection by the Borrower or any Lender (provided that any such Lender may only inspect any entry
relating to such Lender’s Commitments and Loans) at any reasonable time and from time to time upon reasonable prior notice. The Administrative Agent shall record, or shall cause to be recorded, in the Register the Commitments and the Loans
(and related interest amounts), as well as any assignments thereof, in accordance with the provisions of Section 9.6, and each repayment or prepayment in respect of the principal amount (and related interest amounts) of the Loans, and
any such recordation shall be conclusive and binding on the Borrower, each other Loan Party and each Lender, absent manifest error; provided that any failure to make any such recordation, or any error in such recordation, shall not
affect any Lender’s Commitments or the Borrower Obligations in respect of any Loan. The Borrower hereby designates the Administrative Agent to serve as the Borrower’s non-fiduciary agent solely for purposes of maintaining the Register as
provided in this Section 2.4. The parties hereto shall treat each Person listed in the Register as the owner of the applicable Loan, notwithstanding notice to the contrary. This Section 2.4(b) is intended to establish a “book
entry system” within the meaning of Treasury regulation Section 5f.103-1(c)(1)(ii) and shall be interpreted consistently with such intent.
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(c) Promissory Notes. If so requested
by any Lender by written notice to the Borrower (with a copy to the Administrative Agent) at least two (2) Business Days prior to the Closing Date, or at any time thereafter, the Borrower shall execute and deliver to such Lender (and/or to any
Person who is an Assignee of such Lender pursuant to Section 9.6) on the Closing Date (or, if such notice is delivered after the Closing Date, promptly after the Borrower’s receipt of such notice) a Promissory Note to evidence such
Lender’s or such Assignee’s Loan.
Section 2.5 Interest on the Loans.
(a) Except as otherwise set forth herein,
each Loan shall bear interest on the unpaid principal amount thereof from the date made through repayment (whether by acceleration or otherwise) thereof that shall at all times be the Applicable Margin plus (x)
in the case of Term Benchmark Loans, the Adjusted Term SOFR Rate and (y) in the case of Base Rate Loans, the Base Rate.
(b) Except as provided in Section 2.15, all
Loans shall be Term Benchmark Loans, and Interest Period with respect thereto shall be selected by the Borrower and notified to the Administrative Agent and Lenders pursuant to the applicable Funding Notice or Continuation Notice, as the case
may be.
(c) There shall be no more than ten (10)
Interest Periods outstanding at any time. In the event the Borrower fails to specify an Interest Period in the applicable Funding Notice or Continuation Notice, the Borrower shall be deemed to have selected an Interest Period of one (1)
month. As soon as practicable after 10:00 a.m. (New York City time) on each Interest Rate Determination Date, the Administrative Agent shall determine (which determination shall, absent manifest error, be final, conclusive and binding upon all
parties) the interest rate that shall apply to the Loans for which an interest rate is then being determined for the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone confirmed in writing) to the
Borrower and each Lender.
(d) Interest payable pursuant to clause
(a) above shall be computed on the basis of a 360-day year for the actual number of days elapsed in the period during which it accrues. In computing interest on the Loans, the date of the making of such Loan or the first (1st) day of an
Interest Period applicable to such Loan or the last Interest Payment Date with respect to such Loan shall be included, and the date of payment of such Loan or the expiration date of an Interest Period applicable to such Loan shall be excluded;
provided, if a Loan is repaid on the same day on which it is made, one (1) day’s interest shall be paid on that Loan.
(e) Except as otherwise set forth herein,
interest on each Loan shall accrue on a daily basis and shall be payable in arrears on (i) in the case of any Loan, each Interest Payment Date with respect to interest accrued on and to each such payment date and (ii) upon any prepayment of
that Loan, whether voluntary or mandatory, to the extent accrued on the amount being prepaid.
Section 2.6 Continuation.
(a) Subject to Section 2.15 and so
long as no Default or Event of Default shall have occurred and then be continuing, the Borrower shall have the option, upon the expiration of any Interest Period, to continue all or any portion of such Loan equal to $1,000,000 and integral
multiples of $1,000,000 in excess of that amount for an additional Interest Period.
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(b) Subject to clause (c) below, the
Borrower shall deliver a Continuation Notice to the Administrative Agent no later than 2:00 p.m. (New York City time) at least three (3) Business Days in advance of the proposed Continuation Date. Except as otherwise provided herein, a
Continuation Notice for continuation shall be irrevocable on and after the related Interest Rate Determination Date, and the Borrower shall be bound to effect a continuation in accordance therewith. If on any day a Loan is outstanding with
respect to which a Continuation Notice has not been delivered to the Administrative Agent in accordance with the terms hereof specifying the applicable basis for determining the rate of interest, then the Borrower shall be deemed to have
selected an Interest Period of one (1) month’s duration.
(c) Any Continuation Notice shall be executed
by a Responsible Officer of the Borrower in a writing delivered to the Administrative Agent. In lieu of delivering a Continuation Notice, the Borrower may give the Administrative Agent telephonic notice by the required time of such proposed
continuation; provided each such notice shall be promptly confirmed in writing by delivery of the applicable Continuation Notice to the Administrative Agent on or before the close of business on the date that the telephonic notice is
given. In the event of a discrepancy between the telephone notice and the written Continuation Notice, the written Continuation Notice shall govern. In the case of any Continuation Notice that is irrevocable once given, if the Borrower
provides telephonic notice in lieu thereof, such telephone notice shall also be irrevocable once given. Neither the Administrative Agent nor any Lender shall incur any liability to the Borrower in acting upon any telephonic notice referred to
above that the Administrative Agent believes in good faith to have been given by a duly authorized officer or other person authorized on behalf of the Borrower or for otherwise acting in good faith.
Section 2.7 Default Interest. Upon the occurrence and
during the continuance of an Event of Default under Section 7.1(a)(i), Section 7.1(a)(vii) or Section 7.1(a)(viii), upon notice by the Administrative Agent to the Borrower at the direction of the Required Lenders,
the overdue principal amount of all Loans outstanding and, to the extent permitted by applicable law, any overdue interest payments on the Loans or any overdue fees or other amounts owed hereunder shall bear interest (including post-petition
interest in any proceeding under Bankruptcy Laws (or interest that would have accrued after the commencement of a proceeding but for the commencement of such proceeding)) payable on demand at a rate that is 2.0% per annum in excess of (i) in the
case of overdue principal of any Loan, the interest rate otherwise payable hereunder with respect to the applicable Loans and (ii) in the case of any other amount, the rate applicable to Base Rate Loans. Payment or acceptance of the increased
rates of interest provided for in this Section 2.7 is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of the Administrative
Agent or any Lender.
Section 2.8 Fees. The Borrower agrees to pay to
each Arranger and the Administrative Agent fees and expenses in the amounts and at the times separately agreed upon.
Section 2.9 [Reserved].
Section 2.10 Voluntary Prepayments.
(a) Any time and from time to time the
Borrower may prepay any Loans on any Business Day, in whole or in part, without premium or penalty (subject to the requirements of this Section 2.10), in an aggregate minimum amount of $1,000,000 and integral multiples of $1,000,000 in
excess of that amount.
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(b) All such prepayments shall be made: upon
written or telephonic notice upon not less than two (2) Business Days’ prior written or telephonic notice; given to the Administrative Agent by 3:00 p.m. (New York City time) on the date required and, if given by telephone, promptly confirmed
by delivery of written notice thereof to the Administrative Agent (and the Administrative Agent will promptly transmit such original notice for Loans by telefacsimile or telephone to each applicable Lender). Upon the giving of any such notice,
the principal amount of the Loans specified in such notice shall become due and payable on the prepayment date specified therein; provided that a notice of voluntary prepayment may state that such notice is conditioned upon the
effectiveness of other credit facilities, the receipt of proceeds from the issuance of other Indebtedness or the Disposition of assets, the closing of a merger, amalgamation or acquisition transaction or the closing of any other transaction, in
which case such notice of prepayment may be revoked or extended by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied or delayed in effectiveness; provided that the
Borrower shall make any payments required to be made pursuant to Section 2.15(b) in connection therewith.
Section 2.11 Mandatory Prepayments; Cash Trap.
(a) Asset Sales. No later than the
fifth (5th) Business Day after the Borrower’s or a Restricted Subsidiary’s receipt of any Net Proceeds in excess of $5,000,000 from any Asset Sale, the Borrower shall make an offer to the Lenders to prepay the Loans in an aggregate principal
amount equal to such portion of such Net Proceeds as permitted hereunder, at a price equal to 100.0% of the principal amount thereof, plus accrued and unpaid interest and additional interest, if any; provided
that, so long as no Event of Default under Sections 7.1(a)(i), (vii) or (viii) shall have occurred and be continuing at the time the Net Proceeds from any such Asset Sales are received and such Net Proceeds are not
received in connection with a Regulatory Approval Asset Sale, the Borrower shall have the option, directly or through one or more of its Restricted Subsidiaries, to reinvest such Net Proceeds to the extent (x) such Net Proceeds are so
reinvested within ninety (90) days of receipt thereof, or (y) the Borrower or one or more of its Restricted Subsidiaries have committed to reinvest such Net Proceeds during such ninety (90)-day period and such Net Proceeds are so reinvested
within ninety (90) days after the expiration of the initial ninety (90)-day period, in assets useful in the business of the Borrower and its Restricted Subsidiaries (or to use such Net Proceeds to replace assets Disposed of in such Asset Sale);
provided, further, that any Net Proceeds not so reinvested shall be applied to the prepayment of the Loans as set forth in this Section 2.11(a) at the end of such reinvestment period. Notwithstanding the foregoing, the
Borrower shall not be required to cause any Restricted Subsidiary to pay cash distributions with the Net Proceeds from any such Asset Sale to the extent that such distributions are not permitted by the terms of (i) any contract in existence on
the Closing Date to which such Restricted Subsidiary is bound or subject to (including any contract governing Indebtedness or preferred equity of such Restricted Subsidiary), (ii) applicable Organizational Documents, applicable governmental
approvals or applicable Law, (iii) any contract governing Permitted Indebtedness described under clause (a) of the definition thereof, so long as such contract does not include any limitation on cash distributions by any Restricted
Subsidiary that is materially more restrictive than the limitations set forth in the existing debt facility, loan agreement or other debt document being refinanced thereby, or (iv) any contract governing Permitted Indebtedness described under clause
(c) of the definition thereof, so long as such contract does not include any limitation on cash distributions by any Restricted Subsidiary that is materially more restrictive than the limitations set forth in the Repauno Credit Agreement.
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(b) Recovery Events. No later than
the fifth (5th) Business Day after the Borrower’s or a Restricted Subsidiary’s receipt of any Net Proceeds in excess of $5,000,000 from any Recovery Event, the Borrower shall make an offer to the Lenders to prepay the Loans in an aggregate
principal amount equal to such portion of such Net Proceeds as permitted hereunder, at a price equal to 100.0% of the principal amount thereof, plus accrued and unpaid interest and additional interest,
if any; provided that, so long as no Event of Default under Sections 7.1(a)(i), (vii) or (viii) shall have occurred and be continuing at the time the Net Proceeds from any such Recovery Event are received, the
Borrower shall have the option, directly or through one or more of its Restricted Subsidiaries, to reinvest such Net Proceeds to the extent (x) such Net Proceeds are so reinvested within ninety (90) days of receipt thereof, or (y) the Borrower
or one or more of its Restricted Subsidiaries have committed to reinvest such Net Proceeds during such ninety (90)-day period and such Net Proceeds are so reinvested within ninety (90) days after the expiration of the initial ninety (90)-day
period, in assets useful in the business of the Borrower and its Restricted Subsidiaries; provided, further, that any Net Proceeds not so reinvested shall be applied to the prepayment of the Loans as set forth in this Section
2.11(b) at the end of such reinvestment period. Notwithstanding the foregoing, the Borrower shall not be required to cause any Restricted Subsidiary to pay cash distributions with the Net Proceeds from any such Recovery Event to the
extent that such distributions are not permitted by the terms of (i) any contract in existence on the Closing Date to which such Restricted Subsidiary is bound or subject to (including any contract governing Indebtedness or preferred equity of
such Restricted Subsidiary), (ii) applicable Organizational Documents, applicable governmental approvals or applicable Law, (iii) any contract governing Permitted Indebtedness described under clause (a) of the definition thereof, so
long as such contract does not include any limitation on cash distributions by any Restricted Subsidiary that is materially more restrictive than the limitations set forth in the existing debt facility, loan agreement or other debt document
being refinanced thereby, or (iv) any contract governing Permitted Indebtedness described under clause (c) of the definition thereof, so long as such contract does not include any limitation on cash distributions by any Restricted
Subsidiary that is materially more restrictive than the limitations set forth in the Repauno Credit Agreement.
(c) Issuance of Debt. Immediately
upon receipt by the Borrower or any of its Restricted Subsidiaries of any Net Proceeds from the incurrence or issuance, as applicable, by the Borrower or such Restricted Subsidiary of the Demand Notes, the Refinancing Notes or any other
Indebtedness of the Borrower or such Restricted Subsidiary, subject to the last sentence of this clause (c), the Borrower shall make an offer to the Lenders to prepay the Loans in an aggregate amount equal to such Net Proceeds at a
price equal to 100.0% of the principal amount thereof, plus accrued and unpaid interest and additional interest, if any. Notwithstanding the foregoing, the Borrower shall not be required to make an
offer pursuant to this clause (c) with respect to the incurrence or issuance, as applicable, of (i) intercompany Indebtedness among the Borrower, its Restricted Subsidiaries and/or their respective Subsidiaries, (ii) any ordinary course
letter of credit facilities, purchase money indebtedness, Capital Lease Obligations, sale-leaseback transactions and equipment financings in an aggregate principal amount not exceeding $50,000,000, (iii) [reserved], (iv) Permitted Indebtedness
and (v) any Indebtedness incurred by the Borrower under a revolving credit facility in an aggregate principal amount not exceeding $50,000,000.
(d) [Reserved].
(e) Net Equity Proceeds. Within five
(5) Business Days of the receipt by the Borrower or any of its Restricted Subsidiaries of any Net Equity Proceeds, the Borrower shall prepay the Loans in an amount equal to such Net Equity Proceeds, at a price equal to 100.0% of the principal
amount thereof, plus accrued and unpaid interest and additional interest, if any. Notwithstanding the foregoing, the Borrower shall not be required to prepay the Loans pursuant to this clause (e) with
respect to the receipt of any such Net Equity Proceeds resulting from the sale, issuance or exercise by the Borrower or any of its Restricted Subsidiaries of any Capital Stock (i) by any Subsidiary to the Borrower or any other Subsidiary (as
applicable), (ii) pursuant to any equity compensation plan, employment agreement or employee benefit plan or agreement or pursuant to the exercise or vesting of any stock options, restricted stock units, stock appreciation rights, warrants or
other equity-based awards, (iii) as directors’ qualifying shares, (iv) in connection with hedging programs, (v) upon conversion or exercise of outstanding securities or options and (vi) in connection with the Rail Co. Equity Securities.
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(f) Prepayment Certificate.
Concurrently with any prepayment of the Loans pursuant to Sections 2.11(a), (c) or (e), the Borrower shall deliver to the Administrative Agent a certificate of a Responsible Officer of the Borrower demonstrating the
calculation of the amount of the applicable Net Proceeds or Net Equity Proceeds, as the case may be. In the event that the Borrower shall subsequently determine that the actual amount required to be prepaid exceeded the amount set forth in
such certificate, the Borrower shall promptly make an additional prepayment of the Loans in an amount equal to such excess, and the Borrower shall concurrently therewith deliver to the Administrative Agent a certificate of a Responsible Officer
of the Borrower demonstrating the derivation of such excess.
(g) Foreign Dispositions.
Notwithstanding any other provision of this Section 2.11, (i) to the extent that any of or all the Net Proceeds of any Disposition received by a Foreign Subsidiary are prohibited or delayed by applicable local law from being repatriated
to the United States of America, the portion of such Net Proceeds so affected will not be required to be applied to prepay Loans at the times provided in this Section 2.11 but may be retained by the applicable Foreign Subsidiary so
long, but only so long, as the applicable local law will not permit repatriation to the United States of America (the Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the
applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Proceeds that would otherwise be required to be used to make a prepayment pursuant to this Section 2.11, is permitted under the
applicable local law, such Net Proceeds will be promptly (and in any event not later than five (5) Business Days after any such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof to the extent not
already taken into account under the definition of “Net Proceeds”) to the prepayment of the Loans pursuant to this Section 2.11 and (ii) to the extent that the Borrower has determined in its sole discretion exercised in good faith that
repatriation to the United States of America of any of or all the Net Proceeds of any Disposition received by a Foreign Subsidiary would have material adverse Tax consequences (taking into account any foreign Tax credit or benefit actually
realized in connection with such repatriation) with respect to such Net Proceeds, such Net Proceeds so affected may be retained by the applicable Foreign Subsidiary; provided that in the case of this clause (ii), on or before the date on which
any such Net Proceeds would have been required to be applied to prepayments pursuant to this Section 2.11, the Borrower shall apply an amount equal to such Net Proceeds to such reinvestments or prepayments, as applicable, as if such Net
Proceeds had been received by the Borrower rather than such Foreign Subsidiary, less the amount (the “Netted Tax Amount”) of additional Taxes (to the extent not already taken into account under the definition of “Net Proceeds”) that
would have been payable or reserved against if such Net Proceeds had been repatriated (or, if less, the Net Proceeds that would be calculated if received by such Foreign Subsidiary); provided that, to the extent that the repatriation of
any Net Proceeds from such Foreign Subsidiary would no longer have an adverse Tax consequence, the Borrower shall apply the Netted Tax Amount to prepayment of the Loans promptly (and in any event not later than five (5) Business Days after any
such repatriation) in accordance with this Section 2.11.
(h) Cash-Trap. So long as the balance
in the Cash-Trap Account is less than the Required Cash-Trap Account Balance, the Borrower shall (i) cause each Restricted Subsidiary to distribute on a monthly basis to the Borrower cash of such Restricted Subsidiary in an aggregate amount
equal to the Cash-Trap Monthly Amount (other than cash (A) which may not be distributed in accordance with the terms of (1) any contract in existence on the Closing Date to which such Restricted Subsidiary is bound or subject to (including any
contract governing Indebtedness or preferred equity of such Restricted Subsidiary), (2) applicable Organizational Documents, applicable governmental approvals or applicable Law, (3) any contract governing Permitted Indebtedness described under
clause (a) of the definition thereof, so long as such contract does not include any limitation on cash distributions by any Restricted Subsidiary that is materially more restrictive than the limitations set forth in the existing debt
facility, loan agreement or other debt document being refinanced thereby, or (4) any contract governing Permitted Indebtedness described under clause (c) of the definition thereof, so long as such contract does not include any
limitation on cash distributions by any Restricted Subsidiary that is materially more restrictive than the limitations set forth in the Repauno Credit Agreement, or (B) that is reasonably determined by such Restricted Subsidiary in good faith
to be necessary or appropriate for constructing (as applicable), operating or maintenance or reinvestment purposes (including reasonable working capital and reserves)) and (ii) deposit the proceeds of such distributions into the Cash-Trap
Account. The Borrower shall not be required to cause any such cash distributions to be deposited into the Cash-Trap Account to the extent that any such distributions are reasonably expected to be used for operating expenses, common dividends
or other working capital purposes of the Borrower; provided that the aggregate amount of cash distributions withheld in reliance on clause (i)(B) and not deposited in the Cash-Trap Account pursuant to this sentence shall not at
any time exceed $15,000,000. Notwithstanding anything to the contrary, failure to maintain a balance in the Cash-Trap Account equal to at least the Required Cash-Trap Account Balance shall not constitute an Event of Default or Default
hereunder.
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Section 2.12 Application of Prepayments/Reductions.
(a) [Reserved].
(b) [Reserved].
(c) Waivable Mandatory Prepayment.
Anything contained herein to the contrary notwithstanding, so long as any Loans are outstanding, in the event the Borrower is required to make an offer to prepay Loans pursuant to clause (a), (b), (c) or (e) of Section
2.11, the Borrower shall notify the Administrative Agent on the date specified in clause (a), (b), (c) or (e) of Section 2.11, as applicable (the “Required Offer Date”), of the amount of such
prepayment (the “Waivable Prepayment Amount”), and the Administrative Agent will promptly thereafter notify each Lender holding an outstanding Loan of the amount of such Lender’s Pro Rata Share of such Waivable Prepayment Amount and such
Lender’s option to refuse such amount. Each such Lender may exercise such option to refuse its Pro Rata Share of such Waivable Prepayment Amount (such refused amount of all such Lenders, the “Refused Proceeds”) by giving written notice
to the Borrower and the Administrative Agent of its election to do so on or before the third (3rd) Business Day after the Required Offer Date (it being understood that any Lender which does not notify the Borrower and the Administrative Agent
of its election to exercise such option on or before the third (3rd) Business Day after the Required Offer Date shall be deemed to have elected, as of such date, not to exercise such option). On the fifth (5th) Business Day after the Required
Offer Date, the Borrower shall (i) pay to the Administrative Agent the amount of the Waivable Prepayment Amount, less the Refused Proceeds, which such remaining amount shall be applied to prepay the Loans of those Lenders that have elected not
to exercise such option, and (ii) retain any Refused Proceeds or use such Refused Proceeds for any other purpose not prohibited hereunder.
Section 2.13 General Provisions Regarding Payments.
(a) All payments by the Borrower of
principal, interest, fees and other Obligations shall be made in Dollars in same day funds, without defense, recoupment, setoff or counterclaim, free of any restriction or condition, and delivered to the Administrative Agent not later than 3:00
p.m. (New York City time) on the date due at the Principal Office of the Administrative Agent for the account of Lenders.
(b) All payments in respect of the principal
amount of any Loan shall be accompanied by payment of any fees required to be paid in connection with such principal payment pursuant to Section 2.8 and payment of accrued interest on the principal amount being repaid or prepaid, and
all such payments (and, in any event, any payments in respect of any Loan on a date when interest is due and payable with respect to such Loan) shall be applied to the payment of interest then due and payable before application to principal.
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(c) The Administrative Agent (or its agent or
sub-agent appointed by it) shall promptly distribute to each Lender at such address as such Lender shall indicate in writing, such Lender’s applicable Pro Rata Share of all payments and prepayments of principal and interest due hereunder,
together with all other amounts due related thereto, including all fees payable with respect thereto, to the extent received by the Administrative Agent.
(d) [Reserved].
(e) Whenever any payment to be made hereunder
with respect to any Loan shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day.
(f) The Administrative Agent shall deem any
payment by or on behalf of the Borrower hereunder that is not made in same day funds prior to 3:00 p.m. (New York City time) (unless a later time is otherwise specified herein with respect to such payment) to be a non-conforming payment. Any
such payment shall not be deemed to have been received by the Administrative Agent until the later of (i) the time such funds become available funds, and (ii) the applicable next Business Day. The Administrative Agent shall give prompt
telephonic notice to the Borrower and each applicable Lender (confirmed in writing) if any payment is non-conforming. Any non-conforming payment may constitute or become a Default or Event of Default in accordance with the terms of Section
7.1(a). Interest shall continue to accrue on any principal as to which a non-conforming payment is made until such funds become available funds (but in no event less than the period from the date of such payment to the next succeeding
applicable Business Day) at the rate determined pursuant to Section 2.7, if applicable, from the date such amount was due and payable until the date such amount is paid in full.
Section 2.14 Ratable Sharing. The Lenders hereby agree
among themselves that if any of them shall, whether by voluntary payment (other than a voluntary prepayment of Loans made and applied in accordance with the terms hereof), through the exercise of any right of set off or banker’s lien, or by
counterclaim or cross action or by the enforcement of any right under the Loan Documents or otherwise, or as adequate protection of a deposit treated as cash collateral under Bankruptcy Laws, receive payment or reduction of a proportion of the
aggregate amount of principal, interest, fees and other amounts then due and owing to such Lender hereunder or under the other Loan Documents (collectively, the “Aggregate Amounts Due” to such Lender) which is greater than the proportion
received by any other Lender in respect of the Aggregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater payment shall (a) notify the Administrative Agent and each other Lender of the receipt of such
payment and (b) apply a portion of such payment to purchase participations (which it shall be deemed to have purchased from each seller of a participation simultaneously upon the receipt by such seller of its portion of such payment) in the
Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them; provided that if all or part of such proportionately
greater payment received by such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of the Borrower or otherwise, those purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to such purchasing Lender ratably to the extent of such recovery, but without interest. The Borrower expressly consents to the foregoing arrangement and agrees that any holder of a participation so purchased may
exercise any and all rights of banker’s lien, consolidation, set off or counterclaim with respect to any and all monies owing by the Borrower to that holder with respect thereto as fully as if that holder were owed the amount of the participation
held by that holder. The provisions of this Section 2.14 shall not be construed to apply to (i) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement as in effect from time to time or
(ii) any payment obtained by any Lender as consideration for the assignment or sale of a participation in any of its Loans or other Obligations owed to it. For purposes of clause (a)(iii) of Section 2.17, a Lender that acquires a
participation pursuant to this Section 2.14 shall be treated as having acquired such participation on the earlier date on which such Lender acquired the applicable interest in the Loan to which such participation relates.
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Section 2.15 Making or Maintaining Loans; Benchmark Replacement.
(a) (i) Subject to clauses (ii), (iii),
(iv), (v) and (vi) of this Section 2.15(a), if:
(x) the Administrative Agent determines (which determination shall be conclusive absent manifest error)
(A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Adjusted Term SOFR Rate or the Term SOFR Rate (including because the Term SOFR Reference
Rate is not available or published on a current basis), for such Interest Period or (B) at any time, that adequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR, Daily Simple SOFR; or
(y) the Administrative Agent is advised by the Required Lenders that (A) prior to the commencement of
any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in
such Borrowing for such Interest Period or (B) at any time, Adjusted Daily Simple SOFR will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing:
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the
Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Notice in accordance with the terms of Section
2.1 or Section 2.5, any Notice that requests a Term Benchmark Borrowing shall instead be deemed to be a Notice for (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.15(a)(i)(x)
or (y) above or (y) a Borrowing with respect to Base Rate Loans if the Adjusted Daily Simple SOFR also is the subject of Section 2.15(a)(i)(x) or (y) above; provided that if the circumstances giving rise to such
notice affect only one Type of Borrowings, then all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative
Agent referred to in this Section 2.15(a)(i) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving
rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Notice in accordance with the terms of Section 2.1 or Section 2.5, (1) any Term Benchmark Loan shall on the last day of
the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR
is not also the subject of Section 2.15(a)(i) or (ii) above or (y) a Base Rate Loan if the Adjusted Daily Simple SOFR also is the subject of Section 2.15(a)(i) or (ii) above, on such day.
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(ii) Notwithstanding
anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then
(x) if a Benchmark Replacement is determined in accordance with clause (a) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and
under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark
Replacement is determined in accordance with clause (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan
Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action
or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required
Lenders.
(iii) Notwithstanding
anything to the contrary herein or in any other Loan Document, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other
Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(iv) The Administrative
Agent will promptly notify the Borrower and the Lenders of (1) any occurrence of a Benchmark Transition Event, (2) the implementation of any Benchmark Replacement, (3) the effectiveness of any Benchmark Replacement Conforming Changes, (4) the
removal or reinstatement of any tenor of a Benchmark pursuant to clause (d) below and (5) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative
Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.15, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date
and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any
other Loan Document, except, in each case, as expressly required pursuant to this Section 2.15.
(v) Notwithstanding anything
to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (x) if the then-current Benchmark is a term rate (including the Term SOFR Rate) and either (A) any
tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the
administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of
“Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (y) if a tenor that was removed pursuant to clause (i) above either (1) is subsequently displayed on a screen or
information service for a Benchmark (including a Benchmark Replacement) or (2) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the
Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
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(vi) Upon the Borrower’s
receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Term Benchmark Borrowing or RFR Borrowing of, continuation of Term Benchmark Loans to be made or continued during any
Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any request for a Term Benchmark Borrowing into a request for a Borrowing of (A) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not
the subject of a Benchmark Transition Event or (B) a Borrowing with respect to Base Rate Loans if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event. During any Benchmark Unavailability Period or at any time that a
tenor for the then-current Benchmark is not an Available Tenor, the component of the Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Base Rate.
Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such Term Benchmark Loan
or RFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.15, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day
if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) a Base Rate Loan if
the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day.
(b) Compensation for Breakage or
Non-Commencement of Interest Periods. The Borrower shall compensate each Lender, upon written request by such Lender (which request shall set forth the basis for requesting such amounts in reasonable detail), for all reasonable losses,
expenses and liabilities (including any interest paid or payable by such Lender to lenders of funds borrowed by it to make or carry its Term Benchmark Loans and any loss, expense or liability sustained by such Lender in connection with the
liquidation or re-employment of such funds but excluding loss of anticipated profits) which such Lender may sustain: (i) if for any reason (other than a default by such Lender) a borrowing or continuation of any Term Benchmark Loan does not
occur on a date specified therefor in any written or telephonic notice delivered pursuant hereto; (ii) if any prepayment or other principal payment of any of its Term Benchmark Loans occurs on a date prior to the last day of an Interest Period
applicable to that Loan; or (iii) if any prepayment of any of its Term Benchmark Loans is not made on any date specified in a notice of prepayment given by the Borrower. The agreements in this Section 2.15(b) shall survive the termination of
the Commitments and the repayment of the Loans and all other amounts payable hereunder.
(c) Booking of Loans. Any Lender may
make, carry or transfer Term Benchmark Loans at, to, or for the account of any of its branch offices or the office of an Affiliate of such Lender.
(d) Assumptions Concerning Funding of
Loans. Calculation of all amounts payable to a Lender under this Section 2.15 and under Section 2.16 shall be made as though such Lender had actually funded each of its relevant Term Benchmark Loans through the purchase
of a deposit bearing interest at the rate obtained pursuant to the definition of “Adjusted Term SOFR Rate” in an amount equal to the amount of such Term Benchmark Loan and having a maturity comparable to the relevant Interest Period and through
the transfer of such deposit from an offshore office of such Lender to a domestic office of such Lender in the United States of America; provided, however, each Lender may fund each of its Term Benchmark Loans in any manner it
sees fit and the foregoing assumptions shall be utilized only for the purposes of calculating amounts payable under this Section 2.15 and under Section 2.16.
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(e) Illegality or Impracticability of
Term Benchmark Loans. In the event that on any date (i) any Lender shall have reasonably determined (which determination shall be final and conclusive and binding upon all parties hereto but shall be made only after consultation with the
Borrower and the Administrative Agent) that the making, maintaining or continuation of its Term Benchmark Loans has become unlawful as a result of compliance by such Lender in good faith with any law, treaty, governmental rule, regulation,
guideline or order (or would conflict with any such treaty, governmental rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be unlawful), or (ii) the Administrative Agent is
advised by the Required Lenders (which determination shall be final and conclusive and binding upon all parties hereto) that the making, maintaining or continuation of its Term Benchmark Loans has become impracticable, as a result of
contingencies occurring after the date hereof which materially and adversely affect the London interbank market or the position of the Lenders in that market, then, and in any such event, such Lenders (or in the case of the preceding clause
(i), such Lender) shall be an “Affected Lender” and such Affected Lender shall on that day give notice (by email or by telephone confirmed in writing) to the Borrower and the Administrative Agent of such determination (which notice
the Administrative Agent shall promptly transmit to each other Lender). If the Administrative Agent receives a notice from (x) any Lender pursuant to clause (i) of the preceding sentence or (y) Lenders constituting Required Lenders
pursuant to clause (ii) of the preceding sentence, then (A) the obligation of the Lenders (or, in the case of any notice pursuant to clause (i) of the preceding sentence, such Lender) to make Loans as Term Benchmark Loans shall
be suspended until such notice shall be withdrawn by each Affected Lender, (B) to the extent such determination by the Affected Lender relates to a Term Benchmark Loan then being requested by the Borrower pursuant to a Funding Notice or a
Continuation Notice, the Lenders (or in the case of any notice pursuant to clause (i) of the preceding sentence, such Lender) shall make such Loan as (or continue such Loan as) a Base Rate Loan, (C) the Lenders’ (or in the case of any
notice pursuant to clause (i) of the preceding sentence, such Lender’s) obligations to maintain their respective outstanding Term Benchmark Loans (the “Affected Loans”) shall be terminated at the earlier to occur of the
expiration of the Interest Period then in effect with respect to the Affected Loans or when required by law, and (D) the Affected Loans shall automatically convert into Base Rate Loans on the date of such termination. Notwithstanding the
foregoing, to the extent a determination by an Affected Lender as described above relates to a Term Benchmark Loan then being requested by the Borrower pursuant to a Funding Notice or a Continuation Notice, the Borrower shall have the option,
subject to the provisions of this Section 2.15(e), to rescind such Funding Notice or Continuation Notice as to all Lenders by giving written or telephonic notice (promptly confirmed by delivery of written notice thereof) to the
Administrative Agent of such rescission on the date on which the Affected Lender gives notice of its determination as described above (which notice of rescission the Administrative Agent shall promptly transmit to each other Lender). Except as
provided in the immediately preceding sentence, nothing in this Section 2.15(e) shall affect the obligation of any Lender other than an Affected Lender to make or maintain Loans as Term Benchmark Loans in accordance with the terms
hereof.
Section 2.16 Increased Costs; Capital Requirements.
(a) Increased Costs. If any Change
in Law shall:
(i) impose, modify or deem
applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement
reflected in the Adjusted Term SOFR Rate);
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(ii) subject any Recipient
to any Taxes (other than (A) Taxes excluded from Section 2.17(a) pursuant to clauses (ii) through (iv) of Section 2.17(a), (B) Non-Excluded Taxes and Other Taxes indemnifiable under Section 2.17 and (C)
Connection Income Taxes) on its loans, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender
or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing 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 other Recipient hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or other Recipient, the Borrower will pay to
such Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any
Lender determines that any Change in Law affecting such Lender or any lending office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducing the rate of
return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by such Lender to a level below that which such Lender or such
Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time the Borrower
will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A
certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in clause (a) or (b) of this Section and delivered to the Borrower, shall
be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within thirty (30) days after receipt thereof.
(d) Delay in Requests. Failure or
delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender
pursuant to this Section for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of
such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of
retroactive effect thereof).
(e) Survival. The agreements in this
Section 2.16 shall survive the termination of the Commitments and the repayment of the Loans and all other amounts payable hereunder.
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Section 2.17 Taxes.
(a) All payments made by or on behalf of any
Loan Party to a Recipient under any Loan Document shall be made free and clear of, and without deduction or withholding for or on account of, any Taxes (except as required by applicable Law), excluding 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: (i) Taxes imposed on or measured by net income (however denominated), branch profits, and franchise Taxes, in each case (x) imposed on any
Recipient as a result of such Recipient being organized under the laws of, or having its principal office or applicable lending office located in, the jurisdiction of the Governmental Authority imposing such Tax (or any political subdivision
thereof), or (y) that are Other Connection Taxes; (ii) Taxes imposed on any Recipient that are attributable to such Recipient’s failure to comply with the requirements of clauses (f), (g) or (h) of this Section 2.17;
(iii) 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 (x)
such Lender acquires such interest in such Commitment (or, to the extent such Lender did not fund an applicable Loan pursuant to a prior Commitment, on the date on which such Lender acquires interest in such Loan); provided that this clause
(x) shall not apply to a Lender that became a Lender pursuant to an assignment request by the Borrower under Section 2.19, or (y) such Lender changes its lending office, except in each case to the extent that, pursuant to this 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 such Loan or Commitment or to such Lender immediately before it changed its lending
office; and (iv) Taxes that are imposed pursuant to 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 as of the date of this Agreement (or any amended or successor version described above), and any
intergovernmental agreement (and any related fiscal or regulatory legislation, administrative rules or official practices) implementing the foregoing (such Code provisions, agreements, regulations and interpretations, collectively, “FATCA”).
If applicable Law (as determined in the good faith discretion of any applicable withholding agent) requires any Taxes not described in clauses (i) through (iv) of the preceding sentence (“Non-Excluded Taxes”) or
any Other Taxes to be withheld by any applicable withholding agent from any amounts payable under any Loan Document, the amounts so payable by or on behalf of any Loan Party shall be increased to the extent necessary so that after such
deduction or withholding has been made (including such deductions and withholdings of Non-Excluded Taxes or Other Taxes applicable to additional sums payable under this Section 2.17) the applicable Lender (or, in the case of any amounts
received by the Administrative Agent for its own account, the Administrative Agent) receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(b) Without duplication of Section
2.17(a), the Loan Parties shall pay to the relevant Governmental Authority in accordance with applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(c) Whenever any Non-Excluded Taxes or Other
Taxes are payable or remittable by a Loan Party, as soon as practicable thereafter the Loan Party shall send to the applicable Recipient the original or a certified copy of an original official receipt received by the Loan Party or other
reasonably satisfactory evidence showing payment thereof.
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(d) Without duplication of Section 2.17(a),
the Loan Parties shall indemnify each Recipient for the full amount of Non-Excluded Taxes or Other Taxes (including any Non-Excluded Taxes and Other Taxes imposed on amounts payable under this Section 2.17) payable by such Recipient,
and any liability (including penalties, additions to Tax, interest and any reasonable expenses) arising therefrom or with respect thereto, whether or not such Non-Excluded Taxes or Other Taxes were correctly or legally asserted by the relevant
Governmental Authority. Such indemnification shall be made within ten (10) days after the date the Recipient makes written demand therefor (which demand shall set forth in reasonable detail the nature and amount of Non-Excluded Taxes and Other
Taxes for which indemnification is being sought). A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Arrangers or Administrative Agent on its
own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(e) If any Recipient determines, in its sole discretion exercised in
good faith, that it has received a refund of any Taxes as to which it has been indemnified by a Loan Party or with respect to which a Loan Party has paid additional amounts pursuant to this Section 2.17, it shall pay such Loan Party an
amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Loan Party under this Section 2.17 with respect to the Taxes giving rise to such refund), net of all out-of-pocket
expenses (including Taxes) of such Recipient and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the Loan Party, upon the request of such Recipient,
agrees to repay the amount paid over to the Loan Party (plus interest attributable to the period during which the Loan Party held such funds and any penalties, additions to Tax, interest or other charges
imposed by the relevant Governmental Authority) to such Recipient in the event such Recipient is required to repay such refund to such Governmental Authority. This Section 2.17(e) shall not be construed to require any Recipient to make
available its tax returns (or any other information relating to its Taxes that it deems confidential) to the Borrower or any other Person.
(f) Upon the reasonable request of the
Borrower or the Administrative Agent, a Lender that is entitled to an exemption from or reduction of any applicable withholding Tax with respect to any payments under this Agreement or any other Loan Document shall deliver to the Borrower and
the Administrative Agent such properly completed and executed documentation prescribed by applicable Law or reasonably requested by the Borrower or the Administrative Agent (in such number of copies as shall be reasonably requested by the
Borrower or the Administrative Agent, as applicable) as will permit such payments to be made without withholding or at a reduced rate prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter
upon the reasonable request of the Borrower or the Administrative Agent); provided that the completion, execution or submission of such documentation required under this Section 2.17(f) shall not be required if in the Lender’s
reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. Each Lender shall deliver the
forms and other documentation required to be provided under this Section 2.17(f) and Section 2.17(g): (i) on or before the date it becomes a party to this Agreement, (ii) promptly upon the obsolescence, expiration, inaccuracy,
or invalidity of any form previously delivered by such Lender, and (iii) at such other times as may be reasonably requested by the Borrower or the Administrative Agent or as required by Law. Each Lender shall promptly notify the Borrower and
the Administrative Agent at any time it determines that it is no longer in a position to provide any documentation previously delivered to the Borrower or the Administrative Agent. Notwithstanding anything in this Section 2.17 to the
contrary, no Lender shall be required to provide any form or other documentation pursuant to this Section 2.17 that it is not legally eligible to provide. Each Lender authorizes the Administrative Agent to deliver to the Loan Parties
and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 2.17(f) or (g).
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(g) Without limiting the generality of Section
2.17(f):
(i) Each Lender that is a
“U.S. person” (as defined in Section 7701(a)(30) of the Code) shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon
the reasonable request of the Borrower or the Administrative Agent) two executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding Tax.
(ii) Each Lender that is
not a “U.S. person” (as such term is defined in Section 7701(a)(30) of the Code) (a “Foreign Lender”) shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), two executed copies of whichever of the following is applicable:
(A) In the case of a
Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party, IRS Form W-8BEN or Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to such
tax treaty;
(B) IRS Form W-8ECI;
(C) In the case of a
Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit H-1 (a “U.S. Tax Compliance Certificate”) and (y) IRS Form
W-8BEN or Form W-8BEN-E, as applicable; or
(D) To the extent a Foreign
Lender is not the beneficial owner, IRS Form W-8IMY, accompanied by IRS Form W-8ECI, Form W-8BEN, Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9 and/or
other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership (and not a participating Lender) and one or more direct or indirect partners of such Foreign Lender are
claiming the portfolio interest exemption, such Foreign Lender may provide U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of such direct and indirect partner(s).
(iii) Any Foreign Lender
shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent) two (2) executed copies of any other documentation prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary
documentation as may be prescribed by applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made.
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(iv) If a payment made to
any Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or
1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such
documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower
and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with its obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for
the purpose of this Section 2.17(g)(iv), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(h) Each of the Administrative Agent and the
Arranger, if it is a “United States person” within the meaning of Section 7701(a)(30) of the Code, then it shall, on or prior to the date on which it becomes the Administrative Agent or an Arranger, as applicable, provide the Borrower with a
properly completed and duly executed copy of IRS Form W-9 confirming that the it is exempt from U.S. federal backup withholding. If the Administrative Agent is not a “United States person” within the meaning of Section 7701(a)(30) of the Code,
then it shall, on or prior to the date on which it becomes the Administrative Agent, provide the Borrower with, (i) with respect to payments made to the Administrative Agent for its own account, a properly completed and duly executed IRS Form
W-8ECI (or other applicable IRS Form W-8), and (ii) with respect to payments made to the Administrative Agent for the account of any Lender, a properly completed and duly executed IRS Form W-8IMY confirming that the Administrative Agent agrees
to be treated as a “United States person” for U.S. federal withholding Tax purposes. If an Arranger is not a “United States person” within the meaning of Section 7701(a)(30) of the Code, then it shall, on or prior to the date on which it
becomes an Arranger, provide the Borrower with a properly completed and duly executed copy of IRS Form W-8ECI (or other applicable IRS Form W-8). The Administrative Agent and the Arrangers shall, (A) promptly upon the obsolescence, expiration,
inaccuracy or invalidity of any form previously delivered by the Administrative Agent or an Arranger under this clause (h), and (B) at such other times as may be reasonably requested by the Borrower or as required by Law, deliver
promptly to the Borrower an updated form or other appropriate documentation (in such number of copies as shall be reasonably requested by the Borrower) or promptly notify the Borrower in writing of its legal ineligibility to do so.
Notwithstanding anything in this clause (h) to the contrary, no Administrative Agent or Arranger shall be required to provide any documentation pursuant to this clause (h) that such Administrative Agent or Arranger is unable to
deliver as a result of a Change in Law after the date of this Agreement.
(i) The agreements in this Section 2.17
shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other
Obligations.
Section 2.18 Obligation to Mitigate. Each Lender
agrees that, as promptly as practicable after the officer of such Lender responsible for administering its Loans becomes aware of the occurrence of an event or the existence of a condition that would entitle such Lender to receive payments under
Section 2.15, 2.16 or 2.17, it will, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use reasonable efforts to (a) make, issue, fund or maintain
its Loans through another office of such Lender, or (b) take such other measures as such Lender may deem reasonable, if as a result thereof the additional amounts which would otherwise be required to be paid to such Lender pursuant to Section
2.15, 2.16 or 2.17 would be reduced and if, as determined by such Lender in its sole discretion, the making, funding or maintaining of such Loans through such other office or in accordance with such other measures, as the
case may be, would not otherwise adversely affect such Loans or the interests of such Lender; provided that such Lender will not be obligated to utilize such other office or take such other measures pursuant to this Section 2.18
unless the Borrower agrees to pay all incremental expenses incurred by such Lender as a result of utilizing such other office or taking such other measures as described above. A certificate as to the amount of any such expenses payable by the
Borrower pursuant to this Section 2.18 (setting forth in reasonable detail the basis for requesting such amount) submitted by such Lender to the Borrower (with a copy to the Administrative Agent) shall be conclusive absent manifest
error. The Borrower shall pay such Lender the amount shown as due on any such certificate within thirty (30) days after receipt thereof.
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Section 2.19 Removal or Replacement of a Lender. Anything
contained herein to the contrary notwithstanding, in the event that: (a)(i) any Lender (an “Increased Cost Lender”) shall give notice to the Borrower that such Lender is entitled to receive payments under Section 2.15, 2.16
or 2.17, (ii) the circumstances which entitle such Lender to receive such payments shall remain in effect, and (iii) such Lender shall fail to withdraw such notice within five (5) Business Days after the Borrower’s request for such
withdrawal; or (b) in connection with any proposed amendment, modification, termination, waiver or consent with respect to any of the provisions hereof as contemplated by Section 9.1, the consent of Required Lenders shall have been
obtained but the consent of one or more of such other Lenders (each, a “Non-Consenting Lender”) whose consent is required shall not have been obtained; then, with respect to each such Increased Cost Lender or Non-Consenting Lender (the “Terminated
Lender”), the Borrower may, by giving written notice to the Administrative Agent and any Terminated Lender of its election to do so, elect to cause such Terminated Lender (and such Terminated Lender hereby irrevocably agrees) to assign its
outstanding Loans in full to one or more Persons permitted to become Lenders hereunder pursuant to and in accordance with the provisions of Section 9.6 (each, a “Replacement Lender”) and the Borrower shall pay the fees, if any,
payable thereunder in connection with any such assignment from an Increased Cost Lender or a Non-Consenting Lender; provided that, (A) on the date of such assignment, such Terminated Lender shall have received payment from the Replacement
Lender or the Borrower in an amount equal to the sum of (1) the principal of, and all accrued interest on, all outstanding Loans of the Terminated Lender and (2) all accrued, but theretofore unpaid fees owing to such Terminated Lender pursuant to
Section 2.8; (B) in the case of any such assignment resulting from a claim for compensation under Section 2.15(b), 2.16 or 2.17, such assignment will result in a material reduction in such compensation and on the
date of such assignment, the Borrower shall pay any amounts payable to such Terminated Lender pursuant to Section 2.15, 2.16 or 2.17; or otherwise as if it were a prepayment; and (C) in the event such Terminated Lender is
a Non-Consenting Lender, each Replacement Lender shall consent, at the time of such assignment, to each matter in respect of which such Terminated Lender was a Non-Consenting Lender. Upon the prepayment of all amounts owing to any Terminated
Lender, such Terminated Lender shall no longer constitute a “Lender” for purposes hereof; provided, any rights of such Terminated Lender to indemnification hereunder shall survive as to such Terminated Lender. Each Lender agrees
that if the Borrower exercises its option hereunder to cause an assignment by such Lender as a Non-Consenting Lender or Terminated Lender, such Lender shall, promptly after receipt of written notice of such election, execute and deliver all
documentation necessary to effectuate such assignment in accordance with Section 9.6; provided that each party hereto agrees that an assignment required pursuant to this Section 2.19 may be effected pursuant to an
Assignment and Acceptance executed by the Borrower, the Administrative Agent and the assignee and that the Lender required to make such assignment need not be a party thereto, and each Lender hereby authorizes and directs the Administrative Agent
to execute and deliver such documentation as may be required to give effect to an assignment in accordance with Section 9.6 on behalf of a Non-Consenting Lender or Terminated Lender and any such documentation so executed by the
Administrative Agent shall be effective for purposes of documenting an assignment pursuant to Section 9.6.
Section 3. REPRESENTATIONS AND
WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this Agreement and to make the Loans, the Borrower and the other Loan Parties hereby jointly and severally represent and warrant
to the Administrative Agent and each Lender that:
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Section 3.1 Financial Condition. The audited consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at December 31, 2024, and the audited balance sheets and related consolidated statements of operations, comprehensive (loss) income, changes in equity cash flow of the Borrower
and its consolidated Subsidiaries for the fiscal period then ended, copies of which have heretofore been furnished to the Administrative Agent for delivery to each Lender, in each case, present fairly in all material respects the consolidated
financial condition of the Borrower and its consolidated Subsidiaries as at such date, and the consolidated results of operations and consolidated cash flows of the Borrower and its consolidated Subsidiaries for the fiscal year then ended. Such
financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the period involved (except as disclosed therein).
Section 3.2 No Change. Since December 31, 2024, there has
been no development or event that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 3.3 Existence; Compliance with Law. Each FTAI
Group Member (a) is duly incorporated, organized or formed, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its incorporation, organization or formation, (b) has the organizational power and authority,
and all requisite Permits from Governmental Authorities, to own and, to the extent in operation, operate its Property, to lease the Property it leases as lessee and to conduct the business in which it is currently engaged, (c) is duly qualified
as a foreign corporation or other organization or body corporate and in good standing under the laws of each jurisdiction (if applicable) where its ownership, lease or operation of Property or the conduct of its business requires such
qualification and (d) is in compliance with all Requirements of Law, except, in the case of clause (a) above with respect to any FTAI Group Member other than the Loan Parties and in the cases of clauses (b), (c) and (d) above, to the extent that
failure of the same would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 3.4 Power; Authorization; Enforceable Obligations.
(a) Each Loan Party has the requisite corporate or other organizational power and authority to make, deliver and perform the Loan Documents to which it is a party. Each Loan Party has taken all necessary corporate or other organizational action
to authorize the execution, delivery and performance of the Loan Documents to which it is a party. Each Loan Document has been duly executed and delivered on behalf of each Loan Party that is a party thereto and constitutes a legal, valid and
binding obligation of each Loan Party that is a party thereto, enforceable against each such Loan Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
(b) No material consent or authorization of,
filing with, notice to or other act by or in respect of, any Governmental Authority is required in connection with the borrowings hereunder, the granting of Liens pursuant to the Security Documents or the execution, delivery or performance of
this Agreement or any of the other Loan Documents, except (i) those consents, authorizations, filings and notices that have been obtained or made and are in full force and effect, (ii) filings in the United States Patent and Trademark Office
and the United States Copyright Office in respect of Intellectual Property acquired after the date hereof, (iii) recording of the transfer of registrations and applications for Intellectual Property rights upon foreclosure and (iv) the filings
or other actions referred to in Section 3.21 (or otherwise expressly not required to be made or taken under the Loan Documents).
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Section 3.5 No Legal Bar. The execution, delivery and
performance of this Agreement and the other Loan Documents, the borrowings hereunder and the use of the proceeds thereof will not contravene, violate or result in a breach of or default under any Requirement of Law or any Contractual Obligation
of any FTAI Group Member, other than any violation that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and will not result in, or require, the creation or imposition of any Lien on any of
their respective properties or revenues pursuant to any Requirement of Law or any such Contractual Obligation (other than the Liens created by the Security Documents).
Section 3.6 No Material Litigation. No
litigation, action, suit, claim, dispute, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the actual knowledge attributable to any officer of the Borrower, threatened in writing by or against
any FTAI Group Member or against any of their respective properties or revenues that (i) would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or (ii) purports to affect or pertain to any of the Loan
Documents or any of the transactions contemplated hereby or thereby.
Section 3.7 No Default. No Default or Event of Default
has occurred and is continuing. No FTAI Group Member is in default under any Contractual Obligation that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 3.8 Ownership of Property; Liens. Each of the
FTAI Group Members has title in fee simple or good and valid title, as the case may be, to, or a valid leasehold interest in, or easements or other limited property interests in, all its real or immoveable property necessary in the ordinary
conduct of its business, and good title to, or a valid leasehold interest in, or valid license of or other right to use, all its other Property necessary for the conduct of its business as currently conducted, in each case except where the
failure to have such title, interest, license or right would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and none of such Property is subject to any Lien except as permitted by Section 6.6.
Section 3.9 Intellectual Property. Each of the FTAI
Group Members owns, or is licensed or otherwise has the right to use, all Intellectual Property necessary for the conduct of its business as currently conducted except to the extent such failure would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. No claim has been asserted and is pending by any Person against an FTAI Group Member challenging or questioning the use by an FTAI Group Member of any Intellectual Property or the
validity or effectiveness of any Intellectual Property owned by an FTAI Group Member, except to the extent that any such claim would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. To the actual
knowledge attributable to any officer of the Borrower, the use of Intellectual Property by the FTAI Group Members in their business as currently conducted does not infringe on the intellectual property rights of any Person, except for such
infringements which would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 3.10 Taxes. Each of the FTAI Group Members has
filed or caused to be filed all federal, state and other tax returns that are required to be filed and has paid all Taxes due and payable by it (including in its capacity as a withholding agent) other than (a) any amount the validity of which is
currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the relevant FTAI Group Member or (b) where the failure to make such filing, payment,
deduction, withholding, collection or remittance would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; and no Lien for Tax has been filed, and, to the actual knowledge attributable to any officer
of the Borrower, no claim is being asserted, with respect to any such Tax, fee or other charge except, in each case, as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
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Section 3.11 Federal Regulations. No part of the proceeds
of any Loans, and no other extensions of credit hereunder, will be used for any purpose that violates the provisions of Regulations T, U or X.
Section 3.12 Labor Matters. There are no strikes or other
labor disputes against any FTAI Group Member pending or, to the actual knowledge attributable to any officer of the Borrower, threatened that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. All
payments due from the FTAI Group Members on account of employee health and welfare insurance that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect if not paid have been paid or accrued as a
liability on the books of the relevant FTAI Group Member.
Section 3.13 ERISA. None of the Borrower or any Commonly
Controlled Entity has had a complete or partial withdrawal from any Multiemployer Plan that has resulted or would reasonably be expected to result in a liability under ERISA, except as would not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect.
Section 3.14 Investment Company Act. No Loan Party is an
“investment company,” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940.
Section 3.15 Subsidiaries.
(a) The Persons listed on Schedule 3.15
constitute all the Subsidiaries of the Borrower as of the Closing Date. Schedule 3.15 sets forth as of the Closing Date the name and jurisdiction of incorporation or organization of each Person listed therein and the percentage of each
class of Capital Stock of such Person owned by the Borrower and each Subsidiary.
(b) As of the Closing Date, there are no
outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments granted to any Person other than the Borrower and its Subsidiaries (other than Management Equity and directors’ qualifying shares or other similar
shares required pursuant to applicable Law) of any nature relating to any Capital Stock of any Subsidiary owned directly or indirectly by the Borrower; provided that, with respect to any non-Wholly-Owned Subsidiary, its Capital Stock
may be subject to customary rights of first refusal, tag-along, drag-along, rights of first offer, buy-sell provisions and other similar rights.
Section 3.16 Use of Proceeds. The proceeds of the
Loans shall be used for the purposes set forth in the recitals to this Agreement.
Section 3.17 Environmental Matters. Other than exceptions
to any of the following that would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect:
(a) The FTAI Group Members and each of their
respective facilities and operations: (i) are in compliance with all applicable Environmental Laws; (ii) hold or otherwise have rights to operate under all Environmental Permits (each of which is in full force and effect) required for any of
their current operations or for any property owned, leased, or otherwise operated by any of them; (iii) are in compliance with all of their Environmental Permits; (iv) have taken reasonable steps to ensure each of their Environmental Permits
will be timely maintained, renewed and complied with; and (v) have no actual knowledge attributable to any officer of the Borrower of any facts or circumstances upon which any such Environmental Permits would reasonably be expected to be
adversely amended or revoked.
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(b) Hazardous Materials are not present at,
on, under, in, or emanating from any property now or, to the actual knowledge attributable to any officer of the Borrower, formerly owned, leased or operated by the Borrower or any FTAI Group Member, or, to the actual knowledge attributable to
any officer of the Borrower, at any other location (including any location to which Hazardous Materials have been sent for reuse or recycling or for treatment, storage, or disposal) which would reasonably be expected to (i) give rise to
liability of the Borrower or any of its Restricted Subsidiaries under any applicable Environmental Law or otherwise result in costs to the Borrower or any of its Restricted Subsidiaries, or (ii) interfere with the Borrower’s or any of its
Restricted Subsidiaries’ continued operations.
(c) There are no Environmental Claims to which
the Borrower or any of its Restricted Subsidiaries is, or to the actual knowledge attributable to any officer of the Borrower will be, named as a party that is pending or, to the actual knowledge attributable to any officer of the Borrower,
threatened. To the actual knowledge attributable to any officer of the Borrower, there are no facts or circumstances that would reasonably be expected to give rise to any such Environmental Claim.
(d) None of the Borrower or any of its
Restricted Subsidiaries has received any written request for information from the applicable Governmental Authority, or been notified by such Governmental Authority that it is a potentially responsible party or subject to liability under or
relating to the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 or any other Environmental Law, or with respect to any Hazardous Materials, excluding any such matters that have been fully resolved with no
further obligation or liability on the part of the Borrower or any of its Restricted Subsidiaries.
(e) None of the Borrower or any of its
Restricted Subsidiaries has entered into or agreed to any consent decree, order, or settlement or other agreement, or is subject to any judgment, decree, or order or other agreement, in any judicial, administrative, arbitral or other form of
dispute resolution, relating to compliance with or liability under any Environmental Law, excluding any such matters that have been fully resolved.
Section 3.18 Accuracy of Information, Etc. No statement
or information contained in this Agreement, any other Loan Document, or any other document, certificate or written statement furnished to the Administrative Agent or the Lenders or any of them, by or on behalf of any Loan Party for use in
connection with the transactions contemplated by this Agreement or the other Loan Documents, when taken as a whole, contained as of the date such statement, information, document or certificate was so furnished (as modified or supplemented by
other information so furnished), any untrue statement of a material fact or omitted to state a material fact necessary to make the statements contained herein or therein, in the light of the circumstances under which they were made, not
materially misleading. The projections and pro forma financial information contained in the materials referenced above are based upon good faith estimates and assumptions believed by management of the Borrower to be reasonable at the time made,
it being recognized by the Lenders that such financial information as it relates to future events is not to be viewed as fact and that actual results during the period or periods covered by such financial information may differ from the projected
results set forth therein by a material amount. The Borrower has disclosed to the Administrative Agent and the Lenders all agreements, instruments and corporate or other restrictions to which it or any of its Restricted Subsidiaries is subject,
and all other matters known to it, that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. As of the Closing Date, the information included in the Beneficial Ownership Certification is true and
correct in all respects.
Section 3.19 [Reserved].
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Section 3.20 Solvency. As of the Closing Date and after
giving effect to the Loans made on the Closing Date, the Borrower and its Subsidiaries, on a consolidated basis, are Solvent.
Section 3.21 Security Documents. Each of the Security
Documents is effective to create in favor of the Administrative Agent for the benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral described therein and proceeds thereof. In the case of (i) any
Pledged Equity as described in the Security Documents which is in certificated form, when any stock, share, membership or partnership unit certificates representing such Pledged Equity are delivered to, and in the possession of, the
Administrative Agent and (ii) the other Collateral described in the Security Documents, when financing statements and other filings in appropriate form are filed or registered in the office specified on Schedule 3.19, the security
interest created in favor of the Administrative Agent for the benefit of the Secured Parties in such Pledged Equity and other Collateral described in the Security Documents shall constitute a fully enforceable and/or perfected (to the extent
perfection is required under the Loan Documents) Lien on, and security interest in, all right, title and interest of the Borrower in such Pledged Equity, other Collateral and the proceeds thereof, in which a security interest may be perfected by
delivery to the Administrative Agent of such Pledged Equity or by filing a financing statement in the United States or other filing or registration in any applicable non-U.S. jurisdiction as security for the Obligations, in each case, prior and
superior in right to any other Person (other than Persons holding Liens or other encumbrances or rights that are permitted by this Agreement to be incurred pursuant to Section 6.6).
Section 3.22 Anti-Money Laundering and Anti-Corruption Laws;
Sanctions.
(a) To the extent applicable, the Borrower
is in compliance and the operations of the Borrower are and have been conducted for the past five years or since April 24, 2019 with respect to Section 3.22(a)(i) in compliance, in all material respects, with all applicable financial
recordkeeping and reporting requirements, including those of the (i) Trading with the Enemy Act and each of the foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V) and any other
enabling legislation or executive order relating thereto, (ii) the PATRIOT Act and (iii) the applicable anti-money laundering statutes of jurisdictions where the Borrower conducts business, the rules and regulations thereunder and any related
or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Authority (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any Governmental Authority
involving the Borrower with respect to the Anti-Money Laundering Laws is pending or, to the actual knowledge attributable to any officer of the Borrower, threatened in writing.
(b) No part of the proceeds of the Loans will
be used, directly or, to the actual knowledge attributable to any officer of the Borrower, indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or
anyone else acting in an official capacity for a Governmental Authority, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”),
or otherwise in furtherance of an offer, payment, promise to pay or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any applicable anti-corruption laws. Neither the Borrower nor any
director or officer thereof, nor, to the actual knowledge attributable to any officer of the Borrower, any employee, agent, Affiliate or representative thereof, will take any action in furtherance of an offer, payment, promise to pay or
authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or, to the actual knowledge attributable to any officer of the Borrower, indirectly, to any government official (including
any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party
official or candidate for public office) in order to influence official action, or to any Person in violation of the FCPA or any applicable anti-corruption laws. The FTAI Group Members are conducting their businesses in compliance in all
material respects with the FCPA and applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote compliance with such laws and with the representations
and warranties contained in this clause (b).
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(c) Neither the Borrower nor any director or
officer thereof, nor, to the actual knowledge attributable to any officer of the Borrower, any employee, agent, Affiliate or representative of the Borrower, is a Person that is, or is 50.0% or more owned or controlled by one or more Persons
that are, (i) on the list of “Specially Designated Nationals and Blocked Persons,” (ii) the subject of any sanctions administered or enforced by the Office of Foreign Assets Control of the U.S. Treasury Department, the United Nations Security
Council, the European Union or His Majesty’s Treasury (collectively, “Sanctions”) or (iii) located, organized or resident in a country, region or territory that is the subject of comprehensive Sanctions (as of the date of this Agreement,
the Crimea, the so-called Donetsk People’s Republic, and the so-called Luhansk People’s Republic regions of Ukraine, the non-Ukrainian government controlled areas in the Zaporizhzhia and Kherson oblasts of Ukraine, and Cuba, Iran and North
Korea); and the Borrower will not directly or, to the actual knowledge attributable to any officer of the Borrower, indirectly, use the proceeds of the Loans or lend,
contribute or otherwise make available such proceeds to any Person (A) to fund or facilitate any activities or business of or with any Person or in any country, region or territory that, at the time of such funding or facilitation, is in
violation of Sanctions or (B) in any other manner that will result in a violation of Sanctions by any Person. The FTAI Group Members have instituted and maintained and will continue to maintain policies and procedures reasonably designed to
promote and achieve compliance with applicable Sanctions and with the representations and warranties contained in this clause (c).
Section 3.23 Insurance. The properties of the Borrower and
the other FTAI Group Members are insured with financially sound and reputable insurance companies that are not Affiliates of the Borrower, in such amounts, with such deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in localities where the Borrower or the applicable FTAI Group Member operates, in each case, as reasonably determined in good faith by the Borrower.
Section 4. CONDITIONS PRECEDENT
Section 4.1 Closing Date. The Lenders shall not be
obligated to fund until the date on which each of the following conditions precedent is satisfied (or waived):
(a) Loan Documents. The
Administrative Agent shall have received:
(i) this Agreement,
executed and delivered by a duly authorized officer or signatory of the Borrower.
(ii) (A) the Security
Agreement, executed and delivered by a duly authorized officer or signatory of the Borrower and (B) subject in all respects to the final paragraph of this Section 4.1, evidence that all actions (if any) (including the filing of Uniform
Commercial Code financing statements and delivery to the Administrative Agent of the certificates and instruments required to be delivered pursuant to the Security Documents) required by the Security Documents or under applicable law or
reasonably requested by the Administrative Agent to perfect (to the extent perfection is required under the Loan Documents) the Liens created by such Security Documents have been completed.
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(b) Legal Opinion. The Administrative
Agent shall have received, in form and substance reasonably acceptable to the Administrative Agent, a customary legal opinion of Skadden, Arps, Slate, Meagher & Flom LLP, Delaware and New York counsel to the Borrower and its Subsidiaries,
dated the date hereof and addressed to the Administrative Agent and the Lenders.
(c) Financial Statements and Other
Financial Information. The Administrative Agent shall have received the Historical Borrower Financial Statements, the Historical Target Financial Statements and the Pro Forma Financial Statements. The Administrative Agent hereby
acknowledges (i) receipt of (A) the audited financial statements referred to in clause (a) of the definition of Historical Borrower Financial Statements for the fiscal years ended December 31, 2024, December 31, 2023, and December 31,
2022, (B) the unaudited financial statements referred to in clause (b) of the definition of “Historical Borrower Financial Statements” for the fiscal quarter ended March 31, 2025, (C) the audited financial statements referred to in clause
(a) of the definition of “Historical Target Financial Statements” for the fiscal years ended June 30, 2024 and June 30, 2023, (D) the unaudited financial statements referred to in clause (b)(i) of the definition of “Historical
Target Financial Statements”, and (E) the unaudited financial statements referred to in clause (b)(ii) of the definition of “Historical Target Financial Statements” and (ii) that the timely public filing by the Borrower with the SEC of
any required audited financial statements on Form 10-K or required unaudited financial statements on Form 10-Q shall be deemed to satisfy the requirements under this clause (c).
(d) PATRIOT Act; Beneficial Ownership
Certification. The Administrative Agent shall have received, at least three (3) Business Days prior to the Closing Date, (i) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a
Beneficial Ownership Certification with respect to the Borrower and (ii) all documentation and other information with respect to the Borrower required by bank regulatory authorities under applicable “know your customer” and anti-money
laundering rules and regulations, including the PATRIOT Act, in each case, to the extent reasonably requested by the Administrative Agent from the Borrower in writing at least ten (10) Business Days prior to the Closing Date.
(e) Closing Date Certificate. The
Administrative Agent shall have received a certificate of each Loan Party, dated the Closing Date, substantially in the form of Exhibit B or otherwise in form and substance reasonably satisfactory to the Administrative Agent, with
appropriate insertions and attachments.
(f) Funding Notice. The
Administrative Agent shall have received a fully executed and delivered Funding Notice in accordance with the terms of Section 2.1(b)(i).
(g) Solvency Certificate. The
Administrative Agent shall have received a solvency certificate, substantially in the form of Exhibit F, executed by a Responsible Officer of the Borrower.
(h) Specified Representations. The
Specified Representations shall be true and correct in all material respects or, if qualified by materiality or material adverse effect, in all respects.
(i) Specified Stock Purchase Agreement
Representations. The Specified Stock Purchase Agreement Representations shall be true and correct to the extent required by the definition thereof.
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(j) Fees and Expenses. The Borrower
shall have paid (or the Lenders and/or the Administrative Agent shall withhold from the proceeds of the Loans on the Closing Date), all fees due and payable as of the Closing Date pursuant to the Fee Letter and Section 2.8 to the
Administrative Agent (for distribution, as appropriate, to the Lenders), and all reasonable and documented out-of-pocket expenses required to be paid pursuant to Section 9.5 for which reasonably detailed invoices have been invoiced at
least three (3) Business Days prior to the Closing Date shall have been paid to the Administrative Agent.
(k) Acquisition. The Acquisition shall
be consummated substantially concurrently with the funding of the Facility in accordance in all material respects with the Stock Purchase Agreement without modifications, supplements, consents, waivers or amendments thereof that are materially
adverse when taken as a whole to the interests of the Lenders or Arrangers unless consented to by the Lenders and Arrangers (such consent not to be unreasonably withheld, delayed or conditioned).
(l) Refinancing. The Refinancing
shall be consummated substantially simultaneously with the initial Borrowing under the Facility.
(m) Rail Co. Equity Securities.
The issuance of the Rail Co. Equity Securities by Rail Co. in all material respects on the terms set forth in the Preferred Equity Commitment Letter shall have been, or substantially concurrently with the initial Borrowing under the Facility
shall be, consummated; provided, however, that the Preferred Equity Commitment Letter shall not have been amended, supplemented or waived in a manner that is materially adverse to the interests of the Lenders or the Arrangers
without the consent of the Lenders and Arrangers (such consent not to be unreasonably withheld, delayed or conditioned).
(n) Material Adverse Effect. From
the Balance Sheet Date (as defined in the Stock Purchase Agreement), there has not been any event, occurrence, development or state of circumstances or facts that has had and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect (as defined in the Stock Purchase Agreement), but only to the extent that the Borrower or its applicable Affiliates have the right to terminate its or its applicable Affiliates’ obligations under the Stock
Purchase Agreement or decline to consummate the Acquisition as a result of a breach of such representations in the Stock Purchase Agreement (after giving effect to any applicable notice and cure provisions).
Notwithstanding anything herein to the contrary, it is understood and agreed that, to the extent any security interest in any Collateral is or cannot be provided and/or
perfected on the Closing Date (other than pledge and perfection of the security interests (1) in the certificated equity securities, along with undated transfer powers executed in blank, if any, of the Borrower and any material U.S. domestic
Wholly-Owned Subsidiaries of the Borrower (to the extent required by the Loan Documents) and (2) in other assets with respect to which a lien may be perfected by the filing of a financing statement under the Uniform Commercial Code (to the extent
required by the Loan Documents)) after the Borrower’s use of commercially reasonable efforts to do so or without undue burden or expense, then the provision and/or perfection of a security interest in such Collateral shall not constitute a
condition precedent to the availability and funding of the Facility on the Closing Date, but instead shall be required to be delivered and/or perfected after the Closing Date in accordance with Section 5.10 (but, in any event, not later
than ninety (90) days after the Closing Date or such longer period as may be agreed by the Administrative Agent, in its sole discretion, and the Borrower acting reasonably without any requirement for Lender consent).
Section 5. AFFIRMATIVE COVENANTS
The Borrower agrees that, so long as the Termination Conditions have not been satisfied, the Borrower shall and shall cause each of the Restricted Subsidiaries of the Borrower to:
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Section 5.1 Financial Statements.
(a) Furnish to the Administrative Agent for
delivery to each Lender and take the following actions:
(i) within ninety (90)
days (or the successor time period then in effect under the Exchange Act for a non-accelerated filer plus any grace period provided by Rule 12b-25 under the Exchange Act) after the end of each fiscal
year of the Borrower, beginning with the fiscal year ending December 31, 2025, a copy of the audited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such year and the related audited consolidated
statements of operations and of cash flows for such year, setting forth in each case in comparative form the figures as of the end of and for the previous year, audited by Ernst & Young LLP or other independent certified public accountants
of nationally recognized standing, together with a report and opinion by such certified public accountants, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any
“going concern” or like qualification or exception or any qualification or exception as to the scope of such audit (except for any such qualification solely with respect to or resulting from an upcoming maturity date under any Indebtedness that
is scheduled to occur within one year from the time such report and opinion are delivered or any potential or actual inability to satisfy any financial maintenance covenant on a future date or in a future period); and
(ii) not later than
forty-five (45) days (or the successor time period then in effect under the Exchange Act for a non-accelerated filer plus any grace period provided by Rule 12b-25 under the Exchange Act) after the end
of the first three (3) fiscal quarter of the Borrower, beginning with the fiscal quarter ending September 30, 2025, the unaudited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such quarter and the
related unaudited consolidated statements of operations and of cash flows for such quarter and the portion of the fiscal year through the end of such quarter, setting forth in each case in comparative form the figures as of the end of and for
the corresponding period in the previous year, certified by a Responsible Officer of the Borrower as being fairly stated in all material respects (subject to normal year-end audit adjustments and the absence of footnotes).
(b) Financial statements, segment information
or other information required to be delivered pursuant to this Section 5.1, Section 5.2 or Section 5.7 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which
the Borrower, as applicable, posts such financial statements, segment information or other information or provides a link thereto, on the website of the Borrower, as applicable; (ii) on which such financial statements, segment information or
other information is posted on behalf of the Borrower on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial or third-party website or whether sponsored by the
Administrative Agent); or (iii) to the extent such financial statements, segment information or other information are set forth in the Borrower’s Form 10-K or 10-Q, as applicable, filed with the SEC, on which date such documents are filed for
public availability on the SEC’s Electronic Data Gathering and Retrieval System; provided that except in the case of clause (iii) above, the Borrower shall notify the Administrative Agent by electronic mail of the posting of any
such documents and provide to the Administrative Agent electronic versions of such documents.
Section 5.2 Certificates; Other Information. Furnish
to the Administrative Agent for delivery to each Lender:
(a) concurrently with the delivery of any
financial statements pursuant to Section 5.1, a Compliance Certificate of the Borrower (the first such Compliance Certificate to be delivered for the fiscal quarter ending September 30, 2025) as of the last day of the fiscal quarter or
fiscal year of the Borrower, as the case may be;
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(b) no later than sixty (60) days after the
end of each fiscal year of the Borrower, beginning with the fiscal year ending December 31, 2025, a consolidated budget for the Borrower and its Subsidiaries for the following fiscal year (including a consolidated statement of projected results
of operations of the Borrower and its consolidated Subsidiaries as of the end of the following fiscal year presented on a quarterly basis);
(c) concurrently with the delivery of any
financial statements pursuant to clause (i) or (ii) of Section 5.1(a), a narrative discussion and analysis of the financial condition and results of operations of the Borrower and its consolidated Subsidiaries, in each
case, for such fiscal quarter and for the period from the beginning of the then current fiscal year to the end of such fiscal quarter;
(d) if any Loan Party shall (i) change its
jurisdiction of organization, type of organization or the location of its sole place of business or chief executive office after the Closing Date due to any action by any Loan Party; or (ii) change its name, such Loan Party shall, on or before
the date that is thirty (30) days following such change (or such longer period as the Administrative Agent may agree to in its sole discretion), give the Administrative Agent written notice thereof; and
(e) promptly, from time to time, such other
customary information regarding the operations, business affairs and financial condition of the Borrower and its Restricted Subsidiaries and their compliance with the terms of any Loan Document, in each case, as the Administrative Agent may
reasonably request (for itself or on behalf of any Lender). The Borrower hereby acknowledges that certain of the Lenders may be Public Lenders and, if documents or notices required to be delivered pursuant to Section 5.1 or this Section
5.2 or otherwise are being distributed through IntraLinks/IntraAgency, SyndTrak or another relevant website or other information platform (the “Platform”), any document or notice that the Borrower has not clearly and conspicuously
marked “PUBLIC” shall not be posted on that portion of the Platform designated for such Public Lenders. The Borrower agrees to use commercially reasonable efforts to clearly designate all information provided to the Administrative Agent by or
on behalf of the Borrower which is suitable to make available to Public Lenders. If the Borrower has not indicated whether a document or notice delivered pursuant to this paragraph contains Non-Public Information, the Administrative Agent
reserves the right to post such document or notice solely on that portion of the Platform designated for Lenders who wish to receive Non-Public Information with respect to the Borrower, its Subsidiaries and their securities (“Private Side
Information”). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected to receive Private Side Information in order to enable such Public Lender or its delegate, in
accordance with such Public Lender’s compliance procedures and applicable Law, including United States federal and state securities laws, to make reference to communications that are not made through the “Public” portion of the Platform and
that may contain Non-Public Information.
Section 5.3 Payment of Taxes. Pay, before the same shall
become delinquent or in default, all Taxes except where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings and adequate reserves with respect thereto are maintained on the books of the Borrower or any
of its Restricted Subsidiaries or (b) the failure to make payment would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
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Section 5.4 Conduct of Business and Maintenance of Existence;
Compliance with Law. (a)(i) Preserve, renew and keep in full force and effect its organizational existence and good standing in its jurisdiction of incorporation or organization and (ii) take all reasonable action to maintain all
rights, privileges and franchises necessary or desirable in the normal conduct of its business, except, in each case, as otherwise permitted by Section 6.4 or 6.9 or, other than with respect to the organizational existence of each
of the Loan Parties, to the extent that failure to do so would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and (b) comply with all Requirements of Law, except to the extent that failure to
comply therewith would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 5.5 Maintenance of Property; Insurance. (a) Keep
all real and tangible Property and systems used, useful, or necessary in its business in good working order and condition, ordinary wear and tear excepted, except to the extent the failure to do so would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect and (b) maintain with financially sound and reputable insurance companies, insurance with respect to its properties and business against loss or damage of the kinds customarily insured
against by Persons engaged in the same or similar business, of such types and in such amounts (after giving effect to any self-insurance reasonable and customary for similarly situated Persons engaged in the same or similar businesses) as are
customarily carried under similar circumstances by such other Persons, in each case, as reasonably determined in good faith by the Borrower. As soon as reasonably practicable after the Closing Date, the Borrower agrees to use commercially
reasonable efforts to cause the Administrative Agent to be named as an additional insured or loss payee, as applicable, under all such insurance maintained by the Borrower (other than director and officer liability insurance).
Section 5.6 Inspection of Property; Books and Records; Discussions.
(a) Keep proper books of records and account in which entries which are full, true and correct, in all material respects, in conformity with GAAP shall be made of all material dealings and transactions in relation to its business and activities,
(b) upon the request of the Administrative Agent or the Required Lenders, participate in a meeting or conference call with the Administrative Agent and the Lenders once during each fiscal quarter at such time as may be agreed to by the Borrower
and the Administrative Agent (provided that the requirements of this clause (b) shall be satisfied by the Borrower providing the Lenders with access to any earnings call for such fiscal quarter with the
holders of the Capital Stock of the Borrower) and (c) permit representatives of the Administrative Agent to visit and inspect any of its properties and examine and make abstracts from any of its books and records at any reasonable time during
normal business hours and as often as may reasonably be desired (but the Administrative Agent may not have more than one visit per any twelve (12) month period except during an Event of Default), upon reasonable advance notice to the Borrower,
and to discuss the business, operations, properties and financial and other condition of the Borrower and the Borrower’s Restricted Subsidiaries with officers and employees of the Borrower and the Borrower’s Restricted Subsidiaries and with their
independent certified public accountants (and the Borrower will be given the opportunity to participate in any such discussions with such independent certified accountants) and to discuss matters relating to any Loan Party’s performance under the
Loan Documents with any appropriate officers or employees of any Loan Party, having knowledge of such matters. So long as no Event of Default has occurred and is continuing at the time of such inspection, the Borrower shall not bear the cost of
more than one such inspection per calendar year by the Administrative Agent (or its representatives); provided that in any event, no more than two such inspections shall be conducted in any calendar year if no Event of Default has
occurred and is continuing. Notwithstanding anything to the contrary in this Section 5.6, none of the Borrower and its Subsidiaries will be required to disclose, permit the inspection, examination or making copies or abstracts of, or
discussion of, any document, 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 its representatives) is
prohibited by any Requirement of Law or any binding agreement (provided that, with respect to any prohibition by any binding agreement, the Borrower shall attempt to obtain consent to such disclosure if
requested by the Administrative Agent) or (iii) is subject to attorney-client or similar privilege or constitutes attorney work product.
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Section 5.7 Notices. Promptly upon a Responsible Officer
of the Borrower obtaining knowledge of the same, give notice to the Administrative Agent of:
(a) the occurrence of any Default or Event
of Default;
(b) any dispute, claim, litigation,
investigation or proceeding (i) affecting the Borrower or any of its Subsidiaries that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, or (ii) with respect to any of the Loan Documents or any
of the transactions contemplated hereby or thereby; and
(c) any other development or event that has
had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Each notice pursuant to this Section 5.7 shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action, if
any, the Borrower or the relevant Subsidiary has taken or proposes to take with respect thereto.
Section 5.8 Environmental Laws.
(a) Except in each case to the extent the
failure to do so would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, comply with, and use commercially reasonable efforts to ensure compliance by all tenants and subtenants, if any, with, all
applicable Environmental Laws, and obtain and comply with and maintain, and use commercially reasonable efforts to ensure that all tenants and subtenants obtain and comply with and maintain, any and all material Environmental Permits.
(b) Except in each case to the extent the
failure to do so would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, conduct and complete all investigations, studies, sampling and testing, and all remedial, removal and other similar actions
required by any Governmental Authority under Environmental Laws, and promptly comply with all lawful orders and directives of all Governmental Authorities regarding Environmental Laws.
Section 5.9 Plan Compliance. Except as would not
reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, establish, maintain and operate any and all Pension Plans, Multiemployer Plans and Foreign Employee Benefit Plans (other than government-sponsored
plans) in compliance with all Requirements of Law applicable thereto and the respective requirements of the governing documents for such plans to the extent the Borrower or any Commonly Controlled Entity has the authority to establish, maintain
and operate such plans.
Section 5.10 Post-Closing Items.
(a) Take all necessary actions (if any) to
satisfy the items described on Schedule 5.10 within the period or by the date specified therein or, within such longer period of time or by such later date as the Administrative Agent may reasonably agree.
(b) Notwithstanding anything to the contrary
herein or in any other Loan Document, all representations, warranties, covenants and other provisions in this Agreement and the other Loan Documents shall take into account any time extensions provided in this Section 5.10, Schedule
5.10 and any post-closing letter agreement and in any amendment or extension agreement related thereto and any time extension provided in this Section 5.10, Schedule 5.10 or any post-closing letter agreement (or any
amendment or extension agreement related thereto) shall automatically be applied to any relevant representation, warranty, covenant or other provision in this Agreement and the other Loan Documents.
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Section 5.11 Further Assurances;
Additional Collateral, etc.
(a) From time to time execute and deliver, or
cause to be executed and delivered, such additional instruments, certificates or documents, and take all such actions, as the Administrative Agent may reasonably request in order to grant, preserve, maintain, protect, and perfect (or continue
the perfection of) (if and to the extent contemplated under the Security Documents) the validity and priority of the Liens and security interests created or intended to be created by the Security Documents. Upon the exercise by the
Administrative Agent or any other Secured Party of any power, right, privilege or remedy pursuant to this Agreement or the other Loan Documents which requires any consent, approval, recording, qualification or authorization of any Governmental
Authority, the Borrower will, if reasonably requested by the Administrative Agent, use commercially reasonable efforts to execute and deliver, or will cause the execution and delivery of, all applications, certifications, instruments and other
documents and papers that the Administrative Agent or such Secured Party may be reasonably required to obtain from the Borrower or any of its Subsidiaries for such governmental consent, approval, recording, qualification or authorization.
(b) Notwithstanding anything to the
contrary herein or in any Security Document:
(i) Liens required to be
granted from time to time pursuant to this Agreement shall be subject to exceptions and limitations set forth in the applicable Security Documents;
(ii) (A) perfection by
control will not be required with respect to assets requiring perfection through control agreements or other control arrangements, including deposit accounts, securities accounts and commodities accounts (other than control or possession of
pledged Equity Interests that constitute Collateral) and (B) no blocked account agreement, securities account control agreement or similar agreement will be required for any deposit account, securities account or commodities account; provided
that this clause (ii) shall not apply to the Cash-Trap Account;
(iii) no actions will be
required to be taken, and the Administrative Agent will not be authorized to take any action, in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction to create any security interests in assets located or titled outside
of the U.S. or to perfect or make enforceable any security interests in any such assets (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction and no non-U.S.
filings, searches or schedules);
(iv) no actions will be
required to perfect a security interest in (A) any assets subject to a certificate of title or (B) letter-of-credit rights not constituting supporting obligations of other Collateral, except in the case of each of clauses (A) and (B),
perfection actions limited solely to the filing of a UCC financing statement;
(v) no title insurance or
survey shall be required to be delivered for any Material Real Estate Asset comprised of rail lands and no landlord lien waivers, consents, estoppels or collateral access letters shall be required to be delivered in connection with any
Collateral; and
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(vi) the Borrower shall not
have any obligation to perfect or record notice of any security or Lien in any Intellectual Property created, registered or applied-for in any jurisdiction other than the United States.
Section 5.12 Use of Proceeds. Use the proceeds of the
Loans only for those purposes set forth in the recitals to this Agreement.
Section 6. NEGATIVE COVENANTS
The Borrower agrees that, so long as the Termination Conditions are not satisfied:
Section 6.1 Limitation on Restricted Payments.
(a) The Borrower shall not, and shall not
permit any of the Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay any
dividend or make any distribution on account of the Borrower’s or any Restricted Subsidiary’s Equity Interests, including any dividend or distribution payable in connection with any consolidation, amalgamation or merger other than:
(A) dividends or
distributions by the Borrower payable in Equity Interests (other than Disqualified Stock) of the Borrower or in options, warrants or other rights to purchase such Equity Interests; or
(B) dividends or
distributions by a Restricted Subsidiary so long as, in the case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly-Owned Subsidiary, the Borrower
or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution in accordance with its Equity Interests in such class or series of securities;
(ii) purchase, redeem,
defease or otherwise acquire or retire for value any Equity Interests of the Borrower, including in connection with any consolidation, amalgamation or merger;
(iii) make any principal
payment on, or redeem, repurchase, defease or otherwise acquire or retire for value in each case, prior to any scheduled repayment, sinking fund payment or maturity, any Subordinated Indebtedness, other than (x) the purchase, repurchase or
other acquisition of Subordinated Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one (1) year of the date of purchase, repurchase or acquisition,
and (y) Indebtedness of the Borrower to a Restricted Subsidiary or a Restricted Subsidiary to the Borrower or another Restricted Subsidiary; or
(iv) make any Restricted
Investment;
(v) (all such payments and
other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”).
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(b) Section 6.1(a) shall not
prohibit any of the following:
(i) the payment of any
dividend or distribution or the consummation of any redemption within sixty (60) days after the date of declaration thereof or notice of such redemption, if at the date of declaration or notice such payment would have complied with the
provisions of this Agreement;
(ii) the redemption,
repurchase or other acquisition or retirement of Subordinated Indebtedness of the Borrower or a Guarantor made by exchange for, or out of the proceeds of the substantially concurrent sale of new Indebtedness of the Borrower or a Guarantor, as
the case may be, which is incurred in compliance with Section 6.3 so long as:
(A) the principal amount
(or accreted value) of such new Indebtedness does not exceed the principal amount (or accreted value), plus any accrued and unpaid interest, of the Subordinated Indebtedness being so redeemed,
repurchased, acquired or retired, plus the amount of any premium and any tender premiums, defeasance costs or other fees and expenses incurred in connection with the issuance of such new Indebtedness,
(B) such Indebtedness has a
final scheduled maturity date equal to or later than the earlier of (x) the final scheduled maturity date of the Subordinated Indebtedness being so redeemed, repurchased, acquired or retired and (y) ninety-one (91) days following the Maturity
Date, and
(C) such Indebtedness (x)
has a Weighted Average Life to Maturity which is not less than the remaining Weighted Average Life to Maturity of the Subordinated Indebtedness being so redeemed, repurchased, acquired or retired or (y) requires no or nominal payments in cash
prior to the date that is ninety-one (91) days following the Maturity Date (other than scheduled payments prior to the date that is ninety-one (91) days following the Maturity Date not in excess of, or prior to, the scheduled payments due prior
to such date for the Indebtedness being so redeemed, repurchased, acquired or retired);
(iii) a Restricted Payment
to pay for the repurchase, retirement or other acquisition or retirement for value of common Equity Interests of the Borrower held by any future, present or former employee, member of management, officer, director or consultant (or any spouses,
successors, executors, administrators, heirs or legatees of any of the foregoing) of the Borrower or any of its Subsidiaries pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or other
agreement or arrangement or any stock subscription or shareholder agreement; provided that the aggregate Restricted Payments made under this clause (iii) may not exceed $5,000,000; provided, further, that any
such amount under this clause (iii) may be increased by an amount not to exceed:
(A) the cash proceeds from
the sale of Equity Interests (other than Disqualified Stock) of the Borrower to employees, members of management, officers, directors or consultants of the Borrower or any of its Subsidiaries that occurred after the Closing Date; plus
(B) the cash proceeds of key
man life insurance policies received by the Borrower and the Restricted Subsidiaries after the Closing Date; less
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(C) the amount of any
Restricted Payments previously made pursuant to subclauses (A) and (B) of this Section 6.1(b)(iii);
provided, further, that (x) the Borrower may elect to apply all or any portion of the aggregate increase contemplated by subclauses
(A) and (B) of this Section 6.1(b)(iii) and (y) cancellation of Indebtedness owing to the Borrower from any present or former employee, member of management, officer, director or consultant of the Borrower or any of its
Subsidiaries in connection with the repurchase of Equity Interests of the Borrower or any direct or indirect parent entity of the Borrower shall not be deemed to constitute a Restricted Payment for purposes of this covenant or any other
provision of this Agreement;
(iv) the declaration and
payment of dividends to holders of any class or series of Disqualified Stock of the Borrower or any other Restricted Subsidiary or any class or series of preferred stock of any Restricted Subsidiary issued in accordance with Section 6.3
to the extent such dividends are included in the definition of “Fixed Charges”;
(v) the declaration and
payment of dividends to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) issued by the Borrower after the Closing Date; provided that the aggregate amount of dividends paid pursuant to this
clause (v) shall not exceed the aggregate amount of cash actually received by the Borrower from the sale of such Designated Preferred Stock; provided, however, in the case of this Section 6.1(b)(v), that for the most
recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of issuance of such Designated Preferred Stock, after giving effect to such issuance on a pro forma basis, the Fixed
Charge Coverage Ratio would be equal to or greater than 2.00 to 1.00;
(vi) [reserved];
(vii) (A) repurchases of
Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants and repurchases of Equity Interests or options to purchase Equity
Interests in connection with the exercise of stock options to the extent necessary to pay applicable withholding taxes, and (B) payment of dividend equivalents pursuant to grants of Equity Interests to employees and directors of the Borrower or
any of its Restricted Subsidiaries under the Borrower’s equity incentive plans;
(viii) [reserved];
(ix) other Restricted
Payments in an aggregate amount taken together with all other Restricted Payments made pursuant to this Section 6.1(b)(ix) not to exceed $30,000,000;
(x) Restricted Payments by
the Borrower or any Restricted Subsidiary to allow the payment of cash in lieu of the issuance of fractional shares upon the exercise of options or warrants or upon the conversion or exchange of Capital Stock of any such Person;
(xi) the purchase by the
Borrower of fractional shares arising out of stock dividends, splits or combinations or business combinations;
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(xii) distributions or
payments of Securitization Fees, sales contributions and other transfers of Securitization Assets and purchases and repurchases of Securitization Assets in connection with a Qualified Securitization Financing;
(xiii) (A) payments by the
Borrower or any Restricted Subsidiary to any Permitted Investor (whether directly or indirectly) of management, consulting, monitoring, refinancing, transaction or advisory fees, and related expenses or termination fees, including payments or
reimbursements made to satisfy advances or payments made on behalf of or for the Borrower or any Restricted Subsidiary and (B) customary payments and reimbursements by the Borrower or any Restricted Subsidiary to any Permitted Investor (whether
directly or indirectly) for financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures;
(xiv) [reserved];
(xv) payment or
distributions to satisfy dissenters’ or appraisal rights pursuant to or in connection with a consolidation, merger or transfer of assets that complies with Section 6.9;
(xvi) Restricted Payments
made in connection with the Series B GCM Securities, only to the extent required under the terms thereof as in effect on the Closing Date;
(xvii) Restricted Payments
made in connection with the Rail Co. Equity Securities (subject to Section 6.10); and
(xviii) (A) any Restricted
Payment in exchange for, or out of the proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary) of, Equity Interests of the Borrower (other than any Disqualified Stock) (“Refunding Capital Stock”) and (B) if
immediately prior to the redemption, repurchase, retirement or other acquisition of any Equity Interests of the Borrower (“Retired Capital Stock”), the Fixed Charge Coverage Ratio would be equal to or greater than 2.00 to 1.00, the
declaration and payment of dividends on the Refunding Capital Stock in an aggregate amount per year no greater than the aggregate amount of dividends per annum that was declarable and payable on such Retired Capital Stock immediately prior to
such retirement.
provided, however, that at the time of, and after giving effect to, any Restricted Payment permitted under clauses (iv), (v)
and (ix) of this Section 6.1(b), no Event of Default shall have occurred and be continuing or would occur as a consequence thereof.
(c) [Reserved].
(d) For purposes of this Section 6.1,
if any Investment or Restricted Payment (or a portion thereof) would be permitted pursuant to one or more provisions described in this Section 6.1 and/or one or more of the exceptions contained in the definition of “Permitted
Investments,” the Borrower may divide and classify such Investment or Restricted Payment (or a portion thereof) in any manner that complies with this covenant and may later divide and reclassify any such Investment or Restricted Payment so long
as the Investment or Restricted Payment (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification.
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Section 6.2 Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries.
(a) The Borrower shall not, and shall not
permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction on the ability of any such Restricted Subsidiary to:
(i) (A) pay dividends or
make any other distributions to the Borrower or any Restricted Subsidiary on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits; or
(B) pay any Indebtedness
owed to the Borrower or any Restricted Subsidiary;
(ii) make loans or
advances to the Borrower or any Restricted Subsidiary; or
(iii) sell, lease or
transfer any of its properties or assets to the Borrower or any Restricted Subsidiary that is a Guarantor.
(b) The restrictions in Section 6.2(a)
shall not apply to encumbrances or restrictions existing under or by reason of:
(i) contractual
encumbrances or restrictions in effect on the Closing Date;
(ii) the Demand Notes and
the Refinancing Notes;
(iii) purchase money
obligations for property acquired in the ordinary course of business and lease obligations (including Capitalized Lease Obligations and any encumbrance or restriction pursuant to any arrangement entered into in the ordinary course of business
providing for the lease or rental by a customer of the Borrower or any Restricted Subsidiary, as the case may be, from the Borrower or any such Restricted Subsidiary, as lessor, of any assets or personal property and any amendment, extension,
renewal, modification or combination of any of the foregoing, including the sale of assets to lease customers upon termination any of the foregoing pursuant to the terms thereof) that impose restrictions of the nature discussed in Section
6.2(a)(iii) above on the property so acquired;
(iv) applicable law or any
applicable rule, regulation or order;
(v) any agreement or
other instrument of a Person acquired by the Borrower or any Restricted Subsidiary in existence at the time of such acquisition (but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person so acquired and its Subsidiaries, other than the Person and its Subsidiaries, or the property or assets of the Person, so acquired;
(vi) contracts for the sale
of assets or the sale of a Subsidiary, including customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such
Subsidiary that impose restrictions on the assets to be sold;
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(vii) Secured Indebtedness
otherwise permitted to be incurred pursuant to Sections 6.3 and 6.6 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(viii) restrictions on cash
(or Cash Equivalents) or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(ix) [reserved];
(x) customary provisions
in joint venture agreements and other similar agreements relating solely to such joint venture;
(xi) customary provisions
contained in leases and other agreements entered into in the ordinary course of business;
(xii) customary provisions
contained in licenses or sub-licenses of Intellectual Property and software or other general intangibles entered into in the ordinary course of business;
(xiii) restrictions or
conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided
that such agreement prohibits the encumbrance solely of the property or assets of the Borrower or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and does not
extend to any other asset or property of the Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(xiv) any such encumbrance or
restriction pursuant to an agreement governing Indebtedness, Disqualified Stock or preferred stock incurred pursuant to Section 6.3, which encumbrances or restrictions are, in the good faith judgment of the Borrower not materially more
restrictive, taken as a whole, than customary provisions in comparable financings and that the management of the Borrower determines, at the time of such financing, shall not materially impair the Borrower’s ability to make payments as required
under the Loan Documents;
(xv) restrictions created
in connection with any Qualified Securitization Financing that, in the good faith determination of the Borrower, are necessary or advisable to effect such Qualified Securitization Financing;
(xvi) the Series B GCM
Securities and the Rail Co. Equity Securities; and
(xvii) any encumbrances or
restrictions of the type referred to in clauses (i), (ii) and (iii) of Section 6.2(a) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or
refinancings of the contracts, instruments or obligations referred to in clauses (i) through (xvi) of this Section 6.2(b); provided that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancing are, in the good faith judgment of the Borrower, no more restrictive, taken as a whole, with respect to such encumbrance and other restrictions than those prior to such amendment,
modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
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Section 6.3 Limitation on Incurrence of Indebtedness and Issuance
of Disqualified Stock and Preferred Stock.
(a) The Borrower shall not, and shall not
permit any Restricted Subsidiary to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”)
with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower shall not issue any shares of Disqualified Stock and shall not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or preferred stock.
(b) The provisions of Section 6.3(a)
shall not apply to:
(i) the incurrence of
Indebtedness of the Borrower or any of the Guarantors under revolving Credit Facilities in an aggregate amount at any time outstanding pursuant to this Section 6.3(b)(i) not to exceed $50,000,000;
(ii) the incurrence by the
Borrower or any Restricted Subsidiary of (A) Indebtedness under this Agreement, (B) the Series B GCM Securities; (C) the Rail Co. Equity Securities, (D) the Demand Notes and (E) the Refinancing Notes;
(iii) Indebtedness of the
Borrower or the Restricted Subsidiaries in existence on the Closing Date, plus interest accruing thereon;
(iv) Indebtedness in
connection with any ordinary course letter of credit facilities, purchase money indebtedness, Capital Lease Obligations, sale-leaseback transactions and equipment financings in an aggregate principal amount not exceeding $50,000,000;
(v) Indebtedness incurred
by the Borrower or any Restricted Subsidiary constituting reimbursement obligations with respect to letters of credit and bank guarantees issued, or deposits made, in the ordinary course of business, including letters of credit in respect of
workers’ compensation claims, health, disability or other benefits to employees or former employees or their families or property, casualty or liability insurance or self-insurance, and letters of credit in connection with the maintenance of,
or pursuant to the requirements of, environmental or other permits or licenses from governmental authorities, or other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims; provided that
upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within thirty (30) days following such drawing or incurrence;
(vi) Indebtedness arising
from agreements of the Borrower or a Restricted Subsidiary providing for indemnification, adjustment of purchase price, earnouts or similar obligations, in each case, incurred or assumed in connection with the disposition of any business,
assets or a Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(vii) Indebtedness of the
Borrower to a Restricted Subsidiary; provided that, other than in the case of (a) intercompany liabilities incurred in the ordinary course of business in connection with the cash management operations of the Borrower and the Restricted
Subsidiaries and (b) intercompany lease obligations, any such Indebtedness owing to a Restricted Subsidiary that is not a Guarantor is subordinated in right of payment to the Obligations; provided, further, that any subsequent
issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such Indebtedness (except to the Borrower or another
Restricted Subsidiary) shall be deemed, in each case, to be an incurrence of such Indebtedness not permitted by this Section 6.3(b)(vii);
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(viii) Indebtedness of a
Restricted Subsidiary to the Borrower or another Restricted Subsidiary; provided that, other than in the case of (A) intercompany current liabilities incurred in the ordinary course of business in connection with the cash management
operations of the Borrower and its subsidiaries to finance working capital needs of the Restricted Subsidiaries and (B) intercompany lease obligations, if a Guarantor incurs such Indebtedness to a Restricted Subsidiary that is not a Guarantor,
such Indebtedness is subordinated in right of payment to the Guarantee of such Guarantor; provided, further, that any subsequent transfer of any such Indebtedness (except to the Borrower or another Restricted Subsidiary) shall
be deemed in each case to be an incurrence of such Indebtedness not permitted by this Section 6.3(b)(viii);
(ix) shares of preferred
stock of a Restricted Subsidiary issued to the Borrower or another Restricted Subsidiary; provided that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing
to be a Restricted Subsidiary or any other subsequent transfer of any such shares of preferred stock (except to the Borrower or another Restricted Subsidiary) shall be deemed in each case to be an issuance of such shares of preferred stock not
permitted by this Section 6.3(b)(ix);
(x) Hedging Obligations
(excluding Hedging Obligations entered into for speculative purposes) and any guarantees thereof;
(xi) obligations in respect
of self-insurance and obligations in respect of performance, bid, appeal and surety bonds and completion guarantees and guarantees of indemnification obligations provided by the Borrower or any Restricted Subsidiary in the ordinary course of
business or consistent with past practice or industry practice;
(xii) [reserved];
(xiii) (A) any guarantee by
the Borrower of Indebtedness or other obligations of any Restricted Subsidiary so long as the incurrence of such Indebtedness incurred by such Restricted Subsidiary is permitted under the terms of this Agreement, or (B) any guarantee by a
Restricted Subsidiary of Indebtedness of the Borrower or another Restricted Subsidiary so long as the incurrence of such Indebtedness incurred by the Borrower or such other Restricted Subsidiary is permitted under the terms of this Agreement;
(xiv) the incurrence by the
Borrower or any Restricted Subsidiary of Indebtedness, Disqualified Stock or preferred stock which serves to extend, replace, refund, refinance, renew or defease any Indebtedness, Disqualified Stock or preferred stock incurred as permitted
under Section 6.3(a) and clauses (ii), (iii), (xiv), (xv) and (xxiv) of this Section 6.3(b) or any Indebtedness, Disqualified Stock or preferred stock issued to extend, replace, refund,
refinance, renew or defease such Indebtedness, Disqualified Stock or preferred stock including additional Indebtedness, Disqualified Stock or preferred stock incurred to pay premiums (including tender premiums), defeasance costs, underwriting
discounts, other costs and expenses and fees in connection therewith (the “Refinancing Indebtedness”) prior to its respective maturity; so long as such Refinancing Indebtedness:
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(A) solely in the case of
Indebtedness incurred pursuant to Section 6.3(b)(iii) or any Refinancing Indebtedness of such Indebtedness, (x) has a Weighted Average Life to Maturity which is not less than the remaining Weighted Average Life to Maturity of the
Indebtedness being so extended, replaced, refunded, refinanced, renewed or defeased or (y) requires no or nominal payments in cash prior to the date that is ninety-one (91) days following the Maturity Date (other than scheduled payments prior
to the date that is ninety-one (91) days following the Maturity Date not in excess of, or prior to, the scheduled payments due prior to such date for the Indebtedness being so extended, replaced, refunded, refinanced, renewed or defeased);
(B) to the extent such
Refinancing Indebtedness extends, replaces, refunds, refinances, renews or defeases (x) Indebtedness subordinated in right of payment to the Obligations, such Refinancing Indebtedness is subordinated in right of payment to the Obligations at
least to the same extent as the Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased or (y) Disqualified Stock or preferred stock, such Refinancing Indebtedness must be Disqualified Stock or preferred stock,
respectively; and
(C) shall not include (x)
Indebtedness, Disqualified Stock or preferred stock of a Subsidiary that is not a Guarantor that refinances Indebtedness, Disqualified Stock or preferred stock of the Borrower or (y) Indebtedness, Disqualified Stock or preferred stock of a
Subsidiary that is not a Guarantor that refinances Indebtedness, Disqualified Stock or preferred stock of a Guarantor.
(xv) [reserved]
(xvi) Indebtedness arising
from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within five (5)
Business Days of its incurrence;
(xvii) any increase in the
aggregate amount of all outstanding Series B GCM Securities or Rail Co. Series A Preferred Units in the form of accrued and accumulated dividends pursuant to the Series B GCM Certificate of Designations or the Rail Co. LLCA, respectively;
(xviii) [reserved];
(xix) Indebtedness of the
Borrower or any Restricted Subsidiary consisting of (x) the financing of insurance premiums or (y) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(xx) Indebtedness of the
Borrower or any Restricted Subsidiary arising in connection with trade creditors or customers or endorsements of instruments for deposit, in each case, in the ordinary course of business;
(xxi) Indebtedness of the
Borrower or any Restricted Subsidiary pursuant to any Qualified Securitization Financing;
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(xxii) Indebtedness consisting
of Indebtedness from the repurchase, retirement or other acquisition or retirement for value by the Borrower of common stock (or options, warrants or other rights to acquire common stock) of the Borrower from any future, current or former
officer, director, manager, employee or consultant (or any spouses, successors, executors, administrators, heirs or legatees of any of the foregoing) of the Borrower or any of its Subsidiaries or their authorized representatives to the extent
described in Section 6.1(b)(iii);
(xxiii) Indebtedness of the
Borrower or any Restricted Subsidiary undertaken in connection with cash management and related activities, including netting services, automatic clearing house arrangements, employees’ credit or purchase cards, overdraft protections and
similar arrangements, with respect to the Borrower, any Subsidiary or joint venture in the ordinary course of business;
(xxiv) Indebtedness of the
Borrower or any Restricted Subsidiary borrowed from or guaranteed by any federal, state or local governmental entities or agencies incurred for investment in, or the purchase, lease, development, construction, maintenance or improvement of
property (real or personal) or equipment that is used or useful in, a Similar Business;
(xxv) [reserved];
(xxvi) [reserved];
(xxvii) [reserved]; and
(xxviii) Permitted Indebtedness.
(c) For purposes of determining compliance
with this Section 6.3, in the event that an item of Indebtedness, Disqualified Stock or preferred stock meets the criteria of more than one of the categories of permitted Indebtedness, Disqualified Stock or preferred stock described in
clauses (i) through (xxviii) of Section 6.3(b) or is entitled to be incurred pursuant to Section 6.3(a), the Borrower, in its sole discretion, may classify or reclassify such item of Indebtedness in any manner
that complies with this covenant and the Borrower may divide and classify an item of Indebtedness in more than one of the types of Indebtedness described in Sections 6.3(a) and (b). Accrual of interest, the accretion of
accreted value, the payment of interest in the form of additional Indebtedness, Disqualified Stock or preferred stock and the reclassification of any operating lease as a Capitalized Lease Obligation as a result of (i) the modification or
extension of the term of such lease or (ii) changes in GAAP that are not a result of a modification or extension pursuant to clause (i) shall not be deemed to be an incurrence of Indebtedness, Disqualified Stock or preferred stock for
purposes of this Section 6.3.
(d) For purposes of determining compliance
with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in
effect on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a
foreign currency, and such refinancing would cause the applicable dollar denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such dollar-denominated restriction
shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (i) the principal amount of such Indebtedness being refinanced plus (ii) the
aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing.
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(e) The principal amount of any Indebtedness
incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is
denominated that is in effect on the date of such refinancing.
(f) The Borrower shall not, and shall not
permit any Guarantor to, directly or indirectly, incur any Indebtedness (including Acquired Indebtedness) that is subordinated or junior in right of payment to any Indebtedness of the Borrower or such Guarantor unless such Indebtedness is
expressly subordinated in right of payment to the Obligations or such Guarantor’s Guarantee to the extent and in the same manner as such Indebtedness is subordinated in right of payment to other Indebtedness of the Borrower or such Guarantor,
as the case may be.
(g) The Borrower shall not permit any
Restricted Subsidiary or intermediate holding company to, directly or indirectly, incur any Indebtedness for borrowed money, except for Permitted Indebtedness.
Section 6.4 Asset Sales.
(a) The Borrower shall not, and shall not
permit any Restricted Subsidiary to, cause, make or suffer to exist an Asset Sale unless:
(i) the Borrower or such
Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the Fair Market Value (at the time of contractually agreeing to such Asset Sale) of the assets or Equity Interests sold or
otherwise disposed of; and
(ii) except in the case of
a Permitted Asset Swap, at least 75.0% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:
(A) any liabilities (as
shown on the Borrower’s, or such Restricted Subsidiary’s most recent internally available balance sheet or in the notes thereto) of the Borrower or any Restricted Subsidiary (other than liabilities that are (1) contingent, (2) by their terms
subordinated to the Obligations in contractual right of payment, (3) with respect to a sale, conveyance, transfer or disposition of Collateral, unsecured liabilities of the Borrower or (4) with respect to a sale, conveyance, transfer or
disposition of Collateral, liabilities that are secured by Liens on the Collateral that rank junior to the Liens securing the Obligations) that are assumed by the transferee of any such assets and as a result of which the Borrower and its
Restricted Subsidiaries are no longer obligated with respect to such liabilities or are indemnified against further liabilities;
(B) any securities, notes
or other obligations or assets received by the Borrower or a Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash
Equivalents received) within 90 days following the closing of such Asset Sale;
(C) any Capital Stock or
assets, so long as such receipt of Capital Stock or assets would qualify under Section 6.4(b)(ii),
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shall be deemed to be cash or Cash Equivalents for purposes of this provision and for no other purpose.
(b) The Net Proceeds of any Asset Sale shall
be applied in accordance with Section 2.11(a). To the extent that any Net Proceeds constitute Refused Proceeds, the Borrower or such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale:
(i) [reserved];
(ii) to make an investment
in (A) any one or more businesses, (B) capital expenditures or (C) acquisitions of other property or long-term assets that, in each of clauses (A), (B) and (C), are used or useful in a Similar Business;
(iii) to reduce Equal
Priority Obligations of the Borrower or any Guarantor, other than Indebtedness owed to the Borrower or any Restricted Subsidiary; provided that the acquisition of Indebtedness of a Guarantor by the Borrower shall constitute a reduction
in such Indebtedness; or
(iv) any combination of
the foregoing.
(c) Notwithstanding the foregoing, to the
extent that repatriation to the United States of America of any or all the Net Proceeds of any Asset Sale by a Foreign Subsidiary (x) is prohibited or delayed by applicable local law or (y) would have a material adverse tax consequence (taking
into account any foreign tax credit or other net benefit actually realized in connection with such repatriation that would not otherwise be realized), as determined by the Borrower in its sole discretion exercised in good faith, the portion of
such Net Proceeds so affected shall not be required to be applied in compliance with this covenant, and such amounts may be retained by the applicable Foreign Subsidiary; provided that clause (x) of this Section 6.4(c)
shall apply to such amounts for so long, but only for so long, as the applicable local law shall not permit repatriation to the United States of America (the Borrower hereby agreeing to use commercially reasonable efforts to cause the
applicable Foreign Subsidiary to take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation), and if such repatriation of any of such affected Net
Proceeds is permitted under the applicable local law and is not subject to clause (y) of this Section 6.4(c), then such repatriation shall be promptly effected and such repatriated Net Proceeds shall be applied (net of
additional taxes payable or reserved against as a result thereof, to the extent not already taken into account under the definition of “Net Proceeds”) in compliance with this covenant. The time periods set forth in this covenant shall not
start until such time as the Net Proceeds may be repatriated (whether or not such repatriation actually occurs).
Section 6.5 Transactions with Affiliates.
(a) The Borrower shall not, and shall not
permit any Restricted Subsidiary to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Borrower (each of the foregoing, an “Affiliate Transaction”) involving aggregate payments or consideration in excess of $10,000,000,
unless:
(i) such Affiliate
Transaction is on terms that are not materially less favorable to the Borrower or the relevant Restricted Subsidiary at the time of such transaction or at the time of the execution of the agreement providing therefor than those that would have
been obtained in a comparable transaction by the Borrower or such Restricted Subsidiary with an unrelated Person; and
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(ii) with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving aggregate payments or consideration in excess of $50,000,000, the Borrower delivers to the Administrative Agent a resolution adopted by a majority of the disinterested
directors on the Board of Directors of the Borrower approving such Affiliate Transaction.
(b) Section 6.5(a) shall not apply to
the following:
(i) transactions between or
among the Borrower and/or any of the Restricted Subsidiaries and/or any entity that becomes a Restricted Subsidiary as a result of such transaction;
(ii) Restricted Payments
permitted by Section 6.1 and the definition of “Permitted Investments”;
(iii) payment of reasonable
and customary fees and reasonable out-of-pocket costs and compensation (including salaries, bonuses and equity) paid to, and reimbursement of expenses and indemnities provided on behalf of, officers, directors, employees or consultants of the
Borrower or any Restricted Subsidiary;
(iv) transactions in which
the Borrower or any Restricted Subsidiary, as the case may be, delivers to the Administrative Agent a letter from an Independent Financial Advisor stating that such transaction is fair to the Borrower or such Restricted Subsidiary from a
financial point of view or meets the requirements of Section 6.5(a)(i);
(v) payments or loans (or
cancellation of loans) to employees or consultants of the Borrower or any Restricted Subsidiary which are approved by the Borrower or the applicable Restricted Subsidiary in good faith;
(vi) any agreement as in
effect as of the Closing Date, or any amendment thereto (so long as any such amendment, taken as a whole, is no less favorable in any material respect to the Borrower and its Restricted Subsidiaries than the agreement in effect on the Closing
Date (as determined by the Borrower in good faith));
(vii) the existence of, or
the performance by the Borrower or any of its Restricted Subsidiaries of its obligations under the terms of, any limited liability company, limited partnership or other Organizational Document or joint venture, investors or shareholders
agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Closing Date and any similar agreements which it may enter into thereafter; provided that the existence of,
or the performance by the Borrower or any Restricted Subsidiary of obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Closing Date shall only be permitted by this Section
6.5(b)(vii) to the extent that the terms of any such amendment or new agreement, taken as a whole, is not disadvantageous to the Lenders in any material respect compared to the agreement in effect on the date of this Agreement (as
determined by the Borrower in good faith), or is otherwise customary;
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(viii) transactions with
customers, clients, suppliers, trade creditors, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Agreement;
(ix) the issuance of Equity
Interests (other than Disqualified Stock) of the Borrower to any Affiliate of the Borrower and other customary rights in connection therewith;
(x) transactions or
payments pursuant to any employee, officer or director compensation (including bonuses) or benefit plans, employment agreements, severance agreement, indemnification agreements or any similar arrangements entered into in the ordinary course of
business or approved by the Borrower;
(xi) transactions in the
ordinary course with joint ventures in which the Borrower or a Subsidiary of the Borrower holds or acquires an ownership interest (whether by way of Capital Stock or otherwise) so long as the terms of any such transactions are no less favorable
to the Borrower or such Subsidiary participating in such joint ventures than they are to other joint venture partners, in each case as determined by the Borrower in good faith;
(xii) transactions with a
Person that is an Affiliate of the Borrower solely because the Borrower owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(xiii) transactions involving
Securitization Assets, or participations therein, in connection with any Qualified Securitization Financing;
(xiv) any Indebtedness from
time to time owing by the Borrower or any Restricted Subsidiary to the Borrower or any Restricted Subsidiary;
(xv) any servicing and/or
management agreements or arrangements in effect on the Closing Date or any amendment, modification or supplement to such servicing and/or management agreements or arrangements or replacement thereof or any substantially similar servicing and/or
management agreement or arrangement entered into after the Closing Date;
(xvi) any transaction with an
Affiliate of the Borrower where the only consideration paid by the Borrower or any Restricted Subsidiary is the issuance of Equity Interests (other than Disqualified Stock);
(xvii) the licensing or
sub-licensing of Intellectual Property and software or other general intangibles in the ordinary course of business;
(xviii) investments by Fortress
or its Affiliates in securities of the Borrower or any Restricted Subsidiary so long as the investment is being or has been offered generally to other unaffiliated investors on the same or more favorable terms or the securities are acquired in
market transactions;
(xix) any transactions
(including any sale and leaseback transactions or other lease obligations) by and among Fortress or its Affiliates and the Borrower and its Restricted Subsidiaries, as the case may be, so long as the terms of such transaction are not materially
less favorable to the Borrower or the relevant Restricted Subsidiary at the time of such transaction or at the time of the execution of the agreement providing therefor than those that would be obtained in a comparable transaction by the
Borrower or such Subsidiary with a non-Affiliate of Fortress; and
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(xx) (A) payments by the
Borrower or any Restricted Subsidiary to any Permitted Investor (whether directly or indirectly) of management, consulting, monitoring, refinancing, transaction or advisory fees, and related expenses or termination fees, including payments or
reimbursements made to satisfy advances or payments made on behalf of or for the Borrower or any Restricted Subsidiary and (B) customary payments and reimbursements by the Borrower or any Restricted Subsidiary to any Permitted Investor (whether
directly or indirectly) for financial advisory, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures.
Section 6.6 Liens. The Borrower shall not, and shall
not permit any Restricted Subsidiary to, create, incur, assume or otherwise cause or suffer to exist or become effective any Lien that secures obligations under any Indebtedness of the Borrower or any Guarantor (the “Initial Lien”) of any
kind upon any of its property or assets, now owned or hereafter acquired unless (a) in the case of any Initial Lien on any Collateral, such Initial Lien is a Permitted Lien and (b) in the case of any Initial Lien on any asset or property that is
not Collateral, (i) the Obligations are equally and ratably secured with (or on a senior basis to, in the case such Initial Lien secures any Subordinated Indebtedness) the Obligations secured by such Initial Lien until such time as such
Obligations are no longer secured by such Initial Lien or (ii) such Initial Lien is a Permitted Lien.
Any Lien created for the benefit of the Lenders pursuant to clause (b)(i) of the preceding paragraph shall provide by its terms that such Lien shall be automatically and unconditionally
released and discharged upon the release and discharge of the Initial Lien that gave rise to the obligation to secure the Obligations. In addition, in the event that an Initial Lien is or becomes a Permitted Lien, the Borrower may, at its option
and without consent from any Lender, elect to release and discharge any Lien created for the benefit of the Lenders pursuant to the preceding paragraph in respect of such Initial Lien.
With respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the incurrence of such Indebtedness, such Lien shall also be permitted to secure any
Increased Amount of such Indebtedness. The “Increased Amount” of any Indebtedness shall mean any increase in the amount of such Indebtedness in connection with any accrual of interest, the accretion of accreted value, the amortization of
original issue discount, the payment of interest in the form of additional Indebtedness with the same terms, accretion of original issue discount or liquidation preference and increases in the amount of Indebtedness outstanding solely as a result
of fluctuations in the exchange rate of currencies or increase in the value of property securing Indebtedness.
Section 6.7 Limitation on Guarantees and Incurrence of
Indebtedness by Restricted Subsidiaries.
(a) The Borrower shall not permit any of its
Restricted Subsidiaries to guarantee any Indebtedness for borrowed money of the Borrower (other than Standard Securitization Undertakings in connection with a Qualified Securitization Financing) in an aggregate principal amount in excess of
$100,000,000 unless either (A) such Restricted Subsidiary is a Guarantor or (B) such Restricted Subsidiary:
(i) within forty-five (45)
days of the date on which it guarantees such debt, executes and delivers to the Administrative Agent a Guarantee, the form of which is attached as Exhibit E hereto (or a joinder thereto), pursuant to which such Restricted Subsidiary
shall guarantee on a senior basis all of the Obligations a joinder to the Security Agreement and other Security Documents, if applicable, and takes all actions reasonably required to perfect the liens created thereunder; and
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(ii) delivers to the
Administrative Agent an Officer’s Certificate and an Opinion of Counsel (which may contain customary exceptions) that such Guarantee (or joinder thereto) has been duly authorized, executed and delivered by such Restricted Subsidiary and
constitutes legal, valid, binding and enforceable obligations of such Restricted Subsidiary.
(b) If the Borrower otherwise elects to have
a Restricted Subsidiary that is a Domestic Subsidiary become a Guarantor, then, in each such case, the Borrower shall cause such Restricted Subsidiary to execute and deliver to the Administrative Agent a Guarantee, the form of which is attached
as Exhibit E hereto (or a joinder thereto), pursuant to which such Restricted Subsidiary shall guarantee all of the Obligations, along with an Officer’s Certificate and an Opinion of Counsel, on the terms set forth in Section
6.7(a)(ii), a joinder to the Security Agreement and other Security Documents, if applicable, and take all actions reasonably required to perfect the liens created thereunder.
(c) Each Guarantee shall be limited to an
amount not to exceed the maximum amount that can be guaranteed by that Restricted Subsidiary without rendering the Guarantee, as it relates to such Restricted Subsidiary, voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer or similar laws affecting the rights of creditors generally.
(d) Each Guarantee shall be released upon
the terms and in accordance with Section 9.20.
Section 6.8 [Reserved].
Section 6.9 Amalgamation, Merger, Consolidation or Sale of All or
Substantially All Assets.
(a) The Borrower may not consummate a
Division as the Dividing Person or consolidate with, amalgamate or merge into (whether or not the Borrower is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all its properties or
assets, taken as a whole, in one or more related transactions, to any Person unless:
(i) (A) the Borrower shall
be the surviving Person or the Person formed by or surviving any such consolidation, amalgamation or merger (if other than the Borrower) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is
a Person organized or existing under the laws of a Permitted Jurisdiction (such Person, as the case may be, being herein called the “Successor Company”) or (B) in the case of a Division where the Borrower is the Dividing Person, each
Division Successor shall remain or become a co-borrower of the Loans;
(ii) (A) the Successor
Company, if other than the Borrower, expressly assumes all the obligations of the Borrower under the Loan Documents, including any Equal Priority Intercreditor Agreement, any Junior Priority Intercreditor Agreement and the applicable Security
Documents pursuant to supplements, joinders to the applicable Security Documents, any Equal Priority Intercreditor Agreement, any Junior Priority Intercreditor Agreement or other customary documents or instruments, as applicable, or (B) in the
case of a Division where the Borrower is the Dividing Person, each Division Successor shall remain or become a co-borrower of the Loans pursuant to supplemental indentures, joinders to the applicable Security Documents, any Equal Priority
Intercreditor Agreement, any Junior Priority Intercreditor Agreement or other customary documents or instruments, as applicable;
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(iii) immediately after such transaction no Event of Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as if such
transaction had occurred at the beginning of the applicable four-quarter period:
(A) the Fixed Charge Coverage Ratio for the Successor Company or the Division
Successors, as applicable, and the Restricted Subsidiaries would be equal to or greater than 2.00 to 1.00; or
(B) the Fixed Charge Coverage Ratio for the Successor Company or the Division
Successors, as applicable, and the Restricted Subsidiaries would be equal to or greater than such ratio for the Borrower and the Restricted Subsidiaries immediately prior to such transaction;
(v) each Guarantor, unless it is the other party to the transactions described in Section 6.9(a)(i) through (iv), in which case Section 6.9(b)(ii)
shall apply, shall have by written agreement confirmed that its Guarantee shall apply to such Person’s Obligations; and
(vi) the Borrower, such Successor Company or Division Successors, as applicable,
shall have delivered to the Administrative Agent an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger, sale, assignment, transfer, lease, conveyance or disposition and such
supplemental indentures, amendments, supplements or other instruments, if any, comply with this Agreement.
The Successor Company or Division Successor shall succeed to, and be substituted for, the Borrower under this Agreement and the other
Loan Documents, and the Borrower shall automatically be released and discharged from its obligations under the Loan Documents. Notwithstanding the foregoing clauses (iii) and (iv),
(vii) the Borrower may consolidate with, amalgamate or merge into or sell, assign,
transfer, lease, convey or otherwise dispose of all or part of its properties and assets to any Guarantor;
(viii) any Restricted Subsidiary may consolidate with, amalgamate or merge into or
sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Borrower;
(ix) the Borrower may consolidate with, amalgamate or merge into with an Affiliate
of the Borrower solely for the purpose of reincorporating or reorganizing the Borrower in any Permitted Jurisdiction so long as the amount of Indebtedness of the Borrower and the Restricted Subsidiaries is not increased thereby (unless such
increase is permitted by this Agreement);
(x) the Borrower may convert into a corporation, partnership, limited
partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Borrower or the laws of any Permitted Jurisdiction; and
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(b) Subject to Section 9.20, each Guarantor shall not, and the Borrower shall
not permit any Guarantor to (i) consummate a Division as the Dividing Person or (ii) consolidate with, amalgamate or merge into (whether or not such Guarantor is the surviving
Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all its properties or assets, taken as a whole, in one or more related transactions, to any Person (other than the Borrower or a Guarantor)
unless, in the case of this clause (b)(ii):
(A) (1) such Guarantor is the surviving Person or the Person formed by or
surviving any such consolidation, amalgamation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a Person organized or existing under the
laws of a Permitted Jurisdiction (such Guarantor or such Person, as the case may be, being herein called the “Successor Person”);
(2) the Successor Person, if other than such Guarantor, expressly assumes all
the obligations of such Guarantor under the Loan Documents and such Guarantor’s Guarantee, any Equal Priority Intercreditor Agreement, any Junior Priority Intercreditor Agreement and the applicable Security Documents pursuant to
supplemental indentures, joinders to the applicable Security Documents, any Equal Priority Intercreditor Agreement, any Junior Priority Intercreditor Agreement or other customary documents or instruments, as applicable;
(4) the Borrower shall have delivered to the Administrative Agent an Officers’
Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger, sale, assignment, transfer, lease, conveyance or disposition and such supplemental indentures, amendments, supplements or other instruments,
if any, comply with this Agreement; and
(c) Subject to Section 9.20, the Successor Person shall succeed to, and be substituted for, such Guarantor
under the Loan Documents and such Guarantor’s Guarantee, and such Guarantor shall automatically be released and discharged from its obligations under the Loan Documents and such Guarantee. Notwithstanding the foregoing Section 6.9(b),
(i) a Guarantor may (x) consolidate with, amalgamate or merge into or sell,
assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to the Borrower or any Guarantor or (y) dissolve if such Guarantor sells, assigns, transfers, leases, conveys or otherwise disposes of all or
substantially all its properties and assets to another Person in compliance with Section 6.4, and, after giving effect to such sale, assignment, transfer, lease, conveyance or disposition and prior to such dissolution, has no or a
de minimis amount of assets;
(ii) any Restricted Subsidiary may consolidate with, amalgamate or merge into or
sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to any Guarantor;
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(iii) a Guarantor may consolidate with, amalgamate or merge into an Affiliate of
the Borrower solely for the purpose of reincorporating or reorganizing such Guarantor in any Permitted Jurisdiction so long as the amount of Indebtedness of the Borrower and the Restricted Subsidiaries is not increased thereby (unless such
increase is permitted by this Agreement);
(iv) a Guarantor may convert into a corporation, partnership, limited partnership,
limited liability company or trust organized or existing under the laws of the jurisdiction of organization of such Guarantor or the laws of any Permitted Jurisdiction;
(vi) a Guarantor that is an LLC may consummate a Division as the Dividing Person if, immediately upon the
consummation of the Division, the assets of the applicable Dividing Person are held by one or more Guarantors at such time.
Section 6.10 Rail Co. Equity Securities.
(a) Rail Co. shall not pay any cash distributions in respect of the Rail Co. Equity Securities: provided, however, for any taxable
period ending after the Closing Date for which Rail Co. is a partnership for U.S. federal income tax purposes, Rail Co. may make distributions to any holder of Rail Co. Series A Preferred Units in an aggregate amount in such taxable period
not to exceed the product of (1) the taxable income of Rail Co. allocated to such holder for such taxable period, reduced (but not below zero) by the total taxable losses of Rail Co. allocated to such holder in prior taxable periods ending
after the Closing Date to the extent such taxable losses (i) have not reduced taxable income of Rail Co. allocated to such holder for a prior taxable period and (ii) can be utilized (taking into account applicable limitations on
deducibility) to offset against the taxable income of Rail Co. for the taxable period in question, calculated by assuming that such holder’s only items of income, gain, loss, and deduction for all relevant taxable periods are items
allocated to it by Rail Co., and (2) the maximum combined U.S. federal, state and local and foreign income tax rate that is applicable to such holder (or its direct or indirect partners or members, as applicable) in respect of the taxable
income allocated to it during such taxable period, taking into account the deductibility of state and local income tax for U.S. federal income tax purposes (to the extent permitted) and taking into account the character of the taxable
income in question; provided that any distributions permitted pursuant to this clause (a) shall be reduced by the amount of any U.S. federal, state, local and foreign income taxes paid or payable by Rail Co. directly to relevant
Governmental Authorities on behalf of such holder; provided further that the amount of distributions permitted pursuant to this clause (a) in no event shall be less than the amount of Tax Distributions (as defined in the Rail Co. LLCA)
required under Section 3.1(g) of the Rail Co. LLCA (as determined by the Borrower in good faith).
(b) The Borrower shall not, and shall not permit any of the Restricted Subsidiaries to, amend or modify the terms of the Rail Co.
Equity Securities to the extent that any such amendment or modification, taken as a whole, would be materially adverse to the Lenders.
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Section 7.1 Events of Default.
(i) the Borrower shall fail to pay any principal of any Loan when due in accordance with the terms hereof; or
the Borrower shall fail to pay any interest on any Loan, or any other amount payable hereunder or under any other Loan Document, within thirty (30) days after any such interest or other amount becomes due in accordance with the terms hereof
or thereof; or
(ii) any representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document
or that is contained in any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(iii) any Loan Party shall default in the observance or performance of any agreement contained in clause (i)
of Section 5.4(a) (with respect to the Borrower only), Section 5.7(a) or Section 6; or
(iv) any Loan Party shall default in the observance or performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided in clauses (i) through (iii) of this Section 7.1(a)), and such default shall continue unremedied for a period of thirty (30) days after the earlier of (A) the date
on which a Responsible Officer of any Loan Party obtains knowledge of such default and (B) the date on which the Borrower has received written notice of such default from the Administrative Agent, or if such
default is of a nature that it cannot with reasonable effort be completely remedied within said period of thirty (30) days, such additional period of time as may be reasonably necessary to cure same; provided that the applicable
Loan Party commences such cure within such thirty (30) day period and diligently prosecutes same, until completion, but in no event shall such extended period exceed sixty (60) days; or
(v) default under any mortgage, indenture or
instrument under which there is issued or by which there is secured or evidenced any Indebtedness for money borrowed by the Borrower or any Restricted Subsidiary (or the payment of which is guaranteed by the Borrower or any Restricted
Subsidiary), other than Indebtedness owed to the Borrower or a Restricted Subsidiary, whether such Indebtedness or guarantee exists of the Closing Date or is created after the Closing Date, if both:
(A) such default either (x) results from the
failure to pay any such Indebtedness at its stated final maturity (after giving effect to any applicable grace periods and extensions thereof) or results in any such Indebtedness becoming due prior to its stated final maturity; or (y) relates to an obligation other than the obligation to pay principal of any such Indebtedness at its stated final maturity and results in the holder or holders of such Indebtedness causing such Indebtedness
to become due prior to its stated maturity; and
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(B) the principal amount of such Indebtedness, together with the principal amount of
any other such Indebtedness in default for failure to pay principal at stated final maturity (after giving effect to any applicable grace periods and any extensions thereof), or the maturity of which has been so accelerated, exceeds
$50,000,000 at any one time outstanding, in each case without such acceleration having been rescinded, annulled or otherwise cured; provided that if any such acceleration is being contested in good faith by appropriate proceedings
promptly instituted and diligently concluded, then the Event of Default by reason thereof would not be deemed to have occurred until the conclusion of such proceedings; provided, further, that such default shall not be an
Event of Default with respect to (1) Indebtedness owed to the Borrower or a Restricted Subsidiary, or (2) Indebtedness of a Restricted Subsidiary as to which the Borrower delivers to the Administrative Agent an Officer’s Certificate
certifying a resolution adopted by the Borrower to the effect that the obligees of such Indebtedness have no recourse to the assets of the Borrower; or
(vi) failure by the Borrower or any Significant
Subsidiary to pay final judgments for the payment of money aggregating in excess of $25,000,000 (to the extent not adequately covered by insurance as to which a solvent insurance company has not denied coverage or an indemnity by a third
party with an Investment Grade Rating from any Rating Agency), which final judgments remain unpaid, undischarged, unwaived and unstayed for a period of more than ninety (90) days after such judgment becomes final, and in the event such
judgment is covered by insurance or indemnity, an enforcement proceeding has been commenced by any creditor upon such judgment or decree which is not promptly stayed; provided that such failure shall not be an Event of Default with
respect to a judgment against a Significant Subsidiary as to which the Borrower delivers to the Administrative Agent an Officer’s Certificate certifying a resolution adopted by the Board of Directors of the Borrower to the effect that the
creditors of such Significant Subsidiary have no recourse to the assets of the Borrower or any Guarantor (other than such Significant Subsidiary) and that the Board of Directors of the Borrower has determined in good faith that the assets
of such Significant Subsidiary have a Fair Market Value less than the sum of (x) the amount of such outstanding judgment, and (y) the outstanding Indebtedness of such Significant Subsidiary; or
(vii) the Borrower or any Significant Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:
(B) consents to the institution of bankruptcy or insolvency proceedings against
it, or the filing by it of a petition or answer or consent seeking reorganization or relief under applicable Bankruptcy Law;
(C) consents to the appointment of a receiver, liquidator, assignee, trustee or
other similar official of it or for all or substantially all of its property;
(E) makes an admission in writing of its inability generally to pay its debts
as they become due; or
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(A) is for relief against the Borrower or any Significant Subsidiary in a
proceeding in which it is to be adjudicated bankrupt or insolvent;
(B) appoints a receiver, liquidator, assignee, trustee or other similar official
of the Borrower or any Significant Subsidiary or for all or substantially all of the property of the Borrower or any Significant Subsidiary; or
(C) orders the liquidation of the Borrower or any Significant Subsidiary and the order or decree remains unstayed and in effect for sixty (60) consecutive days;
(x) the guarantee contained in any Guarantee Agreement shall cease, for any reason (other than by reason of the
express release thereof pursuant to Section 8.11 or the terms thereof), to be in full force and effect or any Loan Party shall so assert in writing; or
(xi) (A) the Liens created by the Security Documents shall at any time not
constitute a valid and perfected Lien on any material portion of the Collateral intended to be covered thereby (unless perfection is not required by this Agreement or the Security Documents) or any Loan Party shall so assert in writing, in
each case, other than (x) in accordance with the terms of the relevant Security Document and this Agreement and (y) the occurrence of the Termination Conditions.
(b) If any Event of Default shall have occurred and be continuing, then, and in any such event,
(i) if such event is an Event of Default specified in Section 7.1(a)(vii) or Section 7.1(a)(viii) with respect to the Borrower, the
Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents shall automatically and immediately become due and payable, and (ii) if such event is any other Event of Default,
with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower, declare the Loans hereunder
(with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents to be due and payable forthwith, whereupon the same shall immediately become due and payable.
Section 7.2 Application of Proceeds. All proceeds collected by the Administrative Agent upon any collection, sale, foreclosure or other
realization upon any Guarantee or any Collateral (including any distribution pursuant to a plan of reorganization), including any Collateral consisting of cash, shall be applied as follows:
FIRST, to the payment of all costs and expenses incurred by the Administrative Agent (in its capacity as such hereunder or under any other Loan
Document) in connection with such collection, sale, foreclosure or realization or otherwise in connection with this Agreement, any other Loan Document or any of the Obligations, including all court costs and the fees and expenses of its
agents and legal counsel, the repayment of all advances made by the Administrative Agent hereunder or under any other Loan Document on behalf of the Borrower and any other costs or expenses incurred in connection with the exercise of any
right or remedy hereunder or under any other Loan Document;
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SECOND, to the payment in full of all Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the
amounts of the Obligations owed to them on the date of any such distribution); and
THIRD, to the Borrower, its successors or assigns, or as a court of competent jurisdiction may otherwise direct.
In addition, in the event that the Administrative Agent receives any non-cash distribution upon any collection, sale, foreclosure or other
realization upon any Collateral, such non-cash distribution shall be allocated in the manner described above, with the value of such non-cash distribution being reasonably determined by the Administrative Agent; provided that the Administrative Agent shall apply any cash distribution in accordance with this Section 7.2 prior to application of any such non-cash distribution. The Administrative Agent shall have
absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Administrative Agent (including pursuant to a power of sale granted by statute
or under a judicial proceeding), the receipt of the Administrative Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid over to the Administrative Agent or such officer or be answerable in any way for the misapplication thereof.
(a) Each of the Lenders hereby irrevocably appoints Barclays to act
on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by
the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Section 8.1 are solely for the benefit of the Administrative Agent and the Lenders, and none of the Borrower nor any other Loan Party shall have rights as a third-party beneficiary of any of such provisions (except as provided in Section 8.6 below).
(b) The Administrative Agent shall also act as the collateral agent under the Loan Documents, and each of the Lenders hereby
irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by the Loan Parties to secure any of the Obligations,
together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as collateral agent, and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent
pursuant to Section 8.5 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the
Administrative Agent, shall be entitled to the benefits of all provisions of this Section 8 and Section 9 (including Section 9.5(b), as though such co-agents, sub-agents and attorneys-in-fact were the collateral
agent under the Loan Documents) as if set forth in full herein with respect thereto.
Section 8.2 Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and
generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
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Section 8.3 Exculpatory Provisions. The Administrative Agent shall not have any duties or obligations except those expressly set forth
herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with
reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Without limiting the generality of the foregoing, the
Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or
an Event of Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of
the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose
the Administrative Agent to liability or that is contrary to any Loan Document or applicable law; provided, further, that the Administrative Agent may seek
clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided;
(c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to
disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates
in any capacity;
(d) shall not be liable for any action taken or not taken by it under or in connection with this
Agreement or the other Loan Documents (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall
be necessary, under the circumstances as provided in Sections 9.1 and 7.1) or (ii) in the absence of its own gross negligence, bad faith or willful misconduct, as determined by a final nonappealable
judgment of a court of competent jurisdiction. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until notice describing such Default or Event of Default is given to the
Administrative Agent in writing by the Borrower or a Lender;
(e) shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made
in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other
Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Security Documents, (v) the value or the sufficiency of any Collateral, (vi) perfecting,
maintaining, monitoring, preserving or protecting the security interest or Lien (including the priority thereof) granted under this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, (vii) the
filing, re-filing, recording, re-recording or continuing of any document, financing statement, mortgage, assignment, notice, instrument of further assurance or other instrument in any public office at any time or times, (viii) providing,
maintaining, monitoring or preserving insurance on or the payment of Taxes with respect to any of the Collateral or (ix) the satisfaction of any condition set forth in Section 4 or elsewhere herein, other than to confirm receipt of
items, but not the sufficiency or completeness expressly required to be delivered to the Administrative Agent or (x) the compliance or breach of any covenants set forth in Sections 5 and 6;
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(f) shall not be required to qualify in any jurisdiction in which it is
not presently qualified to perform its obligations as the Administrative Agent;
(g) shall not be required to (i) expend or risk its own funds or provide indemnities in the performance of any of its duties
hereunder or the exercise of any of its rights or powers, or (ii) otherwise incur any financial liability in the performance of its duties hereunder or the exercise of any of its rights or powers, except for such expense, indemnity or
liability, if any, arising out of the Administrative Agent’s gross negligence, bad faith or willful misconduct in the performance of its duties hereunder or under any other Loan Document, as determined by a final
nonappealable judgment of a court of competent jurisdiction; and
(h) shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce,
compliance with the provisions hereof relating to Disqualified Institutions or Affiliated Lenders. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to
whether any Lender or participant or prospective Lender or participant is a Disqualified Institution or an Affiliated Lender or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure
of confidential information, to any Disqualified Institution or any Affiliated Lender.
No requirement in any Loan Document for a Loan Party to provide evidence, opinion, information, documentation or other material requested or required by the
Administrative Agent shall be construed to mean that the Administrative Agent has any responsibility to request or require such evidence, opinion, information, documentation or other material. No Lender shall assert, and each Lender hereby
waives, any claim against the Administrative Agent, including any predecessor agent, its sub-agents and their respective Affiliates in respect of any action taken or omitted to be taken by any of them, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby
or thereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof.
Section 8.4 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability
for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and
to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall
not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, the
Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. The Administrative Agent
may consult with legal counsel (who may be counsel for the Borrower or any Lender), independent accountants and other experts, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
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Section 8.5 Delegation of Duties. The Administrative Agent may perform any and all of its duties and exercise its rights and powers
hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and
powers by or through their respective Related Parties. The exculpatory provisions of this Section 8 shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply
to their respective activities in connection with the syndication of the credit facility provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or
misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of
such sub-agents.
Section 8.6 Resignation of Administrative Agent. The Administrative Agent may at any time give notice of its resignation to the Lenders and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to be unreasonably withheld or delayed) unless an Event of
Default under Section 7.1(a)(i), (vii) or (viii) is continuing, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in
the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may (but shall not be obligated to), on behalf of the Lenders, with the consent of the Borrower (not to be unreasonably withheld or delayed) unless an Event of Default under Section 7.1(a)(i), (vii) or (viii) is continuing, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that if no qualifying Person has accepted such appointment
within thirty (30) days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such resignation shall nonetheless become effective in accordance with such notice on the Removal
Effective Date and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent
on behalf of the Secured Parties under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (b) except for any
indemnity payments or other amounts owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Person directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Administrative
Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all
of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Borrower to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Section 8
and Section 9.5 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the
retiring Administrative Agent was acting as Administrative Agent.
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Section 8.7 Non-Reliance on Administrative Agent and Other Lenders. Each Lender represents and warrants that (i) the Loan Documents set forth the terms of a
commercial lending facility, (ii) in participating as a Lender, it is engaged in making, acquiring or holding commercial loans and in providing other facilities set forth herein as may be applicable to such Lender, in each case in the
ordinary course of business, and not for the purpose of investing in the general performance or operations of the Borrower, or for the purpose of purchasing, acquiring or holding any other type of financial instrument such as a security
(and each Lender agrees not to assert a claim in contravention of the foregoing, such as a claim under the federal or state securities law), (iii) it has, independently and without reliance upon the Agent or any other Lender or any of the
Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement as a Lender, and to make, acquire or hold Loans
hereunder and (iv) it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender, and either it, or the Person exercising
discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities. Each Lender
also acknowledges that it will, independently and without reliance upon the Agent, any other Lender or any of the Related Parties of any of the foregoing, and based on such documents and information (which may contain material, non-public
information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or
based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
Section 8.8 No Other Duties, Etc. Anything herein to the contrary notwithstanding, the Arrangers listed
on the cover page hereof shall not have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in their capacities, as applicable, as the Administrative Agent
or a Lender hereunder.
Section 8.9 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Bankruptcy Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in
respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative
Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due
the Lenders and the Administrative Agent under Sections 2.8 and 9.5) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such claims and
to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such
payments to the Administrative Agent and, if the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.8 and 9.5.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 Obligations or the rights of any Lender to authorize the
Administrative Agent to vote in respect of the claim of any Lender or in any such proceeding.
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Section 8.10 Erroneous Payments.
(a) If the Administrative Agent notifies a Lender or any Person who has received funds on behalf of a Lender (any such Lender or
other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such
Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender or other Payment
Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return
of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Administrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the
Administrative Agent, and such Lender shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter,
return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from
and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the NYFRB Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive,
absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or any Person who has received funds on behalf of a
Lender, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of
its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment,
prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender, or other such recipient, otherwise
becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) (A) in the case of immediately preceding clause (x) or (y), an error shall be presumed to have been made
(absent written confirmation from the Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender shall (and shall cause any other recipient that receives funds on its respective behalf to)
promptly (and, in all events, within one (1) Business Day of its knowledge of such error) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so
notifying the Administrative Agent pursuant to this Section 8.10(b).
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(c) Each Lender hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such
Lender under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the
indemnification provisions of this Agreement.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after
demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such
Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Lender at any time, (i) such Lender shall be deemed
to have assigned its Loans (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Loans”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount
as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Loans, the “Erroneous Payment Deficiency Assignment”) at par plus
any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance with respect to such
Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Promissory Notes evidencing such Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire
the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning
Lender shall cease to be a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable
Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent
may, in its discretion, sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by
the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective
behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party
hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be
equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender under the Loan Documents with respect to each Erroneous Payment Return Deficiency (the “Erroneous
Payment Subrogation Rights”).
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations
owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent
from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and
hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received,
including, without limitation, waiver of any defense based on “discharge for value” or any similar doctrine.
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(g) Each party’s obligations, agreements and waivers under this Section 8.10(g) shall survive the resignation or
replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge
of all Obligations (or any portion thereof) under any Loan Document.
(a) Each of the Lenders irrevocably authorizes the Administrative Agent to (i) release or evidence the release of any Lien on any
property granted to or held by the Administrative Agent under any Loan Document or to subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document, and (ii) release any Guarantor from its
obligations under a Guarantee Agreement, in each case, as provided in Section 9.20.
(b) Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s
authority to release or subordinate its interest in particular types or items of property or release any Guarantor from its obligations under the Loan Documents, in each case, pursuant to Section 9.20.
Section 8.12 Withholding Taxes. To the extent required by any applicable Requirements of Law, the Administrative Agent may withhold from
any payment to any Lender an amount equivalent to any applicable withholding Tax. Without limiting or expanding the provisions of Section 2.17, each Lender shall indemnify the Administrative Agent against, and shall make payable
in respect thereof within thirty (30) days after demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent)
incurred by or asserted against the Administrative Agent by the Internal Revenue Service or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold Tax from amounts paid to or for the
account of such Lender for any reason (including because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the
exemption from, or reduction of, withholding Tax ineffective). A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby
authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement, any other Loan Document otherwise against any amount due the Administrative Agent under this Section 8.12.
The agreements in this Section 8.12 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment,
satisfaction or discharge of all other Obligations.
Section 8.13 Intercreditor Agreements and Security Documents. The Lenders hereby authorize and direct the Administrative Agent to execute
and deliver the Security Documents, any Equal Priority Intercreditor Agreement, and any Junior Priority Intercreditor Agreement in which the Administrative Agent is named as a party, including any Security Document executed after the
Closing Date. It is hereby expressly acknowledged and agreed that, in doing so, the Administrative Agent is (a) expressly authorized to make the representations attributed to Lenders in any such agreements and (b) not responsible for the
terms or contents of such agreements, or for the validity or enforceability thereof, or the sufficiency thereof for any purpose. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action
under, any Equal Priority Intercreditor Agreement, any Junior Priority Intercreditor Agreement or any Security Documents, the Administrative Agent shall have all of the rights, immunities, indemnities, privileges and other protections
granted to it under this Agreement and the Security Documents (in addition to those that may be granted to it under the terms of such other agreement or agreements).
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Section 9.1 Amendments and Waivers. Neither this Agreement or any other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this Section 9.1. The Required Lenders, the Borrower and each other Loan Party which is a party to the relevant Loan Document may, or (with the written consent
of the Required Lenders) the Administrative Agent, the Borrower and each other Loan Party which is a party to the relevant Loan Document may, from time to time, (x) enter into written amendments, supplements or modifications hereto and to
the other Loan Documents (including amendments and restatements hereof or thereof) for the purpose of adding or removing any provisions to this Agreement or the other Loan Documents or changing in any manner the rights and obligations of
the Lenders or of the Loan Parties hereunder or thereunder or (y) waive, on such terms and conditions as may be specified in the instrument of waiver, any of the requirements of this Agreement or the other
Loan Documents or any Default or Event of Default and its consequences; provided, however, that the Administrative Agent may, with the consent of the Borrower only and without the need to obtain the consent of any Lender,
amend, supplement or modify this Agreement or any other Loan Document to cure any ambiguity, omission, defect or inconsistency, so long as such amendment, supplement or modification does not adversely affect the rights of any Lender or
the Lenders shall have received at least five (5) Business Days’ prior written notice thereof and Administrative Agent shall not have received, within five (5) Business Days of the date of such notice to the Lenders, a written notice from
the Required Lenders stating that the Required Lenders object to such amendment; provided, further, however, that no such waiver and no such amendment, supplement or modification shall:
(a) Forgive or reduce the principal amount of any Loan, extend the final scheduled date of maturity
of any Loan, reduce the stated rate of any interest, fee or premium payable under this Agreement (except in connection with the waiver of applicability of any post-default increase in interest rates (which waiver shall be effective with the
consent of the Required Lenders)) or extend the time for payment of any interest, fees or premium or increase the amount or extend the expiration date of any Commitment of any Lender, in each case without the consent of each Lender directly
and adversely affected thereby;
(b) amend, modify or waive any provision of this Section 9.1 or, except as contemplated by the last paragraph of this Section 9.1,
reduce any percentage specified in the definition of “Required Lenders,” in each case, without the consent of each Lender, or reduce the consent required under any provision pursuant to which the consent of Required Lenders is necessary,
without the consent of each Lender directly and adversely affected thereby;
(c) consent to the assignment or transfer by the Borrower of any of its
rights and obligations under this Agreement and the other Loan Documents without the consent of each Lender;
(d) amend, modify or waive any provision of Section 8, or any
other provision affecting the rights, duties or obligations of the Administrative Agent, without the consent of the Administrative Agent;
(e) amend, modify or waive any provision of Section 2.14 and Section 7.2 without the
consent of each Lender directly and adversely affected thereby;
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(f) release all or substantially all of the value of the Guarantee Agreements, without the written
consent of each Lender, except (A) to the extent the release of any Subsidiary from a Guarantee Agreement is permitted pursuant to Section 9.20 (in which case such release may be made without the consent of any Lender) or (B) upon
satisfaction of the Termination Conditions; or
(g) release all or substantially all of the Collateral, without the written consent of each Lender, except upon satisfaction of
the Termination Conditions;
provided, further, that any Loan Document may be waived, amended, supplemented or modified pursuant to an agreement or agreements in writing entered into by the Borrower
and the Administrative Agent (without the consent of any Lender) solely to grant a new Lien for the benefit of the Lenders or extend an existing Lien over additional property.
Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender prior to such Lender funding its Loans on the Closing Date,
then for so long as such Lender is a Defaulting Lender, the Loan Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder
or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to this Section 9.1); provided that any amendment, waiver or other modification requiring the consent of all
Lenders or all Lenders affected thereby shall, except as otherwise provided in this Section 9.1, require the consent of such Defaulting Lender in accordance with the terms hereof.
Any such waiver and any such amendment, supplement or modification shall apply equally to each of the Lenders and shall be binding upon the Loan Parties, the Lenders,
the Administrative Agent and all future holders of the Loans. In the case of any waiver, the Loan Parties, the Lenders and the Administrative Agent shall be restored to their former position and rights
hereunder and under the other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any
right consequent thereon. Any such waiver, amendment, supplement or modification shall be effected by a written instrument signed by the parties required to sign pursuant to the foregoing provisions of this Section; provided that
delivery of an executed signature page of any such instrument by electronic transmission shall be effective as delivery of a manually executed counterpart thereof.
Notwithstanding the foregoing, any Guarantee Agreements, Security Documents and related documents executed in connection with this Agreement may be in a form reasonably
determined by the Administrative Agent and may be, together with this Agreement, amended and waived with the consent of the Administrative Agent and the Borrower only and without the need to obtain the consent of any Lender if such
amendment or waiver is delivered solely to the extent necessary to (A) comply with local Law or advice of local counsel or (B) cause such Guarantee Agreement, Security Document or related document to be consistent with this Agreement and
the other Loan Documents.
Section 9.2 Notices. Except as otherwise provided in Section 2.6(c), all notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by email), and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when delivered, or three (3) Business Days after being
deposited in the mail, postage prepaid, or, in the case of email notice, when received, addressed (a) in the case of the Borrower and the Administrative Agent, as follows, (b) in the case of the Lenders, at
their primary address set forth below their name on Appendix A or otherwise indicated to Administrative Agent in writing or, in the case of a Lender which becomes a
party to this Agreement pursuant to an Assignment and Acceptance, in such Assignment and Acceptance or (c) in the case of any party, to such other address as such party may hereafter notify to the other parties hereto:
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the Borrower:
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FTAI Infrastructure Inc.
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111 W. 19th Street, 2nd Floor
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New York, NY 10011
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Attention:
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Kenneth Nicholson
Frank Carfora
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Telephone:
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(212) 515-4644 | |
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with a copy to:
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Skadden, Arps, Slate, Meagher & Flom LLP
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One Manhattan West
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New York, NY 10001
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Attention: David Passes
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Telephone: (212) 735-2954
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The Administrative Agent:
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400 Jefferson Park
Whippany, NJ 07981
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Attention: David Brace; US Loan Origination Agency
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Telephone: 201-499-9948
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Email for: [email protected]
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provided that any notice, request or demand to or upon the Administrative Agent or any Lender shall not be
effective until received.
Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications pursuant to procedures approved by the
Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Section 2 unless otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent or the Borrower may,
in their discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices
or communications.
THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE MATERIALS AND/OR
INFORMATION PROVIDED BY OR ON BEHALF OF THE BORROWER HEREUNDER (“BORROWER MATERIALS”) OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH
THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender or any other Person for losses,
claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of materials and/or information provided by or on behalf of the Borrower
hereunder through the Platform or the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable
judgment to have resulted from the gross negligence, bad faith or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to the Borrower, any Lender or any other
Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).
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Section 9.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Administrative Agent or
any Lender, any right, remedy, power or privilege hereunder or under the other Loan Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
Section 9.4 Survival of Representations and Warranties. All representations and warranties made herein, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Agreement and the making of the Loans and other extensions of credit hereunder.
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Section 9.5 Payment of Expenses; Indemnification.
(a) The Borrower agrees (i) to pay or reimburse each of the Agents and the Arrangers for all their reasonable and documented out-of-pocket costs and expenses incurred in connection with the syndication of the Facility (other than fees payable to syndicate members) and the development,
negotiation, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and
administration of the transactions contemplated hereby and thereby (with respect to the fees of counsel, limited to the reasonable and documented fees and disbursements of one law firm as lead counsel to the Agents
and the Arrangers and one law firm as local counsel to the Agents and the Arrangers, taken as a whole, in any relevant jurisdiction) and the charges of any Platform, (ii) to pay or reimburse each Lender and
the Agents for all their reasonable and documented out-of-pocket costs and expenses incurred in connection with the enforcement or preservation of any rights under this Agreement, the other Loan Documents and any other documents prepared in
connection herewith or therewith, including all costs and expenses incurred during any legal proceeding, including any proceeding under any Bankruptcy Laws, the reasonable and documented fees and
disbursements of a single law firm as counsel to the Lenders and the Agents taken as a whole and one local counsel to the Lenders and the Agents taken as a whole in any relevant material jurisdiction (or, with respect to enforcement, any
relevant jurisdiction) and, if a conflict exists among such Persons, one additional primary counsel and, if necessary or advisable, one local counsel in each relevant jurisdiction, (iii) to pay, indemnify, or reimburse each Lender and the Agents for, and hold each Lender and the Agents harmless from, any and all reasonable recording and filing fees and any and all reasonable liabilities with respect to, or resulting from any delay in
paying Other Taxes, if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any such other documents, and (iv) to pay, indemnify or reimburse each Lender, the Agents, each Arranger, their respective affiliates, and their respective officers, directors, trustees, employees, advisors, agents and controlling persons (each, an “Indemnitee”) for, and hold each Indemnitee
harmless from and against any and all other liabilities, obligations, losses, damages, penalties, claims (including Environmental Claims), actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (limited
to, in the case of counsel, the reasonable and documented fees and disbursements of a single law firm as counsel to the Indemnitees taken as a whole and one local counsel to the Indemnitees taken as a whole in any relevant jurisdiction and,
if a conflict exists among such Persons, one additional primary counsel and, if necessary or advisable, one local counsel (plus if applicable, any additional counsel
in the event of a conflict) in each relevant jurisdiction) whether direct, indirect, special or consequential, incurred by an Indemnitee or asserted against any Indemnitee arising out of, in connection with, or as a result of (A) the
execution, enforcement or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto or thereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or thereby, (B) any Loan or the use or proposed use of the proceeds thereof, (C) any actual or alleged presence or Release of Hazardous Materials on, at, under or from
any property owned, occupied or operated by the Borrower or any of its Subsidiaries, or any liability under any Environmental Law related in any way to the Borrower or any of its Subsidiaries or any of their respective properties, or
(D) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, in each case, whether based on contract, tort or any other theory, whether brought by any third party or by the Borrower, any
other Loan Party, its other affiliates, security holders or creditors or any other person, and regardless of whether any Indemnitee is a party thereto (all the foregoing in this clause (iv), collectively, the “Indemnified
Liabilities”), but excluding, in each case, Taxes other than any Taxes that represent Indemnified Liabilities arising from a non-tax claim; provided that the Borrower shall have no obligation hereunder to any Indemnitee with
respect to Indemnified Liabilities to the extent such Indemnified Liabilities (x) are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence, bad faith, willful misconduct
or material breach of its obligations under this Agreement of such Indemnitee or (y) resulted from any dispute that does not involve an act or omission by the Borrower or any of its affiliates, shareholders, partners or other equity holders
and that is brought by an Indemnitee against another Indemnitee other than any claims against an Indemnitee in its capacity or in fulfilling its role as the Administrative Agent or an Arranger under the Facility. No Indemnitee shall be liable for any damages arising from the use by unauthorized persons of information or other materials sent through electronic, telecommunications or other
information transmission systems. Neither the Borrower nor any Indemnitee shall be liable for any special, indirect, consequential or punitive damages in connection with the Facility; provided that nothing contained in this
provision shall limit the Borrower’s indemnification obligations under Section 9.5 and under the Loan Documents to the extent such special, indirect, consequential and punitive damages are due and payable to any third-party claim in
connection with which any indemnified party is entitled to indemnification hereunder. The Agents, Arrangers and Indemnitees shall notify the Borrower promptly of any claim for which it may seek indemnity; provided that failure to
provide such notice shall not relieve the Borrower of its obligations under this Agreement or the other Loan Documents unless the Borrower is materially and adversely affected thereby.Without limiting the foregoing, and to the extent
permitted by applicable Law, the Borrower agrees not to assert and to cause its Subsidiaries not to assert, and hereby waives and agrees to cause its Subsidiaries so to waive, all rights for contribution or any other rights of recovery with
respect to all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or related to Environmental Laws, that any of them might have by statute or otherwise against any
Indemnitee. All amounts due under this Section 9.5 shall be payable not later than thirty (30) days after written demand therefor. Statements payable by the Borrower pursuant to this Section 9.5 shall be submitted to the Borrower at the address of the Borrower set forth in Section 9.2, or to such other Person or address as may be hereafter designated by the Borrower in a notice to the Administrative Agent. The
agreements in this Section 9.5 shall survive the termination of the Commitments and the repayment of the Loans and all other amounts payable hereunder.
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(b) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to indefeasibly pay any amount required
under clause (a) of this Section 9.5 to be paid by it to the Administrative Agent (or any sub-agent thereof) or any Related Party of any of the foregoing, each Lender severally agrees to pay to
the Administrative Agent (or any such sub-agent) or such Related Party, as the case may be, such Lender’s Pro Rata Share (determined as of the time that the applicable unreimbursed expense or indemnity payment
is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such
sub-agent) in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) in connection with such capacity.
Section 9.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the Borrower, the Lenders, the Administrative Agent, the Arrangers, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of their rights or obligations under this Agreement without
the prior written consent of the Administrative Agent and each Lender.
(b) Any Lender may, without the consent of the Borrower, in accordance with applicable Law, at any time sell to one or more banks,
financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan
Documents; provided, however, that no Lender shall be permitted to sell any such participating interest to (i) any of the Permitted Investors, any of their respective Affiliates or any of their respective associated
investment funds, (ii) a natural Person (or a holding company, investment vehicle or trust for, or owned and operated by or for the primary benefit of a natural Person) or (iii) a Disqualified Institution (it being understood that the list
of Disqualified Institutions shall be available to all Lenders). In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and
the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any
such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would
require the consent of all Lenders pursuant to Section 9.1. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the
same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement; provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in Section 2.14 as fully as if such Participant were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled through the Lender granting the
participation to the benefits of Sections 2.15, 2.16 or 2.17 (subject to the requirements and limitations of such Sections, Section 2.18 and 2.19, including the requirements of Sections 2.17(f) and (g) (it being
agreed that any required forms shall be provided solely to the participating Lender)) with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided
that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor
Lender to such Participant had no such transfer occurred, except to the extent that entitlement to a greater amount results from a Change in Law that occurs after such Participant acquires the applicable participation, unless such transfer
was made with the Borrower’s prior written consent (which consent shall not be unreasonably withheld or delayed). Each Lender that sells a participation (and each Granting Lender whose SPC provides a Loan) shall, acting solely for this
purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant (and each such SPC) and the principal and interest amounts of each Participant’s (and each such SPC’s)
interest in the Loans held by it (the “Participant Register”). The entries in the Participant Register shall be conclusive, absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant
Register as the owner of the participation in question for all purposes of this Agreement, notwithstanding notice to the contrary. No Lender shall have any obligation to disclose all or any portion of a Participant Register (including the
identity of any Participant (or any SPC) or any information relating to a Participant’s (or a SPC’s) interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent
such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.
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(c) Any Lender (an “Assignor”) may,
in accordance with applicable Law, at any time and from time to time, assign to any Lender or any Affiliate, Related Fund or Control Investment Affiliate thereof, or to an additional bank, financial institution or other entity (an “Assignee”)
all or any part of its rights and obligations under this Agreement (pursuant to an Assignment and Acceptance executed by such Assignee and such Assignor and delivered to the Administrative Agent for its acceptance and recording in the
Register) with the written consent of (i) the Administrative Agent (which consent shall not be unreasonably withheld or delayed); provided that no consent of the Administrative Agent shall be required if any assignment is being made
to a Lender, an Affiliate of a Lender or a Related Fund and (ii) to the extent that any such assignment would result in the Arrangers, in their capacity as lenders, holding less than 51% of the aggregate principal amount of the outstanding
Loans, the Borrower (which consent may be withheld in the sole discretion of the Borrower for any purposes); provided that no consent of the Borrower shall be required (1) if a Demand Failure Event has occurred and is continuing,
(2) if an Event of Default under Section 7.1(a)(i), (vii) or (viii) has occurred and is continuing or (3) if any assignment is being made to any Lender, an Affiliate of a Lender or a Related Fund; provided, further,
that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received written notice of such assignment
thereof. No assignment to an Assignee (other than any Lender or any Affiliate thereof) of Loans shall be in an aggregate principal amount of less than $1,000,000 (other than in the case of an assignment of all of a Lender’s interests in the Facility under this Agreement) and, after giving effect thereto, the assigning Lender (if it shall retain any Loans) shall have Loans in an aggregate principal amount of at least $1,000,000 unless otherwise agreed by the Administrative Agent
and the Borrower. No Lender shall be permitted to assign all or any part of its rights and obligations under this Agreement to (i) any of the Permitted Investors, any of their respective Affiliates or any of their respective associated
investment funds, (ii) the Borrower or any of its Subsidiaries, (iii) any natural Person (or a holding company, investment vehicle or trust for, or owned and operated by or for the primary benefit of a natural Person) or (iv) any
Disqualified Institution (it being understood that the list of Disqualified Institutions shall be available to all Lenders). Upon such execution, delivery, acceptance and recording in the Register, from and after the effective date
determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with Commitments
and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent of the interest assigned in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to Sections 2.16, 2.17 and 9.5 in respect of the period prior to such effective date).
For purposes of the minimum assignment amounts set forth in this clause, multiple assignments by two or more Related Funds shall be aggregated. The Administrative Agent shall not be responsible for monitoring
the Disqualified Institutions list and shall have no liability for non-compliance by any Lender.
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(d) Notwithstanding anything herein to the contrary, any Lender may, at any time, assign all or any
portion of its rights and obligations under this Agreement in respect of its Loans to any Affiliated Lender on a non-pro rata basis through open market purchases at prices at or above the full par value of such Loans without the consent of
the Administrative Agent; provided that:
(ii) any Loans acquired by any Non-Debt Fund Affiliate may (but shall not be required to) be contributed to the
Borrower or any of its Subsidiaries (it being understood that any Loans so contributed shall, to the extent permitted by applicable Law, be retired and canceled promptly upon such contribution); provided that upon any such
cancellation, the aggregate outstanding principal amount of the Loans shall be deemed reduced, as of the date of such contribution, by the full par value of the aggregate principal amount of the Loans so contributed and canceled;
(iii) the relevant Affiliated Lender and the Assignor shall have executed an Affiliated Lender Assignment and
Acceptance and shall have identified itself as an Affiliated Lender on such Affiliated Lender Assignment and Acceptance;
(iv) after giving effect to the relevant assignment and to all other assignments to all Affiliated Lenders, the
aggregate principal amount of all Loans then held by all Affiliated Lenders shall not exceed 30.0% of the aggregate principal amount of the Loans then outstanding (after giving effect to any substantially simultaneous cancellations thereof)
(the “Affiliated Lender Cap”); provided that each party hereto acknowledges and agrees that the Administrative Agent have no duty to monitor, and shall not be liable for any losses, damages, penalties, claims, demands,
actions, judgments, suits, costs, expenses and disbursements of any kind or nature whatsoever incurred or suffered by any Person in connection with, any compliance or non-compliance with this clause (d)(iv) or any purported assignment
exceeding the Affiliated Lender Cap (it being understood and agreed that the Affiliated Lender Cap is intended to apply to any Loan made available to Affiliated Lenders by means other than formal assignment (e.g., as a result of an
acquisition of another Lender (other than any Debt Fund Affiliate) by any Affiliated Lender)); provided, further, that to the extent that any assignment to any Affiliated Lender would result in the aggregate principal amount
of Loans held by Affiliated Lenders exceeding the Affiliated Lender Cap (after giving effect to any substantially simultaneous cancellation thereof), the assignment of the relevant excess amount shall be null and void;
(v) no Default or Event of Default exists at the time of the entry into a binding agreement with respect to the
relevant open market purchase;
(vi) by its acquisition of Loans, each relevant Affiliated Lender shall be deemed to have acknowledged and agreed
that:
(A) the Loans held by such Affiliated Lender shall be disregarded in both the numerator and denominator in the
calculation of any Required Lender or other Lender vote; provided that (x) such Affiliated Lender shall have the right to vote (and the Loans held by such Affiliated Lender shall not be so disregarded) with respect to any amendment,
modification, waiver, consent or other action that requires the vote of all Lenders or all Lenders directly and adversely affected thereby, as the case may be, and (y) no amendment, modification, waiver, consent or other action shall
(1) disproportionately affect such Affiliated Lender in its capacity as a Lender as compared to other Lenders that are not Affiliated Lenders or (2) deprive any Affiliated Lender of its share of any payments which the Lenders are entitled
to share on a pro rata basis hereunder, in each case without the consent of such Affiliated Lender; and
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(B) such Affiliated Lender, solely in its capacity as an Affiliated Lender, will not be entitled to (i) attend
(including by telephone) or participate in any meeting or discussion (or portion thereof) solely among the Administrative Agent and any Lender or solely among Lenders and, in each case, to which the Loan Parties and their representatives
are not invited, or (ii) receive any information or material prepared by the Administrative Agent or any Lender or any communication by or among the Administrative Agent and one or more Lenders, except to the extent such information or
materials have been made available by the Administrative Agent or any Lender to any Loan Party or its representatives (and in any case, other than the right to receive a Funding Notice and notices of prepayments and other administrative
notices in respect of its Loans required to be delivered to Lenders pursuant to Section 2);
(vii) no Affiliated Lender shall be required to represent or warrant that, as of the date of any such purchase or
assignment, it is not in possession of material non-public information with respect to the Borrower and/or any Subsidiary thereof and/or their respective securities in connection with any assignment permitted by this Section 9.6(d);
and
(viii) in any proceeding under any Debtor Relief Law, the interest of any Affiliated Lender in any Loan will be
deemed to be voted in the same proportion as the vote of Lenders that are not Affiliated Lenders on the relevant matter and each Affiliated Lender hereby acknowledges, agrees and consents that if, for any reason, its vote to accept or
reject any plan pursuant to the Bankruptcy Code of the United States is not deemed to have been so voted, then such vote will be (A) deemed not to be in good faith and (B) “designated” pursuant to Section 1126(e) of the Bankruptcy Code of
the United States such that the vote is not counted in determining whether the applicable class has accepted or rejected such plan in accordance with Section 1126(c) of the Bankruptcy Code of the United States; provided that each
Affiliated Lender will be entitled to vote its interest in any Loan for any plan of reorganization or other arrangement with respect to which the relevant vote being sought proposes to treat the interest of such Affiliated Lender in such
Loan in a manner that is less favorable to such Affiliated Lender than the proposed treatment of Loans held by other Lenders.
Notwithstanding anything to the contrary contained herein, any Lender may, at any time, assign all or a portion of its rights and obligations under this Agreement in respect of its Loans
to any Debt Fund Affiliate, and any Debt Fund Affiliate may, from time to time, purchase Loans and/or Commitments on a non-pro rata basis through open market purchases without the consent of the Administrative Agent, in each case,
notwithstanding the requirements set forth in subclauses (i) through (viii) of this clause (d); provided that the Loans held by all Debt Fund Affiliates shall not account for more than 49.9% of the amounts
included in determining whether the Required Lenders have (A) consented to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by any Loan Party therefrom,
(B) otherwise acted on any matter related to any Loan Document or (C) directed or required the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document; it
being understood and agreed that the portion of the Loans that accounts for more than 49.9% of the relevant Required Lender action shall be deemed to be voted pro rata along with other Lenders that are not Debt Fund Affiliates. Any Loans
acquired by any Debt Fund Affiliate may (but shall not be required to) be contributed to the Borrower or any of its Subsidiaries for purposes of cancelling such Indebtedness (it being understood that any Loans so contributed shall be
retired and canceled immediately upon thereof); provided that upon any such cancellation, the aggregate outstanding principal amount of the Loans shall be deemed reduced, as of the date of such contribution, by the full par value of
the aggregate principal amount of the Loans so contributed and canceled.
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(e) Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Assignee (and, in any case where the consent
of any other Person is required by Section 9.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (provided, however, that (i) Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment and (ii) no such fee shall be required to be paid in
the case of an Assignee which is already a Lender or any affiliate, Related Fund or Control Investment Affiliate thereof), the Administrative Agent shall (A) promptly accept such Assignment and Acceptance and
(B) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective
date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the applicable Promissory Notes of the assigning Lender) a new Promissory Note to such Assignee in an amount equal
to the Loans assumed or acquired by it pursuant to such Assignment and Acceptance and, if the Assignor has retained Loans, upon request, a new Promissory Note to the Assignor in an amount equal to the Loans retained by it hereunder. Such new Promissory Note or Promissory Notes shall be dated the Closing Date and shall otherwise be in the form of the Promissory Note or Promissory
Notes replaced thereby.
(f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 9.6 concerning
assignments of Loans and Promissory Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Promissory Notes, including any pledge or assignment by a Lender of
any Loan or Promissory Note to any Federal Reserve Bank in accordance with applicable Law.
(g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special
purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such
Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise
such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the
Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for
which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one (1) year and one (1) day
after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings under the laws of the United States or any state thereof. Each party hereto also agrees that each SPC shall be entitled to the benefits of Sections 2.15, 2.16 or 2.17 (subject to the requirements and
limitations of such Sections, Section 2.18 and 2.19, including the requirements of Sections 2.17(f) and (g) (it being agreed that any required forms shall be provided solely to the Granting Lender)) with respect to its
granted interest in the Commitments and the Loans outstanding from time to time as if such SPC were a Lender; provided that no SPC shall be entitled to receive any greater amount pursuant to any such Section than the Granting
Lender would have been entitled to receive in respect of the amount of the interest granted by such Granting Lender to such SPC had no such grant occurred, except to the extent that entitlement to a greater amount results from a Change in
Law that occurs after such interest was granted, unless such transfer was made with the Borrower’s prior written consent (which consent shall not be unreasonably withheld or delayed). In addition, notwithstanding anything to the contrary
in this Section 9.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and with the payment of a processing fee in the amount of $3,500 (which processing fee may
be waived by the Administrative Agent in its sole discretion), assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall
not be unreasonably withheld) and with the payment of a processing fee in the amount of $3,500 (which processing fee may be waived by the Administrative Agent in its sole discretion) to any financial institutions providing liquidity and/or
credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or
provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower or its Affiliates may be disclosed only with the Borrower’s consent which will not
be unreasonably withheld. This Section 9.6(g) may not be amended without the written consent of any SPC with Loans outstanding at the time of such proposed amendment.
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Section 9.7 Setoff. In addition to any rights and remedies of the Lenders provided by law, upon the occurrence
and during the continuation of any Event of Default, each Lender shall have the right, without prior notice to the Borrower, any such notice being expressly waived by the Borrower to the extent permitted by applicable Law, upon any amount
becoming due and payable by the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any
branch or agency thereof to or for the credit or the account of the Borrower. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender; provided
that the failure to give such notice shall not affect the validity of such setoff and application.
Section 9.8 Counterparts.
(a) This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and
all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Agreement by email or other electronic transmission shall be effective as delivery of a
manually executed counterpart hereof. A set of the copies of this Agreement signed by all the parties shall be lodged with the Borrower and the Administrative Agent.
(b) The words “execution,” “signed,” “signature,” “delivery,” and
words of like import in or relating to any document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include Electronic Signatures, the electronic matching of assignment terms and
contract formations on the electronic platform DocuSign, digital copies of a signatory’s manual signature and deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that nothing herein shall require
the Administrative Agent to accept electronic signatures in any form or format without its prior written consent.
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Section 9.9 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 9.10 Integration. This Agreement and the other Loan Documents represent the entire agreement of the Borrower, the Administrative Agent and the Lenders with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by the Administrative Agent or any
Lender relative to the subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents.
Section 9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AGREEMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE AND WHETHER AT LAW OR IN EQUITY) BASED UPON, ARISING OUT OF OR RELATING TO THE LOAN DOCUMENTS AND THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Section 9.12 Submission To Jurisdiction; Waivers. Each party hereto hereby irrevocably and unconditionally:
(a) submits for itself and its Property in any legal action or proceeding relating to this Agreement
and the other Loan Documents to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive general jurisdiction of the courts of the State of New York, the courts of the United States of
America for the Southern District of New York, in each case, in the County of New York, Borough of Manhattan, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such courts and waives any objection
that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by mailing a copy
thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to its address set forth in Section 9.2 or at such other address of which the Administrative Agent (or in the case of the
Administrative Agent, the other parties hereto) shall have been notified pursuant thereto;
(d) agrees that the Administrative Agent and the Lenders retain the
right to bring proceedings against any Loan Party in the courts of any other jurisdiction in connection with the exercise of any rights under the Security Documents or the enforcement of any judgment;
(e) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law; and
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(f) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in
any legal action or proceeding referred to in this Section 9.12 any special, exemplary, punitive or consequential damages.
Section 9.13 Acknowledgments. In connection with all aspects of each transaction contemplated hereby (including in connection with any
amendment, waiver or other modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (a)(i) the arranging and other services regarding this Agreement
provided by the Administrative Agent and the Arrangers are arm’s-length commercial transactions between the Borrower and its Affiliates, on the one hand, and the
Administrative Agent and the Arrangers, on the other hand, (ii) each of the Borrower and each other Loan Party has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate, and (iii) each of the Borrower and each other Loan Party is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (b)(i) each of the Administrative Agent, the Arrangers and the Lenders are and have been acting solely as a principal and, except as expressly agreed in writing by the relevant
parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower or any of its Affiliates, or any other Person and (ii) none of the
Administrative Agent, the Arrangers or the Lenders has any obligation to the Borrower or any of its Affiliates with respect to the transactions
contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; (c) the Administrative Agent, the Arrangers and the Lenders and their respective Affiliates may be
engaged in a broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates, and none of the Administrative Agent, the Arrangers or the Lenders has any obligation to disclose any of such interests to the Borrower or any of its Affiliates; and (d) each of
the Administrative Agent, the Arrangers and the Lenders (i) is a full service securities or banking firm engaged in securities trading and brokerage activities as well as providing investment banking and other financial services, (ii) in
the ordinary course of business, may provide investment banking and other financial services to, and/or acquire, hold or sell, for its own accounts and the accounts of customers, equity, debt and other securities and financial instruments
(including bank loans and other obligations) of, the Borrower and other companies with which the Borrower may have commercial or other relationships and (iii) with respect to any securities and/or financial instruments so held by the
Administrative Agent, the Arrangers and the Lenders or any of their respective customers, all rights in respect of such securities and financial instruments, including any voting rights, will be exercised
by the holder of the rights, in its sole discretion. To the fullest extent permitted by law, each of the Borrower and each other Loan Party hereby agrees not to assert any claim that the Administrative
Agent, any Arranger or any Lender owes it any agency, fiduciary or similar duty and agrees no such duty is owed in connection with any aspect
of any transaction contemplated hereby.
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Section 9.14 Confidentiality. Each of the Administrative Agent and the Lenders agrees to keep confidential all non-public information
provided to it by any Loan Party pursuant to this Agreement (“Information”); provided that nothing herein shall prevent the Administrative Agent or any Lender from disclosing any such
information (a) to the Administrative Agent, any other Lender or any Affiliate of any thereof, (b) to any Participant or Assignee (each, a “Transferee”) or prospective Transferee that agrees to comply with the provisions of this Section 9.14
or substantially equivalent provisions, (c) to any of its or its affiliates’ employees, directors, agents, attorneys, accountants and other professional advisors, it being understood and agreed that the Persons to whom such disclosure is
made will be informed of the confidential nature of such Information and instructed to keep such Information confidential, (d) to any financial institution that is a direct or indirect contractual counterparty or
potential counterparty in swap agreements with the Borrower or any Subsidiary of the Borrower or such contractual counterparty’s or potential counterparty’s professional
advisor in connection with transactions under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder (so long as such actual or potential
contractual counterparty or professional advisor to such actual or potential contractual counterparty agrees to be bound by the provisions of this Section 9.14 or substantially equivalent
provisions), (e) upon the request or demand of any Governmental Authority having jurisdiction over it, (f) to the extent required in response to any order of any court or other Governmental Authority or to the extent otherwise required
pursuant to any Requirement of Law, (g) in connection with any litigation or similar proceeding, (h) that has been publicly disclosed other than in breach of this Section 9.14, (i) to the National Association of Insurance
Commissioners or any similar organization or any nationally recognized rating agency that requires access to information about a Lender’s investment portfolio in connection with ratings issued with respect to such Lender, (j) to any other
party hereto, (k) with the consent of the Borrower, (l) in connection with the exercise of any remedy hereunder or under any other Loan Document or (m) to market data collectors, similar services providers to the lending industry and
service providers to the Administrative Agent in connection with the administration and management of this Agreement and the Loan Documents; provided that disclosure pursuant to this clause (m) is limited to non-identifying
information; provided that, in the event a Lender receives a summons or subpoena to disclose confidential information to any party, such Lender shall, if legally permitted and practicable, endeavor
to notify the Borrower thereof as soon as possible after receipt of such request, summons or subpoena and to afford the Loan Parties an opportunity to seek protective orders, or such other confidential treatment of such disclosed
information, as the Loan Parties may deem reasonable. Any Person required to maintain the confidentiality of Information as provided in this Section 9.14 shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information. For the avoidance of doubt, nothing in this Section 9.14 is intended to
prohibit any Person or its affiliates’ officers, directors, employees and representatives from voluntarily disclosing or providing any Information to any governmental, regulatory or self-regulatory organization to the extent that any such
prohibition on disclosure set forth herein shall be prohibited by the laws or regulations applicable to such governmental, regulatory, or self-regulatory organization, including as may be required by the rules, regulations, schedules and
forms of the Securities and Exchange Commission, the Commodity Futures Trading Commission or FINRA, provided that the Loan Parties shall be informed promptly thereof of such disclosure to the extent lawfully permitted to do so.
Section 9.15 Accounting Changes. In the event that any “Accounting Change” (as defined below) shall occur and such change results in a
change in the method of calculation of financial covenants, standards or terms in this Agreement, and either the Borrower or the Required Lenders shall so request (or if the Administrative Agent notifies the Borrower that the Required
Lenders so request), then the Borrower and the Lenders agree to enter into negotiations in order to amend such provisions of this Agreement so as to equitably reflect such Accounting Change with the desired result that the criteria for
evaluating the Borrower’s financial condition shall be the same after such Accounting Change as if such Accounting Change had not been made. Until such time as such an amendment shall have been executed and delivered in accordance with Section 9.1,
all financial covenants, standards and terms in this Agreement shall continue to be calculated or construed as if such Accounting Change had not occurred. “Accounting Change” refers to (i) any
election by the Borrower to apply IFRS accounting principles in lieu of GAAP in accordance with the definition of “GAAP” hereunder and (ii) any change in accounting principles required by the promulgation of any rule, regulation,
pronouncement or opinion by the FASB, GAAP, any other generally accepted accounting authority which provides regulation standard or, if applicable, the SEC.
Section 9.16 WAIVERS OF JURY TRIAL. EACH LOAN PARTY, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY AND WHETHER IN LAW OR EQUITY) AND FOR ANY COUNTERCLAIM THEREIN.
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Section 9.17 Conversion of Currencies.
(a) If, for the purpose of obtaining judgment in any court, it is necessary to convert a sum owing hereunder in one currency into
another currency, each party hereto agrees, to the fullest extent that it may effectively do so, that the rate of exchange used shall be that at which, in accordance with normal banking procedures in the relevant jurisdiction, the first
currency could be purchased with such other currency on the Business Day immediately preceding the day on which final judgment is given.
(b) The obligations of the Borrower in respect of any sum due to any party hereto or any holder of the obligations owing hereunder
(the “Applicable Creditor”) shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than the currency in which such sum is stated to be due hereunder (the “Agreement Currency”), be discharged
only to the extent that, on the Business Day following receipt by the Applicable Creditor of any sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may in accordance with normal banking procedures in the relevant
jurisdiction purchase the Agreement Currency with the Judgment Currency; if the amount of the Agreement Currency so purchased is less than the sum originally due to the Applicable Creditor in the Agreement Currency, the Borrower agrees, as
a separate obligation and notwithstanding any such judgment, to indemnify the Applicable Creditor against such loss. The obligations of the Borrower contained in this Section 9.17 shall survive the termination of this Agreement and
the payment of all other amounts owing hereunder.
Section 9.18 USA PATRIOT ACT. Each Lender that is subject to the PATRIOT Act and the Beneficial
Ownership Regulation and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the PATRIOT Act and the Beneficial Ownership Regulation, it is required to
obtain, verify and record information that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to
identify each Loan Party in accordance with the PATRIOT Act and the Beneficial Ownership Regulation. The Borrower shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other
information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the
Beneficial Ownership Regulation.
Section 9.19 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is made to the Administrative Agent or any
Lender, or the Administrative Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or
required (including pursuant to any settlement entered into by the Administrative Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Bankruptcy Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the
Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Effective Rate from time to time in
effect. The obligations of the Lenders under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.
128
Section 9.20 Release of Collateral and Guarantees. Each of the Lenders irrevocably authorizes the Administrative Agent to be the agent of
the Lenders with respect to the Collateral, the Guarantee Agreements and the Security Documents and the Administrative Agent agrees that:
(a) The Guarantee of any Guarantor shall be automatically
and unconditionally released, and no further action by such Guarantor or the Administrative Agent is required for the release of such Guarantor’s Guarantee under a Guarantee Agreement or any other Loan Document, if:
(i) in connection with any sale, exchange, transfer or other disposition of all or substantially all the assets
of that Guarantor (including by way of merger, consolidation or dissolution) to a Person that is not the Borrower or a Restricted Subsidiary, if the sale, exchange, transfer or other disposition does not violate this Agreement;
(ii) in connection with any sale, transfer or other disposition of Capital Stock of that Guarantor to a Person that is not the
Borrower or a Restricted Subsidiary and that results in such Guarantor ceasing to be a Restricted Subsidiary, if the sale, transfer or other disposition does not violate this Agreement;
(iv) solely with respect to any Restricted Subsidiary that became a Guarantor pursuant to Section 6.7,
so long as such Restricted Subsidiary does not then have outstanding any other Indebtedness or guarantees that would give rise to an obligation to provide a guarantee pursuant to Section 6.7, upon the release or discharge by such
Guarantor of Indebtedness that gave rise to such Restricted Subsidiary becoming a Guarantor or the Guarantor being released as a Guarantor of such Indebtedness (it being understood that a release subject to a contingent reinstatement is
still a release, and if any such Indebtedness of such Guarantor is so reinstated, such Guarantee shall also be reinstated).
(b) The Administrative Agent’s Lien on any property granted to or held by the Administrative Agent under any Loan Document shall be
automatically and fully released (i) upon satisfaction of the Termination Conditions, (ii) at the time the property subject to such Lien is sold (other than to any Person that would be required pursuant to any Security Document to grant a
Lien on such Collateral to the Administrative Agent for the benefit of the Secured Parties after giving effect to such disposition) as part of or in connection with any disposition permitted hereunder or under any other Loan Document,
(iii) to the extent (and only for so long as) such property constitutes an “Excluded Asset,” (iv) as required pursuant to the terms of any Equal Priority Intercreditor Agreement or any Junior Priority Intercreditor Agreement or
(v) if approved, authorized or ratified in writing in accordance with Section 9.1.
(c) On the date that the Termination Conditions are satisfied, the Collateral shall be released from the Liens created by the
Security Documents, and the Security Documents and all obligations (other than those expressly stated to survive such termination) of the Administrative Agent and the Borrower under the Security Documents shall terminate, all without the
need to deliver any instrument or performance of any act by any Person.
(d) It will promptly execute, authorize or file such documentation as may be reasonably requested by any Borrower to release, or
evidence the release (in registrable form, if applicable), its Liens with respect to any Collateral as set forth in this Section 9.20; provided that the foregoing shall be at the Borrower’s expense and in form and substance
reasonably satisfactory to the Administrative Agent.
129
Section 9.21 Acknowledgment and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any
Loan Document or in any other agreement, arrangement or understanding among any of the parties hereto, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent
such liability is unsecured, may be subject to the Write-Down and Conversion Powers of an applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by the
applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(ii) a conversion of all, or a portion of, such liability into shares or other
instruments of ownership in such Affected Financial Institution, its parent entity or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it
in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise
of the Write-Down and Conversion Powers of any applicable Resolution Authority.
Section 9.22 Acknowledgment Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or
otherwise, for Hedging Obligations or any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to
the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder,
the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed
by the laws of the State of New York and/or of the United States or any other state of the United States).
(a) 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 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.
130
Section 9.23 Equal Priority Intercreditor Agreement. If the Borrower or any Guarantor (i) incurs any obligations in respect of Equal
Priority Obligations at any time when no applicable Equal Priority Intercreditor Agreement is in effect or at any time when Indebtedness constituting Equal Priority Obligations entitled to the benefit of an existing Equal Priority
Intercreditor Agreement is concurrently retired, and (ii) delivers to the Administrative Agent an Officer’s Certificate so stating and requesting the Administrative Agent to enter into an equal priority intercreditor agreement (in
customary market form (as reasonably determined by the Administrative Agent and the Borrower as set forth in an Officer’s Certificate delivered to the Administrative Agent)) in favor of a designated agent or representative for the holders
of the Equal Priority Obligations so incurred, the Administrative Agent shall (and is hereby authorized and directed to) enter into such intercreditor agreement (at the sole expense and cost of the Borrower, including reasonable legal
fees and expenses of the Administrative Agent), bind the Lenders on the terms set forth therein and perform and observe its obligations thereunder.
Section 9.24 Junior Priority Intercreditor Agreement. If the Borrower or any Guarantor incurs Junior Priority Obligations secured (and
permitted by this Agreement to be secured) by Liens on the Collateral having, or intending to have, a Junior Lien Priority ranking relative to the Liens on the Collateral securing the Obligations, the Administrative Agent and the
applicable Junior Priority Collateral Agent(s) will enter into a junior priority intercreditor agreement (in customary market form (as reasonably determined by the Administrative Agent and the Borrower as set forth in an Officer’s
Certificate delivered to the Administrative Agent)) (as the same may be amended, restated, renewed, replaced or otherwise modified from time to time, a “Junior Priority Intercreditor Agreement”). The Junior Priority Intercreditor
Agreement may be entered into and amended from time to time thereafter without the consent of the Lenders to add other parties holding Equal Priority Obligations and/or Junior Priority Obligations permitted to be incurred and secured
under this Agreement and the relevant agreements, or their respective representatives.
131
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers as of the day and year
first above written.
|
FTAI INFRASTRUCTURE INC.,
|
|||
|
as the Borrower
|
|||
|
By:
|
/s/ Kenneth Nicholson
|
||
|
Name:
|
Kenneth Nicholson
|
||
|
Title:
|
Chief Executive Officer
|
||
[FTAI Infrastructure Inc. – Signature Page to Credit Agreement]
|
BARCLAYS BANK PLC,
|
|||
|
By:
|
/s/ Craig J. Malloy
|
||
|
Name:
|
Craig J. Malloy
|
||
|
Title:
|
Director
|
||
[FTAI Infrastructure Inc. – Signature Page to Credit Agreement]
|
DEUTSCHE BANK SECURITIES INC.,
|
|||
|
as Arranger
|
|||
|
By:
|
/s/ Edwin Roland
|
||
|
Name:
|
Edwin Roland
|
||
|
Title:
|
Managing Director
|
||
|
By:
|
/s/ Ryan Corning
|
||
|
Name:
|
Ryan Corning
|
||
|
Title:
|
Managing Director
|
||
|
DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH
|
|||
|
as Lender
|
|||
|
By:
|
/s/ Philip Tancorra
|
||
|
Name:
|
Philip Tancorra
|
||
|
Title:
|
Director
|
||
|
By:
|
/s/ Suzan Onal
|
||
|
Name:
|
Suzan Onal
|
||
|
Title:
|
Director
|
||
[FTAI Infrastructure Inc. – Signature Page to Credit Agreement]
|
MORGAN STANLEY SENIOR FUNDING,
|
|||
|
as Lender and Arranger
|
|||
|
By:
|
/s/ Maya Venkatraman
|
||
|
Name:
|
Maya Venkatraman
|
||
|
Title:
|
Authorized Signatory
|
||
[FTAI Infrastructure Inc. – Signature Page to Credit Agreement]
|
Lender
|
Commitment
|
||||
|
Barclays Bank PLC
|
$
|
500,000,000.00
|
|||
|
Deutsche Bank Cayman Islands Branch
|
$
|
500,000,000.00
|
|||
|
Morgan Stanley Senior Funding, Inc.
|
$
|
250,000,000.00
|
|||
|
Total Commitments
|
$
|
1,250,000,000.00
|
|||
Exhibit 10.2
EXECUTION VERSION
Amended and Restated
Limited Liability Company Agreement
of
FIP RR Holdings LLC
August 25, 2025
THE UNITS REPRESENTED BY THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY OTHER
APPLICABLE SECURITIES LAWS. SUCH UNITS MAY NOT BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF AT ANY TIME WITHOUT EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR EXEMPTION THEREFROM, AND COMPLIANCE WITH THE OTHER SUBSTANTIAL
RESTRICTIONS ON TRANSFERABILITY SET FORTH HEREIN.
THE UNITS REPRESENTED BY THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT ARE SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER SET FORTH IN THIS AGREEMENT.
TABLE OF CONTENTS
|
Page No.
|
|||
|
ARTICLE I GENERAL PROVISIONS; DEFINITIONS
|
2
|
||
|
Section 1.1
|
Formation of the Company; Term
|
2
|
|
|
Section 1.2
|
Limited Liability Company Agreement
|
2
|
|
|
Section 1.3
|
Name
|
2
|
|
|
Section 1.4
|
Purpose and Powers
|
3 | |
|
Section 1.5
|
Principal Office; Registered Office and Agent
|
3
|
|
|
Section 1.6
|
No State-Law Partnership
|
3
|
|
|
Section 1.7
|
Definitions
|
3
|
|
|
Section 1.8
|
Rule of Construction
|
34
|
|
|
ARTICLE II CAPITAL STRUCTURE, CONTRIBUTIONS AND ACCOUNTS
|
35
|
||
|
Section 2.1
|
Authorized Units
|
35
|
|
|
Section 2.2
|
Unit Ownership Ledger; Capital Contributions; Issuance of Units
|
35
|
|
|
Section 2.3
|
Series A Preferred Units
|
37
|
|
|
Section 2.4
|
Equity Awards
|
49 | |
|
Section 2.5
|
Concurrent Series A Warrant and Series A Warrant Unit Repurchase.
|
49
|
|
|
Section 2.6
|
Capital Account.
|
52
|
|
|
Section 2.7
|
Negative Capital Accounts
|
53
|
|
|
Section 2.8
|
No Interest
|
53
|
|
|
Section 2.9
|
No Withdrawal
|
53
|
|
|
Section 2.10
|
Additional Issuances
|
53
|
|
|
Section 2.11
|
Rights Upon Event of Noncompliance.
|
55
|
|
|
Section 2.12
|
IPO Structure
|
56
|
|
|
ARTICLE III DISTRIBUTIONS AND ALLOCATIONS
|
57
|
||
|
Section 3.1
|
Distributions
|
57
|
|
|
Section 3.2
|
Allocations
|
60
|
|
|
Section 3.3
|
Special Allocations
|
61
|
|
|
Section 3.4
|
Tax Allocations
|
62
|
|
|
Section 3.5
|
Indemnification and Reimbursement for Payments on Behalf of a Unitholder
|
63
|
|
|
Section 3.6
|
Certain Determinations
|
64
|
|
|
Section 3.7
|
Series A Warrants.
|
64
|
|
|
ARTICLE IV MANAGEMENT
|
66 | ||
|
Section 4.1
|
Authority of Board
|
66 | |
|
Section 4.2
|
Composition of the Board
|
67
|
|
|
Section 4.3
|
Proxies
|
68
|
|
|
Section 4.4
|
Meetings; Quorum; Voting.
|
69
|
|
|
Section 4.5
|
Delegation of Authority
|
69
|
|
|
Section 4.6
|
Expenses
|
70
|
|
|
Section 4.7
|
Officers.
|
70
|
|
i
|
Section 4.8
|
Purchase of Units
|
71
|
|
|
Section 4.9
|
Third Party Reliance; Discretion
|
71
|
|
|
Section 4.10
|
No Implied Duties; Standards of Conduct
|
72
|
|
|
Section 4.11
|
Effect on Other Agreements
|
72
|
|
|
Section 4.12
|
Limitations on the Company’s Activities; Separateness.
|
72
|
|
|
ARTICLE V UNITHOLDERS
|
76 |
||
|
Section 5.1
|
Limitation of Liability
|
77 | |
|
Section 5.2
|
Lack of Authority
|
77
|
|
|
Section 5.3
|
No Right of Partition
|
77
|
|
|
Section 5.4
|
Confidentiality
|
78
|
|
|
Section 5.5
|
Voting Rights
|
78
|
|
|
Section 5.6
|
Members Right to Act
|
78
|
|
|
Section 5.7
|
Investment Opportunities and Conflicts of Interest; Waiver of Corporate Opportunities
|
79
|
|
|
Section 5.8
|
Conflict of Interest Transactions
|
80
|
|
|
ARTICLE VI EXCULPATION AND INDEMNIFICATION
|
80
|
||
|
Section 6.1
|
Liability of Indemnitees.
|
80
|
|
|
Section 6.2
|
Indemnification.
|
81
|
|
|
ARTICLE VII DISSOLUTION AND LIQUIDATION
|
83
|
||
|
Section 7.1
|
Dissolution
|
83
|
|
|
Section 7.2
|
Liquidation of Company Interests
|
83
|
|
|
Section 7.3
|
Valuation
|
85
|
|
|
Section 7.4
|
Property Distributions.
|
85
|
|
|
ARTICLE VIII BOOKS OF ACCOUNT
|
86
|
||
|
Section 8.1
|
Records and Accounting
|
86
|
|
|
Section 8.2
|
Bank Accounts
|
86
|
|
|
Section 8.3
|
Fiscal Year
|
86
|
|
|
Section 8.4
|
Tax Elections
|
86
|
|
|
Section 8.5
|
Tax Reports
|
86
|
|
|
Section 8.6
|
Partnership Representative
|
86
|
|
|
Section 8.7
|
Code §83 Safe Harbor Election
|
87
|
|
|
Section 8.8
|
Information Rights; Tax Filings; Inspection Rights; Material Events
|
87
|
|
|
ARTICLE IX TRANSFER OF COMPANY INTERESTS
|
89 |
||
|
Section 9.1
|
Transfer In General
|
89
|
|
|
Section 9.2
|
Permitted Transfers
|
90
|
|
|
Section 9.3
|
Tag-Along Rights.
|
90
|
|
|
Section 9.4
|
Drag-Along Rights.
|
93
|
|
|
Section 9.5
|
Assignee’s Rights
|
95
|
|
|
Section 9.6
|
Assignor’s Rights and Obligations
|
96
|
|
|
Section 9.7
|
Transfer Fees and Expenses
|
96
|
|
|
Section 9.8
|
Void Transfers
|
96
|
|
ii
|
Section 9.9
|
Registration Rights
|
97 | |
|
ARTICLE X ADMISSION OF MEMBERS
|
97
|
||
|
Section 10.1
|
Substituted Members
|
97
|
|
|
Section 10.2
|
Additional Members
|
97
|
|
|
ARTICLE XI WITHDRAWAL AND RESIGNATION OF UNITHOLDERS
|
97
|
||
|
Section 11.1
|
Withdrawal and Resignation of Unitholders
|
98 | |
|
ARTICLE XII MISCELLANEOUS
|
98
|
||
|
Section 12.1
|
Power of Attorney
|
98
|
|
|
Section 12.2
|
Further Assurances
|
98
|
|
|
Section 12.3
|
Title to Company Assets
|
99
|
|
|
Section 12.4
|
Creditors
|
99
|
|
|
Section 12.5
|
Amendments, Modifications, or Waivers
|
99
|
|
|
Section 12.6
|
Successors and Assigns
|
99
|
|
|
Section 12.7
|
Remedies
|
100
|
|
|
Section 12.8
|
Governing Law
|
100
|
|
|
Section 12.9
|
Jurisdiction; Service of Process
|
100
|
|
|
Section 12.10
|
WAIVER OF JURY TRIAL
|
100
|
|
|
Section 12.11
|
Severability
|
101
|
|
|
Section 12.12
|
Counterparts; Binding Agreement
|
101
|
|
|
Section 12.13
|
Descriptive Headings; Interpretation
|
101
|
|
|
Section 12.14
|
Notices
|
101
|
|
|
Section 12.15
|
Complete Agreement
|
102
|
|
|
Section 12.16
|
Electronic Delivery
|
102
|
|
|
Section 12.17
|
Undertaking
|
103
|
|
|
Section 12.18
|
Survival
|
103
|
|
|
Section 12.19
|
Certain Acknowledgements
|
103
|
|
|
Section 12.20
|
Spousal Consent
|
103
|
|
|
Section 12.21
|
STB Matters
|
103
|
|
|
Section 12.22
|
No Waiver; Preservation of Rights
|
104
|
|
iii
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF
FIP RR HOLDINGS LLC
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended, modified, restated, or supplemented from time to time in accordance with
the terms hereof, this “Agreement”) is made as of August 25, 2025 (the “Effective Date”), by and among (i) FIP RR Holdings LLC, a Delaware limited liability company, (i) the Unitholders and each Person subsequently holding Units or
subsequently admitted as a Member in accordance with the terms hereof, (iii) the Independent Manager and (iv) solely for purposes of Section 2.3(c) and Section 12.21, FTAI Infrastructure Inc., a Delaware corporation (“FIP”).
Certain capitalized terms used herein are defined in Section 1.7.
WHEREAS, the initial limited liability agreement of the Company was entered into as of August 14, 2025 (the “Original Agreement”);
WHEREAS, Percy Acquisition LLC, a Delaware limited liability company (“Percy”), has entered into that certain Stock Purchase Agreement, dated
as of August 6, 2025 (the “Wheeling SPA”), by and between Percy and WLE Management Partners, L.P., a Delaware limited partnership, relating to the purchase and sale of all of the outstanding Equity Securities of The Wheeling Corporation, a
Delaware corporation (the “Target” and, such acquisition, the “Acquisition”);
WHEREAS, (i) certain of the Subsidiaries of Transtar LLC, an indirect Subsidiary of FIP (“Transtar”), formed as corporations have converted
into Delaware limited liability companies and (ii) on August 25, 2025, Percy contributed all of the issued and outstanding Equity Securities of Transtar to the Company pursuant to that certain Contribution Agreement, dated as of August 25, 2025,
among Percy, the Company and Transtar such that Transtar became a wholly owned Subsidiary of the Company (collectively, the “Reorganization”);
WHEREAS, on August 25, 2025, Percy assigned all of its rights under the Wheeling SPA to acquire the Target to the Company (the “Assignment”);
WHEREAS, (i) immediately prior to the consummation of the Acquisition pursuant to the Wheeling SPA and the Voting Trust Agreement, but conditioned
thereon, and (ii) contemporaneously with the consummation of the transactions contemplated by that certain Subscription Agreement, dated as of August 25, 2025 (the “Subscription Agreement”), among the Company and the Unitholders party
thereto, on the Effective Date, each such Unitholder holding Series A Preferred Units has made a Capital Contribution in the amount set forth opposite such Unitholder’s name on the Unit Ownership Ledger (the “Investment Amount”) in exchange
for (i) that number of Series A Preferred Units set forth opposite the Unitholder’s name under the heading “Number of Series A Preferred Units” on the Unit Ownership Ledger and (ii) Series A Warrants representing the right to purchase that number
of Common Units set forth opposite the Unitholder’s name under the heading “Number of Warrants” on the Unit Ownership Ledger;
WHEREAS, (i) immediately prior to the consummation of the Acquisition pursuant to the Wheeling SPA and the Voting Trust Agreement, but conditioned
thereon, FIP has borrowed $1.25 billion aggregate principal amount of senior secured increasing rate loans (the “Bridge Loans”) pursuant to that certain Credit Agreement, dated as of the Effective Date, by and among FIP, the guarantors party
thereto, Barclays Bank PLC, as administrative agent, and the other lenders party thereto (the “Bridge Facility”) and (ii) immediately prior to the borrowing described in the foregoing clause (i), and immediately following the funding of the
Investment Amount described in the foregoing recitals, FIP has contributed a portion of the cash proceeds from the Bridge Loans to the Company and (iii) immediately following the receipt of funds contemplated by the foregoing clauses (i) and (ii),
the Company has used such funds to consummate the Acquisition; and
WHEREAS, the parties hereto desire to enter into this Agreement to replace the Original Agreement and to provide for certain agreements governing
the business and affairs of the Company as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises made herein and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
GENERAL PROVISIONS; DEFINITIONS
Section 1.1 Formation of the
Company; Term. The Company was formed on August 14, 2025, by the execution and filing of a certificate of formation of the Company with the Secretary of State of the State of Delaware setting forth the information required by the Act
(the “Certificate”). The term of the Company commenced upon the filing of the Certificate and shall continue in perpetuity until the dissolution and termination of the Company in accordance with the provisions of Article VII.
Section 1.2 Limited
Liability Company Agreement. The Unitholders have entered into this Agreement for the purpose of establishing the affairs of the Company and the conduct of its business in accordance with the provisions of the Act. The Unitholders
hereby agree that, during the term of the Company set forth in Section 1.1, the rights and obligations of the Unitholders with respect to the Company will be determined in accordance with the terms and conditions of this Agreement and,
except where the Act provides that such rights and obligations specified in the Act shall apply “unless otherwise provided in a limited liability company agreement” or words of similar effect and such rights and obligations are set forth in this
Agreement, the Act; provided that, notwithstanding the foregoing, Section 18‑210 of the Act shall not apply to or be incorporated into this Agreement and each Unitholder hereby expressly waives any and all rights under such Section of the
Act.
Section 1.3 Name.
The name of the Company shall be “FIP RR Holdings LLC” or such other name or names as may from time to time be designated by the Board. The Company’s business may be conducted under its name or any other name or names as the Board may deem
advisable.
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Section 1.4 Purpose and Powers. The Company is
organized for the object and purpose of engaging solely in the following activities: (a) (i) owning the Equity Securities of Transtar and the Target, (ii) owning other railroad-related assets or interests in other railroad-related assets acquired
on or after the date hereof in accordance with the terms of this Agreement, and (iii) entering into and performing its obligations under any other agreement, instrument or document relating to the activities set forth in clause (i) and (ii); and
(b) engaging in any lawful act or activity and exercising any powers not prohibited under the Act and permitted to limited liability companies organized under the laws of the State of Delaware that are related or incidental to and necessary,
convenient or advisable for the accomplishment of the above‑mentioned purposes, including, without limitation, establishing, owning and otherwise dealing with related collection, deposit, custodial, trust and other accounts, lock boxes and post
office boxes and any amounts and other items from time to time on deposit therein. The Company shall not engage in any activity other than reasonably incidental in connection with the foregoing.
Section 1.5 Principal
Office; Registered Office and Agent.
(a) The principal office of the Company shall be located at 111 W. 19th Street, 2nd Floor, New York, New York 10011, or at such other place (whether inside or
outside the State of Delaware) as the Board may from time to time designate; provided, that any such designation does not materially adversely affect any Unitholder holding Series A Preferred Units. The Company may have such other offices
(whether inside or outside the State of Delaware) as the Board may from time to time designate.
(b) The registered office of the Company in the State of Delaware is located at 1209 Orange Street, Wilmington, Delaware 19801. The registered agent of the
Company for service of process at such address is The Corporation Trust Company. The Board may, in its discretion, change the registered office or registered agent from time to time by filing the address of the new registered office or the name
of the new registered agent with the Secretary of State of the State of Delaware pursuant to the Act.
Section 1.6 No State-Law
Partnership. The Unitholders intend that the Company not be a partnership (including a limited partnership) or joint venture, and that no Unitholder be a partner or joint venturer of any other Unitholder by virtue of this Agreement,
for any purposes other than as set forth in the immediately following sentence, and neither this Agreement nor any document entered into by the Company or any Unitholder shall be construed to suggest otherwise. The Unitholders intend that the
Company shall be treated as a partnership for federal and, if applicable, state or local income tax purposes, and the Company and each Unitholder shall file all tax returns and shall otherwise take all tax and financial reporting positions in a
manner consistent with such treatment.
Section 1.7 Definitions.
Capitalized terms used but not otherwise defined herein shall have the following meanings:
“Acquisition” shall have the meaning set forth in the recitals.
“Act” means the Delaware Limited Liability Company Act, 6 Del. L. Section 18-101, et seq., as it may be amended from time to time, and any
successor thereto.
“Additional Member” means a Person admitted to the Company as a Member pursuant to Section 10.2.
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“Adjusted Capital Account Deficit” means, with respect to any Capital Account as of the end of any Taxable Year, the amount by which the
balance in such Capital Account is less than zero. For this purpose, such Person’s Capital Account balance shall be determined in accordance with Treasury Regulation Section 1.704‑1(b)(2)(ii)(d).
“Admission Date” shall have the meaning set forth in Section 9.6.
“Affiliate” of any particular Person means any other Person controlling, controlled by or under common control with such particular Person,
where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, by agreement or otherwise. For purposes of this Agreement, in no event
shall (a) the Company or any of its Subsidiaries constitute an Affiliate of any Unitholder that is Affiliated with any of the Ares Group Members, (b) Fortress or any of its Affiliates constitute an Affiliate of the Company due to the Management
Agreement, (c) Mubadala Investment Company PJSC or any of its Affiliates (collectively, “Mubadala”) constitute an Affiliate of the Company due to its direct or indirect ownership interests in Fortress or any of its Affiliates and (d) any
Ares Group Member constitute an Affiliate of the Company or any of its Subsidiaries.
“Affiliate Indemnitors” shall have the meaning set forth in Section 6.2(h).
“Affiliate Transaction” shall have the meaning set forth in Section 2.3(e)(v).
“Agreement” shall have the meaning set forth in the preamble.
“Ares Member” means each of the parties listed under the heading “Ares Members” on the signature pages hereto, together with any of its
Permitted Transferees that becomes a substitute Member or an Additional Member.
“Ares Group Members” means any funds, investment vehicles or accounts managed or advised by (i) Ares Management LLC or (ii) any of its
Affiliates.
“Asset Sale” means
(a) the sale, conveyance, transfer or other disposition, whether in a single transaction or a series of related transactions, of property or assets (including by way of a sale, Sale/Leaseback
Transaction, equity sale, merger, consolidation, combination etc.) of the Company or any of its Subsidiaries (each referred to in this definition as a “disposition”); or
(b) the issuance or sale of Equity Securities of any Subsidiary, whether in a single transaction or a series of related transactions;
in each case, other than any of the following, if in compliance with the other terms and conditions of this Agreement:
(1) (A)(i) a disposition of Cash Equivalents, (ii) any disposition of inventory or goods held for sale or (iii) dispositions of any obsolete, damaged or worn-out assets, in each case, in the
ordinary course of business; or (B) (i) dispositions constituting lost or stolen assets, or (ii) disposition of assets, including abandoned or destroyed assets, in the ordinary course of business with a de minimis fair market value that are no
longer used, useful or economically practicable to maintain;
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(2) the disposition of all or substantially all the assets of the Company in a manner permitted under this Agreement or any disposition that constitutes a Change of Control or Sale of the
Company pursuant to this Agreement, in each case, to the extent resulting in a Mandatory Redemption Event;
(3) the making of any Restricted Payment that is permitted to be made, and is made, in compliance with Section 2.3(e)(xii);
(4) any issuance or sale of Equity Securities of the Company;
(5) any disposition of property or assets or issuance of Equity Securities by a wholly owned Subsidiary to the Company or by the Company or a wholly owned Subsidiary to another wholly owned
Subsidiary;
(6) to the extent qualifying for tax-free treatment under Section 1031 of the Code, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(7) the lease, assignment, sub-lease or license of any assets or real or personal property, including the sale of assets to lease customers upon termination of any of the foregoing pursuant to
the terms thereof, in each case, in the ordinary course of business;
(8) the surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claim of any kind, in each case, in the ordinary course of business;
(9) foreclosures, condemnations or any similar actions on assets to the extent not generating cash or Cash Equivalents to the Company or its Subsidiaries;
(10) the licensing or sub-licensing of intellectual property and software or other general intangibles, in each case, in the ordinary course of business;
(11) dispositions or conveyances that constitute Permitted Liens;
(12) the unwinding of any Hedging Obligations; and
(13) any financing transaction with respect to property built or acquired by the Company or any Subsidiary of the Company after the Effective Date, including by a Sale/Leaseback Transaction and a Financing Lease,
in each case, occurring or Incurred in accordance with the terms of this Agreement.
“Assignee” means a Person to whom Units have been transferred in accordance with the terms of this Agreement but who has not become a Member
pursuant to Article X.
“Assignment” shall have the meaning set forth in the recitals.
“Assumed Tax Rate” shall have the meaning set forth in Section 3.1(g).
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“Bankruptcy Event” means:
(1) the Company or any of its Subsidiaries pursuant to or within the meaning of any Bankruptcy Law:
| (a) |
commences proceedings to be adjudicated bankrupt or insolvent;
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| (b) |
consents to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under applicable Bankruptcy Law;
|
| (c) |
consents to the appointment of a receiver, liquidator, assignee, trustee or other similar official of it or for all or substantially all of its property;
|
| (d) |
makes a general assignment for the benefit of its creditors; or
|
| (e) |
makes an admission in writing of its inability generally to pay its debts as they become due; or
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(2) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
| (a) |
is for relief against the Company or any of its Subsidiaries in a proceeding in which it is to be adjudicated bankrupt or insolvent;
|
| (b) |
appoints a receiver, liquidator, assignee, trustee or other similar official of the Company or any of its Subsidiaries for all or substantially all of the property of the Company or any of its Subsidiaries; or
|
| (c) |
orders the liquidation of the Company or any of its Subsidiaries; and the order or decree remains unstayed and in effect for 60 consecutive days.
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“Bankruptcy Law” means the Title 11 of the United States Code, as amended, and any similar federal, state or foreign law for the relief of
debtors.
“Base Rate” means, as of any date, a variable rate per annum equal to the rate of interest most recently published by the Wall Street Journal as the “prime rate” at large U.S. money center banks.
“Base Series A Preferred Return Amount” means, at any time of determination, an amount of cash that
would be required to be paid to the Unitholder in respect of the each Series A Preferred Unit such that the Series A Preferred Return on Investment with respect to such Series A Preferred Unit would be equal to one and one half (1.50) (provided,
that, if (i) the Base Series A Preferred Return Amount is being measured in connection with the determination of the Series A Preferred Redemption Price for a Mandatory Redemption Event arising out of a STB Failure, and (ii) such mandatory
redemption occurs (and is fully paid) on or before the eighteen (18)-month anniversary of the Effective Date and the Unitholders holding such Series A Preferred Units, the Series A Warrants and/or the Series A Warrant Units are paid in full at the
time of the occurrence, the Series A Preferred Return on Investment with respect to such Series A Preferred Unit would be equal to one and three-tenths (1.30)).
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“Blocker” means an entity treated as a domestic c-corporation for federal income tax purposes that owns interests in the Company directly or
indirectly through entities that are treated as partnerships or disregarded entities for federal income tax purposes.
“Board” means the board of managers of the Company, which shall have the power and authority described in this Agreement.
“Board Expansion Date” shall have the meaning set forth in Section 2.11(b).
“Book Value” means, with respect to any Company property, the Company’s adjusted basis for federal income tax purposes, adjusted from time to
time to reflect the adjustments required or permitted (in the case of permitted adjustments, to the extent the Company makes such permitted adjustments) by Treasury Regulation Sections 1.704-1(b)(2)(iv)(d)-(g) and (s).
“Bridge Facility” shall have the meaning set forth in the recitals.
“Bridge Loans” shall have the meaning set forth in the recitals.
“Business Day” means any day excluding Saturday, Sunday or any day that is a legal holiday under the laws of the State of New York or is a
day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.
“Capital Account” shall have the meaning set forth in Section 2.6(a).
“Capital Contributions” means any cash or the Fair Market Value of other property that a Unitholder contributes or is deemed to have
contributed to the Company with respect to the issuance of any Unit pursuant to Section 2.2. The Members and the Company agree that the Capital Contributions made or deemed made by RR Holding Company on or about the Effective Date
(including the Fair Market Value of any property so contributed or deemed contributed) shall be an amount that is consistent with the Series A Warrants being “at-the-money” as of the Effective Date, and the Unit Ownership Ledger shall be maintained
consistently therewith.
“Cash Equivalents” means:
| (1) |
United States dollars;
|
| (2) |
pounds sterling;
|
| (3) |
(a) euros, or any national currency of any participating member state in the European Union; (b) Canadian dollars, (c) Australian dollars or (d) in the case of any foreign Subsidiary, such local currencies held by them from time to time
in the ordinary course of business;
|
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| (4) |
securities issued or directly and fully and unconditionally guaranteed or insured by the United States or Canadian government or any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a full faith
and credit obligation of such government with maturities of 24 months or less from the date of acquisition;
|
| (5) |
certificates of deposit, time deposits and eurodollar time deposits with maturities of 24 months or less from the date of acquisition, bankers’ acceptances with maturities not exceeding 24 months and overnight bank deposits, in each case
with any commercial bank having capital and surplus in excess of $500,000,000;
|
| (6) |
repurchase obligations for underlying securities of the types described in clauses (4) and (5) above entered into with any financial institution
meeting the qualifications specified in clause (5) above;
|
| (7) |
commercial paper rated at least P-2 by Moody’s or at least A-2 by S&P and in each case maturing within 24 months after the date of creation thereof;
|
| (8) |
investment funds investing ninety-five percent (95.0%) of their assets in securities of the types described in clauses (1) through (7) above;
|
| (9) |
readily marketable direct obligations issued by any state of the United States of America or any political subdivision thereof or any Province of Canada having one of the two highest rating categories obtainable from either Moody’s or
S&P with maturities of 24 months or less from the date of acquisition; and
|
| (10) |
indebtedness or preferred equity issued by Persons with a rating of “A” or higher from S&P or “A2” or higher from Moody’s with maturities of 24 months or less from the date of acquisition.
|
Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (1) through (3) above; provided, that such amounts are converted into any currency listed in clauses (1) through (3) as promptly as practicable and in any event within ten Business Days following the receipt of such amounts.
“Catch-Up Series A Preferred Distribution Payment” shall have the meaning set forth in Section 3.1(f).
“Cause” means, with respect to the Independent Manager, (i) any act or omission by such Independent Manager constituting willful disregard of
such Independent Manager’s duties under this Agreement, fraud, dishonesty, gross negligence, willful misconduct or other deliberate action or material breach of this Agreement which causes injury to the Company or an act by such Independent Manager
involving moral turpitude or a serious crime, (ii) that such Independent Manager no longer meets the definition of “Independent Manager” as set forth in this Agreement or (iii) a material increase in fees charged by such Independent Manager without
a corresponding increase in duties.
“Certificate” shall have the meaning set forth in Section 1.1.
“Change of Control” means the occurrence of the following:
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(a) any Person or group of Persons, other than one or more Permitted Holders, (i) is or becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act), directly or indirectly, of voting securities representing more than fifty percent (50.0%) of the total voting power of the outstanding voting securities of the Company (including through a Transfer of any FIP Unitholder); or
(ii) obtains the power to elect a majority of the Board or another governing body of the Company, as applicable, except in the case of clause (ii) the Unitholders holding Series A Preferred Units; or
(b) (i) all or substantially all the assets of the Company and its Subsidiaries, taken as a whole, are sold or otherwise transferred (whether by sale, lease,
exchange, transfer or other disposition) to any Person other than one or more wholly owned Subsidiaries of the Company or one or more Permitted Holders in one transaction or a series of related transactions or (ii) the Company or FIP
consolidates, amalgamates or merges with or into another Person or any Person consolidates, amalgamates or merges with or into the Company or FIP in one transaction or a series of related transactions; provided that this clause (ii) shall
not apply to any consolidation, amalgamation or merger of the Company or FIP with another Person in which (x) immediately after the consummation thereof Person(s) beneficially owning (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, voting securities representing more than fifty percent (50.0%) of the total voting power of the outstanding voting securities of the Company or FIP as applicable immediately prior to such consummation continues to
beneficially own (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly (based solely on the conversion or retention of the Equity Securities in FIP owned by such Person), voting securities representing more than
fifty percent (50.0%) of the total voting power of the outstanding voting securities of the Company, FIP or the applicable surviving or transferee Person, as applicable, or (y) immediately after the consummation thereof, (I) in any consolidation,
amalgamation or merger involving the Company, one or more Permitted Holders, directly or indirectly, beneficially own voting securities representing more than fifty percent (50.0%) of the total voting power of the outstanding voting securities of
the Company as the constituent party, or the applicable surviving or transferee person, or (II) in any consolidation, amalgamation or merger involving FIP as the constituent party, one or more Permitted Holders, directly or indirectly,
beneficially own voting securities representing more than fifty percent (50.0%) of the total voting power of the outstanding voting securities of the FIP, or the applicable surviving or transferee person;
(c) FIP consummates a merger, consolidation, share exchange, statutory
conversion, recapitalization, reorganization, or other business combination (including, without limitation, a transaction effected through a subsidiary or the formation of a newly created subsidiary or “merger sub”) pursuant to which (i) the
outstanding shares of capital stock of the acquired entity are, directly or indirectly, exchanged for or converted into shares of capital stock of FIP or any parent entity thereof that directly or indirectly owns more than fifty percent (50.0%)
of the outstanding voting securities of FIP, and (ii) immediately after such transaction the former equity holders of the acquired entity, acting together, own beneficially or of record, or otherwise have the power to vote or direct the voting
of, securities representing more than fifty percent (50.0%) of the total combined voting power of FIP (or of any parent entity that directly or indirectly owns more than fifty percent (50.0%) of the outstanding voting securities of FIP); or
(d) termination, expiration or replacement of the Management Agreement; provided that, it will not be considered a Change of Control if (i) the Management
Agreement is replaced by a new agreement pursuant to which Fortress or one or more of its controlled Affiliates is the “manager” or (ii) occurring pursuant to an Internalization.
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For the purposes of this definition, if FIP is a direct or indirect Subsidiary of any Person then references to FIP shall also be deemed to include
the ultimate parent of FIP that directly or indirectly owns more than fifty percent (50.0%) of the outstanding voting securities of FIP.
“Chosen Courts” shall have the meaning set forth in Section 12.9.
“Code” means the United States Internal Revenue Code of 1986.
“Common Majority in Interest” means the holders of a majority of the Common Units, voting together as a single class.
“Common Percentage Interest” means, with respect to any Unitholder holding Common Units at any time (or Persons holding Series A Warrants),
the percentage of issued and outstanding Common Units held by such Unitholder at such time (calculated on a fully diluted basis assuming the full exercise of the Series A Warrant).
“Common Unit” means a Unit representing a fractional part of the Unitholders’ interests in the Profits, Losses and Distributions and, to the
extent the holder thereof has been admitted as a Member, having the other rights and obligations specified with respect to Common Units in this Agreement.
“Company” means FIP RR Holdings LLC, a Delaware limited liability company, and where the context otherwise requires, any successor entity
described in Section 12.6.
“Company Income Amount” shall have the meaning set forth in Section 3.1(g).
“Company Mandatory Redemption Event” means (A) Sale of the Company, (B) Drag-Along Sale, (C) STB Failure, (D) any IPO, (E) any SPAC, (F) any
Direct Listing, (G) Bankruptcy Event, or (H) Change of Control.
“Company Minimum Gain” means the partnership minimum gain determined pursuant to Treasury Regulation Section 1.704‑2(d).
“Confidential Information” shall have the meaning set forth in Section 5.4.
“Contingent Obligations” means, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends or other
obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person, whether or not contingent,
(1) to purchase any such primary obligation or any property constituting direct or indirect security therefor,
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(2) to advance or supply funds (a) for the purchase or payment of any such primary obligation or (b) to maintain working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor; or
(3) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such
primary obligation against loss in respect thereof.
“Control Investment Affiliate” means, as to any Person, any other Person that (a) directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person and (b) exists primarily for the purpose of making equity or debt investments in one or more companies. For purposes of this definition, “control” of a Person means the power, directly or indirectly, to
direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.
“Controlling Unitholders” means one or more Unitholders representing more than a majority of the Common Units.
“Corporate Member” means a Blocker that at all times since its formation through the closing of the relevant transaction in which the
Corporate Member’s equity is sold or Transferred pursuant to Section 2.3(f) (i) has never owned and will not own, directly and indirectly, assets other than equity or indebtedness interests in the Company and cash, (ii) has never had and
will not have indebtedness (other than shareholder debt, which shall be capitalized in connection with any such transaction) or liabilities (other than those directly arising from the ownership of the interests in the Company), and (iii) has never
had and will not have any employees.
“Court of Chancery” shall have the meaning set forth in Section 12.9.
“Delaware Federal Court” shall have the meaning set forth in Section 12.9.
“Depreciation and Amortization Expense” means with respect to any Person for any period, the total amount of depreciation and amortization
expense, including any amortization of deferred financing fees, amortization in relation to terminated Hedging Obligations and amortization of lease discounts and premiums and lease incentives, but excluding any items which are classified as
Interest Expense in accordance with GAAP, of such Person for such period on a consolidated basis and otherwise determined in accordance with GAAP.
“Direct Listing” shall mean the initial listing of the Equity Securities of the Company, a Subsidiary of the Company or a successor entity by
means of a registration statement on Form S-1, Form 10 under the Exchange Act or otherwise under the Securities Act (or, in each case, any successor registration form under the Securities Act or the Exchange Act subsequently adopted by the
Securities and Exchange Commission) filed by the Company with the Securities and Exchange Commission that registers the Equity Securities of the Company, the Subsidiary of the Company or a successor entity.
“disposition” shall have the meaning set forth in the definition of “Asset Sale.”
“Dispute Notice” shall have the meaning set forth in Section 2.5(b)
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“Distribution” means each distribution made by the Company to a Unitholder with respect to such Person’s Units, whether in cash, property or
securities of the Company and whether by liquidating distribution, dividend or otherwise; provided that Distributions shall not include any redemptions, repurchases, recapitalizations or exchanges of Units or other securities of the Company
(in each case, whether resulting from the conversion of the Company from a limited liability company to a corporation or another type of entity), any subdivision (by Unit split or otherwise) or any combination (by reverse Unit split or otherwise)
of any outstanding Units.
“Drag-Along Notice” shall have the meaning set forth in Section 9.4(a).
“Drag-Along Percentage” shall have the meaning set forth in Section 9.4(a).
“Drag-Along Right” shall have the meaning set forth in Section 9.4(a).
“Drag-Along Sale” shall have the meaning set forth in Section 9.4(a).
“Drag-Along Sale Date” shall have the meaning set forth in Section 9.4(a).
“Dragged Sellers” shall have the meaning set forth in Section 9.4(a).
“EBITDA” means, with respect to any Person for any period, the Net Income of such Person for such period, plus (without duplication):
(a) provision for taxes based on income or profits, plus franchise or similar taxes, of such Person for such period deducted in computing Net Income; plus
(b) Interest Expense of such Person for such period to the extent the same was deducted in calculating such Net Income, including any noncash interest charges calculated in accordance with
GAAP; plus
(c) Depreciation and Amortization Expense of such Person for such period to the extent such depreciation and amortization were deducted in computing Net Income; plus
(d) any unrealized net loss (or minus any unrealized gain) resulting from Hedging Obligations; plus
(e) any other non-cash charges reducing Net Income for such period, excluding any such charge that represents an accrual or reserve for a cash expenditure for a future period; minus
(f) non-cash items increasing Net Income of such Person for such period, excluding any items which represent the reversal of any accrual of, or cash
reserve for, anticipated cash charges in any prior period; minus
(g) any gain (or plus any loss) related to the disposition of assets; minus
(h) any realized gain (or plus any realized loss) but excluding for purposes of this clause (h), any realized cash gain or realized cash loss from Hedging Obligations that are settled in the
ordinary course of business when due in accordance with the terms of such Hedging Obligations.
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“Effective Date” shall have the meaning set forth in the preamble.
“Equity Agreement” shall have the meaning set forth in Section 2.2(b).
“Equity Awards” shall have the meaning set forth in Section 2.4.
“Equity Securities” means (a) any Units, capital stock, partnership interests, membership or limited liability company interests or other
equity interests (including other classes, groups or series thereof having such relative rights, powers or obligations as may from time to time be established by the Board in accordance with and subject to the terms hereof, including rights, powers
or duties different from, senior to or more favorable than existing classes, groups and series of Units, capital stock, partnership interests, membership or limited liability company interests or other equity interests, and including any profits
interests), (b) obligations, evidences of indebtedness or other securities or interests convertible or exchangeable into Units, capital stock, partnership interests, membership or limited liability company interests or other equity interests, (c)
warrants, options, or other rights to purchase or otherwise acquire Units, capital stock, partnership interests, membership or limited liability company interests or other equity interests or (d) any other agreement, arrangements or understandings
that derives its value from any of the foregoing. Unless the context otherwise indicates, the term “Equity Securities” refers to Equity Securities of the Company.
“ERISA” means the United States Employee Retirement Income Security Act of 1974, as amended.
“Escrow Account” shall have the meaning set forth in Section 2.5(b)(iv).
“Event of Noncompliance” shall have occurred if:
(1) failure by the Company to redeem all units of Series A Preferred Units at the time of a Mandatory Redemption Event for the Series A Preferred Redemption Price and corresponding Series A
Warrants and/or Series A Warrant Units in accordance with Section 2.3(c) and Section 2.5 (including if such failure is a result of the Company being prohibited by law from consummating a Mandatory Redemption Event);
(2) failure by the Company for any reason (including because payment of any dividend or distribution is prohibited by law) to pay Series A Preferred Distributions in full in cash, for any
twelve (12) Series A Preferred Distribution Periods (whether or not consecutive), when required to do so in accordance with this Agreement;
(3) any Series A Preferred Units remain issued and outstanding on the ninth (9th) anniversary of the date hereof;
(4) any failure to comply with Section 2.3(b) or Section 3.1 in a manner adverse to any Unitholder holding Series A Preferred Units;
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(5) any action or purported action of the Company in violation of the Company’s obligations, covenants or agreements contained in Section 2.3(e) or Section 4.12;
(6) any breach of any material term of this Agreement; and
(7) the occurrence of a Bankruptcy Event;
provided; that, solely for purposes of Section 2.11, (i) in the
case of (A) clause (2), (B) the failure to comply with Section 3.1 pursuant to clause (4) and (C) clause (5), such failure or default has occurred and is continuing for more than thirty (30) calendar days, and (ii) in the case of clause
(6), such failure or default has occurred and is continuing for more than thirty (30) calendar days after receipt of written notice given to the Company by the Series A Preferred Majority in Interest notifying the Company of such failure or
default, provided that, in each of the foregoing cases, such cure period will only apply if such failure or default is capable of being cured.
“Event of Withdrawal” means the death, retirement, resignation, expulsion, bankruptcy or dissolution of a Unitholder or the occurrence of any
other event that terminates the continued membership of a Unitholder in the Company.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Exercise Notice” shall have the meaning set forth in Section 2.10(b).
“Fair Market Value” shall have the meaning set forth in Section 7.3(a).
“Financing Lease” means, as applied to any Person, any obligation that is required to be accounted for as a financing or capital lease (and,
for the avoidance of doubt, not a straight-line or operating lease) on both the balance sheet and income statement for financial reporting purposes in accordance with GAAP that has been entered into in the ordinary course of business consistent
with past practice of such Person; provided, that Sale/Leaseback Transactions shall not constitute a Financing Lease.
“Final Determination” shall have the meaning set forth in Section 3.4(g).
“FIP” shall have the meaning set forth in the preamble.
“FIP Unitholders” means any Unitholder owned directly or indirectly by FIP.
“Fiscal Year” means the Company’s annual accounting period established pursuant to Section 8.3.
“Fortress” means Fortress Investment Group LLC, a Delaware limited liability company.
“Fortress Investment Group” means (a) Fortress and its controlled Affiliates or (b) any investment fund or similar fund managed, sponsored or
advised (directly or indirectly) by Fortress or any of its controlled Affiliates; provided that the definition of “Fortress Investment Group” shall not include any Control Investment Affiliate whose primary purpose is the operation of an
ongoing business (excluding any business whose primary purpose is the investment of capital or assets).
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“Fundamental Breach” means any of the following events:
(1) the Company’s breach of Section 2.3(b) or Section 2.3(c);
(2) the Company’s material breach of Section 2.3(e); and
(3) the Company making any Distributions pursuant to Section 3.1 prior to the Series A Preferred Distribution (other than Tax Distributions and, prior to the five (5) year anniversary
of the Effective Date, Permitted Debt Service Distributions permitted thereby) or not otherwise in accordance with the terms thereof Section 3.1;
provided; that, in the case of clause (2) and clause (3), such breach has occurred and is
continuing for more than thirty (30) calendar days; provided that, in each of the foregoing cases, such cure period will only apply if such breach is capable of being cured.
“Guarantee” of or by any Person (the “guarantor”) shall mean (a) any obligation, contingent or otherwise, of the guarantor
guaranteeing or having the economic effect of guaranteeing any Indebtedness or other monetary obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any
obligation of the guarantor, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness, (ii) to purchase or lease property, securities or services for the purpose of assuring the owner
of such Indebtedness, (iii) 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 (iv) entered into for the purpose
of assuring in any other manner the holders of such Indebtedness of the payment thereof or to protect such holders against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of the guarantor securing any Indebtedness (or
any existing right, contingent or otherwise, of the holder of Indebtedness to be secured by such a Lien) of any other Person, whether or not such Indebtedness is assumed by the guarantor; provided, however, that the term “Guarantee”
shall not include endorsements of instruments for deposit or collection in the ordinary course of business or customary and reasonable (as determined in good faith by the Company) indemnity obligations in effect on the Effective Date or entered
into in connection with any acquisition or Disposition of assets permitted by this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable
amount of the Indebtedness in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by such person in good faith. The amount of the Indebtedness
subject to any Guarantee provided by any person for purposes of clause (b) above shall (unless the applicable Indebtedness has been assumed by such person or is otherwise recourse to such person) be deemed to be equal to the lesser of (A)
the aggregate unpaid amount of such Indebtedness and (B) the Fair Market Value of the property encumbered thereby.
“GAAP” means generally accepted accounting principles in the United States which are in effect on the Effective Date.
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“Governmental Entity” means the United States of America or any other nation, any state, territorial, local, municipality or other political
subdivision thereof, or any entity, body, agency, tribunal, quasi-governmental entity, judicial or arbitral body, board, bureau, agency or instrumentality, commission or court, whether domestic, foreign or multinational, exercising, executive,
legislative, judicial, regulatory, or administrative functions of or pertaining to government, and any executive official thereof.
“Hedging Obligations” means, with respect to any Person, the obligations of such Person under (a) currency exchange, interest rate, inflation
or commodity swap agreements, currency exchange, interest rate, inflation or commodity cap agreements and currency exchange, interest rate, inflation or commodity collar agreements; and (b) other agreements or arrangements designed to protect such
Person against fluctuations in currency exchange, interest rates, inflation or commodity prices.
“Incur” means issue, create, assume, Guarantee, incur, suffer to exist, or otherwise become liable for; provided, that any
Indebtedness of a Person existing at the time such Person becomes a Subsidiary (whether by merger, amalgamation, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Person at the time it becomes a Subsidiary; provided further,
that (a) the obligation to pay a customary premium in respect of Indebtedness arising in connection with the issuance of a notice of prepayment, redemption or repurchase or the making of a mandatory offer to prepay, purchase or redeem such
Indebtedness; (b) the reclassification of any outstanding Equity Securities as Indebtedness due to a change in accounting principles after the date of this Agreement so long as such Equity Securities was issued prior to, and not in contemplation
of, such accounting change; and (c) the reclassification of any operating lease as a Financing Lease as a result of changes in GAAP after the date of this Agreement, in each case, shall not be deemed to be the Incurrence of Indebtedness.
“Indebtedness” means, with respect to any Person, without duplication, (I) (a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar instruments (except any such obligation issued in the ordinary course of business with a maturity date of no more than six (6) months in a transaction intended to extend
payment terms of trade payables or similar obligations to trade creditors incurred in the ordinary course of business), (c) all obligations of such person under conditional sale or other title retention agreements relating to property or assets
purchased by such Person (except any such obligation that constitutes a trade payable or similar obligation to a trade creditor incurred in the ordinary course of business), (d) all obligations of such person issued or assumed as the deferred
purchase price of property or services (except (i) any such balance that constitutes a trade payable or similar obligation to a trade creditor, in each case, incurred in the ordinary course of business, (ii) any earn-out obligations until such
obligation becomes a liability on the balance sheet of such Person in accordance with GAAP and if not paid within 60 days after being due and payable (or, if such payment is contested in good faith, within 60 days after the final determination
thereof), and (iii) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other underperformed obligations of the seller until such obligation becomes a liability on the balance sheet of such
Person in accordance with GAAP and if not paid within 60 days after being due and payable (or, if such payment is contested in good faith, within 60 days after the final determination thereof)), (f) all Financing Leases of such Person, (g) Hedging
Obligations, (h) the principal component of all obligations, contingent or otherwise, of such person as an account party in respect of letters of credit, (i) the principal component of all obligations of such person in respect of bankers’
acceptances, or (j) all Sale/Leaseback Transactions; if and to the extent that any of the foregoing Indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet (excluding the footnotes
thereto) of such Person prepared in accordance with GAAP; (II) to the extent not otherwise included, all Guarantees by such Person of Indebtedness of others; and (III) 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, notwithstanding the foregoing,
Indebtedness shall be deemed not to include: (1) Contingent Obligations incurred in the ordinary course of business if the primary obligor is a wholly owned Subsidiary of the Company, (2) reimbursement obligations under commercial letters of credit
(provided, that unreimbursed amounts under letters of credit shall be counted as Indebtedness on or after three Business Days after such amount is drawn), (3) unsecured intercompany liabilities arising from cash management, tax and accounting
operations made in the ordinary course of business solely among the Company and its Subsidiaries and (4) unsecured intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any rollover or extensions of term)
and made in the ordinary course of business solely among the Company and its Subsidiaries.
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“Indemnitee” means each Person who was or is made a party or is threatened to be made a party to or is involved in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or arbitrative, or any appeal in such action, suit or proceeding, or any inquiry or investigation that could lead to such an action, suit or proceeding by reason of the
fact that such Person, or a Person of whom such Person is the legal representative, is or was an Officer, Manager, Independent Manager, the FIP Unitholders (other than in a proceeding with respect to the Unitholders’ holding Series A Preferred
Units rights and/or remedies hereunder brought by or on behalf of the Unitholders holding Series A Preferred Units), Series A Preferred Unitholder or Series A Warrant Holder, or, while an Officer or Manager, is or was serving at the request of the
Company as a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic limited liability company, corporation, partnership, joint venture, sole proprietorship, trust,
employee benefit plan or other enterprise.
“Independent Manager” shall mean an individual who has prior experience as an independent director, independent manager or independent member
with at least three years of employment experience and who is provided by Citadel SPV LLC, Corporation Service Company, CT Corporation, Lord Securities Corporation, National Registered Agents, Inc., Stewart Management Company, Wilmington Trust
Company, Wilmington Trust SP Services, Inc., or, if none of those companies is then providing professional independent managers, another nationally-recognized company reasonably approved by the Series A Preferred Majority in Interest in each case
that is not an Affiliate of the Company and that provides professional independent managers and other corporate services in the ordinary course of its business, and which individual is duly appointed as an Independent Manager and is not, and has
never been, and will not while serving as Independent Manager be, any of the following:
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(i)
a member, partner, equityholder, manager, director, officer or employee of the Company, a Member, or any of their respective equityholders or Affiliates (other than as an
independent manager or independent director of the Company or an Affiliate of the Company (other than any special purpose bankruptcy remote entity) that is not in the direct chain of ownership of the Company and that is required by a creditor to
be a single purpose bankruptcy remote entity, provided that (i) such Independent Manager is employed by a company that routinely provides professional independent managers or independent directors in the ordinary course of its business)
and (ii) such Independent Manager may also serve as an independent manager or independent director of RR Holding Company or any Subsidiary thereof;
(ii) a creditor, supplier or service provider (including provider of professional services) to the Company, or any of its equityholders or Affiliates (other than
a nationally-recognized company that routinely provides professional independent directors or managers and other corporate services to the Company or any of its equityholders or Affiliates in the ordinary course of its business);
(iii) a family member of any such Member, partner, equityholder, manager, director, officer, employee, creditor, supplier or service provider; or
(iv) a Person that controls (whether directly, indirectly or otherwise) any of (i), (ii) or (iii) above.
A natural person who otherwise satisfies the foregoing definition and satisfies subparagraph (i) by reason of being the Independent Manager (or
independent manager or director of a “special purpose entity” which is an Affiliate of the Company) shall be qualified to serve as an Independent Manager of the Company, provided that the fees that such individual earns from serving as
Independent Manager (or independent manager or director of any Affiliate of the Company) in any given year constitute in the aggregate less than five percent (5.0%) of such individual’s annual income for that year.
“Interest Expense” means, with respect to any Person for any period, the sum, without duplication, of: (a) interest expense of such Person
for such period, to the extent such expense was deducted in computing Net Income (including (i) amortization of original issue discount resulting from the issuance of indebtedness at less than par, (ii) non-cash interest payments (but excluding any
non-cash interest expense attributable to the movement in the mark to market valuation of or hedge ineffectiveness expenses of Hedging Obligations or other derivative instruments pursuant to Accounting Standard Codification Topic 815, “Accounting
for Derivative Instruments and Hedging Activities”), and (iii) all commissions, discounts and other fees and charges owed with respect to letters of credit; and excluding (i) non-cash interest expense attributable to the amortization of gains or
losses resulting from the termination prior to the Effective Date of Hedging Obligations, (ii) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses and any expensing of other financing fees (including any
expense resulting from bridge, commitment and other financing fees), (iii) amortization of fair value debt discounts and (iv) any expense resulting from the application of debt modification accounting or, if applicable, purchase accounting in
connection with any acquisition), and (b) capitalized interest of such Person for such period, whether paid or accrued, less interest income for such period.
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“Internalization” means, the internalization of management occurring in connection with the termination of the Management Agreement and,
immediately after such termination, (i) (A) a majority of the employees of Fortress providing services to FIP, and (B) the Chief Executive Officer and the Chief Financial Officer of FIP that, in each case, served in such roles prior to such
termination, (ii) become (A) employees of FIP or any of its Subsidiaries, in the case of clause (i)(A) and (B) remain the Chief Executive Officer or Chief Financial Officer of FIP, in the case of clause (i)(B), (iii) continue to serve in
substantially similar roles following the internalization, (iv) spend substantially all of their professional time providing services to FIP and its Subsidiaries, (v) such internalization does not materially increase the liabilities or obligations
of the Company and its Subsidiaries and (vi) management of the Company and its Subsidiaries will continue to have access to assets used in the management of FIP sufficient to ensure there is not, and there is not a reasonable likelihood of,
interference or disruption in any material respect.
“Investment” means, with respect to any Person, all investments by such Person in other Persons in the form of loans (including guarantees),
advances or capital contributions (excluding accounts receivable, trade credit, advances to customers, commission, travel, moving and similar advances to officers, directors and employees, in each case made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity Securities or other securities issued by any other Person and investments that are required by GAAP to be classified on the balance sheet (excluding the footnotes) of the
Company in the same manner as the other investments included in this definition to the extent such transactions involve the transfer of cash or other property; provided, that endorsements of negotiable instruments and documents in the
ordinary course of business will not be deemed to be an Investment.
“Investment Amount” shall have the meaning set forth in the recitals.
“IPO” shall mean an underwritten initial public offering of Equity Securities of the Company, any holding company of the Company whose
primary asset is, directly or indirectly, the equity of the Company or any Subsidiary of the Company (the applicable entity, including any successor entity thereof, the “IPO Entity”) pursuant to a registration statement that has been
declared effective under the Securities Act (other than pursuant to a registration statement on Form S-8 or any similar or successor form).
“IPO Entity” shall have the meaning set forth in the definition of “IPO.”
“Issuance Notice” shall have the meaning set forth in Section 2.10(b).
“Junior Units” means Common Units and any other Equity Securities (other than the Series A Preferred Units).
“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest
in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction; provided, that in no event shall an operating lease be
deemed to constitute a Lien.
“Losses” means items of Company loss and deduction determined in accordance with Section 2.6(b).
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“Majority in Interest” means the holders of a majority of the Units, voting or acting together as a single class, subject to (x) when and if
the vote of the holders of Series A Preferred Units are entitled to vote as a separate class or group pursuant to the terms of this Agreement and (y) Section 2.11(f).
“Management Agreement” means that certain Management Agreement, dated as of July 31, 2022, by and between FIP and FIG LLC, as may be amended,
modified or replaced from time to time.
“Manager” means a Manager serving on the Board at any given time (including, for the avoidance of doubt, the Independent Manager), who, for
purposes of the Act, will be deemed a “manager” (as defined in the Act), but will be subject to the rights, obligations, limitations and duties set forth in this Agreement.
“Manager Group” means (a) Fortress and any of its directors, officers or employees, (b) (i) any Affiliate of Fortress and any director or
officer of such Affiliate and (ii) any director, officer or employee of a Subsidiary of Fortress (provided that this clause (b)(ii) shall not include any portfolio companies of any investment funds directly or indirectly managed by Fortress
or an Affiliate of Fortress or any Subsidiaries of any such portfolio companies), and (c) for so long as Mubadala, directly or indirectly, holds or controls at least five percent (5.0%) of the economic rights of Fortress, (i) Mubadala and any of
their executive officers or directors and (ii) any director or officer of a Subsidiary of Mubadala (provided that the identities of such individuals are known to the directors, managers, or officers of the Company or FIP and the FIP
employees providing services to the Company or are individuals providing services under the Management Agreement to the extent involved in an underlying transaction in which this definition is implicated). Notwithstanding the foregoing, the “Manager
Group” shall include, as of the applicable time of determination, any portfolio companies of any investment funds directly or indirectly managed by Fortress or an Affiliate of Fortress; provided that the identities of such individuals are
known to the directors, managers, or officers of the Company or FIP and the FIP employees providing services to the Company or are individuals providing services under the Management Agreement to the extent involved in an underlying transaction in
which this definition is implicated.
“Mandatory Redemption Event” shall have the meaning set forth in Section 2.3(c)(i).
“Mandatory Redemption Notice” shall have the meaning set forth in Section 2.3(c)(iii).
“Mandatory Redemption Time” shall have the meaning set forth in Section 2.3(c)(ii).
“Material Action” means to (i) file a voluntary bankruptcy petition or file or consent to the filing of any bankruptcy, insolvency or
reorganization petition under any applicable federal or state law relating to bankruptcy naming the Company as debtor or otherwise institute bankruptcy or insolvency proceedings by or against the Company or otherwise seek with respect to such
entity relief under any laws relating to the relief from debts or the protection of debtors generally; (ii) seek or consent to the appointment of a receiver, liquidator, conservator, assignee, trustee, sequestrator, custodian or any similar
official for the Company or all or any portion of any of its properties; (iii) make or consent to any assignment for the benefit of the Company's creditors; (iv) admit in writing the inability of the Company to pay its debts generally as they
become due; (v) consent to substantive consolidation with any owner of Equity Securities of the Company or any Affiliate of such owner (or any member of the Manager Group) of Equity Securities (other than any special purpose bankruptcy remote
entity); (vi) sell, exchange, lease or otherwise transfer all or substantially all of the assets of the Company or consolidate or merge the Company with or into another Person whether by means of a single transaction or a series of related
transactions; (vii) amend this Agreement or the Certificate of Formation (except as required by law), except for amendments to such documents in circumstances where the consent of the Independent Manager is not required pursuant to Section 4.12(b) or (viii) to the fullest extent permitted by law, dissolve, liquidate or wind up the Company or approve of any proposal relating thereto.
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“Member” means each of the Persons listed on the signature pages hereto as Members and each Person that is admitted to the Company as a
Member pursuant to Article X, in each case so long as such Person continuously holds any Units. Each Unitholder as of the Effective Date is a Member.
“Minimum EBITDA Failure” shall have the meaning set forth in Section 3.1(b)(ii).
“Net Income” means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred equity distributions; provided, that (a) any net after-tax gain (loss) arising from changes in the fair value of derivatives shall be excluded, (b) any net after-tax effect of non-cash compensation expense
recorded from grants of stock appreciation rights, stock options or other rights to officers, directors or employees shall be excluded and (c) any impairment charges or asset write-offs or write-downs, in each case pursuant to GAAP, and the
amortization of intangibles and other fair value adjustments arising pursuant to GAAP, shall be excluded.
“Net Loss” means, with respect to a Fiscal Year, the excess, if any, of Losses for such Fiscal Year over Profits for such Fiscal Year
(excluding Losses and Profits specially allocated pursuant to Section 3.3).
“Net Proceeds” means an amount equal to the aggregate cash and Cash Equivalent proceeds received by the Company or any Subsidiary in respect
of any Asset Sale, net (without duplication of any amounts reducing such proceeds) of the Company and/or its Subsidiaries’ direct costs arising from such Asset Sale, including legal, accounting and
investment banking fees, and brokerage and sales commissions, payments made in order to obtain necessary consents required by agreement or by applicable law, any relocation expenses incurred as a result thereof, and other reasonable out-of-pocket
fees and expenses, including title and recordation expenses payable to unaffiliated third parties, amounts required to be applied to the repayment of principal, premium, if any, and interest on any Indebtedness permitted under this Agreement and
secured by a Lien required to be paid as a result of such transaction, and any deduction of appropriate amounts to be provided by the Company as a reserve in accordance with GAAP against any liabilities associated with the asset disposed of in such
transaction and retained by the Company after such sale or other disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations
associated with such transaction; provided that upon any such amounts being released from any such reserve, such amounts shall constitute Net Proceeds.
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“Net Profit” means, with respect to a Fiscal Year, the excess, if any, of Profits for such Fiscal Year over Losses for such Fiscal Year
(excluding Profits and Losses specially allocated pursuant to Section 3.3).
“New Securities” shall have the meaning set forth in Section 2.10(a).
“Notice” shall have the meaning set forth in Section 8.7(a).
“Noncompensatory Option Regulations” shall have the meaning set forth in Section 3.7(a).
“Offeree” shall have the meaning set forth in Section 2.10(a).
“Officer” means an individual designated as an officer of the Company to whom authority and duties have been delegated pursuant to Section
4.7, subject to any resolution of the Board appointing such person as an officer or relating to such appointment.
“Optional Redemption Notice” shall have the meaning set forth in Section 2.3(a).
“Original Agreement” shall have the meaning set forth in the recitals.
“Other Business” shall have the meaning set forth in Section 5.7(a).
“Partnership Audit Rules” means Subchapter C of Chapter 63 of Subtitle F of the Code, as modified by Section 1101 of the Bipartisan Budget
Act of 2015, Pub. L. No. 114-74, and any successor statutes thereto or the Treasury Regulations or other authoritative guidance promulgated thereunder.
“Partnership Representative” means the “partnership representative” as such term is defined in Section 6223(a) of the Code.
“Percy” shall have the meaning set forth in the recitals.
“Permanent Debt Financing” means any indebtedness incurred by FIP from an unaffiliated third party, the net proceeds of which are used to
refinance, repay, replace, prepay, retire, extinguish or refund the obligations under the Bridge Facility and, solely for purposes of Section 3.1(b) (and, for the avoidance of doubt, not in the case of clause (ii) of Section 3(a) of the
Warrant Agreement or Section 3.1(a) under this Agreement), any subsequent indebtedness incurred by FIP from an unaffiliated third party, the net proceeds of which are used to used to refinance, repay, replace, prepay, retire, extinguish or
refund the obligations thereof. For the avoidance of doubt, if all outstanding borrowings under the Bridge Facility are repaid other than primarily with proceeds from indebtedness, Permanent Debt Financing shall mean the Bridge Facility.
“Permitted Affiliate Transaction” means, the following transactions (in each case, entered into in the ordinary course of business):
(1) transactions between or among the Company and/or any of its wholly owned Subsidiaries and/or any entity that becomes a wholly owned Subsidiary as a result of such transaction;
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(2) payment of reasonable and customary fees and reasonable out-of-pocket costs and compensation (including salaries, bonuses and equity) paid to, and reimbursement of expenses and indemnities
provided on behalf of, officers, directors, managers or employees of the Company or any Subsidiary of the Company, in each case, that primarily provide services to the Company and are not affiliated or associated with FIP or the Manager Group
(other than by virtue of their relationship with the Company and its Subsidiaries);
(3) payments or loans (or cancellation of loans) to employees of the Company or any Subsidiary of the Company that primarily provide services to the Company and are not affiliated or associated
with FIP or the Manager Group (other than by virtue of their relationship with the Company and its Subsidiaries) which are approved by the Board or governing body of the applicable Subsidiary of the Company in good faith;
(4) the agreements of the Company or any of its Subsidiaries as in effect as of the Effective Date that are listed on Schedule A hereto, each of which has been provided and disclosed to the
Ares Members prior to the Effective Date, or any amendment thereto (so long as any such amendment, taken as a whole, is no less favorable in any material respect to the Company and is Subsidiaries than the agreement in effect on the Effective
Date (as determined by the Company in good faith));
(5) transactions or payments to any employee of the Company and its Subsidiaries pursuant to any compensation (including bonuses) or benefit plans, employment agreements, severance agreement,
indemnification agreements or any similar arrangements entered into in good faith; and
(6) solely if any of the following are members of the Manager Group, an Affiliate of the Company or any other Related Party of the Company, transactions with customers, clients, suppliers, or
purchasers or sellers of goods or services (and not, for the avoidance of doubt, financing sources or potential advisors financial, management or otherwise), in each case in the ordinary course of business, provided that such transaction is
entered into upon terms and conditions that are commercially reasonable and substantially similar to those that could be obtained on an arm’s length basis with unrelated third parties.
“Permitted Asset Sale” means any disposition of property or assets with an aggregate Fair Market Value of less than $10,000,000 in the
aggregate with all other dispositions of property or assets during such calendar year, provided such disposition is occurring in compliance with the other terms and conditions of this Agreement.
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“Permitted Debt Service Distributions” means a cash Distribution made prior to the fifth (5th) anniversary of the Effective Date on each
Common Unit, in an amount that would provide the FIP Unitholders with an amount of cash equal to the sum of the amount needed by FIP to pay the cash interest payable on a maximum of $1,400,000,000 of aggregate principal amount of outstanding
obligations under the Permanent Debt Financing due and owing within five (5) Business Days of such Distribution, assuming that all holders of Common Units (other than Series A Warrant Units) are FIP Unitholders. Notwithstanding the foregoing, for
purposes of determining the Permitted Debt Service Distributions, all holders of Common Units other than the holders of a Series A Warrant Unit shall be deemed to be FIP Unitholders. For illustrative purposes, (1) if (x) the FIP Unitholders
transferred twenty percent (20%) of the Common Units to a third party, (y) none of the Series A Warrants have been exercised and (z) there is a cash interest payment of $40,000,000 due and owing under the Permanent Debt Financing, then an aggregate
amount of $40,000,000 shall be distributed with respect to the Common Units (and not $50,000,000 such that the remaining eighty percent (80%) of Common Units actually held by FIP Unitholders receive $40,000,000); and (2) if (x) the FIP Unitholders
transferred ten percent (10%) of the Common Units to a third party, (y) all of the Series A Warrants were exercised such that the Series A Warrant Holders hold twenty percent (20%) of the issued and outstanding Common Units and (z) there is a cash
interest payment of $12,000,000 due and owing under the Permanent Debt Financing then an aggregate amount of $15,000,000 shall be distributed with respect to the Common Units, such that the Series A Warrant Holders receive $3,000,000 and the
remaining $12,000,000 will be distributed pro rata among the FIP Unitholders and the third-party Transferee based on their respective ownership percentage of such Common Units (and not $17,142,857.14 such that the remaining seventy percent (70%) of
Common Units actually held by FIP Unitholders receive $12,000,000).
“Permitted Holders” means, collectively, (i) FIP and its controlled Affiliates, and (ii) Fortress Investment Group.
“Permitted Indebtedness” means:
(1) Indebtedness Incurred by the Company or any of its Subsidiaries for working capital purposes (it being agreed and understood that “working capital purposes” does not include Sale/Leaseback
Transactions); provided, however, that after giving effect to any such Incurrence, the aggregate amount of all Indebtedness Incurred under this clause (1) and then outstanding does not exceed $50,000,000;
(2) Financing Leases or Indebtedness Incurred by the Company or any of its Subsidiaries in connection with a Sale/Leaseback Transaction with respect to any property of the Company or any of its
Subsidiaries; provided, however, that after giving effect to any such Incurrence, the aggregate amount of all Indebtedness Incurred under this clause (2) and then outstanding does not exceed $50,000,000;
(3) unsecured intercompany loans, advances or Indebtedness of a wholly owned Subsidiary of the Company solely to another wholly owned Subsidiary of the Company for a bona fide business purpose;
provided that such Indebtedness shall not be used for any Distributions on Common Units, other than for Tax Distributions and Permitted Debt Service Distributions; provided further that any subsequent transfer of any such
Indebtedness (except to another Subsidiary of the Company) shall be deemed in each case to be an Incurrence of such Indebtedness not permitted by this clause (3);
(4) Indebtedness of the Company or any of its Subsidiaries consisting of financing of insurance premiums in the ordinary course of business;
(5) Indebtedness of the Company or any of its Subsidiaries undertaken in connection with cash management and related activities including netting services, automatic clearing house
arrangements, employees’ credit or purchase cards, and similar arrangements with respect to the Company or any of its Subsidiaries in the ordinary course of business; provided, however, that after giving effect to any such
Incurrence, the aggregate amount of all Indebtedness Incurred under this clause (5) does not exceed $6,000,000 in any calendar year;
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(6) Indebtedness of the Target with an aggregate principal amount of $49,807,323.51, loaned to the Target by the Company on or about the date hereof, in respect of the pay off and full
satisfaction of amounts owing under the agreements listed on Schedule B hereto; and
(7) the Guarantee by the Company or of its wholly owned Subsidiaries of Indebtedness of the Company or any its wholly owned Subsidiaries that was permitted to be Incurred pursuant to Section
2.3(e)(i)(x).
“Permitted Liens” means:
(1) Liens with respect to Indebtedness permitted to be incurred pursuant to Section 2.3(e)(i)(x) in reliance on clauses (1) or (2) of the definition of “Permitted Indebtedness”;
(2) Liens incurred in the ordinary course of business consistent with past practice and not in connection with the incurrence of Indebtedness; and
(3) Liens on assets or property at the time the Company or any Subsidiary of the Company acquired such assets or property after the date of this Agreement (in each case, in accordance with the
terms hereof), including any acquisition by means of a consolidation, amalgamation or merger with or into the Company or any Subsidiary of the Company; provided that (x) such Liens are not created or incurred in connection with, or in
contemplation of, such other Person becoming such a Subsidiary of the Company and (y) such Liens shall not secure any Indebtedness other than Permitted Indebtedness; provided, further, that such Liens may not extend to any other property owned by
the Company or any Subsidiary of the Company; and provided, further, that with respect to the indirect control of Wheeling & Lake Erie Railway Company and Akron Barberton Cluster Railway Company by the Company, this clause (3) shall permit
any Liens existing on the Effective Date that are listed on Schedule C hereto (which such Liens have been released, but not recorded).
“Permitted Payments” means:
(1) the declarations and payments of Distributions on Common Units, permitted pursuant to Section 3.1 solely in cash from the Effective Date
through (but not including) the fifth (5th) anniversary of the Effective Date;
(2) the payments of Tax Distributions permitted pursuant to Section 3.1;
(3) (a) the redemption of any Series A Preferred Units or (b) the repurchase of any Series A Warrants or Series A Warrant Units, in each case, in accordance with Section 2.3 and Section
2.5, as applicable;
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(4) other than while a Minimum EBITDA Failure exists, cash distributions to pay for the repurchase, retirement or other acquisition or retirement for value of common Equity Securities of the
Company held by any future, present or former employees or unaffiliated consultants, in each case, that primarily provide services to the Company and are not affiliated or associated with FIP or the Manager Group (other than by virtue of their
relationship with the Company and its Subsidiaries) (or any spouses, successors, executors, administrators, heirs or legatees of any of the foregoing) of the Company or any of its Subsidiaries pursuant to any management equity plan or option plan
or any other management or employee benefit plan or other agreement or arrangement or any subscription or shareholder agreement; provided that the aggregate Restricted Payments made under this clause (4) may not exceed in any calendar
year $100,000 (the “Permitted Management Redemption”);
(5) (A) repurchases of Equity Securities deemed to occur upon exercise of Equity Awards if such Equity Securities represent a portion of the exercise price of such Equity Awards and repurchases
of Equity Securities or options to purchase Equity Securities in connection with the exercise of such Equity Awards to the extent necessary to pay applicable withholding taxes, and (B) payment of dividend equivalents pursuant to grants of Equity
Securities to employees, managers and directors of the Company or any of its Subsidiaries under the Company’s equity incentive plans implemented in accordance with this Agreement as and when paid; and
(6) Restricted Payments by the Company or any Subsidiary of the Company to allow the payments of cash in lieu of the issuance
of fractional shares upon the exercise of options or warrants or upon the conversion or exercise of Equity Securities of any such Person; provided that the aggregate Restricted Payments made under this clause (6) may not exceed
in any calendar year $10,000.
“Permitted Transfer” shall have the meaning set forth in Section 9.2.
“Permitted Transferee” means (a) as it applies to the FIP Unitholders (and any Permitted Transferee of the FIP Unitholders), means Permitted
Holders; (b) as it applies to Unitholders holding Series A Preferred Units, Series A Warrants or Series A Warrant Units, any Affiliate of such Unitholder, and (c) as it applies to any Ares Group Member, any other Ares Group Member and (d) as it
applies to any holder of Equity Awards, any spouse, child or grandchild or other family member of the holder of such Equity Awards to a trust or partnership for the benefit of any of the foregoing, including Transfers by will or the laws of descent
and distribution; provided, however, that, notwithstanding the foregoing, no Prohibited Transferee shall be a Permitted Transferee.
“Person” means any individual, sole proprietorship, partnership, joint venture, trust, unincorporated association, corporation, limited
liability company, entity or Governmental Entity.
“Profits” means items of Company income and gain determined in accordance with Section 2.6(b).
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“Prohibited Transferee” means, as reasonably determined by the Board, a Person with respect to whom, or
to whose Affiliate, any of the following is applicable: (i) such Person or Affiliate has ever been convicted of, or is under indictment for, a felony or any crime of moral turpitude or indicative of lack of business integrity, or that is an
organized crime figure or reputed organized crime figure, (ii) such Person or Affiliate has a chief executive officer, chief operating officer, chief financial officer, president, vice president or chairman of the board who has ever been
convicted of, or is under indictment for, a felony or any crime of moral turpitude or indicative of lack of business integrity, or that is an organized crime figure or reputed organized crime figure, (iii) such Person or Affiliate is generally
considered by its industry peers as disreputable, (iv) the integrity of such Person’s or Affiliate’s business practices is publicly in question, (v) any action or proceeding is pending against such Person or Affiliate to enforce rights of the
United States or any State thereof or any non-United States government, or any subdivision, agency, department, public authority or public benefit corporation of any of the foregoing, which action or proceeding is based on allegations of fraud or
misrepresentation, matters of moral turpitude or which are indicative of lack of business integrity, or that bear negatively on whether such Person can perform its obligations under this Agreement, (vi) such Person would cause the Company to be
in violation of any applicable anti-money laundering or other similar laws, regulations, requirements (whether or not with the force of law) or regulatory policies or (vii) such Person is subject to any Sanction or on any specially
designated nationals list maintained by the Office of Foreign Assets Control of the U.S. Treasury Department.
“Qualified Exchange” means the New York Stock Exchange, the Nasdaq Stock Market or such other internationally recognized stock exchange, as
approved by the Board.
“Qualified IPO” means the consummation of (a) an IPO or Direct Listing, in each case, on a Qualified Exchange and which results in aggregate
gross proceeds equal to or exceeding $100,000,000 (prior to underwriting discounts and commissions and fees and expenses), or (b) a SPAC, immediately following the consummation of which Equity Securities of the SPAC or its successor entity are
listed on a Qualified Exchange, which results in such IPO Entity or its publicly traded parent company and/or the applicable equity holders receiving at least $100,000,000 of cash proceeds in connection with the closing of the merger or other
business combination (whether from the trust account of a special purpose acquisition company, through a private placement of equity, equity linked securities or otherwise).
“Registration Rights Investors” shall have the meaning set forth in Section 9.9.
“Regulatory Allocations” shall have the meaning set forth in Section 3.3(d).
“Related Party” means, (i) any current officer or Manager of the Company and any child, stepchild, parent, stepparent, spouse, sibling,
mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law of the foregoing individuals, (ii) any Person who is known to the Officers or any Manager that is an employee or service provider of the Company or any
Subsidiary thereof to be the beneficial owner of more than five percent (5.0%) of any class of the Company’s voting securities and any Subsidiary of any such five percent (5.0%) beneficial owner, and (iii) any current director of any Subsidiary of
the Company or any officer with general signatory authority for such Subsidiary.
“Reorganization” shall have the meaning set forth in the recitals.
“Requisite Ownership Threshold” means a number of common Equity Securities equal to or greater than two percent (2.0%) of the common Equity
Securities of the IPO Entity issued and outstanding immediately after the consummation of a Qualified IPO.
“Restricted Payments” shall have the meaning set forth in Section 2.3(e)(xii).
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“RR Holding Company” means FIP RR Holding Company LLC, a Delaware limited liability company and the direct parent of the Company.
“R&W Insurance Policy” means that buy-side representation and warranty insurance policy and binder related to the Wheeling SPA (including
any excess policies and related binders).
“Safe Harbor” shall have the meaning set forth in Section 8.7(a).
“Sale Committee” shall have the meaning set forth in Section 2.3(d).
“Sale Demand” shall have the meaning set forth in Section 2.3(d).
“Sale/Leaseback Transaction” means an arrangement relating to the direct or indirect sale, conveyance, transfer or other disposition, whether
in a single transaction or series of related transactions, of property or assets owned by the Company or a Subsidiary of the Company on the Effective Date or thereafter acquired by the Company or a Subsidiary of the Company whereby the Company or a
Subsidiary of the Company transfers such property or assets to a Person that is not a member of the Manager Group and the Company or a Subsidiary of the Company leases such property or assets from such Person or its Affiliates (that is not a member
of the Manager Group).
“Sale of the Company” means any transaction or series of transactions pursuant to which a Person or group of Persons in the aggregate
acquire(s) (a) Equity Securities possessing the voting power (other than voting rights accruing only as a result of an Event of Noncompliance) to elect a majority of the Company’s Board (whether by merger, consolidation, reorganization,
combination, division, sale or transfer of Equity Securities, securityholder or voting agreement, proxy, power of attorney or otherwise) or (b) all or substantially all of the Company’s and its Subsidiaries’ assets determined on a consolidated
basis (measured by Fair Market Value), whether by sale, lease, transfer, exclusive license or other disposition; provided that, for the avoidance of doubt, an IPO, SPAC (if elected by the Series A Preferred Majority in Interest) or Direct
Listing shall not constitute a Sale of the Company.
“Sale Process” shall have the meaning set forth in Section 2.3(d).
“Sale Transaction” shall have the meaning set forth in Section 2.3(d).
“Sanction” means any sanction administered or enforced by the U.S. Government (including the Office of Foreign Assets Control of the U.S.
Treasury Department), United Nations Security Council, European Union, His Majesty’s Treasury or other sanctions authority.
“Securities Act” means the Securities Act of 1933, as amended, or any successor federal law then in force, together with all rules and
regulations promulgated thereunder.
“Series A Designee” shall have the meaning set forth in Section 4.2(a).
“Series A Preferred Compounded Distributions” shall have the meaning set forth in Section 3.1(d).
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“Series A Preferred Distribution” means any Distributions made to Unitholders holding Series A Preferred Units in respect of such Series A
Preferred Units.
“Series A Preferred Distribution Payment Date” means the last day of each calendar month following the Effective Date (or, if such date is
not a Business Day, the immediately succeeding Business Day).
“Series A Preferred Distribution Period” means the period commencing on and including a Series A Preferred Distribution Payment Date that
ends on, but does not include, the next Series A Preferred Distribution Payment Date; provided, that the initial Series A Preferred Distribution Period shall commence on and include the Effective Date and end on, but not include, the first
Series A Preferred Distribution Payment Date.
“Series A Preferred Distribution Rate” of a Series A Preferred Unit means (i) from the Effective Date until the third (3rd) anniversary of
the Effective Date, ten percent (10.0%) per annum, (ii) from the first day following the third (3rd) anniversary of the Effective Date until the sixth (6th) anniversary of the Effective Date, twelve percent (12.0%) per annum and (iii) from the
first day following the sixth (6th) anniversary of the Effective Date and thereafter, fourteen percent (14.0%) per annum; provided that (x) if from and after the fifth (5th) anniversary of the
Effective Date, the Company has failed to pay any portion of the Series A Preferred Distribution in cash in accordance with the terms hereof, the Series A Preferred Distribution Rate from and after such time (including retroactively for such Series
A Preferred Distribution Period and until the first Series A Preferred Distribution Period commencing following such time as a Catch-Up Series A Preferred Distribution Payment with respect to all such amounts has been paid) will accrue and
accumulate at the applicable Series A Preferred Distribution Rate plus an additional two percent (2.0%) per annum, and (y) the applicable Series A Preferred Distribution Rate shall be increased by an additional two percent (2.0%) per annum from and
after the time of any Event of Noncompliance, until the first Series A Preferred Distribution Period commencing following such time as all Events of Noncompliance have been cured; provided further that more than one concurrent Event of
Noncompliance shall only give rise to a single increase of two percent (2.0%) under this clause (y) to the applicable Series A Preferred Distribution Rate.
“Series A Preferred Fee” means $50 per Series A Preferred Unit (adjusted as appropriate in the event of any stock or securities dividend,
stock or securities split, stock or securities distribution, recapitalization or combination).
“Series A Preferred Liquidation Value” means, as of the relevant time and with respect to each Series A Preferred Unit, the sum of (a) the
Series A Preferred Stated Value of such Series A Preferred Unit as of such date, plus (b) any declared but unpaid Distributions on such Series A Preferred Unit (to the extent not part of the Series A
Preferred Stated Value of such Series A Preferred Units as of such time), plus (c) the amount of accumulated and unpaid Distributions on such Series A Preferred Units from the last Series A Preferred
Distribution Payment Date to, but not including, such date (to the extent not part of the Series A Preferred Stated Value of such Series A Preferred Unit as of such date).
“Series A Preferred Majority in Interest” means the holders of a majority of the Series A Preferred Units, voting or acting together as a
single class.
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“Series A Preferred Percentage Interest” means, with respect to any Unitholder holding Series A Preferred Units at any time, the percentage
of issued and outstanding Series A Preferred Units held by such Unitholder at such time.
“Series A Preferred Purchase Price” means $1,000 per Series A Preferred Unit (adjusted as appropriate in the event of any stock or securities
dividend, stock or securities split, stock or securities distribution, recapitalization or combination).
“Series A Preferred Put Price” shall have the meaning set forth in Section 2.3(d)(i).
“Series A Preferred Redemption Demand” shall have the meaning set forth in Section 2.3(d).
“Series A Preferred Redemption Price” means the total price for each Series A Preferred Unit being redeemed, which shall be an amount per
Series A Preferred Unit equal to the greater of (x) the Series A Preferred Liquidation Value of such Series A Preferred Unit and (y) the Base Series A Preferred Return Amount with respect to such Series A Preferred Unit, in each case, calculated as
of the applicable redemption date (provided, that for the avoidance of doubt, in the event of any failure of the Company or any Affiliate thereof (other than the Ares Members, but including the Manager Group) to comply with the terms and
conditions hereof in respect of any such redemption, the applicable redemption date shall be the date the Series A Preferred Units are actually redeemed and the amounts under such redemption are paid in full).
“Series A Preferred Return on Investment” means, with respect to each applicable Series A Preferred Unit as of any date of determination, an
amount equal to the quotient of (a) the sum of (i) the aggregate gross amount of cash Series A Preferred Distributions, actually paid by the Company to a Unitholder in respect of such Series A Preferred Unit as of the date of calculation (adjusted
as appropriate in the event of any stock or securities dividend, stock or securities split, stock or securities distribution, recapitalization or combination), and (ii) the aggregate gross amount of cash actually received (or that will be received
concurrently, and is actually received, upon consummation of the transaction for which the Series A Preferred Return on Investment is being calculated) in respect of each Series A Warrant and/or Series A Warrant Unit purchased pursuant to Section
2.5 (including upon any sale of such Series A Warrant or Series A Warrant Unit) that, for purposes of this definition, correspond to such Series A Preferred Unit, provided that (A) if any Series A Warrant Holder elects to waive the Company’s
obligation to redeem any Series A Warrants and/or Series A Warrant Units pursuant to Section 2.5(g), the price with respect to each Series A Warrant and/or Series A Warrant Unit will be calculated (x) using the same purchase price or the
gross issuance price to the public per unit of the common equity issued or sold in an IPO, (y) with respect to a SPAC transaction, calculated on the basis of the implied enterprise value of the combined company as of the closing date of the SPAC
transaction and (z) with respect to a Direct Listing, the closing price per Common Unit on the first day of trading and (B) with respect a Sale of the Company, Tag-Along Sale or Drag-Along Sale, the price with respect to each Series A Warrant
and/or Series A Warrant Unit will be calculated in accordance with Section 7.3(e), Section 9.3 and Section 9.4, respectively, minus (iii) the exercise price relating to such Equity Security divided by (b) the Series
A Preferred Purchase Price for such Series A Preferred Unit; provided further that, to the extent that Ares Management LLC (acting directly, on behalf of, or through any of the Ares Members or their respective Affiliates) exercises its discretion
to allocate the specific amount of the Series A Warrants and/or the Series A Warrant Units to be redeemed or sold from each Ares Member pursuant to the terms of this Agreement, the Series A Preferred Return on Investment shall be calculated based
on the ultimate beneficial ownership of such Series A Warrant and/or the Series A Warrant Unit being redeemed or sold, and upon written request relating to the exercise of such discretion, Ares Management LLC will promptly provide to the Company
the information regarding the ultimate beneficial ownership of the applicable Equity Security among the Ares Members (and not, for the avoidance of doubt, the limited partners of Ares Members).
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For purposes of calculating the Series A Preferred Return on Investment as of any date of redemption of the Series A Preferred Units or any portion
thereof:
(x) the Series A Preferred Return on Investment shall not be less than zero; and
(y) 17.25 Series A Warrants (subject to adjustment in accordance with the terms of the Series A Warrants) issued on the Effective Date shall correspond to each Series A Preferred Unit.
“Series A Preferred Stated Value” means, as of the relevant date and with respect to each Series A Preferred Unit, the sum of (a) $1,000
(adjusted as appropriate in the event of any stock or securities dividend, stock or securities split, stock or securities distribution, recapitalization or combination) plus (b) the Series A Preferred Fee plus (c) the aggregate Series A Preferred Compounded Distributions with respect to such Series A Preferred Unit as of such date.
“Series A Preferred Unit” means a Series A Preferred Unit representing a fractional part of the Unitholders’ interests in the Profits, Losses
and Distributions and, to the extent the holder thereof has been admitted as a Member, having the other rights and obligations specified with respect to Series A Preferred Units in this Agreement.
“Series A Warrant Holder” means the owner of a Series A Warrant or Series A Warrant Unit as set forth in the Unit Ownership Ledger.
“Series A Warrants” means the warrants to purchase an aggregate of 172,500 Common Units issued on the Effective Date to the Unitholders
holding the Series A Preferred Units (as adjusted in accordance with the terms of the Warrant Agreement).
“Series
A Warrant Repurchase Notice” shall have the meaning set forth in Section 2.5(b).
“Series A Warrant Repurchase Price” shall have the meaning set forth in Section 2.5(a).
“Series A Warrant Units” means the Common Units that have been issued upon exercise of the Series A Warrants.
“Series
A Warrant Units Repurchase Price” shall have the meaning set forth in Section 2.5(a).
“Similar Business” means any business conducted or proposed to be conducted by the Company and its Subsidiaries on the Effective Date or any
business that is substantially similar, reasonably related, incidental or ancillary thereto, including for the avoidance of doubt, any business that is generally considered to be an infrastructure business.
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“SPAC” means a transaction or series of related transactions by merger, consolidation, share exchange or otherwise of any IPO Entity with or
involving a publicly traded “special purpose acquisition company” or its subsidiary.
“STB Approval” means the issuance by the STB of a decision, which decision shall become effective and which decision shall not have been
stayed or enjoined, that (A) constitutes a final agency action approving, exempting or otherwise authorizing the acquisition of indirect control of Wheeling & Lake Erie Railway Company and Akron Barberton Cluster Railway Company by Buyer (as
defined in the Voting Trust Agreement (as attached to the Wheeling SPA as of August 6, 2025)) and its affiliates, without the imposition of conditions that Buyer, by written notice to the Trustee (as defined in the Voting Trust Agreement (as
attached to the Wheeling SPA as of August 6, 2025)), has deemed to be unacceptable, and (B) does not require any change in the consideration paid or to be paid pursuant to the Wheeling SPA or other material provisions thereof, or any change to the
certificate of incorporation and bylaws of the Target, or the organizational documents of the Company.
“STB Failure” means (A) (i) the Company or one of its wholly-owned Subsidiaries fails to hold all of the Trust Certificates (as defined in
the Voting Trust Agreement (as attached to the Wheeling SPA as of August 6, 2025)) at a time when neither the Company nor any of its wholly-owned Subsidiaries owns all of the rights, title and interests in and to all of the Trust Interests (as
defined in the Voting Trust Agreement (as attached to the Wheeling SPA as of August 6, 2025)), (ii) the STB Approval is not granted, or the Company fails to directly acquire all of the rights, title and interests in and to all of the Trust
Interests on or prior to the twelve (12)-month anniversary of this Agreement, or (iii) there occurs an STB Denial (as defined in the Voting Trust Agreement (as attached to the Wheeling SPA as of August 6, 2025)), and (B) earlier of (i) the sale to
a third party of the outstanding Equity Securities in the Target, and (ii) the date that is the twenty-four (24) month anniversary of the occurrence of any event in clause (A) of this definition.
“Subscription Agreement” shall have the meaning set forth in the recitals.
“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association or business entity (a)
of which securities or other ownership interests representing (i) more than fifty percent (50.0%) of the equity or (ii) more than fifty percent (50.0%) of the ordinary voting power or more than fifty percent (50.0%) of the general partnership
interests are, at the time any determination is being made, directly or indirectly, owned, controlled or held, (b) that is, at the time any determination is made, otherwise controlled, by the parent or one or more subsidiaries of the parent or by
the parent and one or more subsidiaries of the parent or (c) consolidated in the consolidated financial statements of the applicable Person in accordance with GAAP. For purposes hereof and unless otherwise indicated, the term “Subsidiary” refers to
a direct or indirect Subsidiary of the Company.
“Substituted Member” shall have the meaning set forth in Section 10.1.
“Tag-Along Allotment” shall have the meaning set forth in Section 9.3(a).
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“Tag-Along Notice” shall have the meaning set forth in Section 9.3(c).
“Tag-Along Notice Date” shall have the meaning set forth in Section 9.3(b).
“Tag-Along Right” shall have the meaning set forth in Section 9.3(a).
“Tag-Along Sale” shall have the meaning set forth in Section 9.3(a).
“Tag-Along Sale Notice” shall have the meaning set forth in Section 9.3(b).
“Tagging Seller” shall have the meaning set forth in Section 9.3(a).
“Tagging Unitholder” shall have the meaning set forth in Section 9.3(c).
“Takeover Notice” shall have the meaning set forth in Section 2.3(d).
“Target” shall have the meaning set forth in the recitals.
“Tax Distribution” shall have the meaning set forth in Section 3.1(g).
“Taxable Year” means the Company’s accounting period for federal income tax purposes determined pursuant to Section 8.4.
“Transfer” shall have the meaning set forth in Section 9.1. The terms “Transferring” and “Transferred” when used as
verbs shall have their correlative meanings.
“Transtar” shall have the meaning set forth in the recitals.
“Treasury Regulations” means the income tax regulations promulgated under the Code.
“Unit” means a Unitholder’s interest in the Profits, Losses and Distributions representing a fractional part of the aggregate interests of a
particular class or series of interests in the Profits, Losses, and Distributions and shall include all classes of Series A Preferred Units and Common Units; provided that each holder of any class or series of Units that is a Member shall
have the relative rights, powers, duties, and obligations specified with respect to such class or series of Units in this Agreement.
“Unit Ownership Ledger” shall have the meaning set forth in Section 2.2(a).
“Unitholder” means any owner of one or more Units, including any person admitted to the Company as an Additional Member or Substituted
Member. As provided in Section 18-101(7) of the Act, each Unitholder shall be bound by this Agreement, whether or not such Unitholder shall have executed this Agreement or has become a Member.
“Voting Trust Agreement” means that Voting Trust Agreement, dated as of August 25, 2025, by and among Percy and John Giles, as trustee, in
the form consistent in all respects with the form attached to the Wheeling SPA at signing.
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“Warrant Agreement” means that Warrant Agreement, dated as of August 25, 2025, by and between the Company, each Ares Member and FIP, solely
for purposes of Section 7 and Section 14 of the Warrant Agreement.
“Wheeling SPA” shall have the meaning set forth in the recitals.
Section 1.8 Rule of Construction. Any of the
terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference.
(a) The headings are for convenience only and shall not be given effect in interpreting this Agreement. References herein to any Section or Article shall be to a
Section or Article hereof unless otherwise specifically provided.
(b) References herein to any law shall mean such law, including all rules and regulations promulgated under or implementing such law, as amended from time to
time and any successor law unless otherwise specifically provided.
(c) The use of the term “pari passu” with respect to the Series A Preferred Units, shall mean pari passu by reference to the Series A Preferred Liquidation
Value of such Series A Preferred Unit at the relevant time.
(d) The words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any
particular provision of this Agreement.
(e) The use of the masculine, feminine or neuter gender or the singular or plural form of words shall not limit any provisions of this Agreement.
(f) The use herein of the word “include” or “including”, when following any general statement, term or matter, shall not be construed to limit such statement,
term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as “without limitation” or “but not limited to” or words of similar import) is
used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter.
(g) The word “will” shall be construed to have the same meaning as the word “shall.” With respect to the determination of any period of time, “from” shall mean
“from and including.” The word “or” shall not be exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.”
(h) The terms “lease” and “license” shall include “sub-lease” and “sub-license,” as applicable.
(i) All references to “$”, currency, monetary values and dollars set forth herein shall mean U.S. dollars.
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(j) When the terms of this Agreement refer to a specific agreement or other document or a decision by any body or Person that determines the meaning or
operation of a provision hereof, the secretary of the Company shall maintain a copy of such agreement, document or decision at the principal executive offices of the Company and a copy thereof shall be provided free of charge to any Member who
makes a request therefor.
(k) Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of
amounts and ratios referred to herein shall be made, without giving effect to any election under FASB Accounting Standards Codification 805, 810 or 825 (or any other part of FASB Accounting Standards Codification having a similar result or
effect), to value any indebtedness at “fair value.”
(l) Although the same or similar subject matters may be addressed in different provisions of this Agreement, it is intended that each such provision shall be
read separately, be given independent significance and not be construed as limiting any other provision of this Agreement (whether or not more general or more specific in scope, substance or content).
(m) The Manager Group shall not constitute an “unaffiliated third party.”
ARTICLE II
CAPITAL STRUCTURE, CONTRIBUTIONS AND ACCOUNTS
Section 2.1 Authorized Units.
The total Units that the Company has authority to issue shall be unlimited and shall initially consist of two classes referred to as Common Units and Series A Preferred Units. The Company may issue fractional Units.
Section 2.2 Unit Ownership
Ledger; Capital Contributions; Issuance of Units.
(a) Unit Ownership Ledger; Capital Contributions. The Company shall create and maintain a ledger (the “Unit Ownership Ledger”) setting forth (i)
the name of each Unitholder, (ii) the Capital Contributions of such Unitholder, and (iii) the number of each class of Units held by each such Unitholder. Upon any change in the number or ownership of outstanding Units (whether upon an issuance of
Units, a transfer of Units, a cancellation of Units or otherwise) in accordance with this Agreement, the Company shall amend and update the Unit Ownership Ledger. A Substituted Member that acquires Units from another Unitholder in a Transfer
permitted by this Agreement shall be deemed to have made the Capital Contributions in respect of such Units that the predecessor Unitholder made or was deemed to have made. Any reference in this Agreement to a Distribution to a Substituted Member
shall include any Distributions previously made by or to the former Unitholder on account of the interest of such former Unitholder transferred to such Substituted Member. Absent manifest error, the ownership interests recorded on the Unit
Ownership Ledger shall be a conclusive record of the Units that have been issued and are outstanding. The Board may in its discretion provide any Unitholder with the Unit Ownership Ledger in summary form and may omit the amount of Capital
Contributions made by and Units held by each Unitholder. Each Unitholder named in the Unit Ownership Ledger has made (or shall be deemed to have made) Capital Contributions to the Company as set forth in the books and records of the Company in
exchange for the Units specified in the Unit Ownership Ledger. Any reference in this Agreement to the Unit Ownership Ledger shall be deemed a reference to the Unit Ownership Ledger as amended and in effect from time to time.
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(b) Issuances of Additional Equity Securities. Subject to Section 2.3(e), Section 2.10, and Section 12.5 and the terms and conditions of this Agreement, the Board shall have the right at any time and from time to time to cause the Company to create
or issue Equity Securities (including other classes, groups or series thereof having such relative rights, powers, or obligations as may from time to time be established by the Board, including rights, powers, or obligations different from,
senior to or more favorable than existing classes, groups and series of Equity Securities), in which event, (i) all Unitholders holding the same class of Units shall be diluted in an equal manner with respect to such issuance with respect to such
same class of Units (it being understood that different classes of Units may be treated differently and, the foregoing shall not limit the application of the antidilution protections in the Warrant Agreement), and (ii) the Board shall have the
power to amend this Agreement (including existing provisions and defined terms) and the Unit Ownership Ledger to reflect such additional issuances and dilution and to make any such other amendments as it deems necessary or desirable (in its sole
discretion) to reflect such additional issuances and the rights, preferences, privileges, limitations, restrictions, obligations and other terms associated therewith (including authorizing an increase in the authorized number of Equity Securities
of any class, group or series, amending this Agreement to create and authorize a new class, group or series of Equity Securities and to add the rights, preferences, privileges, limitations, restrictions, obligations and other terms of such new
class, group or series of Equity Securities, including economic and governance rights (if any), which may be junior to (or less favorable than), pari passu with, senior to (or more favorable than) or different from the other existing Equity
Securities), in each case, in accordance with the terms and conditions of this Agreement (including Sections 2.3, 2.10 and 12.5). In connection with any issuance of Units (whether on or after the Effective Date), the
Person who acquires such Units shall execute a joinder (whether in an Equity Agreement or as a separate document) or counterpart to this Agreement accepting and agreeing to be bound by all terms and conditions hereof, and shall enter into such
other documents, instruments and agreements to effect such purchase or grant as are reasonably required by the Board (including such documents, instruments and agreements entered into on or prior to the Effective Date by the Unitholders, each, an
“Equity Agreement”). Each Person who acquires Units (other than Series A Warrants Units) after the Effective Date shall, in exchange for such Units, make a Capital Contribution to the Company in an amount to be determined by the Board in
its sole discretion (which amount may be zero).
(c) Certificates. Unless otherwise determined by the Board, all Units issued hereunder shall be uncertificated. The Board, without the consent of any
Member, shall have the right to cause the Company to issue certificates representing the issued and outstanding Units, each of which shall bear the following legend:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE OFFERED OR SOLD, UNLESS IT HAS BEEN REGISTERED UNDER THE SECURITIES ACT OR UNLESS
AN EXEMPTION FROM REGISTRATION IS AVAILABLE (AND, IN SUCH CASE, AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY MAY BE REQUESTED BY THE COMPANY TO THE EFFECT THAT SUCH OFFER OR SALE IS NOT REQUIRED TO BE REGISTERED UNDER THE SECURITIES
ACT).
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THIS SECURITY MAY BE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AND OTHER TERMS AND CONDITIONS SET FORTH IN THE AMENDED AND RESTATED LIMITED LIABILITY COMPANY
AGREEMENT OF FIP RR HOLDINGS LLC, DATED AS OF AUGUST 25, 2025, BY AND AMONG THE MEMBERS AND THE OTHER PARTIES SIGNATORY THERETO (AS MAY BE AMENDED, MODIFIED, SUPPLEMENTED OR RESTATED FROM TIME TO TIME), A COPY OF WHICH MAY BE OBTAINED FROM THE
COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY ALL OF THE PROVISIONS OF THE AFORESAID AGREEMENT.
(d) Initial Issuance of Series A Preferred Units. Contemporaneous with its execution of this Agreement, the Unitholders identified on the Unit Ownership
Ledger on the Effective Date as Unitholders holding Series A Preferred Units have subscribed for and purchased, pursuant to the terms of the applicable Subscription Agreement, newly issued Series A Preferred Units at the Series A Preferred
Purchase Price for an aggregate purchase price of $1,000,000,000, of which the Company has used the proceeds as described in the recitals hereto. As of the Effective Date, immediately following the issuance of such Series A Preferred Units, there
are 690,000 Common Units, in the aggregate, and 1,000,000 Series A Preferred Units, in the aggregate, issued and outstanding.
Section 2.3 Series A Preferred Units.
(a) Redemption at the Company’s Option.
(i) At any time and from time to time, from and after the Effective Date, to the extent not prohibited by applicable law, the Company may elect to
redeem all, or a portion, of the Series A Preferred Units, in cash at a price equal to the Series A Preferred Redemption Price on the terms and subject to the conditions set forth in this Section 2.3; provided
that, an election by the Company under this Section 2.3(a) to redeem less than all (as opposed to all) Series A Preferred Units shall be permitted only if the amount of cash distributed in the
redemption would not reasonably be expected to either (i) exceed the Unitholder’s aggregate tax basis in its outstanding Series A Preferred Units or (ii) accelerate allocations of Company taxable income to such Unitholder in the year of the
applicable redemption (in each case determined without regard to any election by Ares Member for such redemption to be non-pro rata as described in the following sentence). Any partial redemption that is effected pursuant to this Section 2.3(a) shall be made on a pro rata basis among all Unitholders holding Series A Preferred Units in proportion to the number of Series A Preferred Units held by such Unitholders; provided,
that, notwithstanding the foregoing, in the case of a partial redemption, Ares Management LLC (acting directly, on behalf of, or through any of the Ares Members or their respective Affiliates) shall have the sole and absolute discretion to
allocate the specific amount of the Series A Warrants and/or the Series A Warrant Units to be redeemed from each Ares Member, provided that the ultimate beneficial owner of any Series A Warrant and/or the Series A Warrant Unit being redeemed is
the same Person as the corresponding Series A Preferred Unit being redeemed (it being understood and agreed that “allocate” shall refer to the ability to apportion the aggregate amounts thereof among the Ares Member(s) in Ares Management LLC’s
sole discretion, subject to the preceding proviso). Subject to the immediately preceding proviso, to the extent the Company exercises its right to redeem all, or a portion, of the Series A Preferred Units in accordance with the terms of the
foregoing sentence, the Company shall be required to redeem all, or a corresponding pro rata portion, of the Series A Warrants and/or the Series A Warrant Units at a price equal to the Series A Warrant Repurchase Price and/or the Series A Warrant
Units Repurchase Price, respectively, pursuant to the procedures set forth in Section 2.5, and subject to any limitations contained therein. Any election by the Company to redeem the Series A
Preferred Units other than in compliance with this Section 2.3(a) shall be void ab initio.
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(ii) Any election by the Company pursuant to this Section 2.3 shall be made by delivery to the Unitholders
holding Series A Preferred Units of a written notice (the “Optional Redemption Notice”) of the Company’s election to redeem, at least ten (10) calendar days but no more than sixty (60) calendar days prior to the elected redemption date,
which Optional Redemption Notice shall state: (1) the Series A Preferred Redemption Price; (2) the Company’s proposed Series A Warrant Repurchase Price and/or Series A Warrant Units Repurchase Price, as applicable and (3) the redemption date (or,
to the extent not ascertainable at the time of such notice, a good faith estimate of the redemption date). Any Optional Redemption Notice may, at the Company’s discretion, be subject to one or more conditions precedent; provided, that, if notice
is subject to any conditions, the closing of the redemption shall become irrevocable when the conditions are satisfied and the closing will occur five (5) Business Days after notice that the conditions were satisfied. On the redemption date, but
subject to Section 2.3(e), the Company shall cause to be paid in cash the aggregate Series A Preferred Redemption Price for such Series A Preferred Units to such Unitholders at an account or
accounts designated by such Unitholders and shall otherwise comply with Section 2.5. Upon such payment in full, such Series A Preferred Units will be deemed to have been redeemed and Series A
Preferred Distributions with respect to such redeemed Series A Preferred Units shall cease to accumulate and all designations, rights, preferences, powers, qualifications, restrictions and limitations of such redeemed Series A Preferred Units
shall forthwith terminate, other than as expressly set forth in this Agreement. If the number of Series A Preferred Units called for redemption are not redeemed on the redemption date for any reason,
until such Series A Preferred Units are redeemed, all such unredeemed Series A Preferred Units shall remain outstanding and entitled to all of the designations, powers, preferences and relative, participating, optional, special and other rights,
and the qualifications, limitations and restrictions of the Series A Preferred Units set forth in this Agreement, including the right to accumulate and receive Series A Preferred Distributions thereon as set forth in Section 3.1 shall accrue daily at the applicable Series A Preferred Distribution Rate until the date on which the Company redeems and pays in full the Series A Preferred Redemption Price for such Series A Preferred Units
and the Company and its Affiliates (or FIP) shall use reasonable best efforts to consummate the redemption as soon as reasonably practicable.
(b) Repurchases upon Asset Sales.
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(i) Within fourteen (14) calendar days after the Company’s or a Subsidiary’s receipt of Net Proceeds of any Asset Sale, the Company shall offer to, by
delivery of written notice to the Unitholders holding Series A Preferred Units containing information substantially similar to an Optional Redemption Notice, repurchase in cash, by applying such Net Proceeds, (x) all of the Series A Preferred
Units at a price equal to the Series A Preferred Redemption Price and (y) all of the Series A Warrants and/or the Series A Warrant Units at a price equal to the Series A Warrant Repurchase Price and/or the Series A Warrant Units Repurchase Price,
respectively, pursuant to the procedures set forth in Section 2.5, and the Series A Preferred Majority in Interest may elect to accept such redemption, in whole or in part, by delivery of written
notice to the Company within ten (10) calendar days of such offer; provided that, the amount of cash distributed in redemptions in such year would not reasonably be expected to either (i) exceed the Unitholder’s aggregate tax basis in its
outstanding Series A Preferred Units or (ii) accelerate allocations of Company taxable income to such Unitholder in the year of the applicable redemption (in each case determined without regard to any election by Ares Member for such redemption
to be non-pro rata as described in the following sentence). If the Net Proceeds of the relevant Asset Sale are not sufficient to repurchase all of the Series A Preferred Units, the Series A Warrants and/or the Series A Warrant Units, the Net
Proceeds shall be applied to repurchase only such number of whole Series A Preferred Units, Series A Warrants and/or Series A Warrants Units that can be repurchased with such Net Proceeds on a pro rata basis among the accepting Unitholders
holding the Series A Preferred Units,; provided, that, notwithstanding the foregoing, in the case of a partial redemption, Ares Management LLC (acting directly, on behalf of, or through any of the Ares Members or their respective
Affiliates) shall have the sole and absolute discretion to allocate the specific amount of the Series A Warrants and/or the Series A Warrant Units to be redeemed from each Ares Member, provided that the ultimate beneficial owner of any Series A
Warrant and/or the Series A Warrant Unit being redeemed is the same Person as the corresponding Series A Preferred Unit being redeemed (it being understood and agreed that “allocate” shall refer to the ability to apportion the aggregate amounts
thereof among the Ares Member(s) in Ares Management LLC’s sole discretion, subject to the preceding proviso); provided, further that that the Company shall only redeem less than all of the Series A Preferred Units, the Series A Warrants
and/or the Series A Warrant Units in a manner consistent with the prior sentence. The Company shall include in any notice delivered pursuant to this Section 2.3 a detailed calculation, on a line item basis of the Net Proceeds of such
Asset Sale, and, upon request from the Series A Preferred Majority in Interest, shall promptly provide copies of any applicable invoices relating thereto. For the avoidance of doubt, if the Series A Preferred Majority in Interest elects not to
accept such redemption offer, the Company may use the Net Proceeds from such Asset Sale to make an investment in (a) any one or more businesses of the Company and its Subsidiaries, (b) capital expenditures, (c) acquisitions of other property or
long-term assets that, in each of (a), (b) and (c), are used or useful in a Similar Business, (d) short-term temporary investments in compliance with the terms of this Agreement, or (e) any combination of the foregoing, provided that such use of
Net Proceeds is otherwise permitted by this Agreement (including Section 2.3(e)).
(ii) Upon repurchase by the Company of Series A Preferred Units pursuant to this Section 2.3(b), such Series A
Preferred Units will be deemed to have been redeemed and Series A Preferred Distributions with respect to such redeemed Series A Preferred Units shall cease to accumulate and all designations, rights, preferences, powers, qualifications,
restrictions and limitations of such redeemed Series A Preferred Units shall forthwith terminate, other than as expressly set forth in this Agreement. If any number of Series A Preferred Units accepted for redemption are not redeemed on the
redemption date for any reason, until such Series A Preferred Units are redeemed, all such unredeemed Series A Preferred Units shall remain outstanding and entitled to all of the designations, powers, preferences and relative, participating,
optional, special and other rights, and the qualifications, limitations and restrictions of the Series A Preferred Units set forth in this Agreement, including the right to accumulate and receive Series A Preferred Distributions thereon as set
forth in Section 3.1 shall accrue daily at the applicable Series A Preferred Distribution Rate until the date on which the Company redeems and pays in full the Series A Preferred Redemption Price
for such Series A Preferred Units and the Company and its Affiliates (or FIP) shall use reasonable best efforts to consummate the redemption as soon as practicable.
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(iii) For the avoidance of doubt, if an Asset Sale constitutes a Change of Control or Sale of the Company, then Section
2.3(c) shall apply to such transaction.
(c) Mandatory Redemption.
(i) Mandatory Redemption Upon the Occurrence of a Mandatory Redemption Event. Upon the occurrence of any (A) Change of Control, (B) Sale of the
Company, (C) Drag-Along Sale, (D) STB Failure, (E) IPO, (F) SPAC, (G) Direct Listing, (H) Fundamental Breach or Fundamental Change (as defined in the Warrant Agreement), or (I) Bankruptcy Event (each, a “Mandatory Redemption Event”), the
Company shall, to the extent not prohibited by law, redeem all Series A Preferred Units at the time of the occurrence of such Mandatory Redemption Event, in cash (to be paid in accordance with this Section
2.3(c)) at a price equal to the Series A Preferred Redemption Price, plus such amount described in Section 2.3(c)(ii), if applicable. Upon such Mandatory Redemption Event,
the Company shall be required to redeem all of the Series A Warrants and Series A Warrant Units at a price equal to the Series A Warrant Repurchase Price and/or the Series A Warrant Units Repurchase Price, respectively, pursuant to the procedures
set forth in Section 2.5.
(ii) Mandatory Redemption Mechanics. If, at the applicable redemption date as set forth in Section 2.3(c)(i)
(the “Mandatory Redemption Time”), the Company is prohibited by law from redeeming all Series A Preferred Units held by Unitholders, then the Company shall redeem such Series A Preferred Units on a pro rata basis among all Unitholders
holding Series A Preferred Units in proportion to the number of Series A Preferred Units held by such Unitholders and the corresponding pro rata portion of the Series A Warrants and/or the Series A Warrant Units to the fullest extent not so
prohibited; provided, that, notwithstanding the foregoing, in the case of a partial redemption, Ares Management LLC (acting directly, on behalf of, or through any of the Ares Members or their respective Affiliates) shall have the sole and
absolute discretion to allocate the specific amount of the Series A Warrants and/or the Series A Warrant Units to be redeemed from each Ares Member, provided that the ultimate beneficial owner of any Series A Warrant and/or the Series A Warrant
Unit being redeemed is the same Person as the corresponding Series A Preferred Unit being redeemed (it being understood and agreed that “allocate” shall refer to the ability to apportion the aggregate amounts thereof among the Ares Member(s) in
Ares Management LLC’s sole discretion, subject to the preceding proviso). Any Series A Preferred Units that are not redeemed pursuant to the immediately preceding sentence shall remain outstanding and entitled to all of the designations, powers,
preferences and relative, participating, optional, special and other rights, and the qualifications, limitations and restrictions of the Series A Preferred Units set forth in this Agreement, including the right to accumulate and receive Series A
Preferred Distributions thereon, but accruing daily at the applicable Series A Preferred Distribution Rate and, under such circumstances, the redemption requirements provided hereby shall be continuous, so that at any time thereafter when the
Company is not prohibited by law from redeeming such Series A Preferred Units, the Company shall immediately redeem such Series A Preferred Units at a price per Series A Preferred Unit equal to the Series A Preferred Redemption Price as of the
Mandatory Redemption Time in accordance with this Section 2.3(c) together with payment of an amount equal to the additional accumulated and unpaid Series A Preferred Distributions following the
Mandatory Redemption Time having applied the Series A Preferred Distribution Rate, accrued daily. The Company shall take such actions as are necessary to give effect to the provisions of this Section 2.3(c),
including in the event the Company is prohibited by law from redeeming or is otherwise unable to redeem any shares of Series A Preferred Units in connection with any Mandatory Redemption Event at the Mandatory Redemption Time, taking any action
necessary or appropriate to the extent not prohibited by law to remove promptly any impediments to its ability to redeem the Series A Preferred Units, including generating legally available funds (whether by incurring Indebtedness, issuing Equity
Securities, selling assets, effecting a liquidation event or otherwise) sufficient to pay for all or any portion of the Series A Preferred Redemption Price. Subject to the first sentence of this Section 2.3(c)(ii) and notwithstanding the
foregoing, (i) the FIP Unitholders, FIP and the Company shall not consummate a Change of Control, Sale of the Company or Drag-Along Sale unless such Persons and the acquiror ensure that the Company will not be restricted from redeeming, and will
have sufficient cash to redeem, the Series A Preferred Units, Series A Warrants and/or the Series A Warrant Units, (ii) the Company will not consummate an IPO, Direct Listing or SPAC unless the Company will not be restricted from redeeming, and
will have sufficient cash to redeem (from Subsidiaries or otherwise), the Series A Preferred Units, Series A Warrants and/or the Series A Warrant Units and (iii) in the case of an STB Failure, the Company, FIP and the FIP Unitholders shall, and
shall cause their controlled Affiliates to, use reasonable best efforts to ensure that the Company will not be restricted from redeeming, and will have sufficient cash to redeem, the Series A Preferred Units, Series A Warrants and/or the Series A
Warrant Units, provided that FIP, its Affiliates and the Manager Group shall have no obligation to contribute any cash to the Company to pay for the Series A Preferred Redemption Price unless FIP, its Affiliates or the Manager Group
received cash in respect of its Common Units in any such transaction.
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(iii) The Company shall provide each Unitholder holding Series A Preferred Units a written notice (the “Mandatory Redemption Notice”) at least ten (10)
calendar days prior to the occurrence of a Change of Control or other Mandatory Redemption Event (or within five (5) calendar days following such Mandatory Redemption Event, in the event the Mandatory Redemption Event is not capable of being
known in advance of its occurrence), which Mandatory Redemption Notice shall state: (1) the Series A Preferred Redemption Price; (2) the Company’s proposed Series A Warrant Repurchase Price and/or Series A Warrant Units Repurchase Price, as
applicable, (3) the Mandatory Redemption Time (or, to the extent not ascertainable at the time of such notice, a good faith estimate of the Mandatory Redemption Time); and (4) a reasonably detailed
description of the Mandatory Redemption Event, including the terms and conditions thereof. The Company shall cause the aggregate Series A Preferred Redemption Price to be paid in accordance with this Section
2.3(c)(ii) prior to or concurrently with the effective date of such Mandatory Redemption Event. In furtherance of the foregoing, the Company and the FIP Unitholders shall ensure that concurrently with and as a condition to the
consummation of a Mandatory Redemption Event (other than an involuntary Bankruptcy Event, in which case the Company and FIP Unitholders will use reasonably best efforts to consummate the Mandatory Redemption Event as promptly as practicable), the
mandatory redemption shall be effected in full. At the Mandatory Redemption Time, the Company shall immediately cause to be paid in cash the applicable Series A Preferred Redemption Price for such Series A Preferred Units to such Unitholders
holding the Series A Preferred Units at an account or accounts designated by such Unitholders. Upon such payment in full, Series A Preferred Distributions with respect to such redeemed Series A Preferred Units shall cease to accumulate and all
designations, rights, preferences, powers, qualifications, restrictions and limitations of such redeemed Series A Preferred Units shall forthwith terminate, other than as expressly set forth in this Agreement.
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(d) Redemption at Option of Unitholders Holding Series A Preferred Units.
(i) From and after the seventh (7th) anniversary of the Effective Date, the Series A Preferred Majority in Interest, acting together, may deliver to the
Company a written notice (the “Series A Preferred Redemption Demand”) requesting that the Company redeem all (but not less than all) of the Series A Preferred Units at a price per Series A Preferred Unit equal to the Series A Preferred
Liquidation Value of such Series A Preferred Unit, calculated as of the redemption date (the “Series A Preferred Put Price”). To the extent the Series A Preferred Majority in Interest exercises its rights in accordance with the terms of
the foregoing sentence, the Company shall be required to redeem all of the Series A Warrants and/or Series A Warrant Units at a price equal to the Series A Warrant Repurchase Price and/or the Series A Warrant Units Repurchase Price, respectively,
pursuant to the procedures set forth in Section 2.5.
(ii) If the Company fails to redeem all of the Series A Preferred Units within 120 days from receiving the Series A Preferred Redemption Demand, the Series A
Preferred Majority in Interest may deliver to the Company a written notice (a “Sale Demand”) requesting that the Company commence a process in good faith and on an expedited basis to seek to effect a Sale of the Company or other
transaction constituting a Change of Control that results in a redemption of the Series A Preferred Stock, the Series A Warrants and/or the Series A Warrant Units being consummated in full (a “Sale Process” and, the transaction resulting
therefrom, a “Sale Transaction”). Upon receipt of the Sale Demand, the Company shall promptly engage in a Sale Process in good faith and on an expedited basis, including selecting a nationally recognized investment banking firm having
experience in the industry in which the Company and its Subsidiaries are engaged to assist the Company in the Sale Process. If the Company fails to promptly engage in such a Sale Process, fails to conduct such a Sale Process in good faith and on
an expedited basis or fails to consummate a Sale Transaction within 12 months after the Company’s receipt of the Sale Demand, then the Series A Preferred Majority in Interest may deliver a written notice (a “Takeover Notice”) to the
Company indicating that Unitholders holding Series A Preferred Units desire to form a committee (the “Sale Committee”) for the purpose of identifying, selecting, controlling and implementing one or more Sale Processes and Sale
Transactions. The Sale Committee shall be comprised of a number of members indicated in the Takeover Notice (which members need not be members of the Board), at least a majority of which must be selected by the Series A Preferred Majority in
Interest. Following receipt by the Company of the Takeover Notice, FIP may select and appoint up to a number of members of the Sale Committee so long as, after giving effect to any such appointment, the Sale Committee is comprised of a majority
of members selected by the Unitholders holding Series A Preferred Units. Upon receipt by the Company of the Takeover Notice, the Sale Committee shall automatically, and without any further action by the Board or the Company, have the exclusive
power and authority to (w) identify, select, control and implement, by a vote of a majority of the members of the Sale Committee, one or more Sale Processes and the consummation of one or more Sale Transactions (including all processes that would
otherwise be controlled by the Board) (including the engagement and compensation of advisors (financial and otherwise)) until all of the Series A Preferred Units are redeemed in full at the applicable Series A Preferred Put Price in accordance
with Section 2.3, (x) exercise the rights of Controlling Unitholders under Section 9.4, mutatis mutandis,
(y) approve any action or inaction by the Company or any of its Subsidiaries that could, or could reasonably be expected, to frustrate, impair, impede or delay any such Sale Process and (z) approve incentive compensation to employees of the
Company and/or its Subsidiaries relating to such a Sale Process.
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(A) At any meeting held by the Sale Committee, the presence in person or by proxy of a majority of the Sale Committee shall constitute a quorum for such meeting. Any written consent in lieu of
a meeting of the Sale Committee shall require prior written notice to each member of the Sale Committee.
(B) The FIP Unitholders, the Company and the Board shall, and the Company shall cause its Subsidiaries and its Subsidiaries’ management to, (i) as soon as practicable thereafter, execute and
deliver such documents, instruments and/or resolutions reasonably requested by all Unitholders holding Series A Preferred Units, acting together, to fully effect, confirm and reaffirm the power and authority granted to the Sale Committee pursuant
to this Section 2.3(d), (ii) use their respective reasonable best efforts to take all action reasonably necessary and appropriate to assist and cooperate with the Sale Committee in connection with
any Sale Process and the consummation of any Sale Transaction, (iii) not vote against, and vote in favor of (including by written consent), any Sale Process or the consummation of any Sale Transaction approved by the Sale Committee and (iv)
appear at any meeting called by the Sale Committee; provided that (a) Unitholders holding Common Units shall not be treated materially and adversely different than the Unitholders holding Series A
Preferred Units (after giving effect to the respective rights, preferences, and privileges thereto), (b) the indemnification obligations of each Unitholder holding Common Units relating to representations and warranties given by such Unitholder on behalf of itself and the Company shall not exceed the net proceeds it received in such Sale Transaction and (c) the total price for the Series A Preferred
Units purchased shall be no greater than the applicable Series A Preferred Put Price at the time of such purchase, excluding, for the avoidance of doubt, payment in respect of any reimbursement obligations owed to the holders thereof.
(C) It is the intent of the parties that any Sale Process initiated and carried out pursuant to the terms hereof shall, as a fundamental matter, require the holders of Common Units to comply
with and act in support of the terms and conditions of this Section 2.3(d) as if such Unitholder holding Common Units was a Dragged Seller in a Drag-Along Sale and as if the Sale Committee were
the Controlling Unitholders in a Drag-Along Sale, mutatis mutandis.
(e) Consent Rights. Notwithstanding anything contained in this Agreement to the contrary (including Section 5.5),
(x) for so long as any Series A Preferred Unit is outstanding, the prior affirmative vote or written consent of the Series A Preferred Majority in Interest shall be required for the following or to enter into any agreements with respect to the
following and (y) for so long as any Series A Warrants and/or Series A Warrant Units are outstanding, the prior affirmative vote or written consent of the holders of a majority in interest of such Series A Warrants or Series A Warrant Units shall
be required for the following or to enter into any agreements with respect to the following, and the Company shall not, and the Company shall cause its Subsidiaries not to, directly or indirectly, by amendment, merger, recapitalization, sale,
consolidation or otherwise:
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(i) (x) Incur or permit any Subsidiary to Incur any Indebtedness, other than Permitted Indebtedness or (y) create or suffer to exist any material Lien, other
than Permitted Liens; provided that solely with respect to suffering to exist a non-consensual Lien shall not constitute a violation of this Section 2.3(e)(i)(y) so long as both (i) the Company and its Subsidiaries are contesting such
Lien in good faith and (ii) neither the Company nor any Subsidiary has consented to such Lien, nor has there been a final judgment affirming such Lien;
(ii) amend, alter or repeal any provision of this Agreement or the Certificate of Formation in a manner that (1) is adverse to the Unitholders holding Series A
Preferred Units in any respect (except in the case of de minimis impact), (2) directly or indirectly imposes any additional obligations or duties on the Unitholders holding Series A Preferred Units,
Series A Warrants or Series A Warrant Units, other than immaterial administrative obligations, (3) directly or indirectly reduces or eliminates any rights afforded to the Unitholders holding Series A Preferred Units (including indemnification,
exculpation, preemptive rights and information rights), (4) is disproportionately and materially adverse to the Series A Warrant Holders relative to Common Units or (5) that directly or indirectly changes or otherwise modifies Section 12.5 in a manner adverse to the Unitholders holding Series A Preferred Units, Series A Warrants or Series A Warrant Units in any respect (except in the case of de minimis impact);
(iii) issue any (A) new Equity Securities of the Company, or reclassify, alter or amend any existing Equity Securities of the Company into, or issue any Equity
Securities or debt securities convertible into, Equity Securities of the Company except for Common Units and Equity Awards; provided, that (x) if Common Units are issued as, or in connection with, an Equity Award, such Common Units will be
subject to the following clause (B), (y) any issuance of Equity Securities (whether Common Units or otherwise) shall be priced at no less than Fair Market Value, and any consideration paid or contributed therefor shall be in the form of cash
(provided that no prior affirmative vote or written consent pursuant to this Section 2.3(e)(iii)(A)(y) shall be required for issuances occurring at a per-Common Unit price less than the then-current Fair Market Value solely if for cash
consideration and solely to the extent the issuances are for Common Units with a Fair Market Value of $5,000,000 in the aggregate) and (z) Equity Awards are subject to the following clause (B), or (B) Equity Awards that are (x) not pari passu or
junior to the Common Units or (y) in the aggregate with any other issuance of Equity Awards, are (or would constitute, once exercised, vested or received) more than five percent (5.0%) of the then-issued and outstanding Common Units, Series A
Warrants, and Equity Awards (calculated together on a fully diluted basis and assuming full exercise of the Series A Warrants);
(iv) (w) fail to beneficially own all of the issued and outstanding Equity Securities of any Subsidiary of the Company, (x) permit or cause any Subsidiary of
the Company to issue or suffer to exist any Equity Securities, or to issue, or to permit to be issued, any debt securities convertible into Equity Securities of any Subsidiary of the Company, in each case, other than Equity Securities or debt
securities held by or issued to a wholly owned Subsidiary of the Company; (y) form, acquire or permit or suffer to exist or cause any Subsidiary to form, acquire or permit or suffer to exist any Subsidiary other than a wholly owned Subsidiary; or
(z) classify, alter or amend any existing Equity Securities of any Subsidiary of the Company, other than Equity Securities held by wholly owned Subsidiaries of the Company (both before and after giving effect to such classification, alteration or
amendment) or other immaterial or de minimis changes effected for administrative purposes;
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(v) make, or cause or permit the Company or any Subsidiary of the Company to make, any payment to, or sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, (A) the Manager Group, (B) any Affiliate
of the Company or (C) any other Related Party of the Company (each of the foregoing, an “Affiliate Transaction”), unless such transaction is a Permitted Affiliate Transaction or each of the following is true: (1) such Affiliate Transaction
is on terms that are not materially less favorable to the Company or the relevant Subsidiary of the Company at the time of such transaction or at the time of the execution of the agreement providing therefor than those that would have been
obtained in a comparable arms-length transaction by the Company or such Subsidiary with an unrelated Person; and (2) such any Affiliate Transaction or series of related Affiliate Transactions involve aggregate payments or consideration of less
than $1,000,000;
(vi) directly or indirectly guarantee, endorse, assume, co-sign, provide a keep-well or comfort letter in respect of, grant a letter of credit to support,
pledge or otherwise encumber any of its assets to secure, or enter into any other arrangement having the economic effect of providing credit enhancement or other financial support (collectively, “Credit Support”) for the payment or
performance of any Indebtedness, liability or other obligation, whether now existing or hereafter Incurred, of (A) the Manager Group, (B) any Affiliate or (C) any other Related Party of the Company or its Subsidiaries known by a Manager, at the
time of entering into or suffering to exist such transaction, to be a Related Party; provided that, for the avoidance of doubt, this Section 2.3(e)(vi) shall not restrict the Company or its Subsidiaries from providing Credit Support that
is Permitted Indebtedness to the Company or any other wholly owned Subsidiary of the Company and shall not restrict the Company from making any Permitted Debt Service Distributions and Tax Distributions in accordance with the terms of this
Agreement;
(vii) with respect to the Company, engage in any business activity or own any material assets other than: (A) holding the Equity Securities or debt obligations of
the Company’s wholly owned Subsidiaries, and taking holding company actions incidental thereto, (B) performing its obligations under its certificate formation and this Agreement, (C) issuing its own Equity Securities (including the making of any
dividend or distribution on account of, or any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value of, any shares of any Equity Securities, in each case, in accordance with the terms hereof), (D)
filing tax reports and paying taxes and other customary obligations in the ordinary course of business (and contesting any taxes), (E) preparing reports to any Governmental Entity and to its equityholders, (F) holding director, manager and
equityholder meetings, preparing organizational records and other organizational activities required to maintain its separate organizational structure or to comply with applicable law, (G) holding cash, Cash Equivalents and other assets received
in connection with permitted distributions or dividends, or received in connection with Indebtedness, in each case from any of its Subsidiaries or permitted contributions to the capital of, or proceeds from the issuance of Equity Securities by
the Company, (H) providing indemnification for its officers, directors, managers, members of management, employees, advisors or consultants, (I) participating in tax, accounting and other administrative matters, (J) complying with applicable law
(including with respect to the maintenance of its existence), (K) making or receiving cash capital contributions to or from any of its wholly owned Subsidiaries (subject to the terms and conditions of this Agreement), (L) entering into routine
administrative agreements, including, but not limited to, engagement agreements, non-disclosure and confidentiality agreements, in the ordinary course of business, (M) entering into fee letters and commitment letters, (N) engaging professional
advisors and paying related fees and expenses, and (O) any other activities incidental to or in facilitation of any of the foregoing including, but not limited to, maintaining bank or other accounts;
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(viii) consummate any Company Mandatory Redemption Event, or cause or permit any Subsidiary of the Company to consummate a transaction that would constitute a
Company Mandatory Redemption Event, unless, upon consummation of thereof, the Series A Preferred Units, the Series A Warrants, and Series A Warrant Units are actually redeemed in full in cash in accordance with this Agreement;
(ix) permit its Affiliates or a member of the Manager Group to amend, modify, repeal, restate, supplement, terminate or waive, or permit the assignment or
subcontract of, or the transfer of any rights or obligations under the Management Agreement, the effect of which would, or would reasonably be expected to, materially alter (x) the scope of services or (y) the compensation, fee payment or other
economic terms relating to the Management Agreement, or cause or permit any Subsidiary to do so (provided that changes otherwise subject to this clause (y) which do not contemplate the Company or its Subsidiaries as obligors of the Manager Group
shall not be subject to this clause (y)); provided that, this clause (ix) shall not restrict the Company’s Affiliates or a member of the Manager Group from (a) replacing the Management Agreement with a new agreement pursuant to which Fortress or
one or more of its controlled Affiliates is the “manager” or (b) terminating the Management Agreement in connection with an Internalization; provided, further, that with respect to (a), any replacement of the Management Agreement does not
materially alter (1) the scope of services or (2) the compensation, fee payment or other economic terms relating to the management services provided (unless changes otherwise subject to this clause (2) does not contemplate the Company or its
Subsidiaries as obligors of the Manager Group) and is subject to the other provisions of this Section 2.3(e).
(x) initiate, approve, or effectuate any Transfer by any Unitholder holding Common Units, provided, that this clause (x) shall not apply to (a) Permitted
Transfers in accordance with Article IX and (b) Transfers of Equity Awards to or for the benefit of any spouse, child, grandchild or other family member of the holder of such Equity Awards to a trust or partnership for the benefit of any
of the foregoing, including Transfers by will or the laws of descent and distribution;
(xi) during any period of time in which there exists a Minimum EBITDA Failure, the funding, payment or other use of cash or Cash Equivalents by the Company or
any of its Subsidiaries to fund additional capital expenditures of the Company or any Subsidiary thereof or make Investments, in excess of $20,000,000 in the aggregate;
(xii) make, declare or permit (a) any dividend or other distribution on account of any units of any class of the Equity Securities of the Company; (b) any
redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value of any units of any class of Equity Securities of the Company and (c) any payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares of any class of Equity Securities of the Company now or hereafter outstanding (all such payments (whether in cash, property, securities or a combination thereof) and other actions set forth in
clauses (a) through (c) being collectively referred to as “Restricted Payments”), in each case, other than Permitted Payments;
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(xiii) consummate, or cause or permit any Subsidiary to consummate, any Asset Sale other than a Permitted Asset Sale, provided that no Unitholder shall unreasonably
withhold consent;
(xiv) permit (a) the Company or any of its Subsidiaries (X) to be an obligor in respect of any Indebtedness in respect of which any Person (other than the Company
and its wholly-owned Subsidiaries) is an obligor or (Y) to provide a Guarantee with respect to any Indebtedness or other obligation of any Person (other than the Company and its wholly-owned Subsidiaries); (b) the Company or any of its
Subsidiaries to make or hold any Investment in FIP or any Subsidiary of FIP (other than a Subsidiary of the Company); (c) the Company or any of its Subsidiaries to sell, convey, transfer, or otherwise dispose of property or assets to FIP or any
Subsidiary of FIP (other than the Company or a Subsidiary of the Company); provided that this clause (c) shall not restrict any Distributions on Common Units; (d) the Company or any of its Subsidiaries to enter into or any transaction with FIP or
any Subsidiary of FIP (other than the Company or a Subsidiary of the Company), except for transactions that are not otherwise prohibited pursuant to Section 2.3(e); or (e) the Company or any of its Subsidiaries to operate any business
other than the business operated by the Company and its Subsidiaries on the Effective Date, and any business that is a natural outgrowth or a reasonable extension, development or expansion of such business; provided, however, that
if FIP is a direct or indirect Subsidiary of any Person then references to FIP shall also be deemed to include the ultimate parent of FIP that directly or indirectly owns more than fifty percent (50.0%) of the outstanding voting securities of
FIP;
(xv) enter into any agreement, arrangement or understanding that would, or would reasonably be likely to, restrict the payment of Series A Preferred Distributions
in cash;
(xvi) commingle funds with any other Person; provided that this clause (xvi) shall not restrict the wholly owned Subsidiaries of the Company from commingling funds
with other wholly owned Subsidiaries of the Company;
(xvii) convert the Company (including pursuant to an election under the Code and Treasury Regulations) to an entity that is taxable as a corporation for federal
income tax purposes;
(xviii) convert the Company to a corporation, statutory trust, business trust, association, real estate investment trust, common law trust or any other unincorporated
business or entity, including a partnership (general or limited) or a foreign limited liability company;
(xix) make non-cash dividends or distributions (other than Series A Preferred Compounded Distributions) or merge with or into, or consolidate with, another entity
or effect any division (including under Section 18-217 of the Act), recapitalization, reorganization, change of form of organization, forward or reverse split, dividend or similar transaction, other than in a Mandatory Redemption Event in which
the Company’s obligations are fully satisfied;
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(xx) take any action (including any Material Action) to initiate, to cause or that would result in, the dissolution, liquidation, winding up or termination of the
Company (or the business or affairs thereof) or a Bankruptcy Event;
(xxi) repurchase or redeem any Junior Units other than (a) a Permitted Management Redemption, or (b) any Series A Warrant or any Series A Warrant Units in
accordance with Section 2.5 or pursuant to the Warrant Agreement;
(xxii) direct or permit any payment in connection with the R&W Insurance Policy to be made to any Person other than to the Company or any of its wholly owned
Subsidiaries (the intent of this clause (xxii) being to ensure that any recoveries under such R&W Insurance Policy accrue to the benefit of the Company and its wholly owned Subsidiaries); or
(xxiii) enter into, or otherwise authorize, any agreement, arrangement, or understanding to do the foregoing.
(f) Transfer of Equity of Corporate Members.
(i) Notwithstanding any provision in this Agreement to the contrary but subject to the remainder of this Section
2.3(f), in connection with the Transfer (including any redemption by the Company) of all Series A Preferred Units, Series A Warrants or Series A Warrant Units, in each case pursuant to this Section
2.3, Section 2.5, Section 2.12 or Article IX: (a) each Corporate Member shall be entitled to elect to cause its equity to
be Transferred (or redeemed by the Company or its designee) in such transaction in lieu of such Corporate Member Transferring its Series A Preferred Units, Series A Warrants and/or Series A Warrant Units (as applicable) (or the Company redeeming
such Series A Preferred Units, Series A Warrants or Series A Warrant Units, as applicable) in such transaction (and without any discount in consideration received for such equity (i.e., the transferors of the equity of the Corporate Member shall
receive the same amount that they would have received had such Corporate Member sold its interest in its Series A Preferred Units, Series A Warrants or Series A Warrant Units, as applicable)), and the foregoing provisions of this Section 2.3, Section 2.5 and Article IX (as applicable) shall apply mutatis mutandis to such Transfer (or redemption); and (b) each Ares Member (or entities owning an Ares Member) that is treated as a partnership or disregarded entity for federal income tax purposes shall be entitled to transfer
and/or distribute interests in the Company to direct or indirect Blockers so that following such transactions, the Blockers are treated as Corporate Members for purposes of this Section 2.3(f) and
entitled to the benefit of this Section 2.3(f).
(ii) In connection with any sale of Equity Securities in a Corporate Member pursuant to this Section 2.3(f),
the owners of the Corporate Member being sold shall, together with the applicable Corporate Member, make customary representations and warranties with respect to such Corporate Member (which, for the avoidance of doubt, shall include those
representations and warranties with respect to the matters set forth in the definition of Corporate Member, in each case, to the extent requested by a potential acquiror) that relate to all periods, or any portion thereof, that end on or prior to
closing of such sale.
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Section 2.4 Equity Awards. Subject to the terms and
conditions of this Agreement (including Section 2.10 and Section 2.3(e)), the Board may, in its sole discretion, make any number of grants of
equity awards to any employees, consultants or other Persons, in each case, that primarily provide services to the Company and are not affiliated or associated with FIP or the Manager Group (other than by virtue of their relationship with the
Company and its Subsidiaries), which awards may take any form determined by the Board, including (a) options to acquire Common Units, (b) restricted Units or promises to receive Units, (c) fully vested Units, (d) “profits interests” (with or
without customary “catch-up” features) or (e) any other awards relating in whole or in part to the value or increase in value of Units (together with any Units received upon exercise or vesting of such equity awards, “Equity Awards”); provided
that Equity Awards shall not be entitled to participate in Permitted Debt Service Distributions for so long as any Series A Preferred Units remain outstanding unless such participation reduces the Permitted Debt Service Distributions payable to the
FIP Members. The Equity Awards will have such terms and conditions as are determined by the Board in its sole discretion and may be documented by an amendment to this Agreement, in a written award agreement or any other manner as determined by the
Board, subject to the terms and conditions of this Agreement. The Board may, in its sole discretion, delegate its right to grant Equity Awards to a committee of the Board and/or the chief executive officer of the Company or other officers of the
Company, in each case, in a manner consistent with the other terms and conditions of this Agreement.
Section 2.5 Concurrent Series A Warrant and Series A Warrant Unit Repurchase.
(a) In connection with the repurchase or redemption (whether permissive or mandatory) of Series A Preferred Units pursuant to Section
2.3(a), Section 2.3(b), Section 2.3(c), or Section 2.3(d), the Company must,
concurrently with the repurchase of Series A Preferred Units, purchase all, or a corresponding pro rata portion, as applicable, of the then-outstanding Series A Warrants and Series A Warrant Units for an amount equal to the fair market value of
such Series A Warrants (the “Series A Warrant Repurchase Price”) or such Series A Warrant Units (the “Series
A Warrant Units Repurchase Price”), respectively; provided that, except in the case of a redemption pursuant to Section 2.3(d), the Company shall only be permitted to redeem less than all (as
opposed to all) of the Series A Warrant Units if the amount of cash distributed in the redemption would not reasonably be expected to (i) exceed the Unitholder’s aggregate tax basis in its outstanding Series A Warrant Units or (ii) accelerate
allocations of Company taxable income to such Unitholder in the year of the applicable redemption. Notwithstanding the foregoing, the Company shall be excused from its obligations under this Section
2.5 to the extent (and only to the extent) the Series A Warrants were exchanged for shares of common stock of FIP in accordance with the Warrant Agreement.
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(b) Notwithstanding anything herein to the contrary, in the event the Series A Warrants and/or Series A Warrant Units are subject to repurchase in accordance with the terms hereof, the Company shall include with the written notice applicable to such repurchase circumstance set forth in Section 2.3 the Company’s
calculation of the Series A Warrant Repurchase Price or Series A Warrant Units Repurchase Price, as applicable, together with reasonable supporting documentation therefor (and the Company shall provide such Series A Warrant Holder all relevant
documents and access to personnel reasonably requested by such Series A Warrant Holder or its representatives to compute and verify such calculations), and the Company’s proposed date of repurchase
(collectively, the “Series A Warrant Repurchase Notice”). The calculation of the Series A Warrant Repurchase Price or Series A Warrant Units Repurchase Price, as applicable, shall (x) not
discount the value of the Series A Warrants or the Series A Warrant Units because (i) they are subject to restrictions set forth in this Agreement or the Warrant Agreement, (ii) they are illiquid,
(iii) there is no premium for control status or (iv) they constitute only a minority interest in the Company, and (y) not imply a price per Series A Warrant (or the Common Unit exchangeable upon exercise thereof) or Series A Warrant Unit less
than that implied by the then-most recent valuation for the Company within FIP’s publicly disclosed financial statements; provided that, no event shall have occurred since the filing date of FIP’s most recent publicly disclosed financial
statements that would reasonably be expected to have a material effect on FIP’s valuation for the Company, provided further, that the occurrence of the Mandatory Redemption Event shall not constitute such an event. The Series A
Warrant Holder shall have ten (10) Business Days from the date the Series A Warrant Repurchase Notice is received by it in accordance with the immediately preceding
sentence to inform the Company in writing (a “Dispute Notice”) of any disagreement with the Series A Warrant Repurchase Price or Series A Warrant Units Repurchase Price, as applicable, set forth in the Series A Warrant Repurchase Notice. In such case, the Company and the Series A Warrant Holder shall cooperate and work in good faith to reach mutual
agreement on the Series A Warrant Repurchase Price or Series A Warrant Units Repurchase Price, as applicable, as soon as possible. In the event that they are
unable to reach agreement within ten (10) Business Days following delivery of the Dispute Notice, each of the Company and the Series A Warrant Holder shall have the right to appoint and engage a qualified appraiser to conduct an
appraisal within thirty (30) calendar days of such appointment and determine the fair market value of the Series A Warrants or the Series A Warrant Units, as applicable, as follows, and, in each case, at the Company’s sole expense:
(i) if the fair market value derived from the appraisal provided by the appraiser appointed by the Company and the fair market value derived from the
appraisal provided by the appraiser appointed by the Series A Warrant Holder are within ten percent (10.0%) of each other (based on the lower amount), then the Series A Warrant Repurchase Price or Series A Warrant Units Repurchase Price, as
applicable, shall be equal to the average of such two values; and
(ii) if the fair market value derived from the appraisal provided by the appraiser appointed by the Company and the fair market value derived from the appraisal
provided by the appraiser appointed by the Series A Warrant Holder are not within ten percent (10.0%) of each other, an additional appraiser will be mutually appointed
by the Company and the Series A Preferred Majority in Interest to conduct an appraisal within thirty (30) calendar days of such appointment and the two overall values that are closest together on an absolute dollar basis will be averaged and the resulting average fair market value shall constitute the Series A Warrant Repurchase Price or Series A Warrant Units Repurchase Price, as applicable. The costs and expenses of any appraiser appointed in accordance with this subsection (b) shall be borne by the
Company.
(iii) In the event that the Series A Warrant Holder does not timely deliver a Dispute Notice as provided in this Section
2.5(b), the Series A Warrant Repurchase Price or Series A Warrant Units Repurchase Price, as applicable, set forth in the applicable notice shall automatically be deemed agreed. The Company shall pay the aggregate Series A Warrant
Repurchase Price or Series A Warrant Units Repurchase Price, as applicable, in cash to the Series A Warrant Holder, in exchange for the Transfer to the Company of such Series A Warrants or Series A Warrant Units, as applicable, at the time
required by the applicable subsection of Section 2.3 (it being understood and agreed that any delay in respect of the procedures required to determine the fair market value in accordance with this
Section 2.5 shall equitably adjust the timeframes required to repurchase in accordance with the applicable subsection of Section 2.3).
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(iv) Notwithstanding the foregoing, if the Series A Warrant Repurchase Price or Series A Warrant Units Repurchase Price, as applicable, has not been finally
determined at the time that a redemption is scheduled to occur then: (i) the redemption of the Series A Preferred Units shall proceed on the scheduled redemption date; (ii) the Company shall pay to the applicable holder the portion of the
redemption price that is not then in dispute (which, for the avoidance of doubt, may not be less than, but may be more than, the Series A Preferred Redemption Price as though the clause (ii) of the definition of Series A Preferred Return on
Investment was the lowest amount proposed based on the procedures described in this Section 2.5); (iii) the Company shall deposit into an escrow account with Citibank, N.A. or any other nationally recognized bank mutually agreed to
between the Company and the Series A Warrant Holder (the “Escrow Account”) any portion of the calculation of the Series A Warrant Repurchase Price or Series A Warrant Units Repurchase Price that
is in dispute; (iv) solely to the extent the Company is required to do so pursuant to Section 10 of the Warrant Agreement, the Company shall adjust the Exercise Price, the number of Warrants and the number of Warrant Units to the one required by
the Series A Warrant Repurchase Price derived from the appraisal provided by the appraiser appointed by the Holders, (v) the parties shall finalize the procedures in this Section 2.5 in accordance with its terms, (vi) upon the final
determination of the Series A Warrant Repurchase Price, solely to the extent the Company is required to do so pursuant to Section 10 above, the Company shall adjust the Exercise Price, the number of Warrants and the number of Warrant Units as
required by the final Subject of Valuation (as defined in the Warrant Agreement) and shall give retroactive effect to such adjustments from the date of the event, and (vii) upon the final determination of the Series A Warrant Repurchase Price
and/or the Series A Warrant Units Repurchase Price, as applicable, the Company shall pay, or cause to be paid (including from such Escrow Account), the portion of the Series A Preferred Redemption Price, the Series A Warrant Repurchase Price
and/or the Series A Warrant Units Repurchase Price, as applicable, that was not paid at the time of the redemption, plus a return thereon applied at the Base Rate accruing daily and compounding monthly from the applicable redemption date until
such payment is made in full. For the avoidance of doubt, this Section 2.5(b) shall survive such Unitholder’s ceasing to be a Unitholder of the Company or the termination, dissolution, liquidation and winding up of the Company.
(c) In the event that the Company is repurchasing Series A Warrants and/or Series A Warrants Units from more than one Series A Warrant Holder, the appraiser
shall be selected by the Series A Preferred Majority in Interest.
(d) Notwithstanding the foregoing, it is understood and agreed that in the event of a redemption in connection with clauses (a) or (b) of the definition of
Change of Control (to the extent of a transaction involving the Company and not FIP), the price to be paid with respect to the Series A Warrants will be calculated using the same price to be paid per Common Unit in such Change of Control.
(e) For the purpose of establishing the fair market value of a Series A Warrant, the Series A Warrants shall be deemed to be exercisable at holder’s option at any
time from the Initial Issue Date (as defined in the Warrant Agreement) until the Expiration Time (as defined in the Warrant Agreement).
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(f) In the event of an IPO, the fair market value of a Series A Warrant and/or a Series A Warrant Unit shall calculated on the basis of the purchase price or
the gross issuance price to the public per unit of the common equity issued or sold in an IPO. In the event of a SPAC transaction, the fair market value of a Series A Warrant shall be calculated on the basis of the implied enterprise value of the
combined company as of the closing date of the SPAC transaction. In the event of a Direct Listing, the fair market value of a Series A Warrant shall be calculated on the basis of the closing price per Common Unit on the first day of trading. In
the event of a Sale of the Company, Tag-Along Sale or Drag-Along Sale, the fair market value of a Warrant shall be calculated in accordance with Section 7.3(e), Section 9.3 and Section 9.4, respectively.
(g) The Series A Warrant Holder may, in its sole discretion, choose whether or not to exercise the Series A Warrants in whole or in part in connection with an
IPO, SPAC or Direct Listing, with any Series A Warrants that remain outstanding following the completion of such IPO, SPAC or Direct Listing becoming exercisable into the Company’s (or its parent’s, Subsidiary’s or Affiliate’s) listed common
Equity Securities if such listed common Equity Securities are not Common Units. In furtherance of the foregoing, if a Mandatory Redemption Event is triggered in connection with an IPO, SPAC or Direct Listing then each Series A Warrant Holder may
elect to waive (in whole or in part) the Company’s obligation to redeem the Series A Warrants and Series A Warrant Units.
Section 2.6 Capital Account.
(a) The Company shall establish and maintain a separate “Capital Account” for each Unitholder according to the rules of Treasury Regulation Section
1.704‑1(b)(2)(iv). For this purpose, the Company may (in the discretion of the Partnership Representative), upon the occurrence of the events specified in Treasury Regulation Section 1.704‑1(b)(2)(iv)(f),
increase or decrease the Capital Accounts in accordance with the rules of such regulation and Treasury Regulation Section 1.704‑1(b)(2)(iv)(g) to reflect a revaluation of Company property.
(b) For purposes of computing the amount of any item of Company income, gain, loss or deduction to be allocated pursuant to Article III and to be
reflected in the Capital Accounts, the determination, recognition and classification of any such item shall be the same as its determination, recognition and classification for federal income tax purposes (including any method of depreciation,
cost recovery or amortization used for this purpose), provided that:
(i) The computation of all items of income, gain, loss and deduction shall include those items described in Code Section 705(a)(l)(B), Code Section
705(a)(2)(B) and Treasury Regulation Section 1.704‑1(b)(2)(iv)(i), without regard to the fact that such items are not includable in gross income or are not deductible for federal income tax purposes.
(ii) If the Book Value of any Company property is adjusted pursuant to Treasury Regulation Section 1.704‑1(b)(2)(iv)(e)
or (f), the amount of such adjustment shall be taken into account as gain or loss from the disposition of such property.
(iii) Items of income, gain, loss or deduction attributable to the disposition of Company property having a Book Value that differs from its adjusted basis for
tax purposes shall be computed by reference to the Book Value of such property.
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(iv) Items of depreciation, amortization and other cost recovery deductions with respect to Company property having a Book Value that differs from its adjusted
basis for tax purposes shall be computed by reference to the property’s Book Value in accordance with Treasury Regulation Section 1.704‑1(b)(2)(iv)(g).
(v) To the extent an adjustment to the adjusted tax basis of any Company asset pursuant to Code Sections 732(d), 734(b) or 743(b) is required, pursuant to
Treasury Regulation Section 1.704‑1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the
adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis).
(vi) Items of income, gain, loss and deduction of the Company with respect to any property distributed to a Unitholder shall be computed as if the Company had
sold such property on the date of such distribution at a price equal to its Fair Market Value at that date.
(c) The Unitholders’ Capital Accounts may be adjusted at such times as are determined by the Partnership Representative.
Section 2.7 Negative Capital
Accounts. No Unitholder shall be required to pay to any other Unitholder or the Company any deficit or negative balance which may exist from time to time in such Unitholder’s Capital Account (including upon and after dissolution of the
Company).
Section 2.8 No Interest.
Except as otherwise expressly provided herein, no Unitholder shall be entitled to receive interest from the Company in respect of any positive balance in its Capital Account, and no Unitholder shall be liable to pay interest to the Company in
respect of any negative balance in its Capital Account.
Section 2.9 No Withdrawal.
No Person shall be entitled to withdraw any part of such Person’s Capital Contributions or Capital Account or to receive any Distribution from the Company, except as expressly provided in this Agreement.
Section 2.10 Additional
Issuances.
(a) Except as provided in Section 2.10(f), and subject to Section 2.3(e), if the Company or any of its
Subsidiaries proposes the issuance or sale of any Equity Securities or any debt securities (collectively, “New Securities”), the Company shall first offer to sell to the Unitholders holding Series A Preferred Units (each an “Offeree”,
and collectively, the “Offerees”) a portion of such New Securities equal to the quotient determined by dividing (i) the number of Series A Preferred Units held by such Offeree by (ii) the total number of Series A Preferred Units held by
all of the Offerees. Each Offeree shall be entitled to purchase such applicable New Securities at the most favorable price and on the most favorable terms as such New Securities are to be offered to any other Person in the applicable offering.
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(b) In order to exercise its purchase rights hereunder, an Offeree must within ten (10) Business Days after receipt of written notice from the Company (“Issuance
Notice”) describing in reasonable detail the New Securities being offered, the purchase price thereof, the payment terms and such Offeree’s percentage allotment, deliver a written notice to the Company and the other Offerees (“Exercise
Notice”) describing its election hereunder. If all of the New Securities offered to the Offerees are not fully subscribed by such Offerees, the remaining New Securities not so subscribed for shall be reoffered by the Company to the
remaining Offerees that exercised their rights in full, except that such remaining Offerees must exercise their purchase rights within five (5) days after receipt of such reoffer.
(c) Upon the expiration of the offering periods described above, the Company shall be entitled to sell the New Securities which the Offerees elected not to
purchase during the one hundred twenty (120) days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to such Offerees; provided that, if such sale is subject to regulatory
approval, such one hundred twenty (120)-day period shall be extended until the expiration of ten (10) Business Days after all such approvals have been received, but in no event later than two hundred forty (240) from the date of the Issuance
Notice. Any New Securities offered or sold by the Company after the applicable period must be reoffered to the Offerees pursuant to the terms of this Section 2.10.
(d) The Company shall not be obligated to consummate any proposed issuance or sale of New Securities, nor be liable to any Offeree if the Company has not
consummated any proposed issuance or sale of New Securities pursuant to this Section 2.10.
(e) Notwithstanding anything to the contrary herein, in lieu of offering any New Securities to the Offerees pursuant to this Section 2.10 at the time
such New Securities are offered to other Persons, the Company may comply with the provisions of this Section 2.10 by making an offer to sell to the Offerees such New Securities, promptly (but no more than three (3) Business Days) after
such an offer and sale to such other Persons is effected, at the price and upon terms that are not materially less favorable to the Offerees than those offered to such other Persons; provided that the Board shall have determined that the
delay that would otherwise result from the Company’s compliance with the procedures set forth in subsections (a) through (c) of this Section 2.10 would adversely impact, in any material respect, the Company or its ability to consummate
such issuance or the economic terms thereof. In such event, for all purposes of this Section 2.10, the portion of such New Securities that each Offeree shall be entitled to purchase hereunder shall be determined by taking into
consideration the actual amount of New Securities sold to other Persons so as to achieve the same economic effect as if such offer would have been made prior to such sale.
(f) The provisions of this Section 2.10 shall not apply to (i) Equity Awards approved by the Board and issued in accordance with the other terms and
conditions of this Agreement, (ii) New Securities issued upon the exercise of the Series A Warrants, (iii) issuance of Common Units with an aggregate value of $5,000,000 (measured based on Fair Market Value at issuance) for all issuances under
this clause (iii) at a purchase price less than Fair Market Value, and (iv) any other issuance in which preemptive rights are waived by the Series A Preferred Majority in Interest, provided that the waiver applies to all such holders on a pro rata basis and that such majority of the holders of such rights are not participating in such issuance.
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(g) In respect of New Securities issued by the Company or its Subsidiaries (including, for the avoidance of doubt, the New Securities issued in connection with Section
2.10(f)), the Company shall promptly provide to the Offerees in advance of any such issuance the Fair Market Value of such New Securities as calculated in accordance with Section 7.3(a) and all support. Except with the New
Securities issued in connection with Section 2.10(f), the Offerees shall have ten (10) Business Days (which such ten (10) Business Day period shall be equitably tolled in respect of time awaiting responses to any Offeree’s reasonable
requests for backup and information related to the calculation of Fair Market Value or the issuance to which such calculation relates) from the date the Fair Market Value determination (and all backup supporting such determination) is received by
it in accordance with the immediately preceding sentence to inform the Company in writing of any disagreement with the Fair Market Value of such New Securities. Any disagreement or dispute in following
such notice shall be subject to the dispute resolution provisions of Section 2.5(b), mutatis mutandis; provided, that the underlying issuance shall not be permitted to occur until Fair
Market Value is finally determined.
Section 2.11 Rights Upon Event of Noncompliance.
(a) Promptly after, and no later than five Business Days following the date that the Company has actual knowledge of an Event of Noncompliance, the Company shall
notify the Unitholders holding Series A Preferred Units of such Event of Noncompliance.
(b) If any Event of Noncompliance shall occur, then, on the Board Expansion Date, unless all Series A Preferred Units then outstanding are redeemed in full in
accordance Section 2.3(a) or Section 2.3(c) (including the payment provisions), as applicable, prior to such date, automatically without any further action of the Company or the Members, (A) the size of the Board shall be
increased by a number sufficient to constitute a majority of the Board (which vacancies may only be filled by the Series A Preferred Majority in Interest) and (B) the Series A Preferred Majority in Interest shall have the right to designate and
elect Managers, by written consent of the Series A Preferred Majority in Interest or by a plurality of the votes cast in a meeting of such holders, to serve as Managers of the Board constituting a majority of the Board until such Manager
designees’ resignation, death, removal, or disqualification. The Company and the FIP Unitholders shall promptly take any and all actions required to implement this Section 2.11. The “Board Expansion Date” means the date of the
Event of Noncompliance (subject to any applicable cure period referenced in the definition thereof). Any member of the Board designated and elected pursuant to this Section 2.11(b) shall be provided indemnification (including any rights
to advancement) and exculpation by the Company in respect of such Manager’s service to the Company in any corporate status no less favorable than those provided to other Managers of the Board.
(c) Notwithstanding anything in this Section 2.11 to the contrary, no Manager shall be appointed to the Board pursuant to this Agreement unless (A) such
Manager is qualified to serve as a member of the Board under (x) the applicable terms of corporate governance policies and guidelines of the Company and the Board to the extent such terms are required by law, and (y) applicable legal and
regulatory requirements. The Company and the FIP Unitholders shall cooperate reasonably with the Series A Preferred Majority in Interest to ensure that the requirements set forth in the foregoing provision do not limit the Series A Preferred
Majority in Interest’s appointment right under this Section 2.11 (including, if required, by taking commercially reasonable efforts to cause then-existing Managers to resign promptly upon written request from the Series A Preferred
Majority in Interest) and to promptly provide the Series A Preferred Majority in Interest such information as may be reasonably requested in relation to such requirements.
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(d) Any Manager elected as provided in this Section 2.11 may be removed with or without cause by, and only by, the written consent or affirmative vote of
the Series A Preferred Majority in Interest, and the Company shall take any and all actions as may be required and permitted under the Act and this Agreement, in order to facilitate any such removal. If the Series A Preferred Majority in Interest
fail to designate or elect a sufficient number of Managers to fill all positions for which they are entitled to elect Managers pursuant to this Section 2.11 or such Manager is vacated, then any Manager position not so filled (or otherwise
vacated) shall remain vacant until such time as the Series A Preferred Majority in Interest designate or elect a person to fill such position, and no such position may be filled by the Board or the Members of the Company (other than the Series A
Preferred Majority in Interest).
(e) Following the redemption in full of all outstanding units of Series A Preferred Units, (i) the Unitholders holding Series A Preferred Units shall take any and
all actions as may be required and permitted under the Act and this Agreement in order to cause any Managers elected or appointed to the Board pursuant to this Section 2.11 to resign (and, for the avoidance of doubt, such Manager shall
resign without any further action by the Board or the Members (other than the holders as required by this Section 2.11(e)) and (ii) the Company shall take any and all actions as may be required under the Act and this Agreement in order to
reduce the size of the Board to its size immediately prior to such Event of Noncompliance.
(f) Notwithstanding Section 5.5, from and after the time of an Event of Noncompliance, on each matter
submitted to a vote of the Members other than the election of Managers, (i) the holders of Series A Preferred Units shall vote with the Common Units as a single class and (ii) each Series A Warrant shall vote with the Common Units on an
as-exercised basis. In such case, each Series A Preferred Unit shall have a number of votes determined multiplying (i) the number of votes per unit of Common Units by (ii) the amount determined by dividing (x) the Series A Preferred Liquidation
Value by (y) the Exercise Price (as defined in the Warrant Agreement). Notwithstanding Section 5.5, from and after the time of an Event of Noncompliance, on each matter submitted to a vote of the
Members other than the election of Managers, the Unitholders holding Series A Preferred Units shall vote with the Common Units as a single class. In such case, each Series A Preferred Unit shall have a number of votes determined multiplying (i)
the number of votes per unit of Common Units by (ii) the amount determined by dividing (x) the Series A Preferred Liquidation Value by (y) the Exercise Price (as defined in the Warrant Agreement).
Section 2.12 IPO Structure.
(a) The Company shall use commercially reasonable efforts to structure any IPO, SPAC or Direct Listing (including any transactions undertaken in connection with
such IPO, SPAC or Direct Listing) in a tax-efficient manner and any transaction in connection with an IPO, SPAC or Direct Listing shall be structured so the Series A Warrant Holders that are (including after giving effect to any pre-IPO
transactions) Corporate Members (including any Blockers treated as a Corporate Member pursuant to Section 2.3(f)) may exchange or otherwise convert the Equity Securities of such Corporate Members (or Blockers) in such transaction into Equity
Securities of the IPO Entity without a discount of any kind.
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(b) To the extent any IPO is structured through an umbrella partnership C-corporation structure, (i) the Series A Warrant Holders shall be entitled to customary
exchange rights to exchange their Common Units (including any Equity Securities of the Company received in connection with any restructuring undertaken in connection with such IPO) for Equity Securities in the IPO Entity and (ii) the IPO Entity
shall enter into a customary income tax receivable agreement for which the Series A Warrant Holders shall be entitled to share pro rata.
ARTICLE III
DISTRIBUTIONS AND ALLOCATIONS
Section 3.1 Distributions.
(a) Except as otherwise provided in this Agreement, the Company shall make pro rata Distributions to the Unitholders
holding Common Units in respect of their Common Units at any time and from time to time, as and if declared by the Board or a duly authorized committee thereof, out of the assets of the Company and its Subsidiaries; provided that such
Distributions are permitted under any lending agreements to which the Company or any of its Subsidiaries is a party and under applicable law. The Company shall not be permitted to, and shall not, declare or make, any Distributions (cash or
otherwise) in respect of any Common Unit or other Equity Security other than the Series A Preferred Units using (i) the Net Proceeds from any Asset Sale (except for Tax Distributions for taxes generated from such Asset Sale), (ii) proceeds
received from the Voting Trust following an STB Failure, (iii) proceeds received from any debt incurrence, and (iv) proceeds received from any recoveries in connection with the R&W Insurance Policy. If an Event of Noncompliance is existing
following the earlier of (A) the repayment of the obligations of the Permanent Debt Financing or (B) the five (5) year anniversary of the Effective Date, then the Company shall not be permitted to, and shall not, declare or make, any
Distributions (cash or otherwise) in respect of any Common Unit or other Equity Security other than the Series A Preferred Units.
(b) Except for (x) Tax Distributions permitted by Section 3.1(g) and (y) Permitted Debt Service Distributions, the Company shall not be permitted to, and
shall not, declare or make, any Distributions (cash or otherwise) in respect of any Common Unit or other Equity Securities other than the Series A Preferred Units in any of the following circumstances:
(i) so long as any Series A Preferred Units Distributions are required to be paid in whole or in part in cash pursuant to Section
3.1(d) and have not been paid in cash for the then-current Series A Preferred Distribution Period and for any other Series A Preferred Distribution Periods for which Series A Preferred Units Distributions are required to be paid in
whole or in part in cash pursuant to Section 3.1(d); or
(ii) following the date that is the earlier of (x) the five (5) year anniversary of the Effective Date and (y) the date on which the obligations of the
Permanent Debt Financing have been repaid in full, if the Company’s EBITDA for the prior completed Fiscal Year immediately prior to such date or any consecutive four fiscal quarters that includes a fiscal quarter after such Fiscal Year end is
less than $130,000,000 (in either case, a “Minimum EBITDA Failure”).
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(c) Except for (x) Tax Distributions permitted by Section 3.1(g) and (y) Permitted Debt Service Distributions prior to the five (5) year anniversary of
the Effective Date, all Series A Preferred Distributions, including Series A Preferred Compounded Distributions, are prior to and in preference over any distribution on any Junior Units and shall be declared and fully paid before any
Distributions are declared and paid, or any other distributions are made, on any Junior Units. Distributions shall be payable to the Unitholders holding Series A Preferred Units as they appear on the Unit Ownership Ledger on the date that is ten
(10) calendar days prior to the applicable Series A Preferred Distribution Payment Date. Series A Preferred Distributions with respect to each Series A Preferred Distribution Period shall be the sum of the distribution calculated on a daily basis
during such period. The daily distribution shall accrue and accumulate on each share of Series A Preferred Units outstanding on such day, whether or not declared and paid, and, if not declared and paid, shall accrue and be compounded as described
below. Such daily distribution shall be calculated as the product of (i) the Series A Preferred Stated Value of each Series A Preferred Unit outstanding, and (ii) the applicable Series A Preferred Distribution Rate for each day elapsed during
such Series A Preferred Distribution Period divided by 365. Series A Preferred Distributions will be due and payable monthly in arrears, when, as and if declared by the Board or a duly authorized committee hereof, out of the assets of the Company
and its Subsidiaries on each Series A Preferred Distribution Payment Date.
(d) To the extent any Series A Preferred Distributions are not paid in cash, such Series A Preferred Distributions shall be (x) automatically compounded monthly
on each Series A Preferred Distribution Payment Date, (y) added to the Series A Preferred Liquidation Value and (z) accrue at the applicable Series A Preferred Distribution Rate for each day elapsed during such time period where such Series A
Preferred Distributions are not paid in cash in accordance with the terms hereof, divided by 365. On each Series A Preferred Distribution Payment Date related to a Series A Preferred Distribution Period for which the Company does not for any
reason (including because payment of any Series A Preferred Distribution is prohibited by law) timely pay in cash all Series A Preferred Distributions that accumulated during such Series A Preferred Distribution Period, any such accrued but
unpaid Series A Preferred Distributions shall (whether or not earned or declared) become part of the Series A Preferred Stated Value of such Series A Preferred Unit as of the applicable Series A Preferred Distribution Payment Date (“Series A
Preferred Compounded Distributions”), whether or not declared by the Board.
(e) Unless the Board determines to declare all or a portion of Series A Preferred Distributions in respect of any Series A Preferred Distribution Period in cash
from the Effective Date through (and including) the fifth (5th) anniversary of the Effective Date, all Series A Preferred Distributions shall be paid in Series A Preferred Compounded Distributions. From and after the fifth (5th) anniversary of
the Effective Date, the Company shall pay the Series A Preferred Distributions in cash.
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(f) The Company may at any time elect to declare and pay (or set apart cash to pay) to Unitholders holding Series A Preferred Units all or any portion of Series
A Preferred Compounded Distributions accrued with respect to prior Series A Preferred Distribution Periods, together with all or any portion of Series A Preferred Distributions accrued and unpaid to the date of such payment (a “Catch-Up Series
A Preferred Distribution Payment”). Such accrued Series A Preferred Distributions shall be deemed to be paid in full as of the date such amount of cash is paid as a Catch-Up Series A Preferred Distribution Payment, and the Series A
Preferred Stated Value shall be automatically reduced by the amount of the portion of the Catch-Up Series A Preferred Distribution Payment that was a Series A Preferred Compounded Distribution. Catch-Up Series A Preferred Distribution Payments
shall be payable to the Unitholders holding Series A Preferred Units as they appear on the Unit Ownership Ledger on the record date established by the Board. Except for Tax Distributions permitted by Section
3.1(g), if following the fifth (5th) anniversary of the Effective Date the Series A Preferred Distributions are not paid in cash (whether or not earned or declared) for any reason (including because payment of any Series A
Preferred Distribution is prohibited by law), and until all accrued but unpaid Series A Preferred Distributions required to be paid in cash pursuant to this Section 3.1(f) are paid in full in cash, then:
(i) no Distributions, whether in cash or property, may be declared or paid or set apart for payment on any Junior Units;
(ii) the Company shall not, and shall cause its Subsidiaries not to, directly or indirectly, repurchase, redeem or otherwise acquire for consideration any
Junior Units; and
(iii) accrued but unpaid Series A Preferred Distributions shall accrue at the applicable Series A Preferred Distribution Rate for each day elapsed during such
time period where such Series A Preferred Distributions are not paid in cash in accordance with the terms hereof.
(g) Notwithstanding anything herein to the contrary, subject to any restrictions under any lending agreements to which the Company or any of its Subsidiaries is a
party or under applicable law, the Company shall use commercially reasonable efforts to make Distributions in respect of Series A Preferred Units (and the Partnership Representative may, in its good faith discretion, cause the Company to make
Distributions in respect of Common Units) with respect to each Taxable Year of an amount of cash (a “Tax Distribution”) equal to the product of (i) such Unitholders’ Company Income Amount for such Taxable Year, multiplied by (ii) the
Assumed Tax Rate. A Unitholder’s “Company Income Amount” shall be an amount, if positive, equal to (x) the net taxable income of the Company allocable to such Unitholder for such Taxable Year reduced by (y) the total net taxable losses of
the Company allocated to such Unitholder in prior Taxable Years to the extent such losses (A) have not reduced net taxable income of a prior Taxable Year and (B) can be utilized (taking into account applicable limitations on deductibility) to
offset net taxable income generated in such Taxable Year, calculated by assuming that such Unitholder’s only items of income, gain, loss, and deduction for all relevant years are items allocated to it by the Company, and including any allocation
of gross income to a Member or income to a Member with respect to amounts treated as a “guaranteed payment” for federal income tax purposes. The “Assumed Tax Rate” for a Taxable Year shall be the maximum combined federal, foreign, state,
and local income tax rate that is applicable to an applicable Unitholder (or its direct or indirect partners or members, as applicable) in respect of income recognized during such Taxable Year, taking into account the deductibility of state and
local taxes (to the extent permitted) and taking into account the character of such income, as determined by the Partnership Representative in its reasonable discretion (it being understood that the Assumed Tax Rate can, and likely will, be
different for different unitholders in any Taxable Year). The Company will (subject to any restrictions described in the first sentence of this Section 3.1(g)) cause such Distributions to be made at such time as will permit Unitholders to
use the proceeds of such Distributions to make on a timely basis estimated payments of income taxes in respect of Company taxable income.
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(h) Each Tax Distribution shall be made to the Persons shown on the Company’s books and records as holders of Units as of the date of such Distribution and shall
be treated as an advance to such Persons of (and shall correspondingly reduce) the amounts to which they are otherwise entitled to hereunder and, for the avoidance of doubt and without duplication, to the extent received by a holder of Series A
Preferred Units shall be treated as reducing the balance on which Series A Preferred Compounded Distributions dividends accrue (but, with respect to any Series A Preferred Unit, not below the sum of (a) the Series A Preferred Purchase Price for
such Unit plus (b) Series A Preferred Fee with respect to such Unit).
(i) The Unitholders shall look solely to the assets of the Company for any Distributions, whether liquidating Distributions or otherwise. If the assets of the
Company remaining after the payment or discharge, or the provision for payment or discharge, of the debts, obligations, and other liabilities of the Company are insufficient to make any Distributions, no Unitholder shall have any recourse against
the separate assets of any other Unitholder (except as otherwise expressly provided herein).
(j) If the Company has, pursuant to any clear and manifest accounting or similar error, paid any Unitholder an amount in excess of the amount to which it is
entitled pursuant to this Article III, such Unitholder shall reimburse the Company to the extent of such excess, without interest, within thirty (30) calendar days after demand by the Company (which the Company shall make promptly upon
becoming aware of such error); provided, however, that in the case of the Unitholders holding Series A Preferred Units the Company may elect instead to reduce the amount of any future Distributions or Tax Distributions made to
such Unitholder under this Article III by the amount of such excess with prior written notice to such Unitholder and the Company shall reduce the amount of any future Distributions or Tax Distributions made to any other Unitholder under
this Article III by the amount of such excess to the extent such Unitholder fails to comply with this Section 3.1(j).
(k) The Equity Agreements pursuant to which any Units are acquired may include additional rights, conditions or limitations on the Distribution entitlements of
such Units and any such Unit’s entitlement to share in any Distribution pursuant to this Section 3.1 shall be subject in all respects to such additional rights, conditions or limitations.
Section 3.2 Allocations. Except as otherwise provided in Section 3.3, Net Profits and
Net Losses for any Fiscal Year shall be allocated among the Unitholders, to the greatest extent possible, such that, as of the end of such Fiscal Year, the Capital Account of each Unitholder (which may be negative) shall equal (a) the amount
which would be distributed to them (if any) or for which they would be liable to the Company under the Act, determined as if the Company were to (i) liquidate the assets of the Company for an amount equal to their Book Value and (ii) distribute the proceeds of such liquidation pursuant to Section 7.2 minus (b) the sum of (i) such Unitholder’s share of Company Minimum Gain (as determined according
to Treasury Regulation Sections 1.704‑2(d) and (g)(3)) and such Unitholder’s partner nonrecourse debt minimum gain (as determined according to Treasury Regulation Section 1.704‑2(i)) and (ii) the amount, if any, which such Unitholder is obligated
to contribute to the capital of the Company as of the last day of such Fiscal Year.
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Section 3.3 Special
Allocations.
(a) Nonrecourse deductions shall be allocated to the Unitholders holding Series A Preferred Units (ratably among such Unitholders based upon the number of
outstanding Series A Preferred Units held by each such Unitholder). If there is a net decrease in Company Minimum Gain during any Taxable Year, each Unitholder shall be specially allocated Profits for such Taxable Year (and, if necessary,
subsequent Taxable Years) in an amount equal to such Unitholder’s share of the net decrease in Company Minimum Gain, determined in accordance with Treasury Regulation Section 1.704‑2(g). The items to be so allocated shall be determined in
accordance with Treasury Regulation Section 1.704‑2(f)(6). This Section 3.3(a) is intended to comply with the minimum gain chargeback requirement in Treasury Regulation Section 1.704‑2(f) and shall be interpreted consistently therewith.
(b) Losses attributable to partner nonrecourse debt (as defined in Treasury Regulation Section 1.704‑2(b)(4)) shall be allocated in the manner required by
Treasury Regulation Section 1.704‑2(i). Except as otherwise provided in Treasury Regulation Section 1.704‑2(i)(4), if there is a net decrease during any Taxable Year in partner nonrecourse debt minimum gain (as defined in Treasury Regulation
Section 1.704‑2(i)(3)), Profits for such Taxable Year (and, if necessary, subsequent Taxable Years) shall be allocated to the Unitholders in the amounts and of such character as determined according to, and subject to the exceptions contained in
Treasury Regulation Section 1.704‑2(i)(4). This Section 3.3(b) is intended to be a minimum gain chargeback provision that complies with the requirements of Treasury Regulation Section 1.704‑2(i)(4) and shall be interpreted in a manner
consistent therewith.
(c) If any Unitholder that unexpectedly receives an adjustment, allocation or distribution described in Treasury Regulation Sections 1.704‑1(b)(2)(ii)(d)(4), (5)
and (6) has an Adjusted Capital Account Deficit as of the end of any Taxable Year, then Profits for such Taxable Year shall be allocated to such Unitholder in proportion to, and to the extent of, such Adjusted Capital Account Deficit. This Section
3.3(c) is intended to be a qualified income offset provision as described in Treasury Regulation Sections 1.704‑1(b)(2)(ii)(d) and shall be interpreted in a manner consistent therewith.
(d) The allocations set forth in Section 3.3(a), (b) and (c) (the “Regulatory Allocations”) are intended to comply with certain
requirements of the Treasury Regulations under Code Section 704. Notwithstanding any other provisions of this Article III (other than the Regulatory Allocations), the Regulatory Allocations shall be taken into account in allocating
Profits and Losses among Unitholders so that, to the extent possible, the net amount of such allocations of Profits and Losses and other items and the Regulatory Allocations (including Regulatory Allocations that, although not yet made, are
expected to be made in the future) to each Unitholder shall be equal to the net amount that would have been allocated to such Unitholder if the Regulatory Allocations had not occurred.
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(e) Profits and Losses described in Section 2.6(b)(v) shall be allocated in a manner consistent with the manner that the adjustments to the Capital
Accounts are required to be made pursuant to Treasury Regulation Sections 1.704‑1(b)(2)(iv)(j), (k) and (m).
(f) If, and to the extent that, any Unitholder is deemed to recognize any item of income, gain, loss, deduction or credit as a result of any transaction between
such Unitholder and the Company pursuant to Code Sections 1272‑1274, 7872, 483, 482, 83 or any similar provision now or hereafter in effect, and the Partnership Representative determines that any corresponding Profit or Loss should be allocated
to the Unitholders who recognized such item in order to reflect the Unitholders’ economic interests in the Company, then the Company may so allocate such Profit or Loss.
(g) For purposes of determining each Unitholder’s share of nonrecourse liabilities (within the meaning set forth in Treasury Regulation Section 1.752-1(a)(2)), if
any, of the Company in accordance with Treasury Regulation Section 1.752-3(a)(3), the Unitholders’ interests in Company Profits shall be determined by the Partnership Representative in good faith.
Section 3.4 Tax Allocations.
(a) Except as provided in Section 3.4(b), (c) and (d), the income, gains, losses, deductions and credits of the Company will be allocated,
for federal, state and local income tax purposes, among the Unitholders in accordance with the allocation of such income, gains, losses, deductions and credits among the Unitholders for computing their Capital Accounts; provided that if
any such allocation is not permitted by the Code or other applicable law, the Company’s subsequent income, gains, losses, deductions and credits will be allocated among the Unitholders so as to reflect as nearly as possible the allocation set
forth herein in computing their Capital Accounts.
(b) Items of Company taxable income, gain, loss and deduction with respect to any property contributed to the capital of the Company shall be allocated among the
Unitholders in accordance with Code Section 704(c), using any reasonable method determined by the Partnership Representative so as to take account of any variation between the adjusted basis of such property to the Company for federal income tax
purposes and its Book Value provided, however, that the method for 704(c) allocations arising out of or attributable to the contribution of any assets by RR Holding Company (or its Affiliate) to the Company prior to or in
connection with the Acquisition shall be subject to the consent of the Ares Member (not to be unreasonably withheld, conditioned or delayed), and the Partnership Representative and Ares Member shall consult in good faith to select a method that
minimizes, to the extent reasonably possible, allocations of taxable income to the holders of the Series A Preferred Units.
(c) If the Book Value of any Company asset is adjusted pursuant to the requirements of Treasury Regulation Section 1.704‑1(b)(2)(iv)(e) or (f), subsequent
allocations of items of taxable income, gain, loss and deduction with respect to such asset shall take account of any variation between the adjusted basis of such asset for federal income tax purposes and its Book Value in the same manner as
under Code Section 704(c) using any reasonable method determined by the Partnership Representative.
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(d) Allocations of tax credits, tax credit recapture, and any items related thereto shall be allocated to the Unitholders according to their interests in such
items as determined by the Partnership Representative taking into account the principles of Treasury Regulation Section 1.704‑1(b)(4)(ii).
(e) Allocations pursuant to this Section 3.4 are solely for purposes of federal, state and local taxes and shall not affect, or in any way be taken into
account in computing, any Unitholder’s Capital Account or share of Profits, Losses, Distributions or other Company items pursuant to any provision of this Agreement.
(f) The Partnership Representative may, but shall not be obligated to, elect to adjust the basis of the assets of the Company for federal income tax purposes in
accordance with Section 754 of the Code. Notwithstanding the foregoing, to the extent requested by the Ares Member in connection with any Transfer, the Partnership Representative shall cause the Company to file an election under Section 754 of
the Code for the Taxable Year of the Company that includes the date of such Transfer (if such election is not otherwise already in effect).
(g) Notwithstanding anything in this Agreement to the contrary, the Company agrees that no Series A Preferred Distributions or amounts payable pursuant to Section 2.3 shall (i) be treated as resulting in a guaranteed payment under Section 707(c) of the Code (or any comparable provision of state or local tax law) or (ii) result in an allocation of gross
(as distinguished from net) income, in each case, except to the extent resulting from a cash distribution at a time when the Company does not have Net Income with which to make an allocation to the holders of the Series A Preferred Units. The
Company shall prepare and file all relevant tax returns on a basis consistent with the foregoing, except to the extent otherwise required pursuant to a “determination” within the meaning of Section 1313(a) of the Code or any analogous provision
of applicable tax law or any notice of final partnership adjustment, or any reasonable determination by the Company’s tax return preparers that there is not “substantial authority” for the relevant position (a “Final Determination”).
(h) Changes in Member’s Interests. If during any year there is a change in any Member’s interest, the Board will confer with the tax advisors to the Company and,
in conformity with such advice allocate the Profit or Loss to the Members so as to take into account the varying interests of the Members in the Company in a manner that complies with the provisions of Section 706 of the Code and the Treasury
Regulations thereunder.
Section 3.5 Indemnification and Reimbursement for Payments on Behalf of a Unitholder. If the Company is required by law to make any payment to any governmental entity that is specifically attributable to a
Unitholder or a Unitholder’s status as such (including federal or other withholding taxes, state personal property taxes, state unincorporated business taxes and, in the event that the Company becomes liable for any taxes, interest or penalties
under Section 6225 of the Code, such Unitholder’s allocable share of the amount of such tax liability, including any interest and penalties associated therewith, as reasonably determined by the Partnership Representative in accordance with the
Code), then such Unitholder, at the request of the Partnership Representative, shall indemnify and contribute to the Company in full the entire amount paid or payable (including interest, penalties and related expenses). The Partnership
Representative may offset Distributions and Tax Distributions to which a Person is otherwise entitled under this Agreement against such Person’s obligation to indemnify the Company under this Section 3.5 or with respect to any other amounts
owed by the Unitholder to the Company or any of its Subsidiaries. A Unitholder’s obligation to indemnify and make contributions to the Company under this Section 3.5 shall survive the transfer of a Unitholder’s interest and the termination,
dissolution, liquidation and winding up of the Company, and for purposes of this Section 3.5, the Company shall be treated as continuing in existence. The Company may pursue and enforce all rights and remedies it may have against each
Unitholder under this Section 3.5, including instituting a lawsuit to collect such indemnification and contribution, with interest calculated at a rate equal to the Base Rate plus three percent (3.0%) per annum (but not in excess of the
highest rate per annum permitted by law), compounded on the last day of each fiscal quarter.
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Section 3.6 Certain Determinations. All matters
concerning the following shall be determined by the Partnership Representative in good faith: the computation of Capital Accounts; the calculation and allocation of Profits and Losses; the allocation of items of income, gain, loss, deduction and
expense for tax purposes; the making, changing, or revocation of any tax elections and the adoption, change or revocation of any accounting methods, positions, policies, and procedures not expressly provided for by the terms of this Agreement. Such
determination shall be final and conclusive as to all Unitholders. Notwithstanding anything expressed or implied to the contrary in this Agreement, in the event the Partnership Representative determines, in its discretion, that it is prudent to
modify the manner in which the Capital Accounts or any debits or credits thereto (including the allocation of Profits and Losses) are computed in order to comply with regulations under Section 704(b) of the Code or reflect the intended economic
sharing arrangement of the Unitholders, then the Partnership Representative may cause the Company to make such modification; provided, that no such allocation may be made if it would have a materially adverse and disproportionate effect on
the holders of the Series A Preferred Units, without the consent of the Series A Preferred Majority in Interest (not to be unreasonably withheld, conditioned or delayed). Notwithstanding anything to the contrary in this Agreement, the Partnership
Representative in its discretion is expressly authorized to take any action necessary or appropriate to comply with the Partnership Audit Rules or to appropriately allocate the burden of any assessments thereunder among the Unitholders, as
determined by the Partnership Representative, provided, that the Partnership Representative shall not take any such action that would have a materially adverse and disproportionate effect on the holders of the Series A Preferred Units,
without the consent of the Ares Member (not to be unreasonably withheld, conditioned or delayed).
Section 3.7 Series A Warrants.
(a) Unless otherwise required by a change in applicable law after the Effective Date or by a Final Determination to the
contrary, and subject to Sections 3.7(b), (c) and (d), the parties hereto agree for federal and applicable state and local income tax purposes to (i) treat the issuance of each Series A Warrant as an open
transaction and not as the issuance of a partnership or membership interest in the Company (including, under Treasury Regulations Section 1.761-3(a)), (ii) treat each Series A Warrant Holder, with respect to ownership of such Series A Warrants,
as the holder of a warrant or option exercisable for Series A Warrant Units and not as a holder of a partnership interest in the Company (including, under Treasury Regulations Section 1.761-3(a)), (iii) consistent with the final Treasury
Regulations regarding noncompensatory partnership options (T.D. 9612, as amended, the “Noncompensatory Option Regulations”), not allocate any Profit or Loss or other items of income, gain, deduction, loss or credit hereunder to a Series
A Warrant Holder with respect to a Series A Warrant prior to the exercise of such Series A Warrants, and (iv) comply with the revaluation rules of Treasury Regulations Section 1.704-1(b)(2)(iv)(f) and (h) of the Noncompensatory Option
Regulations during the period that the Series A Warrant is outstanding. The parties hereto shall file all tax returns and information reports in a manner consistent with the above, except to the extent otherwise required by the adoption of any
superseding authority or a Final Determination.
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(b) Upon exercise of any Series A Warrants, unless other superseding authority regarding noncompensatory partnership options have been issued requiring a
different treatment of the Series A Warrants, and subject to Section 3.7(c), the parties agree to treat the exercise of the Series A Warrants under principles set forth in the Noncompensatory Option Regulations, including: (i)
establishing an initial Capital Account for the applicable Series A Warrant Holder equal to the consideration deemed paid to the Company for the purchase of the Series A Warrants plus the fair market
value of any property contributed to the Company upon exercise of the Series A Warrants, (ii) revaluing the Company property immediately following exercise of a Series A Warrant, (iii) allocating built-in gain or loss in the Company property to
the exercising Series A Warrant Holder and the historic Members as contemplated under Treasury Regulations Section 1.704-1(b)(2)(iv)(s)(2) of the Noncompensatory Option Regulations, (iv) to the extent
the allocation under subpart (iii) is insufficient to adjust the exercising Series A Warrant Holder’ Capital Account in accordance such holder’s right to share in capital, reallocating the Company’s
capital between the such exercising holder and the historic Members, and (v) if the Company’s capital is reallocated pursuant to subpart (iv) above, making associated “corrective allocations” as described in Treasury Regulations Section
1.704-1(b)(2)(iv)(s)(4) of the Noncompensatory Option Regulations.
(c) Ares Member and RR Holding Company (or its successors) shall negotiate in good faith to agree as to whether and when any adjustment that reduces the
applicable exercise price under the Series A Warrants may cause the Series A Warrants, for U.S. federal (and corresponding state and local) income tax purposes, to be deemed exercised for partnership interests in the Company, provided, however,
that unless by Ares Member and RR Holding Company agree to the contrary, such deemed exercise shall be deemed to occur no later than the first time at which the applicable price of the Series A Warrants is reduced to zero.
(d) In the event the Company would be subject to any “imputed underpayment” (or similar Company-level assessment) resulting from a recharacterization of the
Series A Warrants as a partnership interest as a result of any tax audit, then each Member shall, at RR Holding Company’s election, cooperate to cause or permit a “push-out” election under Section 6226 of the Code (or similar election under state
or local law) to be made with respect thereto, such that appropriate adjustments to be taken into account under such section are allocated to all partners in the Company (including the Series A Warrant Holders) in accordance with such
recharacterization.
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ARTICLE IV
MANAGEMENT
Section 4.1 Authority of
Board.
(a) Pursuant to Section 18-402 of the Act, as provided in this Section 4.1, but subject to the terms and conditions of this Agreement (including Section
2.3(d) and Section 2.3(e))), (i) the Board shall conduct, direct and exercise full control over all activities of the Company (including all decisions relating to the issuance of additional Equity Securities, repurchase of Equity
Securities and the voting and sale of, and the exercise of other rights with respect to, the Equity Securities of its Subsidiaries), (ii) all management powers over the business and affairs of the Company shall be exclusively vested in the Board
and (iii) the Board shall have the sole power to bind or take any action on behalf of the Company, or to exercise any rights and powers (including the rights and powers to take certain actions, give or withhold certain consents or approvals, or
make certain determinations, opinions, judgments, or other decisions) granted to the Company under this Agreement or any other agreement, instrument, or other document to which the Company is a party, including the Equity Agreements.
(b) Without limiting the generality of the foregoing, subject only to the terms and conditions of Article VII, Article IX, Article X, Article
XI, Section 2.3(d), Section 2.3(e), and Section 12.5, and as permitted under Sections 18-209(b), 18-213(b), 18-216(b), 18-301(b)(1), 18-302(a), 18-302(b), 18-304, 18-704(a), 18-801(a), and 18-803(a) of the Act, the
Board shall have sole discretion and right to cause the Company to (1) enter into any agreement regarding, and have sole authority to approve on behalf of the Company and all of the Members and other Unitholders, any merger or consolidation
involving the Company or a sale of all or substantially all of the assets of the Company, (2) transfer to, or domesticate or continue in any jurisdiction, and, in connection therewith, elect to continue its existence as a limited liability
company in the State of Delaware, (3) admit a Person as an Additional Member or a Substituted Member; provided that the Board shall admit any Person as an Additional Member or a Substituted Member to the extent the applicable Transfer
complies with the terms and conditions of this Agreement, or (4) dissolve and wind up its affairs, in each case without any vote or other approval by the Members or other Unitholders except as otherwise expressly contemplated by this Agreement.
Notwithstanding the foregoing, a Person shall continue as a Member notwithstanding the happening of the events described in Section 18-304 of the Act.
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(a) Subject to Section 2.11, the Board shall be comprised of one to seven (7) Managers, with the exact
number of Managers comprising the Board to be determined from time to time by a Common Majority in Interest, and shall include one Independent Manager as provided in Section 4.2(e). The Board initially shall consist of four (4) Managers, one of which shall be the Independent Manager. The Managers shall be designated by a Common Majority in Interest; provided, that upon the
exercise of all Series A Warrants in accordance with the terms thereof, the Series A Preferred Majority in Interest shall have the right to designate one (1) Manager to the Board (the “Series A Designee”) in its sole discretion and the size
of the Board shall be deemed to be increased to permit the designation of such Manager; provided further, that at such time as the Ares Member ceases to beneficially own at least five percent (5.0%) of
the then issued and outstanding Common Units, the Series A Preferred Majority in Interest will have no further right to designate a Manager to the Board and any Series A Designee then serving on the
Board pursuant to this Section 4.2 shall be automatically removed and the size of the Board shall be decreased by one member.
(b) Subject in all cases to Section 2.11(d) and Section 4.2(e),
(i) each Manager shall serve until a successor is appointed in accordance with the terms hereof or his or her earlier resignation, death or removal, (ii) any Manager may be removed only by the party designating such Manager, with or without cause
and (iii) a Manager may resign at any time upon written notice to the Company. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event. For the avoidance
of doubt, the removal of the Independent Manager is subject to Section 4.2(e) of this Agreement.
(c) Subject in all cases to Section 2.11(d) and Section 4.2(e),
in the event that any Manager ceases to serve as a member of the Board during his or her term of office, the resulting vacancy on the Board shall be filled by the party having the right to designate such Manager. If such party fails to appoint a
Manager pursuant to the terms of this Section 4.2, such position on the Board shall remain vacant until such party exercises its right to appoint a Manager as provided hereunder. A Manager chosen to fill a vacancy shall serve the unexpired
term of his predecessor in office. For the avoidance of doubt, the replacement of the Independent Manager is subject to Section 4.2(e) of this Agreement.
(d) Subject to any restrictions under the Company’s or any of its Subsidiaries’, as applicable, lending
agreements, the Company (i) shall pay, or shall cause its Subsidiaries to pay, the reasonable out-of-pocket fees and expenses incurred by each Manager in connection with such Manager’s service on the Board, including attending any meeting of the
Board or any committee thereof, and (ii) may compensate any Manager for services rendered as a member of the Board or any committee thereof. Except as otherwise provided in the immediately preceding sentence or elsewhere in this Agreement, the
Managers shall not be compensated for their services as members of the Board.
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(e) Until such time as there are no longer any Series A Preferred Units
outstanding and the former holders thereof have been paid in full, the Common Majority in Interest shall cause the Company at all times to have one Independent Manager. The Independent Manager may not be removed unless it is for Cause. The initial
Independent Manager is Dewen Tarn. To the fullest extent permitted by applicable law, including Section 18-1101(c) of the Act, and notwithstanding any duty otherwise existing at law or in equity, the Independent Manager shall consider only the
interests of the Company, including its creditors, in acting or otherwise voting on the matters referred to in Section 4.12(b), Section 4.12(c) and Section 4.12(d). Except for duties to the Company as set forth in the immediately preceding sentence (including duties to the Members and the Company’s creditors solely to the extent of their respective economic
interests in the Company, but excluding (i) all other interests of the Members, (ii) the interests of other Affiliates of the Company, (iii) the interests of any group of Affiliates of which the Company is a part, and (iv) the interests of the
Manager Group), the Independent Manager shall not have any fiduciary duties to the Members, any member of the Board or any other Person bound by this Agreement; provided, however, the foregoing shall not eliminate the implied
contractual covenant of good faith and fair dealing. To the fullest extent permitted by applicable law, including Section 18-1101(e) of the Act, the Independent Manager shall not be liable to the Company, the Members or any other Person bound by
this Agreement for breach of contract or breach of duties (including fiduciary duties), unless the Independent Manager acted in bad faith or engaged in fraud or willful misconduct. No resignation or removal of the Independent Manager, and no
appointment of a successor Independent Manager, shall be effective until such successor shall have accepted his or her appointment as the Independent Manager by executing a counterpart to this Agreement. In the event of a vacancy in the position of
Independent Manager, the Common Majority in Interest shall, as soon as practicable, appoint a successor Independent Manager. Notwithstanding anything to the contrary contained in this Agreement, the Independent Manager shall not be removed or
replaced unless the Company provides the Series A Preferred Majority in Interest with no less than five (5) Business Days’ prior written notice of (a) any proposed removal of the Independent Manager (including the finding of Cause), and (b) the
identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements for the Independent Manager set forth in this Agreement. All right, power and authority of the Independent
Manager shall be limited to the extent necessary to exercise those rights and perform those duties specifically set forth in Article IV. Except as provided in the fourth sentence of this Section 4.2(e), in exercising its rights and performing its duties under this Agreement, the Independent Manager shall have fiduciary duties of loyalty and care identical to those of a director of a business
corporation organized under the General Corporation Law of the State of Delaware. The Independent Manager shall not at any time serve as trustee in bankruptcy for any Affiliate of the Company or any member of the Manager Group. The Independent
Manager is hereby designated as a “manager” within the meaning of Section 18-101(12) of the Act. All right, power and authority of the Independent Manager shall be limited to the extent necessary to exercise those rights and perform those duties
specifically set forth in Section 4.12(b), (c) and (d) and the Independent Manager shall otherwise have no authority to act
on behalf of the Company. The Company shall be entitled to pay the Independent Manager customary compensation.
Section 4.3 Proxies. A Manager entitled to vote may vote at a meeting of the
Board or any committee thereof either in person or by proxy executed in writing by such Manager. An email or similar transmission by the Manager, or a photographic, facsimile or similar reproduction of a writing executed by the Manager shall (if
stated thereon) be treated as a proxy executed in writing for purposes of this Section 4.3. Proxies for use at any meeting of the Board or any committee thereof or in connection with the taking of any action by written consent shall be filed
with the Board, before or at the time of the meeting or execution of the written consent, as the case may be. All proxies shall be received and taken charge of and all ballots shall be received and canvassed by the majority of the Board who shall
decide all questions concerning the qualification of voters, the validity of the proxies and the acceptance or rejection of votes. The Board may adopt such other procedures governing proxies as it shall deem appropriate.
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(a) Meetings of the Board and any committee thereof shall be held at the principal office of the Company or at
such other place as may be determined by the Board or such committee. Regular meetings of the Board shall be held on such dates and at such times as shall be determined by the Board, but in no event less than once during any 12-month period.
Special meetings of the Board or any committee may be called by a majority of Managers (or in the case of a special meeting of any committee of the Board, by any a majority of Managers thereof) on at least two Business Days’ (or, under exigent
circumstances, the greatest amount of time as is reasonably practicable but in no event less than 24 hours) prior written notice to the other Managers, which notice shall state the purpose or purposes for which such meeting is being called. The
presence of a majority of the Managers shall constitute a quorum. Subject to the next sentence, the actions taken by the Board or any committee at any meeting (as opposed to by written consent), however called and noticed, shall be as valid as
though taken at a meeting duly held after regular call and notice if (but not until), either before, at or after the meeting, the Manager as to whom it was improperly held signs a written waiver of notice or a consent to the holding of such meeting
or an approval of the minutes thereof. Notwithstanding anything contained in this Agreement to the contrary, the actions by the Board or any committee thereof may be taken by either (i) a majority vote of the Board or any committee at a meeting of
the Managers thereof in which a quorum is present or (ii) by written consent (without a meeting and without a vote) so long as such consent is signed by at least the minimum number of Managers that would be necessary to authorize or take such
action at a meeting of the Board or such committee in which all members thereof were present. The Unitholders holding Series A Preferred Units and the Independent Manager shall be given at least 24 hours’ notice of any action proposed to be taken
by written consent of the Board before it becomes effective. A meeting of the Board or any committee may be held by conference telephone or similar communications equipment by means of which all individuals participating in the meeting can be
heard.
Section 4.5 Delegation of Authority. The
Board may, from time to time, delegate to one or more Persons (including any Manager and including through the creation and establishment of one or more other committees (provided, that, to the extent the Series A Preferred Majority in
Interest has designated a Manager in accordance with this Agreement, such Manager shall be designated on any such committee and all Subsidiary boards or other governing bodies and all committees thereof)) such authority and duties as the Board may
deem advisable; provided that the Board may only delegate authority and duties with respect to a Material Action to the Independent Manager (or to a committee that includes the Independent Manager and other Persons). The Board also may assign
titles (including, but not limited to, chairman, chief executive officer, president, vice president, secretary, assistant secretary, treasurer and assistant treasurer) to any Manager, Unitholder or other individual and may delegate to such Manager,
Unitholder or other individual certain authority and duties. Any number of titles may be held by the same Manager, Unitholder or other individual. Any delegation pursuant to this Section 4.5 may be revoked at any time by the Board in its
sole discretion, it being understood and agreed that the Board shall not have a delegation right (or a revocation right) in respect of the Sale Committee.
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Section 4.6 Expenses. The Company (or any Subsidiary thereof, as determined by the Board) shall pay or reimburse, without duplication, all reasonable and documented out-of-pocket fees and expenses incurred by or
on behalf of the Unitholders holding the Series A Preferred Units, the Series A Warrants and/or the Series A Warrant Units in connection with actions taken in connection with or related to this Agreement, the Subscription Agreement, the Warrant
Agreement or any other equity documentation (promptly upon request) related to or in connection with one or more of the following: (i) efforts undertaken by or on behalf of such Unitholders in connection with consents, waivers, modifications,
amendments or approvals related to this Agreement (whether or not given), (ii) any documents in respect of a Transfer event (including pursuant to Section 9.3 and Section 9.4), a Sale of the Company, Change of Control, IPO, SPAC or
Direct Listing or any type of redemption contemplated by this Agreement, (iii) any matter relating to the determination of the Fair Market Value of the Company or any Subsidiary thereof, or an asset(s) owned by such Person, including disputes, or
(iv) the enforcement of such Unitholders’ rights and/or remedies hereunder; provided, that, without limiting the rights of such Unitholders to indemnification and the advancement of expenses, including pursuant to Article VI hereof,
in the case of clause (iv) the Unitholders holding the Series A Preferred Units and/or the Series A Warrant Holders shall promptly refund any amounts reimbursed if it is determined by a court of competent jurisdiction in a final and non-appealable
decision that such Unitholder was not a prevailing party on any of its claims (it being acknowledged that, such refund shall not be required if the Unitholder prevails on any claim (even if not all claims)).
(a) Designation and Appointment. The Board may (but need not), from time to time, designate and appoint
one or more persons as an Officer. No Officer need be a resident of the State of Delaware, a Unitholder or a Manager. Any Officers so designated shall have such authority and perform such duties as the Board may, from time to time, delegate to
them. The Board may assign titles to particular Officers (including, but not limited to, chairman, chief executive officer, president, vice president, secretary, assistant secretary, treasurer and assistant treasurer). Unless the Board otherwise
decides, if the title is one commonly used for officers of a business corporation formed, the assignment of such title shall constitute the delegation to such Officer of the authority and duties that are normally associated with that office,
subject to (i) any specific delegation of authority and duties made to such Officer by the Board pursuant to the third sentence of this Section 4.7(a) or (ii) any delegation of authority and duties made to one or more Officers pursuant to
the terms of Section 4.5. Each Officer shall hold office for any fixed time determined by the Board, in each case, subject to any conditions provided by the Board, until such Officer’s death, until such Officer shall resign or until such
Officer shall have been removed in the manner hereinafter provided. Any number of offices may be held by the same individual. The salaries or other compensation, if any, of the Officers and agents of the Company shall be fixed from time to time by
the Board. As of the Effective Date, the Officers of the Company are:
Demetrios Tserpelis – President and Treasurer
Kevin Kreiger – Secretary
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(b) Resignation; Removal; Vacancies. Any Officer (subject to any contract rights available to the
Company, if applicable) may resign as such at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time be specified, at the time of its receipt by the Board. The acceptance of a
resignation shall not be necessary to make it effective, unless expressly so provided in the resignation. Any Officer may be removed as such, either with or without cause, by the Board in its discretion at any time; provided, however, that
such removal shall be without prejudice to the contract rights, if any, of the individual so removed. Designation of an Officer shall not of itself create contract rights. Any vacancy occurring in any office of the Company may be filled by the
Board and shall remain vacant until filled by the Board.
Section 4.8 Purchase of Units. Subject to Section 2.3(e), acting in accordance with the terms and conditions hereof, the Board may cause the Company to purchase or otherwise acquire Units, or may purchase or otherwise acquire Units on behalf of
the Company; provided that, except as provided in Section 2.3(a), this Section 4.8 shall not in and of itself obligate any Unitholder to sell any Units to the Company. Notwithstanding the foregoing but subject to Section 2.3(e), if the Company desires to purchase or otherwise acquire Units (other than Units purchased or otherwise acquired pursuant to a Permitted Management Redemption) and not all Units of a
series or class are held by a single holder then the Company shall offer to purchase or acquire such Units of a series or class on a pro rata basis among all Unitholders holding such series or class in proportion to the number of Units in such
series or class held by such Unitholders, and the Series A Warrants shall be treated as Common Units for the purposes of this provision.
(a) The Board and each Officer shall be entitled to rely upon the advice of legal counsel, independent public
accountants and other experts, including financial advisors, and any act of or failure to act by the Board or any Officer in good faith reliance on such advice shall in no event subject the Board, any Manager or any Officer to liability to the
Company or any Unitholder.
(b) Whenever this Agreement or any other agreement contemplated herein provides that the Board shall act in a
manner which is, or provide terms which are, “fair” or “reasonable” to the Company or any Unitholder, the Board shall determine such appropriate action or provide such terms considering, in each case, the relative interests of each party to such
agreement, transaction or situation and the benefits and burdens relating to such interests, any customary or accepted industry practices, and any applicable United States generally accepted accounting practices or principles.
(c) Whenever in this Agreement or any other agreement contemplated herein, the Board is permitted or required
to take any action or to make a decision in its “sole discretion” or “discretion,” with “complete discretion” or under a grant of similar authority or latitude, the Board shall be entitled to consider such interests and factors as it desires. The
resolution, action or terms so made, taken or provided by the Board shall not constitute a breach of this Agreement or any other agreement contemplated herein or impose liability upon the Board, any Manager or any of such Manager’s Affiliates.
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(a) This Agreement is intended to eliminate fiduciary duties of the Board and the Managers; provided
that, notwithstanding the foregoing, nothing herein shall eliminate or limit (i) the express contractual provisions set forth herein, (ii) the implied contractual covenant of good faith and fair dealing, or (iii) the duties of the Independent
Manager pursuant to Section 4.2(e). The elimination of fiduciary duties contemplated by this Section
4.10 shall not apply to any Manager who is an Officer of the Company or any Subsidiary thereof, for whom fiduciary duties expressly apply.
(b) Duties to the Company and to Certain Unitholders. Except to the extent
expressly provided otherwise in Section 4.9, Section 5.1 and Section 5.7 of this Agreement, whenever the Board, or any Manager, committee of the Board or Officer, solely in such Board’s, Manager’s, committee of the Board’s
or Officer’s capacity as such, makes a determination or takes or declines to take any action, whether under this Agreement or any other agreement, unless another express standard is provided for in this Agreement, the Board or such Manager or such
committee or such Officer shall make such determination or take or decline to take such action in good faith and shall not be subject to any other or different standards imposed by this Agreement, any other agreement contemplated hereby or under
the Act or any other applicable law, rule or regulation or at equity. Any such determination or taking or declining to take any such action will conclusively be deemed to be in “good faith” for all purposes of this Agreement, if the Person or
Persons making such determination or taking or declining to take such action subjectively believe that the determination or taking or declining to take any such action is in the interests of the Company. The duties described in this Section
4.10(b) shall only apply to Unitholders holding Common Units.
Section 4.11 Effect on Other Agreements.
Nothing in Section 4.9 or Section 4.10 shall in any way affect, limit or modify any Person’s liabilities or obligations under any employment agreement, consulting agreement, management services agreement, confidentiality agreement,
noncompete agreement, nonsolicit or no-hire agreement or any similar agreement with the Company or any of its Subsidiaries.
(a) This Section 4.12 is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose” entity. The Company is to be
operated in such a manner as the Board deems reasonable and necessary or appropriate to preserve the limited liability of the Members and the separateness of the Company from the business and affairs of the FIP, its Permitted Holders and each of
their respective Affiliates (other than such Affiliates consisting of RR Holding Company, the Company and its Subsidiaries).
(b) The
Members shall not, until such time as all of the Series A Preferred Units are fully redeemed and paid in full, amend, alter, change or repeal the definitions of “Independent Manager” or “Material Action” or Sections 1.4, 4.1, 4.2, 4.12 or any other provisions of Article IV, VI or otherwise of this Agreement to the extent it would alter any right or obligation of the Independent Manager (including in its capacity as a Manager) without the unanimous written consent
the Board (including the Independent Manager). Any amendment, modification or other change made in contravention of the foregoing shall, to the fullest extent permitted by law, be null and void ab initio.
Subject to this Section 4.12, the Members reserve the right to amend, alter, change or repeal any provisions contained in this Agreement in accordance with the terms
hereof.
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(c) Notwithstanding any other provision of this
Agreement and any provision of law that otherwise so empowers the Company, the Members, the Board or any Officer or any other Person, until such time as of the Series A Preferred Units are fully redeemed and paid in
full, neither the Members nor the Board nor any Officer nor any other Person shall be authorized or empowered on behalf of the Company to, nor shall they permit the Company to, and the Company shall not, without the prior unanimous written
consent of the Member, the Board, and the Independent Manager (and the holders of Series A Preferred Units pursuant to Section 2.3(e)), take any Material Action, provided, however, that, until such time as all of the
Series A Preferred Units are fully redeemed and paid in full, neither the Members nor the Board may authorize the taking of any Material Action, unless there is an Independent Manager then serving in such capacity and such Independent Manager has
consented thereto.
(d) The
Board shall cause the Company to do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises, provided, however, that, the Company shall
not be required to preserve any such right or franchise if the Board and, if such non-preservation constitutes a Material Action, the Independent Manager shall determine that the preservation thereof is no longer desirable for the conduct of the
Company's business and that the loss thereof would not be disadvantageous in any material respect to the Company and its creditors.
(i) In addition to Section 2.3(e) and, in each case,
except as expressly permitted under Section 2.3(e), the Company hereby represents, warrants and covenants, until such time as all of the Series A Preferred Units are fully redeemed and paid in
full, that the Company will:
| (A) |
maintain its own separate books and records and bank accounts;
|
| (B) |
at all times hold itself out to the public as a legal entity separate from the Members and any other Person;
|
|
(C)
|
not commingle its assets with the assets of any other Person;
|
| (D) |
conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence;
|
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| (I) |
except as contemplated by this Agreement, not hold out its credit or assets as being available to satisfy the obligations of others;
|
| (J) |
allocate fairly and reasonably any overhead for shared office space;
|
| (K) |
use separate stationery, invoices and checks to the extent used in the operation of its business;
|
| (L) |
not pledge its assets for the benefit of any other Person, except as expressly contemplated by Section 2.3(e)(i);
|
| (M) |
correct any known misunderstanding regarding its separate identity;
|
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| (Q) |
cause the Officers, agents and other representatives of the Company to act at all times with respect to the Company consistently and in furtherance of the foregoing.
|
| (ii) |
So long as any Series A Preferred Unit is outstanding, the Board shall not cause or permit the Company to, in each case, except as expressly permitted under Section 2.3(e):
|
| (A) |
guarantee any obligation of any Person, including any Affiliate, other than a wholly-owned Subsidiary;
|
| (B) |
| (C) |
incur, create or assume any Indebtedness;
|
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| (G) |
form, acquire or hold any Subsidiary (whether corporate, partnership, limited liability company or otherwise) other than the Existing Subsidiaries unless (1) such other Subsidiary is wholly owned or (2) the holders of Series A
Preferred Units have consented to the formation, acquisition or holding of such Subsidiary in writing, with such consent not to be unreasonably withheld.
|
| (v) |
The Company and RR Holding Company (and its transferees) shall take such actions as are commercially reasonably necessary to cause each Subsidiary of the Company to comply with clause (i)(P) above.
|
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Section 5.1 Limitation of Liability. Except as otherwise
provided by applicable laws or as set forth in Section 3.5, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no
Unitholder shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Unitholder; provided that a Unitholder shall be required to return to the Company any Distribution made to it (a)
in clear and manifest accounting or similar error or (b) in clear, manifest and material breach of this Agreement, in each case with respect to which written notice thereof has been delivered to the applicable Unitholder(s) within one year after
the applicable Distribution. The immediately preceding sentence shall constitute a compromise to which all Unitholders have consented within the meaning of the Act. Notwithstanding anything contained herein to the contrary, the failure of the
Company to observe any formalities or requirements relating to the exercise of its powers or management of its business and affairs under this Agreement or the Act shall not be grounds for imposing personal liability on the Unitholders for
liabilities of the Company. Notwithstanding anything herein to the contrary, (i) no Unitholder in its capacity as such shall have any duty (including fiduciary duty), or any liability for breach of duty (including fiduciary duty), to the Company,
any other Unitholder or any Manager but (ii) nothing herein shall serve to limit the liability of any Person for its breach of this Agreement.
Section 5.2 Lack of Authority. Unless delegated such power in
accordance with Section 4.5 or as otherwise provided in this Agreement, no Unitholder shall in its capacity as such have the authority or power to act for or on behalf of the Company in any manner, to do any act that would be (or could be construed
as) binding on the Company, or to make any expenditures on behalf of the Company, and the Unitholders hereby consent to the exercise by the Board of the powers and rights conferred upon them by law and this Agreement.
Section 5.3 No Right of Partition. No current or former
Unitholder shall have the right to seek or obtain partition by court decree or operation of law of any Company property, or the right to own or use particular or individual assets of the Company.
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Section 5.4 Confidentiality. Each Member recognizes and acknowledges that it may receive certain confidential and proprietary
information and trade secrets of the Company or any of its Subsidiaries, including confidential information of the Company or any of its Subsidiaries regarding identifiable, specific and discrete business opportunities being pursued by the Company
or its Subsidiaries (the “Confidential Information”). Each Member recognizes (on behalf of itself and, to the extent that such Unitholder would be responsible for the acts of the following persons under principles of agency law, its
directors, officers, shareholders, partners, representatives, employees, agents, advisors and members) agrees to, during or after the term of this Agreement, whether through an Affiliate, the Manager Group or otherwise, comply with the laws in
various jurisdictions worldwide that prohibit any Person who has received material non-public information about the Company or any of its Subsidiaries from purchasing or selling the securities of the Company or any of its Subsidiaries on the basis
of such information or from communicating such information to any other Person under circumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities on the basis of such information. Each Member
(on behalf of itself and, to the extent that such Unitholder would be responsible for the acts of the following persons under principles of agency law, its directors, officers, shareholders, partners, representatives, employees, agents, advisors
and members) agrees that it will not, during or after the term of this Agreement, whether through an Affiliate, the Manager Group or otherwise, disclose Confidential Information to any Person for any reason or purpose whatsoever, except (i) to (A)
authorized representatives and employees of the Company or its Subsidiaries, (B) Affiliates of such Member and such Affiliates’ and such Member’s respective representatives, directors, officers, employees, agents, actual and potential limited
partners, and advisors (provided that such Member shall be responsible for any breach of this Section 5.4 by any such Person as if such Person were a party hereto); (C) as otherwise may be proper in the course of performing such Member’s
obligations, or enforcing such Member’s rights, under this Agreement; (D) potential Permitted Transferees (except as otherwise set forth above) that have executed a customary non-disclosure agreement enforceable by the Company and (E) with respect
to the FIP Unitholders, the Manager Group; or (ii) as is required to be disclosed by order of a court of competent jurisdiction, administrative body or governmental body of competent jurisdiction, or by subpoena, summons or legal process, or by
applicable law, rule (including the rules of any applicable stock exchange) or regulation, provided that any Member required to make such disclosure shall provide to the Board prompt notice of any such disclosure. For purposes of this Section
5.4, “Confidential Information” shall not include the portion of any information: (x) which such Person (or its Affiliates) became aware from sources other than the Company or its Subsidiaries, so long as such source is not, to the knowledge
of the applicable Person, in violation of any other obligation of confidentiality or nonuse with respect to such information, (y) was or becomes available to the public from a source other than as a result of such Person (or its Affiliates, or the
Manager Group) breaching this Agreement, or (z) which is disclosed in a prospectus or other documents disseminated to the public. The limitations in this Section 5.4 are in addition to, and not in lieu of, any other restrictions that a
Member may be bound by (whether by contract or otherwise). No Member needs the prior authorization of the Company to make any such reports or disclosures, and no Member will be required to notify the Company that such reports or disclosures have
been made. Nothing in this Section 5.4 shall be deemed to restrict (i) a Member’s investing activities if such Member is a private equity firm; provided that
such Member acts in accordance with the terms hereof and (ii) FIP, Ares Management Corporation or any Ares Member or any indirect equityholder in any Ares Member, or any controlled or affiliated fund vehicles (including those under common control)
of any Ares Member from disclosing any information that it believes is required or advisable to disclose in connection with satisfying its obligations under any applicable securities laws or as required by any national securities exchange upon
which its securities are listed.
Section 5.5 Voting Rights. Unitholders holding Series A Preferred Units and Series A Warrants
shall have no voting rights, except as expressly set forth herein or mandatorily required by any non-waivable provision of the Act, and shall otherwise have such rights, preferences and privileges as set forth herein.
Section 5.6 Members Right to Act. For situations in which the consent of the Members (rather
than the approval of the Board) is required, and this Agreement does not provide that the Board or other group of Members control such consent, the Members shall act through meetings and written consents as described in the following paragraphs (a) and (b):
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(a) Except as otherwise provided by this Agreement, the actions by the Members permitted hereunder may be
taken at a meeting called by (i) the Board or a committee thereof or (ii) Members holding in the aggregate at least a majority of the outstanding Common Units by delivering to the Members entitled to vote a
notice of such meeting which shall state the purpose or purposes for which such meeting is being called, which notice shall be provided not less than two nor more than 60 days before the date of the meeting. Except following an Event of
Noncompliance, only Members holding Common Units shall be entitled to vote and entitled to one vote per Common Unit on all matters to be voted on by the Members; provided that the foregoing shall not limit the rights of the Unitholders
holding Series A Preferred Units set forth in this Agreement. Without limiting the generality of the foregoing, but subject to the terms and conditions of this Agreement, acts by a Common Majority in Interest shall be the act of the Members holding
Common Units. Any Member entitled to vote at a meeting of Members or to express consent or dissent to Company action in writing without a meeting may authorize another Person or Persons to act for such Member by proxy. An email or similar
transmission by the Member, or a photographic, facsimile or similar reproduction of a writing executed by any Member shall (if stated thereon) be treated as a proxy executed in writing for purposes of this Section 5.6(a). No proxy shall be
voted or acted upon after eleven months from the date thereof, unless the proxy provides for a longer period. A proxy shall be revocable unless the proxy form conspicuously states that the proxy is irrevocable and the proxy is coupled with an
interest. Should a proxy designate two or more Persons to act as proxies, unless that instrument shall provide to the contrary, a majority of such Persons present at any meeting at which their powers thereunder are to be exercised shall have and
may exercise all the powers of voting or giving consents thereby conferred, or if only one be present, then such powers may be exercised by that one; or, if an even number attend and a majority do not agree on any particular issue, the Company
shall not be required to recognize such proxy with respect to such issue if such proxy does not specify how the votes that are the subject of such proxy are to be voted with respect to such issue.
(b) The actions taken by the Members entitled to vote or consent at any meeting (as opposed to by written
consent), however called and noticed, shall be as valid as though taken at a meeting duly held after regular call and notice if (but not until), either before, at or after the meeting, the Members entitled to vote or consent as to whom it was
improperly held signs a written waiver of notice or a consent to the holding of such meeting or an approval of the minutes thereof. Except as otherwise provided by this Agreement, the actions by the Members entitled to vote or consent may be taken
by vote of the Members entitled to vote or consent at a meeting or by written consent (without a meeting, without a vote and without notice) so long as such consent is signed by Members having not less than the minimum number of Units that would be
necessary to authorize or take such action at a meeting at which all Members entitled to vote thereon were present and voted; provided that a copy of such written consent shall be filed with the secretary of the Company and provided to all
Members promptly following the effectiveness thereof. Any action taken pursuant to such written consent of the Members shall have the same force and effect as if taken by the Members at a meeting thereof. The Unitholders holding Series A Preferred
Units shall be given at least 24 hours’ prior written notice of any action proposed to be taken by written consent of the Members before it becomes effective.
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(a) To the fullest extent permitted by applicable law, the Company and each Unitholder hereby waive the
application of the doctrine of corporate opportunity, or any analogous doctrine, with respect to the Company, for the Company and each Unitholder. Without limiting the generality of Section 4.10 each Unitholder expressly acknowledges and
agrees that (i) the Members, Managers, Officers (that are not employees primarily providing services to the Company) and each of their respective Affiliates are permitted to have, and may presently or in the future have, investments or other
business relationships, ventures, agreements or arrangements with entities engaged in the business of the Company or any of its Subsidiaries (including in areas in which the Company or any of its Subsidiaries may in the future engage) and in
related businesses other than through the Company or any of its Subsidiaries (an “Other Business”), (ii) the Members, Managers, Officers (that are not employees primarily providing services to the Company) and each of their respective
Affiliates have or may develop strategic relationships with businesses that are or may be competitive with the Company or any of its Subsidiaries, (iii) no Member, or any of their respective Affiliates (including any Manager appointed by a Member
or the Members pursuant to this Agreement) will be prohibited by virtue of its investments in the Company or any of its Subsidiaries or their service on the Board or the board of directors (or other governing body or committee) of any Subsidiary
from pursuing and engaging in any such activities, (iv) neither the Members, the Managers, the Officers (that are not employees primarily providing services to the Company) nor any of their respective Affiliates will be obligated to inform the
Company of any such opportunity, relationship or investment, (v) no Unitholder will acquire, be provided with an option or opportunity to acquire or be entitled to any interest or participation in any Other Business as a result of the participation
therein of the Members, or any of their respective Affiliates, (vi) the Unitholders expressly waive, to the fullest extent permitted by applicable law, any rights to assert any claim that such involvement breaches any duty (fiduciary or otherwise)
that may be owed by or to any Member, the Company or any of its Subsidiaries or to assert that such involvement constitutes a conflict of interest by such Persons with respect to the Company, the Members or any of the Company’s Subsidiaries and
(vii) nothing contained herein shall limit, prohibit or restrict any Manager appointed by a Member or the Members pursuant to this Agreement from serving on the Board or on the board of directors (or other governing body or committee) of any
Subsidiary of the Company or any representative of any Affiliate of a Member from serving on the board of directors or other governing body or committee of any Other Business subject to compliance with applicable law. In furtherance and not in
limitation of the foregoing, the Company (A) renounces any interest or expectancy in the opportunities described in this Section 5.7 and (B) expressly acknowledges and agrees that a corporate opportunity shall not be deemed to belong to the
Company or any of its Subsidiaries.
(b) Each Unitholder (in such Unitholder’s own name and in the name and on behalf of the Company) acknowledges,
affirms and agrees that (i) the execution and delivery of this Agreement by the Unitholders is of material benefit to the Company and the Members, and that no Unitholder would be willing to (x) execute and deliver this Agreement, and (y) hold the
Units, without the benefit of this Section 5.7 and the agreement of the parties; and (ii) they have reviewed and understood the provisions of Sections 18-1101(b) and (c) of the Act.
Section 5.8 Conflict of Interest Transactions. Notwithstanding that it may constitute a conflict of interest, but subject to Section 2.3(e) and Section 4.12, the Unitholders or their respective Affiliates or their respective representatives may engage in any contract or transaction (including the purchase, sale, lease or exchange of any property
or rendering of any service or the establishment of any salary, other compensation or other terms of employment) with the Company or any of its Subsidiaries.
Section 6.1 Liability of Indemnitees.Notwithstanding anything to the
contrary set forth in this Agreement, no Indemnitee shall be liable for monetary damages to the Company, the Unitholders or any other Persons who have acquired interests in the Units for losses sustained or liabilities incurred as a result of any
act or omission of an Indemnitee unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, with respect to the matter in question, the Indemnitee acted in bad faith or engaged in fraud
or willful misconduct or acted in willful violation of the standard of conduct set forth in Section 4.10, breached this Agreement, or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was criminal.
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(b) The Board may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either
directly or by or through its employees or agents, and the Board shall not be responsible for any misconduct or negligence on the part of any such employee or agent appointed in good faith by the Board.
(c) To the extent that, at law or in equity, an Indemnitee has duties (including fiduciary duties) and
liabilities relating thereto to the Company or to the Unitholders, the Board and any other Indemnitee acting in connection with the Company’s business or affairs shall not be liable to the Company or to any Unitholder for its good faith reliance on
the provisions of this Agreement.
(d) Any amendment, modification or repeal of this Section 6.1 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of the Indemnitees under this Section 6.1 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part,
prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
Section 6.2 Indemnification.To the fullest
extent permitted by law but subject to the limitations expressly provided in this Agreement, all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or
several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil,
criminal, administrative or investigative, and whether formal or informal and including appeals, in which any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee and
acting (or omitting or refraining to act) in such capacity on behalf of or for the benefit of the Company; provided that the Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and
non-appealable judgment entered by a court of competent jurisdiction determining that, with respect to the matter for which the Indemnitee is seeking indemnification pursuant to this Agreement, the Indemnitee acted in bad faith or engaged in
fraud or willful misconduct or acted in willful violation of the standard of conduct set forth in Section 4.10, breached this Agreement or, in the case of a criminal matter, acted with
knowledge that the Indemnitee’s conduct was unlawful.
(b) To the fullest extent permitted by law, expenses (including legal fees
and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 6.2(a) in preparing for or defending any claim, demand, action, suit or proceeding (including any litigation, arbitration or governmental investigation) shall,
from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, with respect to the matter for which the Indemnitee is seeking indemnification pursuant to
this Section 6.2, the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not
entitled to be indemnified as authorized by this Section 6.2.
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(c) The Company, by adoption of a resolution of the Board, may indemnify and advance expenses to an employee
or agent of the Company to the same extent and subject to the same conditions under which it may indemnify and advance expenses to Persons who are not or were not Managers or Officers but who are or were serving at the request of the Company as a
manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic limited liability company, corporation, partnership, joint venture, sole proprietorship, trust, employee
benefit plan or other enterprise against any liability asserted against such Person and incurred by such Person in such a capacity or arising out of his, her or its status as such a Person to the same extent that it may indemnify and advance
expenses to Managers and Officers under this Article VI.
(d) The indemnification provided by this Section 6.2 shall be in
addition to any other rights to which an Indemnitee may be entitled under this Agreement, any other agreement, pursuant to any majority vote, as a matter of law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an
Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(e) The Company may purchase and maintain insurance, on behalf of the Board
and such other Persons as the Board shall determine, against any liability that may be asserted against, or expense that may be incurred by, such Person in connection with the Company’s activities or such Person’s activities on behalf of the
Company, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(f) An Indemnitee shall not be denied indemnification in whole or in part
under this Section 6.2 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(g) The provisions of this Section 6.2 are for the
benefit of the Indemnitees and their heirs, successors, assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
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(h) The Company hereby acknowledges that the rights to indemnification,
advancement of expenses or insurance provided pursuant to this Article VI may also be provided to certain Indemnitees by other sources (collectively, the “Affiliate Indemnitors”). The Company hereby agrees that, as between itself
and the Affiliate Indemnitors (i) the Company is the indemnitor of first resort with respect to all such indemnifiable claims against such Indemnitees, whether arising under this Agreement or otherwise (i.e., its obligations to such Indemnitees
are primary and any obligation of the Affiliate Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by such Indemnitees are secondary), (ii) the Company will be required to advance the full
amount of expenses incurred by such Indemnitees and will be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement (or
any other agreement between the Company and such Indemnitees) in accordance with this Agreement, without regard to any rights such Indemnitees may have against the Affiliate Indemnitors and (iii) the Company irrevocably waives, relinquishes and
releases the Affiliate Indemnitors from any and all claims against the Affiliate Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by the
Affiliate Indemnitors on behalf of any such Indemnitee with respect to any claim for which such Indemnitee has sought indemnification from the Company will affect the foregoing and the Affiliate Indemnitors will be subrogated to the extent of
such advancement or payment to all of the rights of recovery of such Indemnitee against the Company, and the Company will cooperate with the Affiliate Indemnitors in pursuing such rights. The Company and the Indemnitees acknowledge that the
Affiliate Indemnitors are express third-party beneficiaries of the terms of this Section 6.2.
(i) No amendment, modification or repeal of this Section 6.2 or any
provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance
with the provisions of this Section 6.2 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment,
modification or repeal, regardless of when such claims may arise or be asserted.
Section 7.1 Dissolution. Subject to the terms and conditions of this Agreement, the Company
shall be dissolved, and its affairs shall be wound up and terminated, upon:
(b) an administrative dissolution or the entry of a decree of judicial dissolution of the Company under Section 18‑802 of the Act.
Except as set forth above or as otherwise required by law, the Company is intended to have perpetual existence. The Company shall not be dissolved
by the admission of additional or substitute Members or by an Event of Withdrawal, and upon and after any such admission or event the Company shall continue in existence subject to the terms and conditions of this Agreement.
(a) Upon dissolution, the Company shall be liquidated in an orderly manner. The Board shall act (or it may
appoint one or more Unitholders, Managers, Officers or other Persons to act) as the liquidators to wind up the affairs of the Company pursuant to this Agreement and terminate the Company. The costs of liquidation shall be borne by the Company.
Prior to final distribution and termination, the liquidators shall continue to operate the Company and its assets with all of the power and authority of the Board. Upon any such liquidation, the steps to be accomplished by the liquidators are as
follows:
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(i) the liquidators shall pay, satisfy and discharge all debts, obligations, and other liabilities of the
Company to its creditors (including all expenses incurred in liquidation) or otherwise make adequate provision for payment and discharge thereof (including establishing cash reserves to be held in escrow for contingent or unforeseen liabilities of
the Company, in such amounts and for such holding periods as the liquidators may reasonably determine); and
(ii) after payment or provision for payment of all of the Company’s liabilities has been made in accordance
with Section 7.2(a)(i), (A) a final allocation of all items of income, gain, loss, and expense shall be made in accordance with Section 3.2 hereof, and (B) all remaining assets of the Company shall be distributed (I) first,
one hundred percent (100.0%) to the Unitholders holding Series A Preferred Units pro rata in accordance with their respective Series A Preferred Percentage Interests in an amount per Series A Preferred Unit
equal to the greater of (x) the Series A Preferred Liquidation Value of such Series A Preferred Unit and (y) the Base Series A Preferred Return Amount with respect to such Series A Preferred Unit, in each case, calculated as of the date of
dissolution or the date such amount is paid (whichever is later) and (II) second, the remainder, if any, one hundred percent (100.0%) to the Unitholders holding Common Units (and Series A Warrant Holders) in
accordance with their respective Common Percentage Interest. Any non‑cash assets distributed to the Unitholders shall first be written up or down to their Fair Market Value, thus creating Profit or Loss (if any), which shall be allocated in
accordance with Section 3.2.
(b) In making such distributions, subject to Section 7.4, the liquidators shall allocate each type of
liquidation asset (i.e., cash or cash equivalents, units of a Subsidiary, etc.) among the Unitholders ratably based upon the aggregate amounts to be distributed with respect to the Units held by each such holder; provided that the holders
of a majority of the Series A Preferred Units shall be entitled to, in their sole discretion, allocate the type of liquidation asset to all such Series A Preferred Units with respect to the amounts to be distributed pursuant to Section
3.1(b)(i) and Section 7.2(a)(ii). The liquidators shall use commercially reasonable efforts to convert all assets of the Company to U.S. Dollars prior to making the distribution in this Section 7.2(b).
(c) The distribution of cash or property to a Unitholder in accordance with the provisions of this Section
7.2 constitutes a complete return to such Unitholder of its Capital Contributions and a complete distribution to the Unitholder of its interest in the Company and the Company’s property; provided, that the consent of the Series A
Preferred Majority in Interest shall be required if such distribution will contain property or other amounts other than U.S. Dollars in whole or in part, which consent shall not be unreasonably withheld, conditioned or delayed. This Section 7.2
constitutes a compromise to which all Unitholders have consented within the meaning of the Act.
(d) Upon completion of the distribution of the Company’s assets as provided herein, the Company shall be
terminated (and the Company shall not be terminated prior to such time), and the Board (or such other Person or Persons as the Act may require or permit) shall file a certificate of cancellation with the Secretary of State of Delaware, cancel any
other filings made pursuant to this Agreement that are or should be canceled and take all such other actions as may be necessary to terminate the Company. The Company shall be deemed to continue in existence for all purposes of this Agreement until
it is terminated pursuant to this Section 7.2(d).
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(e) A reasonable time shall be allowed for the orderly winding up of the business and affairs of the Company
and the liquidation of its assets pursuant to this Section 7.2 in order to minimize any losses otherwise attendant upon such winding up.
(f) The liquidators shall not be personally liable for the return of Capital Contributions or any portion
thereof to any Unitholder (it being understood that any such return shall be made solely from Company assets).
(a) Except as otherwise provided in Section
2.5, the “Fair Market Value” of any assets or Units to be valued under this Agreement shall be determined in accordance with this Section 7.3.
(b) The Fair Market Value of any asset constituting cash or cash equivalents shall be equal to the amount of
such cash or cash equivalents.
(c) The Fair Market Value of any asset constituting publicly traded securities shall be the average, over a
period of twenty-one (21) trading days consisting of the date of valuation and the 20 consecutive Business Days prior to that date, of the average of the closing prices of such securities on the primary securities exchange on which such securities
may at that time be listed, or, if there are no closing process reported on such exchange on any day, the average of the highest bid and lowest asked prices on such exchanges at the end of such day, or, if on any day such securities are not so
listed, the last quoted bid price for such securities in the over-the-counter market on the relevant day as reported by OTC Markets Group Inc. or a similar organization. If such securities are not so quoted, the Fair Market Value will be determined
based on the average of the mid-point of the last bid and ask prices for such securities on the relevant days from each of at least three nationally recognized independent investment banking firms selected by Board for this purpose.
(d) The Fair Market Value of any assets other than cash, cash equivalents, or publicly traded securities shall
be the fair value of such assets, as determined in accordance with Section 2.5(b), mutatis mutandis.
(e) The Fair Market Value of Units shall be the fair value of such Units based on the amount that such Units
would receive (if any) in connection with a Sale of the Company at fair value (as determined in accordance with Section 2.5(b), mutatis
mutandis) and distribution of such proceeds through the priority of distributions described in clauses (I) and (II) of Section 7.2(a)(ii).
Section 7.4 Property Distributions. If any
assets of the Company will be distributed in kind pursuant to this Article VII, such assets will be distributed to the holders entitled thereto in the same proportions as the holders would have been entitled to cash Distributions. If the
Company distributes property in kind that was contributed to the Company (or received in a tax free exchange for property contributed to the Company), the Company will, if possible and equitable to the other Unitholders, distribute (and be deemed
to distribute) such property to the holder who contributed such property, to the extent that such holder is entitled to receive a Distribution at such time under the economic priorities set out in this Article VII.
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Section 8.1 Records and Accounting. The Company shall keep, or cause to be
kept, appropriate books and records with respect to the Company’s business, including all books and records necessary to provide any information, lists and copies of documents required to be provided pursuant to applicable laws.
Section 8.2 Bank Accounts. The Company may establish accounts for the
deposit of Company funds, in such types and at such institutions, as shall be determined from time to time by the Board.
Section 8.3 Fiscal Year. The Fiscal Year of the Company shall be the
12-month period ending on December 31 of each calendar year, or such other annual accounting period as may be established by the Board.
Section 8.4 Tax Elections. The Taxable Year shall be the same as the
Company’s Fiscal Year, unless the Partnership Representative shall determine otherwise in its sole discretion and in compliance with applicable laws. Subject to Section 3.4(f),
the Partnership Representative shall in its sole discretion determine whether to make or revoke any available election pursuant to the Code; provided, that the Partnership Representative shall not make (or revoke) any such election that would have
a materially adverse and disproportionate effect on the holders of the Series A Preferred Units, without the consent of the Ares Member (not to be unreasonably withheld, conditioned or delayed). Each Unitholder will upon a reasonable request supply
any information necessary to give proper effect to any such election.
Section 8.5 Tax Reports. The Company shall use reasonable efforts to provide to each Member, within 75 days after the end of each
Taxable Year (or as soon as reasonably practicable thereafter), drafts of the Company’s tax return and form K‑1 for such Taxable Year, and such other information as may be necessary for the preparation of each such Member’s United States federal
and state income tax returns. Each Member (i) consents to receive form K-1s from the Company electronically via electronic mail, the Internet or other electronic reporting medium in lieu of
paper copies, and (ii) agrees to confirm this consent electronically at a future date in a manner set forth by the Partnership Representative at such time.
Section 8.6 Partnership Representative.
For so long as RR Holding Company is a Member of the Company, RR Holding Company shall be the Company’s Partnership Representative and shall be authorized and required to appoint a “designated individual” and to represent the Company (at the
Company’s expense) in connection with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings, and to expend Company funds for professional services and other expenses reasonably
incurred in connection therewith; provided, however that if RR Holding Company ceases to be a Member or otherwise resigns from its role as the Partnership Representative, the Board shall designate a replacement Partnership Representative. Each
Unitholder agrees to reasonably cooperate with the Company and to do or refrain from doing any or all things reasonably requested by the Company with respect to the conduct of such proceedings. The Partnership Representative shall keep the Board
fully informed of the progress of any examinations, audits or other proceedings. Notwithstanding the foregoing, the Partnership Representative shall not settle or otherwise compromise any issue in any such examination, audit or other proceeding
without first obtaining (i) approval of the Board and (ii), to the extent such settlement or compromise would have a materially adverse and disproportionate effect on the holders of the Series A Preferred Units, consent of the Ares Member (such
consent not to be unreasonably withheld, conditioned or delayed). Promptly following the written request of the Partnership Representative, the Company shall, to the fullest extent permitted by law, reimburse and indemnify the Partnership
Representative for all reasonable expenses, including reasonable legal and accounting fees, claims, liabilities, losses and damages incurred by the Partnership Representative in connection with any administrative or judicial proceeding (i) with
respect to the tax liability of the Company or (ii) with respect to the tax liability of the Unitholders in connection with the operations or activities of the Company.
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(a) By executing this Agreement, each Unitholder authorizes and directs the
Company to elect to have the “Safe Harbor” described in the proposed Revenue Procedure set forth in Internal Revenue Service Notice 2005‑43 (the “Notice”) apply to any interest in the Company transferred to a service provider by the
Company on or after the effective date of such Revenue Procedure in connection with services provided to the Company. For purposes of making such Safe Harbor election, the Partnership Representative is hereby designated as the “partner who has
responsibility for federal income tax reporting” by the Company and, accordingly, execution of such Safe Harbor election by the Partnership Representative constitutes execution of a “Safe Harbor Election” in accordance with Section 3.03(1) of the Notice. The Company and each Unitholder hereby agrees to comply with all requirements of the Safe Harbor described in the Notice, including the requirement that each Unitholder shall prepare and file all
federal income tax returns reporting the income tax effects of each interest in the Company issued by the Company covered by the Safe Harbor in a manner consistent with the requirements of the Notice.
(b) The Company and any Unitholder may pursue any and all rights and remedies it may have to enforce the obligations of the Company and the
Unitholders (as applicable) under Section 8.7(a), including seeking specific performance or immediate injunctive or other equitable relief from any court of competent jurisdiction (without the necessity of showing actual money damages, or
posting any bond or other security) in order to enforce or prevent any violation of the provisions of Section 8.7(a). A Unitholder’s obligations to comply with the requirements of this Section 8.7 shall survive such Unitholder’s
ceasing to be a Unitholder of the Company or the termination, dissolution, liquidation and winding up of the Company, and, for purposes of this Section 8.7, the Company shall be treated as continuing in existence.
(c) Each Unitholder authorizes the Partnership Representative to amend Section 8.7(a) to the extent
necessary to achieve substantially the same tax treatment with respect to any interest in the Company transferred to a service provider by the Company in connection with services provided to the Company as set forth in Section
4 of the Notice (e.g., to reflect changes from the rules set forth in the Notice in subsequent Internal Revenue Service guidance); provided that such amendment is not materially adverse to such Unitholder.
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(i) as soon as available, and in any event, within forty-five (45) calendar days after the end of each of
the first three fiscal quarters, unaudited quarterly financial statements (including balance sheets, statements of income, cash flows, and Members’ equity) of the Company and its consolidated subsidiaries for the quarterly period then ended
prepared in accordance with United States generally accepted accounting practices;
(ii) as soon as available, and in any event, within 90 days after the end of each Fiscal Year, audited
financial statements (including balance sheets, statements of income, cash flows, and Members’ equity) of the Company and its consolidated subsidiaries for such year prepared in accordance with United States generally accepted accounting practices
by an independent nationally recognized accounting firm appointed by the Board accompanied by the certification of independent certified public accountants of recognized national standing selected by the Board, certifying to the effect that, except
as set forth therein, such financial statements have been prepared in accordance with GAAP, applied on a basis consistent with prior years, and fairly present in all material respects the financial condition of the Company and its Subsidiaries as
of the dates thereof and the results of their operations and changes in their cash flows and Members’ equity for the periods covered thereby;
(iii) within twenty-five (25) calendar days after the end of each month after the
Effective Date, a statement of Distributions made by the Company to its Members for such month (which such statement shall be subject to review and comment of the Series A Preferred Majority in Interest);
(iv) within twenty (20) calendar days after the end of each fiscal quarter, a
certificate executed by an executive officer of the Company attesting to (A) the Series A Preferred Liquidation Value, (B) the exercise price for the Series A Warrants (as may be adjusted in accordance with the terms of the applicable Equity
Agreement in respect of such Series A Warrants), (C) EBITDA for the trailing-twelve (12) month period, (D) a confirmation that the Company has not incurred any Indebtedness in excess of $50,000,000 in violation of the terms hereof and the
definition of Permitted Indebtedness, (E) a statement of Distributions made by the Company to its Members for such quarter, (F) the total issued and outstanding Equity Securities of the Company (with presentation for basic and fully diluted
(assuming full exercise of Series A Warrants) Equity Securities), (G) the number of Series A Warrants, (H) the Exercise Price (as defined in the Warrant Agreement) at the beginning and end of such fiscal quarter, and the absolute value of the
difference of those numbers, and (I) the Exercise Price (as defined in the Warrant Agreement), calculated on a per-Series A Warrant Unit basis, at the beginning and end of such fiscal quarter, and the absolute value of the difference of those
numbers; and
(v) within fifteen (15) Business Days of the completion of an issuance or sale of Common Units for aggregate
gross proceeds of $25,000,000 or more or the receipt of a contribution in an amount equal to or greater than $25,000,000 a certificate executed by an executive officer of the Company attesting to the Fair Market Value of a Common Unit.
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(vi) To the extent any information set forth in this Section 8.8(a) is not so furnished within the time periods specified herein
and such information is subsequently furnished within 30 days of the applicable deadline, the Company will be deemed to have satisfied its obligations with respect thereto at such time and any Event of Noncompliance with respect thereto shall be
deemed to have been cured.
(b) Upon reasonable request by a Member, the Company shall furnish or cause to be furnished to such Member copies of the Company’s federal
and state income tax filings.
(c) The Company shall permit the Members, at such Member’s expense, to visit and inspect the Company’s
properties, examine its books of account and records, and discuss the Company’s affairs, finances, and accounts with its Officers, during normal business hours of the Company as may be reasonably requested by such Member with reasonable prior
notice given by such Member (provided that such discussions with Officers shall happen not more frequently than once per quarter and shall not unreasonably interfere with the Company’s operations); provided that the Company shall not
be obligated pursuant to this Section 8.8(c) to provide access to any information that it reasonably and in good faith considers to be a trade secret or the disclosure
of which would (or would reasonably be expected to) jeopardize the attorney-client privilege between the Company and/or any of its Subsidiaries and its or their counsel.
(d) The Company will use commercially reasonable efforts to promptly notify the Unitholders holding Series A
Preferred Units of any events that are material to the Company or its business or any Subsidiary or Subsidiary’s business, including any proposed or considered material transaction or event that would result in a Mandatory Redemption Event, and
will use commercially reasonable efforts to promptly deliver any formal notice of material events delivered to lenders under the Bridge Facility or the Permanent Debt Financing. Upon receipt of a written request from the Series A Preferred Majority
in Interest, the Company will use commercially reasonable efforts to promptly notify the Unitholders holding Series A Preferred Units regarding the status of the refinancing of the Bridge Facility.
Section 9.1 Transfer In General. The sale, transfer, assignment, pledge, hypothecation or other disposition of any interest in any
Unit (whether with or without consideration and whether voluntarily or involuntarily or by operation of law), directly or indirectly, in whole or in part, is referred to herein as a “Transfer” and to take such action is referred to herein as
to “Transfer”. No Member shall be entitled to Transfer all or any portion of its Units except in accordance with this Agreement. Notwithstanding any other provision of this Agreement, no Transfer of a Unit shall be permitted if such Transfer
(A) would cause the Company to have more than 100 partners, as determined for purposes of U.S. Department of Treasury Reg. §1.7704-1(h), (B) would cause the Company to be treated as a publicly traded partnership within the meaning of Code §7704 and
U.S. Department of Treasury Reg. §1.7704-1 or (C) would cause all or any portion of the assets of the Company to constitute “plan assets” for purposes of ERISA. The Common Units held by any FIP Unitholder may not be transferred without the prior
written consent of the Ares Member other than any Transfer made in accordance with Section 9.2. In addition, notwithstanding anything to the contrary in this Agreement, each Member represents, warrants and covenants that (i) for U.S. federal
income tax purposes (including Sections 1445 and 1446 of the Code), it is, and for so long as it is a Member it will remain, a U.S. person (or a disregarded entity thereof), and (ii) such Member has provided the Company with a properly completed
and executed IRS Form W-9, dated as of the date hereof, and shall promptly update such form if it becomes inaccurate or obsolete. For the avoidance of doubt, the parties acknowledge and agree that (A) FIP is a publicly traded entity, (B) Ares
Management Corporation is a publicly traded entity, and (C) a transfer of any publicly traded Equity Securities in FIP, Ares Management Corporation, or of any Equity Securities in any Ares Member or any indirect equityholder in any Ares Member, or
any controlled or affiliated fund vehicles (including those under common control) of any Ares Member (without limiting, and subject to, Section 9.2 other than any Ares Member whose primary assets are cash and direct or indirect ownership
interests in the Company, including the Series A Preferred Units, the Series A Warrants and/or the Series A Warrant Units), shall, in each case, not be considered a “Transfer” for any purpose herein or constitute a breach of this Section 9.1 or
require the consent of any party.
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Section 9.2 Permitted Transfers. For
purposes of this Article IX, a “Permitted Transfer” shall mean any Transfer of Units held by any Member (a) to a Permitted Transferee of such Member, (b) pursuant to a Qualified IPO that has been approved by the Board, (c) in connection with
exercise of a Tag-Along Right or Drag-Along Right in accordance with Section 9.3 or Section 9.4, respectively, (d) the dissolution
of such Member or (e) from and after the sixth (6th) anniversary of the Effective Date, any Transfer by a Unitholder holding Series A Preferred Units, Series A Warrants and/or Series A Warrant Units of such Equity Securities.
(a) If the Controlling Unitholders propose to Transfer any Common Units (or any direct or indirect interest therein, subject to the last sentence of Section 9.1) to any Transferee or Transferees (including to its
Permitted Transferees (other than a Permitted Transferee that is a wholly-owned Subsidiary of FIP) and other than in connection with a Drag-Along Sale) in a single transaction or a series of related transactions, and the Series A Preferred
Majority in Interest approves such Transfer in accordance with Section 2.3(e), then each other Unitholder (the “Tagging Seller”) shall have the right (but not
the obligation) to require such Transferee or Transferees to purchase its Common Units in accordance with the terms of this Section 9.3 (the “Tag-Along Right”,
and any Transfer giving rise to the Tag-Along Right, a “Tag-Along Sale”). The number of Common Units (the “Tag-Along Allotment”) that each Unitholder shall initially be entitled to include in such Tag-Along Sale shall be determined
by multiplying (i) the number of Common Units to be Transferred in such Tag-Along Sale by (ii) the Unitholder’s beneficial ownership percentage of the issued and outstanding Common Units (including the Common Units underlying the Series A
Warrants). Series A Warrant Holders shall be entitled to include any Series A Warrants in a Tag-Along Sale as if such Series A Warrants had been converted to Common Units in accordance with the terms thereof and shall be treated as a Unitholder
for purposes of this Section 9.3. Notwithstanding anything to the contrary, Ares Management LLC (acting directly, on behalf of or through any of the Ares Members or their respective Affiliates) shall have the sole and absolute discretion
to (i) determine which Ares Member(s) shall participate in any such Tag-Along Sale and (ii) allocate the specific amount of Series A Warrants and/or Series A Warrant Units to be sold by each such Person (it being understood and agreed that
“allocate” shall refer to the ability to apportion the aggregate amounts thereof among the Ares Member(s) in Ares Management LLC’s sole discretion).
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(b) The Controlling Unitholders shall provide each other Unitholder with written
notice (the “Tag-Along Sale Notice”) not less than thirty (30) calendar days prior to the proposed date of the Tag-Along Sale. Each Tag-Along Sale Notice shall set forth the principal terms and conditions of the Tag-Along Sale, including (i)
the aggregate number of Common Units proposed to be Transferred or sold in such Tag-Along Sale; (ii) the proposed amount and form of consideration to be paid for such Common Units and the terms and conditions of payment therefor; (iii) all other
material terms and conditions relating to such Tag-Along Sale; (iv) the aggregate number and type of Units held of record by each Unitholder as of the close of business on the day immediately preceding the date of the Tag-Along Notice, as shall
have been obtained from the Company (the “Tag-Along Notice Date”); (v) the Unitholder’s Tag-Along Allotment assuming all Unitholders elected to sell the maximum number of Common Units, as applicable, as possible; (vi) the identity of the
proposed purchaser or purchasers; (vii) the proposed date of the Tag-Along Sale; and (viii) whether the Controlling Unitholders intend to commence a Drag-Along Sale.
(c) If any Unitholder wishes to participate in the Tag-Along Sale (each, a “Tagging Unitholder”), the
Tagging Unitholder shall provide written notice thereof to the Company and the Controlling Unitholders (the “Tag-Along Notice”) within twenty (20) calendar days following the receipt of the Tag-Along Sale Notice. The Tag-Along Notice shall
set forth the number of Common Units (or deemed Common Units, in the case of the Series A Warrants) that the Tagging Unitholder elects to include in the Tag-Along Sale, which shall not exceed the Tagging Unitholder’s Tag-Along Allotment, and that
number of additional Units that the Tagging Unitholder would be willing to include in the Tag-Along Sale if one or more of the other Unitholders does not exercise its Tag-Along Rights in respect of its full Tag-Along Allotment. The Units to be
included in the Tag-Along Sale shall be allocated (A) first, to (i) the Controlling Unitholders, such Controlling Unitholder’s Tag-Along Allotment and, (ii) to each Tagging Unitholder, the lesser of the
number of Common Units specified in such Tagging Unitholder’s Tag-Along Notice and such Tagging Unitholder’s Tag-Along Allotment, (B) then, the Common Units not allocated pursuant to the foregoing clause (A) or (B), shall be allocated to the Tagging Unitholders that delivered a Tag-Along Notice with respect to a number of Common Units in excess of their Tag-Along Allotment pro rata in accordance with their respective
Tag-Along Allotments until all of such Common Units have been allocated to the Tagging Unitholders (provided that in no event shall any Tagging Unitholder be allocated more Common Units than such
Tagging Unitholder elected to sell in such Tagging Unitholder’s Tag-Along Notice) and (C) last, the Common Units not allocated pursuant to the foregoing clause (A) or (B) shall be allocated to the Controlling Unitholders on a pro rata basis. The Tag-Along Notice given by the Tagging Unitholder shall constitute the Tagging Unitholder’s binding agreement to sell the Common Units
specified in such Tag-Along Notice on the terms and conditions applicable to the Tag-Along Sale, subject to the provisions of Section 9.3(e); provided that
if the principal terms of the proposed Transfer change with the result that the per-Unit consideration is less than the per-Unit consideration set forth in the Tag-Along Sale Notice, or the other terms and conditions shall be less favorable in any
material respect to the Tagging Unitholders than those stated in the Tag-Along Sale Notice, the Controlling Unitholders shall provide each Tagging Unitholder with prompt written notice thereof and each Tagging Unitholder shall be permitted to
withdraw, in whole or in part, such Tagging Unitholder’s Tag-Along Notice and shall be released from its obligations thereunder.
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(d) Subject to the limitations set forth in this Section 9.3, the
Controlling Unitholders shall have the right to sell or otherwise Transfer the number of Common Units specified in the Tag-Along Sale Notice (less the number of Common Units or deemed Common Units, in the case of the Series A Warrants, specified by
any Tagging Unitholder in any timely and properly delivered Tag-Along Notice) to the proposed purchaser or Transferee set forth in the Tag-Along Sale Notice for per-Unit consideration which is not more than the per-Unit consideration set forth in
the Tag-Along Sale Notice, and otherwise on terms and conditions which are no more favorable in any material respect to the Controlling Unitholders than those stated in the Tag-Along Notice, within 90 days after the date the Tag-Along Sale Notice
is received by the Unitholders holding Series A Preferred Units, and in such event, each Tagging Unitholder shall also Transfer to such purchaser or purchasers the number of units specified in such Tagging Unitholder’s Tag-Along Notice on the same
terms and conditions as the Controlling Unitholders, except as otherwise provided herein. If the Tag-Along Sale does not occur within such 90-day period on the terms set forth in the Tag-Along Sale Notice, the Tag-Along Sale Notice shall be null
and void, each Tagging Unitholder shall be released from its obligations under the Tag-Along Notice, and it shall be necessary for a new Tag-Along Sale Notice to be issued, and the terms and provisions of this Section
9.3 separately complied with, in order to consummate a Transfer of the Common Units that were to be the subject of such Tag-Along Sale.
(e) Any sales of Common Units by a Tagging Unitholder as a result of the exercise of the Unitholder’s
Tag-Along Rights provided under this Section 9.3 shall be on the same terms and conditions as the proposed Tag-Along Sale by the Controlling Unitholders and in any case each Tagging Unitholder shall receive the
same form and amount of consideration per Unit (subject to reduction for the applicable exercise price of any Series A Warrants or similar Equity Securities), and, if the Controlling Unitholders or any other Tagging Seller is given an option as to
the form or amount of consideration to be received, all Tagging Sellers shall be given the same option.
(f) Subject to the limitations set forth in this Section 9.3, the Tagging
Unitholders shall cooperate in good faith with the Controlling Unitholders and the Company in connection with the consummation of such Tag-Along Sale, including by executing a purchase or sale agreement containing customary representations,
warranties, indemnities and agreements in connection with such Tag-Along Sale, which shall be in the same form as the document executed by the Controlling Unitholders in connection with such Tag-Along Sale; provided that (i) no Tagging Unitholder shall be required to give any representations or warranties, or agree to any non-competition, non-solicitation or similar restrictive covenants, other than customary fundamental representations or
warranties as to such Tagging Unitholder’s due organization, title to the securities it is selling, authority and capacity to effect the sale of such securities and the absence of any conflict under law or its organizational documents that in each
case would prevent or materially impair the sale by the Tagging Unitholder of such securities in such Tag-Along Sale; (ii) each Tagging Unitholder’s indemnification obligations with respect to the Company’s representations and warranties shall be,
and shall be expressly stated to be, several and not joint and shall not exceed such Tagging Unitholder’s pro rata share (based on net proceeds to be received in respect of Common Units in such Tag-Along
Sale) and no Tagging Unitholder shall be liable for any breach of any representations, warranties or agreements made by any other Person (other than, in the case of the Company, as expressly provided in this clause (ii), and subject to the limitations set forth herein); (iii) in no event shall any Tagging Unitholder’s obligations exceed its net proceeds received in respect of its Common Units in such Tag-Along Sale, and (iv) any
release required to be executed by a Tagging Unitholder shall only be in such Tagging Unitholder’s capacity as a Unitholder holding Common Units (or as a deemed Unitholder holding Common Units, in the case of the Series A Warrant Holders).
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(g) Subject to compliance with the other provisions of this Section 9.3,
the closing of the Tag-Along Sale shall take place on the Business Day specified in a written notice delivered at least ten (10) calendar days in advance to each Tagging Unitholder. At the closing of such Tag-Along Sale, (i) the Company shall
record in its books and records, including by amending the Unit Ownership Ledger, the Transfer of all of the Common Units included in such Tag-Along Sale and (ii) the Controlling Unitholders and each Tagging Unitholder shall deliver to the Company
all certificates (including, in the case of the Series A Warrants, the applicable Series A Warrant Agreement), if any, which represent Common Units owned by the Controlling Unitholders or such Tagging Unitholder to be included in such Tag-Along
Sale, duly endorsed for Transfer, in the manner and at the address indicated in the Tag-Along Notice, in each case against delivery of the purchase price for such Common Units, and the Company shall, as promptly as practicable and without charge,
execute and deliver new certificates in the name of the purchaser with respect to the portion of the Common Units to be Transferred in such Tag-Along Sale and, if the Transferor’s entire interest is not being assigned, a new certificate in the name
of the Transferor with respect to the portion of the Common Units being retained. Subject to the limitations set forth in this Section 9.3, the Controlling Unitholders and the Tagging Unitholders shall use their
reasonable best efforts to take all action as the Company shall reasonably request as necessary to vest in the purchaser in the Tag-Along Sale title to all Units to be Transferred pursuant hereto free and clear of all liens.
(h) The provisions of this Section 9.3 shall be subordinate to those of Section 9.4, and shall not apply to Transfers made pursuant to Section 9.4, and shall terminate automatically and be of no further force or effect upon the consummation of a Qualified IPO.
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(a) Subject to the last sentence of this Section 9.4(a), in the event the Controlling Unitholders propose to sell more than fifty percent
(50.0%) of the outstanding Common Units to any purchaser or purchasers (other than (1) to any Permitted Transferee of any of the Controlling Unitholders, (2) to any other Person if, upon consummation of the Drag-Along Sale, the Equity Securities
of such Person having ordinary voting power to elect a majority of the board of directors (or other Persons performing similar functions), or the power to direct its management or policies, would be directly or indirectly owned or controlled,
directly or indirectly, by one or more of the Controlling Unitholders or their Permitted Transferees or a combination thereof), or (3) in connection with or as part of an Affiliate Transaction) in a single transaction or a series of related
transactions solely for cash, such Controlling Unitholders shall have the right (the “Drag-Along Right”) to require all other holders of Units (the “Dragged Sellers”) to sell to such purchaser or purchasers a portion of their Units
(other than their Series A Preferred Units), equal to the (i) the total number of such Units held by such Dragged Seller multiplied by (ii) a fraction, the numerator of which is the aggregate number of
such Units (on a fully diluted and as-exercised basis) to be sold by the Controlling Unitholders and the denominator of which is the aggregate number of such Units (on a fully diluted and as-exercised basis) held by the Controlling Unitholders
(such percentage, the “Drag-Along Percentage” and any such sale, a “Drag-Along Sale”). In connection with any Drag-Along Sale (A) the Dragged Sellers shall participate on the same terms and conditions applicable, and receive the
same form of consideration payable, to the Controlling Unitholders, (B) the amount of consideration allocated among all Controlling Unitholders and Dragged Sellers shall be in accordance with the distribution priorities applicable to a
termination, dissolution, liquidation and winding up of the Company pursuant to Section 7.2 (it being understood and agreed that consideration payable in
connection in a Drag-Along Sale shall be applied to the Series A Preferred Units in furtherance of the repurchase obligations required upon a Mandatory Redemption Event), and (C) such Drag-Along Sale shall otherwise be in accordance with this Section 9.4. Notwithstanding anything herein to the contrary, (x) the Unitholders holding Series A Preferred Units shall not be required to participate in a Drag-Along
Sale and instead shall benefit from the Mandatory Redemption Event provisions set forth in this Agreement and (y) the purchaser, in connection with such Drag-Along Sale and further to the immediately foregoing sentence, shall be required to fund
the full amount of the Series A Preferred Redemption Price, together with the Series A Warrant Repurchase Price and/or the Series A Warrant Units Repurchase Price to the Company contemporaneously with the consummation thereof, such that the
Company can complete its obligation to repurchase all Series A Preferred Units, Series A Warrants, and Series A Warrant Units pursuant to Section 2.3(c) and Section 2.5, respectively. Prior to consummating any Drag-Along Sale, the Controlling Unitholders shall provide each Dragged Seller
with written notice (the “Drag-Along Notice”) not less than thirty (30) calendar days prior to the proposed closing date of the Drag-Along Sale (or, if earlier, not later than one day after executing definitive documentation in respect
thereof) (the “Drag-Along Sale Date”). The Drag-Along Notice shall be accompanied by a copy of any written agreement relating to the Drag-Along Sale and shall set forth, if applicable: (i) the aggregate number and type of Units proposed
to be Transferred or sold in such Drag-Along Sale; (ii) the proposed amount and form of consideration to be paid for such Units and the terms and conditions of payment therefor; (iii) all other material terms and conditions relating to such
Drag-Along Sale; (iv) the aggregate number and type of Units held of record by each Unitholder as of the close of business on the day immediately preceding the date of the Drag-Along Notice, as shall have been obtained from the Company; (v) the
Drag-Along Percentage; (vi) the identity of the proposed purchaser or purchasers; and (vii) the Drag-Along Sale Date. Notwithstanding anything to the contrary, Ares Management LLC (acting directly, on behalf of or through any of the
Ares Members or their respective Affiliates) shall have the sole and absolute discretion to allocate the specific amount of Series A Preferred Units, Series A Warrants and/or Series A Warrant Units to be sold by each such Person provided that the
ultimate beneficial owner of any Series A Warrant and/or the Series A Warrant Unit being sold is the same Person as the corresponding Series A Preferred Unit being sold (it being understood and agreed that “allocate” shall refer to the ability to
apportion the aggregate amounts thereof among the Ares Member(s) in Ares Management LLC’s sole discretion).
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(b) Subject to compliance with the other provisions of this Section 9.4, the closing of the Drag-Along Sale shall take place on the
Drag-Along Sale Date. At the closing of such Drag-Along Sale, (i) the Company shall record in Unit Ownership Ledger the Transfer of all of the Units included in such Drag-Along Sale and (ii) each Dragged Seller and Controlling Unitholder shall
deliver to the Company all certificates (including, in the case of the Series A Warrants, the applicable Warrant Agreement), if any, which represent Units
owned by such Person to be included in such Drag-Along Sale, duly endorsed for Transfer, in the manner and at the address indicated in the Drag-Along Notice, in each case against delivery of the purchase price for such Units, and the Company
shall, as promptly as practicable and without charge, execute and deliver new certificates in the name of the purchaser with respect to the portion of the Units to be Transferred in such Drag-Along Sale and, if the Transferor’s entire interest
is not being assigned, a new certificate in the name of the Transferor with respect to the portion of the Units being retained. Subject to the limitations set forth in this Section
9.4, each Dragging Seller (except for the Unitholders holding Series A Preferred Units acting in such capacity) and Dragged Seller shall use their reasonable best efforts to take all action as the Company shall reasonably request as
necessary to vest in the purchaser in the Drag-Along Sale title to all Units to be Transferred pursuant hereto free and clear of all liens.
(c) Subject to the limitations set forth in this Section 9.4, the Dragged Sellers shall cooperate in good faith with the Controlling Unitholders and the Company in connection
with the consummation of the Drag-Along Sale, including by (i) voting their respective Units in favor of the Drag-Along Sale, (ii) voting their respective Units in opposition to any and all other proposals that would oppose or may prevent,
delay or impair the Drag-Along Sale, (iii) refraining from voluntarily depositing any Units in a voting trust or subjecting any such Units to any arrangement or agreement with respect to the voting thereof (unless the Controlling Unitholders
specifically so request in connection with the Drag-Along Sale), (iv) waiving all dissenters’ or appraisal rights in respect of the Units and (v) executing a purchase or sale agreement containing customary representations, warranties, and
agreements in connection with the Drag-Along Sale, which shall be in the same form as the document executed by each other Controlling Unitholder and Dragged Seller in connection with such Drag-Along Sale; provided that (i) no Dragged Seller shall be required to give any representations or warranties, or agree to any non-competition, non-solicitation or similar restrictive covenants, other than customary fundamental
representations or warranties as to such Dragged Seller’s due organization, title to the securities it is selling, authority and capacity to effect the sale of such securities and the absence of any conflict under law or its organizational
documents that in each case would prevent or materially impair the sale by such Dragged Seller of such securities in such Drag-Along Sale; (ii) no Dragged Sellers shall have post-close responsibility or liability or any indemnification
obligations with respect to the Company’s representations and no such Dragged Seller shall be liable for any breach of any representations, warranties or agreements made by any other Person; and (iii) any release required to be executed by a
Dragged Seller shall only be in Dragged Sellers capacity as a holder of Common Units.
(d) The provisions of this Section 9.4 shall automatically terminate and be of no further force or effect upon the consummation of a Qualified IPO.
(a) Unless and until an Assignee becomes a Member pursuant to Article X, the Assignee shall not be
entitled to any of the rights granted to a Member hereunder or under applicable law, other than the rights granted specifically to Assignees pursuant to this Agreement and to have the other rights granted to Assignees pursuant to the Act; provided
that, without relieving the transferring Unitholder from any such limitations or obligations and as more fully described in Section 9.6, such Assignee shall be bound by any limitations and obligations of a Unitholder contained herein by
which a Member or other Unitholder would be bound on account of the ownership of Units by the Assignee.
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Section 9.6 Assignor’s Rights and Obligations. Any Unitholder who shall
Transfer any Units or other interest in the Company shall cease to be a Member with respect to such Units or other interest and shall no longer have any rights or privileges of a Member with respect to such Units or other interest, except that
unless and until the Assignee is admitted as a Substituted Member in accordance with the provisions of Article X (the “Admission Date”), (i) such assigning Unitholder shall retain all of the duties, liabilities and obligations of a
Member with respect to such Units or other interest, including the obligation (together with its Assignee pursuant to Section 9.5(a)) to make and return Capital Contributions on account of such Units or other interest pursuant to the terms of this
Agreement and (ii) the Board may, in its sole discretion, reinstate all or any portion of the rights and privileges of such Member with respect to such Units or other interest for any period of time prior to the Admission Date. Nothing contained
herein shall relieve any Unitholder who Transfers any Units or other interest in the Company from any liability of such Unitholder to the Company or the other Unitholders with respect to such Units or other interest that may exist on the Admission
Date or that is otherwise specified in the Act and incorporated into this Agreement or for any liability to the Company or any other Person or for any breaches of any representations, warranties or covenants by such Unitholder (in its capacity as
such) contained herein or in the other agreements with the Company.
Section 9.7 Transfer
Fees and Expenses. The transferor and transferee of any Units or other interest in the Company shall be jointly and severally obligated to reimburse the Company for all reasonable expenses (including attorneys’ fees and expenses) of any
Transfer or proposed Transfer, whether or not consummated.
Section 9.8 Void Transfers. Any Transfer by any Unitholder of any Units or other interest in the Company in contravention of this
Agreement or which would cause the Company to not be treated as a partnership for federal income tax purposes shall be void and ineffectual and shall not bind or be recognized by the Company or any other party. No purported assignee shall have
any right to any Profits, Losses or Distributions. Notwithstanding anything to the contrary in this Agreement, no Transfer of any Unit or economic interest shall be permitted or recognized by the Company
or the Board (within the meaning of Treasury Regulation Section 1.7704-1(d)) to the extent that, in the reasonable determination of the Board, such Transfer would cause the Company to (or create any risk that the Company would) be treated as a “publicly traded partnership” within the meaning of Section 7704 of the Code, or
cause the Company to fail to qualify for any “safe harbor” provided for in Section 7704 of the Code and the Treasury Regulations thereunder that otherwise would have been available (unless, in each case, as otherwise determined by the Board).
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Section 9.9 Registration Rights. In connection with any IPO, Direct Listing or SPAC transaction, the Company or other IPO Entity shall enter into a customary agreement with each Member (collectively, the “Registration Rights Investors”) providing
such Member with registration rights; provided that such Member, as the case may be, can waive their right to participate in such registration rights agreement. The registration rights agreement shall provide that (i) with respect to any
Registration Rights Investor that, individually or together with its Permitted Transferees and any other Registration Rights Investor (together with its Permitted Transferees), continues to hold in the aggregate Equity Securities representing the
Requisite Ownership Threshold, at any time 180 days after an IPO, Direct Listing or a SPAC transaction, such Registration Rights Investor(s) shall be entitled to demand (A) two (2) long-form underwritten registrations,
in the case of the Unitholders holding Series A Preferred Units, and one (1) short-form underwritten registration in the case of each of the other Members, in any twelve (12) months period, and (B) at any time when the IPO Entity becomes eligible
to register securities on Form S-3 or a similar successor form, the IPO Entity shall be entitled to effect a “shelf” registration for such Registration Rights Investors, and (ii) such Registration Rights Investors shall be entitled to customary
“piggyback” registration rights (with pro rata underwriter cutbacks) on all demand registrations and Company registrations (other than an IPO solely by the Company for its account), which shall be exercisable following the IPO, Direct Listing or a
SPAC transaction and the expiration of any lock-up period in connection therewith (which lock-up period shall not exceed one hundred and eighty (180) days) it being acknowledged that if the lock-up period is waived for any other Registration Rights
Investor, Ares Members will be given pro rata waivers, in each case at the Company’s expense. The Company shall use reasonable best efforts to structure any IPO (including any transactions undertaken in
connection with such IPO) in a tax-efficient manner and any transaction in connection with an IPO shall be structured so the Series A Warrant Holders that are (including after giving effect to any pre-IPO transactions) Corporate Members (including
any Blockers treated as a Corporate Member pursuant to Section 2.3(f)) may exchange or otherwise convert the Equity Securities of such Corporate Members (or Blockers) in such transaction into Equity Securities of the IPO Entity without
discount of any kind.
Section 10.1 Substituted Members. In connection with the Transfer of a Unit permitted under the terms of
this Agreement and the other agreements contemplated hereby and thereby, the transferee shall not become a Member (a “Substituted Member”), until the later of (i) the effective date of such Transfer and (ii) the date on which the Board
approves such transferee as a Substituted Member, and such admission shall be shown on the books and records of the Company. The Company shall promptly approve a transferee as a Substituted Member upon request.
Section 10.2 Additional Members. A Person may be admitted to the Company as an Additional Member only as contemplated under Section
2.2 and Section 2.4 and with the prior written consent of the Board and by furnishing to the Board (a) a letter of acceptance, in form satisfactory to the Board, of all the terms and conditions of this Agreement, including the power
of attorney granted in Section 12.1, and (b) such other documents or instruments as may be reasonably necessary or appropriate to effect such Person’s admission as a Member. Such admission shall become effective on the date on which the
Board determines in its sole discretion that such conditions have been satisfied and when any such admission is shown on the books and records of the Company.
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Section 11.1 Withdrawal and Resignation of Unitholders. No Unitholder
shall have the power or right to withdraw or otherwise resign from the Company prior to the dissolution and winding up of the Company pursuant to Article VII, except as otherwise expressly permitted by this Agreement or any of the other
agreements contemplated hereby. Upon a Transfer of all of a Unitholder’s Units in a Transfer permitted by this Agreement, subject to the provisions of Section 9.5, such Unitholder shall cease to be a Unitholder. Notwithstanding that payment
on account of a withdrawal may be made after the effective time of such withdrawal, any completely withdrawing Unitholder will not be considered a Unitholder for any purpose after the effective time of such complete withdrawal, and, in the case of
a partial withdrawal, such Unitholder’s Capital Account (and corresponding voting and other rights) shall be reduced for all other purposes hereunder upon the effective time of such partial withdrawal.
Section 12.1 Power of Attorney. Each Unitholder (except for any Ares
Member and any other Unitholder holding Series A Preferred Units) does hereby constitute and appoint any Manager or liquidator appointed by the Board with full power to act without the others (subject to the provisions of Article IV), as
such Unitholder’s true and lawful representative and attorney-in-fact, in such Unitholder’s name, place and stead, to make, execute, sign, acknowledge and deliver or file in such form and substance as is approved by the Board (a) all instruments,
documents and certificates that may from time to time be required by any law to effectuate, implement and continue the valid and subsisting existence of the Company, or to qualify or continue the qualification of the Company in the State of
Delaware and in all jurisdictions in which the Company may conduct business or own property, and any amendment to, modification to, restatement of or cancellation of any such instrument, document or certificate, (b) all instruments, documents and
certificates that the Board shall deem appropriate to record any amendment, change, modification, or restatement of this Agreement approved in accordance with the terms hereof or any other action or change permitted by this Agreement, (c) all
conveyances and other instruments, documents and certificates that may be required to effectuate the dissolution and termination of the Company approved in accordance with the terms of this Agreement and (d) all instruments relating to the
admission, withdrawal, or substitution of any Unitholder in accordance with the terms hereof. The powers of attorney granted herein shall be deemed to be coupled with an interest, shall be irrevocable, and shall survive the death, disability,
incompetency, bankruptcy, insolvency or termination of any Unitholder and the Transfer of all or any portion of such Unitholder’s Units, and shall extend to such Unitholder’s heirs, successors, assigns, and personal representatives.
(a) The parties shall execute and deliver all documents, instruments, and
certificates, provide all information, and take or refrain from taking all such further actions as may be reasonably necessary or appropriate to achieve the purposes of this Agreement and effect the provisions hereof, as determined in the sole
discretion of the Board.
(b) In connection with any repurchase or redemption transaction to be effected in accordance with the terms
and conditions of this Agreement, the Company, the holders of Common Units and the Unitholders holding Series A Preferred Units shall cooperate with each other and take all actions and execute all documents reasonably necessary to effect such
repurchase; provided that the Company shall reimburse each Unitholder holding Series A Preferred Units for any reasonable documented out of pocket expenses incurred solely in connection with any actions taken pursuant to this Section
12.2(b), if any, and (ii) each holder of Series A Preferred Units shall not have any liability to the Company or any other Person following such repurchase or redemption with respect to those Equity Securities.
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Section 12.3 Title to Company Assets. The Company’s assets will be deemed
to be owned by the Company as an entity, and no Unitholder, individually or collectively, will have any ownership interest in any Company asset or any portion thereof.
Section 12.4 Creditors. None of the provisions of this Agreement shall be
for the benefit of or enforceable by any creditors of the Company, any of its Affiliates or the Manager Group, and no creditor who makes a loan to the Company, any of its Affiliates or the Manager Group may have or acquire at any time as a result
of making the loan any direct or indirect interest in Profits, Losses, Distributions, capital or property other than as a creditor.
Section 12.5 Amendments, Modifications, or Waivers. Subject to, and in compliance with, the other terms and conditions of this
Agreement, (including Sections 2.3(e), 4.12, and this Section
12.5), any provision of this Agreement may be amended, modified or waived with the prior written consent of a Common Majority in Interest; provided that, any amendment, modification or waiver pursuant to this Section 12.5
that would, directly or indirectly, reduce or eliminate any material right of, or increase the obligations of, or disproportionately or materially adversely affect any Unitholder holding Series A Preferred Units (or a group of Unitholders holding
Series A Preferred Units), Series A Warrants and/or Series A Warrant Units shall require the consent of such a Majority in Interest of such Unitholders being affected, it being agreed that the Board may amend this Agreement, without the consent or
approval of any Member: (a) without limiting Section 2.2(b), in connection with the creation, authorization or issuance of Equity Securities properly approved pursuant to the terms of this Agreement, and none of (i) the effect of admitting
Additional Members in compliance with the terms hereof or (ii) reflecting any Transfers of Units in accordance with Article IX, shall be deemed to adversely affect a Member or require consent of any Member pursuant to this Section 12.5;
(b) to correct typographical, formatting, or other similar errors, (c) to change the name of the Company; (d) to correct or cure manifest errors or defects; or (e) to effect administrative changes of an immaterial nature. Notwithstanding the
foregoing, or anything to the contrary, any amendment, modification, or waiver of Article IX or Sections 1.7, 2.3, 2.5, 2.11, 2.12, 4.2, 4.6, 4.12, 8.8, 12.21 or this 12.5, or any amendment, modification, waiver, alteration or repeal of any of the rights contained in Section 3.1 that materially
adversely affects any Unitholder holding Series A Preferred Units (or a group of Unitholders holding Series A Preferred Units), Series A Warrants, or Series A Warrant Units, shall require the prior written consent of the Series A Preferred Majority
in Interest. No failure by any party to insist upon the strict performance of any covenant, duty, agreement, or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute a waiver of any such
breach or any other covenant, duty, agreement, or condition.
Section 12.6 Successors and Assigns. Except as otherwise provided herein,
this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and permitted assigns, whether so expressed or not. Ares Management LLC
shall be an express third party beneficiary of Sections 2.3(a)(i), 2.3(b)(i), 2.3(c)(ii), 9.3(a) and 9.4(a).
99
Section 12.7 Remedies. Each Unitholder shall have all rights and remedies
set forth in this Agreement and all rights and remedies which such Person has been granted at any time under any other agreement or contract and all of the rights which such Person has under any law. Any Person having any rights under any provision
of this Agreement or any other agreements contemplated hereby shall be entitled to enforce such rights specifically, to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law. No
failure by any party to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or any other
covenant, duty, agreement or condition.
Section 12.8 Governing Law. The law of the State of Delaware shall govern all questions concerning the construction, validity,
interpretation and enforceability of this Agreement and the exhibits and schedules attached hereto, and the performance of the obligations imposed by this Agreement, without giving effect to any choice of law or conflict of law rules or provisions
(whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
Section 12.9 Jurisdiction; Service of Process. Each Unitholder irrevocably submits to the exclusive
jurisdiction of the Court of Chancery of the State of Delaware (the “Court of Chancery”) or, to the extent the Court of Chancery does not have subject matter jurisdiction, the United States District Court for the District of Delaware and the
appellate courts having jurisdiction of appeals in such courts (the “Delaware Federal Court”) or, to the extent that neither the Court of Chancery nor the Delaware Federal Court has subject matter jurisdiction, the Superior Court of the
State of Delaware (the “Chosen Courts”), for the purposes of any action, suit or proceeding arising out of this Agreement or any transaction contemplated hereby and agrees that a final judgment in any such action, suit or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Any party may make service on any other party by sending or delivering a copy of the process to the party to be served at the
address and in the manner provided for the giving of notices in Section 12.14. Nothing in this Section 12.9, however, shall affect the right of any party to serve legal process in any other manner permitted by law or at equity. Each
Unitholder irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby in the Chosen Courts and hereby irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in such Chosen Courts has been brought in an inconvenient forum.
Section 12.10 WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY
RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES HERETO WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES HERETO DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS.
THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, EACH PARTY HERETO HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN OR AMONG ANY
OF THE PARTIES HERETO, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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Section 12.11 Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or the effectiveness or validity of any provision in any other jurisdiction, and this Agreement will be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.
Section 12.12 Counterparts; Binding Agreement. This Agreement may be
executed simultaneously in two or more separate counterparts, any one of which need not contain the signatures of more than one party, but each of which will be an original and all of which together shall constitute one and the same agreement
binding on all the parties hereto. This Agreement and all of the provisions hereof shall be binding upon and effective as to each Person who (a) is issued or otherwise holds Units (other than as a result of a Transfer by such Unitholder after the
Effective Date made not in accordance with this Agreement) (whether or not they execute a counterpart to this Agreement), (b) executes this Agreement in the appropriate space provided in the signature pages hereto notwithstanding the fact that
other Persons who have not executed this Agreement may be listed on the signature pages hereto and (c) may from time to time become a party to this Agreement by executing a counterpart of or a joinder to this Agreement reasonably satisfactory to
the Company.
Section 12.13 Descriptive Headings; Interpretation. The descriptive headings of this Agreement are inserted for convenience only and do
not constitute a substantive part of this Agreement. Whenever required by the context, any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall
include the plural and vice versa. The use of the word “including” in this Agreement shall be by way of example rather than by limitation. Reference to any agreement, document or instrument means such agreement, document or instrument as amended or
otherwise modified from time to time in accordance with the terms thereof, and if applicable hereof. The use of the words “or,” “either” and “any” shall not be exclusive. The use of the word “class” shall be deemed to mean “class or series.” The
parties hereto have participated jointly in the negotiation and drafting of this Agreement. If any ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
Section 12.14 Notices. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given when (a) delivered personally to the recipient, (b) sent to the recipient by reputable express courier service
(charges prepaid), (c) mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid or (d) sent by electronic mail to the recipient (with hard copy sent to the recipient by reputable overnight courier
service (charges prepaid) that same day) if sent before 5:00 p.m. New York time on a Business Day, and otherwise on the next Business Day. Such notices, demands and other communications shall be sent to the Company at the following address and to
all Unitholders to the addresses set forth on the Unit Ownership Ledger:
101
To the Company:
FIP RR Holdings LLC
111 W. 19th Street, 2nd Floor
New York, New York 10011
New York, New York 10011
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Attention:
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Ken Nicholson
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Frank Carfora
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Email:
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with copies (which will not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
One Manhattan West
New York, New York 10001
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Attention:
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Michael J. Schwartz, Esq.
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Email:
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or to such other address or facsimile number or to the attention of such other Person as the recipient party has specified by prior written notice to the sending
party.
Section 12.15 Complete Agreement. This Agreement, each Unitholder’s respective investment agreement, purchase agreement, grant agreement
or other similar agreement, the documents expressly referred to herein, related documents of even date herewith, the other agreements contemplated hereby and thereby and any other agreement identified by the Board, in its sole discretion, embody
the complete agreement and understanding among the parties and terminate, supersede and preempt any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in
any way.
Section 12.16 Electronic Delivery. This Agreement, the agreements referred
to herein, and each other agreement or instrument entered into in connection herewith or therewith or contemplated hereby or thereby, and any amendments hereto or thereto, to the extent signed and delivered by means of a photographic, photostatic,
facsimile, portable document format (.pdf) or similar reproduction of such signed writing using a facsimile machine or electronic mail shall be treated in all manner and respects as an original agreement or instrument and shall be considered to
have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto or to any such agreement or instrument, each other party hereto or thereto shall re-execute original forms
thereof and deliver them to all other parties. No party hereto or to any such agreement or instrument shall raise the use of a facsimile machine or electronic mail to deliver a signature or the fact that any signature or agreement or instrument was
transmitted or communicated through the use of a facsimile machine or electronic mail as a defense to the formation or enforceability of a contract and each such party forever waives any such defense.
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Section 12.17 Undertaking. Each Unitholder agrees to cause its related
parties and Permitted Transferees that own Units to fully and faithfully comply with the provisions of this Agreement and the other agreements contemplated hereby applicable to such related party and such Permitted Transferees, except to the extent
such Person is a party hereto.
Section 12.18 Survival. Sections 2.5(b), 3.5, 4.6, 4.9, 4.12, 5.1, 5.4, 8.6, and 12.3 through 12.21 shall survive and continue in full
force in accordance with their terms notwithstanding any termination of this Agreement or the dissolution of the Company.
Section 12.19 Certain Acknowledgements. Upon execution and delivery of a counterpart to this Agreement or a joinder to this Agreement,
each Unitholder shall be deemed to acknowledge as follows: (a) the determination of such Unitholder to acquire Units in connection with this Agreement or any other agreement has been made by such Unitholder independent of any other Unitholder and
independent of any statements or opinions as to the advisability of such purchase or as to the properties, business, prospects or condition (financial or otherwise) of the Company or any of its Subsidiaries that may have been made or given by any
other Unitholder or by any agent or employee of any other Unitholder, except in the case of representations and warranties provided by the Company as part of any applicable Equity Agreement; (b) no other Unitholder has acted as an agent of such
Unitholder in connection with making its investment hereunder and that no other Unitholder shall be acting as an agent of such Unitholder in connection with monitoring its investment hereunder; (c) the Company, and each of its Affiliates may be
represented by the same counsel; (d) the Board may, without the consent of a Common Majority in Interest, cause the Company to execute any consent to the representation of the Company that counsel may reasonably request pursuant to the New York
Rules of Professional Conduct or similar rules in any other jurisdiction; and (e) the Company has initially selected Skadden, Arps, Slate, Meagher & Flom LLP as legal counsel to the Company.
Section 12.20 Spousal Consent. If requested by the Board, each married Unitholder, and each such Unitholder who, subsequent to the Effective Date, marries or remarries, will concurrently with his or
her execution hereof deliver to the Board the written consent of his or her spouse; provided, however, that the failure of any such Unitholder to do so will not affect the validity or enforceability of this Agreement.
Section 12.21 STB Matters. FIP and the Company shall not, and shall cause
their controlled Affiliates and the Manager Group not to, facilitate or consent to the Target taking an action that that would breach any applicable covenant or obligation of the Company’s Subsidiaries set forth in this Agreement if the Target was
a Subsidiary of the Company as of the date of such deemed breach; provided that if the Target nonetheless takes any such action prior to obtaining the STB Approval, each of FIP and the Company shall use commercially reasonable efforts to cure the
resulting deemed breach within sixty (60) calendar days after STB Approval has been obtained and FIP shall reimburse the Target for all expenses, costs or losses incurred in connection with such deemed breach as promptly as reasonably practicable
after such deemed breach has been cured; provided further that if neither FIP nor the Company can successfully cure any such deemed breach within sixty (60) calendar days after STB Approval has been obtained, such action shall be treated as an
actual breach of the terms of this Agreement. Notwithstanding anything herein to the contrary, to the extent the Target takes any action prior to obtaining STB Approval that would be a deemed breach under this Agreement, such action will not be
treated as an actual breach of the terms of this Agreement unless such deemed breach is not cured within sixty (60) calendar days after STB Approval has been obtained. Each of FIP and the Company shall, and shall cause their Affiliates and FIG LLC
to, use their best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or desirable under applicable laws to obtain the STB Approval as soon as reasonably practicable. Upon the receipt of the STB
Approval, each of FIP and the Company shall, and shall cause their Affiliates and FIG LLC to, use their best efforts to take, or cause to be taken, all actions and to do, or cause to be done, to require the Trustee (as defined in the Voting Trust
Agreement (as attached to the Wheeling SPA as of August 6, 2025)) to transfer to the Company its right, title and interest in and to all of the Trust Interests (as defined in the Voting Trust Agreement (as attached to the Wheeling SPA as of August
6, 2025)) as soon as reasonably practicable. Each of FIP and the Company acknowledge and agree that time is of the essence with respect to this Section 12.21. Each of FIP and the Company agree to exercise reasonable best efforts to
consummate the sale of the Equity Securities of the Target for the highest possible cash price reasonably available at such time upon the occurrence of an event listed in clause (A) of the definition of STB Failure.
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Section 12.22 No Waiver; Preservation of Rights. No failure, refusal,
neglect, or delay by any Party at any time to require strict performance of, to enforce, or to exercise any term, covenant, condition, right, power, or remedy arising under or in connection with this Agreement shall be construed or deemed (i) to
constitute a waiver of that or any other provision, right, power, or remedy, (ii) to impair, prejudice, or limit in any way the subsequent enforceability of the same or any other provision, right, power, or remedy, or (iii) to affect any subsequent
Event of Noncompliance or breach. Any waiver of any provision, right, power, or remedy hereunder must be in a writing expressly identifying the specific matter waived and executed by the Party against whom the waiver is asserted, and any such
written waiver shall be effective solely with respect to the specific instance described therein and shall not operate as a continuing or future waiver of the same or any other provision, right, power, or remedy. All rights, powers, and remedies of
the Parties are cumulative and may be exercised singly or concurrently, and the exercise of any one right, power, or remedy shall not be deemed an election of that remedy to the exclusion of any other right, power, or remedy.
* * * * *
104
IN WITNESS WHEREOF, the parties hereto have caused this Amended and Restated Limited Liability Company Agreement to be signed as of
the date first above written.
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FIP RR HOLDINGS LLC
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By:
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/s/ Kenneth J. Nicholson
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Name: Kenneth J. Nicholson
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Title: President
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FIP RR HOLDING COMPANY LLC, MEMBER
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By:
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/s/ Kenneth J. Nicholson
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Name: Kenneth J. Nicholson
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Title: President
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Acknowledged and Agreed solely for purposes of Section 2.3(c) and 12.21:
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FTAI INFRASTRUCTURE INC.
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By:
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/s/ Kenneth J. Nicholson
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Name: Kenneth J. Nicholson
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Title: Chief Executive Officer
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INDEPENDENT MANAGER
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By:
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/s/ Dewen Tarn
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Name: Dewen Tarn
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and Restated Limited Liability Company Agreement to be signed as of the date first above written.
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Ares Members:
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ASIF HOLDINGS INC.
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By:
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/s/ Jason Park
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Name:
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Jason Park
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Title:
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Authorized Signatory
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Address:
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Ares Management LLC
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Attn: Direct Lending Middle Office
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245 Park Avenue, 44th Floor
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New York, NY 10167
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CADC Blocker Corp.
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By:
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/s/ Jason Park
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Name:
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Jason Park
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Title:
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Authorized Signatory
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Address:
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Ares Management LLC
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Attn: Direct Lending Middle Office
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245 Park Avenue, 44th Floor
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New York, NY 10167
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Ares Private Credit Solutions II, L.P.
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By:
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Ares Capital Management LLC, its Manager
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By:
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/s/ Jason Park
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Name:
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Jason Park
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Title:
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Authorized Signatory
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Address:
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Ares Management LLC
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Attn: Direct Lending Middle Office
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245 Park Avenue, 44th Floor
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New York, NY 10167
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Ares PCS II Holdings (A) LLC
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By:
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/s/ Jason Park
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Name:
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Jason Park
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Title:
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Authorized Signatory
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Address:
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Ares Management LLC
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Attn: Direct Lending Middle Office
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245 Park Avenue, 44th Floor
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New York, NY 10167
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ASOF II FIP Holdings LP
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By:
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ASOF Management II, L.P., its general partner
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By:
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ASOF Management II GP LLC, its general partner
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By:
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/s/ Felix Bernshteyn
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Name:
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Felix Bernshteyn
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Title:
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Authorized Signatory
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Address:
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c/o ASOF Investment Management LLC
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1800 Avenue of the Stars, Suite 1400
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Los Angeles, CA 90067
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ASOF II FIP J Holdings LP
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By:
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ASOF Investment Management LLC, its manager
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By:
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/s/ Felix Bernshteyn
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Name:
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Felix Bernshteyn
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Title:
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Authorized Signatory
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Address:
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c/o ASOF Investment Management LLC
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1800 Avenue of the Stars, Suite 1400
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Los Angeles, CA 90067
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ASOF III F Holdings 2 LP
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By:
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ASOF Management III, LP, its general partner
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By:
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ASOF Management III GP LLC, its general partner
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By:
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/s/ Felix Bernshteyn
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Name:
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Felix Bernshteyn
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Title:
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Authorized Signatory
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Address:
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c/o ASOF Investment Management LLC
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1800 Avenue of the Stars, Suite 1400
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Los Angeles, CA 90067
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Ares Private Opportunities 2020 (C), LP
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By:
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ACOF Investment management LLC, Its manager
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By:
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/s/ Matthew Jill
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Name:
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Matthew Jill
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Title:
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Authorized Signatory
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||
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Address:
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||
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c/o ACOF Investment Management LLC
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1800 Avenue of the Stars, Suite 1400
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Los Angeles, CA 90067
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Ares Opportunistic Credit Investment Partnership (CP) LP
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By:
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ASOF Investment Management LLC, its manager
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By:
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/s/ Felix Bernshteyn
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||
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Name:
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Felix Bernshteyn
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||
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Title:
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Authorized Signatory
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Address:
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c/o ASOF Investment Management LLC
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1800 Avenue of the Stars, Suite 1400
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Los Angeles, CA 90067
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Ares PA Opportunities Fund, L.P.
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By:
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Ares SP Management LLC, its general partner
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By:
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/s/ Matthew Jill
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Name:
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Matthew Jill
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Title:
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Authorized Signatory
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Address:
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||
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c/o ASOF Investment Management LLC
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1800 Avenue of the Stars, Suite 1400
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Los Angeles, CA 90067
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Ares Credit Investment Partnership I (V) L.P.
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By:
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Ares CIP (V) Management LLC, its manager
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By:
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/s/ Matthew Jill
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Name:
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Matthew Jill
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||
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Title:
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Authorized Signatory
|
||
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Address:
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||
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c/o ASOF Investment Management LLC
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1800 Avenue of the Stars, Suite 1400
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Los Angeles, CA 90067
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APF II Holdings II, L.P.
|
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By:
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Ares Alternative Credit Management LLC, its manager
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By:
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/s/ Thomas C. Griffin III
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Name:
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Thomas C. Griffin III
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||
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Title:
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Authorized Signatory
|
||
|
Address:
|
||
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c/o Ares Alternative Credit Management LLC
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||
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245 Park Avenue, 42nd Floor
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|
New York, NY 10167
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Ares Badger Fund LP
|
|||
|
By:
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Ares Alternative Credit Management LLC, its manager
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||
|
By:
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/s/ Thomas C. Griffin III
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||
|
Name:
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Thomas C. Griffin III
|
||
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Title:
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Authorized Signatory
|
||
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Address:
|
||
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c/o Ares Alternative Credit Management LLC
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245 Park Avenue, 42nd Floor
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New York, NY 10167
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Exhibit 10.3
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE
THEREWITH. THIS SECURITY IS ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AND OTHER MATTERS AS SET FORTH IN THE LLC AGREEMENT (AS HEREIN DEFINED), COPIES OF WHICH MAY BE OBTAINED UPON REQUEST FROM FIP RR HOLDINGS LLC.
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No. 01 through 172,500
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Warrants to Purchase
172,500 Common Units
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WARRANT AGREEMENT
Relating to the Purchase of Common Units of
FIP RR HOLDINGS LLC
Dated as of August 25, 2025
FOR VALUE RECEIVED, FIP RR Holdings LLC, a Delaware limited liability
company (the “Company”), hereby certifies that, for cash consideration paid to the Company pursuant to the Subscription Agreement (as defined herein), and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the holders listed on Schedule 1 hereto (each, a “Holder” and, collectively with each of their successors or permitted assigns or
transferees, the “Holders”), are entitled, subject to the provisions of this Warrant Agreement (this “Agreement”) and the provisions of the LLC Agreement (as defined
herein), to purchase from the Company the number of Common Units of the Company (“Common Units” and such right to purchase, in the aggregate, the “Warrants”), set
forth opposite the name of each Holder on Schedule 1 hereto at a purchase price per Common Unit equal to the Exercise Price (as defined herein). The number of Warrants, the number of Common Units issuable upon exercise of the Warrants and
the price to be paid for each such Common Unit are subject to adjustment from time to time as set forth in this Warrant Agreement (the “Agreement”).
1. Definitions. (a) As used herein, the following terms shall have the following meanings:
“Agreement” has the meaning set forth in the Preamble.
“Automatic Exercise Date” means the date that is one (1) Business Day prior to the Expiration Time.
“Beneficial Owner” has the meaning set forth in Section 7(f).
“Beneficial Ownership Limitation” has the meaning set forth in Section 7(f).
“Business Day” means any day excluding Saturday, Sunday or any day that is a legal holiday under the laws of the State of New York or is a
day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.
“Cash” means such coin or currency of the United States as at any time of payment is legal tender for the payment of public and private
debts in the United States. For the avoidance of doubt, “Cash” shall be United States Dollars unless United States Dollars are no longer accepted as legal tender for the payment of public and private debts in the United States.
“Cash Dividend” has the meaning set forth in Section 10(b).
“Cashless Exercise” has the meaning set forth in Section 3(f).
“Close of Business” means 5:00 p.m., New York City time.
“Common Units” has the meaning set forth in the Preamble.
“Common Units Deemed Outstanding” means, at any given time, the sum of (i) the number of Common Units
actually outstanding at such time, plus (ii) the number of Common Units issuable upon exercise of any Options to acquire Common Units actually outstanding at such time, plus (iii) the number of Common
Units reserved for issuance at such time under any equity incentive plans approved by the Board, regardless of whether the Common Units are actually subject to outstanding Options, and plus (iv) the number of Common Units issuable upon conversion
or exchange of any Convertible Securities actually outstanding at such time (treating as actually outstanding any Convertible Securities issuable upon exercise of Options actually outstanding at such time), in each case, regardless of whether the
Options or Convertible Securities are actually exercisable at such time.
“Company” has the meaning set forth in the Preamble.
“Company Change of Control” means the occurrence of the following:
(a) any Person or group of Persons, other than one or more Permitted Holders, (i) is or becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act), directly or indirectly, of voting securities representing more than fifty percent (50.0%) of the total voting power of the outstanding voting securities of the Company (including through a Transfer of any FIP Unitholder); or (ii)
obtains the power to elect a majority of the Board or another governing body of the Company, as applicable, except in the case of clause (ii) the Unitholders holding Series A Preferred Units; or
2
(b) (i) all or substantially all the assets of the Company and its Subsidiaries, taken as a whole, are sold or otherwise transferred (whether by sale, lease, exchange,
transfer or other disposition) to any Person other than one or more wholly owned Subsidiaries of the Company or one or more Permitted Holders in one transaction or a series of related transactions or (ii) the Company consolidates, amalgamates or
merges with or into another Person or any Person consolidates, amalgamates or merges with or into the Company in one transaction or a series of related transactions; provided that this clause (ii) shall not apply to any consolidation, amalgamation
or merger of the Company with another Person in which (x) immediately after the consummation thereof Person(s) beneficially owning (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, voting securities representing
more than fifty percent (50.0%) of the total voting power of the outstanding voting securities of the Company immediately prior to such consummation continues to beneficially own (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly (based solely on the conversion or retention of the Equity Securities in FIP owned by such Person), voting securities representing more than fifty percent (50.0%) of the total voting power of the outstanding voting securities
of the Company or the applicable surviving or transferee Person, as applicable, or (y) immediately after the consummation thereof, in any consolidation, amalgamation or merger involving the Company, one or more Permitted Holders, directly or
indirectly, beneficially own voting securities representing more than fifty percent (50.0%) of the total voting power of the outstanding voting securities of the Company as the constituent party, or the applicable surviving or transferee person.
“Convertible Securities” means any securities (directly or indirectly) convertible into or exchangeable for Common Units or other common
equity of the Company, but excluding Options.
“Current Market Price” means, in connection with an exchange in accordance with Section 7, the Volume Weighted-Average Price per share of
FIP Common Stock or other security for, unless the context requires otherwise, the twenty (20) Trading Days ending on, but excluding, the Trading Day immediately preceding the Exchange Date. If the FIP Common Stock is not traded on any U.S.
national or regional securities exchange or quotation system, the Current Market Price shall be the price per share of FIP Common Stock that FIP could obtain from a willing buyer for shares of FIP Common Stock sold by FIP from authorized but
unissued shares of FIP Common Stock, as such price shall be reasonably determined in good faith by FIP’s board of directors.
“Current Value Per Common Unit” means the fair market value of a Common Unit as of the relevant time, determined
in accordance with the Valuation Procedures.
“Dispute Notice” has the meaning set forth in Section 13.
“Exchange Consideration” has the meaning set forth in Section 7(a).
“Exchange Date” has the meaning set forth in Section 7(a).
“Exchange Request” has the meaning set forth in Section 7(a).
“Exchange Warrants” has the meaning set forth in Section 7(a).
“Exercise Price” means $857.748 per Common Unit, as the same may be adjusted from time to time as provided in this Agreement.
3
“Expiration Time” has the meaning set forth in Section 3(a).
“FIP” means FTAI Infrastructure Inc., a Delaware corporation.
“FIP Change of Control” means the occurrence of the
following:
(a) FIP consolidates, amalgamates or merges with or into another Person or any Person consolidates, amalgamates or merges with or into FIP in one transaction or a series
of related transactions; provided that this clause (a) shall not apply to any consolidation, amalgamation or merger of FIP with another Person in which (x) immediately after the consummation thereof, Person(s) beneficially owning (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, voting securities representing more than fifty percent (50.0%) of the total voting power of the outstanding voting securities of FIP immediately prior to such consummation
continues to beneficially own (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly (based solely on the conversion or retention of the Equity Securities in FIP owned by such Person), voting securities representing
more than fifty percent (50.0%) of the total voting power of the outstanding voting securities of FIP or the applicable surviving or transferee Person or (y) immediately after the consummation thereof, in any consolidation, amalgamation or merger
involving FIP as the constituent party, one or more Permitted Holders, directly or indirectly, beneficially own voting securities representing more than fifty percent (50.0%) of the total voting power of the outstanding voting securities of FIP, or
the applicable surviving or transferee person; or
(b) FIP consummates a merger, consolidation, share exchange, statutory conversion, recapitalization, reorganization, or other business combination (including, without
limitation, a transaction effected through a subsidiary or the formation of a newly created subsidiary or “merger sub”) pursuant to which (i) the outstanding shares of capital stock of the acquired entity are, directly or indirectly, exchanged for
or converted into shares of capital stock of FIP or any parent entity thereof that directly or indirectly owns more than fifty percent (50.0%) of the outstanding voting securities of FIP, and (ii) immediately after such transaction the former
equity holders of the acquired entity, acting together, own beneficially or of record, or otherwise have the power to vote or direct the voting of, securities representing more than fifty percent (50.0%) of the total combined voting power of FIP
(or of any parent entity that directly or indirectly owns more than fifty percent (50.0%) of the outstanding voting securities of FIP).
For the purposes of this definition, if FIP is a direct or indirect Subsidiary of any Person then references to FIP shall also be deemed to include the ultimate parent of FIP
that directly or indirectly owns more than fifty percent (50.0%) of the outstanding voting securities of FIP.
“FIP Common Stock” means shares of common stock, par value $0.01 per share, of FIP and any equity securities into which such common
stock is exchanged, converted or other reclassified.
4
“Fundamental Change” means any of the following events:
(a) a Company Change of Control;
(b) a FIP Change of Control;
(c) a redemption in full of the Series A Preferred Units (including to the extent the Company acquires the equity interests of a Corporate Member (or a Blocker) in
accordance with Section 2.3(f) of the LLC Agreement);
(d) termination, expiration or replacement of the Management Agreement; provided that, it will not be considered a Fundamental Change if (i) the Management Agreement is
replaced by a new agreement pursuant to which Fortress or one or more of its controlled Affiliates is the “manager” or (ii) occurring pursuant to an Internalization.
(e) the Unitholders approve any plan or proposal for the liquidation or dissolution of the Company;
(f) an Initial Public Offering;
(g) FIP’s stockholders approve any plan or proposal for the liquidation or dissolution of FIP; or
(h) any other Company Mandatory Redemption Event.
“Fundamental Change Payment Amount” means an amount in Cash per Warrant equal to the fair market value
of the Warrants as determined in accordance with the Valuation Procedures; provided that in the event of “Fundamental Change” triggered by clauses (a) or (b) of the definition of Change of Control (to the extent of a transaction involving
the Company and not FIP), the value of the Warrants will be calculated using the same price to be paid per Common Unit in such Change of Control.
“Holder” has the meaning set forth in the Preamble and shall mean more than one holder if any Warrants have been transferred or assigned
to one or more permitted assigns or transferees.
“Initial Issue Date” means August 25, 2025.
“Initial Public Offering” means any IPO, SPAC or Direct Listing.
“Issued Underlying Shares” means the aggregate number of shares of FIP Common Stock issued since the Initial Issue Date upon the exchange
of Warrants.
“Listing Rules” means the rules of the Nasdaq Stock Market LLC.
“LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of the Company dated August 25, 2025, by and among the
Company and the each Member listed on the signature pages thereto, as the same may be amended, modified or supplemented from time to time in accordance with the terms thereof.
5
“Market Price” means (i) if in reference to Cash, the current Cash value on the date of measurement in U.S. dollars, (ii) if in reference
to equity securities or securities included within other property, which are listed or admitted for trading on a national securities exchange, the Volume Weighted-Average Price of a share (or similar relevant unit) of such securities as reported on
the principal national securities exchange on which the shares (or similar relevant units) of such securities are listed or admitted for trading, or, if there are no closing process reported on such exchange on any day, the average of the highest
bid and lowest asked prices on such exchanges at the end of such day, or, if on any day such securities are not so listed or admitted, the last quoted bid price for such securities in the over-the-counter market on the relevant day as reported by
OTC Markets Group Inc. or a similar organization or (iii) in all other cases, the value as determined in accordance with the Valuation Procedures. In each such case, unless the context requires otherwise,
the average price shall be averaged over a period of twenty-one (21) consecutive Trading Days consisting of the Trading Day immediately preceding the day on which the “Market Price” is being determined and the twenty (20) consecutive Trading Days
prior to such day.
“Open of Business” means 9:00 a.m., New York City time.
“Options” means any warrants or other rights or options to subscribe for or purchase Common Units or Convertible Securities or other
common equity of the Company.
“Record Date” means, with respect to any dividend, distribution or other transaction or event in which the holders of Common Units have
the right to receive any Cash, securities or other property or in which Common Units (or other applicable security) is exchanged for or converted into any combination of Cash, securities or other property, the date fixed for determination of
holders of Common Units entitled to receive such Cash, securities or other property (whether such date is fixed by the Board or by statute, contract or otherwise).
“Requisite Stockholder Approval” means the stockholder approval contemplated by Rule 5635(d) of the Listing Rules.
“Sanction” means any sanction administered or enforced by the U.S. Government (including the Office of Foreign Assets Control of the U.S.
Treasury Department), United Nations Security Council, European Union, His Majesty’s Treasury or other sanctions authority.
“Share Cap” means 23,006,054 shares of FIP Common Stock (such number of shares subject to proportionate adjustment for share dividends,
share splits or share combinations with respect to the FIP Common Stock).
“Subject of Valuation” has the meaning set forth in Section 13.
“Subscription Agreement” means that certain Subscription Agreement, dated as of August 25, 2025, by and among the Company, the Holder and
the other parties thereto.
6
“Trading Day” means (i) if the applicable security is listed on the New York Stock Exchange, a day on which trades may be made thereon or
(ii) if the applicable security is listed or admitted for trading on, the NASDAQ Global Select Market, the NASDAQ Global Market or other national securities exchange or market, a day on which the NASDAQ Global Select Market, the NASDAQ Global
Market or such other national securities exchange or market is open for business or (iii) if the applicable security is not so listed, admitted for trading or quoted, any Business Day.
“Valuation Notice” has the meaning set forth in Section 13.
“Valuation Procedures” has the meaning set forth in Section 13.
“Volume Weighted-Average Price” means, with respect to any security and a period of Trading Days, (i) the volume weighted average price of
such security during the regular trading session of each Trading Day during such period (including any extensions thereof, without regard to pre-open or after hours trading outside of such regular trading session) as reported by the principal U.S.
national or regional securities exchange or quotation system on which such security is then listed or quoted, as published by Bloomberg at 4:15 P.M., New York City time (or 15 minutes following the end of any extension of the regular trading
session), or (ii) if such volume weighted average price is unavailable or in manifest error as reasonably determined in good faith by the Board, the market value of one unit of such security during such period determined using a volume weighted
average price method by an independent nationally recognized investment bank or other qualified financial institution selected by the Board.
“Warrant Units” means the Common Units or securities, Cash or other property deliverable upon proper exercise of the Warrants as provided
in this Agreement and the LLC Agreement.
“Warrants” has the meaning set forth in the Preamble.
(b) Capitalized terms used but not defined in this Agreement shall have the meanings assigned to such terms in the LLC Agreement.
2. Rights and Restrictions in LLC Agreement and other Restrictions.
(a) The Warrants are subject in all respects to the provisions of the LLC Agreement, including the rights of the Members set forth therein. Except as otherwise required
by applicable law and unless otherwise specified herein, in the event of any ambiguity or conflict between this Agreement and the LLC Agreement, the terms of this Agreement shall prevail. The Holder of this Warrant is entitled to the rights of a
Member under the LLC Agreement. No Warrant shall be deemed a Common Unit prior to the time that such Warrant has been validly exercised in accordance with this Agreement.
(b) Until the Warrants cease to be outstanding, the Company shall not, directly or indirectly, without the prior written approval of Holders of a majority of the Warrants
issued on the initial date of issuance and the date of issuance of any Warrants issued in replacement thereof and then outstanding:
7
(i) issue or sell Common Units, Options or Convertible Securities at a purchase price per Common Unit that is less than the Current Value Per Common Unit determined in
accordance with the Valuation Procedures as of the date of issuance of such Common Units, Options or Convertible Securities; provided that, this clause (b)(i) shall not restrict (x) the Company from issuing or selling an aggregate of $5,000,000 of
Common Units, Options or Convertible Securities at less than the Current Value Per Common Unit determined in accordance with the Valuation Procedures or (y) the Board from, in its sole discretion, making any number of grants of customary Equity
Awards in accordance with the terms of the LLC Agreement to any employees, consultants or other Persons, in each case, that primarily provide services to the Company who are selected by the Board and are not affiliated or associated with FIP or the
Manager Group (other than by virtue of their relationship with the Company and its Subsidiaries) that (i) do not rank, and are not convertible into, exchangeable for or exercisable for securities that rank, senior to the Common Units or (ii) in the
aggregate with any other issuance of Equity Awards, are (or would constitute, once exercised, vested or received) not more than five percent (5.0%) of the then-issued and outstanding Common Units, Warrants, and Equity Awards (calculated together on
a fully diluted basis and assuming full exercise of the Warrants);
(ii) purchase or otherwise redeem Common Units, Options or Convertible Securities or allow any Subsidiary to purchase or otherwise redeem Common Units, Options or
Convertible Securities; provided that, this clause (b)(ii) shall not restrict the Board from, in its sole discretion, purchasing or redeeming Equity Awards and purchasing or redeeming any Common Units, Options or Convertible Securities issued in
accordance with the LLC Agreement from employees in connection with termination agreements entered into by the Company with employees providing services to the Company; provided further that, this clause (b)(ii) shall not restrict the Company from
repurchasing any Warrants or Warrant Units pursuant to the terms of the LLC Agreement; and
(iii) declare, make or pay any dividend, distribution or other payment to holders of Common Units of any assets or property other than Cash, including (A) shares of the
Company’s capital stock, (B) evidences of the Company’s indebtedness, (C) rights or warrants to purchase the Company’s securities or the Company’s assets or (D) property, including a spin-off.
(c) Within twenty (20) days after the end of each fiscal quarter, the Company shall furnish to each Holder a certificate executed by an executive officer of the Company
attesting to (A) the Exercise Price for the Warrants, (B) a statement of Distributions made by the Company to its Members for such quarter, (C) the total issued and outstanding Equity Securities of the Company (with presentation for basic and fully
diluted (assuming full exercise of Warrants) Equity Securities), (D) the number of Warrants, and (E) the Exercise Price at the beginning and end of such fiscal quarter, and the absolute value of the difference of those numbers.
8
3. Exercise of Warrants.
(a) The Holder is entitled to exercise the Warrants in whole or in part at any time, or from time to time, commencing on the date that is the earlier of (i) the fifth
anniversary of the Initial Issue Date and (ii) the date on which all obligations under the Permanent Debt Financing have been repaid in full and ending at 5:00 p.m., New York City time, on the date that is the tenth anniversary of the Initial Issue
Date or, if such date is not a Business Day, the next subsequent Business Day (such date and time, the “Expiration Time”). As long as the Current Value Per Common Unit is greater than the Exercise Price on
the Trading Day immediately prior to the Automatic Exercise Date, the Warrants shall be deemed exercised on behalf of, and without any required action on the part of the Holders on the Automatic Exercise Date. After the Expiration Time, the
Warrants will be void and of no value, and may not be exercised.
(b) To exercise the Warrants, the Holder shall deliver to the Company no later than the Expiration Time an executed exercise notice substantially in the form annexed to
this Agreement (other than in connection with an exercise on the Automatic Exercise Date) and pay (x) the applicable Exercise Price multiplied by the number of Warrant Units in respect of which any Warrants are being exercised on the date the
notice is provided to the Company or (y) in the case of a Cashless Exercise (which shall be the default option for the Automatic Exercise Date), paying the required consideration in the manner set forth in Section 3(f), in each case, together with
any applicable taxes and governmental charges. The Holder shall be deemed to have elected a Cashless Exercise in connection with an exercise on the Automatic Exercise Date unless, at least two (2) Business Days prior to the Automatic Exercise Date,
the Holder delivers to the Company a written notice that it intends to pay the applicable Exercise Price in cash within two (2) Business Days of the Automatic Exercise Date. Notwithstanding anything herein to the contrary, the Company will issue
the Warrant Units on such date it receives payment of the Exercise Price. So long as the Exercise Price is less than $0.01 of the Common Units, the Holder will be permitted to exercise the Warrants without paying any Exercise Price. Upon such
delivery and payment, the Holder shall be deemed to be the holder of record of the Warrant Units subject to such exercise, notwithstanding that the Unit Ownership Ledger shall not have been updated.
(c) The aggregate Exercise Price shall be payable in lawful money of the United States of America by certified or official bank or bank cashier’s check payable to the order
of the Company, wire transfer of immediately available funds to a bank account designated in writing by the Company, or otherwise as agreed with the Company.
(d) If the Holder exercises the Warrants in part, this Agreement shall be surrendered by the Holder to the Company and a new Warrant agreement of the same tenor and for
the unexercised number of Warrant Units shall be executed by the Company as promptly as reasonably practicable. The Company shall register in the Unit Ownership Ledger the new Warrants in the name of the Holder or in such name or names of its
transferee pursuant to Section 8 hereof as may be directed in writing by the Holder and deliver the new Warrant agreement to the Person or Persons entitled to receive the same as promptly as reasonably practicable.
9
(e) Upon surrender of this Agreement in conformity with the foregoing provisions, the Company shall deliver to the Holder of the Warrants appropriate evidence of
ownership of the Warrant Units to which the Holder is entitled, registered or otherwise placed in, or payable to the order of, the name or names of the Holder or its transferee pursuant to Section 8 as may be directed in writing by the Holder, and
shall deliver such evidence of ownership and any other securities or property (including any money) to the Person or Persons entitled to receive the same as promptly as reasonably practicable.
(f) In lieu of making a Cash payment of the Exercise Price to exercise the Warrants pursuant to Section 3(a) (but in all other respects in accordance with the exercise
procedure set forth in Section 3(a)), the Holder may elect to convert the Warrants into Warrant Units without paying the Exercise Price by reducing the number of Warrant Units that the Holder would otherwise receive upon exercise of the Warrants (a
“Cashless Exercise”), in which event the Company will issue to the Holder the number of Warrant Units equal to the amount resulting from the following equation:
X = (A - B) x C
A
where:
| X = |
the number of Warrant Units issuable upon exercise pursuant to this Section 3(f);
|
| A = |
the Current Value Per Common Unit on the date on which the Holder delivers an exercise notice to the Company pursuant to Section 3(a);
|
| B = |
the Exercise Price; and
|
| C = |
the number of Warrant Units as to which the Warrants are being exercised pursuant to Section 3(a).
|
If the foregoing calculation results in zero or a negative number, then no Common Units shall be issued upon exercise pursuant to this Section 3(f).
4. Restrictive Legend. The Warrant Units issued pursuant to this Agreement shall bear a legend substantially in the form of the legend set forth on
the first page of this Agreement to the extent that and for so long as such legend is required pursuant to the LLC Agreement or applicable securities laws. For purposes of Rule 144 under the Securities Act and subsection (d)(3)(ii) thereof, it is
intended, understood and acknowledged that the Warrant Units issuable upon exercise of this Warrant in a Cashless Exercise shall be deemed to have been acquired, and the holding period thereof shall be deemed to have commenced, at the time this
Warrant was issued, or such earlier time as permitted by Rule 144 under the Securities Act.
5. Reservation of Common Units. The Company hereby agrees that at all times, for so long as the Warrants remain outstanding, there shall be reserved
for issuance and delivery upon exercise of the Warrants, free from preemptive rights, such number of its authorized but unissued Warrant Units from time to time issuable upon exercise of the Warrants as will be sufficient to permit the exercise in
full of the Warrants. All such Warrant Units from time to time issuable upon exercise of the Warrants shall be duly authorized and, when issued upon such exercise, shall be validly issued, fully paid and under DLLCA, the Holder will have no
obligation to make further payments for the purchase of the Warrant Units or contributions to the Company solely by reason of its ownership of the Warrant Units except for their obligation to repay any funds wrongfully distributed to them, free and
clear of all liens, security interests, charges and other encumbrances or restrictions on sale and free and clear of all preemptive rights, in each case, except restrictions on transfer contemplated by Section 4, or as set forth in the LLC
Agreement and shall be issued without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such certificate, all of which taxes and expenses shall be paid by the Company.
10
6. Fractional Units. The number of Common Units issuable hereunder shall be rounded up to the nearest one-one thousandth (1/1,000th) of a Common
Unit.
7. Exchange of Warrants.
(a) Subject to applicable law and the terms of this Agreement, at any time following the sixth anniversary of the Initial Issue Date, a Holder shall be entitled to
require the Company to exchange, ten (10) Business Days after the date on which an Exchange Request is received by the Company, which date may be abridged by the Company, in its sole discretion, if so requested in writing by a Holder (an “Exchange Date”), any or all of the Warrants registered in the name of such Holder for, at the Holder’s election, either (i) Cash equal to the fair market value of the Warrants
on the last Business Day prior to the Exchange Date or (ii) the delivery of the number of shares of FIP Common Stock with an aggregate Current Market Price on the last Trading Day prior to the Exchange Date equal to the fair market value of the
Warrants on such date (the “Exchange Consideration”). The fair market value of the Warrants shall be determined in accordance with the Valuation Procedures
(which, for the avoidance of doubt, shall take into account the Exercise Price at the time of such determination). A Holder must deliver to the Company an executed copy of the form of exchange request (the “Exchange Request”) annexed hereto (including the executed accredited investor questionnaire to be attached thereto), specifying (1) that such Holder desires to have all or any number specified therein of the Warrants held by such
Holder (the “Exchange Warrants”) exchanged by the Company, (2) such Holder’s account information for wire transfers (in the event the Holder elects to Cash settle the exchange) and (3) such Holder’s share
delivery information (in the event the Holder elects to deliver FIP Common Stock to settle the exchange). An Exchange Request shall be irrevocable.
(b) In the case of an exchange of Warrants pursuant to this Section 7(b), upon receipt by the Company of a duly executed Exchange
Request and such additional documents and instruments specified in the preceding paragraph, the Company shall exchange the Exchange Warrants effective at the Close of Business on the Exchange Date. On the Exchange
Date, the Company shall deliver or cause to be delivered to such Holder the Exchange Consideration. Any shares of FIP Common Stock delivered as Exchange Consideration shall be duly and validly issued, fully paid and non-assessable and not
subject to preemptive rights, rights of first refusal or similar rights of any Person or any other restrictions on transfer or other liens, shall be freely tradable by the Holder upon issuance without any
restriction subject to applicable securities laws and shall be approved for listing on NASDAQ or any other national securities exchange on which shares of FIP Common Stock are then listed.
11
(c) On and after the Close of Business on the Exchange Date, the Holder of the Exchange Warrants shall cease to be a Holder of such Exchange Warrants and shall not be
entitled to exercise any of the rights of a Holder in respect thereof, other than the right to receive the total Exchange Consideration in respect thereof, unless payment of the aggregate Exchange Consideration payable to such Holder is not made in
accordance with the provisions of this Section 7(c), in which case the rights of such Holder shall remain unaffected until such aggregate Exchange Consideration has been paid in the manner hereinbefore provided.
(d) Notwithstanding any other provision of this Section 7, the Company shall not be obligated to exchange Exchange Warrants specified by a Holder in an Exchange Request
if and to the extent that such exchange of Exchange Warrants would be contrary to solvency requirements or other provisions of applicable Law, would require regulatory approval prior to payment or issuance, would constitute a violation of, or a
default under, any lease, indenture, instrument or other agreement then applicable to the Company or FIP. If the Company believes that on any Exchange Date it would not be permitted by any of such provisions to exchange the Exchange Warrants
tendered for exchange on such date, the Company shall only be obligated to exchange the Exchange Warrants specified by a Holder in an Exchange Request to the extent of the maximum number of Exchange Warrants that may be so exchanged (rounded up to
a whole number of FIP Common Stock) as would not be contrary to such provisions and shall notify the Holder at least one (1) Business Day prior to the Exchange Date as to the number of Exchange Warrants which will not be exchanged into the FIP
Common Stock by the Company, and shall pay on the Exchange Date to the Holder the fair market value of such Exchange Warrants in Cash.
(e) In connection with any regulatory approval required in connection with the exchange of the Warrants in accordance with this Section 7, the Company shall cooperate in
good faith with requests by the Holder to obtain any such approval as needed to permit the exchange of the Warrants in accordance with this Section 7; provided, that in no event shall the Company be required to provide or to cause any of its
Affiliates to provide covenants to any governmental or administrative entity regarding FIP, the Manager (as defined in the Management Agreement) of FIP, the Company, any of their Subsidiaries or Affiliates or their respective operations; provided
further, that all out-of-pocket costs associated with obtaining such approval, including but not limited to all governmental filing fees and out-of-pocket costs related to any appeals in connection with obtaining any such consent, shall be borne
equally by the Company and the Holder.
12
(f) Notwithstanding anything to the contrary in this Agreement, no shares of FIP Common Stock will be issued or delivered upon any requested exchange of any Warrants of
any Holder thereof, and no Warrants of any Holder thereof will be exchangeable for shares of FIP Common Stock, in each case to the extent, and only to the extent, that such issuance, delivery, exchange or exchangeability would cause such Holder to
become, directly or indirectly, a Beneficial Owner of a number of shares of FIP Common Stock in excess of 4.9% of the total number of shares of FIP Common Stock issued and outstanding immediately following such exchange (the “Beneficial Ownership Limitation”). Any Holder may elect, on sixty-one (61)-days’ notice to the Company, to increase or decrease the then Beneficial Ownership Limitation, provided that it shall not be increased
above 19.99%. Any Warrants of any Holder that are exchangeable in shares of FIP Common Stock in excess of the Beneficial Ownership Limitation shall be exchangeable by such Holder for Cash and the Company shall deliver Cash in lieu of the number of
shares of FIP Common Stock that cannot be delivered to such Holders as a result of the Beneficial Ownership Limitation in an amount equal to the fair market value of such FIP Common Stock on the day that is one Trading Day prior to the Exchange
Date. For these purposes, beneficial ownership and calculations of percentage ownership will be determined in accordance with Rule 13d-3 under the Exchange Act. For purposes of this Section 7(f) only, a Person shall be deemed the “Beneficial Owner” of and shall be deemed to beneficially own any shares FIP Common Stock that such Person or any of such person’s affiliates (as defined in Rule 12b-2 under the Exchange Act) or associates (as
defined in Rule 12b-2 under the Exchange Act) is deemed to beneficially own, together with any FIP Common Stock beneficially owned by any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of
the Exchange Act. Subject to the following proviso, for purposes of this Section 7(f) only, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder as in
effect on the date hereof; provided that the number of shares of FIP Common Stock beneficially owned by such Person and its affiliates and associates and any other persons whose beneficial ownership would
be aggregated with such Person for purposes of Section 13(d) of the Exchange Act shall include the number of shares of FIP Common Stock issuable upon exercise, exchange or conversion of any of FIP’s securities or rights to acquire the FIP Common
Stock, whether or not such securities or rights are currently exercisable, exchangeable or convertible or are exercisable, exchangeable or convertible only after the passage of time (including the number of shares of FIP Common Stock issuable upon
exchange of the Warrants in respect of which the beneficial ownership determination is being made), but shall exclude the number of shares of FIP Common Stock that would be issuable upon (A) exchange of the remaining, unexchanged portion of any
Warrants beneficially owned by such Person or any of its affiliates or associates and any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act and (B) exercise, exchange or
conversion of the unexercised, unexchanged or unconverted portion of any of FIP’s other securities subject to a limitation on exercise, exchange or conversion analogous to the limitation contained herein beneficially owned by such Person or any of
its affiliates or associates and any other persons whose beneficial ownership would be aggregated with such Person for purposes of Section 13(d) of the Exchange Act. Upon any exchange of Warrants by a Holder in accordance with this Section 7, such
Holder will be deemed to have made a representation that such Holder has evaluated the limitation set forth in this paragraph and determined that the issuance of the full number of shares of FIP Common Stock which could be issuable in such exchange
is permitted under this Section 7(f).
(g) Notwithstanding anything to the contrary in this Agreement, the number of shares of FIP Common Stock that will be issued or delivered upon any requested exchange of
any Warrants of any holder thereof, shall not cause the aggregate number of Issued Underlying Shares to exceed the Share Cap unless FIP shall have obtained the Requisite Stockholder Approval; provided that such Requisite Stockholder Approval shall
be deemed obtained if Rule 5635(d) of the Listing Rules (or its successor) does not require stockholder approval to issue the shares of FIP Common Stock required to be issued upon the requested exchange of the Warrants. Any Warrants of any Holder
that are exchangeable in shares of FIP Common Stock in excess of the Share Cap shall be exchangeable by such Holder for Cash and the Company shall deliver Cash in lieu of the number of shares of FIP Common Stock that cannot be delivered to such
Holders as a result of the Share Cap in an amount equal to the fair market value of such FIP Common Stock on the day that is one Trading Day prior to the Exchange Date.
13
(h) Notwithstanding anything to the contrary in this Agreement, the Holder shall not be entitled to and the Company shall not deliver fractions of FIP Common Stock. Where
the application of the provisions of this Agreement would otherwise result in the Holder receiving a fraction of a FIP Common Stock, the number of FIP Common Stock delivered to such Holder shall be rounded up.
(i) None of the Company, FIP or any of their respective Subsidiaries shall enter into any lease, indenture, instrument or other agreement pursuant to which the delivery
by FIP of shares of FIP Common Stock upon exchange of Exchange Warrants in accordance with Section 7 would constitute a violation or a default of such agreement.
(j) FIP shall not, and shall not allow any of its Subsidiaries to, directly or indirectly, make a contribution to the Company of any assets or property other than Cash.
(k) If FIP consolidates with, merges into or sells, leases or otherwise transfers in one transaction or a series of related transactions the consolidated assets of FIP and
its Subsidiaries substantially as an entirety to any person, the successor, transferee or surviving entity must:
A. assume all FIP’s obligations under this Agreement on terms reasonably acceptable to the Holders of a majority of the outstanding Warrants issued on the initial date of issuance and the date of issuance of any Warrants issued in replacement thereof and then outstanding; and
B. promptly provide written notice of such assumption to the Holder.
8. Transfer or Assignment of Warrants and Warrant Units.
(a) Each taker and Holder of the Warrants, by taking or holding the same, consents and agrees that the registered holder hereof may be treated by the Company and all other
Persons dealing with the Warrants as the absolute owner hereof for any purpose and as the Person entitled to exercise the rights represented hereby.
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(b) Other than in accordance with Article IX of the LLC Agreement or as expressly provided herein, and subject to compliance with applicable securities laws, prior to the
sixth anniversary of the Initial Issue Date, the Holder shall not assign or transfer the Warrants or the Warrant Units, at any time in whole or in part, to any Person; provided that, notwithstanding
anything to the contrary in the LLC Agreement, (i) the Holder shall be entitled to, without obtaining the consent of the Company, assign or transfer the Warrants or the Warrant Units to an Affiliate of such Holder and (ii) following the sixth
anniversary of the Initial Issue Date, the Holder shall be entitled to, without obtaining the consent of the Company, assign and transfer the Warrants and the Warrant Units, at any time in whole or from time to time in part, to any Person or
Persons provided that such Person is an “accredited investor” as defined in Rule 501(a) of Regulation D and such Person is not subject to any Sanction or on any specially designated nationals list maintained by the Office of Foreign Assets Control
of the U.S. Treasury Department. Subject to the preceding sentence, upon surrender of this Agreement to the Company, together with the assignment form annexed hereto duly executed if applicable, the Company shall, as promptly as practicable and
without charge, execute and deliver (i) a new Warrant agreement in the name of the assignee or assignees named in such assignment form with respect to the portion of the Warrants being assigned and (ii) if the Holder’s entire interest is not being
assigned, a new Warrant agreement in the name of the Holder with respect to the portion of the Warrants being retained, at which time this Agreement shall promptly be canceled. The Company shall register the new Warrants in the name or names of the
transferee, and if applicable, in the name of the Holder.
9. Loss or Destruction of this Agreement. Upon receipt by the Company of evidence satisfactory to it (in the exercise of its reasonable discretion)
of the loss, theft, destruction or mutilation of this Agreement, and (in the case of loss, theft or destruction) of reasonably satisfactory indemnification, and upon surrender and cancellation of this Agreement, if mutilated, the Company shall
execute and deliver a new Warrant agreement of the same tenor and date and for the same unexercised number of Warrant Units.
10. Adjustments and Other Rights of Warrants. The applicable Exercise Price of the Warrants, the number of Warrant Units issuable upon the exercise of
each Warrant and the number of Warrants outstanding are subject to adjustment from time to time upon the occurrence of the following:
(a) The issuance of Common Units as a dividend or distribution to all holders of Common Units, or a subdivision, split, reverse split, combination, reclassification or
similar event of Common Units, in which event the Company will cause the Exercise Price to be adjusted based on the following formula:
EP1 = EP0 X OS0
OS1
where:
| EP0 = |
the Exercise Price in effect immediately prior to the Close of Business on the Record Date for such dividend or distribution, or immediately prior to the Open of Business on the effective date for such subdivision or combination, as the
case may be;
|
| EP1 = |
the Exercise Price in effect immediately after the Close of Business on the Record Date for such dividend or distribution, or immediately after the Open of Business on the effective date for such subdivision or combination, as the case
may be;
|
15
| OS0 = |
the number of Common Units outstanding immediately prior to the Close of Business on the Record Date for such dividend, distribution, subdivision or combination, or immediately prior to the Open of Business on the effective date for such
subdivision or combination, as the case may be; and
|
| OS1 = |
the number of Common Units that would be outstanding immediately after such dividend, distribution, subdivision or combination.
|
Such adjustment shall become effective immediately after the Close of Business on the Record Date for such dividend or distribution, or immediately after the Open of Business on the effective date
for such subdivision or combination, as the case may be. If any dividend or distribution or subdivision or combination of the type described in this Section 10(a) is declared or announced but not so paid or made, the Exercise Price shall again be
adjusted to be the Exercise Price that would then be in effect if the distribution or subdivision or combination had not been declared or announced, as the case may be. If the Exercise Price is reduced to $0.00, then provision shall be made so that
the Holder shall receive any dividend or distribution or subdivision or combination of the type described in this Section 10(a) in an amount equal to the amount as the Holder would have received if the Warrants had been exercised in full into
Warrant Units on the date immediately prior to such event, provided that, the Holder shall not receive any amount for any Warrant that has been exercised prior to the date of such event.
(b) The making of a dividend or distribution to holders of Common Units of Cash (a “Cash Dividend”), in which event the Company
will cause the Exercise Price to be adjusted such that the Exercise Price in effect immediately prior to the Close of Business on the date for the determination of the holders of Common Units entitled to receive such dividend or distribution shall
be reduced by an amount equal to the amount of the Cash so distributed to one Common Unit; provided that, to the extent any reduction relating to a Cash Dividend would reduce the Exercise Price to an amount below $0.00, the Exercise Price shall be
reduced to $0.00, with any remaining amount of Cash of the Cash Dividend that would otherwise have resulted in a further reduction of the Exercise Price to instead be paid to Holders. So long as the Exercise Price is equal to or less than $0.00 of
the Common Units, if the Company shall declare or make any Cash Dividend, then provision shall be made so that the Holder shall receive, simultaneously with the distribution to the holders of Common Units, a Cash Dividend in an amount equal to the
amount of such Cash Dividend as the Holder would have received if the Warrant had been exercised in full into Warrant Units on the date of such event. Each adjustment pursuant to this clause shall become effective immediately after such Cash
Dividend. In the event that such Cash Dividend is declared or announced but not so paid or made, the Exercise Price shall again be adjusted to be the Exercise Price which would then be in effect if such distribution had not been declared or
announced. For the avoidance of doubt, without the prior written consent of each Holder, the Company shall not declare or make any dividend or distribution to holders of Common Units other than in the form of Cash.
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(c) The issuance or sale of Common Units, Options or Convertible Securities at a purchase price per Common Unit, Option or Convertible Security that is less than the
Exercise Price as of the date of issuance or sale of such Common Units, Options or Convertible Securities, in which case, the Exercise Price in effect immediately prior to such issuance or sale (or deemed issuance or sale) shall be reduced to an
Exercise Price equal to the lowest price at which any such Common Unit, Option or Convertible Security has been issued or sold in such transaction (or is deemed to have been issued or sold) provided that no such adjustment shall be made for any
grants of Equity Awards issued in accordance with the LLC Agreement and this Agreement to any employees, consultants or other Persons, in each case, that primarily provide services to the Company who are selected by the Board and are not affiliated
or associated with FIP or the Manager Group (other than by virtue of their relationship with the Company and its Subsidiaries).
(d) The issuance or sale of Common Units, Options or Convertible Securities at a purchase price per Common Unit, Option or Convertible Security that is above the Exercise
Price and below the Current Value Per Common Unit as of the date of issuance or sale of such Common Units, Options or Convertible Securities, in which case, (i) the Exercise Price in effect immediately prior to such issuance or sale (or deemed
issuance or sale) shall remain the same and (ii) the number of Warrants Units shall be increased such that the Warrant Units represent the same percentage of the Common Units Deemed Outstanding as immediately prior to such transaction; provided
that no such adjustment shall be made for (x) any issuances or sales of Common Units, Options or Convertible Securities with a fair market value of up to an aggregate of $5,000,000 at a purchase price per Common Unit, Option or Convertible Security
that is above the Exercise Price and below the Current Value Per Common Unit as of the date of such issuance or sale of such Common Units, Options or Convertible Securities or (y) any grants of Equity Awards issued in accordance with the LLC
Agreement and this Agreement to any employees, consultants or other Persons, in each case, that primarily provide services to the Company who are selected by the Board and are not affiliated or associated with FIP or the Manager Group (other than
by virtue of their relationship with the Company and its Subsidiaries).
(e) The receipt by the Company of a contribution to the common equity of the Company of Cash, from and after the date of this Agreement, without the Company issuing any
or otherwise increasing the number of outstanding Common Units or other equity interests or other consideration in exchange for, or as a payment for, such contribution, in which case the Company will cause the Exercise Price in effect immediately
prior to the date of such contribution to be increased by an amount equal to the total amount of Cash so contributed divided by the total number of outstanding Common Units.
(f) [reserved]
(g) Restrictions on Adjustments. No adjustment shall be made to the Exercise Price or the Warrant Units for any of the
transactions described in this Section 10 if the Company makes provisions for the Holder to participate in any such transaction without exercising their Warrants on the same basis as holders of Common Units and with notice that the Board determines
in good faith to be fair and appropriate. If the Company takes a record of the holders of Common Units for the purpose of entitling them to receive a dividend or other distribution, and thereafter (and before the dividend or distribution has been
paid or delivered to Unitholders) legally abandons its plan to pay or deliver such dividend or distribution, then thereafter no adjustment to the Exercise Price or the number of Warrant Units for any Warrant then in effect shall be required by
reason of the taking of such record.
17
(h) Adjustment to number of Warrant Units. Concurrently with any adjustment to the Exercise Price under this Section 10 (other
than Section 10(b) and Section 10(e)), the number of Warrant Units for which each Warrant is exercisable will be adjusted such that the number of Warrant Units for each such Warrant in effect immediately following the effectiveness of such
adjustment will be equal to the number of Warrant Units for each such Warrant in effect immediately prior to such adjustment, multiplied by a fraction, (i) the numerator of which is the Exercise Price in effect immediately prior to such adjustment
and (ii) the denominator of which is the Exercise Price in effect immediately following such adjustment.
(i) Recapitalizations, Reclassifications and Other Changes.
(1) If any of the following events occur:
A. any recapitalization;
B. any reclassification or change of the outstanding Common Units (other than changes resulting from a subdivision or combination to which Section 10(a) applies);
C. any consolidation, merger or combination involving the Company;
D. any sale or conveyance to a third party of all or substantially all of the Company’s assets; or
E. any statutory share exchange,
(each such event a “Reorganization Event”), in each case as a result of which the Common Units would be converted into, or exchanged for,
units, stock, other securities, other property or assets (including Cash or any combination thereof) (the “Reference Property”), then following the effective time of the transaction, the right to receive
Warrant Units upon exercise of a Warrant shall be changed to a right to receive, upon exercise of such Warrant, the kind and amount of units, shares of stock, other securities or other property or assets (including Cash or any combination thereof)
that a holder of one Common Unit would have owned or been entitled to receive in connection with such Reorganization Event (such kind and amount of Reference Property per Common Unit, a “Unit of Reference Property”);
provided that, in the event of a Fundamental Change, the Warrants shall be treated solely in accordance with Section 11. In the event holders of Common Units have the opportunity to elect the form of consideration to be received in a Reorganization
Event, the type and amount of consideration into which the Warrants shall be exercisable from and after the effective time of such Reorganization Event shall be deemed to be the weighted average of the types and amounts of consideration received by
the holders of Common Units in such Reorganization Event.
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(2) At any time from, and including, the effective time of a Reorganization Event:
A. if Cashless Exercise does not apply or is not elected upon exercise of a Warrant, each Common Unit per Warrant shall be exercisable into a single Unit of Reference
Property; and
B. if Cashless Exercise applies upon exercise of a Warrant, the number of Warrant Units issuable upon a Cashless Exercise per Warrant shall be a number of Units of
Reference Property calculated as set forth in Section 3(f), except that the Current Value Per Common Unit used to determine the number of Units of Reference Property issuable upon a Cashless Exercise on any Trading Day shall be the Unit Value (as
defined herein) for such Trading Day.
(3) The value of a Unit of Reference Property (the “Unit Value”) shall be determined in accordance with the procedures set forth in the
definition of “Market Price”.
(4) On or prior to the effective time of any Reorganization Event, the Company or the successor or purchasing Person, as the case may be, shall execute an amendment to this
Agreement providing that the Warrants shall be exercisable for Units of Reference Property in accordance with the terms of this Section 10(i). If the Reference Property in connection with any Reorganization Event includes units, shares of stock or
other securities and assets of a Person other than the successor or purchasing Person, as the case may be, in such Reorganization Event, then the Company shall cause such amendment to this Agreement to be executed by such other Person and such
amendment shall contain such additional provisions to protect the interests of the Holders as the Board shall reasonably consider necessary by reason of the foregoing. Any such amendment to this Agreement shall provide for adjustments which shall
be equivalent to the adjustments provided for in this Section 10. In the event the Company shall execute an amendment to this Agreement pursuant to this Section 10(i), the Company shall promptly provide to the Holder a certificate executed by a
duly authorized officer of the Company stating the reasons therefor, the kind or amount of Cash, securities or property or asset that will comprise a Unit of Reference Property after the relevant Reorganization Event, any adjustment to be made with
respect thereto and that all conditions precedent have been complied with.
(j) Consolidation, Merger and Sale of Assets.
(1) Subject to the LLC Agreement, the Company may, without the consent of the Holder, consolidate with, merge into or sell, lease or otherwise transfer in one transaction or a
series of related transactions the consolidated assets of the Company and its Subsidiaries substantially as an entirety to any corporation, limited liability company, partnership or trust organized under the laws of the United States or any of its
political subdivisions so long as:
19
A. the successor assumes all the Company’s obligations under this Agreement and the Warrants; and
B. the Company promptly provides written notice of such assumption to the Holder.
(2) In case of any such consolidation, merger, sale, lease or other transfer and upon any such assumption by the successor corporation, limited liability company, partnership or
trust, such successor entity shall succeed to and be substituted for the Company with the same effect as if it had been named herein as the Company. Such successor entity thereupon may cause to be signed, and may issue any or all of the Warrants
issuable pursuant to this Agreement which theretofore shall not have been signed by the Company; and, upon the order of such successor entity, instead of the Company, and subject to all the terms, conditions and limitations in this Agreement
prescribed.
The provisions set forth in this Section 10(j) are subject, in all cases, to the provisions set forth in Section 10(i)(4).
(k) Certain Calculations.
(i) If any issuance or sale (or deemed issuance or sale) was without consideration, then the Company shall be deemed to have received an aggregate of $0.00 of
consideration for all such Common Units, Options or Convertible Securities so issued or deemed to be issued.
(ii) For the purposes of any adjustment of the Exercise Price and the number of Warrant Units issuable upon exercise of a Warrant pursuant to this Section 10, the
following provisions shall be applicable in the case of the issuance of Options or Convertible Securities (whether or not at the time exercisable):
(a) in the case of the issuance or sale of Options or Convertible Securities for Cash, the amount of the consideration received by the Company shall be deemed to be
the amount of the gross cash proceeds received by the Company for such securities before deducting therefrom any discounts or commissions allowed, paid or incurred by the Company for any underwriting or otherwise in connection with the issuance and
sale thereof;
(b) in the case of the issuance or sale of Options or Convertible Securities for consideration in whole or in part other than Cash, including securities acquired
in exchange therefor (other than securities by their terms so exchangeable), the consideration other than Cash shall be deemed to be the Market Price, before deducting therefrom any discounts or commissions allowed, paid or incurred by the Company
for any underwriting or otherwise in connection with the issuance and sale thereof;
20
(c) the aggregate maximum number of Common Units deliverable upon exercise or conversion or exchange of such Options or Convertible Securities shall be deemed to
have been issued at the time such Options are issued and for a consideration equal to the consideration, if any, received by the Company upon the issuance or sale of such Options or Convertible Securities plus the minimum purchase price required to
be paid to the Company pursuant to the terms of such Options or Convertible Securities covered thereby;
(d) the consideration per Common Unit received by the Company for additional Common Units deemed to underlie Options and Convertible Securities shall be determined
by dividing: (1) the total amount received or received by the Company determined pursuant to clause (ii)(a) or (ii)(b) above, as applicable, by (2) the maximum number of Common Units deliverable upon exercise or conversion or exchange of such
Options or Convertible Securities determined pursuant to clause (ii)(c) above; and
(e) if the Exercise Price and the number of Common Units issuable upon exercise of a Warrant shall have been duly adjusted in accordance with the terms of this
Agreement upon the issuance or sale of any such Options or Convertible Securities, no further adjustment of the Exercise Price or the number of Warrant Units issuable upon the exercise of each Warrant shall be made for the actual issuance of Common
Units upon the exercise thereof.
(iii) For the avoidance of doubt, the issuance or sale of Common Units pursuant to Section 3 of the Warrant Agreement shall not cause an adjustment of the applicable
Exercise Price of the Warrants pursuant to Section 10.
11. Fundamental Change. In case at any time or from time to time after the Initial Issue Date while any Warrants remain outstanding and unexpired in
whole or in part, the Company shall be a party to or shall otherwise engage in any transaction or series of related transactions constituting a Fundamental Change, then the Company shall, (A) in the case of an Initial Public Offering, at the option
of the Holder or (B) for any Fundamental Change other than an Initial Public Offering, automatically, repurchase all outstanding Warrants on the date that a Fundamental Change is consummated for a price equal to the Fundamental Change Payment
Amount. If in connection with such Fundamental Change, the Series A Preferred Units are only redeemed in part as permitted by Section 2.3 of the LLC Agreement, the Company shall only repurchase the outstanding Warrants in part, in the same
corresponding pro rata portion as the number of the Series A Preferred Units redeemed in connection with such Fundamental Change to the fullest extent not so prohibited. The Company shall redeem the Warrants in accordance with the procedures set
forth in Section 2.3(c)(ii) and Section 2.5 of the LLC Agreement, unless the Holder elects in accordance with Section 2.5(g) of the LLC Agreement, to have the Warrants remain outstanding.
12. Reserved.
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13. Valuation Procedures.
(a) The Company shall follow the following procedures (the “Valuation Procedures”) to
determine the Current Value Per Common Unit, the fair market value of the Warrants, the value of items distributed to holders of Common Units to which adjustments in Section 10 apply, the Market Price, and other items (the “Subject of Valuation”). The Company shall give the Holder a written notice at any time that it required to make such determination (the “Valuation Notice”), which notice
shall set forth the Company’s calculation of any or all of Subject of Valuation, as applicable, together with reasonable supporting documentation therefor (and the Company shall provide such Holder all relevant documents and access to personnel
reasonably requested by such Holder or its representatives to compute and verify such calculations), and the Company’s proposed date of the transaction or event that requires the computation of Subject of
Valuation. The calculation of the Subject of Valuation, shall not discount the value of the Warrants or the Common Units because (x)(i) they are subject to restrictions
set forth in this Agreement or the LLC Agreement, (ii) they are illiquid, (iii) there is no premium for control status or (iv) they constitute only a minority interest in the Company and (y) not imply a
price per Warrant (or the Common Unit exchangeable upon exercise thereof) or Warrant Unit less than that implied by the then-most recent valuation for the Company within FIP’s publicly disclosed financial statements; provided that, no event shall
have occurred since the filing date of FIP’s most recent publicly disclosed financial statements that would reasonably be expected to have a material effect on the Subject of Valuation; provided further,
that the occurrence of the Mandatory Redemption Event shall not constitute such an event. The Holder shall have ten (10) Business Days from the date the Valuation Notice is received by it in accordance with the immediately preceding sentence to inform the Company in writing (a “Dispute Notice”) of
any disagreement with the Subject of Valuation set forth in the Valuation Notice. In such case, the Company and the Holder shall cooperate and work in good
faith to reach mutual agreement on the Subject of Valuation as soon as possible. In the event that they are unable to reach agreement within ten (10) Business Days following delivery of the Dispute
Notice, each of the Company and the Holder shall have the right to appoint and engage a qualified appraiser to conduct an appraisal within thirty (30) days of such appointment and determine the Subject of Valuation, as follows, and, in
each case, at the Company’s sole expense:
(i) if the Subject of Valuation derived from the appraisal provided by the appraiser appointed by the Company and the Subject
of Valuation derived from the appraisal provided by the appraiser appointed by the Holder are within ten percent (10.0%) of each other (based on the lower amount), then the Subject of Valuation shall be
equal to the average of such two values; and
(ii) if the Subject of Valuation derived from the appraisal provided by the appraiser appointed by the Company and the
Subject of Valuation derived from the appraisal provided by the appraiser appointed by the Holder are not within ten percent (10.0%) of each other, an additional appraiser will be mutually appointed by the Company and the Holder to conduct an
appraisal within thirty (30) calendar days of such appointment and the two overall values that are closest together on an absolute dollar basis will be averaged and the resulting average fair market value shall constitute the Subject of Valuation.
The costs and expenses of any appraiser appointed in accordance with this Section 13 shall be borne by the Company.
22
(b) In the event that the Holder does not timely deliver a Dispute Notice as provided in this Section 13, the Subject of Valuation set forth in the applicable Valuation
Notice shall automatically be deemed agreed.
(c) Notwithstanding the foregoing, if the Subject of Valuation, has not been finally determined at the time that the event requiring the delivery of a Valuation Notice is
scheduled to occur then: (i) such event shall proceed on the scheduled date; (ii) the Company shall pay to the Holder the portion of the consideration or distribution that is not then in dispute; (iii) the Company shall deposit into the Escrow
Account any portion of the consideration or distribution that is in dispute; (iv) solely to the extent the Company is required to do so pursuant to Section 10 above, the Company shall adjust the Exercise Price, the number of Warrants and the number
of Warrant Units to the one required by the Subject of Valuation derived from the appraisal provided by the appraiser appointed by the Holders, (v) the parties shall finalize the procedures in this Section 13 in accordance with its terms, (vi) upon
the final determination of the Subject of Valuation, the Company shall pay, or cause to be paid (including from such Escrow Account), the portion of consideration or distribution, that was not paid at the time of the event and (vii) upon the final
determination of the Subject of Valuation, solely to the extent the Company is required to do so pursuant to Section 10 above, the Company shall adjust the Exercise Price, the number of Warrants and the number of Warrant Units as required by the
final Subject of Valuation and shall give retroactive effect to such adjustments from the date of the event. For the avoidance of doubt, this Section 13 shall survive such Holder’s ceasing to be a Holder or the termination, dissolution, liquidation
and winding up of the Company.
(d) For the purpose of establishing the fair market value of a Warrant, the Warrants shall be deemed to be exercisable at Holder’s option at any time from the Initial
Issue Date until the Expiration Time.
(e) In the event of an IPO, the fair market value of a Warrant shall be calculated on the basis of the purchase price or the gross issuance price to the public per unit
of the common equity issued or sold in an IPO. In the event of a SPAC transaction, the fair market value of a Warrant shall be calculated on the basis of the implied enterprise value of the combined company as of the closing date of the SPAC
transaction. In the event of a Direct Listing, the fair market value of a Warrant shall be calculated on the basis of the closing price per Common Unit on the first day of trading. In the event of a Sale of the Company, Tag-Along Sale or Drag-Along
Sale, the fair market value of a Warrant shall be calculated in accordance with Section 7.3(e), Section 9.3 and Section 9.4 of the LLC Agreement, respectively.
(f) In the event that there is more than one Holder of the Warrants, the appraiser that will be selected by the Holder, shall be selected by Holders of a majority of the
Warrants issued on the initial date of issuance and the date of issuance of any Warrants issued in replacement thereof and then outstanding.
14. Registration Rights.
(a) [reserved].
23
(b) Prior to issuing any shares of FIP Common Stock to the Holder on the Exchange Date, FIP and the Holder shall enter into a registration rights agreement and shall
register such shares of FIP Common Stock for resale on a registration statement under the Securities Act (the “Registration Statement”) on a delayed or continuous basis (without giving effect to the
Beneficial Ownership Limitation), which Registration Statement shall be effective prior to any such issuance, provided that the Holder has provided, pursuant to a customary selling security holder questionnaire, information required to be included
therein by the Securities Act and rules and regulations thereunder. The Registration Statement shall provide for the resale of the registrable securities issued or issuable pursuant to any method or combination of methods legally available to, and
requested by, the Holder. Each of the Registration Statement and the registration rights agreement shall be in such form as is acceptable to the Holder and on terms reasonably acceptable to the Holders of a majority of the Warrants issued on the
initial date of issuance and the date of issuance of any Warrants issued in replacement thereof and then outstanding. FIP shall keep such Registration Statement continuously effective, available for use and in compliance with the provisions of the
Securities Act until such time as all shares of FIP Common Stock issued to the Holder shall have been sold, transferred or otherwise disposed of pursuant to the Registration Statement or Rule 144.
(c) The costs and expenses of any Registration Statement in accordance with this Section 14 and reasonable and documented out-of-pocket expenses of the Holder in
connection therewith shall be borne by the Company.
15. Tax Matters.
(a) Notwithstanding anything to the contrary in this Agreement, each Holder represents, warrants and covenants that (i) for U.S. federal income tax purposes (including
Sections 1445 and 1446 of the Internal Revenue Code of 1986, as amended), it is, and for so long as it is a Holder it will remain, a U.S. person (or a disregarded entity thereof), and (ii) such Holder has provided the Company with a properly
completed and executed IRS Form W-9, dated as of the date hereof, and shall promptly update such form if it becomes inaccurate or obsolete.
(b) Section 3.7 of the LLC Agreement is incorporated by reference herein.
16. Notices. All notices, requests and other communications required or permitted to any party hereunder will be effective if in writing and (i)
delivered personally, (ii) sent by email, (iii) sent by nationally recognized overnight courier, or (iv) sent by registered or certified mail, postage prepaid, in each case, to the address of the party set forth on such party’s signature page
hereto or to such other address or attention as the recipient party has specified by prior written notice to the sending party. All notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof
if received (evidenced, in the case of email, so long as the sender thereof has not received an email indicating delivery failure) prior to 5:00 p.m. in the place of receipt if such day is a Business Day in the place of receipt. Otherwise, any such
notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt.
24
17. GOVERNING LAW. THIS AGREEMENT (AND ALL CLAIMS, CONTROVERSIES OR CAUSES OF ACTION RELATING
HERETO OR ARISING IN CONNECTION HEREWITH) SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO CONFLICT OF LAWS PRINCIPLES.
18. Amendments; Waivers. Any provision of this Agreement may be amended, modified or waived if, and only if, such amendment, modification or waiver
is in writing and signed by the Company and the Holder. No delay of or omission in the exercise of any right, power or remedy accruing to any party as a result of any breach or default by any other party under this Agreement shall impair any such
right, power or remedy, nor shall it be construed as a waiver of or acquiescence in any such breach or default, or of any similar breach or default occurring later; nor shall any such delay, omission nor waiver of any single breach or default be
deemed a waiver of any other breach or default occurring before or after that waiver. The Company covenants and agrees that this Agreement shall be binding upon any Person succeeding to the Company by merger, consolidation, reorganization or
acquisition of all or substantially all of the Company’s assets. The Company hereby covenants and agrees that the Company will not, by amendment of its constitutional documents or through any reorganization, transfer of assets, consolidation,
merger, scheme of arrangement, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Agreement, and will at all times in good faith carry out all
the provisions of this Agreement and take all action as may be required to protect the rights of the Holder.
19. Counterparts. This Agreement may be executed in two or more counterparts (including by facsimile or email delivery of a “.pdf” format data file),
and by different parties on separate such counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
20. Enforceability. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon
any Person, other than the parties hereto and their respective successors and permitted assigns.
21. No Waiver. Nothing contained in this Agreement shall be deemed to be a consent, approval, modification or waiver of any rights of any Members
under the LLC Agreement, including section 2.3(e) of the LLC Agreement.
[Signature page follows]
25
IN WITNESS WHEREOF, the Company has duly caused this Agreement to be signed by its duly authorized officer and to be dated as of August 25, 2025.
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FIP RR HOLDINGS LLC
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By:
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/s/ Kenneth Nicholson
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Name:
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Kenneth J. Nicholson
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Title:
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President
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Address:
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||
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111 W. 19th Street, 2nd Floor
|
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New York, New York 10011
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||
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Attention:
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Ken Nicholson
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Kevin Krieger
|
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Email:
|
||
Acknowledged and Agreed solely as to Section 7 and 14:
|
FTAI INFRASTRUCTURE INC.
|
||
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By:
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/s/ Kenneth Nicholson
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Name:
|
Kenneth J. Nicholson
|
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Title:
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Chief Executive Officer
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Address:
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111 W. 19th Street, 2nd Floor
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New York, New York 10011
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Attention:
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Ken Nicholson
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Kevin Krieger
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Email:
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Acknowledged and Agreed:
|
|
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ASIF HOLDINGS INC.
|
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By:
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/s/ Jason Park
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Name:
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Jason Park
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Title:
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Authorized Signatory
|
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Address:
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Ares Management LLC
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Attn: Direct Lending Middle Office
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245 Park Avenue, 44th Floor
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New York, NY 10167
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Acknowledged and Agreed:
|
||
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CADC Blocker Corp.
|
||
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By:
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/s/ Jason Park
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Name:
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Jason Park
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Title:
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Authorized Signatory
|
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Address:
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Ares Management LLC
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Attn: Direct Lending Middle Office
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245 Park Avenue, 44th Floor
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New York, NY 10167
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Acknowledged and Agreed:
|
|
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Ares Private Credit Solutions II, L.P.
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|
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By: Ares Capital Management LLC, its Manager
|
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By:
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/s/ Jason Park
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Name:
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Jason Park
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|
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Title:
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Authorized Signatory
|
|
Address:
|
|
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Ares Management LLC
|
|
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Attn: Direct Lending Middle Office
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|
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245 Park Avenue, 44th Floor
|
|
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New York, NY 10167
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Acknowledged and Agreed:
|
|
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Ares PCS II Holdings (A) LLC
|
|
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By:
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/s/ Jason Park
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Name:
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Jason Park
|
|
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Title:
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Authorized Signatory
|
|
Address:
|
|
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Ares Management LLC
|
|
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Attn: Direct Lending Middle Office
|
|
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245 Park Avenue, 44th Floor
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|
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New York, NY 10167
|
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Acknowledged and Agreed:
|
|
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ASOF II FIP Holdings LP
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|
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By: ASOF Management II, L.P., its general partner
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|
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By: ASOF Management II GP LLC, its general partner
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|
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By:
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/s/ Felix Bernshteyn
|
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Name:
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Felix Bernshteyn
|
|
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Title:
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Authorized Signatory
|
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Address:
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c/o ASOF Investment Management LLC
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1800 Avenue of the Stars, Suite 1400
|
|
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Los Angeles, CA 90067
|
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Acknowledged and Agreed:
|
|
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ASOF II FIP J Holdings LP
|
|
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By: ASOF Investment Management LLC, its manager
|
|
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By:
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/s/ Felix Bernshteyn
|
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Name:
|
Felix Bernshteyn
|
|
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Title:
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Authorized Signatory
|
|
Address:
|
|
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c/o ASOF Investment Management LLC
|
|
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1800 Avenue of the Stars, Suite 1400
|
|
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Los Angeles, CA 90067
|
|
Acknowledged and Agreed:
|
|
|
ASOF III F Holdings 2 LP
|
|
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By: ASOF Management III, LP, its general partner
|
|
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By: ASOF Management III GP LLC, its general partner
|
|
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By:
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/s/ Felix Bernshteyn
|
|
Name:
|
Felix Bernshteyn
|
|
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Title:
|
Authorized Signatory
|
|
Address:
|
|
|
c/o ASOF Investment Management LLC
|
|
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1800 Avenue of the Stars, Suite 1400
|
|
|
Los Angeles, CA 90067
|
|
Acknowledged and Agreed:
|
|
|
Ares Private Opportunities 2020 (C), LP
|
|
|
By: ACOF Investment management LLC,
|
|
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Its manager
|
|
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By:
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/s/ Matthew Jill
|
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Name:
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Matthew Jill
|
|
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Title:
|
Authorized Signatory
|
|
Address:
|
|
|
c/o ACOF Investment Management LLC
|
|
|
1800 Avenue of the Stars, Suite 1400
|
|
|
Los Angeles, CA 90067
|
|
Acknowledged and Agreed:
|
|
|
Ares Opportunistic Credit Investment Partnership (CP) LP
|
|
|
By: ASOF Investment Management LLC,
|
|
|
its manager
|
|
|
By:
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/s/ Felix Bernshteyn
|
|
Name:
|
Felix Bernshteyn
|
|
|
Title:
|
Authorized Signatory
|
|
Address:
|
|
|
c/o ASOF Investment Management LLC
|
|
|
1800 Avenue of the Stars, Suite 1400
|
|
|
Los Angeles, CA 90067
|
|
Acknowledged and Agreed:
|
|
|
Ares PA Opportunities Fund, L.P.
|
|
|
By: Ares SP Management LLC,
|
|
|
its general partner
|
|
|
By:
|
/s/ Matthew Jill
|
|
Name:
|
Matthew Jill
|
|
|
Title:
|
Authorized Signatory
|
|
Address:
|
|
|
c/o ASOF Investment Management LLC
|
|
|
1800 Avenue of the Stars, Suite 1400
|
|
|
Los Angeles, CA 90067
|
|
Acknowledged and Agreed:
|
|
|
Ares Credit Investment Partnership I (V) L.P.
|
|
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By: Ares CIP (V) Management LLC,
|
|
|
its manager
|
|
|
By:
|
/s/ Matthew Jill
|
|
Name:
|
Matthew Jill
|
|
|
Title:
|
Authorized Signatory
|
|
Address:
|
|
|
c/o ASOF Investment Management LLC
|
|
|
1800 Avenue of the Stars, Suite 1400
|
|
|
Los Angeles, CA 90067
|
|
Acknowledged and Agreed:
|
|
|
APF II Holdings II, L.P.
|
|
|
By: Ares Alternative Credit Management LLC,
|
|
|
its manager
|
|
|
By:
|
/s/ Thomas C. Griffin III
|
|
Name:
|
Thomas C. Griffin III
|
|
|
Title:
|
Authorized Signatory
|
|
Address:
|
|
|
c/o Ares Alternative Credit Management LLC
|
|
|
245 Park Avenue, 42nd Floor
|
|
|
New York, NY 10167
|
|
Acknowledged and Agreed:
|
|
|
Ares Badger Fund LP
|
|
|
By: Ares Alternative Credit Management LLC,
|
|
|
its manager
|
|
|
By:
|
/s/ Thomas C. Griffin III
|
|
Name:
|
Thomas C. Griffin III
|
|
|
Title:
|
Authorized Signatory
|
|
Address:
|
|
|
c/o Ares Alternative Credit Management LLC
|
|
|
245 Park Avenue, 42nd Floor
|
|
|
New York, NY 10167
|
EXERCISE NOTICE
(To be delivered prior to exercise of the Warrants
by execution of the Warrant Exercise Subscription Form)
|
To:
|
FIP RR Holdings LLC
|
The undersigned hereby notifies you of its intention to exercise the Warrants to purchase Common Units of FIP RR Holdings LLC. The undersigned intends to exercise the Warrants to purchase
___________ Common Units (the “Warrant Units”) at $______ per Common Unit (the Exercise Price currently in effect pursuant to the Warrant Agreement). As indicated below, the undersigned intends to pay the
aggregate Exercise Price for the Warrants in by wire transfer of immediately available funds or by certified or official bank or bank cashier’s check or by reduction in the number of Warrant Units that would otherwise be issued upon Cashless
exercise pursuant to Section 3(f) of the Warrant Agreement.
| Date: |
|
(Signature of Owner)
|
||
|
(Street Address)
|
||
|
(City) (State) (Zip Code)
|
|
Payment:
|
☐ |
$
|
wire transfer of immediately available funds
|
|
|
|
☐ |
$
|
|
certified or official bank or bank cashier’s check
|
|
|
☐ |
Reduction in number of Warrant Units upon Cashless exercise
|
||
EXERCISE SUBSCRIPTION FORM
(To be executed only upon exercise of the Warrants
after delivery of Exercise Notice)
|
To:
|
FIP RR Holdings LLC
|
The undersigned revocably exercises the Warrants for the purchase of ___________ Common Units (the “Warrant Units”) of FIP RR Holdings LLC (the “Company”) at $_____ per Common Unit (the Exercise Price currently in effect pursuant to the Warrant Agreement) and herewith makes payment of $___________ (such payment being made as specified in the undersigned’s
previously-delivered exercise notice), all on the terms and conditions specified in the within Warrant Agreement, surrenders this Warrant Agreement and all right, title and interest therein with respect to such Warrant Units (but not, for the
avoidance of doubt, with respect to any unexercised portion of the Warrants) to the Company and directs that the Warrant Units deliverable upon the exercise of the Warrants be registered or placed in the name and at the address specified below and
delivered thereto.
| Date: |
|
(Signature of Owner)
|
||
|
(Street Address)
|
||
|
(City) (State) (Zip Code)
|
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised portion of the Warrants evidenced by the within Warrant Agreement to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
ASSIGNMENT FORM
Dated ________________, _____
FOR VALUE RECEIVED, _______________________ hereby sells,
assigns and transfers unto_____________________________ (the “Assignee”),
(please type or print in block letters)
(insert address)
its right to purchase up to ___________ of the Common Units represented by this Warrant Agreement and does hereby irrevocably constitute and appoint _______________________ as Attorney-in-Fact, to transfer the same
on the books of the Company, with full power of substitution in the premises.
Signature:
EXCHANGE REQUEST
WARRANTS OF FIP RR HOLDINGS LLC
Dated [●]
Pursuant to Section 7(a) of the Warrant Agreement of FIP RR Holdings LLC (the “Warrant Agreement”), the undersigned holder of [●] Warrants (the “Warrants”) of FIP RR Holdings LLC (the “Company”), hereby tenders [all]/[●] of such holder’s Warrants in exchange for the Exchange Consideration (as defined in the Warrant Agreement). Enclosed herewith is an accredited investor representation letter (the “Representation Letter”), executed by the undersigned and delivered to you in accordance with the terms of Section 7(a). The undersigned acknowledges,
represents and agrees that:
| 1. |
the information in the Representation Letter is accurate and true in all respects as of the date hereof; and
|
| 2. |
if there is any change prior to the Exchange Date (as defined in the Warrant Agreement) to the information certified herein or in the Representation Letter such that the representations herein or therein are
no longer true, the undersigned shall notify the Company immediately and the Exchange Request shall be null and void and revoked.
|
Wire transfer information:
[●]
Share delivery information:
[●]
|
(Signature of Owner)
|
||
|
(Street Address)
|
||
|
(City) (State) (Zip Code)
|